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spring semester classes 2023 > Family law > Flashcards

Family law Flashcards

1
Q

SUBJECT MATTER JURISDICTION

A

the determination of whether the trial court has the power “to deal with a class of cases to which a particular case belongs [in the court at issue].” Cunningham v. Standard Guar. Ins. Co., 630 So. 2d 179, 181 (Fla. 1994)

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2
Q

FL Stat §61.517- Temporary emergency jurisdiction

A

A court of this state has temporary emergency jurisdiction if
(1) the child is present in this state and
(2) the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.

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3
Q

PERSONAL JURISDICTION

A

Edwards v. Codrington, 325 So.3d 993 (Fla. 5th DCA 2021)
A claim for lack of jurisdiction is waived if answer lacks the word “jurisdiction”

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4
Q

MILITARY PERSONNEL & SPOUSES Florida Statute §47.081

A

Servicemen residency in FL still intact even if not physically in FL for 6 mo prior to dissolution of marriage action; they claim residency on form> corroborate with evd> D/L, Voter id, property, bank accounts, insurance

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5
Q

Foreign Citizen Residency

A

Alien who
(1) has resided over 6mo and
(2) intends to remain indefinitely But has not been authorized permanent residency maintains FL residency;

Residency requ doesn’t include citizenship

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6
Q

when is Foreign Citizen Residency not established

A

If individual is on temporary basis
(tourist visa) and makes no indication to stay permanently fails stat requ to intend to remian in FL

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7
Q

Residency Requirement for Dissolution of Marriage Florida Statutes §61.021

A

(1) physical presence in FL
(2) intent to remain permanently or make FL your residence indefinitely
(3) corroborating evidence of FL residency i.e. D/L, voter id, 3p testimony on record

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8
Q

When is Decree in divorce suit effective?

A

when it is
(1) reduced to writing
(2) signed by a judge
(3) recorded in chancery order book

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9
Q

What happens when party to divorce suit dies before decree/ final judgment?

A

(1) no judgment can stand; judge CANNOT sign order nunc pro tunc
(2) suit ceases to exist once death occurs bc death terminates marriage
(3) Pre Existing orders still live (attorney’s fees)

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10
Q

Subject Matter Jurisdiction over child custody determinations is controlled by the ___ which includes ___ ___ ___

A

Uniform Child Custody Jurisdiction & Enforcement Act

  1. legal custody
  2. physical custody
  3. residential care or visitation
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11
Q

SMJ over child custody determinations DOES NOT include

A

Child support or other monetary obligations of an individual

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12
Q

A court has personal jxn over a party when __ and __

A
  1. power to assert lack of pjxn; answer does not include “Jurisdiction”
  2. residency requirement- (1) physical presence (2) intent to remain > where party’s chief seat of affairs and interest
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13
Q

what is the residency of a military personnel on active duty if he is normally a FL resident?

A

servicemen absent from FL solely bc status as serviceman was entitled to maintain suit for dissolution action

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14
Q

Annulment cannot happen if the marriage is __ and there is __

A

consummation
cohabitation

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15
Q

If a marriage cannot be annulled, parties must

A

divorce; dissolution of marriage

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16
Q

Is a victim of fraudulent marriage SOL?

A

If no consummation annulment may be obtained

Exception: if party finds out and goes along with it

Cooper v. Cooper, 120 Fla. 607 (Fla. Sup. Ct., Division B 1935)

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17
Q

No judgment for dissolution UNLESS

A
  1. Marriage is irretrievably broken or
  2. Mental incapacity of one of the parties is gone
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18
Q

What are defenses for legal separation?

A

FL abolished all defenses; “irretreievably broken” is new standard

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19
Q

What are the types of alimony in FL?

A
  1. pendente lite (suit money)
  2. permanent alimony
  3. rehabilitative
  4. durational
  5. bridge the gap (no more than 2 years).
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20
Q

Which types of alimony awards are subject to modification?

A

Permanent, durational, and rehabilitative can be modified upon a petition showing a substantial change in circumstances.

*Bridge the gap alimony may not be modified in amount or duration.

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21
Q

Unless otherwise specified, permanent and durational alimony will terminate upon _______.

Rehabilitative alimony will terminate upon _______.

A
  1. remarriage of the recipient spouse or death of either spouse.
  2. death of either spouse
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22
Q

What factors do FL Courts consider when determinting the type and amount of alimony?

A
  1. duration of the marriage
  2. standard of living during the marriage
  3. age and emotional and physical condition of both parties
  4. financial resources and sources of income of each party
  5. amount of time needed for education/training (if nec)
  6. each party’s contribution to the marriage (including homemaking, children, education and career-building of the other spouse)
  7. any other factors that will foster equity
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23
Q

For purposes of determining alimony a short term marriage is -?, moderate-term? long-term?

A

0-7
7-17
17 +

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24
Q

What is the standard for determining child support?

A

BIC

The award to support to one party for the benefit of the children should be based on monetary needs and ability to pay.

FL Statute provides child support guidelines for determining amount.

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25
Q

Child support awards and agreements can be modified by a court with jurisdiction, upon a showing of ______.

A

Substantial change in circumstances of financial ability of either party.

*Note that agreements and court awards can both be modified with the same level of proof wheras property settlement agreements between the parties are unmodifiable in relation to property distribution whereas alimony awards can be modified. Means that categorizing a payment as property settlement v. alimony matters a lot.

26
Q

The duty to support continues until the child is ______. A child is presumed emancipated when?

A

emancipated

upon reaching age 18, marriage, or self-sufficiency

27
Q

The court has no authority to cancel or reduce a _______ of child support. Any reduction or termination of the monthly child support amount would be retroactive only to the date __________.

A

past due installment

Husband files his petition for modification/ termination

28
Q

If a father later wants to disestablish paternity what must his petition include?

A
  1. Affidavit that newly discovered evidence relating to the paternity of the child has come to light since the initial paternity determination or establishment of a child support obligation;
  2. the results of scientific tests administered within 90 days of the petition showing that the man cannot be the father of the child, AND
  3. an affidavit stating that he is current on all child support payments for the child or that he has substantially complied with his child support obligation and that any delinquency is from inability to pay or based on just cause.

**A court may not set aside the paternity determination, if, after discovered that he was not the child’s biological father, the man:

  1. consented to be named the bio father on the child’s birth certificate, or
  2. promised in writing to support the child and was required to support the child based on that promise
29
Q

The purpose of civil contempt for a non-paying child support obligor is

A

to obtain compliance with a court order or to compensate for losses sustained as a result of the obligor’s willful failure to comply with a court order.

30
Q

The court may either __ or _____ the defaulting obligor. The obligor must have had the _______, but ______ before a finding of civil contempt can be entered.

A

fine or incarcerate

present ability to comply with the order

willfully failed to do so

31
Q

If the obligor, through no fault of his own, cannot comply, there can be no _____ as a punishment.

A

incarceration

32
Q

If multiple states are involved in a fact pattern re a child consider ____.

A

Which state is the child’s home state?

UCCJEA: Uniform Child Custody Jurisdiction and Enforcement Act.

33
Q

The UCCJEA has a jurisdictional test which asks?

A

Which state is the child’s home state?

The state in which the child lived with a parent (or a person acting like a parent) for at least 6 consecutive months immediately before commencement of a child custody proceeding.

34
Q

A court competent to decide child custody matters (in FL, circuit court) has jurisdiction to make a child custody determination, by in itial or modification judgment, if it is the state that:

A
  1. is the child’s home state
  2. was the child’s home state within the past six months and the child is now absent from the state but a parent (or person acting as a parent) continues to live in the state.
35
Q

According to FL statute, if a parent desires a change of residence that would relocate the child at least 50 miles from her current residence, the parent must either:

A
  1. obtain the written consent of every person entitled to time-sharing with or access to teh child; or
  2. serve a petition to relocate on every person entitled to time-sharing with or access to the child.
36
Q

The date for determining marital assets and liabilities is the earliest of:

A
  1. the date the parties enter into a valid separation agreement
  2. the date specifically provided by a valid separation agreement
  3. the date of the filing of a petition for dissolution of marriage or
  4. any other such date that the court determines is just and equitable under the circumstances
37
Q

What are some factors considered in developing time-sharing plan?

A

BIC

  1. parent’s ability to provide a stable home environment for the child
  2. child’s preference (child never gets full decision in FL)
  3. parent’s willingness to allow time-sharing and to encourage an ongoing relationship with the other parent.
38
Q

Marital assets include:

A
  1. those acquired by either or both spouses during marriage other than those received through gift, bequest, or devise
  2. enhancement of, or appreciate in, non-marital assets as the result of the efforts of either spouse during marriage or from the contribution to or expenditure of marital funds.
  3. interspousal gifts during the marriage and
  4. all benefits accrued through retirement plans, pension plans, profit-sharing plans, and the like.
39
Q

Courts can consider what when determining distribution of marital assets?

A
  1. each spouse’s contribution to the marriage
  2. contribution to care/ education of kids
  3. services of homemaker
  4. economic circumstances
  5. duration of marriage
  6. each spouse’s career and education sacrifices
  7. desirability of retaining any asset from from claim and hostile interference by the other spouse
40
Q

What is required for a prenuptial agreement?

A

(1) writing and signed by both parties
(2) entry into the marriage is the only consideration necessary
(3) agreement is effective the day of marriage
(4) must be made voluntarily, in good faith, and no undue influence

41
Q

What can be included in a prenuptial agreement?

A

(1) alimony
(2) equitable distribution
(3) rights to control property
(4) disposition of property upon death

42
Q

What can a prenuptial agreement not do with regard to the child?

A

Can’t adversely affect the rights of the child (child support is the right of the child). And can’t delineate time-sharing

43
Q

How do you show a prenuptial agreement should not be enforcement/Defense to enforcement

A

(1) agreement wasn’t executed voluntarily;
(2) agreement was the product of fraud, duress, coercion, or overreaching; OR
(3) agreement was unconscionable (decided as a matter of law)

44
Q

Regarding fairness of the prenuptial agreement, what are the three considerations the court will look at?

A

(1) was party given fair and reasonable disclosure
(2) did the party have the ability to look at the assets
(3) was it impossible or not feasible for a party to know what assets their partner had

45
Q

When will Florida courts uphold a written cohabitation agreement?

A

When it provides for support between unmarried, cohabitating adults so long as the agreement isn’t based on illicit consideration (sexual services)

46
Q

What is annulment?

A

a declaration that a prior marriage was invalid because of some defect that existed at the time it was created

47
Q

When must the grounds for annulment exist?

A

the time of the wedding

48
Q

What can a court declare in an annulment?

A

Court can award alimony (usually short term), child support, and/or division of property

49
Q

What are three examples of voidable marriages?

A

(1) lack of consent
(2) fraud that goes to the essentials of the marriage
(3) lack of capacity
(4) no intent to be bound
(5) incurable physical impotence
(6) age requirement not met

50
Q

When will FL recognize a common law marriage?

A

When it was validly entered into in a state allowing common law marriage. Fl determines the validity of a marriage based upon the law of the state/county where the marriage took place

51
Q

What is an incestuous marriage?

A

VOID marriage. People who are related get married to each other

52
Q

What is bigamy?

A

VOID marriage. When a married person marries someone else. Any person with a living spouse who married another person is guilty of a third degree felony

53
Q

How does FL define marriage?

A

(1) a contract between two individuals who are eligible to marry
(2) parties who have the capacity to marry and must consent to the marriage

54
Q

What is required of the marriage license?

A

(1) must apply together
(2) no blood test required, but need a signed, notarized affidavit providing their social security numbers and ages
(3) parties have to tell the clerk they have read the rights and responsibilities of parties to a marriage and (a) they wait three days OR (b) complete a pre-marital prep course; and
(4) license will expire in 60 days

55
Q

Who is authorized to marry a couple?

A

(1) minister
(2) judge
(3) former judge
(4) circuit court clerk; and
(5) notary

56
Q

Where does a putative marriage exist and is it enforceable?

A

one person has been living with another person in a genuine belief that the two are married, even though they aren’t

no

57
Q

what are the prerequisites to marry?

A

(1) capacity
(2) consent
(3) intent`

58
Q

In a dissolution based on mental incapacity, what is the time requirement?

A

the incapacitated party must be adjudged incapacitated for at least three years

59
Q

How long will a court continue the action for divorce?

A

For up to three months to give the parties time to reconcile IF one of the parties is contesting the divorce OR IF there are minor children who will be adversely affected

60
Q

What is shared parental responsibility?

A

The court will order that parental responsibility for a minor child be shred unless the court finds that shared parental responsibility would be detrimental to the child

61
Q

What is the ultimate responsibility concept of shared parental responsibility?

A

The court may grant to one party the ultimate responsibility over specific aspects of the child’s welfare based on the best interests of the child
(may be education, health care, etc.)

spring semester classes 2023 (4 decks)

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