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Flashcards in family law Deck (64)
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1

family law: types/rules of law used

family law rules and rules of civil procedure

2

family law mandatory disclosure

requirement of financial documents for both parties and a continuing duty to disclose supplemental information

3

long form disclosures

if more than $50k in question; 10 additional interrogatories than with standard interrogatories

4

marital agreements in general

law of K is involved; generally valid if 1-voluntary (appropriate time and place to review, opportunity to seek counsel, and statements made during presentation); 2-fair and just or after full and fair disclosure/discovery.

5

premarital agreements

statute of frauds applies-must be in writing; marriage is sufficient consideration; courts will strictly scrutinize for good faith and lack of consideration; full financial disclosure is not required; can't leave spouse dependant on the state w/o extra support and can't mention kids or parental responsibility; can address attorney fees

6

post-nuptial agreements

do not fall under SOF, but subject matter may such as property; can waive alimony right; cannot waive child support or determine who will have parental responsibility; if agreement does not fairly provide for contesting spouse, must have full and fair financial disclosure before signing posnup; mutual promises are consideration; can waive right to elective share; may address parental responsibility and child support, but cannot adversely affect the kid

7

marriage rights

right to marry is a fundamental constitutional right-any restrictions must be the least restrictive means and serve a compelling state interest-any regulation can't burden too much;

8

common law marriage

not recognized after 1968; can recognize pursuant to full faith and credit if valid in another state; parties must have had mental capacity to K; must hold each other out as married-present tense marriage

9

statutory marriage requirements

voluntary consent; must have K mental capacity; if under 16, needs court permission; if 16-18, okay if pregnant, have a baby, parents or court okay it;

10

valid marriage requirements

license; opposite sex; 3-day waiting period if no prep course was completed; solemnization-ceremony by judge, authorized public official, or religious institution; certify license w/i 10 days

11

proxy marriages

not recognized in FL

12

termination of marriage in general

circuit court jurisdiction;

13

annulment

treats parties as if no marriage existed; invalid marriage; no alimony except during the action-but can recover damages; common law based-not statutory; impediment (impotency, sham) had to exist at the time of the marriage; a child of an annulled marriage is not considered to be a child of that marriage

14

void marriage

Void: like it never happened; does not require judicial order; two basis: 1-prior existing marriage; 2-lack of mental capacity; any party may seek to annul, no act can ratify. Voidable: requires judicial decree; only a spouse can seek to annul: 1-incest (w/i a degree, half-blood); 2-age; 3-impotence (naturally and incurably impotence & other party did not know before marriage); 4-intoxication (incapable to K); 5-fraud, mis-rep, duress, coercion (must be present at time); 6-lack of intent (meant as joke)

15

property of an anullment

courts try to place parties in same positions as if never married; alimony is never available except for pendent lite during the action

16

defenses to annulllment action

recrimination (unclean hands)- both parties are guilty of same thing; laches-doesn't seek in a timely manner; and ratification-conduct based after marriage; condonation-continued cohabitation

17

divorce in general

residency requirement of 6 months to file in FL; full faith and credit given to a divorce in another state; no legal separation in FL; FL is a "no fault" divorce state

18

divorce grounds

"no fault" state-eliminates fault. two types: 1-irretrievably broken (court must make the finding, needs testimony of only 1 spouse, even if curable; if spouse contest, court can continue the matter for 3 moths, order counseling, or order that divorce is in best interest of kids); 2-incapacity (1 of the parties was mentally incompetent).

19

divorce defenses

denial of the grounds (good luck with that)

20

simplified divorce

no kids, no argument over assets, must still file financial affidavit disclosure, goes to county court instead if circuit court, no legal counsel, wife not pregnant, must still draft settlement agreement

21

equitable distribution in general

not always 50/50 division of property, but division must be equal, unless unequality is justified

22

separation agreement

merges into final judgment of divorce; legal separations are not recognized in FL

23

property agreement

settles property and money; must be intended by both parties to be final; cannot be modified once executed

24

validity of marriage agreements

1-writing; 2-signed; 3- fair; 4- reasonable; 5-full disclosure

25

marital assets and liabilities

acquired by spouse during marriage or from a source connected to marriage. 1-assets acquired by either or both spouses during marriage, other than through gift, bequest, or descent; 2-enhancements of, or appreciation in, value of non-marital assets as a result of the efforts of the other spouse during the marriage or from contribution to or expenditure of marital funds; 3-interspousal gifts during the marriage; 4-all benefits accrued during marriage in vested or non-vested retirement plans, pension plans, profit-sharing plans, etc.; 5-earnings and wages; 6-marital residence-considering dependent kids

26

domestic violence

FL has a statute that grants civil remedies; protects all people residing together as a family; movant must have standing. injunctions-act committed or a reasonable belief that an act will be committed; must be in affidavit under oath; D must be personally served; must be a hearing; temporary injunction will take place immediately upon the affidavit-good for 15 days; after hearing, the general injunction will be for a fixed time.

27

non-marital assets and liabilities

1-assets acquired by either spouse prior to marriage; 2-assets acquired by non-interspousal gifts, bequest, descent, or devise; 3-income derived from non-marital assets during the marriage unless used or relied on as a marital asset; 4-anything agreed to by the parties to be non-marital; 5-any liability incurred by forgery of the unauthorized signature of one spouse signing the name of the other

28

factors to determine equitable distribution

1-each spouse's contribution to the marriage, including care and education of the children and homemaker services; 2-economic circumstances; 3-duration of marriage; 4-each spouse's career and educational sacrifices and contributions to the other spouse's career/education; 5-desirability of retaining any assets free from claim, including marital home for minor kids; 6-misconduct of spouse in depleting marital assets w/i 2 years of filing petition for dissolution; 7-contributions of marital/non-marital property

29

alimony in general

available to either spouse absent express waiver or valid agreement; can't waive your right to pendent lite/temporary alimony during the action; cannot be forgiven in bankruptcy; cannot be affected by voluntary under-or unemployment

30

alimony: court considerations

1-need; 2-ability to pay; considered separately after equitable distribution