Family Law Flashcards
(13 cards)
Prenuptial Agreement
- Needs to be in writing
- Entered into voluntarily; no fraud/duress
- Each party should have independent counsel
- Each party should have time to review
- Full disclosure of all assets
Post Nuptial Agreement
- An agreement that does not have to be in writing unless it involves the statute of fraud and may include alimony but not temporary alimony
- Needs to be entered into voluntarily; no fraud/duress
- Each party should have independent counsel
- Each party should have time to review
- A full disclosure between the parties of all assets
Divorce
Standard For Granting Divorce
- Florida is a NO FAULT state jurisdiction
- Two (2) standards
** Irretrievably broken
** Mental incapacity for the last
three years - Misconduct is not relevant for the standard for granting the divorce (i.e. cheating)
- Florida court has jurisdiction if the petitioner resided in Florida for 6 months prior to the filing
Property
- Property in Florida is distributed based on Equitable Distribution
- Marital vs Non-marital property
Equitable Distribution
- Property in Florida is distributed based on equitable distribution
- Presumption by the court is a 50/50 split of marital assets but it can deviate based on certain factors such as:
- Economic circumstances of the
spouses
- Economic circumstances of the
- Sacrifices made by one spouse for the other spouse
Duration of the marriage🡪
Three (3) types of marriages in Florida:
* Short-term🡪less than 10 years
* Moderate🡪10-20 years
* Long-term🡪20 years or more
Marital vs Non-marital Property
- Non-marital property: Acquired prior to marriage and kept separately
- Marital property: Acquired during marriage and includes benefits accrued during marriage
Alimony
Four (4) Types
Pendente lite
-“Suit money”
-To provide funding during the suit (divorce)
Bridge the Gap
-Short term to transition for one spouse to become single
-Can’t exceed 2 years
-Not modifiable
Rehabilitative Alimony
-Provides for necessary education, training, work experience to become self-sufficient
-Provided for a set period of time
Durational Alimony
-NO longer available for Marriage of less than 3 years
-For short or moderate-term marriages when permanent alimony is not appropriate
-For a specified period of time
-May not exceed 50% of the length of a SHORT TERM Marriage
-May not exceed 60% of the length of a MODERATE Marriage
-May not exceed 75% of the length of a LONG TERM Marriage
If EXCEPTIONAL Circumstances, Court MAY extend term if there is CLEAR AND CONVINCING it is necessary.
Factors For Alimony
- Need of the receiving spouse and ability to pay for the other spouse
- Ages of the spouses
- Mental, physical and emotional health of the spouses
- Earnings of the spouses
- Caretaker for the children
- Misconduct🡪financial abuse, infidelity
Custody
- In Florida, the standard for granting custody is the best interest of the child
- The presumption is shared parental responsibility of the children🡪 legal decision making on behalf of the children
- Both parents should be involved in have frequent contact with the children
- Parents have to submit a parenting plan with the court which outlines where children reside during the week, weekends, holidays, vacations, etc.
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Factors that determine best interest of children
- Age of children
- Where kids will be living
- If old enough, kids can voice their preference
Relocation
- If moving a child more than 50 miles from principal residence consent of other party required
- Burden is on the relocating parent to show that this is in the best interest of the child
- If the burden is met, the other parent has burden to show why best interest is not met
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Uniform Child Custody Jurisdiction Enforcement Act (UCC/JEA)
- Applies when multiple states are involved
- At least two (2) courts may be involved
- In Florida, the circuit court has jurisdiction
- That court will have continuing jurisdiction will be the child’s home state or where the child has resided in the past 6 months
Modification
- Most of these issues can be modified
- Substantially, material an unanticipated change of circumstance
Child Support
- Both parents have the duty to provide child support until the child reaches the age of 18 unless the child is physically or mentally handicapped or illegally dependent
- Child support is based on a statutory formula:
- Gross income – expenses-net income of each parent-percentage share calculated
- Court may deviate +/-5%
- Child support can not be waived
Adoption
- Adults can legally adopt children and other ADULTS
- Married/single/same-sex couple may adopt
- Fitness of parent is the standard
- Background may be conducted
- Child can be placed with adoptive parents for six months or longer (adoptive placement) until state confirms that everything is okay
- Petition is made upon clearance
- Once the child is adopted, the child has all of the legal rights as biological children including the taking pursuant to intestacy rules and parents has fundamental right to raise their children
- Biological parents must consent to adoption unless their rights are terminated
- If biological parents are dead, biological family (grandparents) are given preference provide they are deemed fit
- If child is over 12 years old, they must consent, if not the court can override
