Family law Term Flashcards

Question

What are the requirements for a **simplified divorce**? Why must both parties agree on property division prior?

Answer 1

1. The couple has lived seperate and apart from more than 1 Year; 2. Either no children; or the children are the age of majority (no child support); and 3. Both parties must have reached an agreement over the distribution of property prior. (This is because the system is designed to be quick + efficient; non litiguos.) 4. Spousal Maintenance is waived. | Non-litigous: no opposing party since parties both agree on terms.

Answer 2

****Petitioner is seeking to change the marital status ONLY because the court only has personal juridiction over one spouse because the **other spouse cannot be located**; or **resides outside** of the forum state + **refuses consent to jurisdiction.** *The marital status only effects the Petitioner* because the court does not have personal jurisdiction of the other spouse. | Issue of personal juridiction for a court to dissolve the marriage.

Answer 3

Under Art. 5 Sec. 1 of the U.S. Constitution the full faith and credit clause requires each state to **recognize and enforce the public acts, records, and judicial decisions** (such as court judgments) of ***other states***. This clause is not applicable to matters such as property rights, alimony, child custody, and child support. Personal Jurisdiction must be present over both the spouses to render a decision on these matters.

Answer 4

**(UMDA) §209**, any person who has cohabited with another to whom he or she is not legally married in the **good faith belief that the individual was married to that person** is a putative spouse until knowledge of the fact that he or she is not legally married terminates the person’s status and prevents acquisition of further rights. When there are certain situations that make a **marriage appears legally invalid**, but for public policy reasons, and only after careful examination of the particular circumstances, **the relationship may be considered a marriage for some purposes**, at least for one of the parties. * Both of the parties must be innocent of the existing impediment and must be acting in good faith at all times during the existence of the putative marriage. | Both parties must act as they were married. ## Footnote UMDA= Uniform Marriage and Divorce Act

Answer 5

it is an award of **future payments** to one spouse payable from the future earnings of the other spouse.

Answer 6

Under Section 308 of the UMDA, a court may grant spousal maintenance **only** if it finds that the spouse seeking support: * (1) lacks sufficient property to provide for her reasonable needs; and * (2) is unable to support herself through appropriate employment or has physical custody of a child whose needs prevent the parent from working outside the home.

Answer 7

1. The financial resources of the spouse seeking support; 2. The time required for the spouse to acquire the education or training necessary for her to find appropriate employment; 3. The standard of living established during the marriage; the duration of the marriage; 4. The age and physical and emotional condition of the spouse seeking support; and 5. The ability of the payor spouse to provide for his own needs while meeting those of the recipient spouse.

Answer 8

An alimony that is payable indefinitely **or** until a specified time by court order . Typically awarded in long term marriages. | ex: Homemakers

Answer 9

By statute, either spouse may obtain temporary spousal support during the pendency of the divorce proceedings and is terminated once the final divorce decree is issued. This type of alimony is limited to the duration of the divorce proceedings and is generally awarded for short-term marriages.

Answer 10

Rehabilitative Alimony is awarded for the purpose of **enabling the recipient spouse to complete education, certifications, and/or training ** necessary for financial independence. This is short-term duration of alimony, and typically ends when the Paying ex-spouse provides evidence showing the recipient spouse's ability and position **to support herself**. ## Footnote Typically seen in situations where a spouse gives up schooling or a career to care for a child and needs additional resources ($ + Time) to go back to the school or career.

Answer 11

reimbursement Alimony is awarded to compensate a spouse who **made financial sacrifices** in order to enable the **other spouse **to forgo employment and pursue an advanced degree or professional license.

Answer 12

The Legal Standard for Modification Of Spousal Support is: **The Evidence of "substantial/material change in circumstances** ## Footnote that was either in the life of the obligor spouse or the recipient spouse and was itself unforeseen by both spouses.

Answer 13

1. the achievement of financial self-sufficiency, 2. an increase in financial needs, 3. remarriage, 4. cohabitation, and 5. death

Answer 14

1. Increase in income, 2. retirement, 3. change in employment, and 4. death of the obligor spouse

Answer 15

three procedural considerations are whether: 1. whether the court has **proper jurisdiction** to consider the modification request, 2. the burden of proof resting on the moving spouse to prove a **substantial change in circumstance**, and, 3. the retroactivity of modification orders to the time of the filing

Answer 16

Under the Free Exercise Clause of the First Amendment, the freedom of religious belief is absolute and inviolate. While a state cannot interfere with religious beliefs and opinions, it may interfere with religious practice and conduct. The state may, for example, grant a divorce over the deeply held religious objection of one of the parties.

Answer 17

Adultry is a common "fault-based" reason for a divorce. The Spouse must prove 1. The dispostion of the defendant and paramour to commit adultry; and 2. An opportunity to commit adultry. The purpose to prove it may affect alimony and calls for a divorce in a fault based jurisdiction. However, it does not effect child custody if the act does not effect the Adulterous Spouse's ability to provide and care for the child; nor did the act have an effect on the child's wellbeing. ***It may effect the relationship and communication of the parents which is a factor when considering child custody. | Florida - No Fault State

Answer 18

When parties are not required to prove fault or grounds beyond proving the marriage is IRRETRIEVABLY broken

Answer 19

To ensure proper personal jurisdiction over the two spouses, a state may impose a durational residency requirement before a couple may divorce. The requirement's purpose is to prevent divorce-minded couples from shopping for favorable residence requirements; and to establish personal jurisdiction over at least one of the spouses. ## Footnote Preventing Forum Shopping / FL: one spouse MUST reside in FL for at least 6 months prioir to fiing for divorce.

Answer 20

Under this doctrine, a forum may issue a valid divorce decree based on “domicile” jurisdiction over one party while lacking the authority to determine issues of financial responsibility because the court did not have personal jurisdiction over a second party. However, only the marital status over the party changes | Used to stop marital assets from accumulating btwn spouses.

Answer 21

The obligation of one spouse to provide income to the other spouse after divorce or seperation payable from the future earnings of a spouse. A court will assess and balance factors which include, but not limited to: 1) The LENGTH of the marriage; 2) The constributions of the spouces during the marriage (both monetary and non-monetary); 3) The FINANCIAL NEED of the recipient spouse (child custody; property assets) 4) The ABILITY of the paying spouse; 5) The STANDARD OF LIVING throughout the marriage; 6) Receipient Spouses' ability to earn a living and gain future income; 7) AGE + HEALTH of the recipient spouse. | Length / Contributions / Finacial Need / Ability to Pay / Age/

Answer 22

Spousal support can be awarded on a **temporary, rehabilitative, or permanent** basis, depending on the circumstances of the case. **Rehabilitative support** is designed to help the lower-earning spouse become self-sufficient. This is typically awarded when one spouse needs financial help while acquiring skills or education to re-enter the workforce or improve their earning capacity. **Permanent support** is awarded when a spouse is unlikely to become self-sufficient due to age, health issues, or long-term dependency on the other spouse. It is intended to provide long-term financial assistance. **Temporary support** is awarded for a short period of time during the divorce process (or separation) whiel the divorce is ongoing. The support ends when the divorce has been finalized.

Answer 23

Determine the need of the party seeking maintanence.

Answer 24

When a spouse is not awarded spousal support because they are deliberately avoiding their responsibilities to become self-supporting. A court may eliminate or reduce maintanence upon clear and convincing evidence from the challenging spouse. This exception allows the trial court to consider the supporting **spouse's earning capacity** instead of his or her actual earnings if the supporting spouse has unreasonably and voluntarily reduced or foregone income. | Upon showing of Shirking, a court will assess earning capacity ## Footnote The test is whether the reduction in actual earnings was voluntary and unreasonable under the circumstances

Answer 25

1. Bridge the Gap "Transition from Married to Single" (usually lasts 2 years). 2. Rehabilitative: "Becoming Self Sufficient" (modified or terminated once the spouse finishes education; earning capacity increases) 3. Durational: "7-14 yrs of Marriage" Varies based on the length of marriage. *Max is 20 years of support. 4. Permanent: "17 years of Marriage or More" May be modified based on a substantial change in circumstances.

Answer 26

Modification of spousal support may be proper upon showing of changed circumstances so substantial and continuing as to make the terms unconscionable. Step 1: Examine the Judgment to see whether there is a jurisdiction to hear the case. - The Court had jurisdiction to modify a judgment if at the time of the original award it possessed *personal jurisdiction* over the parties AND an* award* of spousal support was made OR the *issue was reserved* [on record]. Step 2: The proceeding involved evidence showing that there has been a **substantial change in circumstances **on the part of either party. Step 3: Moving party must prove that the substantial change in circumstances makes the original award unreasonable and unfair. Step 4: Establishing the amount of the modification. | Retirement = substantial change in circumstances

Answer 27

Equitable distribution is the division of marital property by a court in a divorce proceeding *under the statutory guidelines* that provide for a *fair, but not necessarily equal, allocation* of the property between spouses regardless of who holds title. Only marital property is subject to equitable distribution because the court does not have jurisidction over seperate property since it was acquired before the marriage. | Florida uses EQDS

Answer 28

Courts use three main steps to equitably divide property upon dissolution of marriage. 1. Classify the assets *Property acquired during the marriage is presumed to be marital property unless rebutted. * 2. Value assets that are subject to distributions *Only Martial Property is subject to distribution* 3. Divide property equitably among the parties. *The division is fair, not necessarily equal* | Assessment of monetary and non-monetary contributions of spouses.

Answer 29

Transmutation is a reclassification from martial property to seperate property or vice-versa. A challnging party uses tracing to track the contributions from seperate property to martial property to prove or disprove funds or asets have been comingled.

Answer 30

A spouse is entitled to restoration of separate property if the spouse used the funds from the sale of separate property to purchase a new property during the marriage, provided that any appreciation in value is not due to the joint efforts of the parties. Improvements are considered marital property, however, the funds used to buy the new home belongs only to Wife (i.e. seperate property). Therefore it is proper to devise the amounts that were joint and the amounts Wife received from the sale of the first home. *Pay attention to comingling of assets in a joint account and the property improvements made by each spouse. - Issue of Transmutation (reclassification of martial property to seperate and vice versa.)

Answer 31

GOODWILL associated with the business can be considered part of the marital estate if the business was developed or increased during the marriage that is tied to the efforts of the other spouse. The spouse's goodwill in contributing to the other spouse's business may result in them **obatining a portion of the value increase** (*not the entire business).

Answer 32

When the parties cannot agree on a division of the marital property, just and equitable division of marital property can be accomplished by either of the following: (1) **If the asset is readily divisible**, the court can divide the asset and order just and equitable distribution in kind; - Example: Joint Bank Account (presumed to be marital property). (2) the court can order **the sale or liquidation of the asset** and make a just and equitable division of the proceeds of sale or liquidation; or - Example: Marital Home (acquired during the marriage). (3) the court can determine the value of the asset, order distribution of the entire asset to one of the parties, and order the recipient of the asset to pay to the other spouse the value of the asset.

Answer 33

The value of the asset is determined on the date set by the court based on what is fair and equitable under the circumstances. **Active Appreciation** is the value of the asset derived from both spouse's time and effort; and the use of martial funds to increase the value of the asset. This asset is considered martial property because both spouses during the marriage contributed to the asset's increased value. **Passive Appreciation** is an asset which occurs without significant contributions being made towards to asset's value increase such as market conditions beyond spouse’s control. This asset is considered seperate property because neither spouse contributed to the increased in value of the asset. | Nardini v. Nardini

Answer 34

First issue is whether there was a ***vaid marriage *** Second issue is a ***fault based or no fault divorce***? If no fault the Petitioner must show the marriage is irretrievably broken. The third issue is whether the State court has ***proper jurisdiction*** to render a judgment on property and asset distribution, child custody, child support, and spousal support. The state court must have **personal jurisdiction** over both spouses to determine property distibution, child custody and spousal support. **Subject matter jurisdiction** is met because the state court have an invested interest in marriage and divorce matters. - PJ: Residency Requirement (at least one spouse). 2. Proper notice to each spouse must be given to provide the spouses an opportunity to be heard and submit evidence to the court. - Make sure the record is preserved for appeal. 3. All property, assets, child custody and alimony is determined by the courts and distributed to the spouses. - No outstanding matters to address prior to the final judgement or divorce decree. ## Footnote One or both spouces must reside in FL for 6 months prior to filing for divorce.

Answer 35

An agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. Requirements (1) The contract must be in writing. (2) Both parties must enter into the contract only after full disclosure of holdings. (Informed Consent). (3) The parties must intend that the contract be a full discharge of rights of inheritance from the estate of the other and a waiver of any marital rights, should the couple divorce. (4) There must be fair consideration in exchange for the waiver of rights of inheritance or other statutory rights. (5) The Uniform Premarital Agreement Act does not require parties to be represented by independent counsel. However the absence is a significant consideration in evaluating whether a spouse knowingly and voluntarily consented to the agreement.

Answer 36

Full and fair disclosure is when each spouse informes one another of all assets and liabilities they each have at the time a prenuptial agreement is entered into. This information allows the parties to have informed consent of the nature and obligations of each spouse's property to enter into the agreement.

Family law Term Flashcards

(60 cards)