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FL Family Law
Terms in this set (67)
Reqs for ceremonial marriage (three Cs)
Marriage license reqs
3-day waiting period unless waived;
verification of receipt and reading of FL Family Law Handbook;
and if defective, marriage may be proved by two witnesses w/ affidavits re where marriage took place or where license was filed
When will a marriage license not be issued?
1. one of parties already married
2. parties too closely related
3. parties too young
4. sham marriage
5. parties uncapable understanding nature of act
requirement for certification of license
the ceremony must happen within 10 days of issuance of license and returned to the licensing office
Reqs for common law marriage
Abolished in FL, but recognized thru full faith and credit clause
voids a marriage as if it never happened;
Two types - void and voidable
Examples of void marriages
1. prior existing marriage
2. mental incapacity
3. incestuous marriages
Examples of voidable marriages
1. age unless ratified by minor
2. impotence unless other party knew before marriage
3. fraud/misrep/duress/coercion (must go to the essence of marriage and based on present facts)
4. intoxication unless ratified
5. lack of intent unless consummated
effect of annulment on distribution of property or alimony
Most courts try to put the parties in the same position as they were prior to the marriage.
Alimony is unavailable.
Defenses to Annulment
1. Recrimination (unclean hands)
2. Condonation (forgiveness)
3. Laches (too late)
Grounds for divorce
1. irretrievably broken (only need one spouse)
2. incapacity (spouse must be adjudicated mentally incompetent for 3 years prior to filing)
DEFENSE - denial of above grounds
SMJ req for divorce
one spouse must be FL resident for 6 months
Effect of simplified dissolution procedure
County court has jurisdiction. There must be no minor children, the wife is not pregnant, and all assets and debts are amicably divided.
Parties must file a financial affidavit, financial disclosures, and draft a settlement agreement. This procedure waives a trial and appeal.
definition premarital and post-marital agreement
Pre-marital: entered into before marriage and in contemplation of marriage
Post-marital: entered during marriage
Uniform Premarital agreement Act
1. can include division of property, alimony, and attorneys' fees upon divorce, separation, or death (NEVER child support or custody)
2. Must be in writing
3. effective on date of marriage
4. can only be amended/revoked by writing signed by parties
5. no separate consideration necessary
Reqs for premarital agreement
1. in writing;
2. voluntarily executed;
3. no fraud, duress, coercion or overreaching; and
4. was not unconscionable at time of execution.
Voluntary w/ no fraud, duress, coercion or overreaching factors in premarital agreement
1. time pressure
2. lack of access/opportunity to get lawyer
4. business savvy
7. language proficiency
When is premarital agreement unconscionable at time of execution?
1. no fair and reasonable disclosure of assets/financial obligations;
2. no waiver of such disclosure; and
3. party did not have knowledge and could not have reasonably obtained knowledge of such assets/obligations
Difference between premarital and post-marital agreement requirements?
post-marital does not have to be in writing unless it includes transfer of real property
How does court divide marital property?
Equitable division... the court will divide the marital property in a fair and equitable manner at divorce. The court has broad discretion.
What is marital property?
property acquired during marriage
what is nonmarital or separate property?
property acquired before or after marriage OR property acquired by gift, bequest, devise or descent
What are required financial disclosures during division of property?
1. financial affidavits
2. three years of tax returns
3. pay stubs for three months of current income
4. Loan applications
Factors re equitable distribution
1. length of marriage
2. economic circumstances of spouses
3. contributions to marriage and each other's career/education
4. interest of one spouse to retain an asset such as business/professional practice
5. contributions to income/liabilities
6. intentional destruction of marital property
7. retention of marital residence for children
8. any other factor the court finds "necessary and just"
Interim (partial) distribution
allowed for good cause and credited in final allocation
What is effect of a contested final distribution?
the court must factual findings supporting its decision based on substantial evidence
Factors for attorneys' fees
1. funds available or the lack thereof
2. duration of litigation
3. scope/history of litigation
Factors in determining alimony
1. financial resources
2. standard of living
3. length of marriage
5. earning capacity, education, vocational skills, employability
6. time to acquire employment training/education
7. contributions to marriage
8. responsibilities to minor children
9. tax consequences
10. marital misconduct if it used marital assets
11. imputation of income
12. any other factor necessary to do equity and justice
FL's breakdown of length of marriage for alimony
short term - less than 7 years
moderate term - 7 to 17 years
long term - longer than 17 years
Five types of alimony
1. bridge the gap
5. temporary (pendente lite)
Bridge the gap alimony
- 2 years only
- for transition from marriage to single life
- cannot be modified
- terminates upon death of either party or remarriage of party receiving alimony
- help spouse become self-supporting
- purpose is to increase earning capacity
- requires a specific defined rehabilitative plan
- can be modified or terminated upon substantial change in circumstances
- remarriage is only factor in modification
- for remainder of spouse's life
- short term (only in exceptional cases); moderate term (only if appropriate); long term (most likely to happen)
- no other form of alimony is fair/reasonable
- ends upon death of either party or remarriage
- modification upon a substantial change in circumstances or a marriage equivalent relationship
- cannot be longer than length of marriage
- only if no other form of alimony is suitable
- ends upon death of either party or remarriage
- modified if substantial change
- length can't change unless exceptional circumstances
Pendente Lite alimony
- from separation to divorce
- puts parties on equal footing during proceedings
- can be vacated, modified, or set aside for good cause
- retroactive modifications allowed
- cannot be contracted away
What is substantial change in circumstances in alimony?
- burden is on moving party
- change was not contemplated at time alimony was decided
- change must be sufficient, material, involuntary, and permanent in nature
Who can bring paternity action?
mother; child; any man who believes he is the father
What can court do if paternity is established?
- all costs associated with birthing
- child support
- attorneys' fees
- child custody/time-sharing
What are the marital presumptions of paternity?
- husband is presumed to be father of child
- may be rebutted by clear and convincing evidence
- if marriage annulled/void, child is not marital child
- child born within 9 months of divorce or death of husband is marital child
- irrebuttable presumption of paternity for artificial insemination during marriage w/ written consent of spouses
- if reputed father marries mother after birth of child, child is marital
estoppel in paternity
A husband who is not biological father may be estopped from denying obligation for child support if:
1. he represented that he would pay child support
2. wife relied on representation; and
3. wife suffered economic detriment as result.
Statute of limitations in paternity
4 years from child's age of majority
Requirements for written acknowledgement of paternity
- signed by mother/father; and
- notarized or signed by two witnesses under penalty and perjury
60 days to rescind acknowledgement and after that, can only be challenged by fraud, duress, or material mistake of fact
Disestablishment of paternity
In petition to court, man must provide:
1. affidavit of newly discovered evidence that man is not father
2. scientific test showing man is not father or affidavit saying he had no access to child for testing; and
3. proof that he has complied with child support and any arrears are due to inability to pay or just cause
(cannot recover child support retroactively)
When must relief be granted for paternity disestablishment
- child is under 18;
- scientific testing is accurate;
- man did not adopt child;
- child was not from artificial insemination; AND
- man did not thwart biological father from asserting rights
When must relief NOT be granted for paternity disestablishment?
- voluntarily acknowledged paternity in an attested document;
- married mother and voluntarily assumed obligations;
- voluntarily promised to support child; OR
- disregarded an official notice for scientific testing
Shared Parental responsibility
Court must order shared parental responsibility unless it is determined to be detrimental to the child's best interest
Sole parental responsibility
- one parent has all decision-making rights re child
- happens when other parent is unfit and unable to provide care for child and when shared parental responsibility is not in child's best interest
Parallel shared parental responsibility
- decision making rights are split between parents due to one parent's unique or special expertise (like if one parent is a doctor)
Time sharing agreement
specifies time each parent will have child for overnights, weekends, holidays, etc. The court will establish if parents cannot agree
only required if there is time-sharing
Sets forth shared responsibilities, time sharing schedule, and the methods of communication
Primary factors of best interest and welfare of child (14)
1. "friendly parent"
2. division of parental responsibilities
3. ability to provide child's needs
4. primary caretaker prior to divorce
5. geographic location to parties and travel time
6. moral fitness
7. health of parents
8. child's preference if old enough
9. capacity to provide stability
10. domestic violence
11. capacity to communicate w/ other parent
12. substance abuse
13. capacity to protect child from litigation
14. any other factor relevant to parenting plan
Other factors for best interest and welfare of child
1. religion/race - religion can be factor but not race
2. parents' sexual conduct - not a factor unless direct evidence of negative impact on child
3. third party rights
4. child's preference
6. Domestic violence (conviction of first-degree misdemeanor or greater results in rebuttable presumption of detriment to child
7. HIV/AIDS - not a factor if parents follow recommended safety precautions
How does court treat electronic communication between parent and child?
- rebuttable presumption in favor of face to face contact
- not used to calculate child support
- court will consider best interest of child, availability and affordability of electronic communication, and history of substance abuse/domestic violence
Standard for modification of parenting responsibility and time sharing
Must be a substantial, material, and unanticipated change in circumstances AND best interests of child
Three ways modification of parenting responsibility and time sharing typically happens
1. Relocation over 50 miles
2. Military service
How does relocation over 50 miles work in modification of parenting responsibility and time sharing?
1. Written relocation agreement between parents; OR
2. court order looking at:
- involvement of and relationships between parents/siblings and other important people
- age/needs of child
- employment/financial circumstances
- child's preference if mature
- history of promoting timesharing
- whether move enhances child's life
- whether child support is current
- motives of parents
- history of domestic violence/substance abuse
- any other factor re child's best interest
How does military service affect modification of parenting responsibility and time sharing?
Uniformed Deployed parents Custody and visitation act enacted in Florida in 2010 and does not allow the court to use past deployment or possible future deployment as a factor in determining best interests of child
When does timesharing and parenting responsibility terminate?
When child reaches 18 or death of custodial parent
How to enforce parental responsibility and timesharing?
Cannot refuse timesharing for failure to pay child support
What is child support?
both parents have legal duty to support minor children. Support is owed until child is 18 unless the child is a full time high school student, then 19 or the child is unable to be self-supporting due to mental/physical disability
How is child support calculated?
By the income shared model where the court takes a % of parents' income. All income is included except for public assistance and income can be imputed for voluntary unemployment or underemployment. The court can deviate by 5% but if more than 5%, the court must set forth specific findings of fact which can include age of child, child's needs, standard of living, station in life, and parents' finances
What must be included in child support?
health insurance and child care costs, and first child b/c subsequent children are considered for an increase in support. There is no obligation for post-secondary education
How is child support modified?
substantial change in circumstances (at least 15% or $50 difference in calculation from prior order
burden is on party seeking modification.
If incarcerated, the obligor must file petition seeking modification and payments are suspended, but still accruing
goes retroactively effective to date of filing
When does child support terminate?
child turns 18 (or 19 if in high school)
child is emancipated (at least 16 and best interests standard)
How is child support awards enforced?
1. civil/criminal contempt
2. wage garnishment
3. child support recovery act: federal crime if unpaid for over year or more than $5,000
4. interception of tax refunds
5. credit reporting
6. suspend driver's license
7. professional license suspension
8. seize property and assets
9. attorney's fees
10. uniform interstate family support act (collection of out of state support)
11. full faith and credit for support orders
Required consent for adoptions
1. mother/father of minor child;
2. person being adopted over 12;
3. any person lawfully in custody of child if required by court;
4. the court if no person has authority to provide consent
Requirements for adoption to be valid
the parental rights of biological parents must be terminated
an adoption agency is required unless stepparent or relative
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