Bar Prep - Family Law

Front 1

Checklist for family law essay

Back 1

Divorce/Dissolution

Equitable distribution

Alimony

Timesharing

Support of children

Front 2

Family Law Rights Granted by Constitution

Back 2

Right to Marry; to Procreate; to Engage in Intimate Relationships; to Use Contraception; to Have an Abortion; to Make Family-Based Decisions; to Live with Family Members; to Have a Meaningful Relationship with One's Child

Front 3

FL Definition of Marriage

Back 3

Civil marriage, defined and controlled by state law, is a contract between two individuals eligible to marry.

Such contract requires all the essentials (capacity and consent) to be present.

Marriage is legal only between one man and one woman.

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bigamy

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Void ab initio. 3rd degree felony for any person with a living spouse to marry another person.

Exceptions: reasonably believe prior spouse is dead; prior spouse deserted for three years and believed to be dead; prior marriage dissolved; no knowledge that prior dissolvement is invalid; or reasonably believes legally eligible to remarry.

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incestuous marriage

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Void marriage. Relationships include: lineal consanguinity; brother or sister; uncle or aunt; and/or nephew or niece.

3rd degree felony if enter incestuous marriage knowingly.

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same-sex marriages/domestic partnerships/civil unions

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Void. FL does not recognize out-of-state same-sex marriages.

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common law marriages

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Entered into AFTER Jan. 1, 1968 = void.

FL does recognize out of state common law marriages if validly entered.

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attributes of void marriages

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1. nullity from inception;

2. impediment creating a total bar to marriage;

3. issue may be raised in any court proceeding;

4. anyone may raise the issue;

5. issue may be raised at any time;

6. children born to void marriage are illegitimate;

7. consummation has no effect on marriage's validity

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voidable marriages

Back 9

In FL, a marriage is voidable based on mental or physical incapacity, if one or both of the parties are underage, or in the event of duress, undue influence, or fraud.

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minimum age in FL

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18 without parental consent.

16+ requires written consent of parents/guardians of the minor.

Judges have discretion to allow minors to get married regardless of age if: (a) swear under oath they are parents of a child, or (b) licensed physician verifies female is pregnant + both parties underage have sworn they are the expectant parents or female underage has sworn under oath she is an expectant parent.

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general prerequisites to marry in FL

Back 11

capacity

consent

intent

Front 12

capacity to marry

Back 12

An individual need only be able to understand what marriage is, and what is expected of a married person.

Evaluation does NOT include: whether marriage is a good idea or whether they have the capacity to fulfill marital obligations.

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consent to marry

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Both parties must give their consent. Such consent must be voluntary. Consent may be given by a legal guardian if a person is otherwise deemed not competent.

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intent to marry

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Each of the parties must have the intent to marry. No entering marriage on a dar or a joke.

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procedural requirements of marriage

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FL requires couples apply together, in person, for a marriage license.

They must: (a) provide a signed affidavit providing SSN and ages subscribed before a person authorized by law to administer oaths; (b) consist of one male and one female; (c) show that they have read or otherwise accessed info. contained in state's handbook; (d) either complete premarital preparedness course/subject to 3-day waiting period; (e) recite their true and correct ages in their affidavit, if they are under 18.

Does not require blood test. Expiration on marriage licenses is 60 days.

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solemnization of marriage

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Must be solemnized by an authorized person (clergy; judge; justice of the peace; notary).

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failure to comply with statutory requirements

Back 17

Most states will recognize the validity of a marriage that was intended to comply with statutory requirements but failed to do so.

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putative marriage

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May exist where one person has been living with one of the opposite sex in a genuine belief that the two are married, even though they are not.

Not a valid or enforceable marriage. Innocent person may be entitled to compensation.

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property rights of husbands and wives

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FL law creates the tenancy by the entirety as a special way of holding real property that applies only to married couples.

Separate property may become tenancy by the entirety by conveying a deed that states the intention to create such a tenancy.

Presumed to have been created when they both take title to real property at the same time.

Each spouse may acquire and maintain sole title to property.

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obligation to support

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In FL, a husband or wife who has the ability to contribute to the maintenance of the spouse, and the support of his or her minor children, must do so. If he or she does not, the spouse may sue for alimony and child support, as appropriate, even without filing for divorce.

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marital privilege

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FL protects confidential communications that occur while a couple is married.

Spouse has privilege, both during and after the marriage, to refuse to disclose such communication and prevent another from disclosing communication.

Privilege may be claimed by: spouse; spouse's guardian; spouse's conservator.

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crimes between spouses

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FL grants civil protection, including access to ex parte restraining orders, to individuals abused by spouses or cohabiting partners.

Ex.: assault, battery, other relevant crimes

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domestic violence

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assault; aggravated assault; battery; sexual assault; sexual battery; stalking; aggravated stalking; kidnapping; false imprisonment; any criminal offense resulting in the physical injury or death of a family or household member.

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domestic violence injunction

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Family or household member must: (1) be a victim of domestic violence; or (2) reasonably believe he is in imminent danger of becoming such a victim.

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annulment defined

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Declaration that a prior marriage was void ab initio because of some defect that existed at the time it was created.

FL only recognizes civil annulment.

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grounds for annulment

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Typically arise from legal or mental incapacity, physical incapacities or infirmities; lack of consent; consent through force, duress, fraud, or concealment.

Void marriages: anyone can challenge a void marriage

Voidable marriage: valid until annulled.

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annulment - voidability

Back 27

Issue can only be raised in a direct proceeding for annulment.

Only innocent party can raise the impediment that makes the marriage voidable. Only raised while the parties are alive and the defect has not been cured or ratified.

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annulment - fraud/duress

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Annulled for fraud by a party who was deceived by a misrepresentation about an essential aspect of marriage.

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effects of annulment

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Children: does not affect legitimacy of children born to couple during the marriage; does not disturb presumption of paternity.

Property: same effect as divorce.

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defenses to annulment

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Usual equitable defenses, including:

(1) ratification

(2) estoppel

(3) unclean hands

(4) laches

(5) trying to prove alleged impediment doesn't exist

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implications of annulment

Back 31

Court may award: alimony; child support; division of property.

Front 32

definition of divorce in FL

Back 32

In FL, there are two grounds for no-fault divorce: (1) irretrievable breakdown of the marriage; or (2) mental incapacity of one of the parties, which must be so for at least 3 years legally.

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irretrievable breakdown divorce

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Both parties don't need to agree to the breakdown of the marriage.

Court may continue action for up to three months to give parties time to reconcile, if one of the parties is contesting or if there are minor children who would be adversely affected.

Court can order counseling when kids are involved.

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mental incapacity divorce

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Incapacitated party must be adjudged incapacitated for at least three years according to certain statutory procedures that specifically describe how service must be made on the incapacitated person, among other things.

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effect of wrongdoings on divorce proceedings

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Marital misconduct, including adultery, dissipation of assets, and spousal or child abuse, are factors the court will consider in determining alimony, equitable distribution of marital assets, parental responsibilities, and awards of attorneys' fees.

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subject-matter jurisdiction in divorce proceedings

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In FL, only one of the two spouses must be a resident of FL for FL to assert subject-matter jurisdiction and grant a divorce.

Must be a resident for at least six months prior to initiating dissolution of marriage proceedings.

Spouse filing does NOT have to be the resident spouse.

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personal jurisdiction in divorce proceedings

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FL does not need personal jurisdiction over the non-filing spouse in order to grant a divorce or adjudicate issues related to child custody.

FL DOES need pj over non-filing spouse in order to adjudicate issues of property, spousal support, and child support.

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legitimacy of marital children

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Child is legitimate if his parents are married at the time of conception or birth. Can also be legitimated if their parents marry at any time after birth.

IVF kids are irrefutably presumed child of the husband and wife, provided both have consented in writing.

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non marital children rights

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Non-marital child benefits from complete set of rights vis-a-vis his mother.

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establishing paternity of non marital child

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Non marital child may also benefit from a complete set of rights with respect to the biological father. FL requires that an unmarried biological father establish his rights by executing a notarized affidavit acknowledging paternity.

Front 41

disestablishing paternity of non marital child

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Father has a right to file a petition to disestablish paternity if:

(1) father discovers and a scientific test proves he is not the father;

(2) father did not adopt the child;

(3) mother did not have artificial insemination while married to the father;

(4) mother did not interfere with the biological father's ability to assert his parental rights; and

(5) child is younger than 18 when the father files his petition.

Front 42

adoption defined

Back 42

The process by which someone other than the biological parent of a child becomes his legal parent.

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adoption procedures

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home study: required for all pre-adoptive parents prior to the placement of a child to determine the suitability of the intended adoptive parents.

report of placement: report to court by adoption entity of any intended placement of a minor for adoption.

at-risk placement: minor placed in prospective adoptive home before the parental rights of the minor's parents are terminated.

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termination of parental rights pending adoption

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Child is eligible for adoption upon the death of both of his biological parents. Termination of living parents' parental rights may be voluntary or involuntary.

Child more than 6 months old: parental consent is subject to a three-day revocation period.

Front 45

court hearing - adoption

Back 45

Court hearing is necessary to finalize an adoption. Only the adoptive parents and the minor child MUST be present.

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parties to an adoption

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adoptive parents: (1) husband and wife may adopt jointly; (2) married person may adopt another person who is not his spouse without the spouse joining in the adoption petition if spouse is parent of the adoptee and consents or court finds good cause for spouse to fail to join; (3) unmarried adults (but not gay or lesbian).

adoptees: (1) children whose parents are deceased or parental rights terminated (over 12 require consent of child); (2) adults must (a) consent to adoption in writing; (b) spouse must consent if applicable; (c) adult adoptee's birth parents must be notified of the adoption proceedings.

Front 47

relationship of adoptive children to adoptive families

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Modern approach treats the relationship as a complete substitute for the relationship between the child and his biological parents.

Front 48

relationship of adopted children to biological families

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Once an adoption is complete, an adopted child maintains no legal connection to his biological family unless the adoptive parent is married to one of the child's biological parents.

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surrogacy

Back 49

1. Traditional: use husband's sperm with surrogate providing genetic material and gestating the child. Require a preplanned adoption agreement by which the volunteer mother agrees to bear a child and relinquish parental rights.

2. Gestational: use embryo created with husband's sperm and wife's egg implanted in surrogate's uterus. Gestational surrogacy contract used. Court petitioned to affirm parental status within three days after birth of the child.

Front 50

voluntary termination of parental rights

Back 50

Only permissible by the courts where a parent wishes to place a child for adoption or where that is the intention in conjunction with the use of assisted reproductive technology.

Front 51

involuntary termination of parental rights - dependency proceedings

Back 51

A court will terminate a parent's rights when:

(1) parent voluntarily executes a surrender, gives up the child to Dept. of Children & Families;

(2) court finds that the parent has abandoned, abused, neglected or endangered the child;

(3) parent is incarcerated for a period of time that constitutes virtual desertion; or

(4) parent is a "career criminal," convicted murderer, or sexual predator.

Front 52

involuntary termination of parental rights - adoption proceedings

Back 52

Court may terminate a parent's rights without that parent's consent.

If a child is older than 6 months old, an unmarried biological father must consent only if he has:

(a) developed a substantial relationship with the child;

(b) taken some measure of responsibility for the child and his future;

(c) demonstrated a full commitment to parenthood by providing financial support; and

(d) visited the child at least monthly or maintained regular communication with the child or those having custody of the child.

If child is younger than 6 months, unmarried biological father wishing to prevent the termination of his parental rights must do all of the following before the biological mother executes her consent to adoption:

(a) file notarized claim of paternity form;

(b) claim his personal full ability and willingness to take responsibility for the child with a proposed plan for care; and

(c) if he knew of the pregnancy, must have paid a fair and reasonable amount of expenses incurred in relation to his financial ability (provided he was not prevented from making these payments).

Front 53

emancipation

Back 53

minor child may be granted legal independence from his parents.

Front 54

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Back 54

governs jurisdiction in cases related to child custody

Front 55

UCCJEA - initial custody determination

Back 55

FL must follow hierarchy to determine jurisdiction:

(1) home state: where child has lived for six months prior to initiation of custody proceedings;

(2) significant connections: at least one parent and child have significant connection with FL;

(3) more appropriate forum: FL is more appropriate than another forum;

(4) default jurisdiction: if no other state has jurisdiction, FL can take jurisdiction.

Front 56

UCCJEA - continuing jurisdiction

Back 56

Once FL has entered a custody order, it has continuing exclusive jurisdiction over custody-related matters.

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UCCJEA - modification of custody orders

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FL may not modify another state's custody order unless that state no longer had continuing exclusive jurisdiction over the custody-related matters.

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UCCJEA - declining jurisdiction

Back 58

FL may decline jurisdiction if:

(1) inconvenient forum; or

(2) unjustifiable conduct.

Front 59

UCCJEA - parenting plan - best interests of the child - court requirement generally

Back 59

Every decision the court makes must be in the best interest of the child. It is in the best interests of the child:

(1) to ensure that each minor child has frequent and continuing contact with both parents; and

(2) to encourage parents to share the rights, responsibilities, and joys of child rearing.

Front 60

UCCJEA - parenting plan - components

Back 60

1. Parental Responsibility: either (a) shared parental responsibility [ultimate responsibility or parallel parenting -- specific aspects or divide responsibilities] or (b) sole parental responsibility.

2. Time-Sharing: where the child is going to spend his time.

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UCCJEA - parenting plan - approval

Back 61

Approved by the court. Must describe in adequate detail how the parents will share and be responsible for:

(a) daily tasks associated with upbringing of the child;

(b) time-sharing schedule arrangements that specify the time that the minor child will spend with each parent;

(c) any and all forms of health care, school-related matters, or other activities; and

(d) the methods and technologies that the parents will use to communicate with the child.

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UCCJEA - parenting plan - best interests of the child standard - top 5 factors

Back 62

1. child's preference;

2. extent to which other parent allows visitation;

3. length of time child has lived in stable environment;

4. financial ability, moral fitness, mental and physical ability of parent;

5. parent's freedom from substance abuse.

Balance factors with parents' constitutionally protected rights.

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UCCJEA - parenting plans - modification

Back 63

Modifiable upon a showing of a substantial change of circumstances, because the child's needs have changed, the parent's circumstances have changed, or the prior parenting plan has failed.

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UCCJEA - relocation - agreement

Back 64

More than 50 miles away, requires a written agreement if parents agree to the relocation:

Consent

Arrangement for transportation

Writing

Schedule reflecting new time-sharing.

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UCCJEA - relocation - notification

Back 65

Parent entitled to time-sharing must NOTIFY the other parent if he is proposing to relocate.

Notice must include:

(1) description of location including state, city, and specific physical address;

(2) mailing address of the intended new residence;

(3) home telephone number of intended new residence;

(4) date of the intended move or proposed relocation;

(5) detailed statement of the specific reasons for the proposed relocation of the child; and

(6) proposal for the revised post-relocation schedule of time-sharing together with a proposal for the post-relocation transportation arrangements necessary to effectuate time-sharing with the child.

Front 66

UCCJEA - relocation - burden of proof

Back 66

Initial burden is on the parent wishing to relocate to prove by a preponderance of the evidence that relocation is in the best interest of the child.

If initial burden is met, burden shifts to non-relocating parent to show by a preponderance of the evidence that the proposed relocation is not in the best interest of the child.

Front 67

UCCJEA - relocation - factors to consider

Back 67

Wants of child

Age of child

Good faith

Established relationships

Reasons for move

Substance abuse or other abuse history

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nonmarital property

Back 68

Assets and liabilities acquired prior to the marriage.

Front 69

converting nonmarital to marital property

Back 69

(1) Transmutation by Title: changing the title holder from one to joint.

(2) Transmutation by Commingling: value of each is virtually indistinguishable.

(3) Enhancement/Appreciation: converting a portion of the value of a non marital asset into a marital asset.

Front 70

marital property

Back 70

Property acquired during the marriage with marital funds or labor, regardless of whose name the property is titled under.

Include: assets, liabilities, vested and non vested retirement and insurance benefits; real property held as tenants by the entirety; personal property held as tenants by the entirety; intefspousal gifts; enhancement in value and appreciation of non marital assets.

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steps in determining equitable distribution

Back 71

1. identification of assets and liabilities;

2. classification as either marital or non marital;

3. valuation; and

4. distribution.

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Equitable Distribution Factors

Back 72

Assistance to career by one to other

Contribution to marriage

Interruption of career

Desirability of one spouse retaining certain asset

Misconduct depleting marital assets

Economic consequences

Length of marriage

Desirability of marital home as residence for children

Front 73

marital misconduct

Back 73

FL will consider marital misconduct and will evaluate whether one spouse intentionally dissipated marital assets.

Front 74

alimony - general principles

Back 74

Threshold for an award of alimony is based on:

(1) one spouse's need for alimony; and

(2) the other spouse's ability to pay.

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alimony - types

Back 75

1. bridge-the-gap: provided to assist a party with legitimate short term needs, not to exceed two years. Not modifiable in amount or duration.

2. rehabilitative: support issued for defined period to assist a party develop and establish a capacity for self-support through education or job training. Requires plan outlining time frame and steps to ensure rehabilitation.

3. durational: provide a party with economic assistance for a set period of time following a marriage of short or moderate duration or following a marriage of long duration if there is no ongoing need for support on a permanent basis. May not exceed length of marriage. Non modifiable unless substantial change in circumstances.

4. permanent: awarded to a spouse who lacks the ability to be self sustaining. Available for (a) short term [0-7] if written findings of exceptional circumstances; (b) moderate term [7-17] if appropriate upon clear and convincing evidence; and (c) long term [17+] if appropriate.

Front 76

alimony - amount

Back 76

Within the court's discretion. Factors include:

Length of marriage

Standard of living

Age of parties

Time needed to obtain educational training

Financial resources

All income sources

Contribution to marriage

Emotional and physical condition of parties at time of divorce

Front 77

alimony - modification

Back 77

Modifiable with the exception of lump sum and bridge-the-gap.

Factors must be met: (a) permanent; (b) significant; (c) material; (d) involuntary; and (e) something that could not have been contemplated at the time of the final judgment.

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alimony - termination

Back 78

Ends upon the death or either the paying partner or the recipient partner.

May not be discharged in bankruptcy, although the changed financial circumstances of the paying partner may justify a change in the award.

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child support - duty

Back 79

Both parents have a duty to support their children. It cannot be waived.

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child support - amount of support

Back 80

Income shares model: child support is calculated so that the child will benefit from the same percentage of parental income as prior to divorce. Add mother's and father's income together, determines the appropriate child support from the guidelines for that income level, and then divides child support award proportionally.

If parent has more than 40% of time sharing, child support obligations may be eliminated.

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child support - deviation from guidelines

Back 81

must be in writing if more than 5% deviation.

Front 82

child support - modification

Back 82

Parent seeking modification must show a substantial change of circumstances in either a party's ability to pay, the child's needs, or a change in the time-sharing schedule that raises it above or below the 40% threshold for substantial shared parenting.

Such change must be: (a) permanent; (b) significant; (c) material; and (d) involuntary.

Front 83

prenuptial agreements - requirements

Back 83

1. in writing

2. both parties must sign

3. entry into marriage = significant consideration

4. effective on day of marriage

5. voluntary

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prenuptial agreements - content

Back 84

alimony; distribute property; delineate control of property; disposition of property upon death

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prenuptial agreements - enforcement

Back 85

Not enforceable if the party against whom enforcement is sought proves that:

(a) agreement was not executed voluntarily;

(b) agreement was the product of fraud, duress, coercion, or overreaching; or

(c) agreement was unconscionable when executed, and, before execution, the party: (1) was not given fair and reasonable disclosure of the other party's property or financial obligations; (2) did not voluntarily and expressly waive, in writing, any right to disclosure of the other party's property or financial obligations; and (3) did not have, or reasonably could not have had, adequate knowledge of the other party's property or financial obligations.

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petition for dissolution of marriage

Back 86

Filed when initiating an action for dissolution of marriage. Allege existence of a valid marriage, grounds for smh, and grounds for divorce. Include requests to est. parenting plan, receive an award of equitable distribution, alimony, child support, or attorney's fees, or request adoption of a prenup or marital settlement agreement.