E7 // Fl(Fl) F12

Front 1

Florida Essay F12
FAMILY LAW

Back 1

Florida Essay F12
FAMILY LAW

Front 2

CHILD SUPPORT (Generally)

Back 2

CHILD SUPPORT

Child Support provisions end when a child turns 18, UNLESS child is:

(1) Physcially or Mentally dependent; or

(2) A depentent age 18-19 in HS studying to graduate.

Front 3

CHILD SUPPORT

AMOUNT of Child Support

[CS = AES STAIRS]

Back 3

CHILD SUPPORT

In FL, Child Support amount is set by STATUTE.

Courts are reluctant to award a CS amount below the statutory guidelines, but have discretion to do so when: AES STAIRS [6]

(1) Age of child warrants deviation;
(2) Extraordinary med/ed expenses exist;
(3) Seasonal variations in income apply;
(4) Special shared parental arrangement exists;
(5) TA of the parents and child justify a lower amount; or
(6) IRS dependency exception applies.

Departure from the guidelines in an amount that varies >5% requires that the court enter WFJ for the deviation.


Child Support Award: A E S S TA IRS

Front 4

CHILD SUPPORT

Child Support ORDER

Back 4

CHILD SUPPORT

A child support ORDER must: TSS

(a) TERMINATE - Provide for CS to terminate on C's 18th birthday;

(b) SCHEDULE - Provide for a schedule stating the amount of monthly CS that will be owed for any remaining Cs after 1 or more of the Cs are not longer entitled to receive support; and

(c) SPECIFY - Provide the specific date that the reduction or termination of CS becomes effective.

Front 5

ALIMONY (Generally)

Back 5

ALIMONY, also called spousal maintenance, is AVAILABLE TO EITHER SPOUSE, absent a waiver in a valid agreement.

1. First, the court must make a FACTUAL DETERMINATION as to whether each party has an ACTUAL NEED for alimony and/or ABILITY TO PAY alimony.

2. Then, the court determines the proper TYPE and AMOUNT of alimony.


FL provides for these 5 TYPES of ALIMONY: "PLease Big-Girl REHAB Dat PERM"

Front 6

ALIMONY:

PENDENTE LITE

Back 6

ALIMONY: (1) PENDENTE LITE

Alimony PENDENTE LITE (suit money) MAY BE AWARDED IN EVERY PROCEEDING for the dissolution of marriage.

Front 7

ALIMONY:

BRIDGE-THE-GAP

Back 7

ALIMONY: (2) BRIDGE-THE-GAP

(i) BTG alimony is designed to ASSIST with legitimate identifiable SHORT-TERM NEEDS.

(ii) May be awarded to assist a party by providing SUPPORT to allow the party to make a TRANSITION from being married to being single.

(iii) LENGTH of the BTG award MAY NOT EXCEED 2 YEARS.

(iv) MAY NOT BE MODIFIED in AMOUNT or DURATION

Front 8

ALIMONY:

REHABILITATIVE

Back 8

ALIMONY: (3) REHABILITATIVE

(i) RA may be awarded to ASSIST A PARTY in ESTABLISHING the capacity of SELF-SUPPORT through either:
(a) RE-DEVELOPMENT of previous skills or credentials; or
(b) EDU/T/WE necessary to ACQUIRE appropriate employment SKILLS or CREDENTIALS.

(ii) A SPECIFIC & DEFINITE REHAB PLAN must be included as part of any order awarding RA.

(iii) May be MODIFED or TERMINATED if:
(a) SUBSTANTIAL CHANGE in circumstances;
(b) NON-COMPLIANCE w/ the rehab plan; or
(c) COMPLETION of the rehab plan.

[Note: A self reduction in income (i.e., quits job) by payor spouse is not sufficient to have alimony reduced.]

Front 9

ALIMONY:

DURATIONAL

Back 9

ALIMONY: (4) DURATIONAL

(i) May be awarded when permanent periodic alimony is inappropriate. Purpose is to provide a party with ECONOMIC ASSISTANCE for a set period of time following a MARRIAGE of SHORT or MODERATE duration.

(ii) Terminates upon the DEATH of either party or the REMARRIAGE of the recipient.

(iii) Amount may be modified or terminated if there has been a SCIC.

(iv) Length of the award may not be modified except under exceptional circumstances and MAY NOT EXCEED the LENGTH of the MARRIAGE.


[Note: A self reduction in income (i.e., quits job) by payor spouse is not sufficient to have alimony reduced.]

Front 10

ALIMONY:

PERMANENT PERIODIC

Back 10

ALIMONY: (5) PERMANENT PERIODIC

May be awarded to provide for the needs and necessities of life as they were established during the marriage of the parties for a party who lacks the financial ability to support his or herself following dissolution. [Permanent alimony provides necessaries to a spouse who has neither the resources nor the ability to be self-sustaining.]

Usually awarded following a marriage of LONG duration; May be awarded following a marriage of moderate duration if the award is appropriate based upon consideration of the circumstances (see factor below); If there are exceptional circumstances it may be awarded following a short-term marriage.

Terminates upon DEATH or either party or REMARRIAGE of the recipient. [Unless agreement specifies otherwise.]

May be modified or terminated upon SCIC or existence of a SUPPORTIVE RELATIONSHIP (but, a de facto marriage relationship is not considered a remarriage).

[Note: Provisions for automatic increased are not permitted.]

[Note: A self reduction in income (i.e., quits job) by payor spouse is not sufficient to have alimony reduced.]

Front 11

ALIMONY:

Length of Marriage
(Rebuttable Presumption)

Back 11

ALIMONY: Length of Marriage (Rebuttable Presumption)

For purposes of determining alimony, the length of the marriage is the period of time f/ the date of the marriage until the date of filing an action for dissolution. The following rebuttable presumption exists:
• SHORT-term marriage = Duration < 7 years
• MODERATE-term marriage = Duration > 7 but < 17
• LONG-term marriage = Duration of 17 years or greater

Front 12

ALIMONY:

AMOUNT of Alimony (Factors)

Back 12

ALIMONY: AMOUNT of Alimony (Factors)


In determining the amount of alimony, the court must consider relevant factors, including: [9]

• R Any STD FACE •

(1) The STANDARD of living during the marriage;

(2) The DURATION of the marriage;

(3) The AGE and emotional & physical condition of both parties;

(4) The FINANCIAL resources and sources of income of each party, including income available to either through investments of any asset held by that party;

(5) The EARNING capacities, educational levels, vocational skills and employability of the parties and, where applicable, the amount of time needed to obtain education or training;

(6) Each party's CONTRIBUTION to the marriage, including homemaking, childcare, education, and career building of the other party;

(7) The RESPONSIBILITIES each will have w/ regard to any minor children they have in common;

(8) The TAX treatment and consequences to each of any alimony award; and

(9) ANY factors that will foster equity.

Front 13

DIVISION OF MARITAL PROPERTY:

EQUITABLE DISTRIBUTION

Back 13

DIVISION OF MARITAL PROPERTY: EQUITABLE DISTRIBUTION

Upon dissolution of marriage, the court will equitably distribute all marital property. Equitable doesn't always mean 50/50, but distribution must be equal, unless justification for unequal treatment is shown.

• Before determining how to equitably distribute marital property, first must determine what makes up the marital property pot. MARITAL ASSETS include:

(1) ASSETS ACQUIRED by either or both supposes DURING the MARRIAGE (but not assets acquired through gift, bequest or decent);

(2) Enhancement of, or APPRECIATION IN VALUE of marital assets as a result of the efforts of either spouse during the marriage or from the contribution to or expenditure of marital funds;

(3) Inter-spousal GIFTS during the marriage; and

(4) All BENEFITS ACCRUED during the marriage in retirement plans, pension plans, profit-sharing plans, and the like.


• After determining all marital assets, the court will then look at all factors necessary to do equity and justice to the parties regarding equable distribution of marital assets and liabilities.

Front 14

DIVISION OF MARITAL PROPERTY:

FACTORS a Court will consider in making an EQUITABLE DISTRIBUTION OF MARITAL ASSETS

Back 14

The court must begin with the premise that the distribution should be equal, unless there is justification for unequal distribution based on all relevant factors, including:

Specific factors FL courts consider: MC HE(a)D (i)S F(ree)

(1) Each spouse's contribution to the MARRIAGE;

(2) Each spouse's contribution to the CHILDREN (care/edu);

(3) Services of the HOMEMAKER;

(4) ECONOMIC circumstances;

(5) DURATION of the marriage;

(6) Each spouse's career and education SACRIFICES; and

(7) Desirability of retaining any asset FREE from claim and hostile interference by the other spouse

Front 15

DIVISION OF MARITAL PROPERTY:

Exclusive Custody of the Marital Home

Back 15

Exclusive Custody of the Marital Home:

(1) Is it Equitable?
(2) Is it in the Best Interest of the children or spouse?
(3) Is it financially Feasible?

Front 16

CHILD CUSTODY:

BEST INTEREST OF THE CHILD

Back 16

CHILD CUSTODY

BEST INTEREST OF THE CHILD

FL - Primary standard for determining all matters relating to parenting, time-sharing and support is the "best interests of the child."

In determining rights and responsibilities, neither parent has a superior claim.

Factors courts look at:

(1) Parent's ability to provide stable home environment for the child;

(2) Child's preference, even though there is no age at which the child has absolute choice; and

(3) Each parent's willingness to allow time-sharing to encourage an on-going relationship with the other parent.


Note: With regard to Child Custody, a Court may:
- Order parents to mediate a custody resolution.
- Order DCFS to investigate and prepare a social study of all pertinent facts concerning the children and each parent to aid in the custody decision.

Note: A parent without custody has the right to reasonable visitation as agreed by the parties or at the court's discretion. A parent may forfeit their right to visitation by encouraging conduct that may injuriously affect the child's welfare or morals.

Front 17

CHILD CUSTODY:

PARENTING PLAN

Back 17

PARENTING PLAN: A parenting plan governs the relationship between the parties relating to the decisions that must be made re: the minor child.

Any parenting plan approved by the court must, at a minimum, describe:

(1) How the parents will share and be responsible for the daily tasks associated with the upbringing of a child;

(3) Time-sharing schedule;

(3) Designation of who will be responsible for healthcare, school-relocated matters, other activities; and

(4) Methods and technologies that the parents will use rot communicate with the child.


SHARED RESPONSIBILITY:FL courts emphasize that both parents retain shared responsibility regardless of the time-sharing schedule. Shared responsibility means that both parents retain rights over the children and must confer re: major decisions such as healthcare, religious up bring and education.

MODIFICATION: Courts may modify time-sharing and parenting plan determinations upon a showing of a Substantial, Material, and Unanticipated change in circumstances affecting the child's welfare.

Front 18

JURISDICTION - UCCJEA

Back 18

JURISDICTION - UCCJEA

FL enacted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) for interstate custody disputes.

➢ Purpose of Act is to provide one court with continuing jx over the child to protect the best interests of the child.

➢ Jx usually lies w/ the state w. the closest connection to the child.

Front 19

JURISDICTION - UCCJEA

"HOME STATE" RULE

+ EXCEPTION

Back 19

UCCJEA "HOME STATE" RULE


HOME STATE RULE: A court competent to decide child custody matters (FL - Circuit Court) has jx to make a child custody determination if the state:

(a) Is the child's home state, or

(b) Was the child's home state w/in the past 6 months and the child is absent f/ the state, but a parent or guardian continues to live in the state.


EXCEPTION: The "Home State" Rule does not apply, and a court has jx to enter or modify a child custody or visitation order if no other state has home state jx and:

(i) Child and at least one parent (or guardian) have a significant connection w/ the state, and

(ii) Substantial evidence is available in the state concerning the child's care, protection, training and personal relationships.

Front 20

JURISDICTION - UCCJEA

EXCLUSIVE CONTINUING JURISDICTION

Back 20

EXCLUSIVE CONTINUING JURISDICTION:

Court that made initial child custody of visitation determination has exclusive continuing jx over the matter until the court determines that:

(i) Neither child nor parents (or guardian) continue to reside in the state; or

(ii) Child no longer has a significant connection w/ the state, and substantial evidence to the child's care, protection, training and personal relationships is no longer available in the state.

Front 21

PARENS PATRIAE

Back 21

PARENS PATRIAE

• While the custodial parent is charged w/ the obligation of obtaining medical treatment and care for a minor child, the parental right to make decisions concerning such treatment isn't absolute.

• The state has PARENS PATRIAE authority to ensure that children receive reasonable medical treatment necessary for the preservation of life.

➢ In all matters involving minor children, the primary guide is the BEST INTEREST OF THE CHILD.

Front 22

MARITAL AGREEMENTS

PRENUPTIAL
(ANTENUPTIAL) Agreements

Back 22

PRENUPTIAL (ANTENUPTIAL) Agreements:

Prenuptial agreements between prospective spouses, other than contract to marry, are generally valid.

However, these contracts CANNOT authoritatively determine spousal support, child support, or child custody.

Other important items to know:

a) Antenuptial agreements fall within the statute of frauds and must be evidenced by a writing containing material terms.

b) Antenuptial agreements require consideration to be valid, but entry into the marriage is sufficient consideration.

c) B/c the parties don't deal at arms length but rather out of relationship of mutual trust and confidence, courts will strictly scrutinize the contract for good faith and lack of undue influence.

Front 23

MARITAL AGREEMENTS

POSTNUPTIAL Agreements

Back 23

POSTNUPTIAL Agreements

FL statute: Spouses may contract with each other. But, like prenuptial contracts, postnuptial contracts CANNOT authoritatively determine spousal support child support or child custody.

➢ STATUTE OF FRAUDS: While postnuptial contracts don't fall within the statute of fraud, the subject matter of these contracts may fall within the statute (e.g., a contract to convey land for one spouse to another would fall within the statute of frauds and must be evidenced by a writing to be enforceable).


➢ WAIVER OF RIGHTS: The right to receive alimony may be expressly waived for consideration if there is no express waiver in the agreement to write to receive our money will survive.

- The right to temporary alimony CANNOT be contracted away.

- Right to receive child support CANNOT be waived.

Front 24

MARITAL AGREEMENTS

VOLUNTARINESS Required

Back 24

MARITAL AGREEMENTS: VOLUNTARINESS Required


Prenuptial and postnuptial agreements must be voluntarily entered into without undue influence or coercion.

Determining voluntariness - Courts consider factors such as:
(i) TIME & PLACE the agreement was presented (to consider whether there was sufficient time to review and reflect on the terms of the agreement);
(ii) The opportunity to seek COUNSEL; and
(iii) Statements made during the PRESENTATION of the agreement.

If the agreement doesn't fairly provide for the contesting spouse, a court won't uphold the agreement unless they pull their financial disclosure was made by the defending spouse before the agreement was signed.

Front 25

MARITAL AGREEMENTS

PROPERTY AGREEMENTS

Back 25

MARITAL AGREEMENTS - PROPERTY AGREEMENTS

Prenuptial and postnuptial agreement to settle property rights are generally binding and specifically enforceable.

If an agreement, considered as a whole, plainly shows the parties intended it to be a final settlement of obligations concerning property of any kind, the agreement is a property settlement.

Property settlements generally cannot be modified by a court alimony agreements on the other hand can be modified by a court.

Front 26

MARITAL AGREEMENTS

PROPERTY AGREEMENTS - EXCEPTION

Back 26

EXCEPTION: An agreement is NOT enforceable if the contesting spouse proves that the agreement was unconscionable when it was executed and, before execution, that he:

(i) Wasn't provided a fair and reasonable disclosure of the property or financial obligations of the other party;

(ii) Didn't voluntarily and expressly waive in writing any right to disclose of the property or financial obligations; and

(iii) Didn't have (or reasonably couldn't have had) an adequate knowledge of the property or financial obligations of the other party.

➢ But remember, there must be an express provision in the property settlement that the consideration is in lieu of alimony payments to effectively destroyed the right to alimony.

Front 27

COST OF LITIGATION

[Award of Attorney's Fees - Professional Conduct]

Back 27

COST OF LITIGATION
[Award of Attorney's Fees]

In FL, a trial court has great discretion to award attorney's fees as justice requires, provided there is competent evidence in the record to support the findings and a reasonable person could agree with the court's order.

Front 28

ADOPTION

CONSENT

Back 28

ADOPTION

CONSENT: Adoption of a child generally requires the consent of both the minor's mother and the minor's father.

CONSENT FROM FATHER: Father's consent is required when:

(1) Minor was conceived or both while the man was married to the minor's mother;

(2) Minor is his child by adoption;

(3) Minor has been determined by a court to be his child;

(4) Father has filed an affidavit of paternity in accorance with the relevant statute; OR

(5) In the case of an UNmarried Biological Father, he has filed Acknowledgement of Paternity within the required timeframes.

Front 29

ADOPTION

UNMARRIED BIOLOGICAL FATHER'S STATUTORY STANDARD

Back 29

ADOPTION - UNMARRIED BIOLOGICAL FATHER'S STATUTORY STANDARD


When the child to be adopted is more than SIX months of age, the UBF must have complied with the following statutory requirements [4] in order for his consent to the adoption be necessary:

(1) He must have developed a substantial relationship with the child;

(2) Taken some measure of responsibility for the child and the child's future: and

(3) Demonstrated in full commitment to the responsibilities of parenthood by providing financial support to the child in accordance with his ability (if not prevented from doing so by the person or authorize agency having awful custody of the child).

(4) He must also have regularly visited the child at least monthly, when physically and financially able to do so, or maintained regular communication with the child or the person having care for custody at the child, when physically or financially unable to visit the child.

➢ The court may waive the consent of a parent who has deserted or abandoned the child.

Front 30

COUNSELING

TERMINATION OF "DEAD" MARRIAGES

Back 30

COUNSELING

In Florida, courts are to terminate "dead" marriages.

Termination is permissible only if objective proof exists that one of the STATUTORY GROUNDS for DISSOLUTION is present:

(a) The marriage is IRRETRIEVABLE BROKEN; or

(b) A party has been ADJUDICATED INCOMPETENT for a preceding period of at least 3 years.


IF THERE IS A MINOR CHILD of the marriage OR the respondent denies that the marriage is irretrievably broken, the court MAY:

(i) Order COUNSELING;

(ii) CONTINUE the proceedings for a reason length of time, not exceeding 3 months, to enable the parties to effect a reconciliation; or

(iii) Take such other actions as may be in the BEST INTERESTS of the parties and any minor child of the marriage.