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46 Cards in this Set
- Front
- Back
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Child Support |
Generally ceases when a child turns 18, unless the child is (1) physically or mentally dependent or (2) a dependant who is between ages 18 and 19, in high school and studying to graduate |
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Amount of Child Support |
In Florida, the amount of child support is set by statute (Child Support Guidelines Worksheet). |
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Child Support: Court Lowerings |
Courts are relucant to award child support below the statutory guidelines, but have the discretion to do so when (1) extraordinary medical or educationsal expenses exist; (2) seasonal variations in income apply; (3) a child's agre warrants deviation; (4) special shared parental arrangements exists; (5) the total assets of the parents the child justify a lower amount; or (6) there is an IRS dependency exception |
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Child Support: Departure from the Guidelines |
Departure from the guidelines in an amount that varies more than 5% requires that the court enter writing findings and justifications for the deviation |
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Child Support Order |
Must provide for child support to terminate on a child's 18th birthday (unless the child is physically or mentally dependent, or is a dependent between 18 and 19 in high school studying to graduate) -Provide a schedule stating the amount of the monthly support that will be owed for any remaining children after one or more of the children are no longer entitled to recieve support; and -Provide the specific date that the reduction or termination of support becomes effective |
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Alimony |
Spousal maintenance, is available to either spouse, absent waiver in a valid agreement
In determining whether to award allimony, the court must first make a specific factual determination as to whether either party has an actual need for alimony and whether either party has the ability to pay. The award of alimony may not leave the payor with significantly less net income than the net income of the recipient unless there are written findings of exceptional circumstances |
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Types of Alimony |
The Court must determine the proper types of alimony: BRAD Pitt -Bridge the Gap -Rehabilitative -Alimony Pendente Lite -Permanent |
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Bridge the Gap |
Assists a part with legitimate indenfiable short term needs while making a transition from being married to single -May not exceed two years -Teminates upon the death or remarriage of the recipeient -May not be modified in amount or duration |
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Rehabilitative |
Assists a party in obtaining education or training necessary for establishing the capacity for self support -Must be specific and defined rehabilitative paln which must be included as part of any order awarding alimony -May be modified or terminated if there has been a substantial change in circumstances, non compliance with plan, or completion of plan |
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Alimony Pendente Lite |
Suit Money
In every proceeding for dissolution of marraige; to pay the attorneys fees of the other party with less assets |
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Durations |
Provides a party with (1) economic assistance for a set period of time following a marriage or (2) moderate duration when permanent alimony is inappropirate or (3) following a marraige of long duration if there is no ongoing need for permanent support -Amount may be modified or terminated if there has been a substantial change in circumstances -Length may not be modified except under exceptional circumstances and may not exceed length of marriage |
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Permanent |
Provide for the needs and necessites of a spouse who lacks the financial ability to be self sustaining |
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Permanent: Long Duration Marriage |
May be awarded following a marriage of long duration if appropriate upon consideration of factors; |
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Permanent: Moderate Duration Marriage |
May be awarded following a marriage of moderate duration if such an award is appopriate based upon clear and convincing evidence after consideration of the factors |
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Permanent: Short Term Marriage |
May be awarded following a marriage of short duration if there are written findings of exceptional circumstances. |
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Alimony: Awarding Permanent Alimony |
The Court must include a finding that no other form of alimony is fair and reasonable under the circumstances of the parites.
The award may be modified or terminated substantial change in circumstances or the existence of a supportive relationship |
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Factors to Determine the Amount of Alimony |
-The standard of living during the marriage -Duration of the marriage -Age and emotional and physical condition of both parties -Financial resources and sources of income of each party, including income available to either through investments of any asseet held by that party; -The earning capacities, educational levels, vocational skills, and employability of the parties and where applicable, the amount of time needed to obtain education or trainin -Each party's contributions to the marraige, including homemaking, childcare, education, and career building of the other party - The responsibilities each will have with regard to any minor children they have in common -The tax treatment and consequences to each of any alimony award; -And any factors that will foster equity |
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Alimony: Length of Marriage |
Short Term: Less than 7 years Moderate Term: More than 7, less than 17 Long Term: 17 years or more |
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Division of Property |
-Upon dissolution of marriage,the court will equitably distribute all marital property -Does not always mean 50/50 division of property, distribution must be equal, unless justification for unequal treatment is shown |
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Marital Assets |
-Property acquired by either or both spouses during marriage, other than assets acquired through gift, bequest, or descent; -Enhancement of, or appreciation in, value of nonmarital assets as a result of the efforts of the othe spouse during marriage or from the contribution to or expenditure of marital funds; - Interspousal gifts during the marraige; and -All benefit accrued during the marriage in retirement plans, pension plans, profit sharing plans, and the like |
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Necessary Factors for Equitable Distribution of Marital Assets |
-Each spouse's contribution to the marraige -Each spouse's contribution the to the care and education of the chidre; -Service of the homemaker -Economic circumstances -Duration of the marriage -Each spouse's career and education sacrifices -The desirability of retaining any asset free from claim and hostile interference by the other spouse. |
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Best Interests of the Child |
The primary standard for determining all matters relating to parenting, time-sharing and support is in the best interests of the child -Factors: (1) the parent's ability to provide a stable home environments for the child; (2) child's preference, even thoguh there is not age at which the child has an absolute choice; and (3) each parent's willingness to allow time sharing and to encourage an ongoing relationship with the other parent |
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Parenting Plan |
Governs the relationship between the parties relating to the decision that must be made regarding the child
A parenting plan approved by the court must, at minimum, describe: -How the parents will share and be responsible for the daily tasks associated with the upbringing of the child; time sharing schedule; designation of who will be responsible for health care, school related matters, other activities; and the methods and technologies that the parents will use to communicate with the child |
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Shared Responsibility |
Florida 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 regarding major decisions such as health care, religious upbringing, and education. |
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Modification |
Courts may modify time sharing ad parenting plan determinations showing a substantial, material, and unanticipated change of circumstaces affecting the child's welfare |
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UCCJEA - Jurisdiction |
Uniform Child Custody Jurisdiction Enforcement Act -For interstate custody disputes -To provide one court with continuing jurisdiction over the child to protect the best interests of the child. -Jurisdiction usuallly lies with the state with the closest connection to the child |
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Home State Rule |
A court competent to decide child custody matters (FL Circuit Courts) has jurisdiction to make a child custody determination if the state is: (1) the child's home state; or (2) was the child's home state within the past 6 months and the child is absent from the state, but the parent or person acting as a parent continues to live in the state |
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Home State Rule: Exception |
Does not apply and a court does not have jurisidiction to enter or modify a child custody or visitiation order if no other state has home state jurisdiction and (1) the child and at least one parent/person acting as a parent has a significant connection with the state and (2) substantial evidence is available in the state concerning the child's care, protection, training, and personal relationships |
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Exclusive Continuing Jurisdiction |
The court that made the initial custody or visitation determination has exclusive continuing jurisdiction over the matter until the court determines: (1) neither the child nor the child's parents continue to reside in the state; or (2) the child no longer has significant connection with the state, and substantial evidence to the child's care, protection, training, and personal relationships is no longer available in the state |
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Parens Patriae |
While the custodial parent is charged with the obligation of obtaining medical treatment and care for a minor child, the parental right to make decisions concerning such treatment is not absolute.
State has parens patriae authority to enure that children receive reasonable medical treatment necessary for the preservation of life - Best interest of the child |
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Antenuptial / Prenuptial Agreement |
Agreements between prospective spouses, other than contracts to marry, are generally valid
Cannot authoritatively determine spousal support, child support, or child custody |
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Prenuptial Agreement: Important Fact |
-Fall within the Statute of Fruads and must be evidences by a writing containing the material terms -Require consideration to be valid, but entry into the marriage if valid consideration -Courts will strictly scrutinize the contract for good faith and lack of undue influence |
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Postnuptial Agreements |
Valid in Florida; cannot authoritatively determine spousal support, child support, or child custody -Statute of Frauds: Do not fall within itself, however, the subject matter may fall within the statute |
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Postnuptial Agreements: Waiver of Rights |
-The right to receive alimony may be expressly waived for consideration. -If there is no express waiver in the agreement, the right to receive alimony will survive. -The right to temporary alimony cannot be contracted away, just as the right to recieve child support cannot be waived. |
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Voluntariness Required |
Antenuptial and postnuptial agreements must be voluntarily entered into without coercion or undue influence. |
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Pre/Post Nuptial Agreements: Voluntariness Factors |
Factors to determine: (1)the time and place the agreement was presented; (2) the opportunity to seek counsel; and (3) statements made during the presentation of the agreement. If the agreement does not fairly provide for the contesting spouse, a court wil not uphold the agreement unless a full and fair financial disclosure was made by the defending spouse before the agreement was signed. |
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Marriage |
A civil contract between a man and a woman. A marriage cannot be terminated without the interference from the state. The right to marry is a fundamental right under the U.S. Constitution. |
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Divorce |
A divorce is a legal dissolution of a marriage. Florida is a no fault divorce state., which eliminates any fault or wrong. Florida recognizes two grounds for divorce: (1) irretrievably broken and (2) incapacity. In order for a divorce to go forward on irretrievably broken, the Court must make a finding that the marriage is irretrievably broken and only needs the testimony of one spouse. If the basis of the testimony is curable, a divorce will not be presented |
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Rules for Divorce |
Must have resided in Florida for at least 6 months; the only defense available in Florida is a denial of grounds. |
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Contested Divorce/Minor Children |
If the parties have minor children or one spouse denies that the marriage is irretrievably broken, then the Court may: (1) continue the matter for 3 months to attempt reconciliation; (2) order counseling; or (3) order other best interest actions |
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Exceptions from Marital Property |
Property acquired before the marriage, property specifically excluded as martial property, non-marital property acquired (unless commingled), and gifts (except between spouses) |
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Property Agreements |
Antenuptials and postnuptials to settle property rights are generally binding and specifically enforceable.
-Generally cnanot be modified by a court. Alimony agreement can be modified by a court. |
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Exceptions to Property Agreements |
Is not enforceable if the contesting spouse proves that the agreement was unconscionable when it was executed and before execution that he: (1) was not provide a fair and reasonable disclosure of the property or financial obligations of the other party; (2) didn't voluntarily and expressly waive in writing any rights to disclosure of the property or financial obligations; (3) didn't have or reasonably could not have an adequate knowledge of the property of financial obligations of the other party *There must be an express provision in the propety settlement that the consideration is in lieu of alimony payments to effectively destroy the right to alimony |
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Adoption |
Generally requires the consent of both the minor's mother and the father
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Adoption: Father's Consent |
Consent of father is required when: (1) the minor was conceived or born while the man was married to the mother; (2) the minor child is his by adoption; (3) the minor has been determined by the court to be his child; (4) he has filed an affidavit of paternity; (5) he is listed on the birth certificate before the date a petition for termination of parental rights is filed; or (6) in the case of an unmarried biological father, he has acknowledged paternity within the required timeframes |
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Unmarried, Biological Father's Statutory |
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