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29 Cards in this Set
- Front
- Back
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What rights cannot be waived by a prenuptial or postnuptial agreement? |
The rights to receive temporary alimony, child support and child custody. The right to receive other alimony may only be waived for consideration. |
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What is required for a premarital agreement regarding probate rights? |
No disclosure required. |
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What is required for a premarital agreement regarding property rights? |
1. Must be voluntary 2. Must be fair OR entered into after full disclosure.
The agreement is FINAL. |
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What is required for a postnuptial agreement regarding probate rights? |
Must be FULL DISCLOSURE. |
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Define marital assets |
All property acquired by either spouse during the marriage from a source connected with the marriage, plus interspousal gifts. |
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Frank has had the same job for 20 years. In the fourth year of the job, Frank married Lisa. Frank generated pension contributions yearly from the job. Upon their divorce, are the pension benefits separate or marital property? |
The benefits generated during the marriage are marital property. |
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How are marital assets distributed? |
Presumed to be equal distribution unless justification shown for unequal treatment.
Factors justifying unequal treatment:
1. Contribution to the marriage 2. Economic circumstances 3. Interruption of personal career or education 4. Contribution by one spouse to the career or education of the other 5. Desirability of one spouse in retaining a particular asset 6. The length of the marriage, 7. Desire of retaining the marital home as a residence for dependent children, 8. Anything else. |
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What is required for any alimony award? |
A specific finding that
1. A party has an actual need for alimony and 2. The other party has the ability to pay |
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What is determined in which type of alimony to award? |
1. Length of the marriage 2. Standard of living 3. Age 4. Physical, emotional condition of each party 5. Time needed to obtain education or training 6. Financial resources 7. Contribution to the marriage 8. Anything else. |
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When can a court award the marital home to a spouse for only a specified period of time? |
When 1. It is equitable 2. It is in the best interests of the child or spouse, and 3. It is financially feasible |
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What types of alimony are available? |
1. Alimony Pendente Lite 2. Bridge-the-Gap Alimony 3. Rehabilitative Alimony 4. Durational Alimony 5. Permanent Alimony |
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Which types of alimony are modifiable? |
Rehabilitative, durational and permanent alimony, all allowing modification based on a substantial change in circumstances. |
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Remarriage terminates which kinds of alimony? |
Possibly all but alimony pendente lite, definitely durational. |
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What is rehabilitative alimony? |
Rehabilitative alimony is awarded to assist a party in becoming self-supporting. It is limited in amount and has a termination date, and requires that the recipient adhere to a rehabilitation plan. |
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What is required for permanent alimony? |
Long marriage (17+): available Medium marriage (7-17): May be available, consider factors Short marriage: only in exceptional circumstances
Must include finding that no other form of alimony is fair and reasonable under the circumstances. |
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When does the court order shared parental responsibility (i.e. must confer on all major life decisions)? |
The court MUST do so unless it would be detrimental to the child (rebuttable presumption of detriment in case of DV) |
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Assuming shared responsibility, how does the court determine parental responsibility? |
The court must put in place a parenting plan that governs the relationship between the parents. Covers decisions affecting the minor child, daily tasks, time sharing, responsibility for health care, school, activities, and technologies used to talk to each parent. Parents can create a plan but must be approved by the court. |
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What is considered in the best interests of the child standard? |
All factors affecting the welfare and interests of the child, including:
1. Capacity and disposition of each parent to encourage a clos and continuing parent-child relationship, honor time schedule and be reasonable regarding changes, 2. The division of parenta responsibilities and tasks 3. The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity, 4. The geographic viability of the plan 5. Moral fitness of the parents (including substance abuse issues) 6. The mental and physical health of the parents 7. The preference of the child if the child is of sufficient intelligence, understanding and experience |
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What remedies are available when a parent denies the other parent's rights under a time-sharing schedule? |
The court MUST award extra time to compensate, and MAY: 1. Order the parent to pay court costs and fees, attend a parenting course, do community service or bear the financial burden of visitation, 2. Modify the parenting plan, or 3. Impose other sanctions |
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When must the mother get the permission of the father to adopt out their child? |
1. When the child was conceived or born while they were married, 2. The minor is his by adoption, 3. The minor has been adjudicated his 4. He has filed an affidavit of paternity in conformance, OR 5. If unmarried, has filed acknowledgment of paternity within the required timeframes. If over 6 mos old, must have a substantial relationship in the child. |
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Which kinds of marriages are VOID? |
Bigamy Incest (cousins OK!) Mental incapacity |
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If a marriage is annulled, what is the remedy? |
Return to pre-marriage state. |
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What is the statement of law regarding premarital agreements? |
Must be voluntarily entered into without undue influence or coercion. |
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What are marital assets? |
1. Those acquired by either or both spouses during marriage other than gifts, bequests or by descent 2. Enhancement/appreciation of nonmarital assets by the efforts of either spouse or marital funds 3. Interspousal gifts 4. All benefits in retirement plans accrued during the marriage |
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What are the allowed grounds for divorce? |
1. Irretrievably broken 2. Spouse adjudicated incompetent for a period of 3 years |
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How can a state establish jurisdiction over a child's custody decision? |
1. Child's home state 2. WAS home state within past 6 months and a parent still resides in the state. |
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What is required to establish a NEW state as a home state after the initial decision? |
Court must determine that 1. Neither the child nor the parents still live in the home state OR 2. The child no longer has significant connection to the home state |
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What is REQUIRED of a parent to relocate with their child? |
Must either: 1. Obtain written consent of every person entitled to time-sharing with or access to child OR 2. Serve a petition to relocate on every person. |
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What is required for a new state to modify another state's child custody OR child support arrangement under the Uniform Interstate Family Support Act and Uniform Child Custody Jurisdiction and Enforcement Act? |
1. The original state court can determine it no longer has jurisdiction or Florida is more convenient forum OR 2. Either state's court can determine that the children and childrens parents do not reside in Florida. |
