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29 Cards in this Set

  • Front
  • Back
Child Support - Generally
child support provisions generally cease when the child turns 18, UNLESS the child is:
(1) physically or mentall dependent,
(2) a dependent who is between 18-19, in high school, and studying to graduate
Child Support - Amount
the amount of child support is set by statute...courts are reluctant to award a child support amount below the statutory guidelines, but have the discretion to do so when:
(1) extraordinary medical or eductional expenses exist,
(2) seasonal variations in income apply
(3) a child's age warrants deviation
(4) special shared parental arrangements exist
(5) total assets of the parents and child justify a lower amount
(6) there is an IRS dependency exception

NOTE: departure from the guidelines in an amount that varies more than 5% requires that the court enter writing findings and justifications for the deviation
Alimony - Generally
alimony, also called spousal maintenance, is available to either spouse, absent waiver in a valid agreement
Alimony - 4 Types
(1) temporary - support during the pending dissolution litigation
(2) permanent periodic - for a modifiable amount for the necessities of a spouse who has neither the resources not the ability to be self-sustaining
(3) rehabilitative - assists a spouse in obtaining education or training necessary to find employment facilitating self-sufficiency
(4) lump sum - provides the receiving souse with a final one-time installment or periodic installments of a specified amount
Alimony - Things to Consider
in determining the amoutn of any of the 4 types of alimony, courts will consider:
(1) the standard of licing during the marriage
(2) the duration of the marriage
(3) the age and emotional and physical condition of both parties
(4) the financial resources and sources of income of each party
(5) 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) any factors that will foster equity
Division of Property - Generally
upon dissolution of marriage, the court will equitably distribute all marital property

although equitable distribution doesnt always mean a 50/50 division of property, distribution must be equal, unless justification for unequal treatment is shown
Division of Property - Marital Assets
(1) those acquired by either or both spouses during marriage, other than assets acquired through gift, bequest, or descent
(2) enhancement of, or appreciation in, value of nonmarital assets as a result of the efforts of the other spouse during marriage or from the contribution to or expenditure of marital funds
(3) interspousal gifts during the marriage
(4) all benefits accrued during the marriage in retirement plans, pension plans, profit-sharing plans, and the like
Division of Property - Factors Considered in Equity/Justice
(1) each spouse's contribution to the marriage
(2) each spouse's contribution to the care and education of the children
(3) services of the homemaker
(4) economic circumstances
(5) the duration of the marriage
(6) each spouse's career and education sacrifices, and
(7) the desirability of retaining any asset from from claim and hostile interference by the other spouse
Child Custory - Generally
the primary standard for awarding custody, visitation and support is the best interests of the child
Child Custody - Best Interests of the Child Considerations
(1) the parent's ability to provide a stable home environment for the child
(2) the child's preference, even though there is no age at which the child has absolte choice regarding custody
(3) the custodial parent's willingness to allow visitation and to encourage an ongoing relationship with the noncustodial parent
Child Custody - Shared Responsibility
FL courts emphasize that both parents retain shared responsibility regardless of who may have custody

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
Child Custody - Modification
courts may modify custody determinations upon a showing of a substantial change of circumstances affecting the child's welfare
Child Custody - Jurisdiction
UCCJEA - FL has enacted the Uniform Child Custody Jurisdiction and Enforcement Act for interstate custody disputes

the main purpose of the Act is to provide one court with continuing jurisdiction over the child to protect the best interests of the child

jurisdiction usually lies with the state with the closest connection to the child
Child Custody - Jurisdiction - Generally
"Home State" Rule - a court competent to decide child custody matters (in FL, its a circuit court) has jurisdiction to make a child custody determination IF the state:
(1) is 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 a parent or person acting as a parent (guardian) continues to live in the state
Child Custody - Jurisdiction - Exception to Home State Rule
the home state rule does NOT apply, and a court has jurisdiction to enter or modify a child custody or visitation order if no other state has home state jurisdiction and
(1) the child and at least one parent (or person acting as a parent) have 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
Child Custody - Jurisdiction - Exclusive Continuing Jurisdiction
the court that made the initial child custody or visitation determination has exclusive continuing jurisdiction over teh matter until the court determines that:
(1) neither the child nor the child's parents (or persons acting as parents) continue to reside in the state OR
(2) the child no longer has a 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
Child Custody - 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 isnt absolute

the state has parens patriae authority to ensure that children receive reasonable medical treatment necessary for the preservation of life

in all matter involving minor children, the primary guide is the best interests of the child
Marital Agreements - Antenuptial Agreements - Generally
also called prenuptial agreements, entenuptial agreements between prospective spouses, other than contracts to marry, are generally valid

however, these contracts cannot authoritatively determine spousal support, child support or child custody
Marital Agreements - Antenuptial Agreements - Requirements
(1) must be evidenced by a writing containing the material terms (comply with SoF)
(2) valid consideration, but entry into the marraige is sufficient consideration
(3) because the parties dont deal at arm's length, but rather out of a relatinoship of mutual trust and confidence, courts will strictly scrutinize the contract for good faith and lack of undue influence
Marital Agreements - Postnuptial Agreements - Generally
in FL, spouses may contract with each other

like antenuptial agreements, postnuptial contracts cannot authoritatively determine spousal suport, child support, or child custody
Marital Agreements - Postnuptial Agreements - Statute of Frauds
while postnuptial contracts dont fall within the SoF, the subject matter of these contracts may

Example: a contract to convey land from one spouse to another would fall within the SoF and must be evidenced by a writing to be enforceable
Marital Agreements - 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 recieve alimony will survive

the right to temporary alimony cannot be contracted away

likewise, the right to receive child support cannot be waived
Marital Agreements - Volunariness Requirement
antenuptial and postnuptial agreements must be voluntarily entered into without undue influence or coercion

in determining voluntariness, courts consider factors such as:
(1) the time and place the agreement was presented (to consider whether there was sufficient time to review and reflect on the terms of the agreement)
(2) the opportunity to seek counsel
(3) statements made during the presentation of the agreement

if the agreement doesn't fairly provide for the contesting spouse, a court wont uphold the agreement unless a full and fair financial disclosure was made by the defending spouse before the agreement was signed
Marital Agreements - Property Agreements - Generally
antenuptial and postnuptial agreements 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
Marital Agreements - Property Agreements - Modification
property agreements generally cannot be modified by a court

alimony agreements, on the other hand, can be modified by the court

an agreement is NOT enforceable if the contesting spouse proves that the agreement was unconscionable when it was executed AND, before execution, that he:
(1) wasnt provided a fair and reasonable disclosure of the property or financial obligations of the other party
(2) didnt voluntarily and expressly waive in writing any right to disclosure of the property or financial obligations AND
(3) didnt have (or reasonably couldnt have had) an adequate knowledge of the property or financial obligations of the other party

NOTE: there must be an express provision in the property settlement that the consideration is in lieu of alimony payments to effectively destroy the right to alimony
Adoption - Generally
adoption of a child generally requires the consent of both the minor's mother and the minor's father
Adoption - Requirement of Consent from Father
father's consent is required when:
(1) the minor was conceived or both while the man was married to the minor's mother
(2) the minor is his child by adoption
(3) the minor has been determined by a court to be his child
(4) he 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
Adoption - Requirement of Unmarried, Biological Father's Consent
when the child to be adopted is more than 6 months of age, the unmarried biological father MUST have complied with the following in order for his consent to the adoption to 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 a full commitment to the responsibilities of parenthood by providing financial suport to the child in accordance with his ability (if not prevented from doing so by the person or authorized agency having lawful custody of the child)

he must ALSO have regularly visited the dhilc at least monthly, when physically and financially able to do so, or maintained regular communication with the child or the person having care or custody of 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
Adoption - Counseling
in FL, courts are to terminate "dead" marriages

termination is permissible only if objective proof exists that one of the statutory grounds for dissolution is present:
(1) the marriage is irretievably broken or 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:
(1) order counseling
(2) continue the proceedings for a reasonable length of time, not to exceed 3 months, to enable the parites to effect a reconciliation, OR
(3) take such other action as may be in the best interests of the parties and any minor child of the marriage