- Vid FL Subjects I FamilyTOC

8/12/2019 - Vid FL Subjects I FamilyTOC

1/33

FAMILY LAW

Details that let you know you are in a family law question:

Use this mnemonic as a checklist for every FL family law question: DEATS.

D divorcedissolutionannulmentsdissolution a!reementsE equita"le distri"ution#

A alimony#T time sharin!#S su$$ort for children

I. MARITAL AGREEMENTS

A. Prenuptial Agreement %&L '(. E.)

*. +equirements for a ,renu$tial A!reement %also called antenu$tial a!reement):

a. S&F:

". Entry is:

c.

d. -ust "e made:

. /ontent of A!reements

a. ,renu$tial a!reements can decide:

%*)

%)

%0)

%1)

E(A-

T',


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". Small e2ce$tions. 3atch out for !overnment assistance and waivin! child su$$ort.

c. Further# child su$$ort is the ri!ht of the child# not of the $arent. A $renu$tial a!reement may not adversely affect

the ri!hts of a child to statutorily set child su$$ort. /ourts will !ladly let a $arent $ay more. /annot delineate time

sharin! %that is the court4s 5o").

0. Enforcement

a. 'n order for a $arty to convince a court that a $renu$tial a!reement should not "e enforced# the $arty a!ainst

whom enforcement is sou!ht must show that:

%*)

%)

%0)

+e!ardin! fairness6there are three su"$arts. To decide whether the court will set aside the a!reement for

lack of fairness# you look at the time the a!reement was reduced to writin!.

%a) S$ouse was not !iven Fair and +easona"le Disclosure7

%") 'f the $arty did not have a"ility to look at the assets to see what was there7

%c) &ther s$ouse could not have known what assets their $artner had7

1. ,alimony is not availa"le in Florida. 8owever# Florida courts will u$hold a written coha"itation a!reement:

a. ,ostnu$tial contracts:


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II. CREATING A MARRIAGE

A. Marriage Defined %&L ''. A.)

*. Florida4s definition of marria!e includes:

a.

".

c.

. Legal Formalitiesand Procedural Requirements

a. The -arria!e License:

%*) A$$ly to!ether

%) 9o "lood test# "ut need:

%0) The $arties need to tell the clerk that they have read the ri!hts and res$onsi"ilities of $arties to a marria!eand:

%a) they wait three days &+

%")

%1) The license will e2$ire in ; days.

". ,eo$le authori


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0. Putatie Marriage

a. A $utative marria!e may e2ist where:

". 9ot a valid marria!e and not enforcea"le as one.

c. 8owever:

!. Prerequisites to Marry %&L ''. /.)

*. "apacity%define it and a$$ly it)

a. Definition:

%*) The level of mental ca$acity in the marria!e conte2t is lower than in other le!al conte2ts# such as the a"ility

to enter contracts or make wills.

%) A $erson who is mentally disa"led:

%0) &n the other hand# a $erson of normal ca$acity:

. "onsent

a. 'n order for a marria!e to "e valid# "oth $arties must !ive their consent.

". Always test the oluntariness of /onsent.

c. A marria!e is invalid if either s$ouse is actin! under duress# or if the marria!e is "ased on fraud or deceit.

0. #ntent

a. Each $arty must have:

".

'f a"ove requirements are not met# the marria!e may "e considered void or voida"le.


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III. ANNULMENT

A. Annulment Defined %&L '. A.)

*. Definition:

A DE/LA+AT'&9 T8AT T8E ,+'&+ -A++'A@E 3AS '9AL'D ?/ &F S&-E DEFE/T# A9D T8AT DEFE/T

E('STED AT T8E T'-E T8E -A++'A@E 3AS /+EATED.

. This decree of annulment means that in the eyes of Florida:

T8E /&U,LE 3AS 9EE+ -A++'ED.

!. Dual $tatus of Annulment %&L '. ?.)

*. Annulment as a +eli!ious Event:

. The state only reco!ni


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*) 'f entered into after *GH:

+E/&@9'IED 'F ?EF&+E **

) +E/&@9'IED 'F AL'D U9DE+ A9&T8E+ STATE

Anyone can challen!e a marria!e if it falls into one of these voidC cate!ories. For e2am$le# relativescan contest a marria!e for inheritance $ur$oses durin! a $ro"ate $roceedin!.

0. &oida'le Marriages

a. Definition:

A -A++'A@E T8AT 8AS S&-E ,+&?LE-S# ?UT ,+&?LE-S A+E /U+A?LE.

". &nly the $arties to the marria!e may raise the issue.

%*) -ust "e done in a family law $roceedin! to annul the marria!e while the defect still e2ists and while "oth$arties to the marria!e are still alive.

c. E2am$les:

%*) LA/ &F /&9SE9T

%) DU+ESS

%0) U'

%1) /&9SE9T T8+&U@8 F&+/E

%=) F+AUD

%) A!e requirements are not met. Unless:

%a) -ust "e *H and have $arent4s $ermission &+

%")

d. 'f a marria!e is merely voida"le# as o$$osed to void# it remains valid until annulled.

8>,&T8ET'/AL

8arold and 3ilma entered into a $ro$er common law marria!e in ansas in ;;0# moved to Florida in ;;J.

?oth 8arold and 3ilma# who are senior citi


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(. Requirements for an Annulment%&L '. /.)

*.

F. Defenses to Annulment %&L '. D.)

*. A $arty seekin! to defeat annulment of a voida"le marria!e can invoke defenses includin!:

a.

".

c. Unclean 8ands

d.

&+

e.

%. #mplications of Annulment %&L '. E.)

*. Althou!h an annulment in $rinci$le declares that the marria!e has never taken $lace# the court has the $ower to

declare:

a. /ourt may award alimony# child su$$ort# andor division of $ro$erty.

%*) @enerally# alimony is not awarded after an annulment e2ce$t for $ossi"le short term alimony durin!

annulment $roceedin!s.

%) 'n dividin! $ro$erty# courts usually attem$t to $ut the $arties in their $reBmarria!e $ositions.


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IV. DIVORCE/DISSOLUTION

A. %rounds for Diorce in Florida %&L . ?.)

*. After a"olishin! faultB"ased divorce# Florida esta"lished two !rounds for divorce:

a. -E9TAL '9/A,A/'T> &F &9E ,A+T>

%*) For a divorce "ased on mental inca$acity# the inca$acitated $arty must "e ad5ud!ed inca$acitated:

F&+ AT LEAST 0 >EA+S A//&+D'9@ T& /E+TA'9 K ,+&/EDU+E +E SE+'/E &9 T8E-E9TAL ,A+T>. /T -UST A,,T A @UA+D'A9 &9 8'S ?E8ALF F&+ ,+&/EED'9@S.

%) This time requirement cannot "e circumvented.

". 9& FAULT D'&+/E6+EAS&9 D&ES94T -ATTE+#

%*) Su"5ective and $rivate. The reason does not matter.

. The court may continue the action:

/T /A9 /&9T'9UE T8E A/T'&9 F&+ U, T& 0 -&9T8S T& @'E /&U,LE &,,&+TU9'T> T& E'T8E+

+E/&9/'LE# &+ 'F &9E 'S /8ALLE9@'9@ T& 9&T /&9TEST. 'F /8'LD+E9# /T /A9 &+DE+ /&U9SEL'9@.

0. Althou!h Florida has a"olished faultB"ased divorce and the traditional defenses to divorce# the $arties4 wron!doin!

may still have an im$act on the outcome of the divorce.

a. -arital misconduct# includin! adultery# dissi$ation of assets# and s$ousal or child a"use# are factors the court will

consider in determinin! alimony# equita"le distri"ution of marital assets# $arental res$onsi"ilities# and awards of

attorneys4 fees.

8>,&T8ET'/AL

3hitney and 8uey are "oth devotedly reli!ious $eo$le# and si!ned a contract "efore enterin! into their

marria!e that they would not file for a divorce unless there were le!al !rounds under the old faultC

system. They have recently decided that they no lon!er wish to "e married. 3hat can they do

38 -UST SEE 9& FAULT D'&+/E


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V. FINANCIAL CONSEQUENCES OF DIVORCE

A. (quita'le Distri'ution %&L '(. A.)

*. Florida is a se$arate $ro$erty state durin! a marria!e.

. Definition:

E(A-,LE:

Assets include real $ro$erty# "ank accounts# retirement accounts# accrued sick and vacation $ay# $atents# stock

o$tions# "usinesses# and $ersonal $ro$erty like cars# 5ewelry# $ets and furniture. Lia"ilities include de"ts# such as

credit card de"ts# mort!a!es# ta2 liens# and student loans. ,rofessional de!ree is not an asset# "ut the loans are a

lia"ility.

0. -arital vs. 9onB-arital ,ro$erty

-nemonic:'4m covered %'-/&D)

'M- 'dentification of -aritalnonBmarital#/& /lassification of &wnershi$#

D aluation and Distri"ution

a. aluation is "ased on a cutoff date %the date of filin!# date of trial# date of se$aration or any other date de$endin!

on what the fairest date to use is !iven nature of asset or lia"ility).

". 9onB-arital ,ro$erty

%*) Acquired "y either s$ouse $rior to the marria!e and retained se$arately7

%)

%0) 'ncome derived from a nonBmarital asset acquired durin! marria!e U9LESS:

%1) Assets e2cluded "y:

c. -arital ,ro$erty is not determined "y how it is titled# "ut whether the $ro$erty was acquired le!ally or "eneficially

"y one of the $arties durin! the marria!e. Lia"ilities are $ro$erty# too.

%*) -arital $ro$erty is $ro$erty acquired "y either s$ouse durin! the marria!e that isn4t nonBmarital $ro$erty#includin!:

%a) ested and 9onBested +etirement

%") Stock o$tions# 'nsurance "enefits

%c) 'nterest in ,endin! Lawsuits

%d)

%e) @ifts "etween s$ouses

%f) Enhancement or a$$reciation of value of nonBmarital assets as a result of efforts of either s$ouse

durin! marria!e or contri"ution of marital assets to nonBmarital assets.

%) There is no more special equityin Florida. %' contri"uted over and a"ove the $erformance of normal

E(A-

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marital duties6therefore ' should !et more.C)

%0) ,rofessional de!rees:

%a) 8owever:

d. /onvertin! 9onB-arital ,ro$erty to -arital ,ro$erty

%*) Transmutation "y Title:

%) Transmutation "y /ommin!lin!:

E(A-,LE:

There is a "ank account containin! 3ife4s $reBmarital savin!s. 8us"and and 3ife "oth de$osit their salaries

in the same account and "oth withdraw marital funds from the account. This will "e transmutation "y

commin!lin!.

%0) (nhancement)Appreciation:

E(A-,LE:

'f ,osh owned a cotta!e $rior to marria!e# "ut ?ecks fi2ed u$ the cotta!e# the increase in value of the

cotta!e is marital $ro$erty.

1. Division of Assets and Lia"ilities

a. ,ro$erty must "e distri"uted equally unless 5ustification for unequal treatment is shown.

". 'n those cases# the court will consider the followin! factors in dividin! $ro$erty:

%A/'D-ELD):

%*)

%)

%0)

%1)

%=)

%)

%J)

%H)

c. 3hen dividin! the remainin! marital estate# the s$ouse who was wron!fully de$rived of the value of the asset

may "e !iven a !reater distri"ution of the remainin! $ro$erty or assets as com$ensation for such dissi$ation.

8owever# marital misconduct alone is not a sufficient "asis to deviate from an equita"le distri"ution# unless the

conduct also de$leted marital assets.


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d. /atch all:

E(A-,LE:

/ourt found an unequal award was not 5ustified where one s$ouse attem$ted to murder the other "ut a sentence

had "een served and assets weren4t de$leted. >es# there had "een marital misconduct# "ut it was not related to

the de$letion of marital funds.

E(A-,LE:

An im$rudent# "ut not $ur$osefully wasteful# investment of the $arties4 assets is not 5ustification for unequal

distri"ution.

E(A-,LE:

/ourt found an unequal award was 5ustified where the s$ouse de$leted assets "ecause of criminal char!es

a!ainst a $arty %hirin! lawyers to def char!es costs money).

E(A-,LE:

/ourt found an unequal award was 5ustified where the s$ouse en!a!ed in needless liti!ation# !am"led# or didn4t

contri"ute.

8>,&T8ET'/AL

3endy and 8ank were married in *GJ; when "oth worked for now defunct ,an Am7 8ank was a $ilot

while 3endy was a fli!ht attendant. 'n *GHH# the cou$le divorced# and the court ordered 8ank to $ay =;N

of the difference "etween 8ank4s $ension and 3endy4s $ension. 'n *GG;# ,an Am filed for "ankru$tcy# its

defined "enefit $ension $lan was canceled# and its assets were sold off to several other airlines. 8ank

went to work for a frei!ht airline# and has no retirement $lan7 3endy "ecame a fli!ht attendant for another

airline# and collects a retirement $lan from that com$any. They "oth retired this year# and 8ank has

$etitioned the court to seek =;N of 3endy4s $ension. 3ill the court !rant 8ank4s $etition

!. Alimony %&L '(. ?.)

*. The threshold for an award of alimony is "ased on:a.

. 3hat typesof alimony can the court award

DATE consideration: For an initial award of alimony 'eforeOuly *# ;*;# the court will use these terms:

a. Tem$orary Alimony:


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/annot "e waived

". ?rid!eBtheB@a$ Alimony:

c. ,ermanent ,eriodic Alimony:

d. Lum$ Sum Alimony:

%*) Lum$ sum alimony is not modifia"le %e2ce$t for fraud).

%) &nce an award is issued# the s$ouse receivin! it has a ested interestin the award# meanin! the o"li!ation

will not terminate u$on the death of the $ayin! s$ouse or u$on a contin!ent event such as the remarria!e of

the needy s$ouse.

%0) Lum$ sum alimony is a fi2ed amount of alimony# thou!h it can "e ordered $aid in installments over time.

e. +eha"ilitative Alimony

f. 9ominal Alimony

For an initial award of alimony afterOuly *# ;*;# the court will use these terms:

!. ?rid!eBtheB@a$ Alimony:

h. +eha" Alimony:

9&TE


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i. Durational Alimony:

%*) ,ur$ose is to $rovide a $arty with economic assistance for a set $eriod of time followin! a marria!e of short

or moderate duration &+ followin! a marria!e of lon! duration if there is no on!oin! need for su$$ort on a

$ermanent "asis.

%) -ay not e2ceed the len!th of the marria!e.

%0) &nce issued# this alimony cannot "e modified unless there is a su"stantial chan!e in circumstances.

%1) Terminates on death or remarria!e of receivin! s$ouse.

5. ,ermanent Alimony is awarded to a s$ouse who lacks the a"ility to "e self sustainin!.

%*) ,ermanent alimony is availa"le for:

%a) short term marria!es %;BJ years) if there are written findin!s of e2ce$tional circumstances7

%") moderate term marria!es %JB*J years) if a$$ro$riate u$on clear and convincin! evidence# and

%c) lon! term marria!es %*JP years) if a$$ro$riate.

%) 'n awardin! $ermanent alimony# the court shall include a findin! that no other form of alimony is fair and

reasona"le under the circumstances of the $arties.

%0) An award of $ermanent alimony terminates u$on the death of either $arty or u$on the remarria!e of the

$arty receivin! alimony.

%1) An award may "e modified or terminated "ased u$on a su"stantial chan!e in circumstances or u$on the

e2istence of a su$$ortive relationshi$ "y the su$$orted s$ouse.

*he amount of alimony award is entirely within the court+s discretion.

0. Factors /onsidered "y the /ourt in Determinin! the Ty$e# Duration# Amount of Alimony

a. The followin! factors are considered "y the /ourt in determinin! the amount of alimony awarded %LSAT FA/E):

%*)

%)

%0)

%1)

%=)

%)

%J)

%H)

%G) /atch All:

". +emem"er# the court factors all of these thin!s to!ether to fi!ure out the amount. This is unlike child su$$ort#

where the courts a$$ly a statutory ta"le# the amount of alimony is within the court4s discretion.


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1. Modification

a. 'n order to o"tain a modification of alimony# the s$ouse seekin! a modification must show a su'stantial change

of circumstances in either a $arty4s need or a"ility to $ay.

". The count considers the followin! factors in order to o"tain a modification. The chan!e must "e:

%*)

%)

%0) -aterial

%1)

%=) and somethin! that could not have "een contem$lated at the time of the divorce or dissolution.

c. An alimony 5ud!ment may "e reo$ened $ursuant to Florida Family Law +ule *.=1; if either s$ouse filed a

fraudulent financial affidaitso lon! as reo$enin! is moved for in a reasona"le $eriod after fraud is discovered.

d. Su$$ortive +elationshi$s

%*) 'f a $erson receivin! modifia"le alimony enters into a su$$ortive relationshi$# an award of alimony can "e

modified or terminated.

%) The followin! factors are considered "y the court in determinin! the e2istence of a su$$ortive relationshi$C:%a)

%")

%c)

=. Termination

a. @eneral rule:

". Alimony res$onsi"ilities cannot "e terminated in "ankru$tcy.

. Attorney4s Fees

a. 'n addition to awardin! su$$ort $aya"le from one s$ouse to the other# the /ourt uses the standard:

%*) A lawyer must not:

8>,&T8ET'/AL

?ar"ra and &liver married in ;;0. Two months "efore the weddin!# ?ar"ra has her lawyer# D4Amato#

draw u$ a marital a!reement that !ives her any home they "uy to!ether durin! the marria!e.

Additionally# &liver waived his ri!ht to all ty$es of alimony. The a!reement was validly e2ecuted. 'n

Fe"ruary ;;# ?ar"ra files for divorce. &liver $etitions the court for all ty$es of alimony. /an &liver !et

any alimony


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VI. PARENTING ISSUES: RESPONSIBILITY, PARENTING PLANS,

TIME SHARING AND CHILD SUPPORT

A. %eneral Principles %&L '''. ?.)

*. &verridin! $rinci$le:

a.

". 9o $resum$tion in favor of either $arent.

. Florida law states that it is in the "est interest of a child:

a.

".

0. "omponents of "hild Rearing in the *ime $haring Plan

a. Parental Responsi'ility ,decision-making component

%*) ,arental res$onsi"ility deals with the decisionBmakin! $rocess of "ein! a $arent. There are two main

conce$ts to know for $arental res$onsi"ility:

%a) $hared Parental Responsi'ility

*) Definition:

a) Ultimate +es$onsi"ility:

i) Areas of res$onsi"ility may include education# health care# and any other res$onsi"ilities

that the court finds unique to a $articular $arent.

") ,arallel ,arentin!# not necessarily =;=;:

%") $ole Parental Responsi'ility:

%c) The $resum$tion is that shared $arental res$onsi"ility is in the child4s "est interest. 'f you want to

reallocate $arental res$onsi"ilities# the "urden of $roof is on the $arty seekin! the chan!e.". TimeBSharin! Schedule and ,arentin! ,lans

%*) ,arentin! $lans sets out every as$ect of the child4s day to day life.

%) ,arentin! $lans and time sharin! were introduced into law &cto"er *# ;;H# re$lacin! the lon!Bstandin!

le!al conce$ts of custody# visitation# $rimary residential $arent and secondary residential $arent.

%0) A $arentin! $lan must "e a$$roved "y the court# and it must descri"e in adequate detail how the $arents will

share and "e res$onsi"le for:

%a) Tasks

%") Schedule

%c) 8ealthcare# school related matters and other activities


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%d) &utline of Technolo!ies Used to /ommunicate:

!. &n &ct. *# ;;J# the $arentBchild electronic communications statute came into effect which authori


18/33

a. $u'stantial change of circumstancesincludes:

". Standard of $roof: $arent has to show that su"stantial chan!e of circumstances is material/ significant/ and not

anticipatedat the time the ori!inal $arentin! $lan was ordered.

c. &nce a su"stantial chan!e of circumstances has "een demonstrated# all of the factors involved in makin! an

initial determination of what is in the "est interest of the child are considered.

d. -ilitary service statute:


19/33

BAR EXAM APPLICATION

Question *

A$$licants were asked to analy


20/33

1. Relocation

a. Definition:

". 'f $arents a!ree to the relocation# a written a!reement must "e si!ned with the followin!:

%*)

%)

%0)

%1)

-nemonic: /A3S

/ /onsent

A Arran!ements for trans$ortation

3 in 3ritin!

S Schedule reflectin! new time sharin!

c. 'f an a!reement has not "een reached# any $arent who is entitled to timeBsharin! must notify the other $arent if

he or she is $ro$osin! to relocate. The notice must include:

%*)

%) Date of the intended move

%0)

%1) ,ro$osal for $ost relocation time sharin! schedule# trans$ort

%=) Unknown info must "e u$dated

d. !urden of Proof:

%*) 'f that "urden of $roof is met# the "urden shifts to the nonBrelocatin! $arent to show "y a $re$onderance of

the evidence that the $ro$osed relocation is not in the "est interest of the child.

e. 3hen rulin! on a $ro$osed relocation# the court must consider all of the factors considered for $arentin! $lan

determination %"est interests)# as well as the followin! additional factors:

%*) 9ature of esta"lished relationshi$s with family near"y %includin! nonBrelocatin! $arent)

%) ,rimary care!iver

%0)

%1) ,reservin! $arent child relationshi$

%=)

%) Enhance life of relocatin! child

%J) ?etter quality of life for $arent %look for "ad faith# current economic situations of "oth $arents# hi!her $ayin!

5o"# etc.)

%H) Su"stance a"use of other history of a"use

%G)

E(A-

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-nemonic: ?est interests of the child P 3A@E+S

3 3ants of child

A A!e of child

@ @ood faith

E Esta"lished relationshi$s

+ +easons for move

S Su"stance a"use or other a"use history

=. @+A9D,A+E9TS6@rand$arents do not have the ri!ht to demand time sharin!a. 'n Florida:

. Su$ervised isitsTime Sharin!6Time sharin! %formerly called visitation) is only denied or su$ervised if detrimental

to the child.C

a. ,arents have the ri!ht to $ursue a meanin!ful $arentBchild relationshi$.C

". Thus# the $arent will had to have demonstrated conduct harmful to child or s$ousal a"use.

c. A re"utta"le $resum$tion is created for the nonBcom$lainin! $arent to overcome if:

%*) ,ast a"use &+

%)

E(A-

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22/33

BAR EXAM APPLICATION

Question

3ife has sole $arental res$onsi"ility for son# "ut 8us"and has some time sharin!. 3ife hatesC 8us"and and asks the court

for $ermission to move %so that she can !et away from 8us"and) and for 8us"and to have su$ervised $arentin! time.

Analy


23/33

". "hild $upport %&L '(. /.)

*. Duty

a. 'n Florida:

". 9either $arent can waive the ri!ht of child su$$ort on "ehalf of the child.

. /alculatin! /hild Su$$ort

a. Under federal law# states must $rovide courts with statutory !uidelines for determinin! the a$$ro$riate amount ofchild su$$ort. 9&TE: 'f a nonBresidential $arent !ains more than 1;N of time sharin!# court looks at "oth $arents.

%*) 9et income A9D

%)

". Deviation from the /hild Su$$ort @uidelines6The court has to $ut in writin! reasons if they deviate more than

=N. +easons why a court may deviate more than =N from !uidelines:

%*) /ourt cannot consider any social security income of child# "ut the court can consider if the child is a multi

millionaire.

%) 'f /hild has s$ecial needs# s$ecial interestsschools

%0) A court may deviate a"ove or "elow the !uidelines "y =N without 5ustifyin! that calculation.0. -odification of /hild Su$$ort

a. /hild su$$ort is modifia"le.

%*) 'n order to o"tain a modification of child su$$ort# the $arent seekin! a modification must show a su"stantial

chan!e of circumstances in either a:

%a) ,arty4s a"ility to $ay %need v. a"ility to $ay)

%") /hild4s needs

%c)

". Unlike alimony# the chan!e could have "een contem$lated at the time of the final 5ud!ment. For e2am$le# a "asis

for modification is the increased needs of older children# which is an event that can "e contem$lated.

8>,&T8ET'/AL

Frank and -arissa divorced. They had one child# -itch. Frank was ordered to $ay *;=N of the

!uidelines in child su$$ort. Frank runs an im$orte2$ort "usiness where shi$$in! costs !o u$

si!nificantly for several years strai!ht. Frank is nettin! less money. -arissa claims that Frank holds

si!nificant investments that will make u$ any shortfall issues Frank has. 8ow will the court rule


24/33

VII. RULES FOR HUSBANDS AND WIVES

A. %ender Roles in Marriage %&L '''. A.)

*. Traditional roles $rovided:

a. 8US?A9D

". 3'FE

. The Su$reme /ourt in the *GJ;s held:

a. States can assi!n ri!hts to hus"ands and wives# !enerally.

!. Rights and 0'ligations of 1us'ands and 2ies %&L '''. ?.)

*. Property Rightsa. Tenancy "y the Entirety: Florida law dictates that tenancy "y the entirety "e a default to married cou$les.

%*) This allows for the survivin! s$ouse to take ownershi$ of the $ro$erty without $assa!e throu!h $ro"ate

when one s$ouse dies.

%) This is $ermitted# "ut not required. Each s$ouse may acquire and maintain sole title to $ro$erty.

. 0'ligation to $upport

a. 'n Florida# each s$ouse has:

". Enforcement of su$$ort ri!hts

%*) Des$ite many states4 reluctance to enforce the duty of su$$ort a!ainst a s$ouse "efore a marria!e has "een

dissolved# Florida statutes $rovide for enforcement of family su$$ort o"li!ations.

8>,&T8ET'/AL

/atherine and 8eathcliff were married for *= years and have several children to!ether. ?oth /atherine

and 8eathcliff held equally hi!hB$ayin! 5o"s as $sychiatrists# and were more than a"le to meet the

family4s financial needs. 8owever# all the e2$enses of the family# includin! the mort!a!e# home

maintenance# food# clothin! and education for the children# and the family cars# were $aid entirely "y

8eathcliff. /atherine s$ent all of her income on thin!s that made her ha$$y.C Last year 8eathcliff

"ecame tired of this situation and demanded that 3anda $ay for the family4s new car. /atherine# u$set

that she can no lon!er afford her daily s$a treatments# has sued for nonBsu$$ort. 3ill the court find that

/atherine has a valid claim


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0. Marital Priilege

a. Florida does not reco!ni


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%)

%J)

%H) False 'm$risonment

%G)


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VIII. FILING, JURISDICTION, AND UCCJEA

A. Filing Procedure %&L '''. A.)

*. 3hen initiatin! an action for dissolution of marria!e %divorce)# a s$ouse will file a ,etition for Dissolution of -arria!e

alle!in!:

a.

". @rounds for su"5ect matter 5urisdiction

c.

d. +equest court to esta"lish a $arentin! $lan

e.

f. Ask for tem$orary alimony %if $etition was filed "efore Ouly ;*;)

!.

h. 'f you have a $renu$tial a!reement# ask court to enforce the a!reement.

!. 3urisdiction %&L '''. A.)

*. States must $rovide indi!ent s$ouses access to divorce. The indi!ent s$ouse needs to file for $au$er status and will

then "e entitled to a waiver of court fees.

. $u'4ect Matter 3urisdiction

a. 'n Florida:

". The s$ouse filin! for divorce does not have to "e the s$ouse who meets the residency requirement for su"5ect

matter 5urisdiction.

0. Personal 3urisdiction

a. Florida does not need $ersonal 5urisdiction over the nonBfilin! s$ouse in order to !rant a divorcedissolution or

determine issues related to time sharin!. Florida does need $ersonal 5urisdiction over the nonBfilin! s$ouse in

order to make the nonBfilin! s$ouse $ay s$ousal su$$ort# child su$$ort or other issues re!ardin! $ro$erty.

". 'f the nonBfilin! s$ouse does not reside in Florida# then the /ourt must look to Florida4s lon!Barm statute to assert$ersonal 5urisdiction. ,ersonal 5urisdiction will "e asserted if:

%*)

0R

%)

". 5""3(A ,5niform "hild "ustody 3urisdiction (nforcement Act %&L '''. A.)

*. U//OEA $ermits Florida to ad5udicate matters related to children %like a $arentin! $lan) without havin! $ersonal

5urisdiction in certain situations.

Test if Florida mi!ht have 5urisdiction under U//OEA.

a. To make custodytime sharin! determinations# Florida courts may have 5urisdiction if Florida the home state.

%*) 8ome State Test: lived in FL since "irth or at least lived in FL for the last months.

%) 'f Florida is the home state under this test# it can rule.

". 'f no other state is the home state# then does Florida have si!nificant connections %lived here for a very lon!

time# many relatives in FL)

c. 's Florida the most a$$ro$riate forum for this matter

d. 's Florida the default 5urisdiction Do other states want 5urisdiction 's there a more a$$ro$riate forumC

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28/33

e. Florida maintains 5urisdiction until the child %or "oth $arents) moves out of the state

. 'f Florida ruled on initial custody determination# Florida $ro"a"ly has continuin! 5urisdiction.

0. Florida can decline to e2ercise 5urisdiction %either in initial determinations or modifications) if:

a. Florida is inconvenient forum if: %factors)

". 3ould family "e "etter served elsewhere

%*) Len!th of time child resided outside of state

%)

%0) Another state court is more familiar with the case

c. Un5ustifia"le conduct

,ersonal Ourisdiction is 9&T required over the nonBmovin! $arty under the U//OEA.

%to decide time sharin!custody issues.)

1. 'm$osition of Su$$ort &"li!ations

a. /ourt must have:

=. Full Faith and /redit for /hild Su$$ort &rder Act:

Definition:

. Uniform 'nterstate Family Su$$ort Act:

a. E2$ands on most states4 lon! arm statutes.

". Allows for an order for child su$$ort can "e o"tained and enforced where a $arent and child live even if:

c. Florida4s !rounds for lon! arm 5urisdiction include:

%*) They serve the $erson in the state%)

%0) 'f they ever resided with the child in the state

%1) 'f they ever $rovided child su$$ort for child while livin! in the state

%=) 'f the child lives in the state as a result of their actions

%) 'f they ever had intercourse in the state and child was conceived

%J) 'f they asserted $aternity in $utative father re!istry

%H) Any other le!al "asis.

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29/33

IX. DETERMINING A CHILDS STATUS

A. Marital "hildren %&L '. A.)

*. Even with artificial insemination or in vitro fertili


30/33

d. 'f the dad did not interfere with the "iolo!ical father4s a"ility to assert his $arental ri!hts

e. /hild is under the a!e of *H when the father asserts his $etition to disesta"lish $aternity

0. A court can still deny a $etition to disesta"lish $aternity even if the dad is not really the father under certain

circumstances:

a. 'f the dad knew he was not the dad "ut married the mom and assumed $arental o"li!ations and $aid child

su$$ort

". 'f the dad knew he was not the father "ut acknowled!ed $aternity in a sworn statement

c. 'f the dad knew he was not the father and consented to "e on the "irth certificate

d. 'f the dad knew he was not the father "ut $romised in writin! to su$$ort the child and was required to su$$ort the

child "ased on that $romise &+

e. 'f the father received a statement from a state a!ency sayin! that he needed to su"mit to scientific testin! and the

father disre!arded the notice.

F. Adoption %&L '. /.)

*. Definition:

. ,rerequisites for Ado$tion

a.

".

c. ,arental ri!hts have "een terminated "y a court order %or are su"5ect to termination)

,eo$le may voluntarily !ive u$ their ri!hts or the court may take them away.

d. ,arents ho$in! to ado$t must under!o a home study:

%*) Determine suita"ility

%) -ust re$ort an intended $lacement of a minor for ado$tion with any $erson not a relative or ste$ $arent if:

e. AtB+isk ,lacement is when the minor is $laced in the $ros$ective ado$tive home "efore the $arental ri!hts of the

minor4s $arents are terminated.

f. "onsent

%*) 'f a child is more than si2 months old when $arental consent is !iven# the consent is su"5ect to a threeBday

waitin!revocation $eriod.

%) After the revocation $eriod has e2$ired# a court may void a $rior consent "ased on a findin! of fraud orduress.

%0) 'ssues arise if the mother consents# "ut the father does not.

%a) 'f the child is less than months old# the "iolo!ical father who o"5ects must take action "efore the

mother e2ecutes her consent to ado$tion and he must:

*) File:

) Show:

0) /ontri"uted to $re!nancy e2$enses

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31/33

%") 'f the child is more than months old# the court only requires the consent of the unmarried "iolo!ical

father if:

*)

) Took a measure of res$onsi"ility

0) @ave financial su$$ort

1) /ontact on re!ular "asis

0. Adopteesa. /hildren: children are eli!i"le for ado$tion if their $arents are deceased or have had their $arental ri!hts

terminated.

%*) /hildren over a!e * must !ive their consent to "e ado$ted# the court may override a refusal to consent if it

determines the ado$tion is in the child4s "est interest.

". Adults: 'n Florida# adults may ado$t other adults.

%*) For an adult to "e ado$ted:

%a)

%") 'f there is a s$ouse# the s$ouse must consent to the ado$tion in writin!.

%c) ?irth $arents:

c. Relationship of Adoptie "hildren to Adoptie Families

%*) -odern a$$roach to ado$tion:

d. Relationship of Adopted "hildren to !iological Families

%*) &nce an ado$tion is com$lete# an ado$ted child maintains no le!al connection to his "iolo!ical family

unless:

%a)

%") For ste$$arent ado$tions# the ado$tive child4s relationshi$ with the "iolo!ical $arent married to the

ste$$arent is fully maintained.

1. Adoptie Parents

a. 3ho isis not allowed to ado$t

%*) 8us"and and 3ife may ado$t a $erson 5ointly.

%)

%0)

%1) 9&TE: 'n Se$t ;*;# 0d D/A held "an on !ay ado$tion unconstitutional.". The hierarchy of $reference for ado$tion after death of $arent when "oth $arents have died and they have left no

will desi!natin! a !uardian for their minor child%ren)# or when a $arent4s $arental ri!hts have "een terminated# is

as follows:

%*) @rand$arents

%) &ther le!al relatives

%0) Unrelated $erson may ado$t# like foster $arents.

=. $urrogacy ,Pre-planned adoption

a. There are two ty$es of surro!acy

%*) *raditional surrogacy:


32/33

%a) The a!reement used is called a $re$lanned ado$tion a!reement.

*) 'n this a!reement# the volunteer mother a!rees to "ear a child and relinquish all $arental ri!hts.

%) %estational surrogacy:

%a) The a!reement used is called a !estational surro!acy contract "ecause the surro!ate has not $rovided

!enetic material and is there"y not considered a "iolo!icalC $arent of the child.

". 3ithin three days of the "irth of the child# the court is $etitioned to decide status. /ourt decides details of !enetic

material dis$osal.

c. Any $arty to a $re$lanned ado$tion a!reement may terminate the a!reement at any time.


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X. FAMILY LAW STATE V. FEDERAL PREEMPTION AND OTHER RIGHTS

A. %oerning law %&L '. A.)

*. 3hat kind of law a$$lies Family law $rimarily is:

a. Each state has its own rules# found in statutes and case law# !overnin! the ri!hts and o"li!ations of family

mem"ers and each other# as well as ri!hts "etween families and the state# $rovided that federal constitutional

ri!hts not violated. The state is em$owered to ad5udicate family issues.

". Even if a divorcin! cou$le resides in two different states %normally !ivin! rise to diversity 5urisdiction) there is a

domestic relations e2ce$tion that does not allow either $arty to "rin! the case in federal court.

. The Florida le!islature codified re!ulations re!ardin! family law in several cha$ters of the Florida Statutes. 8owever#

some FL Family Law rules from common law.

0. Florida Le!islature has ado$ted many uniform laws ado$ted "y all states. %E2am$les: D&-A# U//OEA# ta2

im$lications and other child s$ort enforcement rules.)

1. The United States Su$reme /ourt has held that the /onstitution $rotects some "asic familyBrelated ri!hts# and states

that try to infrin!e on these ri!hts must $rovide com$ellin! 5ustifications for doin! so# usin! the least restrictive means#

includin!:

a. Right to marry

".

c.

d. Right to use contraception

e.

f.

!.

h.

=. Local &rdinances:various munici$alities have enacted local re!ulations and ordinances that affect family

or!ani

Documents

- Vid FL Subjects I FamilyTOC