Term
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Definition
| consent, exchange of consideration via mutual promises, acceptance or imposition of rights and obligations associated with marriage |
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Term
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Definition
| cannot occur unless there is state intervention |
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Term
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Definition
| fundamental right under US constitution |
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Term
| Ceremonial marriage - two requirements |
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Definition
solemnizatoin (ceremony) and license
license - age
-must be at least 18
-if 16 or 17 need written consent of parents; but consent is not required if previously married, both parties are parents to a child in common, or female is pregnant
-under 16, must be approved by court; court has limited discretion and can only approve when child is pregnant
license - waiting period
-3 days between application date and effective date of license
license - handbook and course
-all parties must verify reception and reading of a handbook issued by FL state bar on marriage
-parties can take a course on marriage, which allows waiver of waiting period and reduces fee
license - basis for not issuing
-one party is married to someone else
-parties are related
-marriage is a sham
-parties are incapable of understanding act
solemnization
-judge, political official, or member of clergy can solemnize
-proxy marriage not valid |
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Term
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Definition
general requirements
-parties agree they are marriage
-cohabitate as husband and wife
-old themselves out to the public as if they are married
FL no longer permits common law marriages unless it occurred prior to 1968
-it can recognize a common-law marriage pursuant to full faith and credit from another state
requirements
-mental capacity
-hold themselves out as being married: must present themselves in present tense as common-law married |
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Term
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Definition
three ways
-divorce
-death
-annulment |
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Term
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Definition
-annulment voids a marriage
-common law based in FL
-impediment that forms basis of annulment must exist at time of marriage
-FL rule: child of an annulled marriage is not considered to be child of that marriage
void marriage
-as if marriage never happened
-does not require judicial dissolve
-any party may seek annulment: husband, wife, parent, guardian
-two bases: prior existing marriage, mental incapacity
voidable marriage
-requires a judicial degree
-only one of the spouses can seek an annulment
six grounds for voidable marriage
-incest
-age (overage party cannot seek an annulment and underage party cannot seek an annulment once they reach an age of majority or continues to chabitate)
-impotency: naturally and incurably impotent; exception: other party knows before marriage
-intoxication: either party was incapable of contracting due to alcohol or drugs; exception: parties cannot continue to live together because then it's ratification
-fraud, misrepresentation, duress, coercion, force: fraud must be present; continuing relationship after knowledge of fraud, etc. is considered to be ratification
-lack of intent: meant as a joke, but if marriage was later consummated, cannot be annulled
distribution of property
-courts try to place parties in same position as they were prior to annulled marriage
-alimony never available, but temporary alimony available
defenses
-no-fault
-laches: failure to seek annulment in timely manner
-ratification: conduct after defect is discovered
-recrimination (unclean hands)
-condonation: one spouse forgives the other |
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Term
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Definition
legal dissolution of marriage
grounds
-FL is no fault state; only grounds: marriage is irretrievably broken or incapacity
irretrievably broken
-court must make a finding that the marriage is irretrievably broken and need testimony of one spouse
-uncontested without minor children: court will enter dissolution
-contested or minor children: court may: 1) continue for 3 months to attempt reconciliation, 2) order counseling, or 3) order best interest actions
incapacity: one of parties was mentally incompetent
defenses to claim of irretrievably broken: denial of grounds (but good luck)
simplified dissolution procedure
-county court
-purpose is to do it without legal counsel
-requirements: no minor kids, wife not pregnant, all assets are amicably divided
-must file financial affidavit, financial disclosures and draft a settlement aggrement |
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Term
| Marital agreement - premarital agreement |
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Definition
-made before marriage
-deals with what happens in case of divorce or death
-relates to property division, alimony and attorney's fees
-subject to state of frauds
-pre-nups cannot determine child support or custody |
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Term
| Marital agreement - postnuptial |
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Definition
-made during marriage
-consideration is required
-may determine property division and spousal support
-may affect child support and custody, but may never adversely affect child's interest and must be in best interest of child
-not subject to SOF unless it involves land |
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Term
| Marital agreement - separation agreement |
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Definition
-for couples planning divorce
-often drafted during pendency of dissolution action
subject matters often include
-property division
-spousal support
-custody
-visitation
-child support
often merged into final judgment
court will accept if based on full and fair disclosure |
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Term
| Marital agreement - property settlement agreement |
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Definition
-done before decree
-settles economic issues
-must be intended to be final
-deals with both real and personal property
-may not be modified
-if parties reconcile or remarry, executed provisions are unaffected but unexecuted provisions are abrogated |
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Term
| Validity of marital agremeents |
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Definition
five elements
-in writing
-signed
-fair and reasonable
-voluntary
-based on full disclosure
full disclosure
-pre-num must be based on full disclosure
-parties must exercise meaningful choice or else court won't enforce agreement
-court won't enforce if unconscionable or if one party was not given fair and reasonable disclosure
-if a party did not waive their rights to disclosure and could not obtain adequate knowledge of finances or property of the other party, court will declare agreement invalid
-if agreement was initiated after completion of discovery and if all relevant information could have been obtained, then party cannot challenge agreement
fair and reasonable
-current trend: even if outcome seems unfair to one party, if disclosure was fair, court will enforce agreement
-factors to consider: age, health, wealth, etc.
-bases for unfair or reasonable are: fraud, duress, undue influence, mediator misconduct
-FL evaluates fairness at time of signing
voluntary
-must be free from duress
-factors considered: time pressure, opportunity to consult with counsel, prior business experience
-voluntariness requires: being informed of right to counsel and being given opportunity to consult with counsel
side issue: impoverished spouse
-if an agreement leaves a spouse impoverished, court may set it aside even if fair, reasonable, voluntary, and full disclosure |
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Term
| Modifying marital agreements |
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Definition
parties may always amend, revoke, or terminate marital agreements, but must be done by a written agreement
child support: court may always modify child support provisions even if the parties have included provision in the agreement that prohibits modification of child support |
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Term
| Marital rights - probate rights |
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Definition
parties may include provisions regarding probate rights
parties may waive rights previously conferred in a will |
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Term
| Domestic violence - abuse |
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Definition
can take form of
-assault
-battery
-sexual battery
-kidnapping
-stalking
-false imprisonment
-other acts that result in injury or death |
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Term
| Domestic violence - protected parties |
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Definition
-spouses (current or former)
-faux spouses (living together as spouses but not legally married)
-children
-anyone related by blood or marriage
-people residing together as if family
-people with child in common |
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Term
| Domestic violence - relief |
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Definition
primary form: injunction (temporary or general)
requirements
-act has been committed or reasonable belief of act to be committed
-under oath
-personal service has to be provided on D
-must be a hearing
temporary injunction
-takes place immediately
-petitioner affidavit is all that is needed
-only good for 15 days
-to become permanent need hearing
-must be reasonable belief of violence
general injunction
-court holds a hearing
-notice is served
-relief can be for a fixed period of time or until further order
-mutual injunctions are prohibited by statute
violation of injunction
-civil contempt, criminal contempt, civil damages, attorney's fees |
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Term
| Division of property - in general |
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Definition
-FL is an equitable distribution state
-equitable does not mean equal
-courts will start by defining equitable at 50-50 split; court has broad discretion to move from middle mark
-court may divide property without consideration of alimony
-cash may be awarded in lump sum or through installments |
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Term
| Division of property - FL family law rules |
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Definition
require
-financial affidavits filed by both parties
-tax returns of last 3 years
-pay stubs of 3 months of current income
-loan applications
-financial statements for past year
parties have an ongoing duty to disclose |
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Term
| Division of property - marital property |
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Definition
-all property acquired during the marriage
-includes increases to non-marital property that resulted from either a spouse's efforts or an improvement due to marital funds
-gifts between spouses are marital property
-pensions, insurance and other benefits: accrual is marital property
-the titling of something is not determinative of whether it is marital property |
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Term
| Division of property - material debts and liabilities |
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Definition
| court divides marital debts and liabilities equitably |
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Term
| Division of property - exceptions to marital property |
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Definition
-property acquired before the marriage
-property acquired specifically excluded as marital property pursuant to valid agreement
-property acquired by gift (except between spouses)
-property or income derived from non-marital property during marriage, unless income from marriage was commingled with it |
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Term
| Division of property - factors in distribution of marital property |
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Definition
-length of marriage
-economic circumstances of each spouse
-contribution of each spouse during marriage (homemaking and childrearing are considered contributions)
-contributions to education or career of other spouse
-interruption to spouse's career or education
-interest of one spouse to retain an asset (business)
-spousal contribution to production of income
-intentional destruction of an asset
-retaining marital residence for kids
-any other factors the court finds necessary and just |
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Term
| Division of property - specific types of marital property |
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Definition
professional license or degree
-not distributable property
-may affect alimony or distribution of marital assets
retirement or pension benefits
-considered marital property and are subject to equitable distribution
-also includes military benefit
-only present value
personal injury claim proceeds
-depends on nature of award
-compensatory damages: not material property, not subject to distribution
-consortium losses: not distributable
-lost wages: distributable (but any part of lost wages after divorce is not distributable)
goodwill
-considered marital property if developed during marriage
-intangible in nature
expectancy
-possible future interest (inheritance): not distributable |
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Term
| Division of property - interim distribution |
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Definition
-court can order interim distribution of property during pendency of divorce
-only can be made upon showing of good cause
-will be credited in final allocation of property |
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Term
| Division of property - final determination |
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Definition
| final property settlement agreements cannot be modified unless the final agreement was based on fraud, in which cause a motion must be filed within 1 year |
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Term
| Divorce - attorney's fees |
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Definition
-court may award attorney's fees to either spouse
-court will consider fund of each spouse
factors considered
-duration of litigation
-scope and history of litigation
-prior litigation between parties
-harassment |
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Term
| Spousal support - in general |
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Definition
-called alimony in FL
-support in form of income
-courts award alimony if one spouse cannot support their own needs with employment
-can be awarded at any time (during and/or after the marriage)
-can be awarded for any length of time
-cannot be discharged in bankruptcy
-can be waived for consideration |
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Term
| Spousal support - factors |
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Definition
1) financial resources
-considers financial resources of payee (person who will receive alimony) and payor
-assets and property, non-marital assets, child support payments, and earning potential of the parties
2) standard of living during the marriage
3) time: to help payee find a job or gain further education
4) length of marriage
-short term: 0-6 hears
-moderate term: 7-16 years
-long term: 17 years or longer
5) contributions to marriage
-particularly those that enhanced earning potential of other spouse
-ex: homemaking, child care
6) age and health
7) marital misconduct
-adultery can be considered in support determinations, but look at whether the adultery reduced the marital assets
8) children: future responsibilities each has to common minor children
9) sources of income: ALL
10) taxes: taxes and tax consequences |
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Term
| Spousal support - insurance |
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Definition
| court can protect future alimony payments by ordering payor to get a life insurance policy |
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Term
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Definition
bridge-the-gap alimony
-awarded to help a party transition to being single
-must be legitimate and specific to short-term needs
-may not exceed 2 years
-may not be modified
-terminates upon death of either party or remarriage of party receiving alimony
rehabilitative alimony
-for a limited time
-to help establish spouse with new education, training, or employment
-purpose: improve earning capacity of dependent spouse
-plan must be specific and defined
-may be terminated or modified if substantial change in circumstances
-remarriage does not necessarily terminate rehabilitative alimony, but factor to consider
permanent alimony
-for remainder of dependent spouse's life
-provide for the needs and life necessities of dependent spouse
-likelihood: long-term marriage most likely, moderate term only if appropriate based on factor, short term only if exceptional circumstances exist
-court must find no other forms of alimony are fair and reasonable
-modification or termination: substantial change in circumstances
durational alimony
-court orders economic assistance
-only awarded if no other forms of alimony are suitable
-only for a short period of time
-usually only follows short-term or moderate-term marriage; only applies in long-term if no other need for permanent
-cannot be longer than the length of the marriage
-amount may be modified if substantial change in circumstances
-length can only be modified under exceptional circumstances
pendent life (temporary) alimony
-applies from time of separation to time of dissolution
-put parties on equal footing
-may vacate, modify, or set aside for good cause
-retroactive modifications may go back to: entry of temporary order or petition filing date, but not back to time of separation
-temporary alimony cannot be contracted away
palimony
-unmarried co-habitants
-relationship was long and stable
-FL does not recognize |
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Term
| Spousal support - modification - in general |
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Definition
-alimony may be modified even if permanent
-cannot be modified if alimony was not originally ordered by court or if court did not reserve ruling on it
-movant has burden of showing significant change in circumstances
-voluntary income reduction does not reduce support obligation |
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Term
| Spousal support - modification - death |
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Definition
-support usually continues until death of a spouse
-payor's obligation usually not included as obligation of estate, unless specified by court |
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Term
| Spousal support - modification - remarriage |
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Definition
-if receiver remarries, court may terminate support, but not automatic termination
-if second marriage is annulled, support obligation from first marriage/divorce is not revived |
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Term
| Spousal support - modification - cohabitation |
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Definition
if receiver cohabits with non-family member, support may be modified or terminated, but not automatic termination or modification
factors considered
-how long has recipient lived with other spouse
-have they held themselves out as married and for how long
-both jointly contribute to property or real estate
-did they both support children of other
-how much do they support each other: financially or services
cohabitation does not terminate pendant light or temporary support |
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Term
| Spousal support - modification - voluntary retirement |
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Definition
| FL courts will consider this as a factor when determining whether substantial change in circumstances |
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Term
| Divorce - jurisdiction - durational residency requirements |
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Definition
-1 spouse must have 6 months of residency in FL
-spouses need not be physically present in FL for that period
-court looks to intent, shown by DL, voter registration card, and/or testimony of third party |
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Term
| Divorce - jurisdiction - divisible and ex parte divorces |
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Definition
under doctrine of divisible divorce, if court has subject matter jurisdiction and personal jurisdiction over one party
-court can grant divorce
-court cannot rule on property, alimony, child support, etc.
court needs PJ over both parties to rule on those matters |
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Term
| Divorce - jurisdiction - indigent parties |
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Definition
| FL doesn't require indigent to pay fees and costs, but not entitled to right of counsel |
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Term
| Divorce - jurisdiction - full faith and credit |
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Definition
| FL gives FF&C to a divorce from another state that affects FL property so long as other state's actions will be considered valid in fl |
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Term
| Divorce - tax consequences - taxes during marriage |
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Definition
| married couples are jointly and severally liable for tax obligations unless innocence is shown in fraud or wrongdoing |
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Term
| Divorce - tax consequences - tax consequences of equitable distributions |
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Definition
-equitable distributions are not taxed as regular income
-property transferred is tax-free |
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Term
| Divorce - tax consequences - tax consequences of alimony |
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Definition
| alimony is taxable income to recipient and not tax deductible to payor |
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Term
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Definition
parents are responsible for supporting their children
an action to prove paternity may be brought by
-mother
-expectant mother
-child
-any believing father
if paternity is ordered/affirmed, costs may be awarded for
-birthing costs
-medical expenses
-attorney's fees
-child support
-custody
-time sharing
if father fails to file for paternity under FL Putative Father Registry, he may be estopped from rebutting a petition for termination of parental rights |
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Term
| Paternity - genetic testing |
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Definition
-most common way to determine paternity
-court may order genetic testing of child, mother, and possible dads
-if indigent, state must pay for D's test
-results must be filed with court within 10 days
-95% or greater means presumptive paternity
-if test says not father, dismissed with prejudice |
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Term
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Definition
| no time limit on filing of paternity petition except time limit is substantially related to government's interest |
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Term
| Paternity - marital presumption |
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Definition
-Married woman has child, husband is presumed father
-marriage annulled - child no longer of marriage in FL
-child born within 9 months of divorce or husband's death, child is marital
-child support established in final decree (divorce) - final determination of paternity
-irrebuttable presumption of paternity: artificial insemination during marriage and husband and wife consented |
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Term
| Paternity - acknowledgement |
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Definition
| father must pay child support if he expressly acknowledges in writing |
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Term
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Definition
if husband is not father, he may be estopped from denying to pay child support if:
-he represented he would pay child support
-wife relied on that representation, and
-wife suffered economic detriment |
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Term
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Definition
| 4 years, run from time of child's majority |
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Term
| Paternity - disestablishment of paternity |
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Definition
if man has been paying child support payments, he can terminate those payments if
-newly-discovered evidence comes to light that he is not father
-affidavit is filed
-new evidence excludes the man, and
-man is current in child support
relief must be granted
-when child is under 18
-testing was accurate
-man did not adopt child
-child was not from artificial insemination during marriage, and
-man did not thwart biological father from asserting rights
relief cannot be granted if
-man voluntarily acknowledged paternity
-married mother and voluntarily assumed parental obligations
-voluntarily expressed to support child, or
-disregarded official notice of testing |
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Term
| Paternity - PJ over out-of-state parent |
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Definition
to establish PJ over out-of-state parent to enforce child support obligations or determine parentage:
-personal service on D
-consent of D parent
-current residency with child in state
-past residency in state with paying expenses or support of child
-child resides in state at direction of D
-conception: D had sex in state and may have resulted in child
-D asserted parentage in putative father registry, or
-other bases consistent with federal and state constitution |
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Term
| Parental responsibility and time-sharing - in general |
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Definition
-BOTH parents have parental responsibility and time-sharing rights
-each minor child - frequent and continuing contact with both parents
-encouraged to share the rights, responsibilities and joys of raising their children
-if parents cannot work it out, courts will order a time-sharing schedule in the best interest and welfare of the child
NOTE: custody is now referred to as parental responsibility |
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Term
| Parental responsibility and time-sharing - shared parental responsibility |
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Definition
-both parents must be willing and able to cooperate with one another regarding well-being of the child
-FL prefers shared parental responsibility unless it is not in the best interest and welfare of the child
-neither parent has a superior right |
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Term
| Parental responsibility and time-sharing - sole parental responsibility |
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Definition
-shared parental responsibility is not in the best interests and welfare of the child
-other parent is unfit and unable to provide care
-one parent has all decision-making rights
-need decree from jduge |
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Term
| Parental responsibility and time-sharing - parallel shared parental responsibility |
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Definition
| -court splits decision making based on subject matter in which one parent has a special knowledge or skill (medical or educational knowledge0 |
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Term
| Parental responsibility and time-sharing - time sharing |
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Definition
-plan that specifies when a parent will be with a child at certain times
-includes overnights, holidays, birthdays, school breaks, etc.
-guidelines for activities, education, childcare, foreign travel, etc.
-court establishes schedule if parents cannot agree |
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Term
| Best interests and welfare of child standard - rule |
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Definition
default rule: parent is in the best position to care for a child, unless deemed unfit
FL: one parent should be selected as primary residence |
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Term
| Best interests and welfare of child standard - factors considered by the court |
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Definition
-ability of parents to provide basic needs
-health of parents
-willingness to promote relationship with other parent
-continuity in child's life
-primary care taker prior to litigation
-wishes of child if at a mature age
-geographic location of each parent and travel time
-history of domestic violence
-ability to protect child from litigation |
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Term
| Best interests and welfare of child standard - other considerations |
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Definition
race or religion
-race may not be a factor
-religion may be a factor
parents' sexual conduct
-court may not consider sexual orientation, unless determined it will have negative impact on child
third-party rights
-legal parents presumptively get parental responsibility unless: deemed unfit, detrimental to child, or parent's rights have been determined
-stepparent or grandparent have priority over stranger
-nonparents cannot bring parental responsibility proceedings unless part of a dependency hearing
child's preference
-may be considered if of sufficient maturity
-no statutory age
-child in a contested case will never be brought to court, deposed, or brought to a deposition unless ordered by court, which needs good cause
guardian ad litem: legal counsel may be appointed for child
siblings: court avoids separating siblings
domestic violence
-must be considered in determining parental responsibility
-conviction (first degree misdemeanor or higher) creates rebuttable presumption of detriment to child
-child support still owed
parenting course: each party must complete a court-approved course
parenting plan
-if parties cannot agree, court will develop a plan
-court can appoint parenting coordinator to facilitate development of parenting plan
fostering relationship
-court can require, in the order, that each parent foster a loving relationship between child and other parent
keeping children safe act
-creates rebuttable presumption that a parent who committed or allegedly committed sexual abuse or contact with child is contrary to best interests
social investigation
-court may order department of children and family services to conduct investigation
-interviews, psychological evaluations, home visits, etc. |
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Term
| Enforcement of parental responsibility order |
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Definition
remedies
-order additional time to make up for missed time, if in best interests of child
-award attorney's fees, court costs, community service
-cannot deny visitation for failure to pay child support
restrictions on removing child from state
-if there is a reasonable risk that child might be removed from state, court can order that risky parent post bond or surrender child's passport |
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Term
| Modification of parental responsibility order |
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Definition
standard
-FL: change in circumstances standard
-must be substantial, material, and unforeseen from prior order
-must be permanent, involuntary, material, and unforeseeable at time final judgment was entered
-must be in best interest of child and promote stability
relocation
-if more than 50 miles: need written consent from any party who has time-sharing with child or court order
-must show proof of employment and that relocation is in best interests and welfare of child
-failure to comply with pre-relocation approval can subject violator to contempt proceedings, as well as compel child's return to FL; can affect modification of parenting plan
relocation: modification factors considered by court
-involvement of both parents with child
-age and need of child
-current employment and financial circumstances of parents
-child's preference
-movant's history of promoting parental time
-enhancing effect of child's life
-motive of each parent
-whether child support payments are current
-any domestic violence history
military service
-court may only modify order temporarily
-must be clear and convincing evidence that relocation is in best interest of child
-must revert back to original order after end of deployment |
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Term
| Termination of parental responsibility order |
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Definition
order terminates upon
-death of parent
-majority (18 years old) of child |
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Term
| Visitation and parenting time - in general |
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Definition
-visitation is in the best interests of the child
-denying visitation is very unusual; only if seriously endangers child |
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Term
| Visitation and parenting time - third parties |
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Definition
-may seek parenting time in some interests
-compelling state interest is required to give grandparents rights
-statutory provisions for grandparents are unconstitutional |
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Term
| Visitation and parenting time - sexual relationship or cohabitation |
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Definition
| cannot restriction visitation based on this unless adverse impact on child |
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Term
| Visitation and parenting time - HIV/AIDS |
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Definition
| court cannot deny visitation or parenting time due to HIV/AIDS |
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Term
| Visitation and parenting time - electronic communication |
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Definition
-cannot supplant in-person contact
-rebuttable presumption in favor of reasonable telephone communication - must be ordered |
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Term
| Uniform Child Custody Jurisdiction and Enforcement Act |
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Definition
-purpose is to prevent interstate jurisdictional disputes
-enacted in FL
-court must possess SMJ |
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Term
| Parental Kidnapping Prevention Act |
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Definition
| applies to kidnapping cases and interstate parental responsibility disputes |
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Term
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Definition
-needed in certain circumstances, like medical procedures
-religious beliefs: can contradict what is in the child's best interest; courts can intervene and declare that child has been neglected
-parents may not erode child's constitutional rights: parenting rights are not absolute |
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Term
| Child support - in general |
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Definition
-both parents are legally required to support minor children
-equal responsibility unless circumstances dictate otherwise
-based on child's needs, not parents ability to pay
-support until 18 years except it can go to 19 if full-time working on diploma or further extension if physical or mental condition disables child |
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Term
| Child support - child's right to support |
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Definition
-right to receive belongs to child
-parties cannot bargain away child support
-parents can agree regarding payments, but cannot release or reduce overall child support obligations |
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Term
| Amount of child support - in general |
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Definition
-adopted child support guidelines to calculate child support payments
-based on any source of income
three public policy principles guide child support
-parents fundamental obligation to support children
-combined income as if intact home
-minimize litigation
both parents must file financial affidavits and child support guidelines worksheets |
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Term
| Amount of child support - calculating child support |
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Definition
-based on income share model
-as if all continued to live together
method
-add both incomes: child support determined
-allocation of responsibility per respective net income
-rebuttable presumption that calculation is correct
-failure to file a financial affidavit results in court imputing income
-party seeking to impute income of another must: prove non-compliance is voluntary and identify amount imputed
-NOTE: voluntary underemployment/unemployment differs from temporary voluntary income reduction (going to college) |
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Term
| Amount of child support - guidelines |
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Definition
-although rebuttable presumption that amount is correct, court may deviate up or down by 5%
-if more than 5% court must set out specific findings why
factors considered to warrant deviation
-child's age
-unusual needs of child
-standard of living
-station in life
-financial status of each parent |
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Term
| Amount of child support - medical insurance |
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Definition
-all child support orders must provide for health insurance unless it is not accessible or reasonable in cost
-cost is unreasonable if it exceeds 5% of gross income of insuring parent
-court must include provision for uncovered medical and dental expenses; usually split between parties
-court can order union or employer of one of parents to provide insurance for the kids |
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Term
| Amount of child support - post-secondary obligation |
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Definition
-no obligation to pay for post-secondary education
-exception: mentally or legally independent after 18 or may agree to pay for it |
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Term
| Amount of child support - subsequent children |
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Definition
-if subsequent child is born, not factored in
-subsequent children only considered regarding increase in child support
-NOTE: if parent has subsequent child and takes second job specifically to help support second child, court may disregard second job and income resulting from it in determining child support for first child |
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Term
| Amount of child support - childcare costs |
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Definition
| courts will allow these costs to be credited and deducted in calculations |
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Term
| Modification of child support - substantial change in parent's circumstances |
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Definition
examples:
-change in occupation
-increase in income
-decrease in health
-remarriage that creates additional obligations
substantial change defined as either a 15% or $50 difference in resulting calculations (whichever is greater)
following factors are considered
-obligor (payor) change in financial abilities
-changes in needs of party
-needs of child
-if health insurance is now available to one party |
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Term
| Modification of child support - change in child's circumstances |
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Definition
modifications may occur if
-child dies
-is emancipated
-gets married
-joins armed services
burden is on movant
-retroactive to date of motion filed |
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Term
| Modification of child support - incarceration |
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Definition
-if obligor/payor is imprisoned, he must file petition
-child support is suspended
-monies due are still calculated
-once released, court will hold hearing to determine realistic method of payment of past due, current and future support |
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Term
| Termination of child support |
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Definition
Support automatically ends when:
-child turns 18 (but special circumstances of disability, or child is between 18-19 and still in high school)
-child marries
-termination of parental rights
-child dies
*if question is about child emancipation, discuss totality of circumstances |
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Term
| Jurisdiction for modification of support |
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Definition
only two ways to move jurisdiction
-neither party nor child live in court of continuing jurisdiction, or
-by agreement of parties
if neither bases are present, new state should not modify a child support order |
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Term
| Enforcement of child support awards - in general |
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Definition
enforced through
-civil contempt orders
-income withholding (wage garnishment)
-withholding tax refunds
FL has central depository
-3% handling fee
-parties can agree to opt out of depository and pay on their own
-funds forwarded to state disbursement unit |
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Term
| Enforcement of child support awards - withholding income |
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Definition
-if default occurs, employer is notified of wage garnishment order
-15 days notice must be given to obligor
-obligor may request a hearing; if no hearing, order goes into effect in 2 weeks |
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Term
| Enforcement of child support awards - civil contempt |
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Definition
-violation of court order is required
-fine or incarceration can result
-notice and opportunity to be heard are required
-willful failure to pay is a first degree misdemeanor |
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Term
| Enforcement of child support awards - criminal contempt |
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Definition
-jail term for willful failure to pay
-must be proved beyond a reasonable doubt |
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Term
| Enforcement of child support awards - child support recovery act |
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Definition
-federal crime to willingly fail to pay child support for child in another state
-but only if over 5k owed or if unpaid for more than a year |
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Term
| Enforcement of child support awards - other sanctions |
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Definition
-intercept tax refunds
-suspend DL
-suspend professional licenses
-report to credit bureau
-seize property or assets
-attorney's fees |
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Term
| Enforcement of child support awards - enforcement in other jurisdictions |
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Definition
-Uniform Interstate Family Support Act
-adopted in all states
-created to simplify collection in another jursdiction |
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Term
| Full Faith and Credit for Child Support Orders Act |
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Definition
court must give FFC to other court's child support as long as
-original court had SMJ and PJ
-notice was given
-opportunity to be heard |
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Term
| Voluntary termination of natural parent's rights - parental consent - in general |
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Definition
-biological fathers may voluntarily give up rights and consent to adoption
-if biological parent is less than 14 years old, must be witnessed by parent/guardian
-if biological parent is over 14, can give up consent on own
-consent cannot be revoked when biological mother reaches age of majority |
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Term
| Voluntary termination of natural parent's rights - parental consent - consent of fathers |
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Definition
5 ways to determine if father has right to consent/object
-married to biological mother at time of conception
-filed affidavit of paternity or listed on birth certificate
-father timely acknowledges paternity
-previously adopted the minor child
-court determined him to be the father
NOTE: if man is determined to be the father due to marital presumption and a second man also claims to be father and has consistently paid child support, then second man's consent is needed as well |
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Term
| Voluntary termination of natural parent's rights - parental consent - consent by failure to register |
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Definition
-if putative father (assumed) has made no commitment to parenthood, may be denied right to consent
-no denial of rights if father made a commitment (relationship or money)
-registering with putative father registry preserves right to consent |
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Term
| Voluntary termination of natural parent's rights - parental consent - notice |
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Definition
-if biological mother identifies biological father, adopting agency must give notice
-biological father has 30 days to claim paternity
-fathers consent not required if he filed instrument of denial |
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Term
| Voluntary termination of natural parent's rights - abandonment |
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Definition
no adoption consent required if child is abandoned
factors deeming abandoned
-parents make no provision for child's support and fail to establish relationship with child
-incarceration for violent crime
-incarceration for majority of child's minor life
-court determines that relationshpi is detrimental to child |
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Term
| Voluntary termination of natural parent's rights - additional consent |
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Definition
-need child's if older than 12
-physical custodian must also consent, if not biological parent
-anyone who is entitled to have custody, but doesn't |
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Term
| Voluntary termination of natural parent's rights - execution of consent |
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Definition
-biological mother cannot consent earlier than 48 hours after birth
-biological father may consent anytime after birth |
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Term
| Involuntary termination of parental rights |
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Definition
-only a court can involuntarily terminate parent's rights
-counsel must be provided
grounds for involuntary termination
-abandonment
-threat to child
-sexual abuse
-lengthy incarceration
-in utero drug/alcohol exposure
-rights to child's siblings were terminated |
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Term
| Dependency cases - overview |
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Definition
-state has responsibility for welfare of children in the state
-dependency proceedings being when child is sheltered (means removed from parents/guardian custody); removal is probable cause of abuse, abandonment or neglect
-trial will be held; must be proven by a preponderance of the evidence that child is dependent on the state
if child is adjudicated dependent
-case plan is entered for parents
-if parents comply and child has been safe for 6 months, case can be terminated
-if parents fail, child permanently placed in another's case |
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Term
| Dependency cases - preliminary dependency proceedings |
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Definition
Department of Children and Families investigates reports of abuse
duty to report: anyone who has reasonable cause to suspect abuse, neglect or abandonment must report
acceptance of report: perpetrator must be a parent, legal custodian or person responsible for the child
investigation must start within 24 hours
removal will occur if sworn testimony or probable cause
shelter hearing
-if no probable cause, child must be returned to parents
-if probable cause, shelter hearing must be held within 24 hours |
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Term
| Dependency cases - dependency proceedings |
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Definition
petition: can be filed by DCF attorney or person who is alleging facts regarding situation
notice must be provided to
-DCF
-parents/guardian
-petitioner
-child
-guardian ad litem
right to counsel: parent must be advised of right at every stage of proceedings
jurisdiction: court continues to have jurisdiction unless child is returned to parents for 6 months, turns 18 or is adopted
arraignment:
-parents respond to allegations
-must occur within 28 days of shelter hearing or 7 days after dependency petition is filed
disposition hearing
-court receives a case plan, predisposition study, and other evidence
-court enters order where child will live
-approves case plan and what parents need to do to correct situation
post-disposition proceedings
-judicial review held within 90 days of case plan approval
-review compliance with case plan |
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Term
|
Definition
-previous parent-child relationship is terminated
-new parent-child relationship is created
-parties may adopt children or adults
before adoption of minor can occur, biological parents' rights must be terminated
-adoption agency must be used, unless adoption is by a relative or stepparent
-minor cannot be placed in an adoptive home until a preliminary home study approves of the home; must occur within 1 year of such placement
-if no adoptive home is available, minor must be placed in a licensed foster care home |
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Term
| Adoption - adoption relationship |
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Definition
-records are sealed
-within 30 days, new birth certificate is issued
-once completed, child is adopted for all purposes |
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Term
| Adoption - payment of money |
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Definition
FL prohibits payment to a natural parent for an adoption; exceptions
-pregnancy costs
-living expenses for 6 weeks after birth
-legal fees
-but can't exceed 5k
FL allows for "baby brokers"
-written acknowledgement that broker represents adoptive parents
-required to be given to all who must consent
-failure is a third-degree felony |
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Term
| Adoption - persons eligible to adopt |
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Definition
-unmarried adult
-married couples adopting together
-married person (stepparent) if spouse is other parent and approves
-adoption by gay adults is no longer prohibited
-disabled persons may adopt as well so long as capable of care
adopting an adult:
-adult adoptee must consent
-spouse of adoptee, if there is one, must consent |
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Term
| Adoption - termination of parental rights |
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Definition
-full evidentiary hearing is required
-standard: clear and convincing evidence |
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Term
| Adoption - voiding order that terminated parental rights |
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Definition
| may be voided if movant falsely provided information |
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Term
| Adoption - petition for adoption |
|
Definition
when to file: at least 60 days after termination of parental rights, unless relative is adopting
where to file: county in which
-child resides
-petitioner resides
-agency that is housing child is located, or
-same court that entered termination of parental rights |
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Term
|
Definition
-adoptive parents have all rights and responsibilities of biological parents
-adopted children have all rights and responsibilities of marital child
-biological parents have no right of visitation, but court can require communication between nonadopted siblings |
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Term
|
Definition
-FL prohibits Ks for sale or transfer of fetus
-However, non-binding, pre-planned adoptions are permissible
-payments to birth mom are prohibited, except can pay for medical expenses, living expenses, adoption costs |
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Term
|
Definition
-FL has procedure to provide guardians for incapacitated people
-court must determine guardianship is necessary by clear and convincing evidence
-individual must receive notice and has a right to counsel
incapacitated person may lose significant rights
-vote
-drive
-marry
-consent to medical care
-right to K
rights retained
-be treated humanely
-communicate with others
-legal counsel
-have visitors
-be as independent as possible
-receive information about all proceedings involving them
guardians must be court appointed
-may only exercise rights specifically in vested in the guardian
-must file an annual report |
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