Term
| Breach of Promise to marry |
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Definition
Few states permit an action for breach of promise to marry which enables A to revoke damages from B, if B terminates the engagement
Origin is found in early English Tort and Contract Law
the action is HYBRID-quasi contract and qausi tort-raising questions about the nature of damages, SOL and abatement of action on death |
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Term
| heart balm/anti heart balm statute |
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Definition
heart balm suits were common law suit for breach of K to marry that awarded $$ to mend a broken heart. FL statute abolished actions for breach of K to marry
FL Law: 771.01 abolished the COA for breach of K to marry. One cannot recover sums of money damages for breach of K to marry. Also abolished tort actions including alienation of affections, criminal conversation, seduction or breach of K to marry.
771.07 one who files or threatens to file this COA guilty of misdemeanor of the 2nd degree. attorney will recieve punishment along with client. |
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Term
| gifts in contemplation of marriage-engagement ring |
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Definition
an engagement ring is pre-marital property because it is acquired prior to the marriage but once the marriage happens it vests (non-marital property)
property of the man until the wedding. If called off man gets ring back upon marriage ring belongs to woman. CL rule: fault based. If woman unjustifiably ended engagment, or it was mutual the man could get the ring back. Modern tred is to minimize the importance of fault in breaking the engagement.
The ring is a CONDITIONAL gift. if the condition which is the marriage does not occur then the condition was not met and therefore the wife could not have the ring (the gift is vested upon the occurrence of the marriage) |
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Term
| antenuptial agreements-modern trend |
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Definition
| courts are increasingly recognizing premarital agreements |
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Term
| antenuptial agreements-limitation |
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Definition
| parties may not enter into an enforceable agreement about CHILD SUPPORT or CHILD CUSTODY |
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Term
| Antenuptial Agreements--formalities |
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Definition
| SOF requires that premarital agreement be in writing and signed by the party to be charged |
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Term
| antenuptial agreements-scope |
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Definition
| the trend is to broaden the scope of premarital agreeements in terms of what property rights are affected |
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Term
| premarital agreement distinguished from other contracts |
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Definition
Differ from ordinary contracts in that the parties are not at arm's length and premarital agreements are executor
contracts during marriage: according to the traditional rule, the parties during the marriage may not regulate by private contract their marital rights and responsibilities
separation agreements: parties enter into a premarital agreement BEFORE the marriage and separation agreement AFTER they have decided to temrinate the marriage |
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Term
FLORIDA PRENUPS
Uniform Premarital Agreement Act--under FL §61.079 |
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Definition
an agreement between perspective spouses made in contemplation of marriage and to be effective upon marraige.
a premarital agreement is not enforceable if the party against whom enforcement is sought proves that the party did not execute the agreement VOLUNATILY or the agreement was UNCONSIONABLE when it was executed. Furthermore it must be in writing and signed by both parties to create, amend, revoke or abandon the contract |
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Term
Florida's Prenups
§61.079--content
what it can include |
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Definition
| a martial contract CAN include: equitable distribution which is the distribution of wealth and property, alimony (spousal support): may be modified or waived but can't make the spouse eligible for public support. |
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Term
Florida Prenups
§61.079-content
what it cannot include |
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Definition
| a marital contract CANNOT include: temporary alimony (when still lawfully married and there is an obligation to provide for the spouse), nothing about the children (therefore, no child support, custody, or visitation clauses) |
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Term
Florida Prenups
61.079
Enforcement of prenutial agreements: Pre 2007 |
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Definition
| a prenuptial agreement is unreasonable when involuntarily, due to fraud, duress, or coercion, or there is no disclosure of the financial status of the other spouse |
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Term
Florida's Prenups
§61.079
enforcement of prenutial agreements: pose 2007 |
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Definition
| Unconscionable if the agreement is made involuntarily or due to fraud, duress, coercion or if it was overreaching, or if there is no actual knowledge and no waiver of knowledge |
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Term
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Definition
| if a marraige is determined to be void, an agreement that would otherwise have been a pre-marital agreement is enforceable BUT only to the extent necessary to aboid an inequitable result |
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Term
Florida prenups
61.079 Breakdown pre2007 |
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Definition
UPAA applies to agreements made prior to 2007.
1. Vountary
2. Attorney not required, but recommended
3. Fair and reasonable provision at the tiem when it was made |
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Term
Florida prenups
61.079 Breakdown pre2007
3. fair and reaonable provision at the time it was made |
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Definition
determining fairness: court's take into account the parties respective age, health, experience, relationship to one another and the wife's needs. do the provisions made for the wife enable her to live after the dissolution of the marraige in a manner reasonable consistent with her way of life before such dissolution
Absent such provision: full and frank disclosure to the wife, before singing of the agreement, of the husband's worth OR a general and approximate knowledge by her of the prospective husband's property |
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Term
Florida prenups
61.079 Breakdown post2007 |
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Definition
| a premarital agreement is not enforceable, if the party against whom enforcement is sought proves that the party did not execute the agreement voluntarily, and the agreement was unconscionable when it was executed. |
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Term
Florida prenups
61.079 Breakdown post2007
factors to determining voluntariness |
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Definition
1. time and place the agreement was present (to consider whether there was sufficient time to review and reflect on the terms of the agreement)
2. opportunity to seek counsel
3. statements made during the presentation of the agreement |
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Term
Florida prenups
Common Law requirements (where UPAA does not apply) |
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Definition
1. voluntary, good faith, reasonable at execution, full and fair disclosure or actual knowledge of finances and disproportion of provisions compared to the means creates a presumption of fraudulent concealment
2. Reaonable Provision OR Full Disclosure |
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Term
Florida prenups
Common Law requirements (where UPAA does not apply)
traditional rule |
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Definition
| an agreement had to be fair under ALL relevant circumstances |
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Term
Florida prenups
Common Law requirements (where UPAA does not apply)
modern trend |
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Definition
| agreements are enforced so long as the agreement accords with the intent and is entered into voluntarily with full disclosure |
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Term
Florida prenups
Common Law requirements (where UPAA does not apply)
factors to determine reasonableness |
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Definition
1. parties respective wealth
2. respective ages
3. respective intelligence
4. literacy
5. business acumen
6. prior family ties |
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Term
Florida prenups
disclosure of marriage |
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Definition
| if you actually know it is good enough to do it. Full disclosure does NOT require Detailed disclosure but rather the spouse's independent knowledge of the other spouse's financial status can serve as a substitute for disclosure |
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Term
Florida prenups
Disclosure of Miarriage
Alternative Disclosure |
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Definition
| they could have knowledge of the person's status or what we call 'actual" knowledge |
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Term
Florida prenups
Counsel for Each Party |
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Definition
| presence of independent counsel mitigates against the finding that there was duress. |
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Term
Florida prenups
Uniform Marriage and Divorce Act |
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Definition
requires states to recognize marriages provided tha thtey are valid either at the place of celebration or in the domicile of the parties
defines unconsionablility |
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Term
Florida prenups
Uniform Marriage and Divorce Act
unconscionably |
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Definition
| defines unconscionability as one-sidedness, oppression, or unfair surprise. Attempts to protect against overreaching, concealment of assets and unfair dealing. |
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Term
| Alimony Pendente Lite (temporary alimony) |
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Definition
1. alimony paid after the couple separation until the divorce is final
2. there is an obligation since they are still married to support your spuse and your children
3. this can be a factor discussed in the prenuptial agreement to limit the amount paid. |
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Term
Florida Common Law
Prenuptial Agreements |
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Definition
Because the parties do not deal at arms-length but rather out of a relationship of mutual trust and confidence, the court will strictly scrutinize the contract for GOOD FAITH and LACK of UNDUE INFLUENCE
the spouse claiming validity must establish the fairness of the contract. |
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Term
| Probate Proceedings §732.702 |
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Definition
| an agreement to waive all rights in the property or estate of a spouse is a valid and enforceable renunciation of all benefits that would otherwise flow by intestate succession or a previous will. |
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Term
Probate Proceedings §732.702
ante-nuptial waiver of rights |
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Definition
no disclosure required
no consideration other than execution of the agreement is required to waive probate rights, and no disclosure of the estate is required for an agreement executed before marriage to be valid
fraud in the inducement will not invalidate
fraud in the execution may be grounds for setting aside the agreement |
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Term
Probate Proceedings §732.702
post-nuptial waiver of rights |
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Definition
full disclosure required
no consideration other than the execution of the agreement is required for post-nuptial waive of rights
each spouse must make a full disclosure of that spouses estate for an agreement executed after marriage to be valid |
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Term
Constitutional right to marry
Rule of Lex Loci |
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Definition
states will give full faith and credit to a valid marriage entered into in another state
place of celebration rule provides that a marriage is valid where performed is valid everywhere |
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Term
| Constitutional Right to Marry |
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Definition
| the Supreme Court established that the right to marry was a FUNDAMENTAL RIGHT and therefore subject to strict scrutiny |
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Term
Constitutional Right to Marry
strict sctutiny |
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Definition
highest level
restriction must be necessarily related to a compelling state interest
NC |
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Term
Constitutional Right to Marry
intermediate Scrutiny |
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Definition
restriction must be substantially related to an important state interest
SI |
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Term
Constitutional Right to Marry
Rational Basis |
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Definition
restriction must be rationally related to a legitimate state interest
RL |
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Term
Right to Marry
Florida LAw §741.0405 marriage license to persons under 18yrs |
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Definition
| if either parties shall be under the age of 18 but at least 16 the court MAY issue license with consent of BOTH parents,however if the parents are deceased the court MAY issue without parental consent or when such minor has been previously married |
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Term
Constitutional Right to Marry
Florida LAw §741.0405 marriage license issued to person under 18 - pregnancy |
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Definition
the court may issue lincense to persons under the age of 18 if both parties sworn under oath that htey are the parents of a child.
when pregnancy is verified by the written statement of a licensed physician, the judge may use his discretion in issueing a license:
to any male or female BOTH under the age of 18, who are expectant parents
to any male over 18 and any female under 18 who are expectant parents |
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Term
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Definition
| a marriage that takes effect without license or ceremony when a couple lives together as husband and wife, intend to be married, and hold themselves out to others as a married couple |
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Term
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Definition
| FL §741.211 no common law marriage entered into after Jan1 1968 shall be valid, except that nothing contained in this section shall affect any marriage which, though otherwise defective, was entered into by the party asserting such marriage in good faith and in substantial compliance with this chapter |
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Term
Common Law Marriage Elements
4 C's |
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Definition
Capacity
Consent
Cohabitation
Community
These elements must be proven by strong and competent circumstantial evidence, some states want preponderance of the evidence |
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Term
Common Law Marriage Elements: 4 C's
Capacity |
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Definition
capacity to enter into marital contract
ago, no impediments |
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Term
Common Law Marriage Elements: 4 C's
Consent |
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Definition
present agreement to be married
meeting of the minds, contract concept |
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Term
Common Law Marriage Elements: 4 C's
Cohabitation |
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Definition
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Term
Common Law Marriage Elements: 4 C's
Community |
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Definition
holding out in the Community as a married couple
main reason for hte requirement of a public reputation as a man and wife is to prevent fraud
an agreement between the parties is necessary, the agreement may be inferred from cohabitation and other evidence
some states require clear and convincing evidence |
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Term
| Arguments against Common Law Marriage |
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Definition
modern social conditions (urbanization) have eliminated the need for the doctrine
prevention of fraud in the transmission of property
desire to protect mirriage and the family from immoral sexual unions
confusion of the public records
administrative judicial efficiency |
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Term
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Definition
a valid marriage entered into in good faith on the part of at least one of the partners, but that is legally invalid due to a technical impediment such as pre-existent marraige on the part of one of the partners
once the putative spouse has knowledge that they are not legally married the status is terminated and prevents acquisition of further rights |
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Term
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Definition
Florida recognizes the putative spouse doctrine.
Provides equitable rights (equitable distribution and equitable alimony) to the unwitting spouse for their reliance upon a good faith belief.
Mutual mistake may eliminate equitable alimony since there is no fraud |
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Term
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Definition
marriage itself was defective but under the color of validity (parties believe it to be valid)
May become valid when impediment is removed
Florida does not recognize De Facto Marriage |
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Term
| De Facto Marriage Factors |
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Definition
Extent that they held themselves out as a married couple (mailing address, same last name)
Time resided in permanent place of abode
Extent they have pooled assets or income, financial Independence, or jointly purchased real or personal property
Supported the other in whole or in part
Performed valuable services for the other, their company, or employer
Agreement (express or implied)
Provided support to child regardless of legal duty to do so |
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Term
| Spousal support for de facto marriage, putative marriage and cohabitation |
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Definition
court may reduce or terminate an award of alimony to a former spouse upon a showing that the former spouse now has a financially supportive relationship with a new person with whom that former spouse now resides.
Burden is on the spouse who wants to reduce the alimony to prove by a PREPONDERANCE OF THE EVIDENCE that a supportive relationship exists. |
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Term
| factors which the court will consider in modifying alimony |
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Definition
Period of time that the former spouse has resided with the other person in a permanent place of abode
Extent to which the former spouse and the other person: HPSP
whether they have: WJP
Evidence that they have either an express or implied agreement regarding property sharing or support |
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Term
factors the court will consdier in modifying alimony
Extent to which the former spouse and the other person: HPSP |
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Definition
have Held themelves out to the community as a married couple
have Pooled their assets or income or otherwise exhibited financial interdependence
has Supported the other, in whole or in part
has Performed valuable services for the other's company or employer |
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Term
factors the court will consider in modifying alimony
whether they have: WJP |
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Definition
Worked together to create or enhance anything of value
Jointly contributed to the purchase of any real or personal property
Provided support to the children of one another, regardless of any legal duty to do so |
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Term
|
Definition
death
re-marriage of the spouse who gets alimony |
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Term
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Definition
| under the principles of COMITY a marriage by citizens of a foreign country, if valid under foreign law, may be treated as valid in the United States for the purposes of a dissolution action |
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Term
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Definition
| if it was in another state within the US. we give full faith and credit for the laws of other states |
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Term
| full faith and credit vs. comity |
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Definition
| you would want full faith and credit over comity because comity is discretionary and if there is a policy reason for it, it could be decided differently |
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Term
| substantive restrictions: Capacity |
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Definition
all states have substative restirctions on who may marry
Capacity traditionally required that the parties: be of the opposite sex, be married to only one spouse at a time, not be related, and be above the statutorily defined age. |
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Term
| substantive restrictions: Sate of mind |
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Definition
| state of mind restrictions require that the parties marry voluntarily, without fraud, without duress |
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Term
same sex marriage/ domestic partnerships
traditional rule |
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Definition
most jurisdictions have an explicit statutory restriction that states 'the union of a man and a woman'
the absence of this explicit statement provided an opportunity for a constitutional attack |
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Term
same-sex marriage/domestic partnership
rationale for traditional rule |
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Definition
Marriage is for the propagation of the species
Marriage protects the health and welfare of children
Children need 2 parents of the opposite sex for a children's well being
State has an interest in fostering an facilitating traditional notions of marriage and the family |
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Term
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Definition
marriages between persons of the same sex entered into in any jurisdiction are not recognized for any purpose in this state.
So there is no full faith and credit for same sex marriage in florida
Claims arising out of a same sex marriage cannot be adjudicated in Florida |
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Term
Sale Sex Marriage in Florida
Marriage Evasion ACt |
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Definition
| Florida does not recognize same sex marriage entered into in other jurisdictions for any purpose (even if valid where entered) |
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Term
Same Sex Marriage in Florida
Transsexual Marriage |
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Definition
must go by sex of the birth certificate; still no same sex marriage in florida
chromosome test--cannot change the chromosomes |
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Term
| Title 1 US Code 7: Marriage |
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Definition
marriage means only the legal union between one man and one woman as husband and wife and does not allow for same sex marriage
spouse refers only to a person of the opposite sex who is a husband or wife as far as the fedeal government is concerned |
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Term
| Defense of Marriage Act (DOMA) |
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Definition
prohibits federal recognition of state domestic partnerships, civil unions, and same-sex marriage
defines marriage as between a man and a woman. |
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Term
|
Definition
does not recognize same-sex marriages entered into in another jurisdiction
Does not require the state, its agencies, and its political subdivisions to give effect to any public act, record or judicial proceeding of any other state
defines marriage as only a legal union between one man and one woman as husband and wife |
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Term
privilege against spousal testimony
2 types |
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Definition
Confidential Marital Communications
Adverse Testimony Privilege |
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Term
| Confidential Marital Communications |
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Definition
the communication must happen during the marriage not before
This communication is priveged and both are entitled to the privilege if they are the only ones present. No 3rd parties can be present in order for a defendant spouse or witness spouse to raise the privilege
it must be a private communication (not observations) during the marriage |
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Term
| adverse testimony privilege |
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Definition
The witness spouse alone holds the privilege
If the witness spouse does not want to testify they are protected under federal law
Protects observations (bc witness can't even be on stand). Here they are testifying about info that was infront of a 3rd person is protected. If witness spouse choses to waive the privilege, defendant spouse cannot stop from testifying |
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Term
| Florida Husband-Wife Privilege §90.504 |
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Definition
during and after the marital relationship to refuse to disclose, and prevent another from disclosing, communications intended to be made in confidence between the spouses while married
Either spouse may use it |
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Term
Florida Husband-Wife Privilege §90.504
NO privilege if... |
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Definition
no privilege if:
In a proceeding brought by or on behalf of one spouse against other spouse
Criminal proceeding: against the person or property of the other spouse
Criminal proceeding: where the communication is offered in evidence by a defendant spouse
No adverse testimony in FL!! |
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Term
| Interspousal Tort Immunity |
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Definition
premised on marital unity. H and W share legal identity; tort suits destroy marital harmony and are prone to fraud so spouses cannot sue each other for negligence or intentional torts
There is no tort immunity for spouses in Florida |
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Term
| FL §741.235: Doctrine of Interspousal Tort Immunity Abrogated |
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Definition
this is a batter only statute
Under modern trend it also includes other torts
The entire doctrine of interspousal tort immunity is abrogated |
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Term
| Domestic Violence §741.28 |
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Definition
| any assault, battery, sexual battery, kidnapping, false imprisonment, or criminal offense by one family or household member against another that results in the others physical injury or death |
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Term
| Battered Woman's Syndrome |
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Definition
a self-defense claim for women who have been subject to abusive and violent behavior from their spouses or domestic partners
In FL it is a self-help system. People go to the courthouse and fill out a form. |
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Term
| Violence Against Women's Act (VAWA) |
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Definition
woemn who came to the US from other countries did not have to rely on their batterer for their sponsorship.
Gives immigrating woman grounds to come and say that she is being abused |
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Term
Florida Domestic Violence Statutes
§741.30 Injunction for domestic violence |
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Definition
| any family or household member (not only spouse) can seek an injunction if he or she has reasonable cause to believe that he or she is imminent danger of becoming the victim of domestic violence. |
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Term
Florida Domestic Violence Statutes
§768.35 Continuing Domestic Violence |
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Definition
a victim of domestic violence is one who has suffered repeated physical or psychological injuries over an extended period of time, as a result of continuing domestic violence and thus has a cause of action against the perpetrator
the victim can seek compensatory and putative damages.
actions for recovery must be sought within 4 years and the time runs from when the last incident of domestic violence occurs |
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Term
| Subject matters that are important in dovroce |
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Definition
alimony
equitable distribution of property
division of property
child support
dissolution of the marriage
children (who gets the kids) |
|
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Term
| different subject matter determines different rules as to whether the court has jurisdiction |
|
Definition
the nature of these subjects:
Marriage itself as a "status" and a residency of either party is 6 months for domicile status
Real and personal property, in rem present in state-object themselves that are present in the state
Real and personal property present outside state (in rem there only)
Equitable distribution, alimony, child support are incidents (rights, duties) of marriage
child custody is like a 'statue' of child |
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Term
Jurisdiction and Service of Process (florida)
in rem jurisdiction |
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Definition
property located within the state of florida = in rem
real and personal property outside the state of florida= no in rem. |
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Term
jurisdiction and service of process (florida)
personal notice |
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Definition
| actually serving the defendant in hand through a process server |
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|
Term
jurisdiction and service of process (florida)
constructive notice |
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Definition
publication or any other means that is reasonably calculated to give actual notice. this is used only if the defendant cannot be personally served
constructive service can only achieve:
ex parte divorce
real and pesonal property partition
for real property notice MUST provide legal description of the real property |
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|
Term
florida minimum contacts
long arm statute §48.193 |
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Definition
acts subjecting a person to PJ with respect to a proceeding for alimony child support or division of property
at the time the case is filed, the used florida as a Matramonial Domicile OR preceding the filing, Respondent Resided Here |
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Term
| durational residency requirements |
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Definition
| in order to get a divorce, at least one party must satisfy the residency requirements of the forum state |
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Term
| FL residency requirement §61.021 |
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Definition
| to obtain dissolution of marriage, either party must reside in teh state for 6 months prior to filing the petition. one of the parties must be a FL resident for the 6months immediately prior to filing dissolution of marriage |
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|
Term
Ex Parte Divorce
(constructive notice) |
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Definition
if one spouse is domiciled in the forum state, the state is free to grant divorce or an annulment REGARDLESS of whether it has PJ over the absent spouse so long as the absent spouse receives notice.
marriage is considered a 'res". the court has jurisdiction over the status of its citizens.
BUT absent PJ court CANNOT enter money orders such as alimony, child support and property division. |
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Term
| Domestic Relations Exception |
|
Definition
federal courts may decline to exercise their jurisdiction in extraordinary cases because of federalism concerns (reliance to intervene if the state proceeding involved important state interest)
S.Ct held that federal courts are divested of the power to issue divorce decrees, alimony, and child custody orders. these are called incidents of marriage |
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Term
| Florida No Fault Divorce §61.052 |
|
Definition
In Florida one must plead that the marriage is:
irretrievably broken; or
Mental incapacity of one of the parties
Florida is a no fault state HOWEVER there are some instances where fault can be considered such as determining alimony |
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Term
Tort Claims
Domestic Violence §741.28 |
|
Definition
| DV = any assault, battery, aggravated battery, S/A, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member |
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Term
Tort Claims
DV SOL & recovery §768.35 |
|
Definition
SOL= must be commenced wihtin 4 years. time begins tor un from the time of the last incident
A victim can sue for repeated physical or psychological injuries over an extended period of time
A victim can recover compensatory and punitive damages. |
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|
Term
Fault Based Grounds for Divorce
(NOT FL) |
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Definition
| cruelty, adultery, desertion, habitual drunkenness or drug addiction, incurable impotence, failure to support, criminal conviction and/or imprisonment, insanity |
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|
Term
Fault Based Defenses
(NOT FL!) |
|
Definition
recrimination (bars divorce in cases where both spouses at fault)
connivance (participation in or consent to D's wrongful conduct)
condonation (spouse once condoned marital misconduct)
collusion ( when spouses agree to fabricate evidence to provide grounds for divorce)
insanity (both a ground for divorce and a defense) |
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Term
|
Definition
a statutory crime defined as the act of marrying one person while legally married to another
3rd degree felony |
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Term
|
Definition
One who reasonably believes that prior spouse is dead
prior spouse voluntarily deserted and remains absent for 2 continuous years
one who violates its provision because a domestic or foreign court has entered an invalid judgement purporting to terminate or annul the prior marriage and they do not know it is invalid
one who reasonably believes that he or she is legally eligible to re-marry |
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Term
|
Definition
polygamy has not been acknowledged and has not been protected at any time by the laws of the US.
These relationships are viewed as void in all jurisdictions |
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Term
|
Definition
Majority of jurisdictions including FL now adhere to a system of equitable distribution when dividing the marital property
The objective of equitable distribution is to order a fair distribution under all the circumstances of the spouses' property |
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|
Term
Equitable Distribution
4 Step Approach |
|
Definition
(1) Identification
(2) Classification-marital or non-marital?
(3) Valuation
(4) Distribution |
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|
Term
|
Definition
| anything acquired durign the marriage, enhancement in value resulting from the efforts of either spouse during the marriage or from contribution of marital funds, and interspousal gifts during the marriage |
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|
Term
Florida Equitable Distribution §61.075
factors to give more or less to each spouse after 4 step process |
|
Definition
the contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker
the economic circumstances of the parties
the duration of the marriage
the contribution of one spouse to the personal career or education opportunity of the other spouse
desirability of retaining any asset
contribution of each spouse to the marital and non-mairtal assets
intentional waste, depletion or destruction of mairtal assets after filing petition
any other factors necessary to do equity and justice between the parties |
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|
Term
|
Definition
| alimony is the support obligation, not debt, of one spouse to the other spouse. |
|
|
Term
|
Definition
NEED AND ABILITY TO PAY
start with (1) equitable distribution analysis and then move on to (2) NEED AND ABILITY to pay |
|
|
Term
Alimony §61.08
Relevant Economic Factors (9) |
|
Definition
(1) Duration of the Marriage
(2) Standard of Living
(3) Age, Physical, and Mental Health of the Parties
(4) Financial Resources
(5) Either's earning capacity, education, skills, employability
(6) contribution to the marriage
(7) Responsibilities each party will have with regard to any minor children they have in common
(8) Tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of a the payment as a non-taxable, non-deductible payment
(9) Any other factor to do equity and justice between the parties |
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Term
Alimony §61.08
Relevant Economic Factors
Duration of the Marriage |
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Definition
Short Term Marriages: less than 7 years
Moderate Marriages: 7 years - 17 years
Long Term Marriage: more than 17 years. |
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Term
Florida §61.08 Alimony
Duration of the Marriage
Short Term Marriage |
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Definition
less than 7 years
no permanent alimony but the spouse may be entitled to rehabilitative or bridge-the-gap alimony.
permanent alimony could be awarded if there are exceptional circumstances. |
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Term
Florida §61.08 Alimony
Duration of the Marriage
Moderat Marriage |
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Definition
Between 7 and17 years
There is no presumption for permanent alimony however it is possible to get.
Largest factor to consider is the disparate earning capacity |
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Term
Florida §61.08 Alimony
Duration of the Marriage
Long term marriage |
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Definition
Over 17 years
Rebuttable presumption that such marriages are entitled to permanent alimony.
long term marriages usually trigger the permanent periodic alimony. |
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Term
Florida §61.08 Alimony
Standard of Living |
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Definition
courts look at the lifestyle to which the parties are accustomed.
Might be the superfactor trumping all other factors.
This is not just the award of food and shelter, but the "style which they have grown accustomed to" |
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Term
Florida §61.08 Alimony
Age, physical, and mental health of the parties |
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Definition
| even if there has been a short term marriage, one party might be entitled to permanent periodic alimony |
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Term
Florida §61.08 Alimony
Financial Resources |
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Definition
| consider the resources of EACH party & what they got in the distribution such as marital and non-marital assets and liabilities |
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Term
Florida §61.08 Alimony
Either's earning capacity, education, skills and employability:
Factors to consider |
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Definition
spouses education, previous work-skills and how long htey have been out of the job market for
considered rehabilitative alimony |
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Term
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Definition
where a party will be awarded alimony to assit them to establish capacity for self-support
Must have a specific and defined rehabilitative plan for their education |
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Term
Florida §61.08 Alimony
contribution to the marriage |
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Definition
| homemaking, childcare, education, and career building of the other spouse |
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Term
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Definition
Temporary Alimony
Bridge the Gap Alimony
Rehabilitative Alimony
Durational Alimony
Permanent Alimony |
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Term
Types of Alimony
Temporary Alimony §61.071 |
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Definition
This is for spouses during the pendency of the case because there is a marital duty to support the other spouse
Standard of alimony payment is their current standard of living and ability to pay.
Extremely discretional and very modifiable |
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Term
Types of Alimony
Bridge the Gap Alimony |
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Definition
This is to assist a spouse already capable of self-support during the transition from being married to being single
This CANNOT exceed 2 years, it is non-modifiable, terminated on either party's death or if recipient re-marries |
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Term
Types of Alimony
Rehabilitative Alimony |
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Definition
commonly viewed as a short-term award
Ordered to enable the former spouse to complete the preparation necessary for economic self-sufficiency
It only lasts for a limited period and is determined by the time necessary for the dependent spouse to obtain training, education, or work experience necessary to develop appropriate employment skills |
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Term
Types of Alimony
Durational Alimony |
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Definition
may be awarded when permanent periodic alimony is inappropriate.
Prupose is to provide a party with economic assistance for a set period of time following a marriage of short or moderate duration
the amount may be modified or terminated based on a substantial change in circumstances but cannot exceed the length of the marriage |
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Term
Types of Alimony
Permanent Alimony |
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Definition
may be awarded to provide for the needs and necessities of life as they were estabilished during the marriage of hte parties for a party who lacks the financial ability to meet his or her needs and necessities of life following a dissolution of marriage
can be periodic or a lump sum
taxable because it is considered income |
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Term
Types of Alimony
Permanent Alimony
Lump Sum |
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Definition
creates a vested interest that is not subject to defeasance or modification.
Award is final and survives the death of either spouse. Can be enfoced upon the obligor's death against his or her estate |
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Term
| Modifiable Alimony §61.14 |
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Definition
Permanent Periodic
Rehabilitative
Temporary
Durational |
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Term
Modifiable Alimony §61.14
permanent periodic |
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Definition
| must show substantial permanent, involuntary unanticipated change in circumstances |
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Term
Modifiable Alimony §61.14
rehabilitative |
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Definition
| a modification must be filed before the payable period starts. Rehab alimony can be converted into permanent alimony if the party is failing his or her goals even though he or she has used diligent efforts to achieve the goal but is still failing |
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Term
Modifiable Alimony §61.14
temporary |
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Definition
| the party seeking the modification must show good cause to modify. this alimony can be awarded as a lump sum but is only available for the duration of the case |
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Term
Modifiable Alimony §61.14
durational |
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Definition
there must be a substantial change in circumstances in accordance with 61.14
The length of an award of durational alimony may not be modified except under exceptional circumstances and may not exceed the length of the marriage |
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Term
| Non-Modifiable Alimony §61.14 |
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Definition
lump sum
bridge the gap (terminates when person dies or remarries)
rehabilitative past the time is not modifiable |
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Term
| Florida §742.18 Disestablishment of paternity or termination of child support |
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Definition
must file petition in the court having jurisdiction over the child support obligation
the court shall grant relief on a petition filed in accordance with this subsection upon a finding of all of the following:
newly discovered evidence relating to paternity
scientific test was property conducted
male ordered to pay child support is current on payments
a court shall not set aside obligation if the male engaged in the following conduct after learning he is not the bio father:
married the mother of the child and voluntarily assumed parental obligation
acknowledged his paternity of the child in a sworn statement
consented to be named on birth certificate
voluntarily promised in writing to support
received written notice directing to submit to scientific testing which he disregarded
signed voluntary acknowledgement of paternity.
if the relief is granted he may not recover child support that was previously paid.
Duty to pay is ongoing until judgment rendered |
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Term
Florida §63.053
Rights and Responsibilities of an unmarried bio dad |
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Definition
if fails to take actions that are avaialable to him to establish a relationship with his child, his parental interest may be lost entirely
if he does not take actions in a timely manner to establish and demonstrate a relationship with his child the rights of the mother, child and adoptive parents outweigh his own |
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