Studydroid is shutting down on January 1st, 2019

Bookmark and Share

Front Back
Uniform Child Custody Jurisdiction Enforcement Act:

1. Purpose if to avoid Jurisdictional Disputes with courts of other states in matters of child custody

2. To promote interstate cooperation and to facilitate the intersate enforcement of cusody and time-sharing orders.

3. Intial jurisdiction will usually lie in state with closest connection with child so records and evidence are readily avaialble.

4. Court of competent jurisdiction decides child custody matters initial or modification judgments...In Fla it''s Circuit Ct...IF the following criteria are met:
    a. It''s home state of child when preceeding began or was home state 6 months before preceeding and child is absent from state and a parent still lives in the state.

    b. No other state has home state jurisdiction (or court of home state has denied jurisdiction based on inconveient forum ground) and
       1. the child and least one parent have significant connection to state and  2. substantial evidence available in the state concerning the child''s protection, training, relationships

    c. All other states having jurisdiction under home state or significant connection test have declined jurisdiction based on grounds that court in this stat is more appropriate OR

    d. No other state has jurisdiction  under either the home state or significant connection test.

Relocating Child
In fla if custodial parent wants to relocate more that 50 miles and over 50 miles away from noncustodial parent they must:

1. Obtain written consent from eveyone with visitation rights to the child OR

2. Serve notice  of intent to relocate on everyone with visitation rights (if reason for relocation is for job, job offer must be attached to notice). If no objection is filed within 30 days of service of notice, relocation will be allowed (unless not in best interest of the child)....if objection is made Judge may grant temporary order premitting relocation if likely relocation will be approved.

Factors to consider when determining relocation of child

1. Best interest of the child

2. Impact of everyone with visitation rights to the child

3. Childs relationship with each parent, siblings and other family members.

4. Childs age and needs and impact of relocation.

5. Childs preference

6. reason for seeking relocation

7. History of any substance abuse and domestic violence.
Standards of awarding custody
1. Best interest interest of the child

2. neither parent has superior claim

3. court will order shared parental responsibility unless not in best interest of child.

4. If not in BIOC court will order sole parental responsibility with or without time sharing rights.
What does shared parental responsibility mean?
Both parents retain full parental rights and must confer on major decisions such as:
1. Medical care
2. Religion
3. Education
Is custody modifiable?
Yes, upon a showing of a substantial change in circumstances affecting child''s welfare.
1. How is time-sharing determined?

2. Can it be modified?
1. Based on BIOC. The parent without  custody has right to reasonable time-sharing based on agreement by the parties or the court. this may be modified if there is conduct that injuriously affects the childs welfare or morals.

2. Yes, upon a showing of a substantial change in circumstances affecting child''s welfare...spousal abuse is considered evidence of detriment.

Custody Factors
1. Parents ability to provide stable  home environment  for child

2. Childs preference (at no age does child have absolute choice in Fla)

3. Custodial parents willingness to  allow time-sharing  and to encourage ongoing  relationship with noncustodial parent.

Marital Assets--List them
1. Those acquired by either or both spouses during marrigage OTHER THAN those acquired through gift, bequest or descent.

2. Enancement of, or appreciation in value of nonmarital assets through efforts of either spouse or contribution of marital funds.

3. Interspousal gifts during marriage

4. All benefits accrued during  the marriage in retirement plans, pensions plans, profit sharing plans
Factors courts consider for equitable distribution
1. Each spouses contribution to marriage

2. Each spouses contribution to care and education of children

3. services of the homemaker

4. economic circumstances

5. duration of marriage

6. career and education sacrifices

7. Desirability of  retaining any asset free from claim and hostile interference by other spouse.
Bridge the gap Alimony
Provides support to either party as they make the transition from being married to being single. It is not modifiable and it terminates at the death of either party or the remarriage of the recipient party.
Rehabilitative Alimony
Provides support to either spouse to assist in obtaining training or educationto become self-sufficient and employed. There must be a specific and defined plan and it can be terminated and modified.
Durational Alimony
awarded when permanent periodic alimoy is inappropriate. It''s purpose is to provide support for a set period of time after a marriage of short or moderate duration.

1. Terminates upon death of either party or remarriage of recipient party.

2. amount modifiable upon a showing of changed circumstances

3. duration modifiable upon a showing of exceptional circumstances.
Permanent periodic Alimony
Provides support for the needs and necessities for a party  who has neither the resources nor the ability to be self-sustaining. Provided after long duration of marriage or moderate duration (if appropriate) or short duration (upon a showing of exceptional circumstances).
1. Terminates upon death of either party or upon remarriage of recipient party.

2. Can be terminated or modified upon a showing of changed circumstances or upon evidence of supportive relationship.
Can the right to Child Support be waived?
Dissolution of Marriage
In Fla courts are to terminate dead marriages. Dissolution is permissible if:
1. marriage is irrevrievably borken
2. One spouse has been deemed incompeten for at least 3 years.

If there is a minor child involved or one spouse denies the marriage is IB, then the court may:

1. Stay the proceeding to give the parties time to reconcile.

2. Order counseling

3. Any other action that is in the best interest of the child and the parties.
Equitable Distribution
Florida is an equitable distribution state....After dissolution of marriage, the courts will equitably distribute marital assets (equitable distribution does not always mean 50/50 split). In fla, maritable assets are:
1. Assets acquired by either or both spouses during the marriage except those acquired by gift, bequest, descent.

2. Enhancement or appreciation in nonmarital assets through the efforts of either spouse or through contribution of marital funds.

3. Interspousal gifts.

4. Benefits accrued during marriage in retirement plans, pension plans, profit sharing plans and the like.
Factors taken into account when making an equitable distribution.
Florida will consider any factor necessary to do equity and justice to the parties in the equitable distribution of the assets. Factors include:

1. Duration of marriage
2. Contribution of each spouse to the marriage
3. Contribution of each spouse to the care and education of the children
4. Career and education sacrifices
5. services as homemaker
6. Economic circumstances
7. Need to retain marital asset free from hostile interference of other spouse.
Special Equity-Defined
Judicial recognition that a spouse has a vested right in  the other spouse''s property or that spouse has more than 1/2 interest in jointly owned prop......SPECIAL EQUITY HAS BEEN ABOLISHED IN FLORIDA.
Child Support-Defined
The right of child support cannot be waived and both parents share an equal duty to support their children 1. in proportion  to their ability to pay. The proper amount to be allocated between the parties is calcualted using statutory guidlines.
2. Income is imputed on a voluntarily unemployed or under employed party.

3. Courts are reluctant to award CS above or below the statutory guidelines but have descretion to do so when
     a. Extraordinary medical or educational expenses.

     b. Seasonal variations in income

     c. Childs age warrants deviation

     d. special parental arrangements

     e. Total assets of parents and child warrant lower amount.

     f. IRS dependency exception.
When does Child Support End?
CS generally ceases when child turns 18 unless:
1. child is physically or mentally  dependant

2. dependant is between 18 and 19 and is in high school studying to graduate.
How much can judge vary child support?
Plus or minus 5% without requirement of written findings.
Can Child support be modified?
Yes, upon a showing of substantial change in circumstances or financial ability.
What may court do during any contested matter? (CS, Custody, primary residence, parental responsiblity)
1. Refer parties to mediation

2. Order investigation by Dept of Children and Families

3. For custody cases, before the court enters a FJ, the ct must require parties to complete court approved parenting course.
Child Support provisions for Health Insurance.
Child support orders must  contain provisions for health insurance  for the minor child if reasonably available. Ct must also apportion payment of uncovered medical  and dental expenses.
Adoption--In general
Adoption of a child generally requires the consent of both the minor''s mother and father.

Consent of the Father Req''d when:
     1. While father was conceived or married to minor''s mother.
     2. Minor is father''s child by adoption.
     3. Minor determined by ct to be father''s child.
     4. Father filed affidavit of paternity in accordance with the relevant statute OR
     5. in the case of an un,arried biological father, he has filed acknowledgment of paternity w/i timeframe.
When child to be adopted is more than 6 months of age, the biological fathers consent will be necessary if:
1. He''s developed substantial relationship with the child

2. taken some measure of responsibility  for the child or child''s future.

3. Demonstrated a full committement to the  responsibilities of parenthood by providing financial support to the child in accordance with his ability.

4. Regularly visited child at least monthly when abel to do so.

** Court may waive consent of parent who has deserted or abandoned the child.

1. Custody

2. Alimony/Child Suport

3. Visitation
1. Upon a showing of substantial change in circumstances affecting childs welfare.

2. Upon showing of substantial change in circumstances or financial ability.

3. Upon showing of substantial change in circumstances. Court may refer parties to  a mediation or order a social investigation  by Dept of Children and Families. A guardian ad litem for the child and /or legal counsel for child may be appointed.
Prenuptial/Antenuptial Agreements--In general
Prenuptial contracts between spouses, other than contract to marry, are generally  valid. Such contracts fall within the statute of frauds and must be in writing. Prenupt contracts require consideration to be valid. entry into marriage is sufficient
Elements of a prenuptial agreement
A prenupt must be entered into voluntarily  without undue influence or coercion. In determining voluntariness courts consider such factors such as:

1. Time and place agreement was presented (sufficient time to review and reflect on the terms.

2. Opportunity to seek counsel

3. statements made during the presentation of the agreement.

**if the agreement does not fairly provide for the contesting spouse, the court will not uphold it unless a full and fair financial disclosure was made by defending spouse or discovery was completed before agreement was signed.


Florida Marriage Rights
Florida, like most states, defines marriage as a civil contract between a man and a woman.  Fla. Stat. § 741.212.  Similar to most contracts, marriage involves parties who are legally capable of consent, the exchange of consideration in the form of mutual promises, and the imposition of rights and obligations.
Age requirements
In Florida, both applicants must be at least 18 years of age to marry unless an exception applies.  If the parties are under the age of 18, but above the age of 16, parental consent is required unless the parents are deceased or the child has been previously married.  Court approval may be obtained, if parental consent is not given, when the minor party is a parent of a child in common or the female party is pregnant.  If either party is under the age of 16, the court has limited discretion to issue a license only when the minors are the parents of a child in common or are expectant parents as verified by a physician.  
Without court approval, no party under the age of 16 may marry even if parental consent has been obtained.  Fla. Stat. § 741.0405.  Statutory age requirements to marriage have withheld constitutional scrutiny.
A marriage license will not be issued when:
) One of the parties is married to someone else;
ii) The parties are too closely related as defined by statute;
iii) The parties entered into the marriage as a sham;
iv) The parties are incapable of understanding the nature of the act; or
v) When the parties are of the same sex.
Common law marriages are defined as marriages when the parties:
i) Agree they are married;
ii) Cohabit as husband and wife; and
iii) Hold themselves out to the public as married.
Unlike a ceremonial marriage, no ceremony takes place and no license is issued for a common law marriage.  A common law marriage is not valid if either party was married to someone else at the time the common law marriage was entered into.

Recognition of Common Law Marriages

Florida no longer permits common law marriages.  However, common law marriages in Florida commenced prior to 1968 are not void and therefore are recognized as fully valid.  Fla. Stat. § 741.211.  Under the Full Faith and Credit Clause of the United States Constitution, Florida will recognize common law marriages validly entered in a jurisdiction that recognizes such relationships
Heart Balm Actions
Heart balm actions, which include actions for breach of promise to marry, seduction, alienation of affection, criminal conversion, and jactitation of marriage (falsely holding one’s self out as married) are abolished in Florida.
An annulment voids a marriage and declares it as having never been valid (as opposed to divorce, which terminates a valid marriage).
Postnuptial agreement
Postnuptial agreements are made between a husband and wife during the marriage entered into in contemplation of an ongoing, viable marriage.  While consideration is required, the mutual exchange of promises will suffice.  These agreements can define property division and spousal support.  While a postnuptial agreement can address child support or custody, it may not adversely affect a child’s right to support or firmly determine custody, any provisions which do so will be unenforceable.  Unlike prenuptial agreements, postnuptial agreements are not subject to the Statute of Frauds and, therefore, need only be in writing if the subject matter falls within the Statute, such as a transfer of land.
Premarital agreements
A premarital (or “prenuptial” or “antenuptial”) agreement is a contract made before the marriage, typically containing terms that relate to division of property or spousal support in the case of a divorce and at death.  As with any contract, consideration is required.  A valid marriage is sufficient consideration for a premarital agreement.  Accordingly, the premarital agreement becomes effective upon the date of the marriage.  Fla. Stat. § 61.079.
Florida, along with approximately 26 other states, has adopted the Uniform Premarital Agreement Act (“UPAA”).  UPAA is a uniform law relating specifically to these types of contracts and imposes the same standards that are discussed below at § II.C.2, Validity of Marital Agreement.  Fla. Stat. § 61.079.  Importantly, premarital contracts may not adversely affect a child’s right to support or determine child custody.  Any terms authoritatively addressing either child support or custody will typically be deemed unenforceable.
Property settlement agreement
The purpose of a property settlement agreement is to settle the economic issues of the marital estate.  It is entered into by the parties before a divorce decree is issued.  A property settlement agreement must intend to be the final settlement of obligations concerning the property of the parties, both real and personal.  Once executed, a property settlement agreement is specifically enforceable and may not be modified by the court.

Validity of Marital Agreements

A premarital agreement is enforceable if there has been full disclosure, it is fair and reasonable, and it is voluntary.  The agreement must be in writing and signed by the party to be charged.  The burden of proving its invalidity is by clear and convincing evidence.

In Florida, a provision in a premarital agreement awarding attorneys’ fees to the prevailing party in an action regarding the validity of the agreement is enforceable.
If the marriage is voided, a premarital contract is enforceable only if it will avoid an inequitable result.  Fla. Stat. § 61.079(8).
Division of Property
Florida is an equitable distribution state.  The court divides marital property in a fair and equitable manner.  Each party does not necessarily get 50% of the marital property.  Florida law commences with the premise that the parties will receive an equal distribution of all marital property.  If the court is presented with justification for unequal treatment based on the circumstances of the parties and the relevant factors, it may consider a distribution that is less than equal.  The court has broad discretion in fashioning an equitable distribution award.  Fla. Stat. § 61.075.  The court may equitably divide the property of the parties without consideration of whether alimony will be awarded.  The court may award a cash payment, either in a lump sum or installments, as a part of the equitable distribution award.  If awarded, unlike permanent alimony, an equitable distribution award will survive death or remarriage.  Fla. Stat. § 61.075(2).
Division of Property--Continued
The Florida Family Law Rules require each party to file financial affidavits, including three years of tax returns, evidence of three months of current income, loan applications, and financial statements for the past year with any request, or in opposition to a request, for financial relief, whether permanent or temporary, or in enforcement proceedings.  Fla. Fam. L. R. P. 12.285, 12.287.  When necessary to protect the parties from abuse, the court can conditionally seal the financial information or court record.  There are specific time frames required for disclosure and/or inspection and sanctions for failure to comply, including the inadmissibility of documents.  Fla. Fam. L. R. P. 12.380.  Florida does have an ongoing duty to amend all discovery responses, including financial disclosures, and requires that the supplemental information be served as soon as possible, but not later than 24 hours before any applicable hearing absent a showing of good cause.

The court must first determine which assets are marital and which are nonmarital.  The nonmarital assets must be set aside and given to the respective owner.

EXAM NOTE: Florida frequently tests on the issue of equitable distribution of marital property.
Division of Property-Exception

There is an exception, however, when the house is titled in the name of both parties, even if it was purchased by one spouse with premarital funds.  There is a presumption that the house is a marital asset.  If the spouse whose funds purchased the house is seeking an inequitable distribution of the asset, he has the burden of establishing that the purchase of the home was not meant as a gift to the other spouse.  

EXAM NOTE: Watch for the above scenario to appear on exam questions.
Exceptions to marital property
Some exceptions may exclude property from marital property.  These exceptions include the following:
i) Property acquired before marriage or property acquired in exchange for property acquired before the marriage;
ii) Property excluded by the parties’ valid agreement entered into before, during, or after the marriage;
iii) Property acquired by gift, except between spouses, bequest, devise or descent, or property acquired in exchange for such property; and iv) Property or income derived from nonmarital assets during the marriage, unless the income was used or relied on by the parties as a marital asset.
Special Equity
Special equity is a vested interest acquired by a spouse because of contribution of funds, services, or property made beyond the performance of normal marital duties.  Florida abolished claims of special equity by statute and instead only allows claims for unequal distribution of marital property, based on the factors listed above.  Fla. Stat. § 61.075(11).
exclusive use of the marital residence
Prior to determining whether exclusive use of the marital residence should be awarded to one party, the court must first determine that the award of the residence is in the best interest of the dependent children to remain in the residence.

Interim Distribution

Upon the showing of good cause, the court may enter an interim order during the pendency of the dissolution action permitting a partial distribution of assets and liabilities so long as it does not result in an inequitable result or otherwise prejudice either party as to claims for support or attorneys’ fees.  Any partial interim distribution shall be credited against the final allocation of equitable distribution.

Final Determination

Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA")--Basic Definition
The purpose of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) is to prevent jurisdictional disputes with courts in other states on matters of child custody and visitation.  Florida has enacted the UCCJEA.  Adjudication under the UCCJEA requires that the court possess subject matter jurisdiction.
x of y cards Next > >|