Vous êtes sur la page 1sur 33

FAMILY LAW

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











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

D divorcedissolutionannulmentsdissolution a!reements
E equita"le distri"ution#
A alimony#
T time sharin!#
S su$$ort for children
I. MARITAL AGREEMENTS
A. Prenuptial Agreement %&L '(. E.)
*. +equirements for a ,renu$tial A!reement %also called antenu$tial a!reement):
a. S&F:

". Entry is:

c.

d. -ust "e made:

.. /ontent of A!reements
a. ,renu$tial a!reements can decide:
%*)

%.)

%0)

%1)

E(A-
T',

". Small e2ce$tions. 3atch out for !overnment assistance and waivin! child su$$ort.
c. Further# child su$$ort is the ri!ht of the child# not of the $arent. A $renu$tial a!reement may not adversely affect
the ri!hts of a child to statutorily set child su$$ort. /ourts will !ladly let a $arent $ay more. /annot delineate time
sharin! %that is the court4s 5o").
0. Enforcement
a. 'n order for a $arty to convince a court that a $renu$tial a!reement should not "e enforced# the $arty a!ainst
whom enforcement is sou!ht must show that:
%*)


%.)


%0)


+e!ardin! fairness6there are three su"$arts. To decide whether the court will set aside the a!reement for
lack of fairness# you look at the time the a!reement was reduced to writin!.
%a) S$ouse was not !iven Fair and +easona"le Disclosure7
%") 'f the $arty did not have a"ility to look at the assets to see what was there7
%c) &ther s$ouse could not have known what assets their $artner had7
1. ,alimony is not availa"le in Florida. 8owever# Florida courts will u$hold a written coha"itation a!reement:

a. ,ostnu$tial contracts:




II. CREATING A MARRIAGE
A. Marriage Defined %&L ''. A.)
*. Florida4s definition of marria!e includes:
a.

".

c.

.. Legal Formalities and Procedural Requirements
a. The -arria!e License:
%*) A$$ly to!ether
%.) 9o "lood test# "ut need:

%0) The $arties need to tell the clerk that they have read the ri!hts and res$onsi"ilities of $arties to a marria!e
and:
%a) they wait three days &+
%")

%1) The license will e2$ire in :; days.
". ,eo$le authori<ed to marry others:
%*)

%.)

%0)

%1)

%=) and 9otary.
c. The $erson who $erforms the ceremony si!ns the a$$lication.
d. 'f there is a $rocedural defect %"ut no fraud)# the cou$le is deemed married.
E(A-,LE:
8us"and and 3ife marry in a church# act as hus"and and wife# "ut their license was im$ro$erly filed. This is a
$rocedural defect and their marria!e is valid.
8>,&T8ET'/AL
+icky ?o""y and /arley were married in their dream weddin! last summer# on a dock overlookin! the
@ulf of -e2ico. The weddin! was officiated "y the +ev. 3ashin!ton# who they found "y searchin! for
AlowB$riced "ut hi!hly entertainin! weddin! officiantsC on the 'nternet. +ev. 3ashin!ton would handle
all as$ects of the weddin! for a small fee# includin! filin! the a$$lication for the cou$le# and conductin!
the ceremony. A local television station recently disclosed that +ev. 3ashin!ton was really -ichael
/lark of Tallade!a# who did not have credentials to administer a weddin!. 's the cou$le actually
marriedD






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


". 9ot a valid marria!e and not enforcea"le as one.
c. 8owever:


!. Prerequisites to Marry %&L ''. /.)
*. "apacity %define it and a$$ly it)
a. Definition:


%*) The level of mental ca$acity in the marria!e conte2t is lower than in other le!al conte2ts# such as the a"ility
to enter contracts or make wills.
%.) A $erson who is mentally disa"led:


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


.. "onsent
a. 'n order for a marria!e to "e valid# "oth $arties must !ive their consent.
". Always test the Eoluntariness of /onsent.
c. A marria!e is invalid if either s$ouse is actin! under duress# or if the marria!e is "ased on fraud or deceit.
0. #ntent
a. Each $arty must have:

".

'f a"ove requirements are not met# the marria!e may "e considered void or voida"le.
III. ANNULMENT
A. Annulment Defined %&L 'E. A.)
*. Definition:
A DE/LA+AT'&9 T8AT T8E ,+'&+ -A++'A@E 3AS '9EAL'D ?/ &F S&-E DEFE/T# A9D T8AT DEFE/T
E('STED AT T8E T'-E T8E -A++'A@E 3AS /+EATED.

.. This decree of annulment means that in the eyes of Florida:
T8E /&U,LE 3AS 9EEE+ -A++'ED.

!. Dual $tatus of Annulment %&L 'E. ?.)
*. Annulment as a +eli!ious Event:

.. The state only reco!ni<es a court4s order of annulment. A civil annulment is necessary for all as$ects of the weddin!
to !o away.
". %rounds for Annulment %&L 'E. /.)
*. The !rounds had to e2ist at the time of the weddin!.
D. &oid or &oida'le %&L 'E. /.)
*. A marria!e is $resumed to "e:
EAL'D# U9LESS DE-&9ST+ATED &T8E+3'SE.

a. 'f a $erson has "een married more than once:
T8E -&ST +E/E9T &9E 'S T8E EAL'D &9E.
.. &oid Marriages
a. Definition: void marria!es are void from the start.
%*) Eoid marria!es cannot "e ratified.
%.) The $ro"lem is so hu!e it cannot 'e cured re!ardless of how lon! the cou$le has considered themselves
married or how many times they have consummated their relationshi$.
". Florida courts allow anyone to contest a void marria!e.
c. E2am$les of void marria!es:
%*) ?'@A->6S&-E&9E 38& 'S -A++'ED T& S&-E&9E ELSE -A++'ES A9&T8E+

%a) 'n Florida:
0
+D
DE@. FEL&9>

%.) '9/ESTU&US6+ELATED ,E+S&9S -A++>7 A9>&9E F9&3 F9&3'9@L> E9TE+S A9
'9/ESTU&US -A++'A@E 'S @U'LT> &F A 0
+D
'9 FL.

%a) -arryin! your first cousin is $ermitted in Florida.
%0) SA-E SE(

%1) /&--&9 LA3


%a) 9ote:
*) 'f entered into after *G:H:
+E/&@9'IED 'F ?EF&+E **
.) +E/&@9'IED 'F EAL'D U9DE+ A9&T8E+ STATE




Anyone can challen!e a marria!e if it falls into one of these AvoidC cate!ories. For e2am$le# relatives
can contest a marria!e for inheritance $ur$oses durin! a $ro"ate $roceedin!.
0. &oida'le Marriages
a. Definition:
A -A++'A@E T8AT 8AS S&-E ,+&?LE-S# ?UT ,+&?LE-S A+E /U+A?LE.

". &nly the $arties to the marria!e may raise the issue.
%*) -ust "e done in a family law $roceedin! to annul the marria!e while the defect still e2ists and while "oth
$arties to the marria!e are still alive.
c. E2am$les:
%*) LA/F &F /&9SE9T
%.) DU+ESS
%0) U'
%1) /&9SE9T T8+&U@8 F&+/E
%=) F+AUD
%:) A!e requirements are not met. Unless:
%a) -ust "e *H and have $arent4s $ermission &+
%")



d. 'f a marria!e is merely voida"le# as o$$osed to void# it remains valid until annulled.
8>,&T8ET'/AL
8arold and 3ilma entered into a $ro$er common law marria!e in Fansas in .;;0# moved to Florida in .;;J.
?oth 8arold and 3ilma# who are senior citi<ens# had "een married "efore. 3ilma was $ro$erly married in
*G:. to +o"ert# at her home church in To$eka# Fansas. +o"ert died in *GGG. 8arold was married to
Florence in a $ro$er ceremony in ,ensacola# also in *G:.. 8arold and Florence quickly !rew a$art and
Ase$aratedC from each other when 8arold was sent to Eietnam *G:0. 3hen 8arold retuned from his tour of
duty in *GJ1# he resumed a life on his own and never formally filed any $a$erwork to end his marria!e. 9o
issues ever arose "etween 8arold and Florence# and they have not s$oken since *G::. 8arold $assed
away a few months a!o# leavin! millions of dollars in his will to Ahis wife.C Florence# havin! read a"out the
$assin! in the news$a$er# now claims to "e the $ro$er "eneficiary. 3ho will the court determine is 8arold4s
wifeD
E(A-
T',







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


F. Defenses to Annulment %&L 'E. D.)
*. A $arty seekin! to defeat annulment of a voida"le marria!e can invoke defenses includin!:
a.

".

c. Unclean 8ands
d.

&+
e.
%. #mplications of Annulment %&L 'E. E.)
*. Althou!h an annulment in $rinci$le declares that the marria!e has never taken $lace# the court has the $ower to
declare:



a. /ourt may award alimony# child su$$ort# andor division of $ro$erty.
%*) @enerally# alimony is not awarded after an annulment e2ce$t for $ossi"le short term alimony durin!
annulment $roceedin!s.
%.) 'n dividin! $ro$erty# courts usually attem$t to $ut the $arties in their $reBmarria!e $ositions.
IV. DIVORCE/DISSOLUTION
A. %rounds for Diorce in Florida %&L E. ?.)
*. After a"olishin! faultB"ased divorce# Florida esta"lished two !rounds for divorce:
a. -E9TAL '9/A,A/'T> &F &9E ,A+T>

%*) For a divorce "ased on mental inca$acity# the inca$acitated $arty must "e ad5ud!ed inca$acitated:
F&+ AT LEAST 0 >EA+S A//&+D'9@ T& /E+TA'9 K ,+&/EDU+E +E SE+E'/E &9 T8E
-E9TAL ,A+T>. /T -UST A,,T A @UA+D'A9 &9 8'S ?E8ALF F&+ ,+&/EED'9@S.

%.) This time requirement cannot "e circumvented.
". 9& FAULT D'E&+/E6+EAS&9 D&ES94T -ATTE+#

%*) Su"5ective and $rivate. The reason does not matter.
.. The court may continue the action:
/T /A9 /&9T'9UE T8E A/T'&9 F&+ U, T& 0 -&9T8S T& @'EE /&U,LE &,,&+TU9'T> T& E'T8E+
+E/&9/'LE# &+ 'F &9E 'S /8ALLE9@'9@ T& 9&T /&9TEST. 'F /8'LD+E9# /T /A9 &+DE+ /&U9SEL'9@.



0. Althou!h Florida has a"olished faultB"ased divorce and the traditional defenses to divorce# the $arties4 wron!doin!
may still have an im$act on the outcome of the divorce.
a. -arital misconduct# includin! adultery# dissi$ation of assets# and s$ousal or child a"use# are factors the court will
consider in determinin! alimony# equita"le distri"ution of marital assets# $arental res$onsi"ilities# and awards of
attorneys4 fees.
8>,&T8ET'/AL
3hitney and 8uey are "oth devotedly reli!ious $eo$le# and si!ned a contract "efore enterin! into their
marria!e that they would not file for a divorce unless there were le!al !rounds under the old AfaultC
system. They have recently decided that they no lon!er wish to "e married. 3hat can they doD
38 -UST SEEF 9& FAULT D'E&+/E





V. FINANCIAL CONSEQUENCES OF DIVORCE
A. (quita'le Distri'ution %&L '(. A.)
*. Florida is a se$arate $ro$erty state durin! a marria!e.
.. Definition:


E(A-,LE:
Assets include real $ro$erty# "ank accounts# retirement accounts# accrued sick and vacation $ay# $atents# stock
o$tions# "usinesses# and $ersonal $ro$erty like cars# 5ewelry# $ets and furniture. Lia"ilities include de"ts# such as
credit card de"ts# mort!a!es# ta2 liens# and student loans. ,rofessional de!ree is not an asset# "ut the loans are a
lia"ility.
0. -arital vs. 9onB-arital ,ro$erty
-nemonic:
'4m coveredL %'-/&ED)
'M- 'dentification of -aritalnonBmarital#
/& /lassification of &wnershi$#
ED Ealuation and Distri"ution
a. Ealuation is "ased on a cutoff date %the date of filin!# date of trial# date of se$aration or any other date de$endin!
on what the fairest date to use is !iven nature of asset or lia"ility).
". 9onB-arital ,ro$erty
%*) Acquired "y either s$ouse $rior to the marria!e and retained se$arately7
%.)


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


%1) Assets e2cluded "y:

c. -arital ,ro$erty is not determined "y how it is titled# "ut whether the $ro$erty was acquired le!ally or "eneficially
"y one of the $arties durin! the marria!e. Lia"ilities are $ro$erty# too.
%*) -arital $ro$erty is $ro$erty acquired "y either s$ouse durin! the marria!e that isn4t nonBmarital $ro$erty#
includin!:
%a) Eested and 9onBEested +etirement
%") Stock o$tions# 'nsurance "enefits
%c) 'nterest in ,endin! Lawsuits
%d)
%e) @ifts "etween s$ouses
%f) Enhancement or a$$reciation of value of nonBmarital assets as a result of efforts of either s$ouse
durin! marria!e or contri"ution of marital assets to nonBmarital assets.
%.) There is no more special equity in Florida. %A' contri"uted over and a"ove the $erformance of normal
E(A-
T',
marital duties6therefore ' should !et more.C)
%0) ,rofessional de!rees:

%a) 8owever:

d. /onvertin! 9onB-arital ,ro$erty to -arital ,ro$erty
%*) Transmutation "y Title:


%.) Transmutation "y /ommin!lin!:


E(A-,LE:
There is a "ank account containin! 3ife4s $reBmarital savin!s. 8us"and and 3ife "oth de$osit their salaries
in the same account and "oth withdraw marital funds from the account. This will "e transmutation "y
commin!lin!.
%0) (nhancement)Appreciation:


E(A-,LE:
'f ,osh owned a cotta!e $rior to marria!e# "ut ?ecks fi2ed u$ the cotta!e# the increase in value of the
cotta!e is marital $ro$erty.
1. Division of Assets and Lia"ilities
a. ,ro$erty must "e distri"uted equally unless 5ustification for unequal treatment is shown.
". 'n those cases# the court will consider the followin! factors in dividin! $ro$erty:
%A/'D-ELD):
%*)

%.)


%0)

%1)

%=)
%:)

%J)

%H)

c. 3hen dividin! the remainin! marital estate# the s$ouse who was wron!fully de$rived of the value of the asset
may "e !iven a !reater distri"ution of the remainin! $ro$erty or assets as com$ensation for such dissi$ation.
8owever# marital misconduct alone is not a sufficient "asis to deviate from an equita"le distri"ution# unless the
conduct also de$leted marital assets.
d. /atch all:


E(A-,LE:
/ourt found an unequal award was not 5ustified where one s$ouse attem$ted to murder the other "ut a sentence
had "een served and assets weren4t de$leted. >es# there had "een marital misconduct# "ut it was not related to
the de$letion of marital funds.
E(A-,LE:
An im$rudent# "ut not $ur$osefully wasteful# investment of the $arties4 assets is not 5ustification for unequal
distri"ution.
E(A-,LE:
/ourt found an unequal award was 5ustified where the s$ouse de$leted assets "ecause of criminal char!es
a!ainst a $arty %hirin! lawyers to def char!es costs money).
E(A-,LE:
/ourt found an unequal award was 5ustified where the s$ouse en!a!ed in needless liti!ation# !am"led# or didn4t
contri"ute.
8>,&T8ET'/AL
3endy and 8ank were married in *GJ; when "oth worked for now defunct ,an Am7 8ank was a $ilot
while 3endy was a fli!ht attendant. 'n *GHH# the cou$le divorced# and the court ordered 8ank to $ay =;N
of the difference "etween 8ank4s $ension and 3endy4s $ension. 'n *GG;# ,an Am filed for "ankru$tcy# its
defined "enefit $ension $lan was canceled# and its assets were sold off to several other airlines. 8ank
went to work for a frei!ht airline# and has no retirement $lan7 3endy "ecame a fli!ht attendant for another
airline# and collects a retirement $lan from that com$any. They "oth retired this year# and 8ank has
$etitioned the court to seek =;N of 3endy4s $ension. 3ill the court !rant 8ank4s $etitionD






!. Alimony %&L '(. ?.)
*. The threshold for an award of alimony is "ased on:
a.


.. 3hat types of alimony can the court awardD
DATE consideration: For an initial award of alimony 'efore Ouly *# .;*;# the court will use these terms:
a. Tem$orary Alimony:





/annot "e waived
". ?rid!eBtheB@a$ Alimony:






c. ,ermanent ,eriodic Alimony:






d. Lum$ Sum Alimony:
%*) Lum$ sum alimony is not modifia"le %e2ce$t for fraud).
%.) &nce an award is issued# the s$ouse receivin! it has a ested interest in the award# meanin! the o"li!ation
will not terminate u$on the death of the $ayin! s$ouse or u$on a contin!ent event such as the remarria!e of
the needy s$ouse.
%0) Lum$ sum alimony is a fi2ed amount of alimony# thou!h it can "e ordered $aid in installments over time.
e. +eha"ilitative Alimony







f. 9ominal Alimony






For an initial award of alimony after Ouly *# .;*;# the court will use these terms:
!. ?rid!eBtheB@a$ Alimony:





h. +eha" Alimony:
9&TE







i. Durational Alimony:
%*) ,ur$ose is to $rovide a $arty with economic assistance for a set $eriod of time followin! a marria!e of short
or moderate duration &+ followin! a marria!e of lon! duration if there is no on!oin! need for su$$ort on a
$ermanent "asis.
%.) -ay not e2ceed the len!th of the marria!e.
%0) &nce issued# this alimony cannot "e modified unless there is a su"stantial chan!e in circumstances.
%1) Terminates on death or remarria!e of receivin! s$ouse.
5. ,ermanent Alimony is awarded to a s$ouse who lacks the a"ility to "e self sustainin!.
%*) ,ermanent alimony is availa"le for:
%a) short term marria!es %;BJ years) if there are written findin!s of e2ce$tional circumstances7
%") moderate term marria!es %JB*J years) if a$$ro$riate u$on clear and convincin! evidence# and
%c) lon! term marria!es %*JP years) if a$$ro$riate.
%.) 'n awardin! $ermanent alimony# the court shall include a findin! that no other form of alimony is fair and
reasona"le under the circumstances of the $arties.
%0) An award of $ermanent alimony terminates u$on the death of either $arty or u$on the remarria!e of the
$arty receivin! alimony.
%1) An award may "e modified or terminated "ased u$on a su"stantial chan!e in circumstances or u$on the
e2istence of a su$$ortive relationshi$ "y the su$$orted s$ouse.
*he amount of alimony award is entirely within the court+s discretion.
0. Factors /onsidered "y the /ourt in Determinin! the Ty$e# Duration# Amount of Alimony
a. The followin! factors are considered "y the /ourt in determinin! the amount of alimony awarded %LSAT FA/E):
%*)

%.)

%0)

%1)

%=)

%:)

%J)

%H)

%G) /atch All:

". +emem"er# the court factors all of these thin!s to!ether to fi!ure out the amount. This is unlike child su$$ort#
where the courts a$$ly a statutory ta"le# the amount of alimony is within the court4s discretion.
1. Modification
a. 'n order to o"tain a modification of alimony# the s$ouse seekin! a modification must show a su'stantial change
of circumstances in either a $arty4s need or a"ility to $ay.
". The count considers the followin! factors in order to o"tain a modification. The chan!e must "e:
%*)

%.)

%0) -aterial
%1)

%=) and somethin! that could not have "een contem$lated at the time of the divorce or dissolution.
c. An alimony 5ud!ment may "e reo$ened $ursuant to Florida Family Law +ule *..=1; if either s$ouse filed a
fraudulent financial affidait so lon! as reo$enin! is moved for in a reasona"le $eriod after fraud is discovered.
d. Su$$ortive +elationshi$s
%*) 'f a $erson receivin! modifia"le alimony enters into a su$$ortive relationshi$# an award of alimony can "e
modified or terminated.
%.) The followin! factors are considered "y the court in determinin! the e2istence of a Asu$$ortive relationshi$C:
%a)

%")

%c)

=. Termination
a. @eneral rule:


". Alimony res$onsi"ilities cannot "e terminated in "ankru$tcy.
:. Attorney4s Fees
a. 'n addition to awardin! su$$ort $aya"le from one s$ouse to the other# the /ourt uses the standard:



%*) A lawyer must not:


8>,&T8ET'/AL
?ar"ra and &liver married in .;;0. Two months "efore the weddin!# ?ar"ra has her lawyer# D4Amato#
draw u$ a marital a!reement that !ives her any home they "uy to!ether durin! the marria!e.
Additionally# &liver waived his ri!ht to all ty$es of alimony. The a!reement was validly e2ecuted. 'n
Fe"ruary .;;:# ?ar"ra files for divorce. &liver $etitions the court for all ty$es of alimony. /an &liver !et
any alimonyD






VI. PARENTING ISSUES: RESPONSIBILITY, PARENTING PLANS,
TIME SHARING AND CHILD SUPPORT
A. %eneral Principles %&L E'''. ?.)
*. &verridin! $rinci$le:
a.

". 9o $resum$tion in favor of either $arent.
.. Florida law states that it is in the "est interest of a child:
a.

".

0. "omponents of "hild Rearing in the *ime $haring Plan
a. Parental Responsi'ility ,decision-making component.
%*) ,arental res$onsi"ility deals with the decisionBmakin! $rocess of "ein! a $arent. There are two main
conce$ts to know for $arental res$onsi"ility:
%a) $hared Parental Responsi'ility
*) Definition:



a) Ultimate +es$onsi"ility:



i) Areas of res$onsi"ility may include education# health care# and any other res$onsi"ilities
that the court finds unique to a $articular $arent.
") ,arallel ,arentin!# not necessarily =;=;:


%") $ole Parental Responsi'ility:



%c) The $resum$tion is that shared $arental res$onsi"ility is in the child4s "est interest. 'f you want to
reallocate $arental res$onsi"ilities# the "urden of $roof is on the $arty seekin! the chan!e.
". TimeBSharin! Schedule and ,arentin! ,lans
%*) ,arentin! $lans sets out every as$ect of the child4s day to day life.
%.) ,arentin! $lans and time sharin! were introduced into law &cto"er *# .;;H# re$lacin! the lon!Bstandin!
le!al conce$ts of custody# visitation# $rimary residential $arent and secondary residential $arent.
%0) A $arentin! $lan must "e a$$roved "y the court# and it must descri"e in adequate detail how the $arents will
share and "e res$onsi"le for:
%a) Tasks
%") Schedule
%c) 8ealthcare# school related matters and other activities
%d) &utline of Technolo!ies Used to /ommunicate:


!. &n &ct. *# .;;J# the $arentBchild electronic communications statute came into effect which authori<es courts to order
electronic forms of communication such as tele$hone# we"cams# and eBmail to serve as a su$$lemental form of timeB
sharin! and $arentin! time.
*. !est #nterest of the "hild:


a. Florida has develo$ed .; factors for the /ourt to consider when makin! the overall determination of what is in the
"est interest of a child. 8ere are the five most im$ortant:
%*)

%.) A $arent4s a"ility to allow $arentin! time with other $arent
%0)

%1) A"ilities of each $arent
%=) A"use
". /ontinuity and Demonstrated Factors.
%*) 'n the actual factors list# the consistent use of the term AdemonstratedC in some of the newer factors
su!!ests a focus on maintainin! the status quo. 'n other words# what the $arents evidenced durin! the intact
relationshi$ or liti!ation relevant to their a"ility to "ehave in a manner that took their child4s "est interests into
consideration. The AdemonstratedC factors include the demonstrated a"ility to do the followin!:
%a)

%")

%c) Demonstrated a"ility to $rovide a consistent routine and disci$line
%d)

%e) Demonstrated a"ility to not "ad mouth the other $arent and kee$ a united front.
.. There is a catch all statin! the court can consider any other relevant factor.
a. 'n assessin! the factors to create a $arentin! $lan# the court must "alance the "est interest of the child standard
with a $arent4s constitutionallyB$rotected ri!hts.
". /ourts may consider the $arent4s lifestyle only to the e2tent that the conduct associated with that lifestyle
5eo$ardi<es the mental or $hysical wellB"ein! of the child.
c. 9on le!itimate considerations:


%*) 'f you see one of these factors considered "y a court# write A/lient should a$$eal.C Standard is a"use of
discretion.
%.) Factors a court cannot consider:




0. Time sharin! and $arentin! $lans %as well as shared $arental res$onsi"ility) can "e modified u$on a showin! of
su"stantial chan!e in circumstances affectin! the child4s welfare.
a. $u'stantial change of circumstances includes:



". Standard of $roof: $arent has to show that su"stantial chan!e of circumstances is material/ significant/ and not
anticipated at the time the ori!inal $arentin! $lan was ordered.
c. &nce a su"stantial chan!e of circumstances has "een demonstrated# all of the factors involved in makin! an
initial determination of what is in the "est interest of the child are considered.
d. -ilitary service statute:



BAR EXAM APPLICATION
Question *
A$$licants were asked to analy<e issues arisin! out of divorce $roceedin!s "etween 3ilma and 8udson. 3ilma had a child
from a $revious marria!e. 8udson ado$ted 3ilma4s child. 8udson served as a stayBatBhome dad to their child. 3ilma seeks
custody$rimary res$onsi"ility of their son. 3hat should "e the outcome of the case re!ardin! custodytime sharin!D
1. Relocation
a. Definition:



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

%.)

%0)
%1)

-nemonic: /A3S

/ /onsent
A Arran!ements for trans$ortation
3 in 3ritin!
S Schedule reflectin! new time sharin!
c. 'f an a!reement has not "een reached# any $arent who is entitled to timeBsharin! must notify the other $arent if
he or she is $ro$osin! to relocate. The notice must include:
%*)
%.) Date of the intended move
%0)
%1) ,ro$osal for $ost relocation time sharin! schedule# trans$ort
%=) Unknown info must "e u$dated
d. !urden of Proof:




%*) 'f that "urden of $roof is met# the "urden shifts to the nonBrelocatin! $arent to show "y a $re$onderance of
the evidence that the $ro$osed relocation is not in the "est interest of the child.
e. 3hen rulin! on a $ro$osed relocation# the court must consider all of the factors considered for $arentin! $lan
determination %"est interests)# as well as the followin! additional factors:
%*) 9ature of esta"lished relationshi$s with family near"y %includin! nonBrelocatin! $arent)
%.) ,rimary care!iver
%0)
%1) ,reservin! $arent child relationshi$
%=)
%:) Enhance life of relocatin! child
%J) ?etter quality of life for $arent %look for "ad faith# current economic situations of "oth $arents# hi!her $ayin!
5o"# etc.)
%H) Su"stance a"use of other history of a"use
%G)
E(A-
T',
-nemonic: ?est interests of the child P 3A@E+S
3 3ants of child
A A!e of child
@ @ood faith
E Esta"lished relationshi$s
+ +easons for move
S Su"stance a"use or other a"use history
=. @+A9D,A+E9TS6@rand$arents do not have the ri!ht to demand time sharin!
a. 'n Florida:




:. Su$ervised EisitsTime Sharin!6Time sharin! %formerly called visitation) is only denied or su$ervised if Adetrimental
to the child.C
a. ,arents have the ri!ht to $ursue a Ameanin!ful $arentBchild relationshi$.C
". Thus# the $arent will had to have demonstrated conduct harmful to child or s$ousal a"use.
c. A re"utta"le $resum$tion is created for the nonBcom$lainin! $arent to overcome if:
%*) ,ast a"use &+
%.)

E(A-
T',

BAR EXAM APPLICATION
Question .
3ife has sole $arental res$onsi"ility for son# "ut 8us"and has some time sharin!. 3ife AhatesC 8us"and and asks the court
for $ermission to move %so that she can !et away from 8us"and) and for 8us"and to have su$ervised $arentin! time.
Analy<e 3ife4s requests.
". "hild $upport %&L '(. /.)
*. Duty
a. 'n Florida:


". 9either $arent can waive the ri!ht of child su$$ort on "ehalf of the child.
.. /alculatin! /hild Su$$ort
a. Under federal law# states must $rovide courts with statutory !uidelines for determinin! the a$$ro$riate amount of
child su$$ort. 9&TE: 'f a nonBresidential $arent !ains more than 1;N of time sharin!# court looks at "oth $arents.
%*) 9et income A9D
%.)

". Deviation from the /hild Su$$ort @uidelines6The court has to $ut in writin! reasons if they deviate more than
=N. +easons why a court may deviate more than =N from !uidelines:
%*) /ourt cannot consider any social security income of child# "ut the court can consider if the child is a multi
millionaire.
%.) 'f /hild has s$ecial needs# s$ecial interestsschools
%0) A court may deviate a"ove or "elow the !uidelines "y =N without 5ustifyin! that calculation.
0. -odification of /hild Su$$ort
a. /hild su$$ort is modifia"le.
%*) 'n order to o"tain a modification of child su$$ort# the $arent seekin! a modification must show a su"stantial
chan!e of circumstances in either a:
%a) ,arty4s a"ility to $ay %need v. a"ility to $ay)
%") /hild4s needs
%c)

". Unlike alimony# the chan!e could have "een contem$lated at the time of the final 5ud!ment. For e2am$le# a "asis
for modification is the increased needs of older children# which is an event that can "e contem$lated.
8>,&T8ET'/AL
Frank and -arissa divorced. They had one child# -itch. Frank was ordered to $ay *;=N of the
!uidelines in child su$$ort. Frank runs an im$orte2$ort "usiness where shi$$in! costs !o u$
si!nificantly for several years strai!ht. Frank is nettin! less money. -arissa claims that Frank holds
si!nificant investments that will make u$ any shortfall issues Frank has. 8ow will the court ruleD






VII. RULES FOR HUSBANDS AND WIVES
A. %ender Roles in Marriage %&L '''. A.)
*. Traditional roles $rovided:
a. 8US?A9D


". 3'FE


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


a. States can assi!n ri!hts to hus"ands and wives# !enerally.
!. Rights and 0'ligations of 1us'ands and 2ies %&L '''. ?.)
*. Property Rights
a. Tenancy "y the Entirety: Florida law dictates that tenancy "y the entirety "e a default to married cou$les.
%*) This allows for the survivin! s$ouse to take ownershi$ of the $ro$erty without $assa!e throu!h $ro"ate
when one s$ouse dies.
%.) This is $ermitted# "ut not required. Each s$ouse may acquire and maintain sole title to $ro$erty.
.. 0'ligation to $upport
a. 'n Florida# each s$ouse has:



". Enforcement of su$$ort ri!hts
%*) Des$ite many states4 reluctance to enforce the duty of su$$ort a!ainst a s$ouse "efore a marria!e has "een
dissolved# Florida statutes $rovide for enforcement of family su$$ort o"li!ations.
8>,&T8ET'/AL
/atherine and 8eathcliff were married for *= years and have several children to!ether. ?oth /atherine
and 8eathcliff held equally hi!hB$ayin! 5o"s as $sychiatrists# and were more than a"le to meet the
family4s financial needs. 8owever# all the e2$enses of the family# includin! the mort!a!e# home
maintenance# food# clothin! and education for the children# and the family cars# were $aid entirely "y
8eathcliff. /atherine s$ent all of her income on Athin!s that made her ha$$y.C Last year 8eathcliff
"ecame tired of this situation and demanded that 3anda $ay for the family4s new car. /atherine# u$set
that she can no lon!er afford her daily s$a treatments# has sued for nonBsu$$ort. 3ill the court find that
/atherine has a valid claimD






0. Marital Priilege
a. Florida does not reco!ni<e s$ousal $rivile!e# "ut does reco!ni<e a marital communications $rivile!e. This
$rivile!e:
%*)

%.)

%0)

%1)

1. *ort Rights
a. Two cate!ories:
%*) /laims "etween s$ouses
%a) A s$ouse may sue another s$ouse for thin!s such as for assault# "attery# or s$readin! of venereal
diseases.
%") 8owever# no $rivile!e a$$lies.
%.) /laims "y a s$ouse a!ainst a third $arty
%a) 'n Florida:


E(A-,LE:
'f a s$ouse is in5ured "y someone else4s ne!li!ence# and they are no lon!er a"le to $rovide com$anionshi$#
the other s$ouse may have a se$arate claim a!ainst the third $arty for his or her own losses.
=. "rimes !etween $pouses
a. 3here there is domestic violence# one can o"tain a civil or criminal order of $rotection %stayBaway order) from the
court. 3ho can o"tain such ordersD
%*)

%.) Former s$ouses
%0)

%1)

". Florida law defines domestic violence "roadly to include:
%*)

%.)

%0) ?attery
%1)

%=)

%:)

%J)

%H) False 'm$risonment
%G)

VIII. FILING, JURISDICTION, AND UCCJEA
A. Filing Procedure %&L E'''. A.)
*. 3hen initiatin! an action for dissolution of marria!e %divorce)# a s$ouse will file a ,etition for Dissolution of -arria!e
alle!in!:
a.
". @rounds for su"5ect matter 5urisdiction
c.
d. +equest court to esta"lish a $arentin! $lan
e.
f. Ask for tem$orary alimony %if $etition was filed "efore Ouly .;*;)
!.
h. 'f you have a $renu$tial a!reement# ask court to enforce the a!reement.
!. 3urisdiction %&L E'''. A.)
*. States must $rovide indi!ent s$ouses access to divorce. The indi!ent s$ouse needs to file for $au$er status and will
then "e entitled to a waiver of court fees.
.. $u'4ect Matter 3urisdiction
a. 'n Florida:


". The s$ouse filin! for divorce does not have to "e the s$ouse who meets the residency requirement for su"5ect
matter 5urisdiction.
0. Personal 3urisdiction
a. Florida does not need $ersonal 5urisdiction over the nonBfilin! s$ouse in order to !rant a divorcedissolution or
determine issues related to time sharin!. Florida does need $ersonal 5urisdiction over the nonBfilin! s$ouse in
order to make the nonBfilin! s$ouse $ay s$ousal su$$ort# child su$$ort or other issues re!ardin! $ro$erty.
". 'f the nonBfilin! s$ouse does not reside in Florida# then the /ourt must look to Florida4s lon!Barm statute to assert
$ersonal 5urisdiction. ,ersonal 5urisdiction will "e asserted if:
%*)
0R
%.)

". 5""3(A ,5niform "hild "ustody 3urisdiction (nforcement Act. %&L E'''. A.)
*. U//OEA $ermits Florida to ad5udicate matters related to children %like a $arentin! $lan) without havin! $ersonal
5urisdiction in certain situations.
Test if Florida mi!ht have 5urisdiction under U//OEA.
a. To make custodytime sharin! determinations# Florida courts may have 5urisdiction if Florida the home state.
%*) 8ome State Test: lived in FL since "irth or at least lived in FL for the last : months.
%.) 'f Florida is the home state under this test# it can rule.
". 'f no other state is the home state# then does Florida have si!nificant connectionsD %lived here for a very lon!
time# many relatives in FL)
c. 's Florida the most a$$ro$riate forum for this matterD
d. 's Florida the default 5urisdictionD Do other states want 5urisdictionD 's there a more Aa$$ro$riate forumCD
9&TE
e. Florida maintains 5urisdiction until the child %or "oth $arents) moves out of the state
.. 'f Florida ruled on initial custody determination# Florida $ro"a"ly has continuin! 5urisdiction.
0. Florida can decline to e2ercise 5urisdiction %either in initial determinations or modifications) if:
a. Florida is inconvenient forum if: %factors)
". 3ould family "e "etter served elsewhereD
%*) Len!th of time child resided outside of state
%.)
%0) Another state court is more familiar with the case
c. Un5ustifia"le conduct
,ersonal Ourisdiction is 9&T required over the nonBmovin! $arty under the U//OEA.
%to decide time sharin!custody issues.)
1. 'm$osition of Su$$ort &"li!ations
a. /ourt must have:



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


:. Uniform 'nterstate Family Su$$ort Act:
a. E2$ands on most states4 lon! arm statutes.
". Allows for an order for child su$$ort can "e o"tained and enforced where a $arent and child live even if:

c. Florida4s !rounds for lon! arm 5urisdiction include:
%*) They serve the $erson in the state
%.)
%0) 'f they ever resided with the child in the state
%1) 'f they ever $rovided child su$$ort for child while livin! in the state
%=) 'f the child lives in the state as a result of their actions
%:) 'f they ever had intercourse in the state and child was conceived
%J) 'f they asserted $aternity in $utative father re!istry
%H) Any other le!al "asis.
9&TE

IX. DETERMINING A CHILDS STATUS
A. Marital "hildren %&L E'. A.)
*. Even with artificial insemination or in vitro fertili<ation# "oth $arents are automatically considered le!al $arents of that
child if they are married when the child is "orn.
!. 6on-Marital "hildren %&L E'. ?.)
*. A nonBmarital child "enefits from a com$lete set of ri!hts from his or her mother.
.. Esta"lishin! ,aternity
a. A nonBmarital child may also "enefit from a com$lete set of ri!hts with res$ect to the "iolo!ical father.
%*) Florida requires that a "iolo!ical father esta"lish his ri!hts "y:
%a) E2ecutin! a notari<ed affidavit acknowled!in! $aternity
&+
%") -arryin! the mother of his child
". 'n order for the father to assert his ri!ht to a meanin!ful relationshi$ with the child# his status must "e decided "y
a /ourt.
". &oluntary *ermination of Parental Rights Pending Adoption %&L E''. A.)
*. &oluntary *ermination:
a. A $arent may choose:


".


E(A-,LE:
An unmarried cou$le# where one $arent does not wish to e2ercise ri!hts to contact and access or to $ay su$$ort#
will not "e $ermitted to terminate $arental ri!hts.
D. #noluntary *ermination of Parental Rights %&L E''. ?.)
*. 'nvoluntary termination of $arental ri!hts ha$$ens in de$endency $roceedin!s.
a. A /ourt will terminate a $arent4s ri!hts when the court finds:



%*) A $arent whose child has "een ad5udicated de$endent "ecause of any of the a"ove will "e ordered to
com$ly with a case $lan created "y the De$artment of /hildren and Families.
". The a"ove $arent will "e ordered to com$ly with a case $lan created "y the De$artment of /hildren and Families.
%*) Failure to com$ly with a case $lan will result in termination of the $arent4s ri!hts.
(. Disesta'lishment of Paternity %&L E'. ?.)
*. Even after court esta"lishes $aternity or $aternity esta"lished throu!h marria!e# a father has a ri!ht to file a $etition to
disesta"lish $aternity.
.. A court will undo a $aternity findin! under certain circumstances:
a.

". 'f he did not ado$t the child
c. 'f the dad was married to the mom %and she did not have artificial insemination)
d. 'f the dad did not interfere with the "iolo!ical father4s a"ility to assert his $arental ri!hts
e. /hild is under the a!e of *H when the father asserts his $etition to disesta"lish $aternity
0. A court can still deny a $etition to disesta"lish $aternity even if the dad is not really the father under certain
circumstances:
a. 'f the dad knew he was not the dad "ut married the mom and assumed $arental o"li!ations and $aid child
su$$ort
". 'f the dad knew he was not the father "ut acknowled!ed $aternity in a sworn statement
c. 'f the dad knew he was not the father and consented to "e on the "irth certificate
d. 'f the dad knew he was not the father "ut $romised in writin! to su$$ort the child and was required to su$$ort the
child "ased on that $romise &+
e. 'f the father received a statement from a state a!ency sayin! that he needed to su"mit to scientific testin! and the
father disre!arded the notice.
F. Adoption %&L E'. /.)
*. Definition:


.. ,rerequisites for Ado$tion
a.


".


c. ,arental ri!hts have "een terminated "y a court order %or are su"5ect to termination)
,eo$le may voluntarily !ive u$ their ri!hts or the court may take them away.
d. ,arents ho$in! to ado$t must under!o a home study:
%*) Determine suita"ility
%.) -ust re$ort an intended $lacement of a minor for ado$tion with any $erson not a relative or ste$ $arent if:

e. AtB+isk ,lacement is when the minor is $laced in the $ros$ective ado$tive home "efore the $arental ri!hts of the
minor4s $arents are terminated.
f. "onsent
%*) 'f a child is more than si2 months old when $arental consent is !iven# the consent is su"5ect to a threeBday
waitin!revocation $eriod.
%.) After the revocation $eriod has e2$ired# a court may void a $rior consent "ased on a findin! of fraud or
duress.
%0) 'ssues arise if the mother consents# "ut the father does not.
%a) 'f the child is less than : months old# the "iolo!ical father who o"5ects must take action "efore the
mother e2ecutes her consent to ado$tion and he must:
*) File:

.) Show:

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

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

.) Took a measure of res$onsi"ility
0) @ave financial su$$ort
1) /ontact on re!ular "asis
0. Adoptees
a. /hildren: children are eli!i"le for ado$tion if their $arents are deceased or have had their $arental ri!hts
terminated.
%*) /hildren over a!e *. must !ive their consent to "e ado$ted# the court may override a refusal to consent if it
determines the ado$tion is in the child4s "est interest.
". Adults: 'n Florida# adults may ado$t other adults.
%*) For an adult to "e ado$ted:
%a)

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

c. Relationship of Adoptie "hildren to Adoptie Families
%*) -odern a$$roach to ado$tion:


d. Relationship of Adopted "hildren to !iological Families
%*) &nce an ado$tion is com$lete# an ado$ted child maintains no le!al connection to his "iolo!ical family
unless:
%a)

%") For ste$$arent ado$tions# the ado$tive child4s relationshi$ with the "iolo!ical $arent married to the
ste$$arent is fully maintained.
1. Adoptie Parents
a. 3ho isis not allowed to ado$tD
%*) 8us"and and 3ife may ado$t a $erson 5ointly.
%.)

%0)

%1) 9&TE: 'n Se$t .;*;# 0d D/A held "an on !ay ado$tion unconstitutional.
". The hierarchy of $reference for ado$tion after death of $arent when "oth $arents have died and they have left no
will desi!natin! a !uardian for their minor child%ren)# or when a $arent4s $arental ri!hts have "een terminated# is
as follows:
%*) @rand$arents
%.) &ther le!al relatives
%0) Unrelated $erson may ado$t# like foster $arents.
=. $urrogacy ,Pre-planned adoption.
a. There are two ty$es of surro!acy
%*) *raditional surrogacy:


%a) The a!reement used is called a $re$lanned ado$tion a!reement.
*) 'n this a!reement# the volunteer mother a!rees to "ear a child and relinquish all $arental ri!hts.
%.) %estational surrogacy:



%a) The a!reement used is called a !estational surro!acy contract "ecause the surro!ate has not $rovided
!enetic material and is there"y not considered a A"iolo!icalC $arent of the child.
". 3ithin three days of the "irth of the child# the court is $etitioned to decide status. /ourt decides details of !enetic
material dis$osal.
c. Any $arty to a $re$lanned ado$tion a!reement may terminate the a!reement at any time.
X. FAMILY LAW STATE V. FEDERAL PREEMPTION AND OTHER RIGHTS
A. %oerning law %&L '. A.)
*. 3hat kind of law a$$liesD Family law $rimarily is:

a. Each state has its own rules# found in statutes and case law# !overnin! the ri!hts and o"li!ations of family
mem"ers and each other# as well as ri!hts "etween families and the state# $rovided that federal constitutional
ri!hts not violated. The state is em$owered to ad5udicate family issues.
". Even if a divorcin! cou$le resides in two different states %normally !ivin! rise to diversity 5urisdiction) there is a
domestic relations e2ce$tion that does not allow either $arty to "rin! the case in federal court.
.. The Florida le!islature codified re!ulations re!ardin! family law in several cha$ters of the Florida Statutes. 8owever#
some FL Family Law rules from common law.
0. Florida Le!islature has ado$ted many uniform laws ado$ted "y all states. %E2am$les: D&-A# U//OEA# ta2
im$lications and other child s$ort enforcement rules.)
1. The United States Su$reme /ourt has held that the /onstitution $rotects some "asic familyBrelated ri!hts# and states
that try to infrin!e on these ri!hts must $rovide com$ellin! 5ustifications for doin! so# usin! the least restrictive means#
includin!:
a. Right to marry
".

c.

d. Right to use contraception
e.

f.

!.

h.


=. Local &rdinances: various munici$alities have enacted local re!ulations and ordinances that affect family
or!ani<ation# such as <onin! and rent control laws that re!ulate how families may or!ani<e themselves. These laws
have "enefits that $rotect coha"itin! or sameBse2 cou$les.
9ote: Even thou!h ri!ht to marry is %a) a"ove# this does not $rotect same se2 marria!es.
E(A-,LE:
The ri!ht to live with family mem"ers is a constitutionally $rotected ri!ht. There are many Su$reme /ourt cases a"out
who has a ri!ht to live with one another or not %one cannot live with whoever they wish if there is a local law enacted
"y a city or county)# "ut the ri!ht to live with family mem"er is $rotected.