FLORIDA FAMILY LAW

I. Family Law Rules of Procedure A. General separate set of rules for litigation of all family law matters including, annulment, dissolution of marriage, domestic violence, paternity, adoption, marital agreements, and civil contempt of actions; B. Mandatory Disclosure Requirement parties in proceeding involving request for temporary or permanent financial relief, i.e. child support, alimony, equitable distribution, must prepare, file with court, and file on opposing party certain financial documents, including financial affidavit and tax returns; - parties with income of $50,000 or more must produce more comprehensive documents than less financially advantaged parties; C. Supplemental Discovery Responses party is under continuing duty to amend prior response or disclosure if party discovers that response or disclosure was incorrect when made or is no longer correct; - all supplemental responses must be served as soon as possible after discovery of new or incorrect information or at least 24 hours before applicable hearing; II. Marital Agreements A. In General principles of contract construction apply; courts strictly scrutinize marital agreements for good faith and lack of undue influence; 1. Antenuptial Contracts between prospective spouses, except contracts to marry, generally valid; fall within SOF, i.e. must be in writing and signed by party to be charged; consideration is met by entry into marriage; - after marriage formed, may be amended or revoked only be written agreement signed by both parties; 2. Postnuptial Contracts by statute, spouses may contract with each other; per se do not fall within SOF; subject matter may fall within SOF; mutual promises or changes in property rights are sufficient consideration; entering into marriage is past consideration and not valid consideration; B. Requirements agreement must be voluntarily entered without fraud, overreaching, undue influence, or coercion; - agreement must be fair and just, or must have been entered into after full and fair disclosure or after completion of discovery; C. Alimony and Child Support Agreements agreements are nonfinal and may be modified by court as equity arises; 1. Change in Circumstances either party to alimony or child support agreement may apply for modification due to substantial change in circumstances; 2. Waiver of Rights right to receive alimony may be expressly waived for consideration; right to receive temporary alimony and child support cannot be waived; D. Property Agreements antenuptial and postnuptial agreements to settle property rights generally binding and specially enforceable; cannot be modified by courts; 1. Final Settlement of Obligations agreement, as a whole, must plainly show parties intended it to be final settlement of obligations concerning property; if there is relinquishment of valuable property right in consideration of payments, and if there is express provision that this consideration is in lieu of alimony, then agreement is property settlement; 2. Reconciliation or Remarriage to Former Spouse abrogates unexecuted provisions of prior marital settlement agreement with spouse unless explicit statement in agreement show parties intended otherwise; E. Probate Rights agreement to waive all rights in property or estate of spouse is valid; no consideration other than execution of agreement required; if agreement executed before marriage, no disclosure of estate is required; if executed after marriage, must be full disclosure; III. Entry into Marriage A. No Common Law Marriages common law marriages after 1968 are not valid; courts recognize common law marriages valid when entered in sister state; B. Statutory Marriage requires license and solemnization for valid marriage; 1. Licensure parties must be (1) opposite sex, (2) at least 18 years old; - parties under 18 may marry with parental approval; under 16 may marry with judicial approval; - three day waiting period for couples who have not completed premarital preparation course; 2. Solemnization accomplished by judge, authorized public official, or religious institution; - proxy marriage is not permitted, i.e. where one or both of the parties are not physically present and represented by another; 3. Validity presumed valid; requires capacity and consent to enter relationship; - consummation not required but failure to consummate may be grounds for annulment; IV. Rights within the Marriage A. Husband and Wife 1. Property each spouse owns and controls own real property during marriage; - absent express language to the contrary, real property acquired in both spouses names during marriage creates tenancy by entirety; after dissolution, property is held as tenants in common; - all conveyances made by one spouse to another spouse are effective to convey title; 2. Support obligation of support is reciprocal; extent of support depends on needs of one spouse and ability of another spouse to pay; court can modify support as equity requires; 3. Name Change wife may retain or revert to her birth name without resort to legal process; 4. Anti-Heartbalm Statute actions for alienation of affection, criminal conversation, seduction, and breach of contract to marry have been abolished;

B. Parents and Children 1. Parens Patriae Doctrine ultimate responsibility for child rests with state where child is physically located; - parental right to make decisions concerning child is not absolute; state must act in best interests of child; 2. Duty of Support both parents have duty to support minor child until child is emancipated; child is emancipated upon reaching 18 years of age, being married, or becoming self-sufficient; 3. Liability of Parents for Childs Acts parents are liable for willful or malicious destruction or theft of property by children who are under 18 and live with them; - liability is limited to actual damages and court costs; C. Domestic Violence defined as assault, battery, sexual battery, stalking, or any other criminal offense resulting in physical injury or death of one family member by another current or former family member; 1. Law Enforcement officer who investigates alleged incident must provide victim with notice of legal rights and remedies, including injunction, support, and custody; 2. Injunction for Protection restrains individual from harassing family member, visiting residence, removing or interfering with children, or any other activity court finds necessary to enjoin; a. Ex Parte Temporary Injunction cannot remain in effect for more than 15 days; hearing must be held within that time; b. General Injunction similar to temporary injunction except there must be notice and a hearing prior to issuance; injunction may remain in effect for fixed period, and party can petition for successive periods as well; c. Permanent Injunction available when necessary to protect safety of spouse or child; 3. Support and Child Custody petition is entitled to seek alimony and child support from enjoined spouse; when awarding custody, court considers spousal abuse as evidence of detriment to child; V. Termination of Marriage A. Annulment process by which party seeks judgment that marriage is invalid; after judgment has been entered, parties are treated as if they had never been married; 1. Void-Voidable Distinction if marriage is void, it cannot be ratified; void marriage may become voidable if impediment is removed; any party may attack void marriage; voidable marriage is deemed valid unless one spouse seeks annulment; only spouse can attack voidable marriage, and if spouse ratifies marriage or dies, marriage cannot be invalidated; 2. Grounds for Annulment must exist at the time of the wedding; a. Consent parties must have consented to establishment of marriage K; no lack of mutual assent, duress, or fraud; b. Capacity if party has permanent mental defect, then marriage is void; if party had temporary insanity, or was drunk or stoned, then marriage is voidable; c. Intent if parties did not have intent to be bound by marriage and accept rights and duties of relationship, then marriage is voidable; d. Bigamy or Polygamy if either party has another living spouse, then second marriage is void; e. Incest party may not marry direct blood ascendant or descendant or sister/brother, aunt/uncle, or niece/nephew; f. Nonage if party was under 18yo at time of marriage, marriage is voidable or may be ratified when party is 18yo; g. Impotence if wife has no knowledge of incurable physical impotence before marriage, and does not ratify marriage after discovering it, marriage is voidable; 3. Defenses to Annulment a. Non-Existence impediment to void marriage does not exist; b. Recrimination both parties have caused the same impediment; c. Condonation parties remain in marriage relationship even after discovery of impediment; d. Laches party discovers impediment for annulment but fails to bring action within a reasonable time; e. Ratification partys later conduct ratifies marriage though party lacked mental capacity at time of marriage; 4. Alimony may not be awarded after annulment; during pendency of proceedings, temporary alimony may be granted and equitable damages may be awarded; 5. Property Division in dividing property, courts attempt to put parties in their pre-marriage positions; B. Dissolution of Marriage 1. Procedure a. Jurisdiction circuit courts have jurisdiction over dissolution of proceedings; - subject matter jurisdiction = one of parties has been Florida resident for six months prior to filing for disso; residency corroborated by drivers license, voter registration, or third-party testimony; - personal jurisdiction = based on out-of-state respondents physical presence within state, ownership of property within the state, or minimum contacts with state; b. Service of Process achieved through states long arm statute for out-of-state respondent; although complaint is generally delivered to respondent, if respondent is out-of-state or cannot be located, service may be by publication; c. Venue in county where breach occurred, marriage last existed, or one spouse lives; 2. Grounds for Dissolution no fault divorce; - marriage is irrevocably broken or spouse has been adjudged mentally incompetent for preceding period of three years; - if there is minor child of the marriage or respondent denies marriage is irretrievably broken, court need not immediately grant dissolution; court may order counseling or continuance to enable parties to reconcile; - defense = denial of grounds for the action;

3. Summary Dissolution Procedure uncontested summary disso procedure may be used in county court if parties file affidavit stating (1) marriage is irretrievably broken, (2) there are no minor children, and (3) all of joint property and joint obligations have been divided; 4. Divorce in Other States and Foreign Countries valid divorce from other state that may affect property within Florida will be given full faith and credit; - if Florida does not recognize the action or terms of divorce, judgment will not be binding on spouse residing in Florida; - full faith and credit does not apply to divorce in other countries but judgments may be recognized on principles of comity and reciprocity; C. Discretion of Court court has great discretion to award property, alimony, child support, and attorneys fees as justice requires; D. Appellate Review appellate review granted only for abuse of discretion; VI. Equitable Distribution, Alimony, and Child Support and Custody A. Equitable Distribution court may make equitable distribution of all marital assets; nonmarital assets are not considered; property must be distributed equally unless circumstances justify unequal treatment; - marital assets = all property acquired by either spouse during the marriage from sources that are connected with the marriage, plus interspousal gifts; 1. Factors for Unequal Treatment (1) contribution of parties to marriage; (2) economic needs of parties; (3) interruption of career or education during marriage; (4) payment by one spouse of another spouses educational expenses; (5) length of marriage; (6) need to maintain marital household for minor child; (7) need to maintain a particular asset with one spouse; (8) financial misconduct by one spouse during two years before dissolution; 2. Interim Order court may enter interim order partially dividing assets and liabilities between spouses during pendency of dissolution; must take into account partial distribution in final property allocation; 3. Marital versus Nonmarital Assets - retirement benefits = all benefits accrued during marriage, including pension, annuity, retirement, are marital assets; - damage awards for personal injury or workers comp = nonmarital assets include noneconomic damages for pain, suffering, and loss of enjoyment of life; economic damages that arise after termination of marriage; noneconomic damages for loss of consortium for noninjured spouse; marital assets include economic damages for loss of wages, medical bills paid for with marital assets; - special equity = abolished; court may not recognize that one spouse has vested right in anothers nonmarital property or spouse has more than half interest in marital property; - exclusive custody of marital home = court may award exclusive custody of marital home in one spouse for specified period; award is subject to modification whenever substantial change in circumstances; may take into account disability during marriage; 4. Finality all property settlements from dissolution are final and not modifiable; 5. Tax Consequences distribution is not a taxable event; payments are not income and may not be used as a deduction; B. Alimony support obligation available to either spouse; 1. Factors court may consider following factors in awarding alimony; a. Individual Factors (1) age, (2) standard of living; (3) mental or physical condition; (4) time needed for education or training; (5) all income sources available; (5) financial condition; b. Marital Factors (1) contribution to marriage; (2) adultery (only if had financial consequences); (3) length of marriage; 2. Temporary Alimony available during the pendency of the dissolution; 3. Permanent Periodic Alimony paid regularly to support spouse who has neither resources nor ability to be self-sustaining; - may be modified upon showing of substantial change in circumstances, i.e. but not self-induced reduction income where spouse quits job; - absent agreement to contrary, terminates on death of either spouse or remarriage of recipient spouse; 4. Lump Sum Alimony award of definite sum of money or property; may be paid at one time or installments; - creates a vested interest not subject to defeasance or modification; - final and survives death of either spouse; - must be justified on some basis beyond one spouses need and others ability to pay, i.e. ensure fair division of property; 5. Rehabilitative Alimony may be granted to assist spouse in becoming self-sufficient; C. Child Custody and Support standard of awarding parental responsibility [custody], time-sharing [visitation], and support is best interest of child, with neither party having superior claim; 1. Factors a. Parents (1) ability to encourage close and continuous parent/child relationship; (2) division of parental responsibilities and tasks; (3) moral fitness, and mental and physical health of parents; (4) capacity for consistent routine; (5) evidence of DV, abuse, or neglect; b. Child (1) desire to maintain stable environment; (2) geographic viability of plan; (3) reasonable preference of child; - court may order family mediation or DCF social investigation; court may appoint guardian ad litem and/or legal counsel for child; court may not deny parental responsibility, custody, or time-sharing because parent or grandparent has AIDS; 2. Primary Residential Responsibility childs welfare is primary consideration; court considers all relevant factors; - both parents are given same consideration for primary residential responsibility, regardless of childs age;

- weight given to a childs preference depends on childs age and maturity of child; a. Fostering Loving Relationship court may provide that one parent instruct children to love and respect other parent; b. Parenting Plan governs relationship between parties relating to decisions that must be made regarding child; approved by court and includes description of division of child-rearing tasks, time-sharing schedule, designation of responsibility for childs health care and school-related matters; must outline permissible communication methods; c. Moving Residence of Primary Residential Parent if primary residential parent wants to change residence more than 50 miles from current residence and more than 50 miles from nonresidential parent, must (1) obtain written consent of every person entitled to time-sharing with child; or (2) serve a notice of intent to relocate on every person entitled to time-sharing; i. Procedure of Notice of Intent to Relocate if no objection is filed to notice of intent to relocate within 30 days after service, relocation will be allowed without further hearing; - if timely objection made, court must evaluate any factor affecting best interest of child, including (a) childs relationships with significant people; (b) childs age and needs; (c) childs preference (age and maturity considered); (d) enhancements of quality of life with relocation; (e) reasons each person has for seeking/opposing relocation and whether in good faith; (f) career opportunities of person objecting after relocation; 2. Shared Parental Responsibility both parents retain full parental rights over child; parents confer so that major decisions will be made jointly; - includes access to records and information related to child, including medical, dental, and school records; - court will order shared parental responsibility of child unless it is not in best interest of child; 3. Restrictions on Removing Child from State if there is risk that one party may violate courts order of time-sharing or parental responsibility by removing child from Florida or country or by concealing child, court may: (1) order parent not to remove child from state or country without notarized permission of both parents or court order; (2) order that parent may not take child to country that has not ratified Hague Convention unless other parent agrees in writing that child may be taken into that country; (3) require parent to surrender passport of child; (4) require party to post bond or other security; 4. Custody to Nonparents may be awarded if parents are unfit or relinquish their rights; 5. Time-Sharing a. Noncustodial Parent has right to reasonable time-sharing as agreed by parties or per courts discretion; - support obligations are independent of time-sharing rights; b. Grandparents supreme court held unconstitutional statutes requiring grandparent time-sharing rights; - provisions violate parents right to privacy without showing compelling state interest in preventing harm to child; - provisions may violate federal constitution, i.e. parents right to determine appropriateness of third-party timesharing rights, including with grandparents, may not be overridden by court; 6. Electronic Communication court may order electronic communication, i.e. telephone, email, chat, cam, between parent and child; rebuttable presumption that in best interest of child for parent and child to have reasonable telephone communication; - court must consider (1) whether electronic communication is in childs best interest; (2) whether technology is reasonably available, accessible, and affordable; (3) each parents history of substance abuse or domestic violence; (4) any factor court considers material; 7. Modification of Parental Responsibility [Custody] may be modified upon showing of substantial change in circumstances affecting childs welfare; - court may not issue order changing custody while parent is deployed in military, though temporary order may be entered if clear and convincing evidence shows it is in best interest of child; 8. Support both parents owe duty of support to minor child until child is emancipated; determination of amount is based on monetary needs and ability to pay; - amount based on statutory guidelines; if court departs more than 5%, court must enter written findings and justification; - court must adjust any award it makes if child is to spend substantial amounts of time with obligor parent; 9. Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) purpose to avoid jurisdictional disputes with courts of other states in child custody and visitation; to promote interstate cooperation; facilitate interstate enforcement of custody and visitation; a. Initial Custody Determination i. Primary Test Home State Jurisdiction court has jurisdiction to enter or modify child custody or visitation order if state (1) is childs home state; or (2) was childs home state within past six months and child is absent from state but parent continues to live in state; - home state = state in which child lived with parent for at least six consecutive months immediately before commencement of proceeding; or state where child has lived since birth if less than six months old; disregarding temporary absences; ii. Home State Rule Not Applicable court has jurisdiction to enter or modify custody or visitation order if no other state has or accepts home state jurisdiction, and (1) child and at least one parent have a significant connection with state; and (2) substantial evidence concerning child is available in state;

- court also has jurisdiction to enter or modify custody or visitation if no other state has jurisdiction under another test; b. Exclusive Continuing Jurisdiction court that made initial child custody or visitation determination has exclusive continuing jurisdiction over matter until court determines (1) neither child nor childs parents continue to reside in state; or (2) child no longer has significant connection with state, and substantial evidence relating to matter is no longer available in state; c. Declining Jurisdiction court that has jurisdiction under one of above tests may decline to exercise jurisdiction if it determines it is an inconvenient forum under circumstances and court in another state is more appropriate forum; - court may also decline to exercise jurisdiction if party seeking to invoke jurisdiction has engaged in unjustifiable conduct, i.e. wrongfully taking child from another state; d. Temporary Emergency Jurisdiction Abandonment or Abuse court has temporary emergency jurisdiction if child has been abandoned, or is necessary in emergency to protect child because child, or siblings or parent, is threatened with abuse; e. Enforcement of Another States Order custody or visitation order of one state can be registered in another state and enforced in that state in same manner as one of its own orders; - court can order respondent to appear in person and award immediate physical possession of child to petitioner; - court may issue warrant to take physical possession of child if child is imminently likely to suffer serious physical harm or be removed from state; - prosecutor, law enforcement, or public official may take lawful action to locate child, get return of child, or enforce custody or visitation order when requested by court, or if reasonable belief that person holding child has violated criminal statute; 10. Modification of Alimony or Child Support alimony and child support awards and agreements can be modified upon showing of substantial change in circumstances or financial ability of either party; - court has no authority to cancel or reduce past-due installment of child support; D. Enforcement Mechanisms 1. Central Depository court will order alimony and support payments to be made in central depository unless parties have no children or agree otherwise; payments administered by state; 2. Income Deduction Orders if party defaults on alimony or support order, court can issue income deduction order to partys employer requiring employer to deduct ordered sum and forward it to central depository; 3. Uniform Interstate Family Support Act (UIFSA) a. Purpose vehicle for establishing, enforcing, or modifying interstate child or spousal support orders; - only one controlling, enforceable support order exists at any given time; - avoids personal jurisdiction issues where obligee would have to travel to where obligor resides to bring an action; b. Enforcing Support Order income withholding order may be mailed directly to obligors out-of-state employer, automatically triggering withholding unless timely objection from obligor; - in alternative, order may be mailed to support enforcement agency in obligors state to seek enforcement; - provides for registration of support order with sister state through court action; issuing state sends order to state where obligor resides, where it is registered and filed as foreign judgment, and then order is subject to same enforcement procedures as if order had been issued in that state; c. Modifying Support Order role of obligors state is only to enforce original order; - nonissuing court may not modify order unless parties no longer reside in issuing state or they consent in record to nonissuing courts assertion of jurisdiction to modify the order; 4. Contempt obligor who defaults on alimony, child support payments, or payment of attorneys fees can be found in civil contempt; if default is willful, then may also be in criminal contempt; - any person who has been adjudged in contempt for failure to comply with support order in past, and who willfully fails to provide support despite ability to pay commits first degree misdemeanor; 5. Other Enforcement Options court may (1) issue continuing writ of garnishment for alimony and child support; (2) order obligor spouse to secure insurance or bond to cover obligations; (3) order unemployed obligor to find job training and seek employment; (4) withhold or suspend professional licenses, drivers licenses, auto registrations; - state may intercept obligors tax refund under federal law; VII. Paternity A. Nonmarital Child every reasonable presumption will be made in favor of finding child to be marital child; any party alleging otherwise must overcome presumption by clear and convincing evidence; - marital child = presumed where child born or conceived during marriage, even if born to voidable marriage; child born within the gestation period following dissolution of marriage or death of spouse; - nonmarital child = presumed where child born outside of wedlock and child born to void marriage; B. Acknowledgement paternity may be established by written acknowledgement; C. Paternity Established by Judicial Proceedings determination of paternity is statutory action in Florida; mother, father, or child may bring action; 1. Proceedings hearings held in chambers and persons in attendance may be restricted; defendant has right to jury trial; - scientific tests of mother, father, and child may be required; if tests show probability of 95% or more, a rebuttable presumption of paternity is established;

- if paternity is found, court may order father to pay child support, attorneys fees, and costs incident to birth; 2. Marriage of Parents if mother or father marry after birth of child, any pending paternity suit is dismissed and child is marital child; 3. Publication of Names it is crime to publish any names of parties to paternity proceeding; D. Defenses 1. Laches generally ineffective against order for retroactive support; 2. Right to Support parents cannot contract away their childs right to support; 3. Statute of Limitations four years in paternity action and begins to run when child reaches majority; 4. Adoption adoption of child terminates putative fathers duty of support; E. Artificial Insemination child who is product of artificial insemination is irrebuttably presumed to be marital child provided that both husband and wife have consented in writing to insemination; VIII. Adoption A. General creates legal relationship declaring child is legally child of adoptive parents and their heir at law; entitled to all rights and privileges of biological child; B. Parties Adopted and Adopting following may adopt, husband and wife, unmarried adult, or married person; any person, minor or adult, may be adopted; homosexuals may not adopt; C. Residence person must have primary residence and place of employment in Florida; D. Consent 1. Who Must Consent unless grounds for terminating parental rights exist, following people must consent: (1) mother of minor; (2) father of minor; (3) person being adopted if he is adult or 12yo or older; (4) any person lawfully entitled to custody of minor if required by court; (5) court having jurisdiction to determine custody of minor if person with physical custody does not have authority to consent to adoption; - if parental rights terminated, then adoption agency where minor placed may consent; 2. Unmarried Biological Father interests of state, mother, child, and adoptive parents outweigh interest of unmarried biological father who does not take action in a timely manner to establish or demonstrate relationship with child; - assumed to know that child may be adopted without consent unless father complies with statutory provisions and demonstrates prompt and full commitment to parental responsibilities; - to preserve right to notice and consent to adoption, must file notarized claim of paternity form with state registry; E. Termination of Parental Rights Before Adoption before adoption, court must determine whether minor is legally available for adoption through separate proceeding terminating parental rights pending adoption; - court may terminate parental rights pending adoption only after full evidentiary hearing in which court determines by CCE that each person whose consent to adoption is required: (1) has consented to adoption or executed affidavit of nonpaternity; (2) has been served with notice of adoption plan but has failed to respond; (3) has been served with notice of adoption plan but failed to appear at hearing; (4) has abandoned minor; (5) has been judicially declared incapacitated; (6) is unreasonably withholding consent to adoption; F. Procedure petition must be filed no earlier than 60 days after date court issues judgment terminating parental rights pending adoption; hearing will be held no earlier than 90 days after petition filed; petitioner and intermediary must file accounting listing all expenses associated with child and other basic information; DCF must file report related to suitability of adoptive home; G. Birth Certificate new certificate is issued within 30 days after entry of judgment of adoption; H. Equitable Adoption court will enforce agreement to adopt for purposes of intestacy statutes if (a) decedent agreed to adopt child; (b) natural persons acted in reliance on agreement; and (3) child was treated as child of decedent; I. Intermediaries private intermediaries, i.e. doctors and lawyers, may be present in adoption proceedings; all placement of minors must be reported to DCF to conduct home study; - biological mother cannot receive fee but may be reimbursed for medical expenses and pre- and post-natal care, which may not exceed $5,000; J. Surrogate Agreements contracts for sale or transfer of parental rights of child or unborn fetus are prohibited; nonbinding, preplanned adoption agreement authorized by statute; - volunteer mother may be paid only adoption, medical, and living expenses; payments to intermediaries for finding mother are prohibited; - agreement does not constitute mothers consent until seven days after birth, and court must find mother was aware of right to rescind and chose not to do so;