FAMILY LAW OUTLINE

Ch. 1 Private Family Choices

Evolution of the Right to Privacy

I. The Birth of Privacy
a. Meanings of Privacy:
i. Griswold v. Connecticut (1965): Doctor was arrested for giving info,
instruction, and medical advice to married persons on means of preventing
conception. The statute forbade anyone from using drugs or any instruments
to prevent conception  this applied to marital and non-marital couples.
**THE RIGHT OF PRIVACY**
 RULE: An implied “right of privacy” exists within the Bill of Rights that
prohibits a state from preventing married couples from using
contraception.
 Government’s purpose to control or prevent activities constitutionally
subject to state regulation may not be achieved by means that invade
the area of protected freedomfs (no legitimate or compelling interest
[fails strict scrutiny] in regulating the marital bedroom).
 Even though right to privacy in marriage is not specifically protected in
the Bill of Rights, it is a right rooted in tradition that its protections is
mandated by the Constitution amendments like 1st, 9th, and 14th.
a. We don’t know exactly where the right of privacy comes from
but it is there and it is important – a penumbra rule.
 The Court stated that “Marriage is a coming together for better or
worse, being sacred.” It held marriage to be a very important factor.
There is no regulation the government can pass to control married
couples.
 Here, privacy means spatial privacy - the right of the married couple
to be left alone.
a. Privacy is a substantive right. It cannot be taken without due
process of law.
 Comstock laws = purity or morality laws
ii. Eisenstadt v. Baird (1972): Baird was convicted for giving contraceptive to
a female when the state law allowed only married couples to receive them
from a registered doctor. The Court held that by providing dissimilar
treatment for married and unmarried persons who are similarly situated
violate the Equal Protections Clause.
 RULE: Under the Equal Protection Clause of 14th Amendment, a state
may not outlaw distribution of contraception to unmarried persons.
 The Court rejected the justifications of wanting to protect from harmful
drugs, punish unmarried sex, and deter unmarried sex.
 If the right of privacy means anything, it is the right of the individual,
married or single, to be free from unwarranted government intrusion

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 into matters so fundamentally affecting a person as the decision on
whether to bear a child.
a. Both married and unmarried people have the right to access
contraceptive information.
 Here, privacy means decisional autonomy - the right of an individual
to choose whether to bear or beget children.
iii. In Florida, dating violence is a cause of action where the judge issues
an injunction if one party no longer wants to date another person
and they are refusing to break up.
iv. Closely-held corporations can have religious beliefs. The Supreme Court has
provided protections for those corporations that do not agree with how
people should run their lives.
v. The government argues rational basis review.
b. Roots of Privacy:
i. Meyer v. Nebraska (1923): An instructor was charged with unlawfully
teaching reading in German (was during WWI) to a 10yr old, when state law
prohibited any person from teaching languages other than English, except to
students who completed the 8th grade.
 RULE: A state may not prohibit the teaching of foreign languages to a
young child in school when such teaching has been requested by the
child’s parent because this interferes with the fundamental liberty
interest of a parent to control his or her child’s education.
 The fundamental right to instruct a child in a foreign language.
 The 14th Amendment denotes more than just freedom from bodily
restraint, it also denotes the right of individual to contract, engage in
common occupations of life, acquire useful knowledge, marry.
 Liberty interests cannot be interfered by states when the interference
is arbitrary and not reasonably related to a purpose which the state
may permissively regulate.
a. The government cannot step into the parent’s decision or
fundamental right. The government will argue rational basis, but
you must look at the right that is invaded to see if strict scrutiny
is better suited.
 The government cannot step in parent-child relationship absent harm.
Parents presumptively have the right to make decisions about
their children without state interference.
a. Care, custody, and control of children – fundamental rights of
parents. The government cannot interfere.
ii. Pierce v. Society of Sisters (1925) : The Compulsory Education Act
required every parent, guardian, or other person having control or charge of
a child between the ages of 8 to 16 to send him to a “public school for the
period a public school shall be held during the current year” in the district
where the child resides. The purpose of this Act was to compel general
attendance at public schools by normal children.
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  The fundamental right to send a child to a non-public school.
 This conflicts with the fundamental right of parents to direct the
upbringing and education of kids under their control.
 Yes, states have the power to regulate all schools, but parents have
the right and duty to choose the appropriate preparation for their kids.
Children are not the mere creature of the state.
II. The Growth of Privacy
a. Abortion as a Private Choice:
i. Roe v. Wade (1973): Roe was an unmarried, single woman who wanted an
abortion (bodily integrity and decisional autonomy) but was unable to under
Texas statutes that made it a crime to obtain or perform an abortion except
for the purpose of saving the life of the mother. The district court held the
statutes were unconstitutional.
 RULE: The constitutional right of privacy encompasses a woman’s right
to an abortion. However, abortions may be regulated by a state after
the first trimester of pregnancy and may be completely prohibited
after the point of “viability” of a fetus unless necessary to preserve the
health of the mother.
 Viability [outside the womb] was the standard used.
a. In the 1st trimester, a fetus is not viable outside the womb so it
is up to the woman and the attending doctor whether to abort.
b. The 2nd trimester is iffy so the government can regulate
abortion procedures in ways reasonably related to maternal
health.
c. In the 3rd trimester, a fetus is viable so abortion can be
regulated or forbidden unless it is necessary or to save the
mom’s health.
 Roe placed viability at approximately 28 weeks. Now, doctors consider
24 weeks as the earliest point of potential viability.
a. The current argument is that viability begins at conception.
 Roe’s emphasis on the physician receives reinforcement which allows
the physician to consider all factors—physical, emotional,
psychological, familial, and the woman’s age—relevant to the well-
being of the patient.
ii. Gender Equality (Pg.34): Laws denying access to abortion have a sex-specific
impact since only women get pregnant.
iii. Abortion and Crime (Pg.36): Legalizing abortion explains large decreases in
crime. Abortion prevented the birth of unwanted children who would have
grown up to commit crimes.
III. Burdens on Privacy
a. Gonzales v. Carhart (2007): Congress enacted the Partial-Birth Abortion Ban
Act. Partial birth or late term abortion done in the 2nd trimester; is it morally,
medically, and ethically ok or not necessary given other means of abortion that
exist?
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 i. RULE: Congress may ban a specific type of partial-birth abortion provided its
restrictions on the practice are narrow and clear and the ban does not
constitute an undue burden on a woman’s right to an abortion.
ii. A federal ban on this type of abortion is allowed; the ban furthers the
legitimate interest of the government in protecting the life of a fetus that
may become a child without producing an undue burden or substantial
obstacle on a woman’s right to terminate her pregnancy.
iii. 24 hour waiting period – information about alternatives – info about
gestational age of child  all have been found to be constitutional.
b. Informed Consent (Pg.54): Soon after Roe, the Supreme Court upheld state
regulations mandating that the physician obtain the patient’s prior written consent,
regardless of the stage of pregnancy. Though when a state requires a detailed list
of abortion warnings, these measures are unconstitutional because of the
interference with the doctor-patient relationship and their underlying anti-abortion
motivation.
c. Fetal Protection Measures (Pg.58): Most states have fetal homicide laws, varying
regarding the stage of fetal development when criminal liability attaches.
d. Federalism in family law (Pg.58): Domestic relations exception says states (not
federal) have power over marriage. Congress has invoked Commerce Clause and
the 14th Amendment to legislate on family law subjects (violence against women,
unborn victims of violence act, patient protection and affordable care act which
doesn’t provide federal funding for abortions but allows health plans to choose
whether they want to cover abortions).
IV. The Liberation of Privacy
a. Lawrence v. TX (2003): Police responded to private residence after reported
weapons disturbance. Cops entered apt to find 2 men engaging in sexual conduct.
Lawrence was convicted under state statute that states an offense is committed if
he engaged in deviate sexual intercourse with another individual of the same sex.
i. RULE: The liberty interest protected by the Due Process Clause of the 14th
Amendment protects the right of consenting adults to engage in intimate
contact in the privacy of their own homes, like homosexual activities.
 State laws criminalizing homosexual relations violate substantive due
process.
ii. Liberty presumes an autonomy of self that includes freedom of thought,
belief, expression, and certain intimate conduct.
iii. The statute seeks to control a personal relationship that, whether entitled to
formal recognition in the law, is w/n the liberty of persons to choose w/o
being punished as criminals. Adults may choose to enter upon this
relationship in the confines of their homes and their own private lives and
still retain their dignity as free persons.
iv. The state can’t single out an identifiable class of citizens for punishment that
doesn’t apply to everyone else with moral disapproval as the only asserted
state interest for the law.

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When Privacy Rights Conflict
I. Wives and Husbands:
a. Planned Parenthood v. Casey (1992): State abortion law states that, except in
cases of medical emergency, no doctor can perform an abortion on married women
without a signed statement from the woman saying she notified her spouse and got
consent, or that she cannot notify him because he would abuse her.
i. RULE: A state abortion regulation places an undue burden on a woman’s
right to an abortion and is invalid if its purpose is to place a substantial
obstacle in the path of a woman seeking an abortion before the fetus attains
viability.
 The 24-hour waiting period was constitutional.
ii. Yes, husbands have deep interest in his wife’s pregnancy and growth of the
fetus she carries; but things are different before birth.
iii. State regulation will undeniably impact women’s liberty more than men.
iv. The government must pass the strict scrutiny test.
v. Married couples are not an independent entity, rather an association of 2
individuals, and it is the right of the individual to be free from unwarranted
government intrusion (undue burden) into matters so fundamentally
affecting a person as the decision as to whether to bear a child.
 A husband has no enforceable right to require a wife to advise him
before she exercises her personal choices.
vi. Who decides? (Pg.79): Conflict between men and women’s rights – what if a
guy sought to avoid paying child support because he didn’t want the kid but
the mom carried it to term? If a guy didn’t want a child anyways, he will ask
why should he have to pay child support. But it doesn’t matter, he will be
strictly responsible after the birth of child.
vii. Vision of Marriage (Pg.80): Women have been given all the power of choice
to abort and are left with the responsibility for their child.
b. Children and Parents:
i. Women’s Services v. Taft (2006): Ohio state law made it illegal for any
person to perform an abortion on an un-emancipated minor unless the
attending physical has secured written informed consent of the minor’s
guardian or judicial approval pursuant to “judicial bypass” procedure, which
is granted if a minor shows sufficient maturity and the abortion is in her best
interests. The suit is filed challenging amendment which restricted minors
from filing more than 1 judicial bypass petition per pregnancy (justification –
prevent judge shopping).
 RULE: It is unconstitutional for a state to limit the number of times
during a single pregnancy that a minor may petition the court for
permission to obtain an abortion without parental consent.
 This limitation creates a substantial obstacle to a woman’s right to
abortion in a large fraction of cases in which a single petition is
relevant. Thus, it is an undue burden, and unconstitutional.

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  Circumstances from 1st petition may change to the next time a
petition could be made.
a. Children are immature and vulnerable. They may change their
minds after discussing it with their parents.
 The only legislation that is constitutional is regulation for minors that
includes a judicial bypass.
a. If you require consent or notification, you must have a judicial
by-pass. Pg.87
ii. § 390.01114 - Parental Notice of and Consent for Abortion Act:
Florida is a consent state for minors who want an abortion. Minors
must get consent of parents but to be constitutional, the statute has a
judicial waiver process.
 Parent must consent unless: Medical emergency; Parental Waiver;
Petitioner is/was married; Petitioner has a dependent child already.
a. In the absence of these, minor must seek judicial waiver.
 Judicial waiver process: (1) the court needs clear and convincing
evidence that the minor is sufficiently mature to decide whether to
terminate pregnancy; or (2) preponderance of evidence of the minor
being a victim of child or sexual abuse by the guardian; or clear and
convincing evidence notifying parents is not in the best interests of the
minor.
 Actual notice must be provided by physician performing or inducing
the termination of pregnancy. If actual notice is not possible after a
reasonable effort has been made, constructive notice is fine. Notice
may be given by a referring physician and the one performing must
receive the written statement of notice
a. actual notice – given directly in person or over telephone at least
48 hours before performance. Constructive – notice in writing, signed
by physician, mailed at least 72 hours before performance.
b. notice is not required in medical emergency and same reasons
as parent not consenting
iii. Determining Maturity (Pg.88): Factors for determining a minor’s maturity:
demeanor during testimony, academics, understanding of the immediate and
long-term physical, emotional psychological risks, age, overall intelligence,
credibility and demeanor as a witness, ability to accept responsibility,
whether there's an undue influence by another on the minor.
iv. Teen Sexual Activity (Pg.90): By age 17, half of all teens have had sexual
intercourse, with a 16% experiencing sexual initiation by 15.
v. Reasons for choosing abortion (Pg.91): Not being ready for motherhood,
interference with future plans, not having a place to live, concerns about
child’s well-being, and anticipated adverse parental response.
c. Life and Death:
i. Cruzan v. Director of MI Health (1990) : Nancy was in vegetative coma
for 17 yrs. After very apparent she would never regain mental capacity, her
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 parents requested that hospital stop artificial nutrition to Nancy, which would
result in her death. Hospital refused to do so without court approval.
 RULE: A state may require that a guardian seeking to remove life-
prolonging treatment prove by clear and convincing evidence that the
person in the persistent vegetative state would have wanted the
treatment withdrawn under such circumstances.
 Substitutive Judgment: can the court decide for the patient?
ii. A person has a right to refuse medical treatment, but the state has the right
to require that those who want to cease medical treatment for a person in a
persistent vegetative state bring forth evidence of that person’s similar intent
before permitting such action.
 An incompetent person (like Nancy in a coma) has the same right of a
competent person (who is known to have right to refuse treatment).
iii. There is a heightened standard of proof to terminate or create life:
clear and convincing evidence.
iv. There is substituted judgment, where the court transfers burden to the
family members to demonstrate (by clear and convincing evidence) what the
incompetent person would have wanted.
v. A person has a right to die only to the extent that they have a right to refuse
medical intervention unless there is a statutory provision saying otherwise—
constitutional.
vi. Advance directives are documents that every person should have that
indicates what should happen to you in the event that you become
completely incompetent or are in life support.

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The Non-Marital Family

Constitutional Limits on Definitions of “Family”

I. Functional Definition of Family
a. Common-law marriage: couples cohabitating after some time eventually turns into
marriage. It is a procedural  informal marriage.
i. Some states have moved away from this view.
ii. Florida recognizes common-law marriage if it was before 1968.
b. Dept. of Agriculture v. Moreno (1973) : Food Stamp Act eligibility determined by
household rather than individual basis; the act defined ‘household’ as “a group of
related, who are not residents of an institution or boarding house, but living as one
economic unit sharing common cooking facilities and for whom food is customarily
purchased in common.” So, what about the people who satisfy all requirements but
aren’t related? The government said it’s an attempt to prevent those more likely to
abuse the program but really, it excludes all, even those desperately in need of
program. Congress was afraid of communal living.
i. RULE: A state regulation that arbitrarily creates two classes of persons and
deprives one class of government benefits violates the Equal Protection
Clause and Due Process Clause of the 5th Amendment because it is based on
a mere legislative preference for one class that is not rationally related to a
legitimate state purpose—rational basis review.
ii. Definitions of family: the formal definition is blood ties or legal ceremony; the
functional approach defines family by its functions like support, affection,
functioning as a family in an intimate setting.
 Congress may use functional definition to support protection. If you
look like a family, then you deserve protection.
c. STATES CAN PROVIDE MORE PROTECTION TO INDIVIDUALS THAN THE
CONSTITUTION BUT IT CAN NEVER PROVIDE LESS PROTECTION.
II. The Extended Family
a. Moore v. City of East Cleveland (1977) : A housing ordinance limited occupancy
of a dwelling unit to members of a single family. Grandma lived with her son and 2
grandsons, the grandsons were first cousins. This violated the “single family”
definition under the Ohio ordinance.
i. RULE: The right of related family members to live together is fundamental
and protected by the Due Process Clause, and necessarily encompasses a
broader definition of “family” than just members of the nuclear family.
ii. Constitution has the power under the Due Process Clause to prevent the CEC
from passing a restrictive housing ordinance that completely disregards
modern family relationships. Municipalities can pass zoning ordinances to
alleviate noise or to eliminate traffic congestion as these are reasonable land
use restrictions in furtherance of the legitimate objectives the CEC claims as
justification for its ordinance.
 Civil – zoning; Criminal – incarceration.

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 iii. The zoning ordinance sliced too deeply into ‘family’ itself. Defendant enacted
a senseless and arbitrary restriction that cuts deeply into an area of
protected private family life. Defendant cannot constitutionally attempt to
define “families” as only encompassing nuclear family members as this
completely ignores the reality of many modern family situations.
iv. Note: There is a private sphere of family the government cannot access or
regulate, like how to start a family. But it can regulate the public sphere.
III. Cohabitation: Unmarried Couples
a. Garrison, Nonmarital Cohabitation: It shifts from shameful cohabitation outside of
marriage, to now normalcy. This is due to cultural shift in attitude about premarital
sex, particularly from women.
i. Women were commodities. Historically, women received alimony because no
one wanted to be with a divorcee.
b. Traditional Response: Criminal Sanctions
i. Traditionally, nonmarital cohabitation and fornication were subject to criminal
sanctions. The MPC criminalized cohabitation only if it was “open and
notorious.”
ii. 2 unmarried adults who maintained separate residences challenged a statute
prohibiting fornication and cohabitation. Neither had been arrested, but they
feared prosecution. While there is constitutional right to privacy that extends
to a single person’s right to engage in sexual intercourse, plaintiffs must
have standing for a cause of action.
iii. Rule of Lex Loci – You look at where the marriage happened and see if their
marriage was valid under that state. Look at the states’ requirements for a
valid marriage. It doesn’t matter where you got married. In divorce,
jurisdiction matters.
 If it offends public policy, the marriage may not be valid; brother and
sister getting married.
c. Unmarried Couples’ Rights Inter Se:
i. Marvin v. Marvin (1976): Plaintiff and Defendant lived together for 7 years
without marrying, with all property acquired during this time taken in
Defendant’s name. Plaintiff says they entered into an oral agreement where
the parties would combine their efforts and earnings and share equally all
property accumulated because of their efforts. Plaintiff agreed to give up a
lucrative career as a singer and assume the role of homemaker, with
Defendant agreeing to provide for all of Plaintiff’s financial support.
Defendant compelled Plaintiff to leave his household but continued to provide
support to her until 1971. Thus, he refused to provide further support.
Plaintiff sued to enforce the oral agreement, claiming that she was entitled to
half the property and to support payments.
 RULE: One partner of an unmarried couple may seek to recover from
the other under the same rights of action available to other unmarried
persons, including express contract, implied contract, and equitable
theories.
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  Plaintiff asserts she provided homemaking services for a promise of
support.
 Under a traditional contract doctrine, domestic services fail to provide
such consideration because (1) women acted from affection rather
than expectation of gifts, (2) she intended her actions as a gift, and
(3) her services are offset by the man’s companionship and services.
 Valid argument: meretricious relationship—pay for sex.
ii. If not married, there is no statutory recovery (like you would have if you
were married) – only solution is breach of contract (but recovery limited to
what services contract law allowed to recognize).
iii. Status, as opposed to contract, based approach = “Committed Intimate
Relationship (CIR) Doctrine”: an equitable doctrine that treats partners’
jointly acquired property at dissolution as community property if the parties
manifest a meretricious relationship.
 Elements considered: continuous cohabitation, duration of relationship,
purpose of the relationship, pooling of resources and services for joint
projects, and the intent of the parties.
iv. One cannot get alimony or equitable distribution if one is not married.
v. Because unmarried couples do not have legal remedies, courts look at tort
law, property law, and contract law.
vi. Gonzalez v. Green (2006): Plaintiff and Defendant were a same-sex couple
since 2001 when Defendant, a person of considerable assets and income,
invited Plaintiff to move in. Plaintiff was a student with little or no income at
the time. Over the course of their relationship, he gave Plaintiff expensive
gifts like cars and a ski house. The couple traveled to MA to marry then
returned to NY. MA had recently legalized marriage between same-sex
couples but only those who resided in MA. The couple continued to file
individual tax returns and did not hold any property as a married couple. In
2005, the relationship fell apart. The men executed an agreement, drafted by
Defendant’s lawyer, that divided property obtained by them during their
cohabitation. As part of the agreement, Plaintiff transferred title of the ski
house to Defendant, and Defendant made a one-time payment to Plaintiff of
$780K. Plaintiff filed for divorce in NY on the grounds of cruel and inhuman
treatment.
 RULE: An agreement providing for property distribution and financial
arrangements between a same-sex couple is enforceable even if the
couple were never legally married.
vii. Family Law Act suggests that property accumulated by nonmarital partners in
an actual family relationship should be divided equally.
 A contract between nonmarital partners is unenforceable only to the
extent that it explicitly rests on the consideration of meretricious
sexual services [so it recognizes express and implied in fact contracts
but not one based on sex].
d. Unmarried Couples, Third Parties, and the State:
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 i. Tort recovery
 Graves v. Estabrook (2003): Graves was driving behind her fiancé
who was on his motorcycle, and witnessed a car hit him. She saw
physical injuries up close, stayed by his side, comforted his family, and
then he died. She suffered shock, severe mental pain and emotional
distress.
a. RULE: Where a direct witness to an accident had a close
relationship with the victim—even if the witness and victim were
not legally related—the witness may sue the person who caused
the accident for negligent infliction of emotional distress.
b. Though unmarried, fiancé was close enough to recover under
tort law for IIED. It is reasonable to infer that from the couple’s
lengthy cohabitation (7 years), they enjoyed mutual
dependence, common contributions to a life together, emotional
reliance on each other and attended to life’s mundane
requirements together.
ii. Loss of Consortium (Pg.411): Most states deny recovery for loss of
consortium to unmarried cohabitants. Fiancés may not recover.
 Loss of consortium—the loss of companionship, affection, sex,
economic contribution, and services.
iii. § 798.01 Living in open adultery — whoever lives in an open state of
adultery shall be guilty of a misdemeanor of the second degree, punishable
as provided in § 775.082 or § 775.083. Where either of the parties living in
an open state of adultery is married, both parties so living shall be deemed
to be guilty of the offense provided for in this section.
 So, it is illegal but no one ever really gets in trouble for it because the
rule is not enforced.
iv. § 798.02 Lewd and lascivious behavior — If any man and woman, not
being married to each other, lewdly and lasciviously associate and cohabit
together, or if any man or woman, married or unmarried, engages in open
and gross lewdness and lascivious behavior, they will be guilty of a
misdemeanor of the second degree, punishable as provided in § 775.082 or §
775.083.
v. 800.02 Unnatural and lascivious act — A person who commits any
unnatural and lascivious act with another person commits a misdemeanor of
the second degree, punishable as provided in § 775.082 or § 775.083.
 A mother’s breastfeeding of her baby does not under any circumstance
violate this section.
vi. Employment:
 Shahar v. Bowers (1997): Plaintiff accepted an offer to join the
office of the Georgia Attorney General, Defendant, as a staff attorney
following her graduation from law school. In 1990, Plaintiff was
planning a wedding to her partner for the following summer. GA did
not recognize same-sex marriage. In her employment application with
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 the AG, Plaintiff named Greenfield as her future spouse. Then, Plaintiff
disclosed her wedding plans to several employees. AG withdrew
Plaintiff’s offer of employment because her employment would
constitute the AG’s “tacit approval” of same-sex marriage, thereby
endanger the effectiveness of the office. Plaintiff sued the AG for
violation of her rights of exercise and association, equal protection,
and substantive due process.
a. RULE: A government employer that is responsible for upholding
laws that prohibit certain homosexual conduct does not violate
the constitutional rights of an employee whose employment is
revoked because of his or her participation in a same-sex
“marriage” that is not recognized by state law.

Ch. 2 Getting Married

I. Public v. Private Dimension of Courtship and Marriage

a. Courtship Patterns:
i. Why is there a waiting period (from license to wedding) for marriage?
 For a time for reflection.
b. The Marriage Contract:
i. Marriage is both a contract—a private agreement between 2 parties, and a
status—a public institution regulated by the state.
ii. Maynard v. Hill (1887): The consent of the parties is essential to its
existence, but when the contract to marry is executed by marriage, a relation
between the parties is created which they cannot change.
II. Preparing to Marry: Premarital Controversies
a. Breach of Promise to Marry:
i. Rivkin v. Postal (2001): Rivkin was married with kids but began an affair
with Postal; he lived with her and provided for her. Postal gave birth to their
child. She was upset at what her family thought of her because of their
situation so she insisted he buy her an engagement ring, which he didn’t do,
so she bought one for herself. She told her parents that Rivkin and her were
planning to marry after his divorce, and he didn’t dispute it, but the couple
themselves never talked about this. Rivkin broke up with her. She sued him
for breach of promise to marry.
 Most states, like FL, abolished the common-law cause of action of
breach of promise to marry. Court rejects breach of promise to marry
because she didn’t have it in writing nor 2 disinterested witnesses per
their rules.
ii. In Florida, one cannot threaten the other to sue for breach of
promise to marry. However, venues or caterers can sue the couple –
771.01

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 iii. Majority View (Pg.113): Only a few jurisdictions still recognize the claim for
breach of promise to marry. Those states impose limitations like permitting
action only if plaintiff is pregnant.
iv. Damages (Pg.114): Breach of promise to marry is a hybrid action, reflecting
roots in contract and tort law.
 Traditionally, a plaintiff could recover the monetary and social value of
the marriage—expectation damages, and expenses incurred in
preparation for the marriage—reliance damages. Damages for mental
anguish and humiliation, not normally compensable in contract, could
also be recoverable. Punitive damages are sometimes permitted.
v. Seduction (Pg.114): At common law, tort liability existed for seduction like
consent to sexual intercourse by an unmarried, previously chaste, woman in
reliance on a false promise to marry.
 The action was maintainable not by the woman, but by one entitled to
her services like her father.
 Some jurisdictions still recognize the tort for minors.
vi. Online Dating Fraud (Pg. 115): Fraudulent representations regarding marital
status, height, wealth, age, weight is common in online dating.
 Few states regulate online services for consumer safety.
b. Gifts in Contemplation of Marriage:
i. Campbell v. Robinson: Plaintiff proposed to Defendant and gave her an
engagement ring but the engagement was canceled.
ii. Florida is a no-fault jurisdiction. They do not care why marriage failed.
Parties can file to say the marriage is irretrievably broken.
 Donor gets the engagement ring back or whatever the gift in
contemplation is if the condition of getting married is not satisfied.
 Donee only gets the engagement ring if the condition of getting
marriage is satisfied.
 If the wedding does not take place, the fiancé can get the money back
for the ring.
 Gift could be converted into an absolute gift if the man said the woman
could keep it. However, this must be proven.
 In a fault-based jurisdiction [majority], it is unfair for a person to
retain the fruit of a broken promise, so if the male broke off the
engagement, he should not get engagement ring.
 In a no-fault based jurisdiction [minority], whose fault is not relevant,
the ring (or value) must be returned.
iii. Gill v. Shively
 If you kill your fiancé, whether intentional or negligence, do you get
the ring back? Hell no.
c. Premarital Contracts:
i. Prenuptial Agreement = anti-nuptial agreement—before marriage.
ii. Postnuptial Agreement—how assets are distributed when there is no divorce
pending.
13
  Test for prenup and postnup is duress, unconscionability.
iii. Marital Settlement Agreement (MSA)—how assets are distributed when there
is a divorce pending + Final Judgment for Dissolution of Marriage. MSA
becomes enforceable through the D.O.M.
 This agreement is heavily regulated.
iv. Simeone v. Simeone (1990): Man was a rich doctor 39, woman was an
unemployed nurse 23; on eve of their wedding, man’s lawyer presented
woman with prenup which gave her basically nothing if divorce; she signed
w/o counsel.
 RULE: A prenuptial agreement is enforceable as a contract without
consideration by the court as to its reasonableness.
a. If prenup is given a few days before the wedding, it is
unenforceable.
v. Is entering a prenup without a lawyer automatically a justification to set
aside the prenup? No.
vi. Is entering a prenup the day before wedding automatically a justification to
set aside the prenup? Not if she knew about it but if it came unexpected,
then fraud, duress, coercion are all procedural defenses.
vii. In Florida, when a ‘dissolution of marriage’ is filed, one cannot waive
temporary alimony. It is not waivable by law. Attorney’s fees are payable
based on need and ability.
 Every single person who has waived alimony in prenup can dispute the
D.O.M.
 By statute, one is entitled to temporary alimony and attorneys’ fees
payable.
 What should a smart lawyer do? Include a provision that if one decides
to challenge the prenup, the money one gets from temporary alimony
and fees payable to attorneys will be deducted from the prenup
amount.
viii. In re Marriage of Shanks (2008): Both parties have children from
previous marriages, and then married each other in Jamaica. Male was
concerned about preserving present and future assets for his kids, so they
agreed to get prenup. He gave it to her 10 days before wedding, he
answered her questions but pushed for her to get independent legal advice,
which she did. That lawyer said she should get attorney from Iowa to review
since that’s where the couple would be living, but the woman didn’t do that;
she asked her fiancé for some changes, which he did, and then again told her
to have lawyer review it, but this time she didn’t.
 RULE: Under Iowa law, a prenuptial agreement that is intended to
place the parties in the same financial position as when they entered
the marriage is enforceable, even if one party chooses not to obtain
independent legal advice, as long as the agreement was not reached
through duress, undue influence, or exploitation of a party’s inferior
position.
14
 ix. § 61.079 Premarital Agreements:
 Voluntariness: means to be free of duress and undue influence.
 To write a will, you only need a paper signed by both parties. No
notary. Rights and obligations of each, PROPERTY! Choice of laws.
Anything that relates to property rights!
a. Children, child care, custodial issues, or religious issues are
unenforceable.
 Duress if: 1 party issued a wrongful or unlawful threat and the other
party had no reasonable alternative to entering the contract.
a. Here, the man said he wouldn’t get married without a prenup,
but an ultimatum wasn’t duress.
 Undue influence: improper or wrongful constraint, machination, or
urgency of persuasion
a. Here, his will was not substituted for her own judgment in
signing prenup; he told her to review
 Unconscionability: protection against overreaching, concealment of
assets, and sharp dealing not consistent with the obligations of marital
partners to deal fairly with each other
x. In Florida, a prenup can be challenged in the two ways:
 Substantive: whether the provisions of the contract are mutual or the
division of property is consistent with the financial condition of the
parties at the time of execution. A fair/full disclosure.
 Procedural: whether the advantaged party’s exploitation of the
disadvantaged party’s lack of understanding or unequal bargaining
power. Factors: the disadvantaged party’s opportunity to seek
independent counsel, relative sophistication of the parties in legal and
financial matters, time b/w prenup and wedding, the use of highly
technical language or fine print, use of fraudulent or deceptive
practices to procure the disadvantaged party’s assent to the
agreement.
d. §61.079 (7)  ENFORCEMENT—
i. (a)  A premarital agreement is not enforceable in an action proceeding under
the Florida Family Law Rules of Procedure if the party against whom
enforcement is sought proves that:
 1.  The party did not execute the agreement voluntarily;
 2.  The agreement was the product of fraud, duress, coercion, or
overreaching; or
a. This is the contract part.
 3.  The agreement was unconscionable when it was executed and,
before execution of the agreement, that party:
a. Was not provided a fair and reasonable disclosure of the
property or financial obligations of the other party;

15
 b. Did not voluntarily and expressly waive, in writing, any right to
disclosure of the property or financial obligations of the other
party beyond the disclosure provided; and
c. Did not have, or reasonably could not have had, an adequate
knowledge of the property or financial obligations of the other
party.
i. This is the substantive part.
d. You must prove it is unconscionable when it was signed.
ii. The burden is on the challenger!
iii. It is difficult to set aside a prenup but it is not a difficult to challenge it.
iv. 3 areas of family law: alimony, equitable distribution, and custody.
v. If any of the provisions of the prenup is unenforceable, only that provision
will not be enforced. The rest of the contract remains.
e. § 61.079  Premarital Agreements:
i. “Premarital agreement” means an agreement between prospective spouses
made in contemplation of marriage and to be effective upon marriage.
 A premarital agreement must be in writing and signed by both parties.
It is enforceable without consideration other than the marriage itself.
 Not enforceable if:
a. procedural unfairness: involuntary, fraud, duress, coercion or
overreaching; or
b. substantive unfairness: unconscionability (at time of signing)
i. Three elements: (1) was not provided a fair and
reasonable disclosure of the property or financial
obligations of the other party, (2) didn't voluntarily and
expressly waive in writing any right to disclosure of the
property, and (3) did not have or reasonably could not
have had an adequate knowledge of the property.
ii. Very hard to waive prenup based on substantive unfairness
iii. Note on Unconscionability: must look at the time and circumstances of the
time of creation, not time of enforcement.
 So, if everything was great when prenup was made, but 15 years later
the rich husband wants to divorce his wife who has been unemployed
the whole time and is now disabled, she is out of luck.
iv. SECTION 6UPAA: if at time of enforcement of prenup, the terms would
render a spouse indigent, the waiver of alimony provision will not be
enforced.
f. Pg.132 Practice Questions:
i. A: not enforceable, void against public policy. It deals with children.
ii. B: not enforceable.
iii. C: not enforceable.
iv. D: not enforceable. It deals with children.
v. E: could be enforceable. Language from a covenant marriage if the
jurisdiction is a no-fault, it goes beyond it.
16
  In a prenup, you can identify any body of law you want to govern your
agreement. So, in no-fault jurisdiction, this could be enforceable.
vi. F: enforceable. It states the property rights.
vii. G: enforceable. It states the property rights.
III. Getting Married: Substantive and Procedural Regulations
a. Constitutional limits on state regulation of entry into marriage:
i. Loving v. Virginia (1967): Female African American married Male
Caucasian in D.C. then they moved to VA, where interracial marriages was
banned. They were indicted and plead guilty.
 RULE: A state may not restrict marriages between persons solely
based on race under the Equal Protection and Due Process Clauses of
the 14th Amendment.
 This is unconstitutional. Marriage is a fundamental right and the 14th
Amendment’s clear and central purpose was to eliminate all official
state sources of racial discrimination in the States.
ii. Zablocki v. Redhail (1978): Wisconsin statute prevented members of a
certain class of residents from marrying without first obtaining a court order
granting them permission to marry—a marriage license. This was directed
towards people who were behind on child support. Redhail, Wisconsin
resident, fathered child out of wedlock in school.
 RULE: The right to marry is a fundamental right, and any legislative
attempts by a state to limit that right are unconstitutional unless they
are narrowly-tailored to the accomplishment of an important
governmental purpose.
 This law substantially interfered with the decision to marry, it was
overinclusive and underinclusive. If the marriage right is not
significantly interfered with, it is rational basis test (i.e. requiring a
license to get married).
 Zablocki suggests a sliding level of scrutiny:
a. low-level (rational basis) for very little interference (reasonable
regulations that do not substantially interfere)
b. higher level (strict scrutiny) for significant interference.
iii. *** Rule of Lex Loci: “the place of celebration” = check if the marriage was
valid under the laws and procedures of where it occurred. Look at the states’
requirements for a valid marriage. It does not matter where you got married.
However, in a divorce, jurisdiction matters.
 If it offends public policy, the marriage may not be valid; brother and
sister getting married or polygamy.
 Foreign marriage will be recognized if it is consistent with Florida
policies.
iv. Full Faith and Credit Clause of Article IV, §1:
 It requires that one state give full faith and credit to “the public acts,
records, and judicial proceedings” of sister states.

17
  What happens if a couple in Georgia is divorced, they receive a final
decree (court order) and they move to Florida and want them to
enforce the decree? Full faith and credit analysis (mandatory) – states
must respect the final decree or court order of other state
courts. The constitutional defense for the Full Faith and Credit Clause
is violation of due process. PG. 143
a. If there is court order from another state, attorneys must
file a motion to domesticate and enforce foreign
judgment/court order in this state.
b. If the court order is from another country, state must have
comity, these court orders are entitled to enforcement if they
are consistent with our substantive (set of laws that governs
how individuals are to behave; rights and responsibilities; it
must not offend traditional notions of fair play and substantial
justice) and procedural (notice, opportunity to be heard, fair
proceeding) processes.
i. ESSAY: FINAL JUDGMENT OF D.O.M ENFORCED IN COSTA
RICA. IS IT ENFORCED IN FLORIDA? Full Faith and Credit
will not apply because it only applies to sister states. The
answer is comity—it applies if the court order is
consistent with our substantive and procedural processes
(discretionary).
ii. IF THE ESSAY SAYS 3 DAYS, IT VIOLATES THE
SUBSTANTIVE PROCESS. IF ONE SPOUSE IS FROM
GREECE AND FILES A D.O.M BUT THE OTHER SPOUSE
FILES IT IN MIAMI, THE GREEK COURT ORDER WILL
NEVER BE ENFORCED BECAUSE THERE IS NO
SUBSTANTIVE/PROCEDURAL PROCESS.
c. In FL, a spouse must live in Florida for at least 6 months
for the state to have personal jurisdiction.
 Subject Matter Jurisdiction can never be stipulated. Personal
Jurisdiction can.
 Full Faith and Credit Clause of the Constitution, Art. IV, §1
requires that a state give full faith and credit to the decrees of
sister states provided that the sister state had jurisdiction.
a. A state must recognize, under this clause, a divorce granted to a
spouse who is domiciled in a sister state even though the stay-
at-home spouse does not appear and is not served with process
in the sister state.
v. § 61.0401  Application of the law of a foreign country in courts
relating to matters arising out of or relating to this chapter and
chapter 88—
 A court may not enforce:

18
 a. A choice-of-law provision in a contract selecting the law of a
foreign country which contravenes the strong public policy of
this state or that is unjust or unreasonable.
b. A forum selection clause in a contract that selects a forum in a
foreign country if the clause is shown to be unreasonable or
unjust or if strong public policy would prohibit the enforceability
of the clause under the specific facts of the case.
 Before enforcing a judgment or order of a court of a foreign country, a
court must review the judgment or order to ensure that it complies
with the rule of comity. A judgment or order of a court of a foreign
country is not entitled to comity if the parties were not given adequate
notice and the opportunity to be heard, the foreign court did not have
jurisdiction, or the judgment or order of the foreign court offends the
public policy of this state. As used in this subsection, a “foreign court”
or “court of a foreign country” includes any court or tribunal that has
jurisdiction under the laws of that nation over the subject of matters
governed by this chapter or chapter 88.
vi. Turner v. Safley (1987): Missouri DOC forbid prison inmates from
marrying unless permitted by the prison superintendent for a “compelling
reason.” Missouri inmates filed a class action.
 RULE: Prison inmates have a constitutional right to marry unless they
are sentenced to life with a ban on marriage constituting part of their
punishment.
 One cannot rationally limit an inmate’s right to marry even though
they have limited rights due to incarceration. There is no sufficient
nexus because marriage and the government interest reasons given
(prevent love triangles in prison, security against violence). Inmates
should have a support system when they are released.
 There has been a denial of conjugal visits for lifers because the point
of conjugal visits is to reunify families and help reintegrate them into
the population.
b. State Regulation of Entry into the Marital Relationship
i. Substantive Restriction – Capacity to Marry
 (1) Same-Sex:
a. Florida would not recognize same-sex marriage through the
notions of comity because it offended notional of fair play.
i. Once validated, federal/state DOMA were out the window.
b. United States v. Windsor (2013): Two women were legally
married in Ontario. They returned to NY, which recognized the
marriage. Two years later, one spouse died, leaving her estate
to the other spouse. Windsor claimed the federal estate tax
exemption for surviving spouses, but was denied under DOMA.

19
 i. RULE: A federal statute excluding same-sex couples from
the definition of marriage for purposes of federal benefits
is unconstitutional.
c. Obergefell v. Hodges (2015): In response to some states
legalizing same-sex marriage, some states enacted laws and
constitutional amendments defining marriage between a man
and a woman. Plaintiff’s partner became very ill so they decided
to get married in MD, where it was legal. After Arthur died, OH
refused to list P as surviving spouse on death certificate.
i. RULE: Under Due Process & Equal Protection Clause of
14th Amendment, states must issue marriage licenses
and recognize lawful out-of-state marriages for same-sex
couples.
d. Same-sex marriage is lawful, valid, enforceable.
ii. FL Statutes Ch. 741:
 § 741.01  County court judge or clerk of the circuit court to
issue marriage license; fee.
a. (1) Every marriage license shall be issued by a county court
judge or clerk of circuit court under his or her hand and seal.
b. (2) The fee charged for each marriage license issued in the state
shall be increased by $25.
c. (5) The fee charged for each marriage license issued in the state
shall be reduced by $32.50 for all couples who present valid
certificates of completion of a premarital preparation course
from a qualified course provider registered under §741.0305(5)
for a course taken no more than 1 year prior to the date of
application for a marriage license.
 § 741.0305  Marriage fee reduction for completion of
premarital preparation course.
a. (1) A man and a woman who intend to apply for a marriage
license under § 741.04 may, together or separately, complete a
premarital preparation course of not less than 4 hours; the
individuals shall have their marriage license fee reduced by
$32.50.
b. (2) The premarital preparation course may include instruction
regarding:
i. Conflict management.
ii. Communication skills.
iii. Financial responsibilities.
iv. Children and parenting responsibilities.
v. Data compiled from available information relating to
problems reported by married couples who seek marital
or individual counseling.

20
 § 741.03  County court judge or clerk of the circuit court not to
send out marriage license signed in blank.
 § 741.04  Marriage license issued.
a. (1) No county court judge or clerk of the circuit court in this
state shall issue a license for the marriage of any person unless
there shall be first presented and filed with him or her an
affidavit in writing, signed by both parties to the marriage,
providing the social security numbers or any other available
identification numbers of each party, made and subscribed
before some person authorized by law to administer an oath,
reciting the true and correct ages of such parties; unless both
such parties shall be over the age of 18 years, except as
provided in § 741.0405; and unless one party is a male and the
other party is a female.
 § 741.0405  When marriage license may be issued to persons
under 18 years.
a. Note: judicial bypasses only in minor abortions because of
strict scrutiny, not so for minor marriages because it’s not a
denial of marriage, it’s just a delay of marriage because of
rational/reasonable basis (i.e. maturity).
 § 741.041  Marriage license application valid for 60 days.
 § 741.07  Persons authorized to solemnize matrimony.
a. Lawyers are judicial officers
 § 741.08  Marriage not to be solemnized without a license.
 § 741.10  Proof of marriage where no certificate available.
a. The marriage may be proved by an affidavit before any officer
authorized to administer oaths made by 2 competent witnesses
who were present and saw the marriage ceremony performed,
which affidavit may be filed and recorded in the office of the
county court judge or clerk of the circuit court from which the
marriage license issued, with the same force and effect as in
cases in which the proper certificate has been made, returned
and recorded.
 § 741.21  Incestuous marriages prohibited.
a. A man may not marry any woman to whom he is related by
lineal consanguinity, nor his sister, nor his aunt, nor his niece. A
woman may not marry any man to whom she is related by lineal
consanguinity, nor her brother, nor her uncle, nor her nephew.
 § 741.211  Common-law marriages void.
a. No common-law marriage entered into after January 1, 1968,
shall be valid, except that nothing contained in this section shall
affect any marriage which, though otherwise defective, was
entered into by the party asserting such marriage in good faith
and in substantial compliance with this chapter.
21
 § 741.212  Marriages between persons of the same sex. (FL’s
DOMA [which defines marriage as between a man and woman
and states do not need to give Full Faith and Credit to same sex
marriages] – needs to be modernized per update on the law)
a. Marriages between persons of the same sex entered into in any
jurisdiction, whether within or outside Florida, the United States,
or any other jurisdiction, either domestic or foreign, or any
other place or location, or relationships between persons of the
same sex which are treated as marriages in any jurisdiction,
whether within or outside Florida, the United States, or any
other jurisdiction, either domestic or foreign, or any other place
or location, are not recognized for any purpose in this state.
 § 741.23  Husband not liable for wife’s torts.
a. The common-law rule whereby a husband is liable for the torts
of his wife is hereby abrogated.
 § 741.235  Doctrine of interspousal tort immunity abrogated.
a. The common-law doctrine of interspousal tort immunity is
hereby abrogated regarding the intentional tort of battery, and
the ability of a person to sue another person for the intentional
tort of battery shall not be affected by any marital relationship
between the persons.
 When is gender dictated? Florida says at birth.
 (2) Incest:
a. In re adoption of M (1998): Plaintiff was 15 years old when
she was adopted by a married couple. M gave birth to her
adoptive father’s son. They desired to get married but were
prevented by a state law forbidding marriages among family
members. Issue is that as a matter of law, adoptive parents are
the parents of the child as if the child had been born to the
adoptive parents in lawful wedlock.
i. RULE: If an adopted child, after turning 18, develops a
romantic relationship with an adoptive parent without any
evidence of abuse or unlawful acts and the child and
parent conceive a child and wish to marry, the
circumstances are sufficiently exceptional to justify
vacating the judgment of adoption so that the couple may
legally marry.
ii. This is an exceptional case. States control marriage.
iii. Consanguinity – blood.
iv. Affinity – marriage.
b. § 826.04  Incest
i. Whoever knowingly marries or has sex with a person to
whom he/she is related by lineal consanguinity, or a
brother, sister, uncle, aunt, nephew, or niece, commits
22
 incest, which constitutes a felony of the third degree,
punishable provided in §775.082, §775.083, or §775.084.
c. Void and Voidable Distinction: Statutes and the common law
classify invalid marriages as void or voidable.
i. Void marriages are those that are invalid from inception
(void ab initio), that is, it never had a legal existence.
Once void, it is always void; void from the beginning and
cannot be corrected.
 If a marriage is void, then either party or a
third party may challenge the validity of the
marriage at any time and in any proceeding.
a. i.e. parents of a child, probate. Dad
remarries after mom died, children can
challenge new marriage to claim inheritance.
 Substantive defects that render marriages void are
criminal acts like same-sex, bigamous, or
incestuous. It cannot be saved as a matter of law.
ii. Voidable marriages are valid until subsequently declared
invalid.
 The invalidity of a voidable marriage can be
asserted only by one of the parties and only
during the marriage. That is, not after death
of one of the parties.
 Voidable marriages cannot be collaterally attacked.
That is, in a related proceeding. So, the defect
could be cured.
 Less serious substantive defects, like age or
intoxication, may render marriage voidable.
 MUST ACT PROMPTLY! Because if you failed to
bring an action, it shows acceptance.
iii. Overlap: An 18-year-old and a 15-year-old marry. Some
jurisdictions will call it void and the parents could bring an
action to void it. But once the 15-year-old turns 18, it is
voidable.
 (3) Bigamy:
a. Brown v. Buhman (2013): sister wives.
b. Religious beliefs are absolutely protected; however, religious
practices are not necessarily protected.
c. A lack of criminal intent does not necessarily constitute a
defense to bigamy; the invalidity of a 2nd marriage (while a
person is still married to a prior spouse) is not a defense.
d. There is a defense under Enoch Arden statutes—a person who
remarries after the disappearance of a 1st spouse, without

23
 knowledge that the 1st spouse is alive (i.e. lost at sea), is not
guilty of bigamy.
i. Fla. § 826.02 period is 3 years.
 (4) Age:
a. Kirkpatrick v. District Court (2003) : Mother granted
permission for her 15-year-old daughter to marry a 48-year-old
man in Las Vegas.
i. RULE: Statute that allows a minor to marry with consent
of one parent and the court approval does not violate the
substantive due process rights of the parent who does not
consent.
b. Joint custody means that only one parent can consent.
c. The right to marry is a fundamental right—the decision to marry
should rest primarily in the hands of the individual, with little
government interference.
d. Consent by both parents is by no means a constitutional
requirement for even the most important decisions regarding
minors.
e. Minimum Age (Pg. 195): All states establish a minimum age for
marriage, commonly age 18. Minors below that age must have
parental and/or, in some jurisdictions, judicial consent. Some
states allow pregnant minors to marry at a younger age.
iii. State of Mind Restrictions: Fraud and Duress
 Blair v. Blair (2004): Nancy conceived a son during the time she was
having sex with her husband and two other men. William claimed he
was tricked into marriage because Nancy said the baby was his when it
wasn’t. Husband wants an annulment.
a. RULE: A marriage will not be annulled based on fraud where
there is sufficient evidence that the petitioning spouse would
have married the other person even if no misrepresentation had
been made.
b. Why does he want an annulment instead of a divorce? no
alimony.
c. An annulment declares that no marriage occurred because some
impediment existed at the time of the ceremony.
 For annulments:
a. One has two choices: to bring it where the parties were married,
or where they reside. This is the only time there is a choice of
jurisdiction.
b. Religious or statutory annulments are easier to get.
c. An annulment declares a marriage void ab initio.
d. Reasons for Annulment:
i. Age Incapacity (FL);
ii. Bigamy (FL);
24
 iii. Unsound Mind;
iv. Fraud of the essentials of marriage (reproduction)
v. Forced Marriage;
vi. Physical and Mental Incapacity
 Consent Requirement (Pg.199): A marriage may be set aside for lack
of consent
a. i.e. fraud (like duress) = strict scrutiny/liability standard.
b. Annulment jurisdiction exists at either domicile, the state where
the marriage was celebrated, or any state with personal
jurisdiction over the spouses [in contrast, divorce jurisdiction
rests on domicile].
iv. Procedural Restrictions
 (1) Licensure and Solemnization:
a. Carabetta v. Carabetta (1980): married for 25 years with
kids, lost the marriage license, husband tried to claim that
marriage is invalid b/c state requires license – he was trying to
divorce w/o paying alimony.
i. The marriage is not void due to the legislature’s failure to
expressly characterize a properly celebrated marriage as
void for lack of a marriage license. No substantive
requirement that determines marriage eligibility has been
claimed. The other regulations consist of formalities: a
marriage license and solemnization. Under licensing, the
statute describes only a fine for any person who shall join
any other persons in marriage without having received
the license. Under solemnization, when someone joins
persons in marriage without the authorization to do so
the marriage is rendered void. Because there is no
express language voiding the marriage under the
licensing requirement statute, the marriage is dissoluble
rather than void. (policy favoring marriage gives rise to
this rule)
b. Licensure Requirements (Pg.207): Three justifications for
licensure statutes: (1) they aid in enforcing marriage laws by
requiring persons not qualified to marry for reasons of age,
health, or existing marital status to disclose such info; (2) they
serve as public health measures by preventing marriages that
would be damaging to the health of 1 spouse or would produce
unhealthy kids; and (3) licensure serves as proof marriage
occurred.
c. Solemnization (Pg.207): To obtain a license, states also require
solemnization by an authorized individual: religious and some
government officials.

25
 d. Formalities (Pg.207): (most common) license be procured in the
country where 1 party resides or where the marriage is to be
performed, both parties must be present when they apply or 1
may apply by affidavit, license expires with 60 days, application
fees, waiting period b/w issuance of license and the ceremony.
e. For a valid marriage in Florida, licensure, solemnization.
v. Information Marriages
 (1) Common law marriage:
a. Jennings v. Hurt (1991): Jennings and Hurt met in New York
in 1981 and began living together. They ceased living together
in 1984. When the relationship began, Jennings knew Hurt was
still married. Hurt explained that marriage was not in the cards.
In 1982, Jennings became pregnant, prompting Hurt to start
divorce proceedings to terminate his marriage. In October,
Jennings joined Hurt in SC, where they shared the same house
and bed. In December 1982, Jennings learned that Hurt’s
divorce was final when he approached her with a prenuptial
agreement and said that they should sign the agreement, have
blood tests, and get married. After they went to a Notary to
have the agreement signed a fight ensued regarding the
agreement, and Hurt stated that they were married in the eyes
of God. Jennings claims to be Hurt’s common-law wife based on
these events.
b. For Common Law Marriage, you need capacity to enter into a
marital contract (age/state of mind), present agreement (intent)
to marry, cohabitation, and holding yourselves out as married.
i. Common law marriage ends by divorce or death.
c. The paternity acknowledgment agreement is not a prenup, you
need to look to substance of the agreement to determine this.
d. Putative Spouse Doctrine:
i. This doctrine recognizes the marriage of an individual who
participated in a marriage ceremony in good faith, in the
belief that a valid marriage took place, and in ignorance
of an impediment making the marriage void or voidable.
ii. Protects the putative spouse and allows equitable remedy
iii. Florida doesn’t have a codified putative spouse doctrine.
e. Ch. 61: in the event a marriage is not valid; a court has powers
of equity—fairness.

26
Ch. 3 Being Married: Regulation of the Intact Marriage

I. The Changing Nature of Marriage

a. Historically, marriage was not about love. It was about security and advancement—
women became part of the men.
b. Difference in marriage in the 1920’s and today:
i. Marriage women with children did not work in the 1920s;
ii. Premarital sexual activity was taboo;
iii. Cohabitation was virtually nonexistent;
iv. Nonmarital births were heavily stigmatized;
v. Housework took up a major fraction of the day; and
vi. Fathers spent little time with children.
II. Roles and Responsibilities in Marriage
a. Common Law View:
i. By marriage, the husband and wife are one person in the eyes of the law.
That is, the very being or legal existence of the woman is suspended during
the marriage, or at least is incorporated and consolidated into that of the
husband.
b. Marital Property Regimes:
i. The two marital property regimes that exist in the U.S. are: (1) the common-
law approach and (2) the community property approach.
 In the common-law system, followed by most jurisdictions, the
husband and wife own all property separately.
a. During the marriage, property belongs to the spouse who
acquired it unless choose another form of ownership.
 In the community property system, the husband and wife own
some property jointly. Equality of treatment of the spouses is the
cardinal rule of the community property system.
a. The community property system is characterized by the concept
of a community of ownership under the spouses are partners.
b. Each spouse has a present, undivided, 1/2 interest in all
property acquired by the efforts of either spouse during
marriage.
c. Unlike the common-law system, community property recognizes
the contributions, i.e. the homemaker spouse. It respects each
spouse’s separate property, such as the property that each
brought to the marriage.
d. In effect in 9 states—AZ, CA, ID, LA, NV, NM, TX, WA, WI.
ii. Common Law Disabilities:
 (1) Wife’s real property: the husband acquired an estate in the wife’s
real property for the duration of the marriage.
 (2) Dower: during marriage, the wife’s primary protection from her
husband’s conveyances consisted of her right of dower—her life estate

27
 of 1/3 of any land of which the husband was seised in fee at any time
during the marriage.
 (3) Wife’s personal property: the wife had no right to possess personal
property and during marriage, the husband had the power of
disposition (inter vivos or by will) over his personal property.
 (4) Husband’s liability: the husband was liable for the wife’s premarital
debts and torts she committed before or during.
 Under the common-law doctrine of coverture, the husband and wife
became one person upon marriage.
c. Duty of Support:
i. At common-law, the husband had a duty to support his wife. The wife had a
correlative duty to render services to her husband.
ii. McGuire v. McGuire (1953): Wife, after being widowed with two
daughters, married husband. She was aware when she married him that he
was frugal. She came to the marriage with 80 acres of land. During their
marriage, he barely gave her money. He refused to disclose his financial
information. Without filing for divorce, wife sued husband for support and
maintenance.
 RULE: One spouse may not sue the other for support and maintenance
while the marriage remains intact, continue to live together, and the
parties’ home is maintained.
iii. Under the Doctrine of Nonintervention, courts are reluctant to interfere in
an ongoing marriage to settle disputes between the parties.
 For public policy reasons, a married couple’s disputes are not a matter
of judicial resolution.
 Courts will not intervene in personal matters unless it is a domestic
violence case—only exception.
a. Martial support obligations are enforceable only after separation
or divorce.
iv. FL has no statutory date to live apart or divorce. No physical
separation.
v. Necessaries Doctrine (Pg.237): It imposed liability on a husband to a
merchant who supplied necessary goods to a wife i.e. food, clothing, shelter,
or medical care. PG. 55 ON OTHER BOOK
 Often codified as “family expense” statutes which render both spouses
liable for the support of family members.
vi. Constitutional Limits on sex-stereotyped role assignments:
 Sex discrimination violates the 14th Amendment’s Equal Protection
Clause.
 The Court applies an intermediate standard of review, maintaining that
the classification must serve important governmental objectives and
must be substantially related to the achievement of those objectives.
d. Names in the Family:

28
 i. Neal v. Neal (1997): Husband & Wife separated, at which point Wife was
pregnant. Wife filed for divorce and she included a request that she legally
regain her maiden name. She gave her son her maiden name.
 RULE: A court has discretion to deny a request for a name change on
the grounds that it will be detrimental, but its discretion to do so is
narrow. To change a child’s name, proper notice must be given to
concerned parties.
a. It must not be done fraudulently.
ii. Final judgment acts as court order if you are changing your name.
iii. Choice of Children’s Names:
 Standard to resolve disputes: Courts resolve parental disputes about
children’s surnames according to the “best interests of the child”
standard.
iv. Henne v. Wright (1990): Plaintiff gave birth to daughter in NE. At the
time, she was separated from her husband, Henne. Her daughter’s biological
father acknowledged paternity and Plaintiff desired to give her daughter her
biological father’s surname. NE state law advised Plaintiff that she was
required to give her daughter her husband’s last name
 RULE: A Nebraska law that prevents mothers from giving their children
surnames that are not connected to the children’s legal parentage
does not violate the 14th Amendment.
 Previous case law established the existence of a fundamental right to
make child rearing decisions but the right is not absolute.
a. The right to choose a child’s surname bears little resemblance to
the parental rights of training and education previously found to
be fundamental.
b. The custom in this country has been for a child to bear the
surname of the father at birth, with children born out of wedlock
receiving the surname of the mother.
 The Nebraska law rationally furthers at least three legitimate state
interests: promoting the welfare of children, insuring the names of its
citizens are not appropriated for improper purposes, and inexpensive
and efficient record keeping.
v. What if mom had child out of wedlock but now the father wants the child to
have his last name? Resolve these things by whatever is in the best interests
of the child.
vi. Currently, all states recognize a woman’s right to retain her birth name upon
marriage.
 Individuals can take any name during marriage and divorce.
e. Employment:
i. At common-law, married women’s civil disabilities prevented them from
being employed in some professions.
ii. Bradwell v. Illinois (1873): Plaintiff applied to the Supreme Court of IL for
a license to practice law in IL. Her application included a certificate of good
29
 character and her qualifications, as required. She sued the state after her
application was denied.
 RULE: Privileges or Immunities Clause of the 14th Amendment does
not guarantee women the right to hold the same occupation as men.
 IL Supreme Court denied Plaintiff’s application to the bar, in part based
on married women’s inability to contract. So, they still let her do law
school?
iii. Married Women’s Domicile: Pg. 58
f. Parenting
i. Pregnancy Leave:
 Cleveland Board of Ed. V. LaFleur (1974) : The maternity-leave
policies of OH require pregnant teachers to (1) give notice of
pregnancy, (2) take mandatory unpaid leave starting five months
before due date, (3) refrain from being eligible to return to work until
the baby is three months old, and (4) provide medical certification that
she is physically fit to return to work after such three-month period.
a. RULE: It is constitutional for a school board to implement
maternity-leave policies that promote instructional continuity
and physical fitness to teach as long as policies are tailored
toward individualized determinations.
 Pregnancy Discrimination Act of 1978: When an individual takes
leave for a child, they are entitled to their job position (or one
comparable to it if their 1st job position is not there anymore).
a. Pregnancy is treated as a disability under the law.
b. If employer has 50+ employers, they must provide protection
for pregnant women.
c. Criticism:
 Loan association v. Guerra (1987): People can have families
without losing their jobs.
a. RULE: A state statute requiring employers subject to Title VII to
reinstate employees returning from pregnancy disability leave—
not other forms of disability leave—to the same, similar,
positions in the workplace is not preempted by federal law.
ii. Balancing Work and Family (FMLA):
 Caldwell v. Texas Inc. (2000): Caldwell was a single mother and
had good history with her job. She called out of work 1 day when her
son had a massive ear infection, but she made up the shift that same
night. She was fired.
a. RULE: An employee has a valid claim under FMLA where there is
evidence that the child has a serious medical condition that
necessitates a continued course of supervised medical attention
and that incapacitates the child for at least 3 consecutive days.
 Family and Medical Leave Act 29 U.S.C. §2601: Eligible employees
are entitled to 12 weeks of leave, serious medical condition related to
30
 care of family member, entitled to qualifying position when coming
back.
a. Employers of 50 or more;
b. To provide eligible employees (those who are employed for at
least 1 year);
c. With unpaid leave for up to 3 months;
d. Because of birth, adoption, foster care placement, or to care for
a family member with a “serious health condition.”
 Criticism: FMLA provides only unpaid leave, it does not apply to same-
sex co-parents. It does not do enough.
 Dike v. School Board (1981) : Plaintiff was a kindergarten teacher,
returned to work after the birth of her child. To continue breastfeeding
her child without impacting her job obligations, P had her husband or
babysitter bring the baby to school during her lunch hour, at which
time P would breastfeed the baby in a private, locked room. The
principal informed P that her activity violated a regulation of the school
board, which forbid teachers from bringing their children to work
because it might be disruptive or subject the school board to litigation
if the child got injured. After the principal’s admonition, P pumped
breast milk that could be fed to her baby by bottle. When the baby
refused to be bottle-fed, however, P requested permission to
breastfeed off-campus during her lunch hour. Her request was denied
on the basis of a school board regulation forbidding teachers from
leaving the school grounds during the workday. Eventually, P chose to
take an unpaid leave of absence. 
a. RULE: A regulation that impairs a woman’s right to breastfeed
must be based on legitimate objectives and sufficiently narrowly
tailored to be constitutional.
 Family Responsibilities Discrimination: Recently identified form of
discrimination against workers based on their caregiving
responsibilities for children, elderly parents, or ill spouses and
partners. It includes not only pregnancy discrimination but also
discrimination against men who seek to take on a larger family
caregiving role for young children.

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Ending the Marriage
Ch. 6 Divorce

I. Divorce Jurisdiction is dictated by durational residency requirement in every state.

d. The Hague Convention says you cannot show up in a country and serve someone.
II. Divorce Jurisdiction:
a. Jurisdiction refers to subject matter jurisdiction that is necessary for the plaintiff to
secure a divorce (i.e. durational residency and/or domiciliary requirements) and
personal jurisdiction over the defendant.
b. Over the Plaintiff and Defendant:
i. In Re Marriage of Kimura (1991): Ken married Fumi in Japan. They then
separated. He moved to NY for work, then he moved to IA. Ken filed for
divorce in IA and the petition was filed 3 times in IA because IA did not have
personal service. He then mailed the petition to his wife in Japan. Ken
attempted constructive notice. Fumi responds with a motion to dismiss for
lack of personal and subject matter jurisdiction.
 RULE: Where a bona fide resident of Iowa for at least one-year
petitions for divorce from a spouse who has no connection to Iowa
whatsoever, an Iowa court has jurisdiction with respect to dissolution
of the marriage but not with respect to collateral issues that affect the
rights of the absent spouse such as support or property distribution.
 Does IA have personal jurisdiction over Fumi? Not over her but it does
have it over the marriage itself since Ken is there.
a. If personal jurisdiction is attached to her, she will have to come
to the U.S., follow IA state rules, and fight for property rights,
equitable distribution, and alimony if she wants some of it. She
must voluntarily submit herself to personal jurisdiction to
receive the benefits and protection of the forum.
i. How would she submit to IA jurisdiction? Filing an
answer.
b. IA has personal jurisdiction over Ken because he had the intent
to remain there indefinitely and met the 1-year period. As for
subject matter jurisdiction, this accrued when he met the
durational residency requirement.
 If parties are from different states, one must look at the long-arm
statute of where the marriage occurred to determine whether the
assertion of personal jurisdiction over the nonresident respondent is
appropriate.
a. Even if it is appropriate, it must meet the fairness standard
specified in the 14th due process clause. To satisfy the due
process requirement, respondent must have received notice of
the petition, the petitioner will need to establish that the
respondent had sufficient minimum contacts with the forum, so

32
 that bringing him into court in the forum will not offend
traditional notions of fair play and substantial justice.
b. If a long-arm statute was not implemented, the state would not
be able to hold individuals accountable. They would otherwise
leave the state, thereby leaving the other spouse with no
remedy.
ii. Parties can stipulate to personal jurisdiction, but cannot stipulate for subject
matter jurisdiction. It cannot give courts the authority it does not have.
iii. To terminate a marriage, the plaintiff must be domiciled in the forum state.
Personal jurisdiction over the defendant is not required. However, notice to
the defendant that complies with due process is required to inform the
defendant of the pendency of the action.
 A divorce without proper notice may be challenged for lack of
jurisdiction.
iv. If the respondent answers, he or she is submitting to personal jurisdiction.
That means, the state has now simultaneously subject matter jurisdiction.
v. Proper Notice:
 First, individual must do personal service—personally serve the
respondent.
 Second, do substitute service—service someone that may reside in
the home to someone who is at least 18 years old.
 Finally, in limited circumstances constructive service—a publication
on newspaper, which occurs only after a person has diligently searched
for the respondent. It is disallowed if petitioner knows where the
respondent is.
 RULE: Proper notice, to comport with due process, must meet the
standards established by the Supreme Court. That is, notice must be
“reasonably calculated under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an
opportunity to be heard. A divorce that does not meet proper notice
requirements may be challenged for lack of jurisdiction. If petitioner
knows of respondent’s whereabouts, then notice should be either by
personal service or mail. But, if respondent’s whereabouts are
unknown, notice may be satisfied by constructive service such as
notice by publication or posting.
vi. Long Arm Statutes: While personal jurisdiction over the respondent is not
essential for the sole purpose of ending a marriage, the assertion of personal
jurisdiction is necessary to resolve the financial incidents of the divorce and
to ensure that a decree is entitled to full faith and credit. It facilitates the
assertion of personal jurisdiction over the nonresident respondent.
 Personal jurisdiction over the respondent that comports with due
process/minimum contacts is required for orders determining financial
rights and obligations in the divorce context.

33
vii. Transitory Presence: A state may acquire jurisdiction for divorce purposes
over a nonresident respondent who is physically present in the state. Thus,
transitory presence suffices to satisfy due process requirements even when a
respondent has no substantial connection to the forum. Personal
jurisdiction over the respondent is satisfied by service of process
while in the forum state.
viii. Bright Line Rules:
 If durational residency requirement is met, it satisfies subject
matter jurisdiction. Also, if there is personal jurisdiction over
one spouse only.
a. If so, only the dissolution of marriage is granted.
b. In an ex parte divorce, courts have personal jurisdiction over
only one spouse.
 If durational residency requirement is met, it satisfies subject
matter jurisdiction. Also, if there is personal jurisdiction over
both spouses.
a. If so, the dissolution of marriage is granted plus property rights
like equitable distribution. All the issues.
b. In a bilateral divorce, courts have personal jurisdiction over both
spouses.
i. Because it is premised on jurisdiction over both parties, it
cannot be collaterally attacked.
ix. Venue:
 Where the marriage became “irretrievably broken” such as where the
parties last lived together with the common intent to be married.
 Forum non conveniens is a venue issue, not a jurisdiction issue.
 In FL, the standard for venue is the place where the couple last
lived together with the intent to remain married.
x. Example:
 What if Husband moves to CA, satisfies the DRR, then files for divorce.
Then what happens?
a. Wife must be served. What are her options?
i. Voluntarily submit to CA court. CA will have personal
jurisdiction and subject matter jurisdiction. CA would then
be able to dispose of all matters.
 What if Wife is in FL and Husband is in CA and Wife gets served with a
petition of dissolution of marriage from CA?
a. If she does not want a CA divorce, she must a petition in FL,
because the FL court has jurisdiction over all of it.
xi. If one spouse does not bring up any claims in the divorce, he or she waives
them such as alimony, equitable distribution. However, courts will not waive
child support or child custody.
xii. Divisible Divorce Doctrine: Under this doctrine, a court in an ex parte
divorce has jurisdiction only over the marital status of the parties. That is,
34
 the court can render the divorce decree only. The court may not determine
the support and property rights of the absent spouse.
 i.e. Spouses lived in NM, but one of them moved to FL and satisfied
the durational residency requirement. Wife then filed for divorce. FL
could grant the dissolution of marriage. Respondent can either:
a. Answer or counter—accepting personal jurisdiction in FL. The
court will treat the responsive pleading as an answer if the
respondent merely says, “I still love my spouse, I don’t want a
divorce.”
b. Do nothing—allowing the dissolution of marriage.
i. He does not waive any claims.
c. File a petition in NM—having jurisdiction to hear all claims. The
FL spouse would still be subject to personal jurisdiction of NM.
i. Here, any claims not brought up will be lost. Why? Court
loses jurisdiction over the marriage after final judgment.
Because after the final judgment, there is no marriage
over which to have jurisdiction.
xiii. A state has jurisdiction to dissolve a marriage based on petitioner’s
domicile in the forum state. Thus, a state’s durational residency
requirements confer subject matter jurisdiction over the marriage
upon a given court. Further, jurisdiction for divorce purposes is “in
rem” i.e. over the marital status.
xiv. Wife separates Husband in NY and then moves with her children to IA. One
month later, she petitions an IA court for divorce. Husband, who was served
with notice during a visit to IA to see the children, contests jurisdiction. The
IA court dismisses Wife’s petition on jurisdictional grounds because Husband
is not a resident of IA, and Wife failed to satisfy the statutory requirement of
one-year residency preceding her filing of the petition. Wife appeals,
contending that IA’s one-year residency requirement violates her
constitutional right to travel. The U.S. Supreme Court upholds IA’s residency
requirement, reasoning that it minimizes the susceptibility of a state’s decree
to collateral attack and avoids one state’s interference in matters in which
another state has an important interest. Further, IA’s residency requirement
does not foreclose a petitioner’s access to the courts but merely delays it.
xv. Domestic Divorce—full and faith credit clause:
 If there is personal jurisdiction over both spouses and petitioner fails
to include alimony and equitable distribution, the petitioner waives
those claims.
 Absent personal jurisdiction over both spouses, petitioner does not
waive them because the court does not have the authority to
adjudicate the properties.
 Include alimony, equitable distribution even if you do know there is no
personal jurisdiction over the other spouse, hoping that the responding
party would file an answer.
35
  CANNOT ADDRESS ALIMONY POST FINAL JUDGMENT.
 Operation of law – legal reason; divorce – factual reason. Because
initially Husband and Wife were tenancy in its entirety. Once they are
divorced, they become tenancy in common.
xvi. Foreign Orders:
 The Comity Doctrine: It concerns the extent to which a state
recognizes the decrees of foreign countries. A court is not required to
give the same deference to a divorce decree of a foreign country as to
a decree from a sister state—this is mandated by the Full Faith and
Credit Clause. Courts may refuse to apply the comity doctrine to
recognize foreign divorces if such recognition would violate public
policy or frustrate the state laws regulating the divorce. This is a
discretionary doctrine.
 The Full Faith and Credit Clause: It mandates public acts, records,
and judicial proceedings of the decrees of sister states.
c. Durational Residency Requirements:
i. Sosna v. Iowa (1975) : Husband and Wife married in MI. They lived
together in NY, after which they separated but continued to live in NY. In
1972, Wife moved to IA, and the following month petitioned the IA district
court for dissolution of her marriage. Husband made a special appearance to
contest the jurisdiction of the IA court. The IA court dismissed the action for
lack of jurisdiction, finding that Husband was not a resident of IA and Wife
had not been a resident of the State for one-year preceding the filing of her
petition as required by IA statutes.
 RULE: It is constitutional for states to require certain residency periods
before one living in that state is permitted to file for a divorce therein.
 The residency requirement does not foreclose a petitioner’s access to
the courts but merely delays it. Courts do not want people to move to
a certain state just to divorce quickly.
ii. Residency: Physical + Intent to Remain Requirement.
iii. § 61.021  Residence Requirements — To obtain a dissolution of
marriage, one of the parties to the marriage must reside 6 months in the
state before the filing of the petition.
d. Domestic Relations Exception to Diversity Jurisdiction:
i. The domestic relations exception to federal court jurisdiction provides that
federal courts can refuse jurisdiction in cases in which a party is seeking
divorce, alimony, or custody decrees because such matters are more suitable
for state courts.
 It applied to traditional family rights.
ii. Ankenbrandt v. Richards (1992): Petitioner, citizen of MO, sued in federal
court on behalf of her minor daughters against respondents, citizens of LA,
based on diversity jurisdiction §1332, seeking monetary damages for alleged
sexual and physical abuse. Richards was the divorced father of the children.
The District Court granted respondents’ motion to dismiss based on the
36
 “domestic relations” exception to diversity jurisdiction, which dictates that
matters of divorce, alimony, and custody are reserved for state jurisdiction
only. It further noted that, even if jurisdiction was proper over this tort claim
for damages, the court would abstain from exercising jurisdiction.
 Federal Subject Matter Jurisdiction is proper here pursuant to §1332.
Federal court could have declined the hear this case.
iii. Federal courts should abstain from exercising jurisdiction in
domestic relations involving divorce, alimony, or child custody decree
because this should be under state law, even if they have
jurisdiction.
iv. The Abstention Doctrine: It states that federal courts may decline to
exercise their jurisdiction in extraordinary circumstances because of
federalism concerns like a reluctance to intervene if the state proceeding
involves important state interests. IT IS DISCRETIONARY, COURTS COULD
EXERCISE ABSTENTION.
 It is an alternative mean by which federal courts can still “slam shut”
the federal courthouse door to some domestic relations matters that
do not involve divorce, alimony, or custody.
 This might be proper when a case presents “difficult questions of state
law bearing on policy problems of substantial public importance whose
importance transcends the result in the case than at bar.” Abstention
may also be appropriate in a domestic relations case not involving
divorce, alimony, or custody, where important state interests are at
stake.
e. Divorce as a Social Phenomenon:
i. 6 stations of divorce:
 (1) the emotional divorce—centers around the problem of the
deteriorating marriage;
 (2) the legal divorce—based on grounds [and now, on no-fault];
 (3) the economic divorce—deals with money and property;
 (4) the co-parental divorce—deals with custody, single-parent homes,
and visitation;
 (5) the community divorce—surrounding the changes of friends and
community that every divorcee experiences; and
 (6) the psychic divorce—with the problem of regaining individual
autonomy.
f. Florida is a no-fault jurisdiction.
i. One cannot reference fault in the pleadings for justification for divorce.
However, it can be relevant to other proceedings like alimony and E.D.
ii. Standard: MARRIAGE IS IRRETRIVABLY BROKEN—preponderance of the
evidence.
III. Fault-Based Grounds for Divorce
a. Adultery:
i. Until the 1970s, adultery was a ground for divorce in all states.
37
  Adultery is currently a crime in 21 states.
ii. Brown v. Brown (2008): Husband and Wife had 5 children and were
married for 20 years. Man sold and installed the windows in their home and
had a relationship with Wife. She and Man spoke often on the phone and met
without their spouses knowing. Husband filed for divorce, alleging adultery.
 Proof of adultery as a ground for divorce must be “clear and positive
and the infidelity must be established by a clear preponderance of the
evidence.”
iii. Elements to prove adultery, a plaintiff must show:
 Circumstantial evidence that establishes both (1) a disposition to
commit the offense and (2) opportunity to commit the offense
[because obtaining evidence of the commission of the act is almost
impossible or prove this by voluntary sexual relations between a
married person and anyone but their spouse.]
iv. In FL, it is illegal for both parties to live in open adultery.
 This is relevant only to the extent of financial estate: alimony and
equitable distribution.
v. Divorce after infidelity is prevalent because trust is gone, especially when a
spouse catches the other spouse red-handed—direct evidence as opposed to
hearing it from someone else—indirect evidence.
b. Cruelty:
i. Cruelty statutes sometimes include the terms of “cruel and inhuman
treatment.”
ii. Anderson v. Anderson (2010): Husband filed for divorce from Wife, based
on habitual cruel and inhuman treatment, and irreconcilable differences.
Husband claimed that Wife physically/verbally abused him and his 2 children
from previous marriage, threatened him, attempted to ruin his reputation as
pastor of his church, and falsely accused him of having an affair. At trial, the
children corroborated Husband’s claim that Wife was physically and verbally
abusive. However, a guardian ad litem that MS court appointed did not find
sufficient evidence of child abuse. Wife presented circumstantial evidence—
including hotel rooms and emails—that Husband did in fact have an affair.
 RULE: Mere unkindness or rudeness is not sufficient to support the
granting of a divorce based on habitual cruel and inhuman treatment.
iii. Elements to prove cruelty, a plaintiff must show:
 (1) A course of conduct that is so severe as to (2) create an adverse
effect on plaintiff’s physical or mental well-being.
iv. False accusations of infidelity made habitually over a long period of time
without reasonable cause can also constitute cruel and inhumane treatment.
But honestly-made claims, even when later found to have been erroneous,
do not constitute habitual cruel and inhumane treatment.
v. Proof equation: one must show fault of the other party to get a divorce; one
cannot say “I cheated, so now I want to divorce” i.e. giving benefit to the
wrongdoer.
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 c. Desertion:
i. Desertion constitutes grounds for divorce in many jurisdictions.
 Most states require that desertion continue for at least 1 year.
ii. Reid v. Reid (1989): Husband worked long hours and often multiple jobs.
He supported the family financially. Their sexual relations were infrequent
and Husband suffered from impotency from time to time. Wife was unhappy
with the couple’s sex life and the amount of time Husband spent at work as
opposed to helping to raise their children. She complained that they lacked a
caring relationship. The couple entered counseling but it was unsuccessful.
The following year, Wife obtained an apartment without telling Husband.
After they discussed the marriage without mutually agreeing to separate,
Wife moved out of the house. Later, she filed for divorce, alleging Husband’s
conduct had compelled her to leave the marriage—constructive desertion.
 RULE: A divorce on the grounds of desertion is warranted where one
spouse purposefully and unjustifiably leaves the marital home with the
intent that the separation be permanent.
 Wife deserted (when she moved out) unjustifiably. It bars spousal
support; no alimony.
iii. Elements to prove desertion or abandonment, plaintiff must show:
 (1) A voluntary separation; (2) with the intent not to resume
cohabitation; (3) and it is without consent or justification.
iv. A spouse’s mere departure is not sufficient to prove desertion. Separation
without the requisite intent will not constitute desertion but subsequent
intent formed after a separation will suffice = desertion dates from the time
the intention is formed.
v. Constructive Desertion: It serves both as an alternative ground for divorce
and as a defense. It constitutes conduct that either causes a spouse to leave
or justifies the spouse’s departure.
vi. Additional statutory fault-based grounds include willful nonsupport of wife by
husband; criminal conviction or imprisonment; drunkenness and drug
addiction, impotence, and insanity.
d. Fault-Based Jurisdictions are decreasing. To divorce, parties can prove fault or in
the alternative, grounds to prove separation.
IV. Fault-Based Defenses:
a. These defenses are irrelevant if the divorce is sought on no-fault grounds.
b. Recrimination:
i. A doctrine that bars divorce in cases where both spouses are at fault.
ii. Jenkins v. Jenkins (2010): Wife filed for divorce asserting adultery and
habitual cruel and inhumane treatment, which was found. Husband
counterclaimed for adultery, which was also found. Court found that Husband
is guilty of habitual cruel and inhuman treatment towards Wife and that his
conduct is the proximate cause of the separation.
iii. If each party to a marriage proved a fault-based ground for divorce, then
neither party was entitled to a divorce.
39
  Offenses committed by both spouses does not need to be the same
but both spouses’ offenses must be sufficient to constitute grounds for
divorce.
iv. Policy Rationale: It includes the clean hands doctrine, the idea that divorce
should be permitted only for the innocent spouse, preservation of marriage,
and the need to provide economic protection to women.
c. Condonation:
i. It means that a spouse who has once condoned marital misconduct, such as
adultery, is barred from using that misconduct as grounds for divorce. It
exists if the wronged spouse resumes sexual relations with the wrongdoer
following knowledge of the wrongdoer’s misconduct.
ii. Haymes v. Haymes (1996): Wife alleges that Husband refused to have sex
with her, rejected her many times. Then, Husband moved out of the home
without Wife’s consent and justification. Wife alleges that Husband engaged
in adulterous relationships with several women. They tried fixing their
marriage but Husband did not show remorse for his adultery nor affection
towards Wife.
d. Connivance:
i. It is participation in, or consent to, the defendant’s wrongful conduct.
ii. Connivance constitutes express or implied consent by Plaintiff to the
misconduct alleged.
iii. Three justifications:
 (1) Volenti non fit injuria—He who consents cannot receive an injury;
 (2) Petitioner with unclean hands is not entitled to equitable relief;
 (3) Some states limited divorce to the innocent party, and a conniving
spouse was not an innocent party.
iv. The doctrine was usually limited to lawsuits for adultery.
e. Collusion:
i. It is an agreement between Husband and Wife to (1) commit a marital
offense to obtain a divorce, (2) fabricate evidence of a wrongdoing not
actually committed, or (3) suppress a valid defense.
f. Difference between connivance and collusion?
i. Connivance requires only the corrupt consent of the Plaintiff and it cannot
occur without the actual commission of a marital offense, while collusion
requires consent of both spouses and can take place without either party’s
ever actually giving the other cause for divorce.
V. No-Fault Divorce
a. All states have some form of no-fault divorce.
i. FL Standard = prove marriage is irreconcilably broken. It does not
require any time of separation to divorce.
 § 61.031  Dissolution of marriage to be a vinculo — No
dissolution of marriage is from bed and board, but is from bonds of
matrimony.
 § 61.013 – circuit court is the venue for divorce.
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  § 61.044  Certain existing defenses abolished — The defenses to
divorce and legal separation of condonation, collusion, recrimination,
and laches are abolished. NO DEFENSE.
 61.052  Dissolution of marriage — What to prove:
a. No judgment of dissolution of marriage shall be granted unless
one of the following facts appears, which shall be pleaded
generally (pleading generally = testimony and just saying so):
i. The marriage is irretrievably broken.
ii. Mental incapacity of one of the parties. However, no
dissolution shall be allowed unless the party alleged to be
incapacitated have been adjudged incapacitated for a
preceding period of 3 years.
b. Based on the evidence at the hearing, where evidence does not
need to be corroborated except to establish that the residence
requirements of §61.021 are met which may be corroborated by
valid FL driver license, FL voter’s registration card, a valid FL
identification card issued under § 322.051, or the testimony or
affidavit of a third party, the court shall dispose of the petition
for dissolution of marriage when the petition is based on the
allegation that the marriage is irretrievably broken as follows:
i. (a) If there is no minor child of the marriage and if the
responding party does not, by answer to the petition for
dissolution, deny the marriage is irretrievably broken, the
court will enter a judgment of dissolution of the marriage
if the court finds that the marriage is irretrievably broken.
ii. (b) When there is a minor child of the marriage, or when
the responding party denies by answer to the petition for
dissolution that the marriage is irretrievably broken, the
court may:
 (1) Order either or both parties to consult with a
marriage counselor, psychologist, psychiatrist,
minister, priest, rabbi, or any other person deemed
qualified by the court and acceptable to the party
or parties ordered to seek consultation; or
 (2) Continue the proceedings for a reasonable
length of time not to exceed 3 months, to enable
the parties themselves to effect a reconciliation; or
 (3) Take such other action as may be in the best
interest of the parties and minor child of marriage.
c. In FL, marriage counseling is not viable.
b. Legal Problems Raised by No-Fault Divorce
i. Living Separate and Apart:
 Bennington v. Bennington (1978): Husband left the house to sleep
in travel van located adjacent to the house but on the same premises
41
 because Wife, who had suffered a stroke, kept the heat on too high
and bolted the doors shut for security and would take 20 minutes to
unlock it because of her condition. Husband kept up marital
responsibilities. Wife filed an action for alimony only, claiming gross
neglect of duty and abandonment without just cause.
a. RULE: Where a spouse lives outside of the marital house but on
the same premises and continues to perform the same marital
and household functions that were conducted prior to the move,
the spouses are not deemed to be living separately for the
purposes of obtaining a divorce on the grounds of separation
without cohabitation.
 The term “living separate and apart” may refer to both the physical
separation and the intention to dissolve the marriage.
 FL doesn’t have this.
ii. What Role for Fault?
 Feltmeier v. Feltmeier (2003): Husband and Wife married in 1986
and divorced in 1997. Wife sued Husband for IIED post final judgment.
Wife claimed since their marriage until a year after the dissolution,
Husband committed outrageous conduct and abuse. This is a DV case.
iii. A party must bring tort claims committed during their marriage before final
judgment for D.O.M. to avoid res judicata.
 First count—D.O.M. (civil circuit-no jury)
 Second count—battery (civil circuit-jury)
a. The presiding judge could hear both cases if the petitioner
wants a bench trial. If he/she does not, the attorney can
bifurcate the tort claim.
iv. FL is not a compulsory jurisdiction. The spouse does not need to file a
tort claim during the divorce, it can wait to bring it later BUT the spouse
might later be barred.
 NOTE: If the attorney does not tell client that he/she has the right to
include the tort, he/she could be committing malpractice.
 In FL, the better course is to file it with the divorce. The action
will be bifurcated; then sent to civil division.
v. If the couple is not married, there is no equitable distribution on their home.
The court will partition by sale—no money will be generated. No one buys a
single interest.
VI. Access to Divorce:
a. Boddie v. CT (1971): Welfare recipients challenged the constitutionality of certain
state procedures for the commencement of litigation, including the requirement for
payment of fees and costs for service of process, that restrict their access to the
courts in their effort to bring an action for divorce. Costs would be around $60, and
it's not disputed that Boddie barely has enough for cost of daily living.

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 i. RULE: The Due Process Clause of 14th Amendment prohibits a state from
denying, solely based on inability to pay, access to its courts to indigent
individuals who seek in good faith judicial dissolution of their marriages.
 In FL, it costs $428 to file petition for D.O.M.
b. Pro Se Divorce: It permits an individual to act as his or her own lawyer, thereby
decreasing the cost of divorce. The adoption of no-fault divorce eroded the role of
lawyers and spurred the growth of pro se divorce.
i. Shortcomings: pro se litigants are less satisfied with the terms of their
divorces as their cases become more complex, they are less likely to receive
tax advice or information about alternate dispute resolution. Many petitioners
and respondents encounter difficulties that are never resolved.
VII. The Role of Counsel
a. Emotional Aspects of Divorce:
i. Moses v. Moses (1975): Husband and Wife sought a divorce. Wife was
represented by Mr. Fox (plaintiff), a lawyer who was a close friend of the
family. Mr. Fox thought his fees were going to be paid by Husband. Over 56
days of representing Wife, Mr. Fox spent 121 hours on the matter. Mr. Fox
sought to withdraw as counsel because of the excessive demands imposed by
Wife. Court awarded $275/weekly support for Wife and kids. Mr. Fox
submitted attorney’s fees of $5K. His fee was based on a rate of $40 per
hour. Trial court awarded full payment of the fees and expenses sought by
Mr. Fox. Husband appealed.
 RULE: Where counsel for one spouse in a divorce proceeding expects
to be paid by the other spouse, counsel must not allow the dependent
spouse to demand that counsel expend a disproportionate amount of
time and labor on the matter.
ii. A divorce attorney has the role of advocate and psychological counselor.
iii. There is an obligation upon counsel, if he or she expects his or her fee to be
paid by the other spouse, to control excessive demands upon time, energy
and intellect by the dependent spouse.
b. Conflicts of Interest:
i. FL Bar v. Dunagan (1999): Attorney Dunagan represented married couple
in the acquisition of a restaurant business; B&G, which was owned by
Husband and Wife but Attorney mistakenly omitted Wife’s name as an owner.
In a subsequent action, the lawyer represented the husband. The Bar found
it was a conflict of interest because he had previously represented both. It
would have been OK, however, if she had consented.
 RULE: 90-day suspension from practicing law is an appropriate
sanction of an attorney who commenced representation of one spouse
in a divorce proceeding without first obtaining the other spouse’s
consent despite having represented them both in the acquisition of a
business and who also disclosed to authorities personal information to
the detriment of formerly represented spouse.

43
 ii. Generally, if an attorney represents two clients, Husband and Wife, he or she
cannot subsequently then choose one. He or she must get a written consent
—waiver. If potential or actual conflicts of interest do arise, the attorney
must withdraw or face disciplinary charges.
iii. “Hot Potato” Rule – an attorney cannot drop a client (spouse) merely
because it becomes more lucrative to represent the other spouse.
c. Sexual Ethics:
i. Attorney Disciplinary Board v. Morrison (2007) : Attorney voluntarily
notified the IA Supreme Court Attorney Disciplinary Board that he had
engaged in a consensual sexual relationship with a divorce client over a six-
month period. His action was unethical under IA’s Code of Professional
Responsibility. He was sanctioned with a 60-day suspension of his law
license.
 RULE: Where an attorney engages in a sexual relationship with a client
who the attorney represents in a divorce proceedings and the
attorney’s conduct was not a one-time occurrence, the attorney should
be sanctioned with a suspension of at least a few months.
ii. Why do courts take Attorney-Client sex cases seriously in divorce cases?
 An unequal balance of power: the lawyer is in control and can
manipulate the relationship or take advantage of the client’s potential
vulnerability. The relationship could be harmful to the client’s interest,
and it may prevent the attorney from competently representing the
client. Plus, it may undercut the client’s trust and faith in the lawyer.
 In FL, if the attorney was already in a preexisting sexual
relationship with a client, it can continue while he or she is
representing that client but the attorney cannot start a sexual
relationship with a client.
iii. Attorney Legal Fees – need and ability to pay. Attorney can still obtain legal
fees even if he or she fails to prevail in lawsuit.

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Ch. 7 Financial Consequence of Dissolution
I. Property Distribution: From Title Theory to Contribution
a. First, E.D. is given out and it requires a written court order, specifically identifying
assets and liabilities—fair distribution. Then, alimony is given.
i. It is governed by §61.075. It was first enacted in 1986.
ii. E.D. is fair and constitutional. Society has shifted towards E.D. instead of
alimony since property is distributed.
iii. In FL, the presumption is that in a post-divorce, all assets are equally
distributed. The legal significance is that it is rebuttable by the
petitioner.
b. Ferguson v. Ferguson (1994): Wife and Husband married in 1967 and separated
in 1991. They had 2 children, Wife worked as both a homemaker and a
cosmetologist/beautician, Husband worked as cable repair technician. The
chancellor awarded Wife a divorce based on Husband’s adultery. Wife was awarded
custody of the 14-year-old son, $300/monthly in child support, the marital home
and its contents, four acres of land comprising the homestead with title to the
marital home to be divested from Husband and vested in Wife, debt free; 1/2
interest in Husband’s pension plan, stock ownership plan, and savings and security
plan; and periodic alimony in the amount of $400/monthly and lump sum alimony
in the sum of $30,000 to be paid at the rate of $10,000 annually.
i. RULE: In awarding support and distributing property under equitable
distribution, court must consider the fairness of the support and distributed
assets as a whole and take into account the contributions of the parties, the
value of the assets, the economic consequences of the distribution, the
parties’ needs, and other relevant factors.
c. Courts are within its authority and power to equitably divide marital assets
at divorce.
d. States generally use 1 of the 3 methods to divide marital assets at divorce: (1)
separate property, (2) equitable distribution, and (3) community property.
i. Mississippi has used the separate property system, but this sometimes
resulted in unjust distributions. This system occasionally ignores the financial
contributions of the non-title holding spouse, and is also unable to take into
account a spouse’s non-financial contributions. This court has previously
allowed lump sum alimony as an adjustment to property division to prevent
unfair distribution, with this power of the chancery court deriving from the
legal duty of the husband to support the family.
e. In FL, is alimony appropriate if one spouse had an affair, given it was a
long-term marriage? Yes, it is less likely that in a long-term marriage the
court would consider an affair an absolute bar to alimony.
f. FL uses the marital property model, that acquired by either spouse during
marriage except when acquired by gift, inheritance, or in exchange for
non-marital or separate property.
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 i. The Hotpot Theory: Courts have authority to divide equitably the great
hotpot of assets owned by either spouse, whenever and however acquired.
ii. The Hybrid Theory: Courts distribute non-marital property only after the
distribution of marital property, if equity requires.
g. The role of fault in “no-fault” jurisdictions:
i. Fault must have an economic impact for courts to consider it.
II. Spousal Support: Theories of Need, Self-Sufficiency, and Beyond
a. Alimony is based on need and ability to pay, whether that money is from a trust
fund or inheritance.
i. Nonmarital property is not subject to E.D. but it can be subject to alimony.
b. Mani v. Mani (2005): Husband and Wife lived primarily on the substantial
investment proceeds of Wife’s stock from a family business. He attempted to work
as a real estate agent but made no more than $20K total. Wife filed for divorce
after learning that Husband was cheating with a friend. Husband sought permanent
alimony of $68K per year. The court awarded him alimony of $610 per week. Both
parties appealed. Intermediate appellate court affirmed the judgment of the trial
court on the grounds that Mr. Mani’s adultery was a factor affecting the alimony
amount.
i. RULE: The misconduct of a spouse may be considered for alimony only where
it affected the economic condition of the parties or where it was egregious.
c. Economic fault should be considered in alimony distributions—the nexus test. Non-
economic fault is nearly impossible to factor into alimony computation, so when
marital fault has no residual economic consequences, it may not be considered in
an alimony award.
i. Exception: egregious fault – so outrageous that it can be said to violate the
social contract, such that society would not abide continuing the economic
bonds between the parties.
 In these cases, the court considers not a calculation of an alimony
award but whether alimony should be allowed at all.
d. In FL, adultery may be considered. For alimony, the spouse needs to
establish actual need and ability to pay.
i. The length of the marriage can determine how much alimony.
e. Need and Ability to pay: Gender of the spouse does not dictate ‘need’
f. Fault is not relevant. The only time that fault is relevant is its economic harm and it
is only for equitable distribution, not alimony.
g. Wife’s inheritance is non-marital if the party does not commingle it. If there is
commingling with nonmarital property, then it becomes marital. If inheritance sits
in an account, and they withdraw $20K a year for living expenses, that income is
marital asset; **the money in the account does not lose its status as non-marital
merely because the interest was used, it is because there was no commingling of
the corpus.

46
 i. So, if you have inheritance money in a separate account and you withdraw
money and use it for household bills, the corpus is still non-marital. The
stream of income from the inheritance would not be subject to equitable
distribution (so not marital assets), but the court can use it to fund alimony.
h. Fairness factor – even if you cannot equitably distribute a given asset, you can get
at it for alimony purposes.
III. “Winding up” a Marriage: Applying Theories of Property and Support
a. Case Study:
i. Wolfe v. Wolfe (2012): At time of divorce, Husband owned a medical
practice and Wife was a housewife and manager of his business. For tax
purposes, she did not draw a salary. Husband had an individual interest in a
family trust; the interests passively appreciated because it increased not by
the efforts of Husband & Wife but of 3 rd parties. Some $ would go into an
investment act, which Husband used for spousal things.
ii. Classifying Property:
 Tracing—most community property jurisdictions classify as separate
property appreciation and income from separate property. Assets
traceable to separate property are treated as separate property, while
those traceable to marital funds are treated as marital.
 Marital Efforts—equitable distribution states often treat income or
appreciation from separate property as marital based on “marital
efforts” or the active role of either spouse.
iii. Support Amount—spousal maintenance is used to correct inequality of
income resulting from the divorce; to equalize the standard of living of the
parties for an appropriate time; to assist the recipient-spouse in becoming
self-supporting; to compensate the homemaker for contributions to family
well-being not otherwise recognized in the property distribution.
iv. Courts often require 1 spouse to pay the other’s attorney fees and litigation
costs; responsibility on the spouse in the superior financial position, treating
the award as an additional distribution of property or a species of spousal
support and reflecting a balance of the equities.
b. Special Problems in Achieving a Fair Dissolution:
i. Changing Circumstances:
 Paul v. Paul (2012): Husband and Wife got divorced and entered
into an agreement, which provided that alimony may terminate upon
“cohabitation of Wife as that term is defined in the alimony statute.”
Later, Wife dated someone else. Family Court held that Husband failed
to establish that Wife permanently or continuously resided with
Boyfriend. But this court, under “regularly residing”, the case was
remanded to terminate alimony.
 Alimony is available only to spouses. This claim can only be raised
during proceedings; if it’s not awarded before final judgment, then
you’re out of luck. Alimony is a remedy for future rights.
47
  Alimony stops when the party remarries because the spouse is
entering a supportive relationship.
a. In FL, courts look at supportive relationships, which is
the legal basis.
 Courts cannot modify E.D. because the court loses subject matter
jurisdiction at the time of the divorce. This is because E.D. only applies
to married people. E.D. is a remedy for past rights.
ii. Bankruptcy:
 A final judgment in a D.O.M. may be a result of either (1) the trial
where the court grants relief as per requests in the petition, or (2) the
marital settlement agreement [90% this way].
 Howard v. Howard (2011): Husband and Wife dissolved their
marriage and under the divorce decree, Husband was required to pay
the couple’s car loan. In a separate proceeding, Husband was granted
Ch. 7 bankruptcy (consumer—discharges debt and does not involve
filing of a repayment plan). Husband filed an action seeking to reduce
his payments under the divorce decree, in part due to the bankruptcy.
Wife, who was contacted by collection agencies due to the outstanding
car loan, filed a motion to have Husband held in contempt of court for
failure to pay down the debt on the car.
a. RULE: An obligation to one’s former spouse under a divorce
decree to make payments on a 3rd party debt is not
dischargeable in Ch. 7 bankruptcy.
 While the debtor’s obligation on an underlying debt to a 3rd party
creditor may be discharged because the underlying debt was not to a
spouse or former spouse or child, the legislature holds that a separate,
otherwise enforceable, obligation to one’s former spouse under a
separation agreement or divorce decree to make payments on 3rd
party debt is not dischargeable in Ch. 7 bankruptcy.
a. Ch. 13 Bankruptcy is not a total discharge, it is a reorganization
of debts based on assets and income; certain debts are not
dischargeable. It maps a repayment plan for the debtor and
there is a debt limit (called DSO debts-support obligations).
Support obligations include alimony and child support; E.D. is
not support obligation.
i. It is reformation.
b. Ch. 7 is liquidation discharge. DSO is not discharged.
 Bright Line Rules: Pg. 607
a. E.D. can be discharged in bankruptcy.
b. Support and maintenance cannot be discharged in bankruptcy.
c. Debt can be reformed under Ch. 13
d. Cannot stop paying child support
iii. Pension and Employee Benefits:

48
  Bender v. Bender (2001): Husband was a firefighter employed for
more than 19 years, during the time he was married to Wife. The
marriage deteriorated, in large part because of Husband’s neglect of
his family, adultery, occasional violence, and personal expenditures.
Despite Husband’s strong earnings, the couple had no significant
assets or savings when they divorced. Husband did have unvested
pension benefits that would vest in 6 years if he continued to work as
a firefighter. Trial court awarded Wife 1/2 of Husband’s future benefits.
 In addition to the marital home, pension benefits constitute the most
significant marital asset for many couples.
 Pension is controlled by Federal ERISA and it is administered by some
3rd party.
a. Because they are assets that are not accessible right now, the
courts will do a QDRO (qualified domestic relations order).
These orders will comply with ERISA and administrative plans
and split the pension. The QDRO creates the existence of an
alternate payee’s right to, or assigns to an alternate payee the
right to, receive all or a portion of the benefits payable with
respect to a participant under a plan.
 Medical Coverage Following Dissolution:
a. COBRA – after a divorce, an ex-spouse is no longer a “qualified
beneficiary” for the other ex-spouse’s medical insurance. COBRA
allows spouses to get benefits up to 36 months after divorce but
the spouses get market rate, not the employee rate he/she was
getting.
iv. Investments in a Spouse’s Future Success: Degrees, Earning Capacity, and
Goodwill:
 In re marriage of Roberts (1996): Husband worked at a bank, but
the couple agreed that Husband would stop working and attend law
school full-time while Wife worked to support the both and run the
household. They separated 2 months before his graduation, at which
point Wife was pregnant. Husband got a job at a large law firm in
Chicago. Trial court ruled that Husband’s law degree was not a marital
asset but his student loans were a marital liability. Husband was
assigned full responsibility for repayment of his loans. After an
allocation of the couple’s gross assets and liabilities, Husband was left
with a net liability of $2K and Wife with net assets of $25K.
 A degree is not property; it is intangible, which is personal to the
holder. It is a piece of paper and has no real value except for what the
holder chooses to pursue with it. The potential worth is dependent
upon choice and availability of work, whether the holder is good at
what he or she does, or a myriad of other potentialities.
a. Hence, the supporting spouse’s contribution does not make
them divisible assets upon divorce.
49
 b. If any reimbursement is possible, it is only for the financial
contribution a spouse made toward tuition and books for the
higher education of the other spouse.
 JDs are considered in the analysis of both E.D. (although itself is not
E.D. it is considered when analyzing the financial status of spouses)
and alimony.
v. Taxation:
 The Internal Revenue Code spells out different tax consequences for
alimony, property division, and child support.
 Rykiel v. Rykiel (2003): In the judicial decree entered after divorce
proceedings between Husband and Wife. Court ordered that Husband’s
payments of alimony to Wife were to be treated as nontaxable. The
5th DCA reversed, holding that the Internal Revenue Code and its
implementing regulations prevent a court from designating alimony as
nontaxable unless the parties themselves agree to it in writing.
a. RULE: A statement that alimony is to be excluded from the
payee’s gross income and not deductible by the payor is
enforceable if so provided within a divorce instrument, including
a divorce decree.
 “Taxable Income” = Gross Income
 Gross income includes amounts received as alimony or separate
maintenance payments.
a. If the divorce instrument says that the payments are not
included in the gross income and not allowable as a deduction,
then the payment are not “alimony”, are not included in gross
income, and are not taxable.
 The IRS provides that “alimony” is deductible by the payor or obligor
and included in the gross income of the recipient or obligee.
 As Rykiel showed, tax law does not require divorcing couples to treat
spousal support as alimony under § 71. Couples may elect to treat the
payments as nondeductible by the obligor and nontaxable to the
obligee.
a. Doing this might prove financially advantageous if, given the
parties’ respective incomes and tax rates, the deduction does
not save the obligor as much $ as inclusion in gross income
costs the obligee in taxes.
 Transfers of property between spouses or former spouses “incident to
divorce” = no gain or loss recognized. The property is treated as a gift
to the recipient, so the value of the property is excluded from the
recipient’s income (treated different than support payments).
a. E.D. is generally not taxable; but if you sell it (house) before
judgment, it is.
b. Alimony recapture: cannot hide E.D. as alimony to avoid tax
deduction
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IV. Equitable Distribution and Alimony in Florida
a. E.D. Fact Pattern:
i. Every single E.D. fact pattern issues are:

(1) Identify the marital assets and liabilities because they are subject
to E.D.; non-marital are not subject to E.D.
a. For purposes of identification of marital assets and liabilities, the
courts look at the date of filing the petition for D.O.M. unless the
date the prenup states. This date does not change.
 (2) Valuation of their worth;
 (3) Distribution: 50/50 by the court
b. *61.075  Equitable distribution of marital assets and liabilities —
i. (1) In a proceeding for DOM, in addition to all other remedies available to a
court to do equity between the parties, or in a proceeding for disposition of
assets following a dissolution of marriage by a court which lacked jurisdiction
over the absent spouse or lacked jurisdiction to dispose of the assets, the
court shall set apart to each spouse that spouse’s nonmarital assets and
liabilities, and in distributing the marital assets and liabilities between the
parties, the court must begin with the premise that the distribution should be
equal, unless there is a justification for an unequal distribution based on all
relevant factors, including:
 (a) The contribution to the marriage by each spouse, including
contributions to the care and education of the children and services as
homemaker.
 (b) The economic circumstances of the parties.
 (c) The duration of the marriage.
 (d) Any interruption of personal careers or educational opportunities of
either party.
 (e) The contribution of one spouse to the personal career or
educational opportunity of the other spouse.
 (f) The desirability of retaining any asset, including an interest in a
business, corporation, or professional practice, intact and free from
any claim or interference by the other party.
 (g) The contribution of each spouse to the acquisition, enhancement,
and production of income or the improvement of, or the incurring of
liabilities to, both the marital assets and the nonmarital assets of the
parties.
 (h) The desirability of retaining the marital home as a residence for
any dependent child of the marriage, or any other party, when it would
be equitable to do so, it is in the best interest of the child or that
party, and it is financially feasible for the parties to maintain the
residence until the child is emancipated or until exclusive possession is
otherwise terminated by a court of competent jurisdiction. In making
this determination, the court shall first determine if it would be in the

51
 best interest of the dependent child to remain in the marital home;
and, if not, whether other equities would be served by giving any other
party exclusive use and possession of the marital home.
 (i) The intentional dissipation, waste, depletion, or destruction of
marital assets after the filing of the petition or within 2 years prior to
the filing of the petition. [This is fault]
 (j) Any other factors necessary to do equity and justice
between the parties. [The court can consider any factor
determine E.D.].
a. Every fact in a fact pattern is a relevant fact for E.D.
ii. (2) If the court awards a cash payment for the purpose of equitable
distribution of marital assets, to be paid in full or in installments, the full
amount ordered shall vest when the judgment is awarded and the award
shall not terminate upon remarriage or death of either party, unless
otherwise agreed to by the parties, but shall be treated as a debt owed from
the obligor or the obligor’s estate to the obligee or the obligee’s estate,
unless otherwise agreed to by the parties. [you get it no matter what (other
party dies, bankruptcy, etc.)].
iii. (3) In any contested dissolution action, wherein a stipulation and agreement
has not been entered and filed, any distribution of marital assets or marital
liabilities shall be supported by factual findings in the judgment or order
based on competent substantial evidence with reference to the factors
enumerated in subsection (1). The distribution of all marital assets and
marital liabilities, whether equal or unequal, shall include specific written
findings of fact as to the following:
 (a) Clear identification of nonmarital assets and ownership interests;
 (b) Identification of marital assets, including the individual valuation of
significant assets, and designation of which spouse shall be entitled to
each asset;
 (c) Identification of the marital liabilities and designation of which
spouse shall be responsible for each liability;
 (d) Any other findings necessary to advise the parties or the reviewing
court of the trial court’s rationale for the distribution of marital assets
and allocation of liabilities.
iv. (4) The judgment distributing assets shall have the effect of a duly executed
instrument of conveyance, transfer, release, or acquisition which is recorded
in the county where the property is located when the judgment, or a certified
copy of the judgment, is recorded in the official records of the county in
which the property is located. (that is – this prevents one spouse from
having to get the other spouse to transfer title, mortgage, etc. to the other
spouse).
v. (5) If the court finds good cause that there should be an interim partial
distribution during the pendency of a dissolution action, the court may enter
an interim order that shall identify and value the marital and nonmarital
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 assets and liabilities made the subject of the sworn motion, set apart those
nonmarital assets and liabilities, and provide for a partial distribution of those
marital assets and liabilities. An interim order may be entered at any time
after the date the D.O.M is filed and served and before the final distribution
of marital and nonmarital assets and marital and nonmarital liabilities.
CANNOT GET E.D. ABSENT GOOD CAUSE.
 (a) Such an interim order shall be entered only upon good cause
shown and upon sworn motion establishing specific factual basis for
the motion. The motion may be filed by either party and shall
demonstrate good cause why the matter should not be deferred until
the final hearing.
 (b) The court shall specifically take into account and give appropriate
credit for any partial distribution of marital assets or liabilities in its
final allocation of marital assets or liabilities. Further, the court shall
make specific findings in any interim order under this section that any
partial distribution will not cause inequity or prejudice to either party
as to either party’s claims for support or attorney’s fees.
 (c) Any interim order partially distributing marital assets or liabilities
as provided in this subsection shall be pursuant to and comport with
the factors in subsections (1) and (3) as such factors pertain to the
assets or liabilities made the subject of the sworn motion.
 (d) As used in this subsection, the term “good cause” means
extraordinary circumstances that require an interim partial
distribution.
vi. (6) As used in this section:
 (1) “Marital assets and liabilities” include: (all property acquired during
the marriage [regardless of how it is titled] unless it is not marital)
a. Assets acquired and liabilities incurred during marriage,
individually by either spouse or jointly by them.
b. The enhancement in value and appreciation of nonmarital assets
resulting either from the efforts of either party during marriage
or from the contribution to or expenditure thereon of marital
funds or other forms of marital assets, or both. ****important!
i. ex: Husband & Wife live in marital home. Husband has a
nonmarital rental home; Wife goes to rental home every
weekend to fix it up and [actively] enhances the value.
It now becomes marital property.
ii. ex: Husband & Wife get married, Wife moves into
Husband’s premarital home for 3 years before divorce.
Before marriage home was worth $100, and by the time
of divorce it was $125. Does Wife get enhancement value
($25) – if the increase in value is from sheer market
force, this is [passive] enhancement/appreciation, no,
she does not get that value. Or what if Wife helps pay
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 debts, and this increases the value of the home. Then,
this is active appreciation, so at most the $25 is marital
property. ONLY INCREASED VALUE IS SUBJECT TO
E.D. REPRESENTING THE ACTIVE APPRECIATION.
iii. Passive appreciation is not subject to E.D. in FL.
iv. Someone who is not significantly involved in the
appreciation, a contractor does the work, the other
spouse did not put any time or effort to increase the
value of the home.
c. Interspousal gifts during marriage.
i. Ex: Lamborghini for Christmas – it is subject to E.D.
d. All vested and nonvested benefits, rights, and funds accrued
during the marriage in retirement, pension, profit-sharing,
annuity, deferred compensation, and insurance plans and
programs. YOU DO NOT USE THE COMMINGLING RULE. JUST
FROM THE DAY OF MARRIAGE TO FILING OF DIVORCE IS
SUBJECT TO E.D.
 (2) All real property held by the parties as tenants by the entireties,
whether acquired prior to or during the marriage, shall be presumed to
be a marital asset. If, in any case, a party makes a claim to the
contrary, the burden of proof shall be on the party asserting the claim
that the subject property, or some portion thereof, is nonmarital.
 (3) All personal property titled jointly by the parties as tenants by the
entireties, whether acquired prior to or during the marriage, shall be
presumed to be a marital asset. In the event a party makes a claim to
the contrary, the burden of proof shall be on the party asserting the
claim that the subject property, or some portion thereof, is nonmarital.
 (4) The burden of proof to overcome the gift presumption shall be by
clear and convincing evidence.
a. Donor’s obligation to show it was not gift. He/she bears burden.
vii. (b) “Nonmarital assets and liabilities” include:
 (1) Assets acquired and liabilities incurred by either party prior to the
marriage, and assets acquired and liabilities incurred in exchange for
such assets and liabilities; (if kept separate)
 (2) Assets acquired separately by either party by non-interspousal gift,
bequest, devise, or descent, and assets acquired in exchange for such
assets;
 (3) All income derived from nonmarital assets during the marriage
unless the income was treated, used, or relied upon by the parties as a
marital asset;
 (4) Assets and liabilities excluded from marital assets and liabilities by
valid written agreement (prenup) of the parties, and assets acquired
and liabilities incurred in exchange for such assets and liabilities; and

54
  (5) Any liability incurred by forgery or unauthorized signature of one
spouse signing the name of the other spouse. Any such liability shall
be a nonmarital liability only of the party having committed the forgery
or having affixed the unauthorized signature. In determining an award
of attorney’s fees and costs pursuant to § 61.16, the court may
consider forgery or an unauthorized signature by a party and may
make a separate award for attorney’s fees and costs occasioned by the
forgery or unauthorized signature. This subparagraph does not apply
to any forged or unauthorized signature that was subsequently ratified
by the other spouse.
a. i.e. Wife owned nonmarital home and received rent from it. She
generated income due to passive market forces. It still is
nonmarital assets.
viii. (7) The cut-off date for determining assets and liabilities to be identified or
classified as marital assets and liabilities is the earliest of the date the parties
enter into a valid separation agreement, such other date as may be expressly
established by such agreement, or the date of the filing of a petition for
dissolution of marriage. The date for determining value of assets and the
amount of liabilities identified or classified as marital is the date or dates as
the judge determines is just and equitable under the circumstances. Different
assets may be valued as of different dates, as, in the judge’s discretion, the
circumstances require. THE DATE THAT IS THE MOST FAIR!
ix. (8) All assets acquired and liabilities incurred by either spouse subsequent to
the date of the marriage and not specifically established as nonmarital assets
or liabilities are presumed to be marital assets and liabilities. Such
presumption is overcome by a showing that the assets and liabilities are
nonmarital assets and liabilities. The presumption is only for evidentiary
purposes in the dissolution proceeding and does not vest title. Title to
disputed assets shall vest only by the judgment of a court. This section does
not require the joinder of spouses in the conveyance, transfer, or
hypothecation of a spouse’s individual property; affect the laws of descent
and distribution; or establish community property in this state.
x. (9) The court may provide for equitable distribution of the marital assets and
liabilities without regard to alimony for either party. After the determination
of an equitable distribution of the marital assets and liabilities, the court shall
consider whether a judgment for alimony shall be made.
xi. (10) To do equity between the parties, the court may, in lieu of or to
supplement, facilitate, or effectuate the equitable division of marital assets
and liabilities, order a monetary payment in a lump sum or in installments
paid over a fixed period.
xii. (11) Special equity is abolished. All claims formerly identified as special
equity, and all special equity calculations, are abolished and shall be asserted
either as a claim for unequal distribution of marital property and resolved by

55
 the factors set forth in subsection (1) or as a claim of enhancement in value
or appreciation of nonmarital property.
c. Three components to every E.D. question:
i. Identification of marital and non-marital assets and liabilities
 Marital property ALWAYS equal assets + liabilities.
 Is it marital or non-marital? When was it acquired? What was the
source of the acquisition? How is it titled? If nonmarital, was it
converted to marital?
ii. Valuation (how much is it worth) of marital assets and liabilities.
iii. Distribution of the marital assets and liabilities, by court order
iv. Identification:
 What is property? Ownership, the exclusive right to do all that is legal
with the item. Can it be sold, encumbered, pledged against?
a. JD, parking spot, frequent flier miles = not ownership.
b. Sick leave can be property if it has a monetary value.
 When to identify married property? § 61.075 (7) Date of filing petition
for dissolution or date established in prenup agreement
a. Is the date of filing the same as date of valuing? No 61.075 (7)
says flexible date based on equity/fairness.
b. So, clock starts at marriage and lasts until day of filing – for
identification of assets.
 Professional v. Personal Goodwill:
a. Professional: it can be property i.e. it can be valued to a third
person (sales price over hard assets = value). It is the price a
willing buyer will pay and a willing seller will sell at if we remove
the value of the hard assets. It is subject to be owned by
someone else.
i. Selling your name to make basketball shoes.
b. Personal: it cannot be property so it is not subject to E.D. It is
only personal to the holder.
i. LeBron James showing up for a party; the value of your
name, no one else can be LeBron James.
v. Value:
 A willing buyer is willing to buy and a willing seller willing to sell under
no duress.
a. Most of the times will be fair market value (FMV).
b. No one wants used items.
 Why does the valuation change? Because it can cause unfairness.
That’s why courts value it when it is most fair.
a. Depletion: unilateral, intentional decision
i. Intentional dissipation, waste, depletion, or destruction of
marital assets after the filing of the petition or within 2
years prior to the filing of the petition.

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 ii. Factors for depletion:
 Motive – what was the motive?
 Parties’ past practice during the marriage.
 Consent of the other spouse – i.e. partnership
decision.
 Whose benefit was it for? Just yourself or both
parties?
b. Bank accounts:
i. Ex: Husband had nonmarital account with $100k; his
parents gifted him with $100k, so he put that in his
account. Now he has $200k of nonmarital property. Wife
gives Husband $100, and Husband puts that money in his
account—he has now comingled the nonmarital funds.
Now the whole account is a marital property.
ii. One place where this comingling bright line rule does not
work: pension. 401K is not affected because of ERISA.
iii. Commingling only applies to accounts.
 QDRO – Qualifying Domestic Relations Order
a. It dictates how pensions are split.
d. § 61.076  Distribution of retirement plans upon divorce:
i. All vested and nonvested benefits, rights, and funds accrued during the
marriage in retirement, pension, profit-sharing, annuity, deferred
compensation, and insurance plans and programs are marital assets subject
to equitable distribution.
ii. An order which provides for distribution of retired or retainer pay from the
federal uniformed services shall not provide for payment from this source
more frequently than monthly and shall not require the payor to vary normal
pay and disbursement cycles for retired or retainer pay to comply with the
order.
e. § 61.077  Determination of entitlement to setoffs or credits upon sale of
marital home — A party is not entitled to any credits or setoffs upon the sale of
the marital home unless the parties’ settlement agreement, final judgment of
dissolution of marriage, or final judgment equitably distributing assets or debts
specifically provides that certain credits or setoffs are allowed or given at the time
of the sale. In the absence of a settlement agreement involving the marital home,
the court shall consider the following factors before determining the issue of credits
or setoffs in its final judgment:
i. Whether exclusive use and possession of the marital home is being awarded,
and the basis for the award;
ii. Whether alimony is being awarded to the party in possession and whether
the alimony is being awarded to cover, in part or otherwise, the mortgage
and taxes and other expenses of and in connection with the marital home;

57
 iii. Whether child support is being awarded to the party in possession and
whether the child support is being awarded to cover, in part or otherwise, the
mortgage and taxes and other expenses of and in connection with the marital
home;
iv. The value to the party in possession of the use and occupancy of the marital
home;
v. The value of the loss of use and occupancy of the marital home to the party
out of possession;
vi. Which party will be entitled to claim the mortgage interest payments, real
property tax payments, and related payments in connection with the marital
home as tax deductions for federal income tax purposes;
vii. Whether one or both parties will experience a capital gains taxable event as a
result of the sale of the marital home; and
viii. Any other factor necessary to bring about equity and justice between the
parties.
ix. *the amount is discretionary, not the award.
 i.e. Husband and Wife get divorced and in their MSA, they decide that
Wife and Kids will stay at home until the youngest child is 18. Both
spouses must pay the mortgage together but there will be no credit
unless it is written in the final judgment or a court order.
f. § 61.079 Premarital agreements:
i. Florida law now requires unconscionable.
g. § 61.08  Alimony [given if E.D. not sufficient]
i. (1) NEED AND (2) ABILITY TO PAY.
ii. Alimony is income to payee; tax deductible for payor. It can be waived if
written in the final judgment.
iii. In a proceeding for DOM, the court may grant alimony to either party, which
alimony may be bridge-the-gap, rehabilitative, durational, or permanent in
nature or any combination of these forms of alimony. In any award of
alimony, the court may order periodic payments or payments in lump sum or
both. The court may consider the adultery of either spouse, and the
circumstances thereof in determining the amount of alimony, if any, to be
awarded. In all dissolution actions, the court shall include findings of fact
relative to the factors enumerated in subsection (2) supporting an award or
denial of alimony.
iv. In determining whether to award alimony or maintenance, the court shall
first make a specific factual determination as to whether either party has an
actual need for alimony or maintenance and whether either party has the
ability to pay alimony or maintenance. If the court finds that a party has a
need for alimony or maintenance and that the other party has the ability to
pay alimony or maintenance, then in determining the proper type and
amount of alimony or maintenance under subsections (5)-(8), the court shall
consider all relevant factors, including, but not limited to:
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  (a) The standard of living established during the marriage.
 (b) The duration of the marriage.
 (c) The age and the physical and emotional condition of each party.
 (d) The financial resources of each party, including the nonmarital and
the marital assets and liabilities distributed to each.
 (e) The earning capacities, educational levels, vocational skills, and
employability of the parties and, when applicable, the time necessary
for either party to acquire sufficient education or training to enable
such party to find appropriate employment.
 (f) The contribution of each party to the marriage, including, but not
limited to, services rendered in homemaking, child care, education,
and career building of the other party.
 (g) The responsibilities each party will have regarding any minor
children they have in common.
 (h) The tax treatment and consequences to both parties of any
alimony award, including the designation of all or a portion of the
payment as a nontaxable, nondeductible payment.
 (i) All sources of income available to either party, including income
available to either party through investments of any asset held by that
party.
 (j) Any other factor necessary to do equity and justice between
the parties. Just like E.D.
v. To the extent necessary to protect an award of alimony, the court may order
any party who is ordered to pay alimony to purchase or maintain a life
insurance policy or a bond, or to otherwise secure such alimony award with
any other assets which may be suitable for that purpose.
vi. For purposes of determining alimony, there is a rebuttable presumption that
a short-term marriage is a marriage having a duration of less than 7 years, a
moderate-term marriage is a marriage having a duration of greater than 7
years but less than 17 years, and long-term marriage is a marriage having a
duration of 17 years or greater. The length of a marriage is the period from
the date of marriage until the date of filing of an action for dissolution of
marriage.
 Bridge-the-gap alimony may be awarded to assist a party by
providing support to allow the party to make a transition from being
married to being single. Bridge-the-gap alimony is designed to assist a
party with legitimate identifiable short-term needs, and the length of
an award may not exceed 2 years. An award of bridge-the-gap
alimony terminates upon the death of either party or upon the
remarriage of the party receiving alimony. An award of bridge-the-gap
alimony shall not be modifiable in amount or duration.
a. Short term marriages.

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 Rehabilitative alimony may be awarded to assist a party in
establishing the capacity for self-support through either (must show
you can be rehabilitated):
a. The redevelopment of previous skills or credentials; or
b. The acquisition of education, training, or work experience
necessary to develop appropriate employment skills or
credentials.
c. To award rehabilitative alimony, there must be a specific and
defined rehabilitative plan which shall be included as a part of
any order awarding rehabilitative alimony.
i. An award of rehabilitative alimony may be modified or
terminated in accordance with § 61.14 based upon a
substantial change in circumstances, upon noncompliance
with the rehabilitative plan, or upon completion of the
rehabilitative plan.
d. Short/Modern term marriages.
 Durational alimony may be awarded when permanent periodic
alimony is inappropriate. The purpose of durational alimony is to
provide a party with economic assistance for a set period following a
marriage of short or moderate duration or following a marriage of long
duration if there is no ongoing need for support on a permanent basis.
An award of durational alimony terminates upon the death of either
party or upon the remarriage of the party receiving alimony. The
amount of an award of durational alimony may be modified or
terminated based upon a substantial change in circumstances in
accordance with § 61.14. However, the length of an award of
durational alimony may not be modified except under exceptional
circumstances and may not exceed the length of the marriage.
a. Moderate/Short term marriages.
 Permanent (periodic) alimony may be awarded to provide for the
needs and necessities of life as they were established during the
marriage of the parties for a party who lacks the financial ability to
meet his or her needs and necessities of life following a dissolution of
marriage. Permanent alimony may be awarded following a marriage of
long duration if such an award is appropriate upon consideration of the
factors set forth in subsection (2), following a marriage of moderate
duration if such an award is appropriate based upon clear and
convincing evidence after consideration of the factors set forth in
subsection (2), or following a marriage of short duration if there are
written findings of exceptional circumstances. In awarding permanent
alimony, the court shall include a finding that no other form of alimony
is fair and reasonable under the circumstances of the parties. An
award of permanent alimony terminates upon the death of either party
or upon the remarriage of the party receiving alimony. An award may
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 be modified or terminated based upon a substantial change in
circumstances or upon the existence of supportive relationship in
accordance with § 61.14.
vii. The award of alimony may not leave the payor with significantly less net
income than the net income of the recipient unless there are written findings
of exceptional circumstances.
viii. (10)(a)  With respect to any order requiring the payment of alimony entered
on or after January 1, 1985, unless the provisions of paragraph (c) or
paragraph (d) apply, the court shall direct in the order that the payments of
alimony be made through the appropriate depository as provided in §
61.181.
 (b)  With respect to any order requiring the payment of alimony
entered before January 1, 1985, upon subsequent appearance, on or
after that date, of one or both parties before the court having
jurisdiction for the purpose of modifying or enforcing the order or in
any other proceeding related to the order, or upon the application of
either party, unless the provisions of paragraph (c) or paragraph (d)
apply, the court shall modify the terms of the order as necessary to
direct that payments of alimony be made through the appropriate
depository as provided in § 61.181.
 (c) If there is no minor child, alimony payments need not be directed
through the depository.
 (d) If there is a minor child of the parties and both parties so request,
the court may order that alimony payments need not be directed
through the depository. In this case, the order of support shall
provide, or be deemed to provide, that either party may subsequently
apply to the depository to require that payments be made through the
depository. The court shall provide a copy of the order to the
depository.
h. If the provisions of subparagraph 1 apply, either party may subsequently file with
the depository an affidavit alleging default or arrearages in payment and stating
that the party wishes to initiate participation in the depository program. The party
shall provide copies of the affidavit to the court and the other party or parties.
Fifteen days after receipt of the affidavit, the depository shall notify all parties that
future payments shall be directed to the depository.
i. In IV-D cases, the IV-D agency shall have the same rights as the obligee in
requesting that payments be made through the depository.
j. The 5th type of alimony not included in the statute is alimony pendant lite =
temporary money while your suits pends.
i. This is where the spouse challenges the prenup and receives temporary
alimony.
k. Note that if alimony is not sought during the litigation, it is a claim precluded and
forever barred. Therefore, it is wise to pursue an alimony award, no matter how

61
 small, as you can always petition for upward modification later based on substantial
and material change should the other ex-spouse’s finances improve.
l. You do equitable distribution first, without consideration of alimony. Alimony is the
second step and it is granted if E.D. is not sufficient.
V. Child Support
a. From Discretion to Guidelines:
i. Turner v. Turner (2009): Husband and Wife had 2 kids. Partial settlement
agreement stated Husband and Wife would share joint custody. Husband
having kids Friday-Tuesday and Wife Tuesday-Friday, with Husband paying
$500 in child support and 2/3 of the kids’ extracurricular activities with Wife
paying 1/3 of the activities. Husband made 65% of the couple’s monthly
income, so the Husband’s pro rata child support was $1,000 but trial court
applied a parenting time deviation which left the child support obligation to
$500. Husband appeals that court didn’t (1) explain how the deviation was
calculated and (2) show the deviation was in the best interests of the child.
ii. GENERAL RULE: Guidelines permit factfinder to deviate from the presumptive
amount of child support when special circumstances make the presumptive
amount of child support excessive or inadequate due to extended parenting
time as set forth in the order of visitation or when the child resides with both
parents equally. If deviation occurs, the order must: explain the reasons for
deviation, provide the amount of child support that would’ve been required if
no deviation had been applied, and how the application of the presumptive
amount of child support would be unjust or inappropriate and how the best
interest of the children for whom support is being determined will be served
by the deviation.
 Every state is required to have guidelines/chart. It promotes
uniformity.
iii. CHILD SUPPORT IS COMPULSORY. IT IS MANDATORY. There is a
migration from the need and ability to pay.
 In FL, guidelines have become the law for child support.
However, the more time the father spends time with the child,
child support decreases.
a. (1) WHAT IS THE INCOME?
b. (2) HOW MUCH DOES THE PARENT SPEND WITH THE
CHILD? (must be at least 30%)
i. Must calculate where the child spends his or her nights of
the year.
ii. Gross income—the government will take out money from
taxes.
iii. Net income—the government already took out money.
iv. A court may only deviate from the presumptive child support amount based
on special expenses incurred for child rearing, including extracurricular
expenses (defining “special expenses” as certain child-rearing expenses

62
 exceeding 7% of basic child support obligation), and there must be written
findings for all deviations.
v. FL is the income-share model; the most popular.
vi. Federal law requires state child support guidelines to allocate health care
costs. Under Affordable Care Act, insurance plans providing dependent
coverage must make such coverage available until the child turns 26.
 It is an add-on in FL.
b. Postmajority Support:
i. McLeod v. Starnes: Husband and Wife divorced, Wife had custody of 2 kids.
Child support was $175 because Husband was making $29K a year.
Gradually over time his salary became $250K; Wife never asked for increase
in child support because she didn’t know Husband’s salary. Child enrolled in
college and got as much scholarships, loans, grants he could; Husband
promised to pay but didn’t for no reason.
ii. In FL, there is no obligation to pay for children’s education after they
reach the age of emancipation (18); exception if they are 19 and still
in high school or handicapped children.
iii. In FL, one can contract to agree to pay after age 18, and this is an
enforceable contract.
c. §61.30  Child support guidelines; retroactive child support —
i. (1)(a)  The child support guideline amount as determined by this section
presumptively establishes the amount the trier of fact shall order as child
support in an initial proceeding for such support or in a proceeding for
modification of an existing order for such support, whether the proceeding
arises under this or another chapter. The trier of fact may order payment of
child support which varies, plus or minus 5 %, from the guideline amount,
after considering all factors, including the needs of the child or children, age,
station in life, standard of living, and the financial status and ability of each
parent. The trier of fact may order payment of child support in an amount
which varies more than 5% from such guideline amount only upon a
written finding explaining why ordering payment of such guideline
amount would be unjust or inappropriate. Notwithstanding the variance
limitations of this section, the trier of fact shall order payment of child
support which varies from the guideline amount as provided in paragraph
(11)(b) whenever any of the children are required by court order or
mediation agreement to spend a substantial amount of time with either
parent. This requirement applies to any living arrangement, whether
temporary or permanent.
ii. 2 types of orders exist: an initial/new order, or a modification/old order.
 The difference matters when it comes to retroactive (the past $ that’s
owed) in child support.
 For initial orders: you go back 2yrs from date of filing to calculate how
much owed.

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  For modification orders: no such thing as retroactive modification.
 i.e. If you lost your job in 2013, and in 2015 you ask to modify and
retroact your payment due for the past 2 years = not allowed. If it was
allowed, it would be res judicata – the litigation was already completed
and the order was already made. You should’ve petitioned for the job
loss immediately, not wait for the debt to accumulate.
iii. A court may deviate up/down 5% from child support guidelines: w/o any
findings of fact (leaves room for standard mathematical error, for example).
iv. A court deviates more than 5% from guidelines: only upon written findings of
fact “only upon a written finding explaining why ordering payment of such
guideline amount would be unjust or inappropriate.”
v. (b)  The guidelines may provide the basis for proving a substantial change in
circumstances upon which a modification of an existing order may be
granted. However, the difference between the existing monthly obligation
and the amount provided for under the guidelines shall be at least 15 percent
or $50, whichever amount is greater, before the court may find that the
guidelines provide a substantial change in circumstances.
vi. (2)  Income shall be determined on a monthly basis for each parent as
follows:
 (1)(a) Gross income shall include, but is not limited to, the following:
Salary or wages; Bonuses, commissions, allowances, overtime, tips,
and other similar payments; Business income from sources such as
self-employment, partnership, close corporations, and independent
contracts. “Business income” means gross receipts minus ordinary and
necessary expenses required to produce income; Disability benefits;
All workers’ compensation benefits and settlements; Reemployment
assistance or unemployment compensation; Pension, retirement, or
annuity payments; Social security benefits; Spousal support received
from a previous marriage or court ordered in the marriage before the
court; Interest and dividends; Rental income, which is gross receipts
minus ordinary and necessary expenses required to produce the
income; Income from royalties, trusts, or estates; Reimbursed
expenses or in kind payments to the extent that they reduce living
expenses; Gains derived from dealings in property, unless the gain is
nonrecurring.
 (1)(b) Monthly income shall be imputed to an unemployed or
underemployed parent if such unemployment or underemployment is
found by the court to be voluntary on that parent’s part, absent a
finding of fact by the court of physical or mental incapacity or other
circumstances over which the parent has no control. In the event of
such voluntary unemployment or underemployment, the employment
potential and probable earnings level of the parent shall be determined
based upon his or her recent work history, occupational qualifications,
and prevailing earnings level in the community if such information is
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 available. If the information concerning a parent’s income is
unavailable, a parent fails to participate in a child support proceeding,
or a parent fails to supply adequate financial information in a child
support proceeding, income shall be automatically imputed to the
parent and there is a rebuttable presumption that the parent has
income equivalent to the median income of year-round full-time
workers as derived from current population reports or replacement
reports published by the United States Bureau of the Census.
vii. (3)  Net income is obtained by subtracting allowable deductions from gross
income. Allowable deductions shall include: Federal, state, and local income
tax deductions, adjusted for actual filing status and allowable dependents
and income tax liabilities; Federal insurance contributions or self-employment
tax; Mandatory union dues; Mandatory retirement payments; Health
insurance payments, excluding payments for coverage of the minor child;
Court-ordered support for other children which is actually paid; Spousal
support paid pursuant to a court order from a previous marriage or the
marriage before the court.
viii. Note: a person’s expenses are irrelevant to child support calculation; the
support is based on net income.
d. Example of the calculation in Child Support:
i. Wife makes gross $100,000/year; Husband makes gross $25,000/year.
 Wife in 20% tax bracket (so minus $20,000) = $80,000 net
a. Wife monthly net: $80,000 divided by 12 = $6,600
 Husband in 20% tax bracket (so minus $2,000) = $23,000 net
a. Husband monthly net: $23,000 divided by 12 = $1,900
ii. They have 3 kids: ages 1,5,17
iii. So, combine Wife + Husband monthly net income = $8,500
iv. Go to child support chart: $2589/month (so basically $2500) = the
presumptive guideline amount.
v. So, now we need to know their perspective proportionate share of the total
income.
 So, divide the parts by the whole:
a. Husband: $1,900 divided by $8,500 = 22% of combined
monthly income.
b. Wife: $6,600 divided by $8,500 = 78% of combined monthly
income.
 Husband: 22% multiplied by $2500 = $550/month owed if kids stay
with Wife.
 Wife: 78% multiplied by $2500 = $1950/month owed if kids stay with
Husband.
vi. Note: 4.3 weeks in a month for purposes of child support/2.15
biweekly.

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 vii. It does not include uncovered medical expenses, day care, health care. This
will be calculated by the parents’ respective proportion share of the income.
viii. If Wife or Husband do not work, the court will impute income.
ix. If obligor parent’s net income is less than what’s in chart/guidelines: The
parent should be ordered to pay a child support amount, determined on a
case-by-case basis, to establish the principle of payment and lay the basis for
increased support orders should the parent’s income increase.
x. If obligor parent’s net income is greater than what’s in chart/guidelines: the
obligation is the minimum amount of support provided by the guidelines
schedule plus the following percentages multiplied by the amount of income
over $10,000:
i) (7)  Child care costs incurred due to employment, job search, or education calculated
to result in employment or to enhance income of current employment of either parent
shall be added to the basic obligation. After the child care costs are added, any
moneys prepaid by a parent for child care costs for the child or children of this action
shall be deducted from that parent’s child support obligation for that child or those
children.
ii) (8)  Health insurance costs resulting from coverage ordered pursuant to §61.13(1)(b),
and any uncovered medical, dental, and prescription medication expenses of the child,
shall be added to the basic obligation unless these expenses have been ordered to be
separately paid on a percentage basis.
iii) (11)(a)  The court may adjust the total minimum child support award
(1)10.  The particular parenting plan, a court-ordered time-sharing schedule, or a
time-sharing arrangement exercised by agreement of the parties, such as where
the child spends a significant amount of time, but less than 20 percent of the
overnights (the actual night the child stays to sleep), with one parent, thereby
reducing the financial expenditures incurred by the other parent; or the refusal of a
parent to become involved in the activities of the child.
(2)So if non-custodial parent spend more than 20% of time with kids (up to 50%),
they get child support deduction.
(a) Average time share in real life: 50/50 = promotes more time with kids and
reduces child support.
(3)Note: time share and child support are not reciprocal rights; they are entirely
independent.
(a) i.e. you may not have time sharing but are still required to pay child support.
(4)Title 4D cases: Dept. of Revenue will calculate child support w/o consideration of
time sharing (i.e. the just go by guidelines); if you want time-sharing consideration,
you go to court.
(5)(c)  A parent’s failure to regularly exercise the time-sharing schedule set forth in
the parenting plan, a court-ordered time-sharing schedule, or a time-sharing
arrangement exercised by agreement of the parties not caused by the other parent
which resulted in the adjustment of the amount of child support pursuant to
subparagraph (a)10. or paragraph (b) shall be deemed a substantial change of
circumstances for purposes of modifying the child support award. A modification
pursuant to this paragraph is retroactive to the date the noncustodial parent first
failed to regularly exercise the court-ordered or agreed time-sharing schedule.

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 iv) (12)(a) A parent with a support obligation may have other children living with him or
her who were born or adopted after the support obligation arose. If such subsequent
children exist, the court, when considering an upward modification of an existing
award, may disregard the income from secondary employment obtained in addition to
the parent’s primary employment if the court determines that the employment was
obtained primarily to support the subsequent children.
(1)(b)  Except as provided in paragraph (a), the existence of such subsequent children
should not as a general rule be considered by the court as a basis for disregarding
the amount provided in the guidelines schedule. The parent with a support
obligation for subsequent children may raise the existence of such subsequent
children as a justification for deviation from the guidelines schedule. However, if the
existence of such subsequent children is raised, the income of the other parent of
the subsequent children shall be considered by the court in determining whether or
not there is a basis for deviation from the guideline amount.
(2)(c)  The issue of subsequent children under paragraph (a) or paragraph (b) may
only be raised in a proceeding for an upward modification of an existing award and
may not be applied to justify a decrease in an existing award.
(3)Subsequent kids won’t get rid of the court-ordered obligation that the Dad (for ex)
owes $ to his original kids. And the order of importance: the 1 st child to the
courthouse. So, if Dad has 10 kids with different women, whichever mom issued an
order against him for support first gets the most money or 100% of the money.
(4)So generally, no modification for lowering of support can be made because you
were on notice of the kids you already owed a duty to before you went off getting
more kids.
v) (17)  In an initial determination of child support, whether in a paternity action, DOM
action, or petition for support during the marriage, the court has discretion to award
child support retroactive to the date when the parents did not reside together in the
same household with the child, not to exceed a period of 24 months preceding the
filing of the petition, regardless of whether that date precedes the filing of the petition.
In determining the retroactive award in such cases, the court shall consider the
following:
(1)(a)  The court shall apply the guidelines schedule in effect at the time of the
hearing subject to the obligor’s demonstration of his or her actual income, as
defined by subsection (2), during the retroactive period. Failure of the obligor to so
demonstrate shall result in the court using the obligor’s income at the time of the
hearing in computing child support for the retroactive period.
(2)(b)  All actual payments made by a parent to the other parent or the child or third
parties for the benefit of the child throughout the proposed retroactive period.
(3)(c)  The court should consider an installment payment plan for the payment of
retroactive child support.
(a) This is not true in a petition for modification – there is no retroactive child
support in a modification (either for the obligor or the obligee). You can only go
back to the date of the petition – that is, the court could order retroactivity to
the date of the petition, but not before.
b) Ch. 88 UNIFORM INTERSTATE FAMILY SUPPORT ACT
i) It can be used for child support or to modify support when (not using Ch. 61): when
the parties are not all living in Florida
ii) 2 types of cases: incoming and outgoing
(1) BF & GF met and separated in Wisconsin. GF and Kid moved to FL. FL has no
jurisdiction over BF who never was in FL. So, you use this act, and therefore use

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 the substantive law of Wisconsin because they have personal jurisdiction over the
respondent/BF. Wisconsin sends the money to FL.
iii) 88.2011  Bases for jurisdiction over nonresident.
(1)(f)  The individual engaged in sexual intercourse in this state and the child may
have been conceived by that act of intercourse;
iv) Ex. FL payor, PA payee. Parties get divorced in PA. Payor owes child support based on
the PA order. The payor then moves to FL (post-judgment). FL would have jurisdiction
over only the payor – would still not have personal jurisdiction over both.
(1)UIFSA tells us that where FL would lack personal jurisdiction, those problems can
be solved on a uniform basis. Petitioner in another state can petition FL (through
UIFSA) to enforce the support order. Basically, FL court would receive it, FL court
would serve the obligor, and in essence, the court order from the other state would
become a FL case.
(2)UIFSA can also be used if there is no preexisting court order – a person can petition
through UIFSA to have a support order enforced.
v) Ex. there is a relationship in PA (but no marriage). It breaks up, kid stays with mom in
PA. Dad moves to FL. Mom files petition under UIFSA – PA actually files the lawsuit,
then sends it to FL under UIFSA (because the obligor is in FL – and FL has personal
jurisdiction). Then money gets sent back to PA.
(1)UIFSA treats a local proceeding under the law of the receiving state. UIFSA takes
the case and sends it where the state has jurisdiction over the obligor. Basically,
the long-arm statute for support orders.
I. Modification of Child Support
a. New Families:
i. Pohlmann v. Pohlmann (1997): Former Husband petitions for reduction of
child support because of changed circumstances: permanent decrease of
income, his remarriage and 3 kids from it, and former Wife’s remarriage. He
challenges 61.30(12) as unconstitutional.
 RULE: It is constitutional for a state to disallow reductions in child
support on the basis that the supporting parent has had subsequent
children.
ii. § 61.30(12) Child Support Guidelines: A parent with child support
obligations may have other kids living with him who were born or adopted
after the support obligation arose. The existence of subsequent kids should
not, as a general rule, be considered as a basis for disregarding the amount.
The parent with a support obligation for subsequent kids may raise the
existence of such subsequent kids as a justification for deviation from the
guidelines; but, if this is raised, the income of the other parents of the
subsequent kid shall be considered by the court. The issue of subsequent
kids may only be raised in a proceeding for an upward modification of an
existing award and may not be applied to justify a decrease in an existing
award.
 This is constitutional because there is a legitimate state interest of
assuring noncustodial parents will continue to contribute to the support
of their kids from their 1st marriage notwithstanding their obligation to
support kids born during a subsequent marriage.
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  May be obligated to support child if responsible for child during
marriage. Factors Considered:
a. Step parent held themselves out as the parent; Child or
biological parent relied on the step parent’s conduct for the
nurture and support of the child; Child would suffer financial
harm without step parent support; Best interest of the child.
 Two types of child support petitions:
a. 12/1/15, final judgment entered; establish child support—there
is no existing order for child support.
b. 12/1/16, modification—there must be an order entered. There is
no such thing as retroactive modification because the right has
already vested. ONLY AFTER THE DATE OF FILING.
c. In FL, a party can only go back 2 years to petition for
child support—the retroactive period.
iii. Employment Changes:
 Olmstead v. Ziegler (2002): Husband and Wife divorce decree said
joint legal and physical custody and specified neither would pay child
support; but Husband agreed to pay for daughter’s daycare and
education expenses. Daughter no longer requires daycare, and attends
public school. H decided to stop practicing law and go to school to
become a teacher; requests medication of child support.
 Alimony and child support are not discharged in a bankruptcy. They
will go to jail if they have the present ability to pay.
 Voluntarily reducing one’s income may not justify a modification of
child support; underemployment may still be voluntary even if the
obligor acted in good faith.
a. In FL, imputation cannot go back more than 5 years.
b. In FL, attorney’s fees can be awarded if there is an ability
to pay.
 If parent who decides to switch careers or pursue additional education
cites decreased income in seeking a reduction in child support: court
can abate meaning $ will add up and you just pay it after (so
obligation doesn’t disappear).
 Automatic Adjustment: FL doesn’t have this. Parties can still agree
to this if they want.
b. Enforcement
i. Criminal Nonsupport:
 State v. Oakley: Petitioner charged with intentionally refusing to pay
child support for his 9 kids from 4 diff. women; state wants to send
him to prison for 6yrs. Judge found prison would not put petitioner in
position to pay for [kids] support, so put on probation with the
condition he can’t have any more kids unless he has the ability to
support them and the kids he already has.

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 a. Found to be ok; it’s not a limit on how many kids he can have,
it’s a req. that he acknowledges the req. of the law and support
his present and future kids.
 *In FL, for contempt, there must be a willful violation of court
order without good cause and reason; the court order must be
unambiguous for the order to be upheld; in a civil case, before
a person can go to jail, you must give them the keys to the jail
cell (give them an opportunity to purge the contemptuous
conduct of what can actually be applied with/affordable) or
else be unconstitutional or violate due process.
ii. Civil Contempt and the Transformation of Enforcement
 Turner v. Rogers:
 Due Process does not automatically require the provision of counsel at
civil contempt proceedings to an indigent individual who is subject to a
child support order, even if the individual faces incarceration. More
specifically, this isn’t required when the opposing parent (to whom
funds are owed) also doesn’t have counsel and the State provides
alternative safeguards (adequate notice of the importance of ability to
pay, fair opportunity to be present, and to dispute, relevant info, and
court findings).
 IV-D cases. Government brings child support actions. Debt owed to
the state of FL. Depending children.
 Criminal contempt punishes the contemnor for past misconduct [the
purpose is punitive], civil contempt seeks to coerce compliance
[purpose is remedial].
 Purge Hearings: Court requires the party to make support payment on
the spot, or face criminal contempt.
a. May require the party to empty their pockets on the spot.
b. May require the party appear every week for payment.
c. The Challenge of Multistate Cases
i. Jurisdictional Limitations on Establishing Awards:
 Divisible/bilateral divorce – due process requires personal jurisdiction
over both spouses to resolve the financial incidents of dissolution,
although one can get an ex parte dissolution of marriage entitled to
full faith and credit.
ii. UIFSA Chapter 88 in FL:
 There cannot be PJ over Dad if he has not been in the state as Mom.
Mom will file lawsuit in FL to establish child support. Then, through
UIFSA serve him in CA under CA law and calculate child support and
then it’ll be sent to FL.
a. PETITIONER CAN BRING A CHILD SUPPORT CLAIM PROVIDED
THAT THERE IS PJ OVER THE RESPONDENT.
 Two types of cases: (1) incoming and (2) outgoing.

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  UIFSA – covers both spousal and child support. It is a uniform system
that all states comply with.
d. Modification and Enforcement:
i. Draper v. Burke: UIFSA jurisdictional basis case. People travel. There is no
international instrument that keeps track of people.
e. Separation Agreements:
i. Miles v. Miles: Substantial changes in circumstances may merit a
modification in support obligations.
ii. Merger does not matter in FL; settle agreement is a contract and is
incorporated into final judgment decree. It becomes a court order.
 Once a court order = final.
iii. Cannot bargain child support, must calculate by guidelines plus attorney has
obligation to state guidelines were abided by (even if parties agree to take
less $, for ex, doesn’t matter; must abide by guidelines)
II. Tort & Criminal Law
a. Tort Actions Against 3rd parties: Alienation of affections and criminal conversation
i. Jones v. Swanson: H sued the man who had an affair with his W with the
tort alienation of affection. Elements for this tort: wrongful conduct of the D,
loss of affection or consortium, and a causal connection b/w the wrongful
conduct and the loss of affection or consortium. The essence of this tort is
malicious interference with the marriage relationship, and a loss of
consortium is the actionable consequence of an action for alienation of
affection.
ii. In FL, there is no tort action.
iii. Defense says the marriage was already over and his actions didn’t cause the
alienation of the W’s affection.
b. Tort Actions Between Spouses:
i. Kohl v. Kohl (2014): Husband gave Wife HPV without him knowing.
ii. There is liability if Husband cheats on Wife and gets HIV from Mistress.
iii. In FL, you can sue your spouse.
iv. The witness spouse is the only one who can invoke spousal privilege.
It can prevent domestic violence.

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Child Custody (FL uses the term time-share: USE THIS TERM ON EXAM AND IN PRACTICE)

I. Time-Share
a. Standard: Best interest of the child
i. Court often gives deference to parental agreement, but it may ignore the
agreement.
b. Custody has 2 concepts: physical v. legal
i. Physical—simply the right to have the child in your presence i.e. visitation.
 Time share: The amount of time and the circumstances in which a
parent spends with child.
a. Ex: parent gets sole decision-making; probably 100% time with
child unsupervised.
b. ***there is no legal presumption for time share in FL =
the best interests of child weighs.
c. Most range from 40-50% time share; the cases you see
otherwise is when the parent just would rather pay more child
support then spend more time with the kid, or there is some
serious impediment like parent has drug problem or history of
abusing kid.
d. Just think logically: in this modern day of same sex marriages
and divorces all over the place, it wouldn’t make sense to have
a legal presumption for women or men.
 Primary Residential Custody:
a. Parent with whom the child primarily lives.
 Secondary Residential Custody:
a. Parent with visitation
 Rotating Custody (Joint Physical Custody):
a. FL §61.121: Court might consider joint custody if it is in
the best interest of the child and the parents get along
and agree.
ii. Legal: decision-making; parental responsibility (shared or sole responsibility)
 Shared: both parents have right in major decisions (education and
health, not little day-to-day decisions).
a. This is the legal presumption: best interest of child
 Sole: only 1 parent has right in major decisions.
a. Must bring sufficient evidence forward to rebut the presumption
of BIC.
i. i.e. must plead it would be detrimental to the child for the
other parent to participate in major decisions of the child
= must show the nexus/connection.
b. If not a legitimate pleading, then it can be used as evidence
against the parent making the pleading.
 Note: there is a correlation between parental responsibility (shared or
sole) and actual time with child.

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c. Custody and Child Support are not necessarily related.
i. The failure to pay support does not allow for prohibition of visitation.
ii. Courts may consider non-payment as parental neglect, relating the issue to
visitation.
d. So, in every timeshare case, there must have a Parenting Plan which includes: time
share and parental rights.
i. This plan would be incorporated into the court order; the plan details
everything/the specifics.
e. Parents shall not be denied access to child’s records unless court order.
f. §61.13  Support of children; parenting and time-share; powers of court —
i. (4)(a) When a parent who is ordered to pay child support or alimony fails to
pay child support or alimony, the parent who should have received the child
support or alimony may not refuse to honor the time-sharing schedule
presently in effect between the parents.
g. §61.13001  Parental relocation with a child —
i. (e) “Relocation” means a change in the location of the principal residence of
a parent or other person from his or her principal place of residence at the
time of the last order establishing or modifying time-sharing, or at the time
of filing the pending action to establish or modify time-sharing. The change
of location must be at least 50 miles from that residence, and for at least
60 consecutive days not including a temporary absence from the principal
residence for purposes of vacation, education, or the provision of health care
for the child.
ii. 2 ways:
 Get consent from other party in a written agreement that reflects
consent, time share schedule, and transportation arrangements if
necessary; or
 Court order
iii. Petition to relocate must be in good faith and be rooted in legitimate basis.
iv. Best interest of child rules for all time-sharing issues.
v. Must show the other parent will still have a meaningful relationship.
vi. BURDEN OF PROOF: The parent or other person wishing to relocate has the
burden of proving by a preponderance of the evidence that relocation is in
the best interest of the child. If that burden of proof is met, the burden shifts
to the non-relocating parent or other person to show by a preponderance of
the evidence that the proposed relocation is not in the best interest of the
child.

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Ch. 8 Child Custody

II. Intro: Effects of Parental Divorce

a. Post-divorce custody law performs a dual function of private dispute resolution and
child protection.
i. When parents can agree on child custody, the state generally defers to family
autonomy.
III. Parental Disputes Concerning Child Custody
a. Standard for Selecting the Custodial Parent: What should be the standard?
i. Presumptions?
 Tender Years Presumption:
a. Devine v. Devine: Both parents employed at time of divorce
with 2 young boys. Under the Tender Years Presumption, the
natural mother is presumed, in absence of evidence to the
contrary, to be the proper person to be vested with custody of
such children.
i. Reasoning: even though father has right to custody and
control of his kids, it would violate the laws of nature to
"snatch" an infant from the care of its mother.
b. The mother is presumed to be best fitted to guide and care for
children of tender years (age 0-7). To rebut this presumption,
the father must present clear & convincing evidence of the
mother's positive unfitness.
c. The presumption affects the resolution of child custody disputes
on both a substantive and procedural level.
i. Substantive: requires the court to award custody of
young kids to the mother when the parties are equally fit
parents.
ii. Procedural: it imposes an evidentiary burden on the
father to prove the positive unfairness of the mother.
d. Courts find this to be an unconstitutional gender-based
classification.
e. *This Tender Years Presumption is gone as a matter of
law (evidence [like a psychologist saying infant is better
with mom] is still admissible).
i. The tender Years presumption does not exist in statute in
FL.
 That does not mean that the Tender Years doctrine
is not used – it is still used as a factor, but cannot
be used as the only factor.
f. The Tender Years Presumption has been replaced by the
gender-neutral “best interests of the child” standard = this is a
highly discretionary standard based on a list of factors regarding
the child’s needs.
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 g. Most states have abrogated the common-law presumption that
custody (both legal and physical) of a nonmarital child (child
born out of wedlock) vests in the mother.
h. Men and women are situated differently: maternity is known
immediately, this is not the case for paternity.
i. If you’re a single mom who wants to relocate, do you have to
use the relocation statute? No, she is the legal and physical
custodian so she can travel anywhere.
 Primary Caretaker Presumption:
a. This briefly replaced the Tender Years Presumption in a few
states; here, the BIC are served by placing the child with the
parent who has taken primary responsibility for the child's care.
b. FL doesn’t recognize this anymore. This is just 1 factor
considered.
ii. Best Interests of the Child?
 Constitutional factors:
a. Race:
i. Palmore v. Sidoti: Husband (black) & Wife (white)
divorced and Wife got child custody. H sought custody
because of changed circumstances i.e. Wife got remarried
to a black man. Court considers 'social consequences' that
an unaccepting society would incur upon the child for the
mother's relationship. Best interest of child?
ii. The effects of racial prejudice, however real, cannot
justify racial classification removing an infant child from
the custody of its natural mother found to be an
appropriate person to have such custody.
b. Religion:
i. Sagar v. Sagar: H & W zealously practiced Hindu faith
before and after marriage. Even though H emotionally
and physically abused W, they agreed on the religious
upbringing of their daughter; exception is whether to
have daughter do a certain religious ceremony. After
divorce, court awarded joint custody with W having
physical custody and H visitation. W claims ceremony is
not integral to the Hindi faith; H claims his right to insist
on performance of the ritual is his free exercise of
religion.
ii. A court is justifiably loath in ordering a restriction on
either parent's fundamental rights to free exercise of
religion and to determine the child's religious upbringing
and is constitutionally limited in doing so unless there is a
compelling state interest such as preventing
demonstrable physical or psychological harm to the child.
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 iii. Courts cannot prefer one religion over another – UNLESS
it was tied to best interests. For example, if there was
some religion that required children to run over hot coals,
then the court could enjoin parent from taking child to
this religion.
 Fitness
a. Sexual orientation:
i. Fulk v. Fulk: After claiming inhumane treatment,
adultery and irreconcilable differences, H was awarded
child custody, with W granted limited & supervised
visitation. Factors the court considered: age, health and
sex of child; determination of the parent that had the
continuity of care prior to the separation; which has the
best parenting skills and which has the willingness and
capacity to provide primary child care; the employment of
the parent and responsibilities of employment; physical
and mental health and age of parents; emotional ties of
parent and child; moral fitness of parents; the home,
school and community record of the child; the preference
by law; stability of home environment and employment of
each parent; other factors relevant to the parent-child
relationship.
 Judge incorrectly weighed the W’s affair with a
woman.
ii. Sexual behavior is less relevant in FL than it has ever
been as a legal matter (practically, still could matter to a
judge) [ex: homosexuals]
iii. Unless there is a nexus/connection between the sexual
behavior and child (i.e. the nexus between the behavior
and the negative reaction).
 i.e. Committing sexual relations in front of a child.
b. Careers:
i. Court should consider best interests of the child; concern
for a child's well-being or best interests does not,
however, provide the court carte blanche to judge the
rights and lifestyles of parents by non-statutory codes of
moral or social values.
ii. Career as a factor – often works against working women.
c. Domestic Violence:
i. Peters-Rimers v. Riemers: W got custody of child after
divorce from H b/c of adultery and abuse.
ii. If the court finds credible evidence of domestic violence,
and there exists 1 event that resulted in serious bodily
injury or involved serious weapon or there exists a
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 pattern of DM, this combination creates a rebuttable
presumption that a parent who has perpetrated DM may
not be awarded sole or joint custody. This presumption
may be overcome by clear and convincing evidence that
the BIC require the parent's participation as custodial
parent.
iii. In Florida, the law as of 2004 presumed detriment
where a civil injunction had issued. That is not the
case anymore; the current law raises the
presumption of detriment must do with a conviction
of domestic violence (civil injunctions do not raise
the presumption).
iv. Uniform family cases: if a case can technically be sent to
different courts (family, domestic, criminal, etc.), can be
combined into one.
v. All states mandate or permit consideration of a parent’s
physical and mental health. All parents are presumed fit.
iii. Joint Custody: presumption, preference, or option?
 Bell v. Bell: H & W shared most child rearing tasks on an equal basis,
and used a babysitter b/c they both worked. During separation, they
agreed to share custody, accommodated each other's schedules,
agreed on major decision for child, and used the same babysitter.
Eventually H kept using babysitter, and W started using daycare. Trial
awarded W custody instead of joint custody.
 Joint custody gives both parents legal custody, meaning they share
responsibility in the making of major decisions effecting the child's
welfare. It also awards both parents physical custody, meaning each is
entitled to the companionship of the child over periodic intervals of
time.
b. Standards Concerning the Noncustodial Parent: Visitation
i. Traditional rule
 Before joint custody: court would determine which of 2 competing
parent should be awarded custody (physical and legal custody). A
presumption was made that reasonable visitation with a noncustodial
parent was in the BIC. The presumption could be overcome by
substantial evidence that the noncustodial was unfit or that visitation
was detrimental to the child's welfare. Custody usually given to mom.
ii. Restrictions on visitation:
 Hanke v. Hanke: Wife wants to have court deny H from getting
overnight visitation of their daughter b/c of an incident of sexual abuse
H had with W's stepdaughters. The abuse is undisputed.
 In most instances the trial judge is accorded great deference, unless
its arbitrary or clearly wrong. Where there is evidence that a parent is
justified in believing that the other parent is sexually abusing the child,
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 it's inconceivable that the parent will surrender the child to the abusing
parent w/o stringent safeguards.
 Supervised visitation program-furnishes services to parents in custody
disputes involving various forms of abuse and neglect. Just to see if
you can interact with your child for 1hr w/o a prompt from the
supervisor.
 Child’s refusal to visit-if you have court order to deliver a child, you
must do so. If the child refuses, you must file a legal document to
modify order, you can't just ignore it.
iii. Denial of Visitation:
 Turner v. Turner: W got custody of 2 kids; H granted visitation rights
and was to pay child support and medical insurance for the kids. H got
suspension of visitation for not paying child support. Civil contempt for
his failure to pay, criminal contempt for violating orders for him to stop
harassing abusing W and kids.
 Child custody and visitation decisions should be guided by BIC; they're
not intended to be punitive. As a general rule, the most preferable
custody arrangement is one which promotes the kid's relationship with
both custodial and noncustodial parent. The denial of visitation is
warranted only when the noncustodial parent is financially able to
support his kids but refuses to do so.
c. Standards governing parent v. nonparent disputes:
i. Troxel v. Granville: Tommie and Brad (never married) had 2 kids; after
they separated, Brad moved in with his parents (J & G). Brad regularly had
his kids over for weekend visitation; Brad committed suicide. Tommie limited
kids visits to their grandparents (J & G) to 1 short visit/month. The
grandparents request the court for visitation rights; during this time Tommie
remarried and new H adopted the kids.
d. CHAPTER 751: TEMPORARY CUSTODY OF MINOR CHILDREN BY EXTENDED
FAMILY.
i. § 751.011  Definition — As used in this chapter, the term:
 (1)  “Concurrent custody” means that an eligible extended family
member is awarded custodial rights to care for a child concurrently
with the child’s parent or parents.
 (2)  “Extended family member” means a person who is:
a. (a)  Relative of a minor child within the third degree by blood or
marriage to the parent; or
b. (b)  The stepparent of a minor child if the stepparent is
currently married to the parent of the child and is not a party in
a pending dissolution, separate maintenance, domestic violence,
or other civil or criminal proceeding in any court of competent
jurisdiction involving one or both child’s parents as an adverse
party.

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 ii. Consent of the legal parent or ‘clear and convincing evidence’ to show
abandonment, neglect, or abuse.
e. CHAPTER 752: GRANDPARENTAL VISITATION RIGHTS
i. § 752.011  Petition for grandparent visitation with a minor child — A
grandparent of a minor child whose parents are deceased, missing, or in a
persistent vegetative state, or whose one parent is deceased, missing, or in a
persistent vegetative state and whose other parent has been convicted of a
felony or an offense of violence evincing behavior that poses a substantial
threat of harm to the minor child’s health or welfare, may petition the court
for court-ordered visitation with the grandchild under this section.
 Bethany v. Jones: Bethany & Jones were a same-sex couple;
Bethany carried to term a child (from friend's sperm) and they gave
the child Jones last name. After separating, they agreed to co-parent;
eventually Bethany (who was in new relationship with another woman)
decided it was not in the BIC to have contact with Jones because of
her ability as a parent (instability, depression, truthfulness, safety of
child).
a. First, does Jones have standing? YES, this is different than a
grandparent (under Troxel) and is more akin to a case where a
stepparent seeks visitation under the theory they stood in loco
parentris to the child i.e. that in all practical aspects they were a
parent.
b. What relationship defines loco parentis? NOT the relationship
between adults (so it doesn't matter that the State doesn't
recognize same-sex marriage or grant domestic-partnership
rights i.e. no legal standing), but THE RELATIONSHIP between
parent [Jones] and child.
c. So, if there is evidence of loco parentris (that parental bond
between adult and child), the 1st step of analysis that Jones was
a parent figure to the child has been met.
d. Then the question becomes whether it is BIC to let Jones have
visitation rights. In this case, yes: Jones was the stay-at-home
mom, was called 'mom' by the child, child was attached to Jones
and Jones’ family = evidence of a loving relationship
f. The Role of Special Participants
i. The Child’s Preference:
 McMillen v. McMillen: Over the years, the court first granted W
primary custody, then general custody with H getting visitation rights,
H rights getting more expansive, and the whole time the child kept
stating his preference to live with his dad [child was 11 years old].
Wife objected.
 §61.13 Visitation Rights.
a. (1) BEHAVIOR; (2) NEXUS; (3) IMPACT.
b. NO NEXUS, NO IMPACT ON THE CHILD.
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  Child's express wishes are not controlling in custody decisions, but
they are an important factor in determining BIC. The child's preference
must be based on good reason, and the child's maturity and
intelligence must also be considered.
a. FL courts will consider §61.13 A through T, relevant
factors; the facts of the case before the court.
 Due Process in Civil: there does not need to be confrontation.
 There's no such law or age where kids can dictate where they want to
live – at the end of the day, court’s obligation is the BIC. Generally,
judges don’t want to hear from kids because it’s a delicate process.
 Child’s custodial preference – the older the child, the more likely their
desire influences the decision.
ii. Representation for the Child:
 When the court appoints an attorney to be guardian ad litem for a
child, the attorney's duty is to make a determination and
recommendation after pinpointing what is the BIC.
a. The attorney has primary responsibility to the court and
therefore has absolute immunity for "judicial functions" which
include testifying and making reports and recommendations.
 §61.401 Appointment of Guardian Ad Litem —
a. In DOM action or for the creation, approval, or modification of a
parenting plan, if the court finds it is in GAL to act as next friend
of the child, investigator or evaluator, not as attorney or
advocate. The court in its discretion may also appoint legal
counsel for a child to act as attorney or advocate; however, the
guardian and the legal counsel shall not be the same person. In
such actions which involve an allegation of child abuse,
abandonment, or neglect as defined in §39.01, which allegation
is verified and determined by the court to be well-founded, the
court shall appoint a GAL for the child. The GAL shall be a party
to any judicial proceeding from the date of the appointment
until the date of discharge.
b. They are immune from lawsuits.
 The conflict between the attorney being a guardian and an advocate is
when the lines blue; under PR Rules 1.14 which say even without legal
competence (because child is a minor), the child's opinion is entitled to
weight in legal proceedings. So, what happens when a child expresses
interest in living with 1 parent, but the attorney doesn't believe this is
in BIC? Does attorney advocate for child's positon (like PR rules
require) or decide based on what he believes to be BIC? = No defined
rule exists yet, various courts/attorneys take different view.
 But a court doesn't err (even though it's preferred) if they do not state
the purpose of a child representative.

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  Attorney ad litem are not a BIC advocate or guardian ad litem because
they are protecting the child’s legal rights.
 Guardian ad litem are appointed when there’s (1) allegations of abuse
—MANDATORY or (2) at request of a party.
a. Can become one by (1) training or (2) being a lawyer.
 Ch. 39 dependency (child abuse) cases – Guardian ad litem are
required.
iii. Role of Experts:
 In re Rebecca B: Husband & Wife divorced; Wife has sole custody;
Wife petitioned to eliminate Husband's overnight visitation and require
supervised visitation when she found out Husband was sleeping in
same bed as the child.
a. The clinical director of the family court's mental health service
was qualified to testify as an expert in clinical psychology; he
met with child 3x for total of 3hrs and then with her and each
parent for 40min; he met with each parent separately for 7hrs.
b. Director stated he believed child being with Husband and Wife
getting liberal visitation was in BIC: child had better bond with
Husband than Wife; child didn't understand W's spanking,
slapping, and locking in her room; Husband had less of a
detrimental influence on child than Wife; more importantly
director recommended change of custody because the W tried
hard to exclude H from the child's life; Husband would give
better access to the noncustodial parent (Wife). There was also
no evidence of improper conduct during child's (age 8)
overnight visits with Husband.
c. In contrast, Wife's use of expert psychiatrist only met with Wife
and people he was referenced to by the Wife, never the child or
Husband. Overall, BIC favored Husband having custody.
iv. §61.20 Social investigation and recommendations regarding a
parenting plan —
 Court-ordered investigation where the court appoints an investigator
to make a recommendation as to where the child should reside and
what the visitation should be for purposes of the time-sharing
arrangement.
 IMPORTANT: recognize that this report (a document consisting almost
entirely of hearsay) is admissible in court over hearsay objections.
That is – it comes into evidence even though it is a document
consisting of nothing but hearsay.
 Parental Alienation Syndrome: A parent’s conscious or subconscious
attempts to alienate a client from the other parent. Been around
controversially for many years. Not diagnosable under DSM.
 Potential conflict of interest: Can a mental health expert who is
treating one of the parties be objective (to testify)? It would be very
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 difficult for them to be objective; they could be used as a witness for
that party, but not as an expert to inform the court overall.
g. Modification
i. Standard:
 The huge concern for child welfare gives courts continuing power to
modify custody orders; the standard to modify is higher than for initial
awards of custody to ensure stability for kid.
 Plaintiff has the burden of showing by a preponderance of the evidence
that conditions since the dissolution decree have so materially and
substantially changed that the children's best interests require a
change of custody.
 It must occur subsequent to the entry of final judgment.
a. If a person was addicted to drugs and then got clean, that would
be a substantial change in circumstances that could lead to
increased visitation.
 Joint custody: It may be changed if custody arrangement proves
unsuccessful or if circumstances change.
 In FL, (1) substantial changes and (2) best interest of the child.
ii. Relocation:
 Ciesluk v. Ciesluk: Wife and Husband have joint parental
responsibility and decision-making authority; Wife is primary
residential parent for school residency and other legal residential
requirements, Husband has parenting time on 2 weekends and 2
weekday evenings per month. Wife filed motion for modification of
parental time to allow her to relocate.
 Court should not only determine normal best-interests factors, but also
9 special factors: reason why party wants to relocate, reason why
opposing party is objecting, the history and quality of each party's
relationship with child, the educational opportunities for child at each
location, the presence or absence of extended fam at each location,
any advantages of the child remaining with the primary caregiver, the
anticipated impact of the move on child, whether the court will be able
to fashion a new reasonable parenting time schedule, other relevant
factors bearing on BIC.
 There’s no presumption of a penalty (regarding time share) to request
for relocation.
 In FL, there is no presumption about relocation – either in favor
of or against relocation. The relocation statute is presumption-
neutral. §61.13001 Parental relocation with a child.
a. Three options can happen under FL statute:
i. (1) Parties agree;
ii. (2) Notice to Party but that party does not respond so
Judge enters default judgment.

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 iii. (3) Parties litigate—Notice to Party and that party
responds, then Judge decides.
b. The burden of proof is on the party who wants to relocate.
c. FL has a relocation and temporary relocation statute.
 Motives for relocation important- Good faith (legitimate reason) ok,
Bad faith not ok.
 Mileage restrictions in FL – if you move more than 50 miles,
parent needs court permission.
h. Jurisdiction and Enforcement:
i. UCCJA – Uniform Child Custody Jurisdiction Act – has jurisdiction over the
child as well.
ii. Jurisdiction Act is not dictated by the BIC.
 Prior to UCCJA (not current law): A state could assert jurisdiction over
child custody if it had a “substantial interest” in the case. The interest
could stem from: the marital domicile or the current residence of
either parent or the child.
a. Such a vague standard led to concurrent assertions of
jurisdiction, plus, because of judicial willingness to reopen
custody decisions at the behest of a state resident, decrees
were freely modifiable in other states.
 UCCJA (not current law): The 1st effort at uniform jurisdictional basis
where all states adopted this to avoid jurisdictional competition and
confusion, parent forum shopping and parental abductions.
a. 4 alternative bases of jurisdiction were created to locate
jurisdiction in the forum with access to the most evidence
relevant to the custody decision, attempted to ensure that
proceedings would occur in 1 state at a time, and mandated
recognition, enforcement, and non-modification of a decree from
another state with jurisdiction under the UCCJA.
i. (1) child’s home state, (2) significant connection between
the state and the parties, (3) emergency jurisdiction
when the child is present and the child’s welfare is
threatened, and (4) the fact that no other state has
jurisdiction.
ii. Home State: state in which the child lived (immediately
preceding the time involved) with a parent(s) for at least
6 consecutive months.
 PKPA (Parental Kidnapping Prevention Act): improved UCCJA because
it (1) prioritized the bases of jurisdiction, (2) gave priority to the
“home state” of the child in determining which state may exercise
jurisdiction in a custody dispute, (3) once a state has exercises
jurisdiction, the initial decree – granting state has exclusive continuing
jurisdiction so long as it remains the residence of the child or any
contestant.
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 a. It criminalizes child abduction.
 UCCJEA (current law – it applies to children): resolved the difference
between UCCJA and PKPA.
a. Uniform Child Custody Jurisdiction and Enforcement Act.
 FL adopted §201. Initial Child-Custody Jurisdiction. Pg. 781.
Jurisdiction for 6 months, like DRR.
 If the State gets your child, DCF must go to court within 24hrs to get a
court order. FL does not have home state jurisdiction if children are
from OH visiting Orlando with parents but it can under emergency
situations.
iii. Learn provisions §201, §202, §203, and §204.
i. Gives priority to Home State Jurisdiction:
i. If kids were in the home state before an initial dispute, and then kids move
to different state, that original home state maintained jurisdiction—provided
that 1 parent stays behind and maintains contact with kids.
 Eliminates the “best interests” language from the 2nd (significant
connection) basis of jurisdiction.
 Severely restricts the use of emergency jurisdiction to the issuance of
temporary orders.
 Strict requirements for modification: the state that makes the initial
custody determination has exclusive containing jurisdiction so long as
a child or parent in the original custody determination remains in the
state
 Another improvement: under UCCJA & PKPA, temporary emergency
jurisdiction arises in extraordinary circumstances where a child is
present in a state and subjected to, or threatened with, mistreatment
or abuse. Under the UCCJEA, a court can exercise emergency
jurisdiction to protect the child, its siblings, or its parents (not only the
child in question).
ii. Ex: Parties lived in Broward for 6yrs prior to separation; Dad takes Kids to PA
because he has family there to help with Kids while Mom stays in Broward.
Dad is in PA for 4 months; says he doesn’t want to go back to FL, not sure
whether they should get divorced, invites Mom to come to PA if she wants.
Mom says no. Another 3 months go by, Dad is now in PA for 7 months. If PA
law mirrors FL law (i.e. home state after 6 months), Dad wants to divorce,
can he? Yes, because he meets DRR required so PA has jurisdiction over Dad
and the divorce (they only need PJ over Mom for adjudication over property).
Does PA now have jurisdiction over Kids? Yes, because PA is now the home
state since they’ve been there for 6 months. What if Dad wrongfully took the
kids to PA (without court order or telling Mom)? Then, PA is not home state
because that is abduction.
iii. §61.505  Application to Indian tribes. (ICWA) — Federally recognized
Indian tribes have certain rights, including the first right to autonomously
resolve custodial disputes w/n tribal traditions.
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  It is particularly important regarding adoptions.
iv. §61.506  International application of part —
 A child custody determination made in a foreign country under factual
circumstances in substantial conformity with the jurisdictional
standards of this part must be recognized and enforced, unless it
violates fundamental principles of human rights.
a. So, we have a DOM in Iraq – the parties come to FL and Mom
want to enforce the order, which also has a timeshare/custody
order in it where Mom has custody. We have a Comity situation,
it will be enforceable if it follows our substantive and procedural
due process. So, the question is whether Iraq had a timeshare
consistent with UCCJEA i.e. jurisdiction?
v. §61.507  Effect of child custody determination — A child custody
determination made by a court of this state which had jurisdiction under this
part binds all persons who have been served in accordance with the laws of
this state or notified in accordance with §61.509 or submitted to jurisdiction
of the court, and who have been given an opportunity to be heard.
vi. §61.511  Communication between courts.
 Let’s say in the above example: Dad says he has been in PA for 6
months, and Mom says he has been there for 5. The courts must
communicate to resolve dispute and determine jurisdiction.
vii. §61.512  Taking testimony in another state
viii. §61.513  Cooperation between courts; preservation of records.
 Substantial compliance with the Act
ix. §61.514  Initial child custody jurisdiction. (UCCJEA applies to every
case involving children. You must first establish jurisdiction before moving
forward).
 A court of this state has jurisdiction to make an initial child custody
determination only if:
a. (1)(a): this state is the home state of child w/n 6 months before
the commencement of the proceeding and the child is absent
from this state but a parent continues to live in this state; or
(This is consistent with the idea of durational residency
requirement)
b. (1)(b): a court of another state doesn't have jurisdiction (Ex:
Family travels all the time b/c they work for a Circus), or home
state declines to exercise jurisdiction on the grounds that this
state is the more appropriate forum and:
i. (1)(b)(1): The child and the child’s parents, or the child
and at least one parent or a person acting as a parent,
have a significant connection with this state other than
mere physical presence; and

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 ii. (1)(b)(2): Substantial evidence is available in this state
concerning the child’s care, protection, training, and
personal relationships.
x. §61.515  Exclusive, continuing jurisdiction: If you have home state,
you have continuing juris. (for modification) providing no one
leaves/abandons home state and 1 party continues to have ongoing contact
with the child.
xi. §61.516  Jurisdiction to modify a determination: Can modify if this
state had original jurisdiction or the home state no longer has jurisdiction.
xii. §61.517  Temporary emergency jurisdiction.
 A court of this state has temporary emergency jurisdiction if the child
is present in this state and the child has been abandoned or it is
necessary in an emergency to protect the child because the child, or a
sibling or parent of the child, is subjected to or threatened with
mistreatment or abuse.
 Requires: child(s) have to be physically present and there has to be a
threat.
a. Ex: OH family come to FL for vacation. Parents leave kids alone
and kids are found wandering alone. FL wouldn’t normally have
juris. But under this situation, the police could take the kids and
complete court proceedings within 24hrs. But FL shouldn’t keep
juris. b/c it doesn’t have a continuing interest in this family;
when the emergency is resolved, OH gets back jurisdiction.
xiii. §61.521  Jurisdiction declined by reason of conduct
 Ex: child abductors.
xiv. §61.522  Information to be submitted to the court —
 (1)  Subject to FL law providing for the confidentiality of procedures,
addresses, and other identifying information in a child custody
proceeding, each party, in its first pleading or in an attached affidavit,
shall give information, if reasonably ascertainable, under oath as to
the child’s present address or whereabouts, the places where the child
has lived during the last 5 years, and the names and present
addresses of the persons with whom the child has lived during that
period.
xv. §61.525  Enforcement under The Hague Convention. (a civil remedy)
 A court of this state may enforce an order for the return of a child
made under The Hague Abduction Convention as if it were a child
custody determination.
 Children abducted by other nations and brought to U.S. So, you
represent the other parent that is left behind in the foreign country.
One must prove the child was habitually resident, that the other
parent had actual custodial rights at the time of the wrongful removal.
If it is proven, the child should be returned.
j. What process should govern custody disputes?
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 i. Adversary System v. Mediation Process:
 McLaughlin v. Superior Court: Civil Code 4607 requires prehearing
mediation of child custody and visitation disputes in marital dissolution
proceedings; if the parties fail to agree in the mediation proceedings,
the mediator may, consistent with local court rules, render a
recommendation to the court as to the custody or visitation of the
kids. The local court rule here allowed mediator recommendations but
prohibited cross-examination of mediator by the parties.
ii. In FL under §61.20, the court can order a social investigation. The
document is pure hearsay and it goes to the judge without the
requirement that there be cross-examination. This is consistent with
the CA statute from McLaughlin.
iii. In FL, mediation is confidential by statute but factual statements you
use during mediation can still be used against you. Not asked about
during trial, but if you say in mediation “I have $500K in an offshore
account” that statement can’t be used, but it certainly is now
something that the other party knows and can ask about factually.
iv. Parties can opt for private judges. Mediators are not subject to cross-
examination. The social investigator can be questioned in court, but he/she
is just going to say, “that’s what other people told me.”

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The Nonmarital Family

I. Parents’ and Children’s Rights in the Nonmarital Family

a. Support Rights of Nonmarital Children
b. Visual inspections were the method to adjudicate paternity before.
c. Standard and in FL also – the burden is clear and convincing evidence.
d. Paternity Establishment: Pg. 449
e. HLA Testing.
f. Wallis v. Smith: Guy said Girl tricked him into having a baby. If you have
consensual sex with someone, you are accepting for all responsibility.
g. Stanley v. Illinois: The state cannot presume a parent is unqualified or unfit. On
an individual basis, parents must prove unfitness.
II. Identifying Who is a Parent
a. Means of Conception
i. Sexual Conception v. Alternative Insemination
 In re M.F.: Mother was in a long-term committed relationship with
another woman. Father, a friend of Mother’s, agreed to provide sperm.
A few weeks before the child was born, the parties signed a Donor
Agreement which stated Mother waived all child support and financial
assistance, Father waived all legal and physical custody, all parties
agree to never sue to establish paternity. 2nd child also born same
way. Mother and her life partner relationship ended when kids were 5
and 12; Mother sought public assistance, so the county prosecutor
filed for a petition to establish Father’s paternity for child support. Do
the rules of artificial insemination apply (Father not the natural parent
of the child) when conception was done via intercourse?
 How did you do it?
a. If you did it old-fashioned way (sex) = liability
b. Artificial insemination = no liability (generally because you
would sign a waiver)
c. Genetic product (the Astrue case)
ii. Posthumous Conception:
 Astrue v. Capato: Wife and Husband married; he died from cancer.
With the help of vitro fertilization, Wife gave birth to twins, using
Husband’s sperm that he froze before chemo. Wife’s application for
Social Security survivor’s benefits for the twins was denied because
kids weren’t born before Husband’s death.
 Posthumous conception is traditionally when a child is conceived
before a parent's death but born thereafter; reproductive technologies
has made possible the birth of children conceived after parent's death.
b. Parentage by Adoption:
i. FL Dept. of children & families v. Adoption of X.X.G. : Gay man adopted
2 boys; it was agreed he was a fit parent and the adoption was in the BIC.
Should homosexuals be allowed to adopt if the law forbids it?
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 ii. At the time, FL allowed homosexuals to serve as foster parents or guardians
but not adopt. Statute is not rational, they may now adopt.
III. Parentage Based on Formalities, Function, and Intent
a. Traditional Doctrines: Legitimacy and Estoppel
i. Lefler v. Lefler (1998): Robbie and Christine Lefler were married in 1985;
in June 1988, a child was born. The marriage was dissolved in 1990; child
support was agreed on, and the former husband raised no question as to the
paternity of the child at that time. In 1995, the husband learned through
DNA testing that he was not the biological father of the child. He then
petitioned to modify the final judgment by reason of extrinsic fraud. He
acknowledges that in 1987 he learned his wife had an affair, that she swore
it was over, and the 2 decided to work things out. Wife acknowledged that
she had sex w/ another man during her marriage, that she didn't recall it
being around the time child was conceived but that he could be the father,
and she didn't know husband wasn't the father until DNA test.
 The former wife had disclosed a prior affair to the former husband
which had occurred shortly before the conception of the minor child.
The former wife did not know that the former husband was not the
biological father and, therefore, did not conceal the paternity of the
child from the former husband. The former husband was aware of the
former wife's affair during the marriage, yet did not question paternity
at the time. The final judgment of dissolution of marriage is res
judicata as to the issues presented and found that there was no
extrinsic fraud in this case. [if you have notice, you better litigate or
you lose your claim forever]. He sat on his rights.
 For parties who are divorcing, if you have suspicion that wife has
cheated, challenge paternity rights in the DOM proceeding to acquit of
any future obligations.
ii. Daniels v. Daniels (1997): Husband challenges part of the final judgment
of DOM awarding Wife child support for a child who is not biologically his, but
who was born during the course of the marriage. At the time of the parties'
marriage, Husband knew Wife was pregnant with the child of another man.
In the DOM proceeding, parties stipulated that Husband was not the
biological father of the child. The parties separated after 11 months of
marriage.
 A person has no legal duty to provide support for a minor child who is
neither his natural nor his adopted child and for whose care and
support he has not contracted.
 This is a case where there is no dispute about the paternity of the
child; he needs to leave before caring for the child to not be
considered the legal father.
iii. Privette v. DHRS (1991): Husband and Wife separated. Wife continued to
have children with her BF. In this situation, state used to just adjudicate the
biological father the legal father so it could get support – and the husband
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 (“legal father” would not get notice). The court said no – every time you
have a legal father, you must give him notice, to protect his due process
rights. When you have a husband/legal father, he is entitled to due process
notice, even if it’s factually impossible that the child is his. Before you excuse
his relationship and terminate his parental rights, you must first determine
whether there is a basis to do so: good faith fact basis; appointment of GAL;
recommendation as to whether someone other than the husband should be
assigned the responsibility and right of raising the child
 RULE: Courts cannot terminate a legal father’s parental rights by
entering a court order without giving him proper notice to contest
rights.
a. THE AGE OF THE CHILD IS EXTREMELY IMPORTANT.
 Here, the husband tried to leave when the child (who he knew was not
his) was 3yrs old. Not ok to just leave b/c its highly likely the child has
created a relationship with the legal father; now we need to do BIC.
The legal father has assumed responsibility. The standard for a blood
test (in a child born in marriage) is the guardian ad litem should give
recommendation.
 It wouldn’t apply to kids at 14 years old; the older the kid, the more
harmful it is for him or her. The court will not do blood tests to
establish paternity if one party disagrees.
 THE PETITION MUST BE FILED IN GOOD-FAITH.
iv. Michael H. v. Gerald D. (1989): Carole was married to Gerald, but had an
affair with Michael. Gerald is the legal father and Michael is the biological and
putative father. Both men had relationships with the child, because Carole
lived with both men at various times when her marriage wasn’t going well.
Michael sued to gain access to the child when Carole got back with Gerald
and refused Michael access to the child.
 RULE: The right of a potential natural father to assert parental rights
over a child born into a woman’s existing marriage with another man
is not recognized in historical jurisprudence and is not a fundamental
right protected by the Due Process Clause of the Fourteenth
Amendment.
 Michael did not have standing to file lawsuit. Gerald has first claim. It
is his wife so Victoria is his presumed child born during the marriage.
The government cannot micromanage marriages. Michael has no rights
or responsibilities. States promote and favor marriage and family.
Biological rights do not necessarily make families.
 The marriage of Carole and Gerald is used as a shield against other
people because spouses have a fundamental right to privacy.
 What would happen if Carole and Gerald got divorced? It could depend
on the age of the child (therefore BIC).
a. i.e. Let’s say the child is 10 years old and parents get divorced.
The child knew Gerald as her dad, so he cannot run away. What
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 if the child was under 5 years old? Then yes, the BIC may show
that Michael should have access to the child and create a loving,
fostering relationship.
v. If the parties were not married but they have raise a child, and the guy signs
a birth certificate, that is done by operations of law and it is considered a
court order. If the real father wants to dispute the paternity, it will be res
judicata.
vi. IF YOU ARE NOT MARRIED, YOU MUST FILE A PETITION TO DISESTABLISH
PATERNITY. YOU MUST BE CURRENT IN YOUR FINANCIAL OBLIGATIONS OF
THE CHILD IF YOU WERE ADJUDICATED TO CARE AND SUPPORT THE CHILD
EVEN AFTER THE MOTHER TOLD YOU HE OR SHE WAS NOT YOUR CHILD.
THE MOTHER CAN PAY YOU BACK FOR ALL THE CHILD SUPPORT.
 IT WILL ARISE IN THE CONTEXT OF PRIVETTE.
vii. IF YOU ARE MARRIED, IT WILL ARISE IN THE CONTEXT OF LEFLER AND
DANIEL.
viii. Do biological men have rights to their biological product when there is no
marriage? Is biology enough to be a legal parent?
 No, you must grasp the responsibility to parent your child and
promptly come forward to do that or else it means they never
transformed their biological right into a legally cognizable right.
ix. Chapter 63: It has no remedy for fraud
 If a woman lies about the identity of the child, and the real father finds
out and tries to preserve his right with the registry but is too late, he
is out of luck because he is presumptively on notice about the child
when a (unmarried) woman he has sex with gets married.
 These are the cases in FL that speak to the idea of a woman giving
birth to a child during the course of a valid marriage, where the child’s
father is someone other than the husband? Remember, if child born in
a marriage, the legal presumption is that the Husband has legal
parentage rights. If the marriage breaks apart, we have different
circumstances.
b. Mom has Child, Dad is not in the picture but Mom wants to place Child for adoption.
Does Dad need notice? Most women will say “I don’t know who the father is” just to
avoid giving notice to Dad. Courts cannot do anything about it.
c. FL created a Putative Father Registry—Every time a man has sex with a
woman, he must contact the registry in case the woman places the child
for adoption.
i. IT REQUIRES NOTICE! THEN FATHER CAN REGISTER IN 30 DAYS IN THE
PUTATIVE FATHER REGISTRY.
ii. Father must establish a substantial relationship with the child to prevent
termination of parental rights if the child is more than 6 months old.
 The burden is on the man.
 Fraud is not a defense in FL.
 FL does not recognize locus parentis.
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IV. Consequences of Parentage: Parent Rights and Responsibilities
a. Under §742, a party can file to establish paternity and child support, without
timeshare. Only the Department of Revenue can establish timeshare 50/50.
b. § 742.021  Venue, process, complaint — Circuit Court
c. § 742.031  Hearings; court orders for support, hospital expenses, and
attorney’s fee —
i. Standard to adjudicate paternity – clear and convincing evidence.
ii. If there is a paternity complaint and the child is already born, and the
complaint is brought by Mom, can Dan be accountable for costs associated
with birth? Yes.
iii. It all goes to the mom, unless it doesn’t.
 Couples with IV D cases i.e. the DOR cases where the state brings the
complaint to calculate child support.
d. § 742.07  Effect of adoption — Upon the adoption of a child, for whom support
has been ordered, by some person other than the father, the liability of the father
for the support of the child shall be terminated.
e. § 742.091  Marriage of parents
f. § 742.10  Establishment of paternity for children born out of wedlock.
g. § 742.108  Criminal penalties for false statements of paternity.
i. Birth certificates are evidence of paternity, not actual evidence since moms
can lie to hospital and give them any name.
ii. Birth certificates are affidavits.
h. § 742.11  Presumed status of child conceived by means of artificial or in
vitro insemination or donated eggs or pre-embryos —
i. § 742.12  Scientific testing to determine paternity —
j. § 742.14  Donation of eggs, sperm, or pre-embryos.
i. Relinquish all rights
k. § 742.15  Gestational surrogacy contract —
l. § 742.16  Expedited affirmation of parental status for gestational
surrogacy —
m. § 742.17  Disposition of eggs, sperm, or pre-embryos; rights of
inheritance.
n. § 742.18  Disestablishment of paternity or termination of child support
obligation.
i. If you lose, you will pay the paternity tests plus legal fees.

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Ch. 4 Intimate Partner Violence
I. The Role of Age: Teen Dating Violence
a. Emily K. v. Luis J. (2014): In 2012, Petitioner commenced this Family Court Act
Art. 8 proceeding on behalf of her daughter. She alleged Respondent committed
family offenses against the daughter. Respondent and Daughter were 13 years-old
when the petition was filed and had been dating on-and-off since Kindergarten.
Family Court granted the petition, finding that Daughter and Respondent were in an
intimate relationship within the meaning of Family Court Act §812(1)(e) and that
Respondent had committed the alleged offenses of forcible touching and sexual
misconduct. The court issued a two-year order of protection in the Daughter’s
favor. Respondent appealed, alleging that Family Court did not have SMJ. Court
found that it did.
i. Order of Protection: A legal document sought by victim (Petitioner) against
an alleged perpetrator (Respondent) that is intended to prevent abuse. It can
be temporary or permanent.
 Temporary ex parte orders are issued without prior notice. After a
hearing at which both parties have the opportunity to present
evidence, the court can issue a permanent protective order.
II. Civil Protection Orders: Nature and Scope
a. All states currently provide civil protection orders for victims of DV.
b. What are they?
i. It directs a person to do or refrain from doing certain acts. States use
different terms—restraining order.
ii. Petitioning for a protective order does not preclude imposition of criminal
charges.
c. How long does a protective order last?
i. The court specifies the duration of the order.
ii. The maximum period is designated by statute.
III. Criminal Justice Response
a. BWS as Self-Defense
i. Hawthorne v. State (1982): Wife was charged in FL for shooting and
killing Husband. After being convicted, she appealed the trial court’s refusal
to allow the testimony of an expert on the issue of BWS (Battered Woman
Syndrome) as it applied to her self-defense.
 RULE: An understanding of BWS is sufficiently beyond the ken of the
average layperson to justify expert testimony on the issue in a trial of
a woman who claims to have killed her husband in self-defense.
ii. BWS as reliable evidence is ruled by state law.
iii. In FL, the state can prosecute despite victims not wanting to
participate in the litigation.
iv. Common law recognized the right of Husband to discipline Wife by use of
physical force. Reasonable restraints were lawful which ultimately developed

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 into the Rule of Thumb—allows men to use a stick no wider than his thumb
to discipline or hit his wife. This is no longer lawful.
v. BWS has two components: (1) A three-stage cycle of violence and (2)
“learned helplessness.”
 The cycle of violence consists of (a) a tension-building phase where
the batterer displays hostility and the woman attempts to placate him,
(b) an acute battering incident, in which batterer explodes into
uncontrollable disproportionate rage, and (c) the contrition phase, in
which batterer shows remorse and promises to end the abuse.
 “Learned helplessness” purports to explain why women stay in the
battering relationship. They become so depressed from repeated
battery that she loses motivation to respond (like lab animals and
shocks).
a. This is not a mental disorder, it is a psychological reaction of a
normal person when exposed to traumatic events.
vi. BWS Criticisms: It stereotypes victims as helpless, portrays them as mentally
ill and hysterical, it fails to explain that victims respond in different ways, it
disadvantages minorities, provides special treatment in violation of EP, and it
is subject to sexist applications by judges and juries.
vii. If you’re an immigrant marrying someone, their immigration status is based
on the U.S. citizen. But this legislation (VAWA) allows victims of DV to “self-
adjust” and obtain U.S. status on their own.
b. Duties of Law Enforcement:
i. Town of Castle Rock v. Gonzales (2005) : Wife had a TRO against ex-
Husband when he took their 3 daughters from the front yard. Wife contacted
the police several times but they stated she needed to wait. Ex-Husband
went to the police station and opened fire. Police shot and killed him. Inside
his pickup truck, they found the 3 girls, dead. Wife brought lawsuit against
the cops for non-enforcement of TRO.
 This case shows that police do not guarantee our safety, even against
known harm, such where they could be liable. There is only liability
when police take you into custody because that creates a special
relationship and obligation.
ii. FL does not have “restraining orders”; it has injunctions for
protections against DV.
 FL, like most states, require mandatory arrest for misdemeanor
DV offenses.
iii. Civil procedure—for emergency injunctions—need for immediate irreparable
harm and do not need to give notice, it is based on affidavit alone—an ex
parte proceeding.
 Even if the ex parte is denied or granted, it is always set for
trial/hearing.
 The litigant gets: a certified true copy.

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 a. Conformed copy—a court order with the judge’s signature stamp
from the original document.
 To enforce the order, always show the certified true copy.
 The return service hearing is held two weeks later. The respondent
must be personally served.
iv. No-Duty Rule: Generally, no right to police protection exists for private acts
of violence. A private COA arises only if the state discriminates based on (1)
the special relationship doctrine; or (2) the state-created danger doctrine.
 Special Relationship Doctrine: absent a special relationship, the state
has no constitutional duty to protect citizens against private acts of
violence.
 State-Created Danger Doctrine: It allows victims to seek redress from
state actors who increase the harm. It includes explicit or implicit
sanctions of the violence as well as inaction to suffice to condone the
violence.
IV. High-Lethality Crimes: Marital Rape, Threats to Kill, and Stalking
a. Lethality Assessment:
i. It is the evaluation of various risk factors to predict cases in which IPV is
likely to be fatal.
b. Marital Rape:
i. People v. Harris (2012): Harris was convicted of forcible oral copulation.
c. Threats to Kill and Stalking:
i. Elonis v. United States (2015): Elonis’ wife left him and took their kids
with her. He began posting degrading and violent things on FB. He was
convicted on 4/5 counts. Statute requires a communication be transmitted
and that the communication contain a threat.
 Interstate Communications Act, 18 U.S.C. §875(c), which makes it a
federal crime to transmit in interstate commerce “any communication
containing any threat to injure another person.”
ii. Stalking is a pattern of repeated and unwanted attention, harassment,
contact, or other course of conduct that is directed at a specific person that
would cause a reasonable person to feel fear.
iii. § 784.048 Stalking — Repeatedly following or harassing a person or
making credible threats against another person.
d. In FL, it is unlawful to record someone without their knowledge.
V. CHAPTER 741 MARRIAGE; DOMESTIC VIOLENCE:
a. § 741.28  Domestic Violence — DV is both a criminal act and a civil cause of
action; Considered as evidence of detriment to the child.
i. (2)  “Domestic violence” means any assault, aggravated assault, battery,
aggravated battery, sexual assault, sexual battery, stalking, aggravated
stalking, kidnapping, false imprisonment, or any criminal offense resulting in
physical injury or death of one family or household member by another
family or household member.

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 ii. (3)  “Family or household member” means spouses, former spouses,
persons related by blood or marriage, persons who are presently residing
together as if a family or who have resided together in the past as if a family,
and persons who are parents of a child in common regardless of whether
they have been married. With the exception of persons who have a child in
common, family or household members must be currently residing or have in
the past resided together in the same single dwelling unit.
iii. Words alone can be sufficient for DV injunction. It must be immediate harm.
Threats are sufficient.
b. § 741.283  Minimum term of imprisonment for domestic violence — 5 days.
c. § 741.29  Domestic violence; investigation of incidents; notice to victims
of legal rights and remedies; reporting —
i. (3)  Whenever an officer determines upon probable cause that an act of DV
has been committed within the jurisdiction, the officer may arrest the person
or persons suspected of its commission and charge such person or persons
with the appropriate crime. The decision to arrest and charge shall not
require consent of the victim or consideration of the relationship of the
parties  mandatory arrest.
ii. (4)(a) When complaints are received from two or more parties, the officers
shall evaluate each complaint separately to determine whether there is
probable cause for arrest.
 The primary aggressor is always arrested;
 If the officers cannot determine who is the primary aggressor, none
should be arrested because there is no probable cause.
 If both parties were the primary aggressors, they should both be
arrested.
a. Offensive wounds: knuckles; defensive wounds: face; arms.
iii. (5) No officer shall be held liable, in any civil action, for an arrest based on
probable cause, enforcement in good faith of a court order, or service of
process in good faith under this chapter arising from an alleged incident of
domestic violence brought by any party to the incident.
d. § 741.2901  Domestic violence cases; prosecutors; legislative intent;
investigation; duty of circuits; first appearance — It is treated as a crime, and
a serious crime.
e. § 741.30  Domestic violence; injunction; powers and duties of court and
clerk; petition; notice and hearing; temporary injunction; issuance of
injunction; statewide verification system; enforcement; public records
exemption —
i. You do not have to have been a victim of harm but you must have
reasonably believed of imminent bodily harm. So, threats are sufficient basis
to justify a DV order.
ii. Standard is subjective AND that risk must be objective.
 (1)(a) Any person described in paragraph (e), who is either the victim
of domestic violence as defined in § 741.28 or has reasonable cause to
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 believe he or she is in imminent danger of becoming the victim of any
act of domestic violence, has standing in the circuit court to file a
sworn petition for an injunction for protection against domestic
violence.
 (1) (c)  In the event a subsequent cause of action is filed under
chapter 61, any orders entered therein shall take precedence over any
inconsistent provisions of an injunction issued under this section which
addresses matters governed by Ch. 61.
a. The DV case follows the other case (i.e. divorce). So, if someone
files an injunction and then later begins divorce proceedings, the
injunction will go to the divorce court.
iii. (2)(a): no bond.
iv. One can get an injunction at any time of the week. It is free!
 Temporary injunction – within 2hrs.
 Notice must be personal service! Why? because otherwise they’d
be arrested.
v. (5)(a) If it appears to the court that an immediate and present danger of DV
exists, the court may grant a temporary injunction ex parte, pending a full
hearing, and may grant such relief as the court deems proper, including an
injunction:
 1.  Restraining the respondent from committing any acts of domestic
violence.
 2.  Awarding to the petitioner the temporary exclusive use and
possession of the dwelling that the parties share or excluding the
respondent from the residence of the petitioner.
 3.  On the same basis as provided in § 61.13, providing the petitioner
a temporary parenting plan, including a time-sharing schedule, which
may award the petitioner up to 100 percent of the time-sharing. The
temporary parenting plan remains in effect until the order expires or
an order is entered by a court of competent jurisdiction in a pending or
subsequent civil action or proceeding affecting the placement of,
access to, parental time with, adoption of, or parental rights and
responsibilities for the minor child.
vi. (5)(c)  Any such ex parte temporary injunction shall be effective for a fixed
period not to exceed 15 days. A full hearing, as provided by this section,
shall be set for a date no later than the date when the temporary injunction
ceases to be effective. The court may grant a continuance of the hearing
before or during a hearing for good cause shown by any party, which shall
include a continuance to obtain service of process. Any injunction shall be
extended if necessary to remain in full force and effect during any period of
continuance.
vii. (6)(a): Can get anything
f. § 741.31  Violation of an injunction for protection against domestic
violence — It is a crime in FL.
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 i. At the end, the court can choose to enter permanent injunction. The
respondent is prohibited from contacting victim, but victim can contact them.
VI. Children’s Exposure to IPV
a. OBO – On Behalf Of…
I. Consequences of Parentage: Parental Rights and Responsibilities
a. Parental Autonomy: Family Privacy Revisited
i. Meyer v. NE & Pierce v. Society of Sisters: parental right to privacy.
ii. Prince v. MA (1944): Jehovah Witness parents accused of violating child
labor laws but they said its their rightful exercise of religious convictions;
sometimes they would take their kids with them in passing out religious
pamphlets on the sidewalks. No actual harm but threatened harm.
 Parents Patria Doctrine – State’s ability to step in and intervene only
exists when the parents’ behavior falls below the acceptable standard
for harm (Courts will look at factors like actual and prospective).
iii. Actual harm v. Prospective harm:
 Prospective harm must be a substantial or imminent for the state to be
allowed to step in.
iv. Troxel v. Granville: BIC is not enough to access children, it must be
because of harm.
 RULE: Under the Due Process Clause, a state court may not grant
visitation rights to a person, even when doing so would be in a child’s
best interest, if those visitation rights are opposed by the child’s
parent because doing so interferes with the parent’s fundamental
liberty interest in rearing his or her child.
b. Parental Obligations:
i. Stacy M. v. Jason M. (2015): Jason had to pay child support for 3 children.
He suspected during the marriage he was not the biological father of the
youngest but he did not raise the issue of paternity in the DOM. He wanted
to remain the legal father of the child but he did not want to pay child
support.
 It becomes res judicata because he failed to litigate the paternity
issue.
ii. FL is an all-or-nothing parentage state.
iii. Elisa B v. Superior Court: There is a compelling state interest in
establishing paternity for all kids.
II. Limits: Escaping, Ending, and Curtailing Parental Rights and Duties
a. Termination of Parental Rights (TPR)
i. Chapter 39—Dependency—is dedicated to remediating parental defects and
reunifying children with parents when appropriate.
 R&R = remediate & reunify.
ii. ONLY provision in FL that can lead to TPR (when those standards are of such
magnitude to justify it).
iii. Compared to Chapter 63—Adoption—where only abandonment can lead to
TPR, i.e. not-fault based [ex: abuse, neglect] (because if it is abuse or
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 neglect, we still want to allow parents a right to R&R because of their strong
constitutional rights with their own children).
b. CHAPTER 39 DEPENDENCY
i. Dependency is a status of the child. They are treated as quasi criminal
because at every stage, a parent risks losing parent-child relationship.
ii. 3 grounds: abuse, abandonment, neglect
iii. Justification to terminate parental rights and for dependency/remove
children.
 Abuse: Willful act or threatened act that is physical, mental, or sexual.
 Abandonment: Willful rejection of parental responsibility.
 Neglect: Failure to provide or deprive child of food, clothing, shelter, or
medical treatment.
iv. Religion or financial inability cannot be the basis of a charge.
v. § 39.001  Purposes and intent; personnel standards and screening —
Parents have a constitutional right to the autonomy and decisional-making
for their children and the right to privacy, absent harm (characterized as
abuse, abandonment, neglect). If harm, the state has a right to come in.
 Note: if a parent neglects child because they just don’t have $ - not a
reason to take child away, state should step in and help with services.
So presumptively parents are the ones with a constitutional right to
their kids.
 Harm can be actual (has happened) or prospective (will happen)
 Prospective: substantial and imminent.
a. Ex: parent is crazy drunk – don’t need to let her drive off with
kid before stopping her.
 THE PURPOSE AND INTENT IS TO REMEDIATE AND REUNIFY.
vi. § 39.01  Definitions
 Typically, parents that do not act regarding medical for the reasoning
of an organized religion = no consequence [neglect]
vii. Process of Dependency:
 (1) call and make a report; (2) shelter hearing; (3) petition for
dependency; (4) arraignment hearing; (5) disposition (deny goes to
trial; admit/consent goes to disposition); (6) a case plan; (7)
permanency goal; and (8) it can be TPR for failing to comply with case
plan.
a. Make a report so an investigation occurs—anyone with
knowledge can then petition for dependency.
b. 2 judicial reviews a year.
c. Permanency goal can be reunification. It is attached to
placement and case plan.
viii. § 39.011  Immunity from liability — DCF is immune from liability if
acting in good faith if they take a child from a parent.

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 ix. § 39.013  Procedures and jurisdiction; right to counsel — If the parent
is pro se, the judge will inform the parents that he or she is entitled to an
attorney at every step of the way.
x. § 39.01305  Appointment of an attorney for a dependent child with
certain special needs — They always get lawyers appointed by judges.
xi. § 39.201  Mandatory reports of child abuse, abandonment, or
neglect; mandatory reports of death; central abuse hotline —Everyone
has an affirmative obligation to report child abuse except attorneys because
of attorney-client privilege. They do not have to inform past abuse but they
must disclose future abuse.
 (d)(1) = mandatory reporters so they must give their name.
xii. § 39.202  Confidentiality of reports and records in cases of child
abuse or neglect — Name is confidential, even in reports.
 Significance of these reports: FL has an abuser registry.
xiii. § 39.2021  Release of confidential information — You can request copy
of reports.
xiv. § 39.203  Immunity from liability in cases of child abuse,
abandonment, or neglect — Reporters of child abuse are immune from
civil liability if they are reporting in good faith. However, those who report
false allegations are subject to civil and criminal penalty.
xv. § 39.204  Abrogation of privileged communications in cases
involving child abuse, abandonment, or neglect — No husband or wife
privilege. She or he can be compelled to testify.
xvi. § 39.205  Penalties relating to reporting of child abuse,
abandonment, or neglect — It is a crime.
 1-800-962-2873 Child Abuse Hotline; they have a laundry list of
priorities cases to investigate. If the case is prioritized and it occurred
in Ft. Lauderdale. The Hotline will dispatch it to the BSO, the Broward
Sheriff Office, on behalf of DCF.
xvii. § 39.206  Administrative fines for false report of abuse,
abandonment, or neglect of a child; civil damages —
xviii. § 39.301  Initiation of protective investigations — A child protective
investigator (administrative employee) can take a child unilaterally without a
court order if they believe there is merit to abuse allegations. THERE MUST
BE PROBABLE CAUSE.
xix. § 39.307  Reports of child-on-child sexual abuse — Must report and
identify children victim of sexual abuse.
c. PART IV TAKING CHILDREN INTO CUSTODY AND SHELTER HEARINGS:
i. Shelter hearings are done within 24hrs after the removal of a child. DCF will
show up on behalf of the child.
ii. § 39.401  Taking a child alleged to be dependent into custody;
officers and authorized agent of the department — Allegations justifying
removal—abuse, abandonment, neglect.
 ANY ACTUAL NOTICE IS REQUIRED.
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  Standard of proof to shelter a child: probable cause
a. Probable cause are facts that warrant a reasonable person to
believe a crime will be committed or is being committed.
 Standard to adjudicate dependency: preponderance of the evidence.
 Standard to terminate parental rights: (1) clear and convincing
evidence, and (2) manifest the best interests of the child.
iii. § 39.402  Placement in a shelter — If the court finds probable cause that
child has been abused, abandoned, or neglected then the court gets to
shelter the child—least restrictive means to protect child.
 Foster and shelter homes require licenses.
iv. § 39.407  Medical, psychiatric, and psychological examination and
treatment of child; physical, mental, or substance abuse examination
of person with or requesting child custody — The Investigation Process
can last up to 21 days.
 To get continuance: just need good cause.
v. § 39.501  Petition for dependency — Anyone can petition for dependency
if it is corroborated with probable cause.
 Legal basis: abuse, abandonment, neglect
 Need actual notice
 No answer required.
vi. § 39.503  Identity or location of parent unknown; special procedures
— if the parent is missing, the parent must receive notice.
vii. § 39.505  No answer required — Parent does not have to prove anything
because they are presumed to be fit. The burden is on the State.
viii. § 39.506  Arraignment hearings — Parents are arraigned on civil. They
are quasi criminal, that’s why parents entitled to attorney. They are at risk of
losing their child.
 Parent has three options: (1) admit allegations, (2) deny allegations,
or (3) consent—consent to the status of the child being dependent, not
consent to the abuse allegations.
 (1) and (3) go to disposition.
a. Disposition: a placement or a case plan.
 (2) goes to trial and it will be a presentation of facts and evidence to
be proven by preponderance of evidence.
ix. IN ALL THIS, THE PARENTS’ RIGHTS ARE STILL INTACT. Do not say that
parental rights terminate in an arraignment hearing. The kids are dependent
upon the care of the State.
d. PART X TERMINATION OF PARENTAL RIGHTS:
i. § 39.802  Petition for termination of parental rights; filing; elements
— (4) A petition for termination of parental rights filed for an advisory
hearing, then trial.
ii. § 39.8055  Requirement to file a petition to terminate parental
rights; exceptions — (1) The department must file a petition to terminate
parental rights within 60 days after any of the following if:
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 iii. § 39.806  Grounds for termination of parental rights —
 (1)  Grounds for the termination of parental rights may be established
under any of the following circumstances:
a. (a)  When the parent or parents have voluntarily executed a
written surrender of the child and consented to the entry of an
order giving custody of the child to the department for
subsequent adoption and the department is willing to accept
custody of the child (A surrender gives State the parental rights,
it must be accepted by Judge and it is nonrevocable, and it is
not effective upon signature.)
i. vs. consent used in Ch. 63 Adoption, this is different
because you can give consent to anyone for the sole
purpose of adoption, not just State. There is a limited
window where you can change your mind or withdraw
consent.
b. (d)  When the parent of a child is incarcerated.
c. (f)  The parent engaged in egregious conduct (like sexual
abuse, it goes straight to TPR) or had the opportunity and
capability to prevent and knowingly failed to prevent egregious
conduct that threatens life, safety, or physical, mental, or
emotional health of the child or child’s sibling. Proof of a nexus
between egregious conduct to a child and the potential harm to
the child’s sibling is not required.
iv. § 39.807  Right to counsel; guardian ad litem — Required by statute.
v. § 39.809  Adjudicatory hearing — (1)  In a hearing on a petition for
termination of parental rights, the court shall consider the elements required
for termination. Each of these elements must be established by clear and
convincing evidence before the petition is granted.
vi. § 39.810  Manifest best interests of the child — *So to TPR: (1) must
have grounds and (2) must prove it’ll be in child’s best interests.
 NOTE: know the difference because dependency process (that’ll have a
case plan and can take up to 2yrs) and TPR (which is from the get go).
vii. § 39.811  Powers of disposition; order of disposition —
 (6)  The parental rights of one parent may be severed without
severing the parental rights of the other parent only.
e. CHAPTER 751 TEMPORARY CUSTODY OF MINOR CHILDREN BY EXTENDED
FAMILY
i. This is entirely private – no DCF; Must be a relative within 3rd degree
contiguity.
ii. § 751.02  Temporary or concurrent custody proceedings; jurisdiction
iii. § 751.03  Petition for temporary or concurrent custody; contents —
Need consent or (if parents object) need clear and convincing evidence.
 No services, no case plan, nothing: just a court order.
f. The Child Welfare System:
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 i. Santosky v. Kramer: Social Services removed Tina from the home of her
parents. Later, their son John was also removed from their home, again
based on neglect. Their third child Jed was also removed 3 days after his
birth, on the grounds of imminent danger to his health. Social Services
procured training for the parents, relating to child welfare, psychiatric health,
and vocational issues. Their participation was minimal, but they maintained
some contact with their children. Social Services petitioned to terminate the
parental rights. Against the objection of the parents, the court reviewed the
evidence under the statutory standard of “fair preponderance of the
evidence.” Trial court ultimately decided that the parental rights should be
permanently terminated. The couple appealed unsuccessfully.
 RULE: Preponderance of the evidence is too low a burden of proof to
protect the constitutional interests implicated in a proceeding to
terminate parental rights.
 In FL, counsel is appointed. A heightened standard of proof can
be adopted in TPR cases.
ii. Adoption and Safe Families Act was enacted in response to criticisms that
children were too often languishing in foster care because of an
overemphasis on parents’ rights. ASFA eliminates the requirement that the
state undertake reasonable efforts to reunify the family in certain severe
cases (torture, sexual abuse), and it aims to facilitate adoption by reducing
the amount of time children spend in foster care.
 The period triggering permanency hearings to no later than 12 months
after the child’s entry into foster care.
 State must seek TPR for children who have been in foster care for 15
of the last 22 months.
a. Petitions do not need to be filed if (a) a relative cares for the
child, (b) state agency believes the termination would not be in
the best interests of the child, or (c) state agency has failed to
provide family with reunification services.
iii. Alternatives: FL = Must use “least intrusive means” before going to
termination of parental rights.
g. Adoption Surrender:
i. There is a two-step process: it must TPR first under Ch. 39 and then adopt
under Ch. 63.
ii. Scarpetta v. Spence-Chapin Adoption Service : Mother completed a
surrender process to give her infant up to an adoption agency; 5 days later
she changes her mind.
 Not the law today nor the law in FL.
iii. In FL, a surrender of TPR is nonrevocable.
iv. FL CH.63: if you’re a birth mother and you signed a consent for adoption,
you have 48hrs to revoke consent or at release from hospital (so only for
newborns [kids under 6 months]), whichever comes first.
 Can’t get consent until after birth of child (from the mom).
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  If child is over 6 months = timeline changes; you have 3 days or until
child has been placed.
v. So, in FL: she would be out of luck, she came back after the 48hrs.
vi. We use contract defenses like fraud or duress; immaturity is not a defense,
nor is confusion, mistake, or change of heart.
vii. Putative father registries eliminate the need for adoption notification or
consent for a man who failed to take the initiative by registering.
 If birth father wants to stop adoption, he must (1) register and (2)
come forward immediately to enforce rights (signing affidavit of
acknowledgment of paternity or, if mom won’t let you acknowledge,
sue to enforce and go through paternity, child support, and time
share).
 FL places the risk of fraud on men only.
h. Adoption Disruption and Dissolution:
i. In re adoption of M.S. (2010) : Oversea adoption occurred; when family
returned to U.S., they did not ‘re-adopt’ in CA. Parents now want their state
(CA) to undo the foreign/Ukraine adoption because they don’t’ want the sick
kid anymore.
 First, the foreign adoption must be compatible with U.S. law as per
UCCJEA so that the child can be brought to the U.S. After that, many
people go back to their home country and “re-adopt” under that’
country’s laws, even though not technically required, given the
absence of full faith and credit for decrees from foreign countries.
 Adoption failures occurs either when the child is removed before the
adoption is final (disruption) or when a final adoption is abrogated or
annulled (dissolution).
i. Shared Rights and Responsibilities: The Challenge of "Community Parenting"
i. Groves v. Clark (1999): this is an ‘open’ adoption, where the child knows
and has relationship with birth parents and adoptee parents. They are
permissible but not enforceable, even if fraud. When I saw fraud, I mean:
let’s say adoptee parents say (in writing) that we will give birth parents time
with the child, the adoptee parents adopt the kid, and then they tell birth
parents saying nope you can’t see the kid. Birth parents can’t sue on that
writing to retract the adoption, and probably can’t enforce it either b/c court
will favor the BIC of the kid and will probably go with the adoptee parent bc
it’s their kid now. Birth parent out of luck.
 Secrecy in adoptions: new birth certificate for the child, the child takes
the adoptee parent’s name, adoption papers sealed.
ii. Court have rejected adult adoptees’ constitutional challenges to sealed-
records laws, concluding that the right to privacy does not include a
fundamental “right to know” one’s biological parents and that adoptees do
not constitute a suspect class for equal protection purposes.
iii. Foster care: divides rights and responsibilities among parents, the state, and
foster parents; is supposed to offer the advantages of a nurturing setting for
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 kids in need while maintaining state supervision and promoting reunification
with the family of origin. Foster parents are service providers who receive $
from the state, they don’t have rights to children.
j. Emancipation:
i. State v. C.R. & R.R. (1990):
ii. In FL, parents are financially responsible for their kids. When kids
are emancipated, parents’ obligation end. There is no involuntary
emancipation. Parents cannot involuntary emancipate kids. If kid
wants to emancipate, he must petition the court, and the kid must be
able to support ($) himself.
 Emancipation is final – one cannot change mind later.
iii. FL Stat 743.015: (1) Emancipation applies to children over age 16; (2)
Children under 16 may petition through guardian or next of friend.
iv. FL Stat 743.065: Minor child that is pregnant may get medical care.
v. FL Stat 743.066: If adjudicated emancipated, then the minor is treated as
an adult.
k. Statute 63 Adoption:
i. The only fault basis in which a child is made available for adoption is
abandonment; terminate a parent’s right involuntarily.
 Abandonment is a basis for Ch. 39 and Ch. 63.
 The only two grounds for adoption are consent & abandonment.
ii. A birth mother can sign an adoption document—valid consent, and it is
irrevocable. There is no time for reflection/cooling-off period.
 This can only happen after birth. It will be unenforceable prior to birth.
iii. As a matter of contract law, a birth mother has the right to keep the child in
every single case. There is no specific performance. The only remedy the
prospective parents have is to sue the birth mother for the breach of contract
and recuperate the money.
iv. International Adoption: the adoption occurs under the domestic law of that
country and once the final judgment is ordered, the parent can bring that
foreign judgment, and have it recognized and registered in the U.S.
v. § 63.032  Definitions — Abandonment is the ONLY involuntary grounds.
This does not mean this is an adoption situation, you need someone to
request to adopt.
vi. § 63.037  Proceedings applicable to cases resulting from a
termination of parental rights under Ch. 39.
vii. § 63.042  Who may be adopted; who may adopt — The law now allows
single and homosexual people to adopt EXCEPT two unmarried or single
individuals. Adults can be adopted.
viii. § 63.0423  Procedures with respect to surrendered infants —
ix. § 63.0427  Agreements for continued communication or contact
between adopted child and siblings, parents, and other relatives —
This is open adoption.

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 x. § 63.053  Rights and responsibilities of an unmarried biological
father; legislative findings — You must come forward in an efficient and
prompt manner.
xi. § 63.054  Actions required by an unmarried biological father to
establish parental rights; Florida Putative Father Registry — Must
register prior to date of TPR motion.
xii. § 63.062  Persons required to consent to adoption; affidavit of
nonpaternity; waiver of venue — Who is required: (1) someone with
parental right = always mom, sometimes dad; (2) “Consent of an unmarried
biological is not required or less than 6 months.”; (3) A minor who is older
than 12 years old must consent to his adoption.
xiii. § 63.063  Responsibility of parents for actions; fraud or
misrepresentation; contesting termination of parental rights and
adoption — Fraud by the birth mother is not a defense to TPR or to vacate
adoption. The burden is on the father.
xiv. § 63.064  Persons whose consent to an adoption may be waived —
The timeline to get consent from the birth mother is 48 hours after birth or
discharge.
xv. § 63.082  Execution of consent to adoption or affidavit of
nonpaternity; family social and medical history; revocation of
consent —
xvi. § 63.125  Final home investigation — If you are adopting, and you have
consent, and you are also a family member like a grandparent or stepparent,
there is no home investigation. The relative must prove at the final hearing
by clear and convincing evidence that he is relative.

Chapter 64 Partition of Property (The legal vehicle for a forced sale)

(a) § 64.011  Jurisdiction — All actions for partition are in chancery.
(b) § 64.022  Venue — Partition shall be brought in any county where the lands or
any part thereof lie which are the subject matter of the action.
(c) § 64.031  Parties — The action may be filed by any one or more of several
joint tenants, tenants in common, or coparceners, against their cotenants,
coparceners, or others interested in the lands to be divided.
(d) § 64.041  Complaint — The complaint shall allege a description of the lands of
which partition is demanded, the names and places of residence of the owners,
joint tenants, tenants in common, coparceners, or other persons interested in
the lands according to the best knowledge and belief of plaintiff, the quantity
held by each, and such other matters, if any, as are necessary to enable the
court to adjudicate the rights and interests of the party. If the names, residence
or quantity of interest of any owner or claimant is unknown to plaintiff, this shall
be stated. If the name is unknown, the action may proceed as though such
unknown persons were named in the complaint.
(e) § 64.051  Judgment —The court shall adjudge the rights and interests of the
parties, and that partition be made if it appears that the parties are entitled to

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 it. When the rights and interests of plaintiffs are established or are undisputed,
the court may order partition to be made, and the interest of plaintiffs and such
of the defendants as have established their interest to be allotted to them,
leaving for future adjustment in the same action the interest of any other
defendants.
(f) § 64.071  Sale where nondivisible—
(i) (1)  ORDER OF SALE—If the commissioners report that the lands of which
partition is directed are so situated that partition cannot be made without
prejudice to the owners and if the court is satisfied that such report is
correct, the court may order the land to be sold at public auction to the
highest bidder by the commissioners or the clerk and the money arising from
such sale paid into the court to be divided among the parties in proportion to
their interest.
(ii) (2)  CONDITIONS OF SALE—For good cause the court may order the sale
made on reasonable credit for part or all of the purchase money, but at least
one-third of the purchase money shall be paid down unless all parties
consent to credit otherwise. The purchase money not paid down shall be
secured by a mortgage on the land and such other security as the court
directs.
(iii) (3)  CONFIRMATION OF SALE AND CONVEYANCE.—The sale shall be
reported to the court, unless sold by the clerk under s. 45.031, and the
money arising therefrom paid into court and the sale approved by the court
and a conveyance ordered before any conveyance pursuant to the sale is
made.
(g) § 64.081  Costs; taxes; attorneys’ fees—Every party shall be bound by the
judgment to pay a share of the costs, including attorneys’ fees to plaintiff’s or
defendant’s attorneys or to each of them commensurate with their services
rendered and of benefit to the partition, to be determined on equitable principles
in proportion to the party’s interest. Such judgment is binding on all his or her
goods and chattels, lands, or tenements. In case of sale the court may order the
costs and fees to be paid or retained out of the moneys arising from the sale
and due to the parties who ought to pay the same. All taxes, state, county, and
municipal, due thereon at the time of the sale, shall be paid out of the purchase
money.
(h)§ 64.091  Personalty—The laws applicable to partition and sale for partition of
real estate are applicable to the partition and sale for partition of personal
property and the proceedings therefor, as far as the nature of the property
permits.
(i) Ex: H and W own land tenants by the entirety i.e. each owns 100% of the land.
When they get divorced, they cannot own land this way.
(i) There won’t be equitable distribution of the home at the divorce unless a
party asks for it. So now they’re tenants in common and own by the part. So
now you partition property b/c the property is not divisible w/o substantial
prejudice to the owners (this is when 1 wants to keep and 1 wants to sell).
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You do a public auction (steps of courthouse). If the H or W wants to bid,
they can bid up to their interest/equity in the home.
1. So, basically this is used to buy someone out.

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Review
 pro 2 essays (will either be a judge deciding or a lawyer giving a client advice)
 UCCJEA – it’s a uniform code. So, if a question asks how does UT’s orders diff. than FL – it
doesn’t.
 Common law marriage elements
 (URISA regulates pensions) QDRO required by law to have employer disburse pension
 Modification of alimony: if alimony was not awarded in the final judgment (not modifiable
by statute or agreement by parties), court loses jurisdiction and it cannot be modified. So,
a guy wins the lottery and wants to modify alimony after final judgment – can’t do it.
o What type of dollar is it? Bridge the gap is not modifiable. Rehab might be.
 Shared and sole parental
 Time share
 Ch. 63 adoption; Ch. 39 dependency; Ch. 61 DOM; Ch. 741 marriage; Ch. 742 paternity;
Ch. 751 relative custody; Ch. 741 DV.
 If there are allegations of abuse, abandonment, and neglect, it can be under 39, 61, 751.
THE HEART IS IN CHAPTER 61. CASE STAYS IN DV DIVISION IF THERE ARE NO OTHER
CASES PENDING, IF THEY FILE DOM, IT GOES TO CH. 61 JUDGE.
 Ch. 61 is a private system whereas Ch. 39 is a public system. IF THERE ARE
ALLEGATIONS OF ABUSE, ABANDONMENT, AND NEGLECT, JUDGE CAN BIFURCATE AND
SEND CHILD COMPONENT CAN BE SENT TO ANOTHER COURT/JUDGE.

40 MC; 1 Essay with issues.

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