Prenuptial Agreements (requirements) 1 Must be in writing, unless it meets one of the 2 oral agreement exceptions 2 must be procedurally fair

ir 3 must be substantively fair 4 is it enforceable? Not if its involuntary and unconscionable! 5 Defenses to enforcement include: modification of alimony, probate issues, Waiver Provisions in a Prenuptial Agreement 1 is it subject to waiver? 2 direct method test for voluntariness (doig) we are looking for duress, overreaching, coercion, and fraud/misrepresentation 3 involuntary method test for an unfair provision First step requires the plaintiff to prove that there is an unreasonable waiver provision in the agreement. Next, the burden shifts to the defendant to prove that the provision was the product of full disclosure and mutual consent/agreement. Also, the DF must show that at least a general approximation of A & Ls was shown to the PL. Annulment 1 is there a defect in the marriage? 2 is it void or voidable? 3 if its voidable, has the innocent party condoned/ratified the agreement, or has the defect otherwise been cured? 4 Defenses to annulment? Ratification, death of party, equitable estoppel, and laches 5 Any kids? Divorce Jurisdiction 1 Is the action within the ambit of the domestic relations exception to federal jurisdiction? Family law axns are better heard in state court. 2 Are the reqs of SMJ met? Must show domiciliary and durational reqs to assert jurisdiction over the issue. The domiciliary requirement is that the party seeking DOM must prove that s/he lived in Florida for at least 6 months. Florida doesnt require that the 6 months be continuous. As for the duration requirement, Florida requires the party seeking DOM to show that s/he is physically present when filing suit, AND that s/he intents to permanently reside in Florida. The court can look at things such as: drivers license, military duty, ID cards, business locations, 3rd party testimony, and 3rd party affidavits. It is not enough for a party to the axn to swear that s/he lives in Florida. 3 Are the requirements of PJ met? 4 FF & C Article IV, Section 1 Williams 1 and 2 (ex parte reeval of sisters juris determination) Comity doctrine 5 Venue? Waivable

Proper in the county where the marriage was last good NOT the county where one of the parties breached the marriage. In Rem reqs 6 Service? Divorce Practice and Procedure 1 Has one of the parties pled an adequate reason to break the marriage? Irretrievably broken OR party adjudged incapacitated for at least last 3 years 2 Any viable defenses? Parties not married Parties already divorced in another state Marriage not broken 3 Alternatives to DOM? Counseling Continuance (for max of three months) (if there are children) 4 Temporary Relief awards? Parties to a DOM are required to keep the standard of living at status quo while the DOM proceeding is ongoing. This may require temporary relief in any of the following ways: temporary alimony, child custody, child visitation, occupancy of marital property, Paternity Issues: If the putative father wants to challenge the presumption of legitimacy: He doesnt have a statutory right to do so if the childs mother is married to another man, unless the father has established a substantial relationship to the child and has shown commitment to the responsibilities of child care. 1 Has he shown a clear and compelling reason for rebutting the presumption of legitimacy? 2 Has he registered on the putative father registry? 3 Has he established a substantial relationship w/ the child? 4 Has he shown commitment to the responsibilities of parenting? 5 Have both mother and legal father objected? 6 If a Pre-DNA test is ordered, were the requirements met? GAL is an indispensable party Full evidentiary Hearing (White) 7 What were the results of the blood test? Not automatically admissible! Must be brought in through the rules of Evidence. 95% rule Must still show that its in the best interest of the child to overturn the presumption of legitimacy. Court can keep the husband as the legal father for paternity purposes, and have the biological father be the legal father for child support purposes. If the legal father wants to challenge the presumption of legitimacy: 1 has he shown a clear and compelling reason for doing so?

2 Has he brought forth his challenge to paternity before the final judgment in a DOM proceeding? If not, his action will be denied under the doctrine of res judicata, and he is forced to attack the final judgment under 1.540(b). 3 Has the SOL run? 4 years, w/ exception for child support payments. 4 Defenses the legal father can use Estoppel, death of either party, laches, lack of physical resemblance, remarriage and legitimization by wife 5 Mother and others can use the defense of equitable estoppel against the father if the father hold himself out as the dad, and the kid relies. 6 Best interests of the child? If the mother wants to challenge the presumption of legitimacy or order a blood test, she must allege: 1 that she is pregnant or has already delivered a child 2 that the child is or will be declared illegitimate 3 that a named man is the childs father 4 sufficient evidence to aver paternity. 5 otherwise compliant w/ statute If the child wants to challenge the presumption of legitimacy or order a blood test, s/he must bring the axn through next of friend or bring the axn individually once he/she reaches the age of majority. Paternity jurisdiction lies in the circuit court where either the DF or PL resides. PJ is necessary for this type of axn. Attorney fees can be awarded to the prevailing party. Child Custody and Visitation Issues -there are 2 critical areas of parental responsibility. First, there is the decision-making component. Second, there is the residential responsibility component. 1 PJ and SMJ over the parties? 2 What type of decision-making arrangement should the court order to best fit the facts of this case? Shared Parental Responsibility is statutorily presumed to be in the best interests of the child. If is not automatically awarded by the court, but must be pled for during the DOM. The BOP is on the party seeking to avoid shared parental responsibility to prove that this arrangement is not in the best interests of the child. Not the same thing is joint custody, b/c the time arrangement isnt necessarily 50/50. Sole Parental responsibility is statutorily presumed to be against the best interests of the child. It is a court-ordered arrangement where only one of the parties assists the child in the decision-making process. Ultimate Responsibility is the third type of arrangement and can be used by the courts, in combination with shared parental responsibility, if the court determines that one of the parents is best fit to make specific decisions for the child.

3 What type of residential-responsibility arrangement should the court devise? Primary and Secondary residences are the most widely used scheme. This is used if the court determines that the custodial parent (primary residential parent) is willing and able to foster and encourage the childrens contact w/ the non-custodial parent and nurture this relationship. Rotating custody is presumptively against the best interests of the child Joint residential custody Split Residence Time Sharing 4- Are the best interests of the child(ren) promoted? This is the standard issue in ALL child-related issues. Factors: The willingness of the primary residential parent to encourage continued contact b/w the children and the non-custodial parent and nurture this relationship. Parent-alienation syndrome Sexual preference of parent Economic factors Childs preference Domestic violence Any other relevant factors Psychological parent Mental/physical health of parent Religion 5 Visitation Look at best interests of the child Look at convenience to custodial parent Dangerous/threatening nature of visiting parent Restrictions/limitations on visitation? Modifying (must be substantial material change AND promote the best interests of the child!) Equitable Distribution is the notion that all property acquired during marriage shall be equally distributed, upon DOM, no matter the title or ownership of the property. ED is properly analyzed through four distinct steps. 1 Identification of assets and liabilities. Assets must be readily ascertainable 2 Classification of assets and liabilties as marital or non-marital Burden on party trying to show an A or L was non-marital 3 Valuation Fair market value 4 Distribution Start w/ presumption of equal distribution, then consider all relevant factors Marital misconduct not enough, unless it causes depletion of marital assets. Length of marriage

Contribution to the marriage Monetary contributions Non-monetary contributions to the other spouses career above and beyond contributions Special Equity: Must show that the property or money gained before marriage or after marriage, was through non-marital assets or labor. The party must prove beyond a reasonable doubt that a gift was not intended. Special equity determinations are final and not subject to modification, and they are completely distinct from alimony calculations. Landay formula used to determine value of home. Alimony (considered after ED!) 1 Determine the need of the recipient spouse 2 Determine the other spouses ability to pay 3 What type of alimony arrangement is best suited for these parties? Temporary Alimony aka Pendent Lite: interlocutory, and thus modifiable. Used when a impecunious spouse doesnt have the financial resources to defend his or herself. Not waivable! Can be terminated w/out showing good cause once the divorce is granted, the recipient party remarries or cohabitates, or either party dies. Permanent Periodic Alimony: payments paid in defined intervals for an indefinite period of time. This is often used when the spouse assisted the paying spouse throughout his or her career and does not have the youth, experience, or ability to obtain a job that would allow him or her to maintain the current standard of living. Must consider each parties assets and liabilities. Although not mentioned in the statute, courts almost always consider the presence of minor children. The important balance test is that of forcing an adult to support another adult versus facing the reality that the time and effort spent by one spouse assisting the others career detrimentally affect that spouses ability to maintain employment or career opportunities of his or her own. Rehabilitative Alimony: most important consideration is the PLAN! Not to be used if it is unreasonable that the recipient spouse will find sufficient employment w/in a reasonable time that would allow him or her to maintain the current standard of living. Bridge the Gap Alimony Nominal Alimony: used when there is 1) a likelihood of material change, and 2) substantial probability that the change will affect one of the parties needs for alimony. Reserves jurisdiction in the court for future modifications. Cannot be speculative and needs to be relatively certain! Lump sum Alimony: w/in the discretion of the court! Can be awarded w/ permanent periodic alimony to craft an arrangement that would allow for the recipient spouse to closely remain w/in the realm of the same standard of living. 4 Modifying Alimony: not used to reconsider the original award, but to make sure that it is being followed properly. P-permanent m-material u-unforeseen/unanticipated s-substantial i-involuntary c-change in circs