Family Law

Under the general venue statute, an action may be brought in the:

(1) county where the COA began, (2) where the Respondent resides, or (3) where the property in litigation is located.

Attack on Residence - Motion to Dismiss for Lack of Subject Matter Jurisdiction, accompanied by either:

(1) filing a motion to dismiss the petition for dissolution of marriage; or (2) in the answer for the petition for dissolution of marriage.

For FL residents, Personal Jurisdiction can be obtained by:

(1) personal service on the respondent within the State of Florida; (2) substitute service on the respondent within the State of Florida; or (3) service outside Fla. pursuant to the long arm statute.

Personal Jurisdiction can be conferred by such things as:

(1) physical presence in the forum, (2) consent from a waiver or contractual forum selection clause; (3) domicile; or (4) minimum contacts, which can confer general or specific jurisdiction.

Exceptions for Residency Requirement:

(1) separate maintenance action; (2) domestic violence actions; or (3) parental responsibility actions.

The mandatory essentials of a valid marriage are:

(1) the parties are legally capable of contracting to marry; (2) mutual consent or agreement, and (3) an actual contract in the form prescribed by law. Mandatory requirements must be satisfied or the marriage is deemed to be invalid.

The Choice of Law Analysis is a 3-step process:

(1) whether the conflicting laws are substantial or procedural; (2) classify the substantive area of law (contract, tort, property) applicable to the conflicting laws since each area has its own provisions; and (3) apply the appropriate analytical provisits to the conflict.

General Jurisdiction

(dispute blind) exists when the number and quality of the Respondent's contacts with the forum state and sufficiently substantial, systematic, and continuous that one may litigate any disputes in the courts of the forum, whether or not the dispute is entirely distinct from those activities of the contacts.

Specific Jurisdiction

(dispute specific) exists when the contacts within the forum are related to the dispute seeking to be adjudicated.

Reasons for annulment

- Social and religious reasons --> less stigmatizing than divorce - Party does not want to pay alimony

Challenges to Personal Jurisdiction

1) Motion to Dismiss (or in the answer) for Lack of Personal Jurisdiction 2) Insufficiency of Process, where the summons served on the respondent was fault 3) Or insufficiency of service of process, where the process was incorrectly served or not served at all In Florida, there is no distinction between a special and general appearance.

Out of State Property Awards

A State Court can order a party to act on a property located in another state IF the Court has Personal Jurisdiction over the party.

Voidable

A ______ Marriage is one that is initially invalid but remains in effect unless terminated by court order.

The Marriage

A marriage formality is a point of practice that must be observed to achieve a particular legal result. The policy behind such formalities are to safeguard the integrity of the marriage and the meaningful family relationships.

Putative Marriage:

A marriage in which either the husband or the wife, or both, believes in good faith that the two are married, but are not formally married for some technical reasons. The marriage is valid so that the innocent party is allowed the civil effects of a valid marriage. However, this marriage terminates upon a party's loss of a good faith belief that he or she is married.

Express Consent - (Physical Presence in the forum)

A party's express consent to the jurisdiction of local courts serves as a sufficient basis for in personal jurisdiction.

______________ is required by the trial court on the Motion to Dismiss to resolve the Residency issue.

An Evidentiary Hearing

Physical presence in the forum:

Any person who is present within a state is subject to the territorial jurisdiction of the Court within that state.

Subject Matter Jurisdiction - Rule

Authority/power to decide a particular kind of controversy. Can NEVER be waived. Objections can be raised at any time. Over a DOM and all matters relating to the DOM are vested in the FL. Circuit Court, EXCEPT for summary dissolution in County Ct. if there are no kids involved and all property has been divided.

The Court MUST have personal jurisdiction over the Respondent in order to enforce _________.

Court Awards - such as alimony, child support, or attorney's fees in any proceedings for dissolution of marriage.

Notice/Service of Process

Due ________ ______ must be reasonably calculated to reach the Respondent and give notice of the action and the opportunity to be heard. There are certain technical requirements that must be satisfied for proper service which can be accompanied by mail or by personal service/hand delivery.

Challenging the Validity of a Void Marriage:

Either party or even a 3rd person may challenge the validity of a void marriage at any time.

Residence

Fl requires actual presence, coupled with an intent to make FL a permanent place of residence (domiciled). --> burden of proof lies on the Petitioner to show by clear & convincing evidence at the time of the final hearing.

Subject Matter Jurisdiction Policy

Florida has a compelling state interest in requiring a provable duration residence so that Florida can avoid intrusions upon the rights and interests of a sister state that might otherwise be paramount, while still ensuring the integrity of its jurisdictional decrees as against future collateral attack in distant courts

Long-Arm Statute (only if presented in Facts)

For a court to exercise Personal Jurisdiction over a nonresident, there must be a statute authorize it to do so and sufficient contacts between the Defendant and forum state to satisfy traditional notions of fair play and substantial justice. State legislatures have generated a variety of statutes, so the language used by the legislature must be carefully scrutinized to ensure that it applies to the particular disputes.

Systematic and Continuous Activity

If a Respondent engages in _________________ in the forum state, the Court may find this activity as a sufficient basis for exercising personal jurisdiction over any cause of action against the Respondent, whether the cause of action arose from the in-state activity or from activity outside of the state.

Claim arising from activity in state:

If a Respondent's ____ activity is less than systematic or continuous, but more isolated, personal jurisdiction over the Respondent will be proper only for causes of action that arise from that _____ activity.

Article 4 section 1 of the Constitution - Full Faith and Credit Clause:

If a valid marriage in Texas, Florida must also view as valid. Florida will recognize forum Common law marriage unless it contravenes the strong public policy of the forum

Fairness

In addition to finding minimum contacts with the forum, an exercise of Personal Jurisdiction over a Respondent must comport with traditional notions of fair play and substantial Justice.

Procedure for Annulment:

In order to satisfy the grounds for _____, the petitioner must be the innocent party. The procedure would begin with this Petitioner, who would File a Petition in Domestic Relations Court / Action for Declaration of Nullity.

Territorial Jurisdiction

In rem Jurisdiction & Personal Jurisdiction

Void when:

Kinship/Incestuous; Mental Incapacity (non compos mentis); Physical Incapacity; Existing Marriage

Main Subject Matter Jurisdiction Requirements

Most states have statutes governing divorce proceedings that require Petitioner to show minimum period of residency. A person seeking a divorce must offer proof that he/she has resided & become domiciliary with the state to the required length of time. If one spouse meets the residency requirements of the state & of the county, a divorce obtained in the state is likely valid in other jurisdictions, even if the other spouse resides elsewhere.

Ratified

Once _____, a voidable marriage may not be annulled, unless the party ratifying the marriage proves that he/she was not aware of all the material facts and therefore did not knowingly waive his/her rights.

Citizenship

Presence of the petitioner in the forum is all that seems to be necessary i.e., it gives jurisdiction over the marriage relationship (the marital res). The marriage travels with the parties!

Minimum Contacts

Procedural Due Process requires ONLY that in order to subject a Respondent to a judgment in personal, if he is not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not "offend traditional notions of fair play and substantial justice," so that the Respondent could reasonably have expected to be brought into court.

In State Property Awards

Property awards require in rem jurisdiction, so the property must be located in the state. The court CAN award marital property located inside the state to one of the parties (or order it to be sold and distribute the proceeds) even if the Court does not have personal jurisdiction over the respondent. However, the Court CANNOT award property located outside of the state to one of the parties unless the Court has personal jurisdiction over both parties.

61.021

Residents must reside and be domiciled in Florida for 6 months (how to prove: tax returns, issued ID) Domicile: a place where you intend to remain/return; person can only have 1 permanent place (me with Florida while at UCLA) Residency: can have many residencies

Contact with the Forum State:

Specific and General Jurisdiction refer to the type of minimum contacts the Respondent has with the state.

Purposeful availment and foreseeability

The Court also looks to the ________ and ________ to determine the sufficiency of minimum contacts.

Implied Consent - (Physical Presence in the forum)

The Court may exercise in personal territorial jurisdiction over a defendant who ____ consents to the jurisdiction in the forum state by virtue of the acts that that party commits within the state.

Fraud

The _____ must be of an extreme nature pertaining to one of the essentials of the marriage and misrepresentation must pertain to present not future facts.

State of Mind

The parties had the ______ voluntarily entering into the relationship with the intent to marry at the time. In other words, the marriage was not a sham.

Capacity

The parties had the capacity to enter into the marriage. The parties may either be hetero or homosexual, not to be married to someone else, not to be related as defined by local statute, be of the age where local law permits them to marry, and capable of understanding the nature of the act.

Gifts in Contemplation of Marriage

When a gift is given on a condition that the two people were going to get married, and the condition precedent of marriage fails, the gift must be returned to the giver. For example, a traditional gift of an engagement ring must be returned to the giver if the condition precedent of marriage fails, regardless of whose fault it may have been.

Void

a marriage that is invalid from its inception cannot be made valid and can be terminated by either party without obtaining a 1) divorce or 2) annulment. A relationship that the law does not recognize under any circumstances CANNOT later be legally ratified. In other words, the marriage is invalid and void based on strong public policy or illegality.

Grounds for Annulment

any cause that has prevented the parties from contracting a valid marriage (incapacity - ex: age; prior marriage still existing; unsound mind; fraud; force; and physical incapacity). These grounds are impediments existing BEFORE the marriage.

In order for the marriage to be valid, the marriage must:

be solemnized and the couple intending to married must obtain a marriage license from the Clerk of Court. Once the license is obtained, most states impose a short waiting period between the date sought and the date of the marriage ceremony. The waiting period may usually be waived or modified by the judge in an emergency or under unusual circumstances.

6 month of residence

by 1 party required for dissolution. One of the parties must reside in the state of Fl for 6 months before filing the petition for DOM and have the intent to remain a resident of the state at the time of filing.

Elements for Common Law Marriage:

i. Capacity: ` ii. Intent can be inferred: Present mutual intent agreement to permanently enter the marriage relation to the exclusion of all other relationships; and iii. Open and Notorious Cohabitation: Public recognition of the relationship as a marriage and public assumption of marital duties, and cohabitation iv. Open and Notorious Cohabitation Recognized by Public/Community If one of these elements is missing, will seek an annulment.

A marriage is voidable when:

i. One or both parties to the marriage is under disability ii. Neither party was aware of the disability at time iii. Possible for parties to ratify marriage after impediment has been removed.

Common Law Marriage

is an informal consensual marriage, where parties do not follow formal requirements. The concept which has borrowed from common law, is banned in many states by statute, including Florida.

For non-residents, Personal Jurisdiction can be obtained only by:

personal service within Florida, consent, long-arm jurisdiction, or minimum contacts.

Personal Jurisdiction

refers to the degree of "presence" in the forum jurisdiction which confers upon the Court the power to exercise its jurisdiction over parties and things.

Venue

refers to the geographic location within a judicial jurisdiction in which a case is to be tried. _______ principals are aimed at the selection of the most convenient and local court within a given court system.

Annulment:

signifies that no valid marriage existed, whereas a divorce or dissolution of marriage signifies the termination of a previously existing valid marriage.

Heart Balm Statute

state law that abolishes the rights of actions of alienation of affections, breach of promise to marry, criminal conversion, and seduction. If a petitioner brings these COAs then she has committed a 2nd degree misdemeanor.

Venue is determined by:

statute, which limits where the suit may be brought, but parties can stipulate or contract to an otherwise improper venue.

Majority View states that only:

substantial compliance with state marriage statutes is required for a valid marriage. The party's reasonable expectations should be recognized even though there may be an imperfection in the license or official.

(Physical Presence in the forum) Domicile is created by:

the concurrent establishment of physical residence in a state and the intent to remain their indefinitely.

No need for minimum contacts when:

the defendant is in the state temporarily and served with process for a COA unrelated to his brief presence in the State.

in rem jurisdiction

the jurisdiction over a "res" located within the state. The State Court has the power to dissolve a marriage even if the respondent is not a resident of the state and the Court has no personal jurisdiction over that respondent. The Court is merely adjudicating the status of the marriage, not creating or dissolving specific duties or obligations.

Objections to venue are waived unless:

timely asserted.

The policy behind venue is:

to protect the Respondent from inconveniences.

The marriage must be solemnized:

which means that there is the performance of a formal ceremony (such as a marriage ceremony) before witnesses, as distinguished from a clandestine ceremony. In Florida, the marriage must be _______ by a person listed in the statute.