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The posts in this blog focus on Florida family law issues including divorce , child custody/time-sharing, child support, mediation, domestic violence, parenting coordination, parenting rights of same-sex couples, and other family law topics. The posts discuss these topics under Florida law, and also focus on the family law local rules in Broward, Dade and Palm Beach Counties.

I hope the information here is helpful for you.

One reason some people develop estate plans is to deal with possible estate taxes.  The need for this kind of planning was reduced for most people when the estate tax exemption was increased to $11.58 million per person in 2018, but there are other important things you can accomplish with estate planning for your spouse and children (There is the possibility also that the exemption amount could be reduced — it was $5.4 million in 2017, $3.5 million in 2009, and $1 million in 2003.  Although $1 million is a large amount, it is an asset amount many couples reach in their lifetimes if you include the value of a home and each spouse’s retirement account).

A common plan for couples is for the couple’s assets to go to the surviving spouse/partner if one of you dies.  Often that’s what you’d want – for the assets to go to the survivor so that he or she is well taken care of, and for them to then do what’s best for the children. 

One issue in Florida family law that can cause a problem is what is called “commingling” of assets.  If your spouse receives assets when you pass away, later remarries and ends up putting any marital funds from the new marriage into the same account with the inherited money, all of the inherited funds can be then converted to marital funds.  This could be fine in many circumstances – the surviving spouse continues providing for him or herself and the children, but a problem arises if the spouse then gets divorced.  Half of these marital funds, including half of the inherited money can go to the new spouse as part of the divorce.  This will be the default result under Florida law that can be difficult to avoid if the inherited funds have not been kept separate.  It is a result that both spouses in doing their estate planning, and probably especially the surviving spouse at the time of a future divorce, would not want

There are some divorces in which you are able to settle all of the issues quickly and easily, often without attorneys. There are Florida Supreme Court approved forms online with many of the forms you need to complete a divorce, including a form marital settlement agreement, parenting plan, and divorce petitions.

In cases where there are disagreements, the disputes can center around children’s issues, financial issues and often both. I believe a process called collaborative law or collaborative divorce is clearly better to resolve children’s issues where possible, versus engaging in a “custody battle” in court – which can be an unpleasant, hostile and destructive process for both the parents and children.

I believe the collaborative process is far superior for resolving financial issues as well, especially for high net-worth or high asset value cases.

In a recent appeals court decision in Minnesota, the Court decided that the State’s telephone stalking statute was unconstitutional, because it was “facially overbroad”, i.e. because in addition to penalizing conduct which could appropriately be labelled as criminal, it could be read as also penalizing 1st Amendment free speech, protected by the U.S. Constitution.

The particular case before the Minnesota Court involved a parent yelling and cursing or being threatening, during telephone calls and voicemail messages for child protection workers and other county employees.

The First Amendment issues are of course important – they are relevant also regarding what kinds of things you can post online about businesses or other people, but the issue I wanted to raise here is the importance of not reacting immediately to emotions in a family law case.

Continued from Part I, Non-Competition Clauses and Valuing a Business in a Divorce.

Part I of these posts addressed general issues in business valuations, and some of the special issues in valuing a business for a divorce. Which brings us to the main topic of these posts, how a buyer’s requiring a non-competition clause as part of the purchase of a business, affects and relates to calculating personal goodwill and the value of the business.

Generally, when someone buys a business, they don’t want the new owner opening up right down the street and siphoning away business. So, a non-competition clause prohibits a seller from doing that for a certain period of time, within a certain geographic area.

One of the significant issues in some divorces is valuing a business operated by one spouse. A business can be a valuable asset, and valuation issues can be complicated and produce a fair amount of dispute.

Before getting into non-competition clauses as part of the sale of a business, and how they relate to valuing a business in a divorce, first a more general discuss of business valuations, and particular issues in business valuation relevant for a divorce.

General Issues

Although I’m not sure this happens for all divorcing couples, an article in Psychology Today explains that hating your spouse at some point during a divorce is common and normal. Writings out of the Mental Research Institute in California, I believe back in the late 70s/early 80s, described it in terms of “attributions of madness and badness”. When someone does something that causes sufficient distress (these days that can be disagreeing with a social media post), we don’t think very highly of the other person – there must be a problem with them as a human being – a bad person, or “BAD” as a particular person active on social media likes to post; or even more, there is probably something wrong with them.

In this context, I find it actually pretty remarkable how facilitators in collaborative law cases (our mental health professionals, or “MHPs”) are able to keep communication on a positive track. A large part of it I believe is because people who choose collaborative law self-select to try to participate in a successful process, and each has some level of commitment to that.

I think it’s the approaches MHPs use, the orientation and commitment of the attorneys trained to collaborate, and the neutral financial professionals trained to seek fair solutions and results for both clients. It’s probably all of this and more – the entire process and contribution of everyone and the process – sometimes described as a crucible.

A Tampa television station recently reported on parents seeking to relinquish custody of their children, in order to get them mental health services within Florida’s dependency system. Although fights in Florida family courts between parents are more frequently over who gets custody or more time-sharing, rather than parents relinquishing custody, the Tampa story reflects how far parents are pushed sometimes in trying to provide for their children.

A parent or any person pushed to their limits will sometimes try almost anything, which raises the question – does the normal process in divorce court fights – accusations, attacks, financial and emotional pressure, make sense as a way to handle family disputes, especially involving children.

Although many attorneys and parties in divorce or other family law litigation seek nothing more than to resolve the case reasonably and fairly, the strategy in litigation can often be to pressure the other side from as many angles as possible. It’s viewed as a war – in fact the book The Art of War by Chinese author Sun Tzu is often viewed as a template for litigation, or important reading underlying the approach of good litigator. I recall also a line from a handbook on negotiation, I believe it was a Florida Bar continuing education publication, describing the essential elements of negotiation as something along the lines of communicating to an opponent how you can harm them, and then how you can help them.

An article came out recently listing several apps which can make communication between divorced spouses or separated parents easier, especially communicaton about children’s issues.

One of the things I like about the collaborative law process is that it can be a good start for parents with conflict regarding children’s issues to begin communicating differently, to find a way to divorce more amicably, and also avoid some of the ongoing conflict that can come up in family law cases. There are some divorces where the court battles after the divorce continue for years. In addition to the cost and toll on the parents, at some point the conflict can have a negative effect on the children.

Collaborative divorce can be a flexible, open process, but it can also be a highly structured process, with a mental health professional (MHP) and two collaboratively trained attorneys there to manage the process – which involves each spouse having a chance to name their concerns and interests – what’s important to them.

An issue has recently been addressed in the courts of another State that no longer arises in Florida, whether it is possible for parents to have joint custody or for there to be “co-domicilliary” parents — the phrase used in the litigation in Louisiana where this recent case arose, Hodges v. Hodges.

Florida in it’s family law rules and statutes has for the most part done away with the concepts of “custody”, or designating who is a primary residential parent.  In Florida, there is a determination of “parental responsibility” and then of what “time-sharing” each parent will have.  Time-sharing is the time — which days, nights, holidays the child(ren) spend with each parent; and parental responsibility is who makes decision about the significant areas of a child’s life — for example, education, religion, school.

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This post, like some of my earlier posts regarding computer software for family law attorneys, focuses not on family law topics themselves, but rather on a recent switch I made to Apple computers in my office, and information for anyone considering doing the same.

I had gotten to the point where, to say the least, I had begun to become a bit frustrated using the computer in my office — programs slowing down, things not always working. I looked at solving the problem by buying a new windows pc — I’ve used windows computers for a long time; and up until the past several months had not thought much of changing.

As I looked at new computers, I started to consider an Apple computer. They’re really pretty machines; the operating system seemed enjoyable to use; I wasn’t liking the new Windows operating system. One point of view could be that it’s not so important to enjoy using the computer you use; it’s a work tool; work’s not supposed to be enjoyable — that’s why they call it work. But there is something to having nice things, a pleasant work environment/experience, even for attorneys; or maybe even a Feng Shui notion of organizing a work environment in a positive way.

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