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.

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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I’ve written before about the role of a Guardian ad Litem (GAL). I want to focus in this post on some of the reasons you might consider seeking appointment of a GAL for your case, and the process for getting a GAL. I’ll use the terms Guardian, Guardian ad Litem and GAL interchangeably here.

Your attorney and the other parent’s attorney (or you and the other parent if you’re both unrepresented) can agree on an agreed order appointing a Guardian ad Litem for your time-sharing case, and send the order to the Judge for his or her signature. There are procedures you’ll need to follow if you’re doing this on your own – you can consult with an attorney, and there are usually case managers assigned to give some direction to clients who are representing themselves. If both sides don’t agree to appointment of a GAL, one parent/attorney can file a motion for appointment of a Guardian ad Litem, and have the motion heard and decided by the Court. Sometimes, there can be agreement on having a GAL appointed but not who to select, and the parties can submit an agreed order to the Judge for appointment of a Guardian, but leave a blank in the order for the Judge to select which GAL to appoint. The Judge might want to see both parties or attorneys in court to hear from both sides, before appointing the Guardian. Continue reading ›

So you are interested in a collaborative divorce – in keeping the divorce from becoming a fight in court, and believe it is a process that would work for you and your spouse. A next question is whether your spouse is interested in this collaborative approach also.

You can find more information about Collaborative Divorce by following that link, and by reading through some of the other posts about this topic on this blog. You can also visit the website for the Collaborative Family Law group in Broward County or Collaborative Family Institute in Dade County.

One Option

One first step in talking with your spouse about Collaborative Divorce, is to describe Collaborative Divorce as one option for the two of you to consider. You can give your spouse the web site address for the Collaborative Divorce organization in your county  The web site will have information about collaborative divorce, and the contact information for collaborative divorce professionals in the county. Many attorney websites will contain information about collaborative family law as well.

Staying Out of Court

You and the other spouse can discuss Collaborative Divorce as way to keep the case out of court.  You ultimately have to go in front of the family law Judge for a final hearing, but the final hearing for an uncontested divorce – where the parties have a settlement agreement, and parenting plan if there are children, settling all of the issues in a case, lasts about two (2) minutes – perhaps a little longer if the Judge takes a minute to congratulate the parties on successfully resolving their case.

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Paradigm Shift may sound to you like a phrase a consultant would use – it reminds me a little of a meeting I was in many years ago, when the consultant in the room talked about different community agencies and institutions “interdigitating”. A paradigm shift, though, as part of a collaborative approach to your divorce or other family law case, might be something you’ll want to consider.

In a Collaborative Divorce, the parties may be in conflict and angry or hurt, but agree to attempt to reach a resolution that is fair to both sides, rather than one side trying to get as much as they can, at the expense of the other side. The parties recognize and understand that ongoing conflict between the parents can damage the children. Your spouse’s attorney will let you know that he or she understands your position and what you’re saying, versus coming after you during cross-examination, or writing nasty pleadings or letters about you.

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Member Of:
Broward County Bar Association
Florida Academy of Collaborative Professionals
Collaborative Family Law Institute
Collaborative Family Law Professionals of South Florida
The Florida Bar