OUR BUSINESS IS WORTH ??

The good or bad news is the value of your business is different for valuation in your divorce than if you and your spouse were happily married and selling it during your marriage.  If you are happily married and selling your business, you would sell it at an arm's length transaction (meaning no "hanky panky") and the price would be what you as a willing Seller accept from a willing Buyer.  For example:  your name is Mr. and Mrs. Joe and Jane Smith and you may own a restaurant known as Smith's Food and Grille, which you own the real estate of your restaurant.  You have a vibrant business and your husband is the main chef and he is known for his special recipes, and the manager/hostess is your husband's sister, who greets every customer when they come in the door, and therefore your restaurant is known for "personal" food because of your husband, and it's a customer's favorite restaurant because it is where they are known by the owner and his family.  You have agreed to sell the restaurant to another couple who will be taking over with the same plan, except that the wife will be the chef and the husband will be the host.  Your husband and his sister have agreed to work in the restaurant for six months during the transition so all the regular customers get to know the new owner at the door, and the new chef understands the recipes 100% so the food tastes exactly the same.  Therefore, because the building is worth $500,000.00 and based on the profit of the business, you have decided to sell the business for $1,000,000.00. Let's assume you sell the business for $1,000,000.00, you put it in a bank account, a year after that you get divorced, and assuming no "boutique" facts in your divorce case, the $1,000,000.00 is divided 50/50 between the two of you. Your husband received $500,000.00 and you received $500,000.00.  HOWEVER, if you are the wife and divorcing with the business intact, you would think that the value of the business would still be $1,000,000.00 and you would think you're entitled to $500,000.00.  This is INCORRECT.  The reason why is "divorce world" is much different from the "real world", either to your benefit or detriment depending on the particulars of the facts in your case; and based on the facts in this case that "personal" goodwill is what is deemed a non-marital asset (meaning you are not entitled to any of the value of the business related to your husband's personal goodwill versus "enterprise" goodwill, which is a marital asset, (meaning you are entitled to a presumptive one-half of that value).  Because the business is directly related to your husband's personal skill in the kitchen, and his sister would not continue working with any potential new owners (as the sister testified at her deposition) and your husband and sister have stated they would refuse to sign a "non-compete" agreement if the business was ordered for sale.  Further note, it is likely an expert would determine the real property value worth $500,000.00, but the value of the business is worth only the assets themselves (often referred to as "liquidation" value) versus "capitalization" income approach value, and therefore, the operating account, food in the freezer and miscellaneous equipment which is not fixtures, tables, chairs, etc., value at $50,000.00, then the value of the business is $550,000.00 and you would receive only $275,000.00 as the wife versus $500,000.00 if sold and then divorced.  Your husband has received a windfall of $225,000.00. 

This is a perfect example of how facts are different in "divorce world" versus "real world" and how it can be of the utmost importance to seek consultation with a divorce attorney if you feel a divorce may be on the horizon in order to understand what potential future fact pattern is in your best interest (and of course the best interest of your children) at the first sign of marital discord.

Namaste'

STOP IT!

(NOTE:  This is a recent publication I submitted to a legal journal with the intention for Attorneys to read.)

 

Really.  You just said what about your client?  "He in an a**hole", "She is a bi***", "He is mentally ill", "She is a skank".

I encounter on a daily, weekly, monthly, yearly basis Attorneys who practice divorce / marital law, yet at the same time, dislike and hate their practice.  These Attorneys practice divorce solely because they need money and they have no other way to supplement their income to their practice.  It is a tragedy.  This is sad.  This is wrong.  The practice of law is an honor!  The practice of law is a jealous mistress where once it becomes your passion, your life will become the most exciting adventure one can imagine, whereas it literally becomes necessary to "pinch" yourself every morning to confirm that your life is not just a dream, but is actually a blessing of the miracle the Universe has bestowed upon you.

Let me remind you of your oath affirmed when you were "sworn" in to practice law in the State of Florida, and whether you realize it or not, you reaffirm it each year upon the payment of your dues to the Florida Bar:

I do solemnly swear;

I will maintain the respect due to courts of justice and judicial officers;

I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications;

I will abstain from all offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged;

So help me God. ¹ 

You work for your client.  Your client does not work for you.  Your job in a divorce matter is to educate your client to the law, the procedures, and in your opinion, how to accomplish the goal that they desire within a dignified and honorable framework.  Your client pays you money that the majority of them have worked very hard to earn, and your client will work many more hours than you do for your hourly rate.  The Practice of Marital Law is a privilege in that you have the ability to apply Contract Law and other substantive areas in an academic setting, and yet, unlike any other practice of law, it involves one's "heart".  The emotion of love combined with the academic application of law is a most exciting mental exercise. You are compensated highly to apply your intellect and emotional quotient to your clients' issues, problems and future dreams.  They rely upon us to do our job in an honorable and dignified fashion. 

Your client is paying you a lot of money to work in an arena of the utmost excitement and creativity by applying emotion (the broken heart) to academic law (Florida Statute Ch. 61 and Case Law), and yet you have the audacity to complain and "cut down" your client. Why? To justify your ego and your existence!  No matter how great our belief of ourselves, we practice Divorce Law in the Daytona Beach area in the State of Florida.² No, this is not the pinnacle of the legal world.  I understand this, yet I am honored to do so.  So I suggest you get over yourself, appreciate your clients no matter what current stressors are negatively affecting their personality, nor how unreasonable their position is for that day as it is our challenge, our duty, our job and our honor to educate them and lead them through an honorable journey in a difficult field of divorce, whereas hopefully our leadership and compassion builds a "Camp David" for their divorce.

---

1.  This is a partial publication of the Oath. 

2.  I have actually heard an Attorney say that he did not go to Law School to work past 5:00 p.m. on a weekday nor to work on weekends.  The reason I went to Law School is exactly the opposite of this, to have the honor and adventure to work past 5:00 p.m. on a weekday and to have the honor and adventure to call a client during the weekend, on a Sunday or a holiday, simply so they know that someone cares about them, will work hard to protect them and further their rights within this difficult world so they can live joyfully in a difficult world.

A PASSION FOR DIVORCE

Does the Attorney representing you have a passion for divorce?  Unfortunately, many attorneys practice divorce solely because they need the additional income to supplement their law practice.  And, there are attorneys who practice divorce who dislike their job, their clients, opposing counsel, and even the Judges due to the amount of stress and often illogical emotion involved.  In divorce, a known saying is, "You see good people acting at their worst", (versus criminal law, "you see bad people acting at their best" - during their case).  Divorce is a stressful area to practice law due to the emotions, and as an attorney, once you become an acquaintance or friend with your client, you must be careful regarding the emotional aspect of the case, as that can affect your individual stress in the case, and it can affect your ability to give your client proper neutral advice. 

So, ask your attorney - does he / she have a passion for their divorce practice? Ask your attorney - why do you practice divorce? What do you like about practicing divorce?  If your attorney practices in other areas of law, ask him or her - why do you practice other disciplines of law? When they answer your questions, watch their body language, and in doing so, instinctively, you should discern whether you received a truthful answer. If you attorney does not have a passion for their practice and if your attorney does not enjoy what they are doing 24/7, I would submit to you that the representation you will receive or are receiving may be mediocre to the representation from an attorney who has a passion for the practice of divorce.

I love the practice of divorce. I have a passion as a divorce attorney because it is an area of law where I constantly meet new people each year, the majority of my clients become acquaintances and occasionally become my friends. It is also very rewarding when you represent someone who has been wronged and terrorized for years by their spouse, and they become empowered and find their prior confidence and self-esteem, and they are able to break the chains of torment with appropriate celebration and financial security after the case.  Also, divorce law is very academically interesting to practice because it is "contract" law, but add the unpredictable and miracle of the heart, and emotions attributed to the heart, and knead those into the practice of contract law, it becomes a hybrid law, one that is an academic exercise of contract law and one that is the wonderful of exercise of heart. There is no other type of legal discipline similar to divorce. Once you become aware of the blessing to meet new people, quality people, the reward of helping people and the academic pursuit with heart, you understand my  passion for divorce.

Everybody desires a partner with reciprocal unconditional love and integrity. If your current Partner is not this "Partner", divorce is the avenue to your desired "Partner" as suggested by the Universe. I want to help you find that Partner.

Namaste´

 

 

HOW LONG WILL YOU CONTINUE TO BE AN

ASSHOLE TO YOUR FORMER SPOUSE?

 Common Statements By Children of Divorce

I slowly grew to dislike both of my parents.

My parents seemed to forget I was alive because they were so focused on their anger toward the other parent.

I spent many nights lying in bed unable to sleep.

I never wanted to have friends over to my house anymore.

I spent a lot of time at my friends' houses because I didn't want to be home.

I worried about the future and what was going to happen.

I learned what depression felt like and I was only 7 years old.

My parents never knew how I felt because they didn't seem to care most of the time and if they ever asked me I would lie since I didn't want to add to their burdens.

I quit studying in school because I just didn't care anymore.

I thought about running away from home.

I hated being in the middle of their war.

I couldn't talk to either of my parents because they were on edge all the time and got angry easily.

My dad would get made at my mother and take it out on me.

I watched my grandma and other relatives take sides and start bad-mouthing my dad.

Every time I came home from the other parent's house I was grilled as to what they were doing. Both parents did this.

I hated it when I saw my mom or dad with another person.

More Typical Comments From Children of Divorce

I started thinking about ways to stop the sadness by killing myself. I knew neither parent would care.

I was only 16 but I thought if I could get a boy to take me away from all of this that would be my escape.

I couldn't ask either parent for anything because they would snap at me since there wasn't enough money anymore.

I told my mom that I wanted to see my dad on Father's Day Sunday and she gave me the silent treatment for the rest of the day.

If I told my Dad that Mom was having a problem with something at the house he would bark at me that it was her problem not his.

Neither parent was at all interested in what was happening to me at school.

My little brother would come into my room after we went to bed because he was scared and lonely.

I didn't have any money for a school field trip but I was afraid to ask either parent.

I noticed my friends at school quit talking to me.

Both of my parents asked me to take their side and I didn't.

And More

What was amazing looking back was that my parents never seemed to notice what effect their fighting and conflict was having on my sisters and me.

My brothers and I became closer as our parents argued and spoke poorly about each other in front of us kids. We all slowly grew to hate our parents at the same time.

I sure saw my parents in a different light. I mean before the divorce I thought my parents were the smartest people in the world and that they loved me more than anything. Watching their divorce destroyed that perception. I saw my parents for the small, mean spirited people they really were. I lost all respect for both of them.

I am old enough now that I have experienced being dumped by a (girl friend / boy friend) and the hurt that that kind of break up causes. But finding out that my parents didn't really love me enough to stop fighting each other was much more painful and long lasting. I got over breaking up with my (girl friend / boy friend) eventually but I will never get over my parents' divorce.

"Children begin by loving

their parents;

As they grow older

they judge them;

Sometimes they forgive them."

IF YOU ARE AN ASSHOLE, OBVIOUSLY YOU WILL CONTINUE TO BE, HOWEVER, YOU ARE A PERSON OF UNIVERSAL FAITH, AND IT IS TIME TO FEEL THE UNIVERSE AND STOP THE ACTIONS THAT CREATE THE ABOVE COMMENTS.  PLEASE CHECK YOURSELF.

WHAT IS A CASE MANAGEMENT CONFERENCE

A Case Management Conference is a meeting scheduled by the Judge to review the status of your case.  The substance and procedure of a Case Management Conference varies from Judge to Judge.  Some Judges require the client to attend the Case Management Conference, while other Judges do not mandate the attendance of the client, nor do they necessarily mandate the attendance of the Attorney for the client (if that client's Attorney has arranged for another Attorney to cover the matter for them.) 

Pursuant to Family Law Rules of Procedure 12.200(a), the purpose of the Case Management Conference is to schedule or reschedule service of motions, pleadings and other papers; set or reset the time of trials; coordinate the progress of the action if complex litigation factors are present; limit, schedule, order and expedite Discovery; schedule disclosure of Expert Witnesses, and discovery of facts known and opinions held by such Experts; schedule and hear motions related to the admission or exclusion of evidence; pursue the possibility of settlement; require filing preliminary stipulations; refer issues to the General Magistrate for findings of fact, if consent is obtained; review if there is a history of Domestic Violence, and if not a prohibiting issue of Domestic Violence, refer the Parties to mediation; coordinate voluntary binding arbitration; appoint Court Experts and allocate expenses for appointments; refer the cause for a Parenting Plan recommendation, social investigation and study, home study and psychological evaluation and to allocate the initial expense for the studies and evaluations; appoint an Attorney or Guardian Ad Litem for a minor child(ren) if required and allocate the expense of that appointment; and schedule other conferences or determine other matters that can aid in the disposition of your divorce.

A properly run Case Management Conference by the Judge saves time and money for the case and allows for better communication between the Attorneys.  This creates a more efficient / amicable result in your case.  A poorly run Case Management Conference by the Judge only reviews whether or not the case is ready to be put on a trial docket or if there should be another Case Management Conference, and therefore they are only proceeding with the Case Management Conference because it is mandated by the Family Law Rules of Procedure.  It is my opinion that this type of Case Management Conference is a waste of time and resources.  A proper Case Management Conference is one  that the client attends and the Judge thoroughly reviews the case file, pending motions, mandatory disclosure dates and assists the Parties in scheduling mediation.  This keeps the case moving along and avoids an Attorney (without ethics) from stalling the case if it is to their client's advantage (for example:  delaying the ability to set a temporary hearing wherein your spouse would have to pay you temporary Alimony, child support/Attorney Fees and Costs.) 

In "English", ask your Attorney about the Case Management Conference and how the Judge assigned to your case runs his or her Case Management Conference.  Discuss with your Attorney whether or not your attendance at the Case Management Conference is mandatory or advisable, and ask your Attorney to explain to you why it is in your interest to properly prepare for the Case Management Conference and how this will help your case.  Ask your Attorney how you can assist in the preparation for the Case Management Conference, and as always, tell your Attorney what you want and confirm what you want via email.  I hope the Judge assigned to your case properly runs his or her Case Management Conference.

THE TOP "10" PARENTING PLAN ERRORS

A seasoned divorce attorney knows immediately at the end of a case whether or not the soon-to-be former husband and former wife will be returning to court in the near future and spending all of their college savings for their children on attorneys while re-litigating issue after issue for the next 15 years.  A bad parenting plan is a bad parenting plan.  The term among divorce attorneys and divorce judges is simply, "Garbage in, garbage out," which means the skill and effort put into an agreement or trial is directly reflected in the agreement or judgment by the Court.  One section of your Marital Settlement Agreement with Parenting Plan (MSAPP) is a parenting plan itself.  Avoiding these top 10 parenting plan mistakes may save you many thousands of dollars in the future and years of frustration and inconvenience dealing with divorce attorneys and spending time in the divorce courtroom.

The Top "10" Parenting Plan mistakes are:

1.               The use of a non-specific parenting schedule (using terms such as "liberal and frequent time sharing") versus a defined and understanding time sharing schedule.

2.               Failing to consider future residential moves by either party, whether short or long distance.

3.               Failing to consider electronic document sharing (health, education, extra-curricular activity, etc.)

4.               Failing to consider travel and travel restrictions, including foreign travel to countries that are not parties of the Hague Convention (this allows a mechanism for return of your child if wrongfully detained in the foreign country.)

5.               Failure to discuss whether eye care, braces or mental health, etc. constitutes health treatment, the initiations of said treatment and the sharing of costs.

6.               If you child(ren) is(are) young, failing to discuss changes to time sharing and other aspects of the Parenting Plan after the child(ren) reach(es) a certain age and start(s) elementary school, middle school and high school.  Furthermore, failure to discuss transportation issues for the child once he or she is 16 years old and he or she is of age to have a driver's license (i.e., automobile, insurance, etc.)

7.               Failure to have a unified "chore" list at both residences, and failure to have a unified "discipline" system at both residences.  Failure to define a communication schedule and type of communication, including when, how often, who pays for it, type (electronic, cell or landline, etc.)  Some former spouses still enjoy being passive-aggressive and calling the child at 6:45 a.m. when they know the entire family is sleeping.

8.               Failure to discuss and develop a policy whether pictures of your child can be posted on the internet (Facebook, etc.) by you or a third party.

9.               What is the role of step-parents or significant others?  And for the purposes of introduction, etc., when does that person become a "significant other"?  What is the role of grandparents and extended family?

10.           Failure to define support and financial planning.  How much support will be paid for matters as extra-curricular activities, tutoring, etc.? How will it be paid?  When will the financial obligation end?  College funds and life insurance should also be defined, and again determine when the financial obligation for those will end.

Please note the Florida Supreme Court has a "form" Parenting Plan.  It is of essence to understand this is merely a form developed by one committee.  Pursuant to Florida Statute Ch. 61, there are some mandatory provisions that must be incorporated in the Parenting Plan.  However, there are only approximately six mandatory provisions in a Parenting Plan, and therefore you can be as creative as you want in all other clauses.  You can put anything you want in the Parenting Plan as long as it is legal and your former spouse either accepts it or you convince the Court to adopt it.  My clients have included clauses that include types of acceptable clothing to wear at school (when they are concerned that the other parent does not have adequate taste or maturity to properly dress a child); specific prohibition of contact with known "bad" relatives; mandatory drug testing and the consequences for testing positive for certain substances.

The Parenting Plan is your opportunity to have a contract with your former spouse / parent / partner for your child(ren) that will solely benefit the child(ren) by having consistency and routine between the residences and a unified front, and a proper Parenting Plan is the only way to prevent your child(ren) from playing the two of you against each other, as they have keenly observed you and your former spouse pushing each other's buttons for probably a long period of time and they have observed precisely how you react (unfortunately, other than responding) when said button has been pushed. 

Your imagination is the only limitation when developing additional clauses for your Parenting Plan.  Remember, the power of the pen (or keyboard).

HOW TO CHANGE YOUR PARENTING RELATIONSHIP

If you and your former spouse have a toxic relationship, I can assure you it is detrimental to your child(ren).  If you actually care about your child(ren) (versus a false social persona) there are seven (7) simple steps you may take to dissolve your toxic relationship. 

You must do the following:

1.       Admit I am in a conflicted co-parenting relationship;

2.       Acknowledge that this relationship is not good for my child(ren);

3.       Admit where I have done wrong;

4.       Make a list of those I have harmed;

5.       Apologize to those I have harmed;

6.       Start the new co-parenting relationship this minute with a code of behavior /
         In every situation do the decent thing; and

7.       Take a daily inventory.  See the mistakes and strive to do better.

It will help to keep a daily notebook with regard to your progress per these seven steps.  The only question is whether you have the courage to do this, and whether your love for your child(ren) is greater than the conflict / despise / hatred you have for your former spouse.  Only you can answer that question and only you can accomplish these seven (7) steps.  Even if your former spouse refuses to change their behavior and he/she continues with a toxic relationship, you may lead by example for yourself, for other people, and most importantly, for your child(ren).  Teach your child(ren) how a mature, aware and rational parent acts and responds.  It is simple, and your child(ren) is(are) expecting and relying upon you to be the bigger person.