Sam talks about trials (and more)

Seven Myths About Divorce

Divorce is the pits for everyone concerned.

When I think I’ve seen it all, I hear another myth about divorce. The myths below are widespread, and the problems they address will affect you in some way if divorce is the route you decide to take. Forewarned is forearmed, so read on, then come in and let’s talk. Because the biggest truth of all is that your divorce really is different than anyone else’s, and nobody else’s counts when we make the divorce plans and decisions that will determine the rest of your life.

Myth #1:    One Size Fits All.   Wrong. Aunt Minnie getting a pile of alimony does not mean that you are going to get a pile of alimony. Like most law, divorces are intensely fact specific. Tiny differences in facts can drastically change the outcome. For instance: the facts of your marriage are different than the facts of the marriages of your friends and family. Who worked when, who brought what with them to the marriage, how long were you married, how old are any children, and so much more will determine the outcome.

Believe it or not, you do not know all the critical facts about your marriage. For example, we’ll need to find the absolute values of real estate [an appraisal from two years ago doesn’t count], the present value of a future pension, the current value of a business and the marital portion of a 401k. There’s a lot more, but you get the picture. And if the critical facts are unknown, then the final outcome cannot be accurately predicted at the beginning of the process. No one can predict what the judge will do until every missing fact is known.

Myth #2:    I Do Not Need a Lawyer for a Divorce.  This is rarely correct and when it is, it usually means that neither spouses have assets, alimony claims, businesses, pensions, 401k plans and children.  Add just one of those factors and you need a lawyer.  A retired judge friend always stops people who say “he who represents himself has a fool for a client.”  She corrects the speaker and says “He who represents himself has a fool for a client and an idiot for a lawyer.”  She’s talking about the foolhardiness of undertaking the emotional, legal and financial tornado of divorce without an experienced lawyer who is not caught up in the emotions, the legal turmoil and the financial stress of divorce. Like I said, come see me.

Myth #3:    Children Get to Choose which Parent They Live With at Age 12 or 14.  This has never been true in Florida.  I hear it so much I must conclude it may be true in some other states, but it’s not true in Florida.  I once had a 17-year-old child of a client who after ten years of living with dad and doing well, decided mom was in need of help and to go live with mom. This was a mature, good student.  My client was the dad. We fought the child’s decision because it was not in the child’s best interest. In the end, the Judge told the 17-year-old, “no.”  You are staying with Dad. Sometimes you just have to be a parent.

Myth #4:    I am not paying that B____/B____ [insert gender appropriate bad name] a dime in Alimony.  Actually, depending on the facts, you could be dead wrong and pay alimony for decades. Alimony is a complex, fact-driven issue under Florida law. As a mediator I regularly am hired by good lawyers to help them settle cases with tough alimony issues. When good opposing lawyers regularly hire a third lawyer [me] to help with alimony issues, it tells you how tough this area of Florida law really is.

Myth #5:    Division of Marital Property is Easy.  Division of marital property in a Florida divorce is called equitable distribution. There’s a whole statute that governs who gets what property. I spend a lot of time explaining to divorce clients and mediation clients how equitable distribution works. Like alimony, equitable distribution is a complex, fact-driven issue under Florida law. Pretty much zero clients have all the factual information they need when they first come to my office about a divorce.

Myth #6:    Divorce only takes a couple of months to complete.  I guess it could happen, but far too many divorces can and do drag on for years. There is so much emotion involved that the folks involved tend to want to fight it out, even when settlement is smarter. I’ll do my best to talk you off that wall. Some of the worst, most insanely litigated lawsuits I know of are divorces. The truth is that everyone suffers.

Myth #7:    As reasonable people, you can control whether your divorce is calm or “A War of the Roses.”  Not a chance. Sadly, the most important factor is who your spouse hires his or her attorney. If they hire a solid, experienced divorce lawyer who is willing to teach the spouse the value and advantages of settlement, then the stress, expense and drama will be minimal.  (Not none, just not as much as it could be.)  If, however, your spouse hires an attorney whose sole motivation is to maximize the attorney’s fees it will be very expensive, very stressful and more drama than daytime television.  If you are contemplating divorce, pray for God to give you and your spouse wisdom in selecting your attorneys. It will make all the difference in the world to you, your family, and your mental and financial health.


I can’t make it go away, but I can sure help you get through it,

Sam

Top Ten Mistakes to Avoid for your Florida Partnership or Corporation

This week, my good friend and Central Florida Mediation Group partner Neal O’Toole forwarded me an e-mail summarizing a recent Inc. magazine article. I found all of these to be good points—but I had a few legal additions (#8, 9, and 10) of my own.

Here are Inc. Magazine’s 7 Biggest Financial Mistakes Businesses Make:

1.  Hiring in advance of revenue.

2.  Borrowing money when you don't really need it, but when the bank is willing to lend it.

3.  Not paying payroll taxes on time.

4.  Pricing too low. Unless you are Wal-Mart or are trying to be (and have a real hope of achieving this), it is almost always better to sell fewer units at higher prices than to sell more units at lower prices. High prices protect your margins and also enhance your brand.

5.  Permitting accounts receivable. Unless there is a good reason, you should not offer credit terms to customer.

6.  Counting on one major source of revenue. It is best to assume that, unless you are proactively building revenue, it is contracting. You should look at your revenue as if it were a portfolio; you do not want all or a majority of revenue coming from one or a few sources

7.  Hiring too much overhead. People at companies bring in sales, build products, or serve customers. You can justify employees filling these roles. The real challenge is when you hire "overhead" people, who cost the company money but don't sell or produce anything directly. It is best to keep this cost as low as possible.

And here are my additions:

8.    Not having an operating agreement (for a Florida LLC) or shareholder agreement (for a Florida corporation) based on Florida law. This agreement should address what will occur if a principal dies, goes through a divorce, or becomes disabled. It must also address the dissolution of the business. These issues can result in a lot of expenses, stress and attorney fees if they are not addressed up front in an agreement. 

9.    Not having a wealth protection plan created in consultation with an attorney.  The exposure to liability in this society is huge. A discussion with an attorney who understands wealth protection (particularly Florida's fraudulent conveyance statutes) can protect your business and family from substantial impacts.

10.  Not having a good estate plan for the principals of the business. These plans must address the fate of the business in the event of a death. There are numerous stories where one principal dies or gets divorced and the other principals are left with a surviving spouse who knows nothing about the business, or a former spouse with a malevolent attitude toward the other principals, who now have an unwanted and uninvited new partner. Making sure your will or trust addresses your wishes as to your interest in the business can save headaches and litigation costs for your family and your business partners.

To read the Inc. Magazine article in full, click here.

Are you, your family, and your business protected from these financial and legal mistakes? If you want to discuss an operating agreement, shareholder agreement, wealth protection plan, or estate plan for you and your business, give me a call.

Is Your Lawyer Ready for Trial?

Not all trial lawyers are created equal

This floors me, but the Journal of the American Board of Trial Advocates** reports that there are litigators out there who are biased against trials! The research shows that many lawyers admit to being litigators who deal with litigation but never go to trial--the suggestion being that there’s a bias against trial work because it’s time intensive, hard core and tough. Or maybe they don’t have the experience to win. Excuse me? Isn’t that what folks pay us to be ready to do?

At any rate, if you need help with a legal problem, be aware that there’s a potential new difference between a litigator and a trial lawyer that might add up to a bias against going to trial (especially jury trials). I’m pretty passionate about this; in fact, I’m pretty horrified. I’ve tried more than 25 all-out jury trials and hundreds of non-jury trials. I’ve mediated just as many. I kind of consider that my board certification in both areas means I’m supposed to decide which path offers my client the best outcome and go for it.

So, while I’m disappointed to think that some in my profession may be taking an easy way out, be assured that I’m not. When you need legal help, Miller, Crosby & Miller is ready with an honest assessment, the legal knowledge to back it up--and the absolute readiness to get you the best results possible, trial or no trial.
Bottom line? I’d want us on my side.

Sam

 

**The American Board of Trial Advocates is an invitation only organization that includes both defense and plaintiffs' lawyers .