Palm Beach Family Law Blog

Sunday, June 24, 2012

The Process of Selecting the Right West Palm Beach Marital and Family Law Attorney

The selection of a marital and family law attorney is an extremely important process because of the magnitude of the issues involved in a divorce, child custody case or any other family law-related matter. The issues in a marital or family law case involve the most fundamental aspects of people’s lives and may impact a party’s family dynamics, financial well-being and access to their children for many years.  This means that it is imperative that you carefully consider your choice of a family law attorney in West Palm Beach, Boca Raton, Boynton Beach, Jupiter, Palm Beach, Delray Beach, Palm Beach Gardens, or Wellington. While experience, skill and expertise are important considerations when choosing any attorney, the decision to retain a marital and family law attorney in Palm Beach County includes the evaluation of an attorney's demeanor and personality, approach to cases, and his or her overall level of commitment to your case. We have provided an overview of relevant factors in evaluating whether a family law attorney is right for you.

Experience and Expertise:  It is important to consider the experience your attorney has in handling family law issues. Experience involves not just the number of years that an attorney practices family law in Florida, but also the attorney's knowledge, skill, and whether that attorney's law firm devotes a majority of its time to handling family law and divorce matters.  Another very important consideration is to evaluate the courtroom experience of an attorney in the event that your divorce or family law issues cannot be resolved amicably.  There are several family law attorneys out there who prefer to remain working at their desks and are reluctant to step into a courtroom. You should consider what is at stake in your divorce or family law case.  Do you want a lawyer who will fight for your rights or someone who will remain passive because he or she prefers not to leave the desk?  

Approach to Cases:  Family law practitioners may vary widely in the way that they handle family law cases, such as divorce, paternity or other family law matters.  Some attorneys are extremely confrontational and rarely resolve a case amicably while others almost never go to trial.  Our approach is to try to resolve cases amicably to the degree possible but when litigation is necessary we tenaciously pursue our clients’ best interests.  If you are trying to select a divorce attorney to handle your case, you should inquire about the attorney’s approach and demeanor to ensure that it fits with your comfort level.
Personality of Attorney:  A client’s relationship with a marital and family law attorney may last many years so it is important to be comfortable with an attorney’s personality and demeanor.  The issues involved in a West Palm Beach, Boca Raton, Palm Beach Gardens, Wellington marital dissolution are very personal and may be of a sensitive nature so you need to select an attorney with whom you will be comfortable discussing these types of issues.  Even if there are unpleasant facts in your case, the attorney needs to know these facts to properly evaluate how to proceed so you need to feel comfortable disclosing such facts.  After all, your attorney is bound by the attorney-client privilege. 

Cost and Payment Arrangements: Many clients make the mistake of picking an attorney based exclusively on cost which can have significant adverse consequences.  You should avoid falling into one of the two extremes: 

The first extreme are those individuals who pay an exorbitant amount in legal fees to a particular attorney because they associate the substantial premium rate of fees with the quality in service. In reality, the premium rate is simply a marketing strategy in order to create the perception that the quality of that particular attorney's services is far more superior than the other equally competent attorneys who may charge less.

The second extreme are those individuals who try to cut corners when choosing an attorney to handle their divorce or family law case.  Keep in mind, your divorce may involve issues regarding time-sharing with your children, equitable distribution of marital property, child support, alimony and other very important decisions that will substantially impact the quality of your life for years.  It is never a good idea to cut corners when choosing an attorney to handle these types of critical issues because it may ultimately be more expensive in the long run.  Furthermore, in many cases the court may order the other party to pay your attorney’s fees.

Use Free Consultation:  Most Palm Beach marital and family law attorneys offer a free consultation so that they can analyze a prospective client’s case, and potential clients can evaluate whether an attorney is the right fit for their case. This consultation should be used to interview the attorney to determine if the matrimonial or family attorney’s demeanor, approach and background are a good fit for you and your family law case.

If you are considering retaining an experienced marital and family law firm in Boca Raton, Wellington, West Palm Beach, Palm Beach, Delray Beach, Boynton Beach, Jupiter, or Palm Beach Gardens, attorney James S. Cunha and his legal team are just a phone call away.

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Friday, June 22, 2012

Focusing on Moral Victories May Result in Undesirable Divorce Outcomes and Costs

A Florida quick divorce (marital dissolution) is a very difficult process for both spouses and their children.  While the degree of pain, anger, frustration and uncertainty may vary from case to case, it is rarely a pleasant experience.  The degree of discomfort often depends on the ability of the parties to the divorce to amicably resolve as many issues as possible.  While this is not always case, most divorces never need to morph into a bitter and brutal fire and brimstone conflict.  This type of scenario does little more than eat up the valuable marital resources that you and your spouse have built over the duration of your marriage.

There is a well-kept secret that all family law clients would be well served to learn regarding who wins in a bitter contested divorce where the parties fight over every nut, bolt and shred of lint.  The married couple most certainly are not winners in this scenario because those last dregs of refuse that the couple are fighting over might be all that is left after all of the litigation costs are paid.  In most cases, the only winners in bitter, highly contested divorces are the law firms because the more you fight, the more you pay in legal fees.  If you are involved in this type of very high conflict divorce, you should carefully consider whether the issues being contested and the cost of litigation are worth the aggravation and expense.

It may sound counter-intuitive for a law firm to provide advice designed to discourage behavior that results in higher attorney fees.  However, our experienced West Palm Beach divorce legal team at the Law Offices of James S. Cunha is committed to helping clients obtain the best possible outcome in their divorce so that our clients can rebuild and start over.  Litigation that is unnecessary depletes the marital estate of a substantial portion of its net worth and will rarely provide a divorcing couple with the best possible outcome.  While our law firm provides aggressive, tenacious, and persuasive advocacy, we exercise judgment and restraint in helping our clients make informed decisions about when skillful negotiation makes more sense than contested litigation.

There are certain types of divorces that are more likely to result in more contentious litigation, such as divorces involving high net worth estates or assets that may be difficult to value, cases involving hidden assets, division of businesses or professional practices and disputes over parental time-sharing.  The point is that there are issues that justify a bitter fight, and other issues where highly contentious litigation will simply drain valuable family resources.

When there is animosity and resentment between the parties, as is often present in a divorce, denying the other party something that has sentimental value can provide a moral victory for some.  This moral victory is often radically outweighed by the costs.  Our law firm never likes to see clients “waste” money on unnecessary litigation. 

Fighting over the non-functioning hand-me-down washer and dryer just because the other party really wants it usually results in a “hollow victory” in the best scenario.  Nonetheless, our attorneys have watched people fight these costly battles that rarely leave either party in a better position.  There are many issues where Mr. Cunha often can predict the outcome or likely outcome based on his courtroom experience and knowledge of the law.  A party that spends a substantial amount of resources litigating such an issue may not be making a cost-effective investment of resources.

For example, both parents have the right to be informed and have input in such major life issues as the child’s education, medical care, dental care and religious upbringing.  Both parents will almost always be granted access to this fundamental information.  The exceptions to this general rule involve extreme situations where there are serious questions or issues about a parent’s fitness because of issues like substance abuse, child abuse or neglect, sexual abuse, domestic violence, violent felony convictions, etc.  If there are no serious issues of this magnitude and both parents have been involved in the child’s life prior to the Boca Raton or West Palm Beach divorce, it typically is a forgone conclusion that both parents will share access to relevant information regarding these important aspects of their children’s lives.

While our law firm helps our clients obtain their goals in a divorce case, we also try to provide our clients with information obtained from experience in the courtroom and knowledge of the law so that our clients can pick the battles worth fighting.  We believe that clients should be armed with candid and accurate advice and options so that they can make informed decisions. Our West Palm Beach family law firm is available to represent clients in West Palm Beach, Lake Worth, Palm Beach Gardens, Boynton Beach, Jupiter, Delray Beach and Boca Raton in Palm Beach County. No matter where you are located, we are just a phone call away.

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Monday, June 18, 2012

Understanding the Hearsay Rule in West Palm Beach Contested Family and Divorce Cases

The reason that certain statements may not be introduced is because they constitute “hearsay” as defined in §90.801 of the Florida Evidence Code.  As a general principle, a statement other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted is considered Hearsay.  When a statement is relayed by a third party as opposed to a witness in live testimony, the ability of the defendant to challenge the reliability and accuracy of the statement is compromised.

The hearsay rule can have a substantial impact on your Florida divorce because it may keep out important evidence, such as the following:

  • Disclosures regarding diverting and hiding assets by a spouse
  • Disparaging comments made by the other parent in front of the children
  • Admissions by a parent about engaging in acts constituting lack of fitness
  • Revelations about drug use or alcohol abuse
  • Observations reported by a police officer in a law enforcement incident report

While these types of disclosures are certainly relevant to a Florida marital dissolution, they may be barred from being used in a divorce or child custody proceeding under the hearsay rule.  However, there are a number of strategies that an experienced West Palm Beach marital dissolution attorney may use to present this evidence to a family law court.  A subpoena may be used to compel the person to testify in court.  The rules of evidence favor testimony in open court, which allows for cross-examination to determine the reliability of the information and credibility of the witness.

There also are situations where statements that are essentially hearsay may be admissible in court because there are many hearsay exceptions.  A hearsay exception generally is based on the justification that there are independent factors that make the statement reliable even though the person making the statement is not present in court and subject to cross-examination and observation by the judge or jury.  Some of the most important exceptions to the hearsay rule in Florida divorce cases include:

Admission by a Party: When your spouse or the other parent in a divorce or custody case makes a statement that is adverse to the party’s interest, this statement may be admissible even though it is hearsay.  The theory behind the exception is that people do not usually make statements adverse to their interest.  An example might include a statement made by the other parent to you that the parent will do anything possible to ensure you are never allowed access to your child.

Statements against Interest: This is like an admission but made by someone who is not a party to the West Palm Beach family law case.  The fact that the statement is so adverse to the interest of the speaker provides evidence of reliability.

Business Records: This can be a critical hearsay exception in a Florida family law case.  Business records are admissible if the records custodian or other witness who is qualified to establish through his or her testimony that the record was made at or near the time of the event recorded; by or from information transmitted by a person with knowledge; kept in the course of regularly conducted business activity; and that it was regular practice of that business to make such a record.

While this is not a comprehensive list of all hearsay exceptions under Florida law, it provides a sense of the type of independent indicia of reliability that is necessary to introduce hearsay evidence in a Florida family law case.  The hearsay rule may appear to be a rule that prohibits evidence and makes it more difficult to present evidence.  If the hearsay rule is used properly, it will enable your attorney to introduce crucial evidence to advance your position or shield you from having opposing counsel introduce unreliable statements that will taint trier of fact. However, it is important to note that the hearsay rule, including its exceptions, cuts both ways. The hearsay rule is particularly important in family law cases that tend to be filled with “he said” and “she said” allegations. Even if the a statement is not hearsay or falls under one of the exceptions to the hearsay rule, the evidence still has to be relevant to the issue at hand.  No matter where you are located, experienced West Palm Beach divorce attorney James S. Cunha and his legal team are just a phone call away.

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Monday, June 11, 2012

The Process of Obtaining a West Palm Beach Divorce with a Marital Settlement Agreement

The process of reaching a negotiated resolution to your West Palm Beach divorce generally involves the use of a written marital settlement agreement. The marital settlement agreement will contain the terms and conditions of the divorce including the equitable distribution of marital property, provisions for spousal support, responsibility for attorney fees and other matters, whereas the time-sharing arrangements and other provisions related to the children are typically contained in the parenting plan attached as an exhibit to the marital settlement agreement.

There is no precise timeline for when a marital settlement agreement must be used to resolve the issues in a Florida divorce. Sometimes we have prospective clients visit us that say they have already reached an agreement and memorialized the agreement in writing or at least have agreed on the basic terms. In such cases, we will review the agreement to confirm the terms are appropriate under Florida law. We may point out any problems in the terms of the agreement or indicate revisions that need to be made in the written agreement so that it accurately and effectively represents the actual agreement of the parties.

It is more common that a marital settlement agreement occurs after there has been at least a single court hearing and an opportunity for the attorneys for each party to discuss the issues in the case. A marital settlement agreement provides a way to reach an amicable resolution to financial issues and other matters in a divorce. Sometimes the agreement will be reached through informal negotiation between the West Palm Beach divorce attorneys for the parties, or it may be a product of mediation. Once an agreement has been reached on financial matters like the division of property, alimony, child support, responsibility for attorneys' fees and other issues, the attorneys will draft the marital settlement agreement to reflect the terms and conditions of the agreement.

If the parties have reached an agreement in their divorce that has been memorialized in their marital settlement agreement, then all that remains for the marital dissolution process to become complete is the entry of a Final Judgment of Dissolution by the court. It is important to understand that the marital settlement agreement is part of you’re your judgement. This means that both parties are bound by the terms contained in the marital settlement agreement. If the final judgment has been entered, either party can file enforcement proceedings with the court to compel the other party to adhere to the terms of the marital settlement agreement. The court will typically reserve its jurisdiction over the subject matter, the parties and their children in the Final Judgment of Dissolution of Marriage. Therefore, the court will continue to possess the ability to impose sanctions on either party who fails to comply with the terms of a marital settlement agreement and parenting plan. However, keep in mind that the sanction of contempt is only available to enforce provisions of the marital settlement agreement that pertain to spousal support, child support, and the parenting plan.

Even if you have not been able to agree with your spouse on the major financial issues in your divorce, many times this changes once both parties have retained an attorney. It is typically easier to reach an agreement on the terms of a marital settlement agreement once you and your spouse have retained attorneys. Experienced West Palm Beach divorce attorneys can guide the parties past animosity and conflict on issues where the resolution is fairly clear. This allows the negotiations to focus on those issues that are more open to multiple dispositions. Mr. Cunha and his legal team possess the knowledge and experience to handle any complex divorce issue.

If you are considering a divorce or you have been served with divorce paperwork, our experienced West Palm Beach divorce attorneys can explain your rights and options. We work diligently to assist our clients in fashioning a marital settlement agreement that will promote or advance our clients’ interests and objectives. No matter where you are located, experienced West Palm Beach divorce attorney James S. Cunha and his legal team are just a phone call away.

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Monday, June 11, 2012

Predicting an Alimony Award in a Florida Divorce can be Extremely Difficult

We frequently speak with clients that were the primary or sole breadwinner during a marriage, and, at times, they often find the notion of alimony or spousal support baffling because they supported their spouse for years during the marriage. However, the legal justification for alimony is that marriage is a partnership.  One spouse’s effectiveness and success at earning a substantial livelihood may be directly related to the contributions and sacrifices made by the other spouse in taking care of the family home, working to pay for the other spouse’s education or training, and raising the couple’s children.

Many times the spouse that is the lower wage earner or non-wage earner in the marriage will have forgone opportunities to obtain higher education, work experience and other training, which will leave this spouse financially disadvantaged in the event of a marital dissolution.  Alimony is designed to compensate the other spouse for these sacrifices and also to ensure that the spouse is not denied the benefits of the success that a spouse’s domestic responsibilities helped make possible for the other spouse.

The decision to grant alimony as well as the amount may be based on the disadvantaged spouse’s need (i.e. employability and earning capacity), employment history during the marriage, income of the higher earning spouse, and the marital standard of living.  Florida law provides for several different types of alimony that serve different functions, including the following:

Bridge the Gap Alimony:  is intended as alimony of temporary duration to facilitate a spouse while transitioning to self-sufficiency.

Rehabilitative Alimony:   is intended to assist a spouse while he or she pursues additional job training and/or education to achieve the ability for self-support.

Alimony pendent lite:  This is interim alimony paid while the marital dissolution is pending but prior to a final judgment.

Durational Alimony:   is designed to provide the financially-weaker spouse with economic assistance for a specific period of time.  However, durational alimony will not exceed the length of time that the parties were married.  Furthermore, an award of durational alimony ends upon the death of either party or upon the remarriage of the spouse receiving the durational alimony.

Permanent Alimony: is support that continues indefinitely into the future unless certain circumstances arise.

Lump Sum Alimony: can be provided when an award for permanent periodic alimony is justified, the justification for a lump sum award rather than a periodic award is found, factual findings are included in the judgment, and there is sufficient money available for awarding a lump sum to a spouse. Lump sum alimony may also be awarded in order to accomplish the equitable distribution of property. The distinction between treating a lump sum alimony award as support or a property distribution is very important for enforcement purposes. Lump sum alimony intended to provide support to a spouse can be enforced through contempt.

In Florida, there is no precise formula for the calculation of spousal support though a Florida court will consider a number of factors that are outlined in Fla. Stat. Sec. 61.08.  Alimony awards are especially hard to predict in Florida even for experienced Florida divorce attorneys because you may get a dozen different calculations from a dozen different family law courts in Florida.  While several other states have been recently moving toward a set formula allowing for a specific calculation of certain alimony awards, Florida courts will look at the assets and income of the parties when considering the following factors:

  • Duration of the marriage
  • Employment prospects
  • Earning capacities
  • Standard of living during the marriage
  • Value of monetary and non-monetary contributions to the marriage
  • Income and assets available to each spouse
  • Ages of the parties
  • Fairness of the situation

Anyone reviewing these factors should be able to see why there is such a lack of consistency in Florida alimony awards.  For example, the fairness factor essentially grants a judge an enormous amount of discretion, which means widely divergent outcomes.  Because the issue of predicting and awarding alimony in Florida varies so widely, it is important that you are represented by an experienced West Palm Beach alimony attorney who can skillfully argue and present evidence relevant to these factors.  No matter where you are located, experienced West Palm Beach divorce attorney James S. Cunha and his legal team are just a phone call away.

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Sunday, June 10, 2012

West Palm Beach Contested Child Custody Frequently Asked Questions Part II

This is the second installment of our frequently asked questions (FAQ) post on contested child custody issues.  Contested child custody cases are often among the most bitterly contested family law cases, but our West Palm Beach contested custody team works diligently to lower the temperature on such disputes to reduce the stress on our clients and potential negative impact on our clients’ children.  Even when a custody dispute starts out contentious, emotions sometimes cool as we assist parties to a paternity action or divorce.   It is rare that a Florida parenting plan imposed by a family law judge is more desirable than a parenting plan, albeit imperfect, agreed to by the parties to a Florida divorce or paternity involving custody issues.  If you are involved in a child custody dispute in West Palm Beach, we invite you to also review the first part of this two part FAQ.  While we have tried to address common issues that callers ask us, you can obtain more detailed and specific information by calling our office and arranging for a free initial consultation. 

What if the other parent is discussing the case with my children and otherwise attempting to alienate my children?


The most important advice in this situation is to avoid the temptation to engage in similar behavior to neutralize the impact of disparaging comments to your children.  If you have already hired a West Palm Beach contested child custody attorney, you should inform your attorney of the situation.  An experienced Florida child custody attorney has many options to address efforts by a parent to alienate the affections of children.  Many times an attorney may be appointed to represent your children or the court may order a custody evaluation.  If the other parent is engaged in a pattern of disparaging you in front of the children or intentionally frustrating your parent-child relationship, you and your attorney should disclose such inappropriate conduct to the Court.  When you mediate your case, you should also make the mediator aware of the situation. 

What can the court do to address the issue of my spouse making disparaging comments about me to my children and otherwise trying to poison them against me?


The issue of one parent engaging in a campaign to alienate children from the other parent is an issue that Florida courts take very seriously.  One of the factors a Florida judge must consider when applying the best interest of the child standard in fashioning a parenting plan is the willingness of a parent to promote frequent and continuous contact with the other parent.  Florida child custody law favors a child having substantial contact with both parents unless one parent has fitness issues that endanger the minor children.  When a Florida family court finds that one parent is engaged in efforts to undermine the child’s relationship with the other parent, a court may award more parenting time to the innocent parent.  The bottom line is that it is never a good idea to disparage the other parent in your child’s presence either in terms of what is best for your child or the possible implications in a child custody dispute. 

The other parent has not paid child support for months so I would like to deny parenting time until I receive my child support?


The issues of paying child support and parenting time are independent of one another.  A parent should never unilaterally deny parenting time that has been established in a parenting plan.  The proper remedy if a parent is not paying child support may be to have an attorney file a contempt motion.  A Florida family law court has a number of powerful tools at its disposal to compel child support payments, including incarceration of someone not paying support. Alternatively, one could seek enforcement through the Florida Department of Revenue.  However, if you decide to deny time-sharing to the other parent who is not paying support, then this could actually have an adverse impact on your own time-sharing schedule. 

If my spouse has alleged past acts of domestic violence by me, do these allegations matter if there is no evidence I have every abused my children?


Allegations of spousal abuse in a child custody case in Florida are very serious.  If your spouse is making this type of allegation, it is essential that you obtain an experienced West Palm Beach child custody attorney.  Evidence of domestic violence and sexual violence are statutory factors that may result in very limited or supervised parenting time.  Even if you have never been charged with domestic violence and have not been the party to any case involving domestic violence, these allegations can have serious ramifications so it is essential that you obtain legal advice promptly.

Although these answers may address some of your concerns, there are many issues that may be important to parents involved in a West Palm Beach child custody case.  No matter where you are located, the experienced West Palm Beach parenting plan attorneys of the Law Offices of James S. Cunha, P.A. are just a phone call away.

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Saturday, June 02, 2012

West Palm Beach Contested Child Custody Frequently Asked Questions Part I

The attorneys and staff at our West Palm Beach child custody law firm understand that a troubling aspect of a divorce for most parents is the potential impact on their children.  While a marital dissolution can be difficult for children, many parents guided by an experienced West Palm Beach divorce attorney are able to amicably resolve their time-share and parenting plan issues so that their children face a minimum level of animosity, stress and fear about the future.  Our compassionate and dedicated team works diligently to seek the best possible outcome for our clients and their children while minimizing the stress and conflict that can prevent reaching a mutually agreeable parenting plan.  While we have provided some answers to frequently asked questions regarding parenting plan issues below, the best way to get more detailed information is to contact us to arrange a free initial consultation.

What are the chances that I can get sole custody of my children? 

Florida courts focus on promoting frequent ongoing contact with both parents.  This means that it is highly unlikely that a court will grant custody (“time-sharing”) exclusively to one parent in a Florida divorce.  Even if one of the parents is found to be unfit because of drug or alcohol abuse, supervised time-sharing is a more likely result for the parent deemed to be unfit.  It is also probable that if the parent with the substance abuse problem can establish that he/she no longer poses a danger to his or her children, the court will remove the supervision requirement.

What is a parenting plan, and what should it include?

Florida revamped its laws regarding child custody and visitation in 2008 moving away from the traditional concept of a “primary residential parent” to more modern concepts of a parenting plan and time-sharing arrangements.  The process of developing custody arrangements in a Florida divorce is now based on developing a parenting plan that includes provisions for communication, sharing information and decision-making and time-sharing arrangements.  While a judge will fashion a parenting plan if you cannot agree with your spouse, Mr. Cunha and his legal team will make every attempt to facilitate a negotiated parenting plan including time-sharing arrangements.  A negotiated parenting plan will almost always be preferable to one imposed by a family law judge.

The parenting plan must describe in adequate detail how both parents will share and be responsible for the daily tasks associated with the upbringing of their child, the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent, a designation of who will be responsible for any and all forms of health care, school-related matters, other activities, and the methods and technologies that the parents will use to communicate with the child.

How does a Florida court create a parenting plan?

If a Florida family law judge must impose time-sharing arrangements, the court will be guided by the “best interest of the child” based on a number of factors that are outlined in Fla. Stat. § 61.13(3).  These factors generally focus on the parenting history of each parent, ability of each parent to meet the child’s needs, and protection of the child's welfare.  For a more extensive analysis of these factors see our child custody and parental time-sharing website pages.

What happens if one of the parents in a West Palm Beach divorce wants to relocate with the children?

There is a statutory procedure that must be complied with for either parent to relocate the children more than fifty miles from the children’s primary residence.  The moving parent must either obtain the written consent of the other parent or file for a court hearing and provide notice to the other parent.  The court will consider factors like the reasons for the move, impact on the other party’s time-sharing and other relevant factors.  Experienced West Palm Beach parental relocation attorney James S. Cunha and his legal team can assist you in negotiating and drafting such an agreement or litigating this issue in front of a family law judge.

While this information may provide answers to some of your questions regarding West Palm Beach child custody issues, the best way to obtain more detailed information is to meet with experienced West Palm Beach child custody attorneys at the Law Offices of James S. Cunha, P.A.  No matter where you are located, experienced Palm Beach parenting plan attorney James S. Cunha and his legal team are just a phone call away. 

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Thursday, May 31, 2012

High Asset Divorce Frequently Asked Questions

When parties in a divorce have a substantial net worth, issues such as property division and alimony can be more complex.  Sometimes it is necessary to utilize experts to conduct a valuation of difficult to value assets or determine the proper valuation of a business or professional practice.  However, at the Law Offices of James S. Cunha, P.A., our attorneys focus on protecting clients’ assets and avoid unnecessary cost and expense to our clients marital estate by strategic planning and effective negotiation. While there are other prominent divorce attorneys in Florida that will charge an arm and a leg to represent you in a high asset divorce, you will receive high quality legal representation and close personal attention at the Law Offices of James S. Cunha, P.A. at a reasonable rate.

Furthermore, confidentiality and privacy is a top priority at our law firm.  As long as the elements of the petition are established and the parties agree on venue (location), a divorce can be obtained in any Florida judicial circuit. In other words, the divorce does not have to occur in the same judicial circuit in which you own property.  Occasionally, clients or their spouses, who are either well known within the community or are celebrities, would like to keep their divorce low key.  Often times, the best method of achieving privacy (if both parties agree) is to have the divorce take place in a different Florida judicial circuit from where they currently reside or own.    

A high net worth marital dissolution is much like a complex or substantial business transaction.  While sometimes tenacious advocacy and contentious litigation is unavoidable, skilled negotiation frequently results in a better outcome for parties to the dissolution of a marriage.  Because of our extensive experience handling high new worth marital dissolutions, we often receive calls and emails asking us about the special issues in high asset divorces.  We have provided some answers to frequently asked questions below: 

My spouse agreed to a prenuptial agreement, so do I really need an attorney?

 Yes.  While a prenuptial agreement is enforceable in a Florida divorce, they are also vulnerable to attack on various grounds.  A spouse typically enters into a prenuptial agreement when a relationship is on solid ground. However, when the relationship deteriorates, it is not uncommon for a spouse to get “buyer’s remorse.”  If you were both represented by counsel when the prenuptial agreement was negotiated and drafted, then the chances are good that the court will enforce the prenuptial agreement.  Because the attorneys at our firm have negotiated and drafted many prenuptial agreements, we can anticipate potential issues and aggressively advocate for enforcement of a prenuptial agreement.  If you are the party seeking to avoid the terms of a prenuptial agreement, Mr. Cunha can evaluate the terms of the agreement and surrounding circumstances so that he can provide a realistic evaluation of your chances that a court will not enforce certain terms of prenuptial agreement.  

Is there really much to gain by having a prenuptial agreement executed?

 Parties contemplating marriage should think of a prenuptial agreement as a “marital partnership agreement.”  The prenuptial agreement will delineate the contributions of each party to the marriage and provide for an orderly mutually agreeable resolution in the event the marriage should dissolve.  A prenuptial agreement can avoid unnecessary litigation and, therefore, substantially reduce the cost and expense in the event that the parties someday choose to divorce.    

Should I encourage my fiancé to execute a prenuptial agreement without consulting with an attorney?

 This is a very risky approach to negotiating a prenuptial agreement.  A West Palm Beach family law judge is much more likely to enforce a prenuptial agreement where both parties to the prenuptial agreement were each represented by an attorney or at least consulted one.  Defenses to the enforcement of a prenuptial agreement, such as duress, fraud, etc. are much more likely to be effective when only one of the parties had legal advice and representation during the negotiation and preparation of the prenuptial agreement. 

Will I have to share management and control of my business or professional practice with my spouse?

 Generally, the party that runs a business or professional practice during a marriage will continue to do so during the divorce and after a divorce judgment.  However, the business or professional practice may have substantial value so it must be part of the valuation process of marital assets.  Typically, the spouse that has operated the business or professional practice will buy out the other spouse’s interest in the business or professional practice. Sometimes a court will appoint a receiver to manage the business if it is shown that the party managing the business during the divorce is engaged in conduct that is damaging the value of the business.  

How will the value of my business or professional practice be determined? 

  Many times we use experts like forensic accountants, business valuation experts and other expert to conduct a formal business valuation. The attorneys at our law firm all have backgrounds in Finance, Accounting, and/or Tax Law and are in a unique position to work closely with experts in reviewing financial statements and business records.

Occasionally, both parties may agree on the value of the business, especially if there has been substantial involvement in the business by both spouses.  On the other hand, where one spouse has exercised primary management and control of the business, it may be necessary to do extensive discovery of business documents and financial records and/or employ the services of experts.  This is particularly true if you believe that your spouse has been hiding assets or diverting marital income from the business or professional practice. 

Will my spouse have a claim against my real estate, retirement plan, 401K and other assets owned prior to the marriage?

 This primarily depends on whether these assets were “entirely” owned prior to marriage.  Many assets like real property and 401K plans will receive contributions during the marriage. If marital funds or assets are used for maintaining or improving assets acquired prior to marriage, these assets will acquire a “mixed characterization” with both a separate and marital property component.  The marital property part of the asset will be comprised of any contributions from earnings or other assets acquired during the marriage as well as the appreciation in value resulting from such contributions.

While this information may provide answers to some of your basic questions regarding South Florida high net worth divorces, the best way to obtain more detailed information about other pertinent issues, i.e., pension valuation and division, alimony, child support, etc., is to speak directly with Mr. Cunha.  No matter where you are located, experienced South Florida high-asset marital dissolution attorney James S. Cunha and his legal team are just a phone call away.

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Sunday, May 27, 2012

Role of Experts in Contested High-Asset Divorce Cases

Much like a complex or a substantial business transaction, a high-asset divorce may require an analysis of complex financial issues, including sophisticated valuation issues, tax implications, projections for growth of certain assets and other complexities.  In a contested high-asset divorce case, our law firm works closely with a variety of experts to ensure that all marital assets are identified, appraised and fairly divided.

For example, when a business or professional practice is considered part of the marital estate, our West Palm Beach high net worth divorce law firm will use a business valuation expert to analyze the cash flow and financial statements of the business or professional practice in order to determine its value.  This valuation can be crucial because quite often the business or professional practice may be the most valuable marital asset. 

A benefit of obtaining a valuation of a business early in a high-asset divorce case is that it permits us to present persuasive positions during negotiations so that we can reduce the probability of incurring additional cost and expense for our clients.  In other words, working closely with a business valuation expert can provide us with a clear and concise analysis regarding the value of a business. In turn, the added clarity to an otherwise complicated financial issue may prevent those same issues from being further contested or litigated at trial. In the event that the issue is further contested, the expert can be called as a witness to testify in court. 

In addition to the above business valuation expert, our West Palm Beach high-asset divorce law firm also utilizes other experts, including forensic accountants to address tax issues or to address questions about the accuracy of the amount on the books of a business.  In addition to tracking down marital assets that the other spouse is attempting to conceal, Forensic accountants may also assist with complex tax-related issues especially where there is some ambiguity about the exact tax ramifications of a particular distribution of assets or debts.  When high net worth marital estates and substantial earnings are involved, the tax consequences of particular property distribution arrangements can have a substantial impact on the fairness of the division of marital property.  This includes the value that one party may receive in the form of deferred tax consequences.

Another type of expert that may prove valuable in contested high net worth divorce cases involving the issue of alimony is a vocational expert.  When the earning capacity of one of the parties is in question, the vocational expert can analyze the education, training and work experience of a spouse to determine the current and future earning capacity of the spouse for purposes of determining the amount of alimony.

Above are just a few basic examples of the different experts that may be needed in a contested high-asset divorce case.  Depending on the specific facts of the case, additional experts, such as real estate appraisers who can determine the value of both residential and commercial property, pension valuation experts, and fine art consultants/appraisers, may also be required.

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Sunday, May 13, 2012

Dispelling Common Misperceptions about Annulment in Florida

Many people misunderstand the fundamental difference between divorce and annulment.  There is a common misconception among some that annulment is an alternative to divorce that is available to those with religious objections to divorce or to dissolve extremely short marriages.  Annulment is actually the process of having a marriage officially "erased" as if it never existed in situations where some legal deficiency made the marriage voidable from the outset. 

It is important to understand the distinction between "void" and "voidable" marriages.  A void marriage never legally exists so it confers no legal rights or obligations.  Examples of void marriages include those where a person marries without a final divorce from someone else, or the parties are too closely related to get married.  Voidable marriages involve situations where a legal deficiency may provide a basis for one party to have the marriage erased so that it is like it never existed.  If neither partner decides to take this step, the parties may ratify the marriage.  A void marriage cannot be ratified by the parties to cure the legal defect.

While the annulment process in Florida courts is similar to the divorce process, there are differences.  The court may divide property and debts acquired after the marriage ceremony.  However, permanent alimony is not typically awarded when a marriage is annulled in Florida, but a Florida family law judge does have the power to award permanent alimony and attorneys fees to an innocent spouse.  If you are thinking about dissolving your relationship through the annulment process, you should speak to knowledgeable Palm Beach divorce lawyer James S. Cunha who can analyze your situation and advise you regarding the advantages and disadvantages of annulment.

The annulment process also differs from divorce because it is only available in limited situations including the following:

  • One of the parties is married to someone else
  • The marriage is the product of fraud or duress
  • A party lacks mental or physical capacity to enter into marriage
  • The couple are too closely related (i.e. incest)
  • Lack of consent or too intoxicated to consent
  • Not of sufficient age to consent to marriage

If your spouse is seeking to annul your marriage, you may be able to challenge annulment based on ratification.  If the aggrieved party learns of the legal barrier to the marriage and continues to live together as though married, this ratification of the marriage may prevent annulment.  In such a situation, the other spouse would need to seek a divorce rather than an annulment.  Whether you are seeking an annulment, opposing an annulment or just have general questions about the differences between annulment and divorce, we invite you to contact our knowledgeable and caring Florida family law legal team.  No matter where you are located, experienced Palm Beach annulment attorney James S. Cunha and his legal team are just a phone call away.

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The Law Offices of James S. Cunha, P.A. assist clients with Family Law Matters, Divorce, Personal Injury Commercial Litigation matters, Business Law, Family Law, Wrongful Death, Estate Planning, Probate & Estate Administration, Tax Law, Insurance Regulation & Defense and Criminal Defense in West Palm Beach, Lake Worth, Palm Beach Gardens, Boynton Beach, Jupiter, Delray Beach, Boca Raton in Palm Beach County. We also offer legal representation to clients who reside in Martin, St. Lucie, Okeechobee, Hendry, Broward, and Miami-Dade.

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