Present Positions on Professional Goodwill: More Focus or Simply More Hocus Pocus?
by Christopher Tiso
Professional goodwill and its components of “personal” and “enterprise” goodwill have been a quagmire for courts in dissolution of marriage proceedings. The reasons for its inclusion in or exclusion from the marital or communal estate can be as diverse as the different methods employed in valuing it. As one court recently stated: “Accountants, writers on accounting, economists, engineers, and courts, have all tried their hands at defining goodwill, at discussing its nature, and at proposing means of valuing it. The most striking characteristic of this immense amount of writing is the number and variety of the disagreements reached.”
This article is intended to summarize the present state of the law on professional goodwill among the states. In its current posture, it would not be too much of a stretch to categorize the cases on the subject into three simple groups—the black group, the white group and the gray group.
However, before categorizing the groups, it is important to understand the meaning of “goodwill.”
Probable Problematic Pitfalls in Preparing Prenuptial Agreements
by Melvyn B. Frumkes and Christopher A. Tiso
As the use of prenuptial agreements (hereafter “PA”) becomes more widespread, so does the deluge of cases interpreting, enforcing, and invalidating them. The practitioner preparing a PA for a Florida resident or a client who may someday reside in Florida must be cognizant of the pitfalls that abound. Some pitfalls should be manifest while others less conspicuous. Ignoring the pitfalls is a recipe for a malpractice claim.
The (Hopefully) Obvious Pitfalls
Consideration. Often, PAs recite the boilerplate “for good and other valuable consideration” or make no reference to consideration at all. The PA should recite that the marriage is the consideration for it. By doing so, the practitioner will likely avoid a challenge, as occurred in Akileh v. Elchahal, 666 So. 2d 246 (Fla. 2d DCA 1996), that there was lack of consideration for the PA.
Are Contingency Fee Cases Part of the Marital or Communal Estate?
by Christopher Tiso
This article deals with whether an attorney spouse’s interest in work in progress on contingency fee cases worked on and/or acquired during the marriage constitutes part of the marital/communal estate subject to division.
The article also explores some of the concerns and nuances associated with valuing such interests and protecting attorney-client confidentiality. There is a dearth of appellate cases directly dealing with this issue.
Are Attorney's Fees Deductible? Not So Fast!
by Christopher Tiso
When clients – generally former clients for whom legal services have long since terminated – ask about deducting their attorney’s fees, the request goes something like this:
“My accountant says I need a letter from you indicating what portion of your fee is deductible. As you know, I’ve paid you a lot of money and I want to deduct as much as possible.”
Long-arm Jurisdiction in Support and Divorce Actions—The Unwary Beware
by Christopher A. Tiso
Clearly, personal jurisdiction over a respondent can be obtained by service of process within the state. However, if resort to service outside of the state must be made, strict adherence to the applicable long-arm statute is required.1 Different states have different rules and procedures, although all must comport with constitutional mandates of due process.
The rules and procedures for alleging and proving (or disproving) long-arm jurisdiction in support and divorce actions in Florida are not complex. Yet, a practitioner without knowledge of them could find himself or herself quite embarrassed.
“Family Support” And The Impact Of Child Support Guidelines
by Christopher Tiso
“Family Support,” the new genre for unallocated child support and spousal support (alimony/maintenance) is a permissible tax-savings vehicle under the Internal Revenue Code (I.R.C.). It can, under certain circumstances, provide a considerable income tax benefit for both parties and their children: less paid to Uncle Sam and more available for the family as a whole. Family law attorneys and judges alike should be aware of its advantages, the required conditions for it, and its potential pitfalls and traps. Family law practitioners and courts must also be cognizant of the specific law in their own states as some seemingly mandate child support in an allocated amount in accordance with their child support guidelines. However, state courts have traditionally ordered unallocated support, and most state guidelines allow deviation for income tax considerations or to achieve an equitable result. Saving income taxes for the benefit of the parties and their children would certainly appear to be an “equitable result” and arguably satisfy either factor.