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Gavel-WeddingRigs
Any divorce case is a complex proceeding. Divorce becomes even more complicated when it’s intertwined with a personal injury settlement. When a personal injury settlement coincides with a divorce, the parties understandably want to know what happens to the personal injury settlement. Here’s what you need to know about how personal injury settlements are handled in a divorce. We talk to personal injury attorney and expert Jack Bernstein about this complex legal proceeding.

Is a Personal Injury Settlement Part of a Divorce Proceeding?

Yes, a personal injury settlement is part of the conversation in a divorce proceeding. Whether the settlement is subject to distribution in the divorce proceeding is a complex question.

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Protecting your business interests can take many forms. It may involve carefully negotiating a contract, or ensuring that the agreement that is drafted matches the results of the contract negotiations. Ideally, the contract you end up with will be flawless. Even if it isn’t, though, the flaws that may exist will not necessarily result in the invalidation of sweeping portions of the contract. As always, a knowledgeable South Florida commercial litigation attorney can give you the advice you need about your specific circumstances.

A case from the “Space Coast” provides an example. The underlying construction job was a residential condominium project in Brevard County that involved several buildings. After the construction was completed, the condo association sued the general contractor for alleged construction defects. The general contractor, asserting that the defects were really the fault of several subcontractors, filed a series of lawsuits against those subcontractors for contractual and common law indemnification.

Each of the agreements between the general contractor and the subcontractors contained the same indemnification provision. That indemnification provision was the key to the subcontractors’ defenses, as they argued that it was legally void and unenforceable. Specifically, the subcontractors argued that the provision didn’t comply with Section 725.06 of the Florida Statutes, which requires that all indemnification provisions in contracts for the “construction, alteration, repair, or demolition” of buildings must contain ‘a monetary limitation on the extent of the indemnification that bears a reasonable commercial relationship to the contract.’”

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In an important new ruling, the 11th Circuit Court of Appeals declared that a debtor in Chapter 11 bankruptcy was entitled to court approval of its proposed going-concern sale, even though the terms of that sale meant extinguishing the debtor’s obligation to honor previously made promises to pay health care benefits for its retired employees for life. The ruling demonstrates that, even in the face of significant hurdles (including federal statutory ones), there may be a path forward for failing businesses through Chapter 11 bankruptcy. If your business is considering its options in bankruptcy, be sure you have a knowledgeable South Florida bankruptcy attorney on your side.

The debtor was a company that produced and exported coal from mines in Alabama, West Virginia, Canada and the United Kingdom. A downturn in the coal industry led prices to plummet in 2011. After the price fell, the debtor could not generate enough revenue to meet its obligations. Running out of cash, the company filed for Chapter 11 bankruptcy protection in Alabama.

Through the bankruptcy process, the company attempted to sell nearly all of its assets as part of a going-concern sale. The sale price was $1.15 billion, and the buyer agreed to take on $115 million in the company’s liabilities. The buyer conditioned its purchase, however, on it not being obligated to meet the coal company’s collective bargaining agreements (CBAs) and not being required to pay health care benefits for the company’s retirees. (Previously, the coal company and the union had bargained for the company to continue paying health care benefits for workers even after they retired.)

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If your commercial contract eventually results in litigation, there are several things that are worth knowing, or at least being familiar with. One of these is the parol evidence rule. The parol evidence rule says that, when a legal dispute involves a contractual agreement, the court should resolve the case based solely upon the wording contained in the contract document itself. This rule can be very important in getting certain piece of evidence excluded. There are, however, some scenarios where the rule doesn’t apply and can’t be cited as the basis for keeping outside (or “parol”) evidence out of the record.

If the underlying agreement is unclear or ambiguous, then the rule is not applied and all evidence is admissible. The same is true if the contract document is shown not to be a “complete and accurate integration of the” agreement. Additionally, outside evidence is allowed if the party submitting it intends to use that proof to show the existence of fraud, accident or mistake. What you should take away from all of this is that there are many tools potentially available to strengthen your commercial contract litigation case, including the parol evidence rule, and the assistance of an experienced Florida business attorney can be invaluable in utilizing these tools to your maximum advantage.

As an example, consider this case that arose from work done on a major outlet shopping mall in the Tampa area. The electrical subcontractor on the job, which was responsible for light fixtures at the mall, obtained a price quote from a Miami-Dade supplier, which the subcontractor accepted. As the work proceeded, the subcontractor made nine change orders to the original purchase order, which made both qualitative and quantitative alterations to the initial terms.

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As a business person going through divorce, you have many worries that relate to your business assets. Not the least of these is that you and your attorneys will work hard, engage the other side in good faith, and eventually reach a resolution that is approved by both parties and the court, only to have that outcome unraveled by subsequent litigation by your ex-spouse. Wherever you are in the divorce process, don’t leave your substantial business interests to chance; instead, be sure that you have the knowledgeable South Florida divorce counsel you need.

As many business owners will attest, a business may be only one lost contract from financial crisis and one new contract from being flush with cash. These changes can happen literally overnight. Not all massive upticks in your business that happen shortly after your divorce goes final are the result of malfeasance, but your ex-spouse will probably try to argue that it was.

Take, as an example, a famous TV producer known for his police-and-prosecutors prime-time dramas on network television, but who was in the headlines recently in relation to his divorce. The producer and his wife worked out an agreement to resolve their divorce in 2003. The wife agreed to take a cash payment of $17.5 million and alimony of $2 million per year for eight years. She also got a house and other assets. At the time, the producer’s crime drama shows were allegedly valued at $4 million. Shortly after the divorce went final, the Los Angeles Times reported that the producer had signed a new contract with the network. The newspaper described it as a “billion dollar deal.”

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Recently a dispute over a personal guaranty on a loan went before the Third District Court of Appeal. That the case made it all the way to the appeals court was not surprising, as there were tens of millions of dollars on the line. As with so many commercial litigation matters, the outcome came down to the details of the drafting of the agreement. Given how much every detail can matter in these transactions, one thing to learn from this case is that it is extremely important to be sure you have skilled South Florida commercial litigation counsel on your side.

The transaction that set off the subsequent chain of events, including litigation, was a 2005 agreement for financing. Several entities, of which M.R. was a principal, reached an agreement with a bank for a revolving mortgage note and construction loan. The principal amount was $41 million. The entities intended to develop waterfront condominium homes in the Tampa area. M.R. personally guaranteed the loan.

Unfortunately for M.R. and his entities, the recession and the real estate market crash intervened. Most of the condo purchasers defaulted. By May 2008, the bank declared the loan in default due to non-payment. The bank moved to foreclose, and a $38.9 million judgment of foreclosure was entered. The obligation changed hands a few times and eventually a Tampa-area LLC emerged as the assignee.

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When you enter into a marriage – and you are someone with substantial assets that you own in your name alone – there are several concerns you may have (in the event of a future divorce). There are also several ways to address issues related to the large-value assets you possess prior to your marriage. A pre-nuptial agreement may be one way to approach the situation. Another way is simply to ensure that your separate property is kept completely separate and is never mixed (or what the law calls “commingled”) with your marital assets in any way. As always, if you have questions about your high-value separate assets and your marriage, talk to an experienced South Florida divorce attorney.

The residence or residences you own may represent a substantial portion of your overall wealth. Whether it’s a condo on Fisher Island Drive or a house in Coral Gables, your real estate holdings are an important piece of your overall financial picture and, certainly, losing 50% ownership of such a property simply due to a contested divorce is something you probably want to avoid. For E.E.S., his was a more humble property in Cutler Bay, but his legal case is still instructive for people with high-value assets.

The husband purchased the home with his own money in 2003. In 2005, he married the wife. Even after the couple’s wedding, the home remained titled in the husband’s name alone. During the couple’s marriage, the husband was the sole source of the couple’s income and his funds were the sole means by which the home’s mortgage payments were made. The evidence that the lower court heard offered nothing to indicate that the wife contributed anything to the value of the home. No marital labor, no improvements to the home, no financial contributions. Nothing.

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There are many things that may represent hurdles along the path of your lawsuit. While problems with your entity’s standing with the state’s Division of Corporations may represent a bump along your path, it does not have to be a permanent roadblock. With the help of skilled South Florida business counsel, these problems can be addressed and corrected, and you can continue your pursuit of your case in court.

There are many reasons why an entity might not be in good standing with the Division of Corporations. Administrative dissolution can occur for a variety of reasons, with some being as procedural as a failure to file an annual report. One reason why this might happen is if the entity is ceasing activity and winding down.

A case that originated in the Tampa area was an example. A fence installation business sued another business for civil theft, conversion and replevin. The defendant filed a counterclaim against the plaintiff.

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Commercial contracts require many things in order to achieve their maximum potential successful usefulness. One component to this maximization is making sure that you understand exactly what your commercial contract does, and does not, require of you. What are the situations in which your agreement requires a written modification? What are the situations in which you can proceed without a written modification? Being wrong about the answers to these questions can cost you thousands or even millions of dollars. In other words, it is essential to be right, which is one of many reasons why it is imperative to have knowledgeable Florida business counsel representing your interests.

As an example, consider this case from here in Miami-Dade County. A Miami painting business signed on to serve as a subcontractor that would provide painting and waterproofing services on a public building project in the Overtown neighborhood of Miami. Problems emerged when the building owner, Miami-Dade County, decided that it wanted the waterproofing work done in a particular manner not previously contemplated by the contractor or subcontractor. Meeting this added demand was more time-intensive and, therefore, more costly.

The subcontractor sent the contractor a change order for $95,100 for the extra work that was required. The contractor sent it to the county, but the county rejected it. The project architect expressly refused to approve the change order, contending that the more time-intensive work demand was “within the scope of the construction documents,” which would mean that the county was not required to pay the demanded extra sum.

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If you are an executive or senior manager of a business, then there is a reasonable chance that the income you receive from your work comes in payments that are a bit more complex that just X dollars per hour or Y dollars per year. You may receive a combination of salary, commissions, bonuses or other payments that are, when taken together, structured to represent your true compensation. This can potentially create challenges, however, if you go through a divorce. The precision of your marital settlement agreement may make huge differences in matters like alimony, as the exact definitions used may alter how much you are legally obliged to pay. When it comes to negotiating or enforcing a marital settlement agreement as a corporate officer or manager, be sure to look to a South Florida family law attorney experienced in handling scenarios like yours.

Take, for example, the case of D.W. and his wife H.W. The husband was a corporate executive and he was “subject to different compensation programs.” At various times, he received a base salary, income deferrals, and the opportunity to receive performance-based bonuses.

When D.W. and his wife divorced, they entered into a marital settlement agreement that resolved, among other things, alimony. The agreement stated that the husband owed the wife alimony in the amount of 30% of the husband’s gross income. The contract defined gross income as “periodic income that Husband receives as a direct result of his employment efforts, before considering any deferrals and tax affected retirement savings husband may elect to have deducted from his pay.”