179 - Q&A
Leh Meriwether: Welcome everyone, I'm Leh Meriwether and with me is Todd Orston. We are your COVID-19-hosts for Divorce Team Radio, a show sponsored by the divorce and family law firm of Meriwether and Tharp. Here we'll learn about divorce, family law and from time to time even tips on how to save your marriage if it's in the middle of a crisis. If you want to read more about us, you can always check us out online at atlantadivorceteam.com. Are you ready to go, Todd?
Leh Meriwether: Yeah, I was about to say.
Todd Orston: You know I happy to be
ready right now. Wait.
Leh
Meriwether: Oh, okay.
Todd Orston: Wait. Now I'm ready.
Leh
Meriwether: Hey, welcome back
everyone. Today, we're going to tackle some more questions. I love questions
because sometimes certain topics can't take up a whole show and the nice thing
about some of these questions is that it gets into some of the nuances of
divorce and family law and we can dive into them and perhaps you may not be dealing
with that exact issue in front of you, but you can see how we analyze
situations, cases, facts, the law, how the law applies to certain fact patterns
and perhaps this will help and your divorce or family law case.
Todd Orston: I agree.
Leh
Meriwether: Good. Well, we're
going to start with a little evidence, so Todd-
Todd Orston: Yep.
Leh
Meriwether: ... what is the
statute on evidence in court? Here's the question and you don't have to give
the statute number or any of that. How far back does a judge look at evidence
in a custody case if a parent overdoses on drugs and the incident happened six
months prior to the court date, does the judge still take that into
consideration with history or would that be thrown out?
Todd Orston: All right, so first of all
it also depends on if the court date in question is the initial court date,
meaning the original court date where custody issues are being resolved or if
we're talking about a modification case and I'll explain why. In an original
case, what we're dealing with-
Leh
Meriwether: When we say
original case, we're meaning this is the first time a judge has ever issued a
final order about the custody of a child or children.
Todd Orston: Correct. As opposed to a
modification case where there is an original order already in place and you are
trying to modify or change the terms of that order. If no order has ever been
entered, then anything relating to custody that occurred during the marriage
you can bring up. If it's a modification case, for the most part the rule is it
is what has changed since the entry of that original order and therefore what
evidence is there of actions or failure to act, things that could impact a
design on custody. What has happened since the date of entry of that original
order? In terms of a response to the question, it depends on what kind of a
case and if it's a modification you really are going to be pushed to show that
there's been a change. What we call it is a material change of circumstance and
that's what the court's going to look at to determine whether or not it
warrants modification.
Leh
Meriwether: Right. Again, we
are focusing on Georgia right now. Every state's different on this particular
issue, but for the most part with some exceptions, the issue of when a drug
overdose occurred is going to be a question of relevance. The issue is
relevance. I'm going to change from six months. Maybe it happened 15 years ago
before the children were ever born-
Todd Orston: Exactly, yup.
Leh
Meriwether: ... and there's
been no incidents of drug use since then. Well, the court's going to say ...
your lawyer would ... If someone started to question someone about, "Well,
isn't it true that in 2005 you overdosed on cocaine." Your lawyer would
object and say, "Judge, I'm going to object to this. It's not relevant
today. There were no children at the time and there's no allegations that he or
she has been using drugs during the course of the children's lifetime." In
the case, the judge would be like, "We're not going there."
Todd Orston: Well, the court could
basically agree with your objection and exclude that evidence or the court
could say, "I'm going to let it in," but in essence the court's not
going to care. I've had people come to me and say, "Oh, my husband or
wife, you know, they got a DUI." Oh, when? 12 years ago. My response
usually is the court's not going to care. Tell me what has happened since then.
If you said, "12 years ago and then 11 and maybe 10 and eight." It's
sort of a yearly thing that they like to do. Then I'd be like, "Yeah, that's
absolutely relevant." Or jokes aside, 12 years ago and then just got
another one.
Leh
Meriwether: Right.
Todd Orston: Okay, well now-
Leh
Meriwether: Then it shows
some sort of pattern.
Todd Orston: Exactly. The court's still
not going to care so much about what happened 12 years ago. I get that a lot
where it may be something that happened. People will be like, "Oh, you
know, there was a drug charge," and I said, "When did it
happen?" Oh, my spouse was in high school. Huh. Okay, how old are you now?
Okay, you're 40 something. Yeah, the court's not going to care about that. When
you think about it, just think of it in terms of is the behavior on question
something that would lead a reasonable person to worry that that behavior could
impact the children or child involved. Something that happened 12, 15 years ago
with no recurrence, the court's not going to care.
Leh
Meriwether: As far as the
issue of what is the ... It's not necessarily a rule that's like comes in or
this comes out. It's all relative because it's relative and the context in
which the drug incident occurred is critical. If there were no kids around, the
kids hadn't been born. Let me rephrase it. Let's say it was six months ago and
the child was born three months ago and there's been no prior case that's
absolutely relevant and the court's going to let that in.
Todd Orston: Yeah, because it's still
recent, it's still ... We're not talking about 12 years ago and you just have a
child. We're talking about a few months during the pregnancy even that bad
behavior occurred, right?
Leh
Meriwether: When you should
be caring for ... In this hypothetical, we're saying the husband was the one or
the father was the one that had the drug overdose. Obviously, if the mom had
the drug overdose, wow, that would be much worse. Again, it's all in context-
Todd Orston: It is.
Leh
Meriwether: ... and that's
the critical point. It's in the context.
Todd Orston: Before we move onto the
next one, there's one other comment that I have to make. If you find yourself
and I hope nobody listening does, but if you find yourself in that kind of a
situation here's another sort of fly in the ointment. If, let's say something
happened a year ago, all right? A year ago is still recent enough that it is to
whatever degree relevant and a court might care about some bad behavior that
occurred, but let's say it's drugs or how about this? It's alcohol and there's
an alcohol abuse allegation. Maybe there was a DUI, but since that time you
have allowed the other party to drive without limitation. In other words, the
other parent is driving day after day after day and then all of a sudden a year
later you're walking into court going, "Oh yeah, well we can't trust him
because he has a DUI."
Todd Orston: Well, I can tell you right
now I have attacked that kind of an argument by saying, "Well, if you
cared that much then over the last 12 months you haven't limited the driving,
so clearly you think that it was a one-time issue and you have renewed your
trust in that parent to be able to drive so now all of a sudden"-
Leh
Meriwether: With the kids.
Todd Orston: ... "with the kids and
now all of a sudden you're just trying ... basically you're just trying to get
some mileage out of that previous DUI in this current custody case." It
really comes down to if you care about it and I don't mean that in a negative
way. I mean, if it bothers you and if you are concerned about it, you have to
show that it concerns you. If it concerns you start to limit the other parent's
ability to drive, let's say, so that way if 12 months from then you do have to
move forward with the divorce you can say, "Look, I took steps immediately
to limit the driving" or whatever it is that you're worried about, to
limit it because I was concerned.
Leh
Meriwether: I've literally
seen that exact scenario happen, not where they didn't do anything, where they
actually did do something and it was the husband. He was drunk. He went to take
the kids to the park and mom said, "Absolutely not. I saw you drink six
beers. You are not driving off with the kids. Heck no." They got into a
fight. She called the police. He drove away because he knew he was drunk. This
was 15 years ago. I kind of wished they'd gone after him, but they didn't go
after him. There was a police report and this happened two or three times. When
we came to court, we had the police reports as evidence that has been an
ongoing concern to the point where she had to call the police. Needless to say,
his parenting time had severe restrictions on it because he absolutely was
suffering from alcoholism to the point where he was endangering the kids. It
was not a good scene.
Leh
Meriwether: All right, one
more thing before we move away from this and we're almost out of the time for
this segment. Actually, when we come back we're going to wrap this up by
talking about when might this be relevant when you've got a modification case
because there can be limits on when this kind of evidence comes in if you are
going to court to modify your custody case and we're also going to address the
question of what are my options for a speedy divorce if my husband is not
cooperating. We'll hit those two when we come back.
Leh
Meriwether: I just wanted to
let you know that if you've ever wanted to listen to this show live you can
listen at 1:00 a.m. on Monday mornings on WSB. You can always check us out
there as well.
Todd Orston: Better than counting sheep,
I guess, right? It's-
Leh
Meriwether: That's right.
Todd Orston: You can turn on the show
and we'll help you fall asleep.
Leh
Meriwether: There you go.
Todd Orston: I'll talk very soft.
Leh
Meriwether: Welcome back
everyone. I'm Leh Meriwether and with me is Todd Orston and you're listening to
Divorce Team Radio, a show sponsored by the divorce and family law firm of
Meriwether and Tharp. If you want to learn more about us, you can always check
us out online at atlantadivorceteam.com and if there is a part of the show that
you wish you could go back and read part of it, we actually have transcripts of
the show at divorceteamradio.com.
Leh Meriwether: Today we're addressing some
Q&As or answering some questions I should say. We're spending a little bit
more time on some of these questions than maybe normal because we're using it
as an opportunity to really dive into a specific, almost nuanced issue. Right
now, we're talking about someone overdosing on drugs and just to wrap it all
up, we wanted to talk about when evidence of a previous drug condition may be
excluded for evidence. Again, we're very specifically talking about Georgia
here. There's not statute on it, but there's actually a case on it. Let's say
you're in the middle of court and the opposing side stands up and starts asking
questions about someone's drug use before a divorce was granted, but there's
been no allegation of drug use since then.
Leh
Meriwether: Your lawyer would
stand up, object that line of questioning because it's what called res
judicata, meaning that condition existed before the last order and when the
order came out from the court it addressed that condition, so you can't bring
it up and re-litigate it years later in a modification. That's sort of the
exception where that may not come into evidence. If it was something that
happened years ago, but hasn't happened since. There's sort of an exception of
when that information may come in. You want to talk about it, Todd?
Todd Orston: No. You were doing a great
job. I mean, I'm sitting here taking notes.
Leh
Meriwether: Well, the only
time ... All right, I'll finish it then. The only time it may come in, so let's
say the condition didn't go away, the drug use didn't go away. If it's simple
... I don't want to say simple drug use. If the condition continues you have to
show there's been a change. Maybe during the divorce there was the use of
marijuana and it didn't impair ... I mean it impaired the ability of a parent
to parent their children, but it wasn't a high-level impairment. Now they have
moved on to crack cocaine and methamphetamines, which is dramatically more
impactful on your ability to parent than marijuana is, then that actually can
... you can bring the issue of the marijuana use up to sort of establish the
... "Here's where we started Judge, and it may not be relevant for the
purpose of this modification, but Judge, in the previous divorce he'd had
marijuana or she was a heavy marijuana user and you issued this order because
of that heavy marijuana use. Today, this is what's happened since then."
Leh
Meriwether: That's the only
time that might come ... Well, maybe not the only time, but that's an example
of when something prior to the last custody order may come in.
Todd Orston: Yeah. It's foundational. I
think what we're trying to say is you can use it to build that foundation that
hey, there was a previous problem and now that problem has just gotten worse
and it's still impacting, let's say, the children, so to tell your story I
think you'll be allowed to present the information. If all you have is that
information from the past, you're not going to get your modification because
you haven't met that requirement to show that there has been a change of
circumstance. But to show, hey, there was a problem before we addressed it,
it's gotten worse. Then I think to tell the story and build that foundation you
can.
Leh
Meriwether: All right. Next
question. What are my options for a speedy divorce if my husband is not
cooperating? I filed in February 2019 and he has not turned over any financial
records, financial affidavit, I'm reading into this question, or any important
documents. Is there such a thing as a speedy divorce demand, Todd?
Todd Orston: No. No. Now in criminal law
where life and liberty is hanging in the balance you can file a speedy trial
demand and basically that means you have said to the prosecution, "Do this
within this very short period of time or this case has to be dismissed."
We do not in family law context. We don't have that same kind of a rule. Right
now, we're really struggling. The criminal justice system is really struggling
in COVID time because courts have been shutdown, jury trials have been stopped
and therefore criminal defendants are in essence languishing in jail unable to
have their court dates, so it's a real issue. Family law, you don't have
because life and liberty isn't hanging in the balance. You don't have that same
right, but that doesn't mean you just have to sit back, twiddle your thumbs and
maybe in the next decade or so you'll get your divorce. There are things that
you can do to move the case forward if the other side is not cooperating.
Leh
Meriwether: We're going to
dive in. What can this person do?
Todd Orston: Well, so depending on the
county there might be a standing order that requires let's say turning over of
a domestic relations financial affidavit. If there's an order that requires
something then number one you can push compliance by filing a motion for
contempt. If you have filed your own discovery, meaning you're asking the other
side under court order. I mean, you're basically saying that through the power
of the court I am compelling you to provide this information. If they don't
comply, you can file what's called a motion to compel. There are ways to get
the information. Now, there are some situations where parties are like,
"Look, I've been asking for this for 12 months. They didn't give it to me.
I went to the bank. I got the documents that I need. I had a filing cabinet in
the house. I have I believe what I need."
Todd Orston: Then, what you can do is
you can make a motion to the court to be placed on a trial calendar. Even if
they're dragging their feet, not doing anything, contact the court, get onto a
trial calendar and then when the court date comes you're going to go to court
prepared. If the opposing party doesn't even show up, just be prepared to have
in essence a hearing where you present your evidence to the court and hopefully
the court's going to have that hearing and then the grant the divorce and give
you what it is reasonably speaking give you what you're asking for. If the
other party shows up, make sure the court understands they haven't complied in
any way, here's my evidence and when they're yelling about they want a
continuance because they're not ready hopefully the court's not going to
entertain that request because they're going to be like, "You know what?
This has been pending for two years and you haven't done anything to move you
case forward."
Leh
Meriwether: I've had both
those scenarios happen. In one case, the person was uncomfortable. Not only is
there a standing order option, but the uniform superior court rules here in
Georgia have certain requirements when you're supposed to turn over your
domestic relations financial affidavit, as well as child support worksheets if
children are involved. There are certain deadlines set up in the rules. Other
states have the same thing. It's not just limited to Georgia. Every state's a
little bit different about the timelines, about when you have to turn over
these documents. Florida has mandatory documents you have to turn over, it's in
the statute. These things are often ... they're mandatory. You have to turn
them over. I had a case, again, unfortunately it was the husband who wasn't
cooperating. Represented the wife. She had to spend a little bit more money,
I'm just being upfront, and we subpoenaed all the documents we needed. Normally,
it's just easier to get them from the other side. He wasn't cooperative. We
subpoenaed him from the credit card companies from the banks, et cetera. Went
to court. He didn't show up. We were actually asking for some pretty
extraordinary relief. It was a 30-minute hearing because there was nobody to
object us turning in all the documents.
Leh
Meriwether: We presented to
the judge all the documents to support our request and the judge said,
"You know, if you hadn't brought these documents to me I would've
struggled, even though he wasn't here to sign this, but it's clear you've got a
valid case." He signed the order and gave us everything we asked for her.
When the husband didn't move out of the house, and this particular case was 15
years ago again, maybe it was 10 years ago. The sheriff's deputy had to remove
the husband from the house to enforce the court order and he didn't do some
other things so he had to go to court. He didn't show up for the contempt case.
Judge issued a warrant for his arrest. Eventually we got everything we needed.
It was just a pain in the butt. When people sit in jail, often can be motivated
to comply.
Leh
Meriwether: We've had another
case just recently, I think a couple years ago. Wasn't ours, but another
attorney in the office went to court. Again, the other side didn't turn over
documents, but our attorney was prepared. When they tried to present a
financial affidavit that was contrary to the documents our lawyer object said,
"Judge, they had all this time to comply. They didn't comply. They didn't
turn it over. They didn't follow the law. I'm asking this court to exclude
their documents for a failure to comply with discovery, this court's order and
the uniform superior court rules" and the judge did. The judge made a
financial ruling based on only our documents. We're almost out of time again.
Todd Orston: Yup. I was about to say ...
I was going to jump and I'm like, "Yeah, we're done for this
segment."
Leh
Meriwether: Yeah. When we
come back, we're going to talk about some more questions.
Todd Orston: Hey everyone, you're
listening to our podcast, but you have alternatives, you have choices. You can
listen to us live also at 1:00 a.m. on Monday morning on WSB.
Leh
Meriwether: If you're
enjoying the show, we would love it if you could go rate us in iTunes or
wherever you may be listening to it. Give us a five-star rating and tell us why
you like the show.
Leh
Meriwether: Welcome back,
this is Leh and Todd, your co-hosts for Divorce Team Radio, a show sponsored by
the divorce and family law firm of Meriwether and Tharp. If you want to read
more about us, you can always check us out online at atlantadivorceteam.com and
you can get transcripts of this show and past shows at divorceteamradio.com.
All right. Let's keep going.
Todd Orston: You ready for the next
question?
Leh
Meriwether: I'm ready.
Todd Orston: All right, so this comes
from someone who had a final hearing and seems to be experiencing some
struggles getting things over that proverbial finish line. What they said was,
"What can I do after a final divorce hearing and the decree hasn't yet
been signed by the judge?" They write that the court heard the case, it
was a contested divorce. The judge left, came back with the decision and asked
opposing counsel to write up the decree. Six weeks later, I haven't heard a
response from my attorney and a final hasn't been filed with the clerk. I was
verbally awarded certain things like portion of a 401k in my spouse's name, the
marital residence and basically the person goes on to explain some of the
specifics of the order, but I think the main point is nothing's been done, so
the case is sort of just sitting while they are waiting for opposing counsel to
put together this order, present it to them for review, but then present it to
the judge for execution. The question is, what would you do? Leh, what would
you do?
Leh
Meriwether: I've had this
exact scenario happen and it is so frustrating from my client's perspective
because drafting a final order if there was a lot involved in the case it could
be ... you could spend significant ... You could pay your lawyer a few hundred
bucks to $1,000 or $2,000 dollars if it's a complicated order and it's a 10 or
20-page order. It can take a lot of time to put that together. You've already
heard that the judge ordered the opposing side to draft it and now here
nothing's happening. Well, one of two things often happens on the other side.
One is the attorney on the other side hasn't been paid by the other party and
so they're kind of waiting to get paid to draft the order. I've seen that
happen before. There's other times where the lawyer on the other side drafts it
and sends it to their client for approval before they send it to the opposing
counsel or the court and they get in an argument with the client, "I don't
remember the judge saying that" and "No, he didn't say that" or
"We need to ask the judge to amend this."
Leh
Meriwether: The lawyer's
like, "That's not going to happen, we need to submit this order." The
lawyer on the other side, they can't disclose what's going on because of
attorney/client privilege. Just giving you an explanation of two possible
reasons why this hasn't happened. Of course, the third one is maybe the
lawyer's been busy and just hasn't put it together. All three of those I've had
happen. Here's what I do. If I've reached out to the lawyer several times and
have not gotten a response or if I've gotten a response to the first two
examples perhaps I give a little bit of grace, but not a whole lot and then I say,
"Well, look if you're not going to draft it I'm going to go ahead and
draft it and submit it to the court and ask the court to wait a week or two for
your input before he or she signs it." I go and draft the order. If for
some reason ... This has happened.
Leh
Meriwether: When a judge
says, "Opposing counsel draft the order," I'll take notes. I take
better notes when I'm the one drafting it, but I'll take key points. There have
been a few times where I actually order the transcript of the judge's ruling and
then use that to draft the order so there's no argument about it. I draft it,
send the proposed order to opposing counsel. Hey, I drafted this. Any
objections? If I don't hear within three days, go and submit it to the court.
Tell the court, "I know you had instructed opposing counsel to draft it.
It's been six weeks. I drafted it. I sent it to opposing counsel, never heard
anything. I've sent it to the courts for their consideration and if you don't
hear from opposing counsel within a week or seven days of this letter, would
the court be so kind to go ahead and execute this order?" That moves it
along. Unfortunately, it cost my client money.
Todd Orston: Yeah. I mean, in summary
I'm going to put it this way. Up to a certain point the argument ... Not the
argument, but the statement that you might get from your attorney that hey,
it's their responsibility, they're dragging their feet, that only is a valid
statement for so long. At some point, you're going to have to instruct your
attorney and really your attorney should already be thinking of this and coming
to you, telling you, "Here is your option." It's going to be for you
to say, "We need to now be proactive, so let's go ahead, move forward with
the drafting." And then, like we said, present it to the judge and say,
"Hey, give them an opportunity to review I understand, but they drag their
feet for X amount of time." Now that also sometimes happens.
Todd Orston: Look, it's not uncommon
also to just have a disagreement as to the drafting. Understand I've had
hearings and then we get the order, the other side was supposed to prepare and
I review it. I'm like, "Were we at the same hearing because I am fairly
certain that is not what the judge said" and there's a disagreement and we
have to prepare that proposed order anyway, in other words our own draft, and
then we send it to the court and we're like, "Look, there's a disagreement
as to form. Your Honor, here's our draft. We believe this reflects the actual
order issued by the court from the bench and we ask that you accept our
draft," and then the court decides.
Leh
Meriwether: Yeah. And that's
when we order the transcript too.
Todd Orston: Correct. Exactly.
Leh
Meriwether: Thankfully, with
today's technology we can send the order in Word format and often the judge
will tweak it. Now understand this too, to be clear, the order is not official
until it is signed by the judge and filed with the clerk, that's here in
Georgia. The judge actually can tweak things and there's nothing wrong with the
judge tweaking things, so just be aware of that. I've seen things where the
court, when they see it in writing they're like, "You know what? Now that
I see this I don't like the way I phrased this in my oral ruling, so I'm going
to modify here."
Todd Orston: Yeah. One other thing that
just came to my mind that you want to be aware of, if there is a significant
delay in getting the final order make sure that you talk to your attorney about
when you prepare the document you can put the judge's signature and it can say
nunc pro tunc. It can date back to the date of the original hearing and the
original issuance of the order. In other words, that might come into play where
we're talking about the value of an account. An account will be divided as of
the date of this order. Well, that's great except that if eight weeks later you
still don't have an order and the value of that account has changed over time
and there's no other protectionary language that neither party shall withdraw
or anything like that, then unfortunately your interest in that asset may have
been reduced, maybe even due to the bad behavior of the other party. They took
money out, they did something. You need to make sure the order when you receive
the written order dates back to the date that the verbal order was issued by
the court.
Leh
Meriwether: That's really
going to apply to the 401k, because I think in this particular set of
circumstances-
Todd Orston: That's right.
Leh
Meriwether: ... there was a
401k. When you have someone draft the what's called QDRO, qualified domestic
relations order, you need to make sure that it says ... I'll give you few tips.
Make sure that it says ... Because the QDRO is a separate order, by the way. It
should say the person either gets the entire value as of this date plus or minus
gains or losses. When I say this date, the date of the judge's oral ruling or
if they're splitting it says they get 50% as of this date, the date of the ...
Since there was a huge delay, you actually need to put in the date of your
hearing and here's why. Let's say there was just 50 grand in a retirement
account and then the husband pulls out $25,000. By the time you actually get
the order filled there's only $25,000 in the account. Well, that's not going to
matter to you because if you draft the order right it'll be you get 50% as of
when it had 50 grand in it.
Leh
Meriwether: Even though the
husband took 25,000 out, if you draft the order right the plan administrator
should pull the entire 25,000 out, provided it hasn't changed the result of
market forces and give that to you. That's why this sort of how it's drafted is
critically important.
Todd Orston: Yup. Again, these delays
just to sum everything up, at some point you can't just sit back and be the
victim. You can't just sit back and say, "Well, they're not doing
anything, oh, woe is me, what can I do?" There are things you can do.
Leh
Meriwether: Right.
Todd Orston: You just need to talk to
your attorney, if you have an attorney. If you don't, either have a
consultation or you just need to listen to this show I guess and educate
yourself, understand there are things you can do to move them forward, but it
takes work. It's going to take effort on your part and communication between
you or your attorney and the court to actually get the other side out of
neutral.
Leh
Meriwether: When we come
back, I'm going to answer two questions. What are the exact documents needed to
file an uncontested divorce settlement with no children and can a spouse
dispose of marital property in Georgia? Here's another one. What can I do to
stop my husband from selling the house without my knowledge or divorce papers?
We'll be right back.
Leh
Meriwether: I just wanted to
let you know that if you ever wanted to listen to this show live, you can
listen at 1:00 a.m. on Monday mornings on WSB. You can always check us out
there as well.
Todd Orston: Better than counting sheep
I guess, right? It's-
Leh
Meriwether: That's right.
Todd Orston: You can turn on the show
and we'll help you fall asleep.
Leh
Meriwether: There you go.
Todd Orston: I'll talk very soft.
Leh
Meriwether: Welcome back
everyone. I'm Leh and with me is Todd. We're your co-hosts for Divorce Team
Radio, a show sponsored by the divorce and family law firm of Meriwether and
Tharp. If you want to read more about us, you can always check us out online at
atlantadivorceteam.com and you can find past episodes wherever you get your
pods, which is short for podcasts, or at divorceteamradio.com, where we also
have the shows transcribed.
Leh
Meriwether: Okay. We've been
answering some very nuanced questions, very important questions though,
surrounding divorce and custody cases. In that regard, we have another
question. Todd, what are the exact documents needed to file an uncontested
settlement agreement with no children?
Todd Orston: All right, so really what
the question is, is what documents do I need to file and obtain a final divorce
because in order to file the settlement agreement you need to have the pending
divorce case. What I'm really going to say ... I'm going to give an answer for
Georgia, but you need to check the website for whatever you county you live in.
Wherever you are, whatever jurisdiction you're in, there might be different
rules. If you're in the different state there clearly are going to be different
rules or even documents that are called different things. You have to check and
oftentimes you can get a lot of that information off of the website, depending
on the county. If it's a bigger county or if they just have a great website,
you might even be able to find forums and just by looking at that you'll be
able to see in let's say a uncontested divorce packet what documents are
required. You're going to have some case initiation forms.
Todd Orston: You're going to have what's
called an acknowledgement of service, which is basically the other party
saying, "Yes, I've been served. You don't need to have a sheriff deputy
serve me." A consent to trial after the 31-day waiting period then you can
file with a petition for divorce and obviously the settlement agreement that
you have reached, if there are no children, then there are no documents
relating to custody or child support. After the 31-day wait period in Georgia
has expired, at that point you will have presented the court with a proposed
final order that hopefully the court will sign that basically incorporates the
agreement that you reached.
Leh
Meriwether: Let me add this
one thing. A lot of people can do this on their own, but before you sign any
document please, please, please just have a consultation with a lawyer. Lawyers
will charge to review documents. Sometimes it will be an hourly rate, sometimes
it will be a flat fee. It could be 150 bucks and maybe 300 bucks. Maybe an
expensive lawyer could be more, but it is worth it to do that because you may sign
a document where it seems simple to you, but because of certain laws in place
that you may not be aware of and maybe something you can't accomplish, you may
be committing to do something that basically causes you to be poor the rest of
your life. I've seen people do that. Even if it seems simple to you, just have
a lawyer review it and then you can do everything else yourself. Whatever that
settlement agreement is make sure you've gotten some good legal advice on it.
All right, so that was my two cents. I got another one for you, Todd.
Todd Orston: All right, I'm ready.
Leh
Meriwether: Can a spouse
dispose of marital property in Georgia? Divorce was filed two years ago. Had to
drop it temporarily. I guess they dismissed it. Had been living in the same
house, not as husband and wife. I guess they were considering themselves
roommates. I don't know. The spouse has threatened to get rid of our cat by the
end of our week if I don't simply ... I guess the cat's been vomiting in the
house and one of the spouses throw the cat out. What can I do to stop him from
taking any liberty he wants if there's no divorce filed right now? Because in
Georgia actually pets are considered property.
Todd Orston: Yeah. I mean, look first of
all I'm going to just focus momentarily on we're not in the same house as
husband wife. Yes, you are. Until a divorce is granted you can think of
yourself as something other than husband and wife, just roommates or whatever
the case might be, but you are married and so you may not be living as husband
and wife meaning as a healthy relationship husband and wife might be living
together, but you are legally speaking husband and wife. In essence, what
you're saying is without a pending divorce case can my spouse just do whatever
he wants with the cat or I mean obviously nothing illegal, but the answer is
unfortunately if there's no court standing over you guys monitoring behavior
and making sure nobody does anything dumb, then there's no place for you to go
to get the protection that you're talking about. I understand you may be in
situation where you're like, "Look, the cost is too high" or whatever
the case might be. We can't move forward with the divorce. The answer is,
"Yes, you can." You can do things on your own to at least point ...
You can spend $150, $300.
Todd Orston: You can have a consult. You
can just understand what your rights are and then you can go and you can file
documents on your own and at that point he can kick you out of the house. He's
not supposed to do anything stupid with property and definitely shouldn't do
anything stupid or illegal with your cat. I mean, both Leh and I, we're pet
people, so I get it. I know it's not even ... It doesn't even scratch the
surface by referring to a pet as property, but it is property and so you need
to get protection and the only way you're going to get that is by basically
filing or re-filing that divorce action.
Leh
Meriwether: Mm-hmm
(affirmative). The answer is going to be similar for the following question.
What can I do to stop my husband from selling the house without my knowledge or
divorce papers? I am 81 years old and my husband has decided to sell the house
without my permission or divorce papers. We've been married for 35 years and I
believe he has dementia. I would just say on this one, first off, if your name
is on the title he cannot sell it without you. Your permission to sell it is
required. There are some states that if you are married ... Let's say your
name's not on it. Here in Georgia, if your name is not on the deed to the house
he can sell it without your permission if there's no divorce filed. In some
states, that's not true if you're married. In some states, real estate agents
... Anyways, every state has its own set of laws when it comes to real estate,
but Georgia doesn't have that rule in place.
Leh
Meriwether: All right, so now
you believe he has dementia, so that's one of the objections you have. There's
two routes to take. The fastest is to file for divorce. It may not be what you
want to do, but if you're saying this is your sole asset and he's selling it
because maybe he's selling it to ... Maybe he's been conned. Oh my gosh, we've
seen this happen before where someone is suffering from dementia and they
liquidate their entire retirement account because someone has conned them and
they lose their entire ... Basically what they were living off of is gone now
because someone stole it essentially. The only way to stop that is with ...
well, two ways. Number one, a divorce action because in most jurisdictions a
standing order goes in place where it says neither party shall liquidate the
marital state, except in the ordinary course of business. Real estate is
something where the court would say ... The court could issue an order. You
could file a motion for contempt against him and issue an order that blocks the
sale. I'll tell you, any real estate agent, if they find out that divorce has
been filed and they're objecting to the sale and you give them a copy of that
standing order, they're going to put everything on hold because they don't want
to get in trouble.
Todd Orston: Yeah. Tell listeners also
about a lis pendens.
Leh
Meriwether: Yeah. You can
file ... Thank you for that. A lis pendens will definitely put a screeching
halt, maybe not it and it says in Georgia and some states. Other states have
the same thing. Basically, it tells everyone. It puts it on public record that
the ownership of this home is in question. It is-
Todd Orston: A clouds title.
Leh
Meriwether: Right. That's
another way of saying if you were going to buy it, the lawyer would do a title
search and see this lis pendens and say, "Whoa, whoa, whoa, whoa, we can't
close on this if ownership of this house is being litigated right now." No
mortgage will ever loan you any money to buy that house if there's a lis
pendens on it. That puts everything into a screeching halt and that's what you
do. Now the other thing to do is you could file in probate court to have him
rendered incompetent and that require ... I'm not going to go into that.
Todd Orston: It's not hard.
Leh
Meriwether: It's just another
option I'm going to throw out there because I did want to comment we had a
great positive review recently that I wanted to touch on before the end of the
show. This person gave us a five-star review, woo-hoo! I just wanted to share
this real quick. The reviewer wrote wonderful insights and I'm not going to
read the whole thing because it sounds as if this reviewer is still in the
middle of litigation. They wrote some really nice things. I don't want anything
get used against them because it sounds like it is a hotly-contested divorce.
What I love about this reviewer, they're not one of our clients, but according
to the reviewer "I have a great attorney and legal team, but of course
anxiety and emotions are running high especially when children are involved. I
love these podcasts and they've helped put me at ease, along with a ton of
great tips that I will be using for myself and strategically for my case."
Leh
Meriwether: It's giving her a
sense of peace and she said, "I love the deposition episodes, ways to
understand the nuances and help you when you have never been in the hot seat as
your life is going to be opened for interpretation. Keeping it simple and don't
worry about the story. I love this, especially when you have a high-conflict
case, so thank you so much." By the way, those deposition episodes are
episode 144 and 145 and we're out of time. Thanks so much for listening.