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Episode 87 - Question and Answer Show
Todd Orston: Welcome, everyone. I'm Todd Orston. With me, of course, is Leh Meriwether. And Leh, I just want to say welcome.
Leh Meriwether: Oh, thanks.
Todd Orston: Oh yeah, absolutely. I want to make you feel comfortable.
Leh Meriwether: I'm glad you invited me on the show.
Todd Orston: Oh, absolutely. Absolutely. So as we always, or often, rather, do, people will call in. They have questions. They listen to the show, and they basically, as we ask them to do, they will come up with questions. Sometimes they are general, sometimes they are specific to something that they're dealing with. And so, we like to dedicate some shows to answering those questions, and that's what this show is going to be about.
Todd Orston: We're going to take some of those questions, some of the facts that, basically, people have presented in their questions, and we're going to try and answer some of the questions, try and provide some information; because again, at the end of the day, that's what the show is really all about. It's us trying to educate people, give them things to think about if they are, unfortunately, going through a divorce, or thinking about and contemplating a divorce, or some other kind of family law matter.
Leh Meriwether: Absolutely. Hey, everyone. Todd and I are partners of the law firm of Meriwether and Tharp. And you're listening to Meriwether and Tharp Radio on the new Talk 106.7. Here, you will learn about divorce, family law, tips on how to save your marriage if it's in the middle of a crisis, and from time to time, even tips on how to take your marriage to the next level. If you want to learn more about us, you can always call or visit us online at AtlantaDivorceTeam.com. I will say Todd, I'm looking forward to getting into the show, but I'm also working on ... We missed a quarter. I feel bad. We try to do, every quarter, a show about taking your marriage to the next level, because we do believe in healthy marriages. And I'm working on getting some authors to come on, so. I'm just teasing that a little bit.
Todd Orston: Well, this is the look of disappointment. I'm just telling you, I am-
Leh Meriwether: Let you down.
Todd Orston: ... if our listeners could see, I am shaking my head and looking at you with a look of disappointment. No, we love those shows. And as matter of fact, they happened to be, and often are, very popular in terms of people listening both on the radio and when we turn them into podcasts; because yeah, we do. We are divorce lawyers that don't like divorce. We, we would love for you to be able to avoid it. And we try and provide people with the tools to accomplish just that. But we also are realistic. We understand sometimes, it's inevitable. And today's show is going to be us trying to provide information that, it may be specific to the person who asked the question, but they are issues that I think it is a safe guess that a lot of people have or may have; you know, may have, in the past, dealt with, or they know someone that is going to be dealing with these kinds of issues.
Todd Orston: So anyway, without any further ado, let's jump in. So how about the first question? "My spouse served me with divorce paperwork, including a full agreement. I signed everything and sent it back to her attorney. I read the agreement and do not think the terms sound fair. Am I bound by the agreement? Can I undo the agreement I signed?" Yeah.
Leh Meriwether: Well.
Todd Orston: Wanted to start with an exciting one.
Leh Meriwether: Are you asking me?
Todd Orston: Oh yeah, yeah. Oh, I mean, you are in the room. Since you're here, you might as well jump in and participate.
Leh Meriwether: No, you know, we get these with a certain level of frequency, unfortunately. And obviously, the first thing is to, you've got to ask questions of where you're along on the process. A lot of times, that means you are locked into that agreement. There have been situations where I've seen people get out of the agreement. Those are more the exception than the rule. And we could spend a whole show talking about certain exceptions that might get you out of an agreement that you have already signed, but most of the time, you can't. And like I said, it depends on where you are in the litigation process, if it's before it's filed or during the course of it, all of those play into it.
Leh Meriwether: Well, the first thing is kind of, you know, you hear the thing, read what you're about to write. And I have seen situations where, and we actually litigated a case where there was email exchanges between the parties that said, "Here's what our agreement is. And we're going to type it up. And it's going to say 50/50 custody." So she went to the lawyer's office. And she said, "Is this the agreement that my husband and I had negotiated?" And the lawyer said, "Yes, here it is." And so she signed it thinking it was what had been exchanged by email. They acted it in a 50/50 custodial arrangement for like three years. Then one day, they had a fight. And the husband just said, well, ex-husband at this time, the father just said, "I am, we're just going to follow the old ... We're going to follow the agreement." She's like, "We are following the agreement." "Well, you apparently didn't read it, because we're not."
Leh Meriwether: And so she went to the courthouse and read it. And the agreement that she actually signed, that actually got filed with the court, said he was primary and she only got every other weekend. So you've got to read, even if you've gone back and forth, and back and forth, before you sign the ultimate document, you must read it.
Todd Orston: Yeah. And let me also put it in a ... Let me explain it in a different way. We use the term "agreement" because that's what it is. It's an agreement between the parties. At its core, it is a contract. And so if you went and you bought a car, and you sign all the paperwork to buy the car, you can't, a month later, say, "I don't want the car. Take the car back. Give me my money back. I don't want it anymore." You signed a contract. If you buy a house, it's your house. If you agree contractually to anything, absent fraud or some other legal reason that the contract should be basically nullified, you are bound by the terms of that contract.
Todd Orston: So we call it an agreement, but it's a contract. So before you sign anything, speak to an attorney to your point. Read and understand the terms yourself, but still, at the very least, do a consultation. Even if you don't want to just retain an attorney to do everything for you, do a consultation. Pay that fee so that they can read it and at least give you some things to think about, so that you don't make a mistake that carries with you for potentially years to come.
Todd Orston: I mean, your example's a fantastic example, a horrible example. And also, it's horrible because I think that person was taken advantage of by not only with the ex-spouse, but the attorney.
Leh Meriwether: I'm not sure if that happened. I'm going to give the attorney the benefit of the doubt on that one, because the attorney could have been told by-
Todd Orston: You're 100% right.
Leh Meriwether: ... the client that, "Hey, this is what we agreed to."
Todd Orston: These are our terms.
Leh Meriwether: Yeah, "These are our terms." And then she just came in and signed it. And he's not ... And here's another important thing to say on this, that lawyer represents the other side.
Todd Orston: That's right, that's right.
Leh Meriwether: The lawyer had no duty to tell her, "You need to read this," had no duty to say, "Hey, are you sure this is what you want to sign?" There is no duty on that side; the only duty, in that case, a duty to his client, the husband.
Todd Orston: Well, and you can't be lazy. And that's, you know, we have certain safeguards in place that, oftentimes, if we reach, or a client reaches an agreement, we will send it back. We will say, "Okay. We have agreed to these terms. We've made some changes. This is the draft we will agree to."
Todd Orston: If all of a sudden the next day, we get a draft back saying, "Okay, here it is. This is what, yesterday, you said you agreed to," we don't just blindly tell our client to agree or not agree; but sign off on the version we've now been sent by opposing counsel or opposing party. We have to review it again. We have to make sure that something wasn't added, something wasn't subtracted, to make sure it's the actual agreement. So be careful. It's sort of like a, "Buyer beware." Signer beware. You sign off on it, you are bound. And getting out of that agreement, i.e. contract, may be difficult if not impossible.
Todd Orston: All right. How about the, "I am the paternal," next one. "I am the paternal grandparent of two young children. My son, the children's biological father, was never married to the mother and never filed an action for legitimation. Now, my son is not stable and will not do anything to legitimate the relationship. Can I petition a court for visitation time with my grandchildren?"
Leh Meriwether: Now, this one's going to be very specific to Georgia, because each state has its own set of grandparent visitation rights. Well I should say, some don't have ... I'm not sure all of them have grandparent visitation rights. I should be careful there. And I do know that some states are, because of their own state constitution, can have severe limits on grandparent rights. Florida has some pretty strong things in their constitution, for example, versus Georgia, that limit, severely limit what you can do with grandparent visitation rights. So it looks like OCGA 19-7-3, which is, in Georgia, what it controls here; that it sounds like in this situation, even though the other parent hasn't legitimated ... So in Georgia, that parent has no rights.
Leh Meriwether: So if a parent has not legitimated in Georgia, they have no rights. But if you read the statute, it seems to indicate that you could petition the court for some sort of grandparent time.
Todd Orston: Yeah. It's interesting because the parents, until legitimation occurs, the biological father in this situation would not be able to petition for any visitation rights because of the fact that legitimation hasn't occurred. Yet the grandparents, the paternal grandparents, actually may be able to. Now, not saying it would be an easy road. I'm not saying that there wouldn't be some challenges, but under the code, or pursuant to the code, it actually may be possible, because in essence, what would happen is, they would be going to court, petitioning for some time. And they would have to show certain things, like that, if the court does not do this, the child could be harmed, and that it would be basically in the child or children's best interest.
Todd Orston: So under that situation, definitely, I would say talk to an attorney. There are some complications, but you may actually have some rights that you can move forward with an action for visitation.
Leh Meriwether: And we say that, and there may come a case out tomorrow that says that in the negative, says you can't go forward.
Todd Orston: Absolutely.
Leh Meriwether: So everything we say can be changed, and just like ... Well, one thing we can't change is the amount of time we have. When we come back, we're going to continue to break down some really difficult questions.
Leh Meriwether: Welcome back, everyone. I'm Leh Meriwether, and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether and Tharp. And you're listening to Meriwether and Tharp Radio on the new Talk 106.7. If you want to learn more about us, you can always call or visit us online, AtlantaDivorceTeam.com. And today, we're getting into all kinds of different, challenging, in some cases, family law questions.
Todd Orston: Yeah. I mean, people will, as we oftentimes will ask on air, go ahead, send us questions. Email questions to us. Email, you know, issues that you may be dealing with, because more than likely, they are issues that many people are or have had to deal with. And we want to answer questions and provide information. So periodically, we will do these shows where we take the questions we've received and put it out there so that, hopefully, more people can benefit from the information. So you're ready to jump back in?
Leh Meriwether: I'm ready.
Todd Orston: All right. So number three, "I divorced my wife two years ago, and we have joint legal and physical custody of our two children. About two months ago, she went to 'visit' her parents in another state. And two days ago, she told me that she and the children are staying there. Can she do that? What can I do?" So basically, in this situation, first of all, you have to go to the original agreement.
Leh Meriwether: Mm-hmm (affirmative).
Todd Orston: Look to the court order, because most court orders are going to be very specific as to what parties can and cannot do. And that's going to include notices that need to be given, because most agreements, and I can tell you, for the most part, all agreements that we at Meriwether and Tharp use, it's going to contain language that usually requires a party who is relocating to give advance notice.
Leh Meriwether: Right.
Todd Orston: So I would say, number one, look to the terms of the existing agreement/order, because that's going to dictate whether or not the other party has done something improper.
Leh Meriwether: Yeah. And so, I'm going to throw a little wrinkle in here.
Todd Orston: You always do.
Leh Meriwether: I'll just be a little silly here. Now, if the person ... The big thing is here, there's joint physical custody. So if she moves to, if you're in Georgia, and she suddenly moves to New York, and you were doing every other week, or you were doing what's called a 2-2-5, where one parent has every Monday and Tuesday, the other parent has every Wednesday and Thursday, and you alternate weekends and Fridays, well, you can't do that if you're in another state. But if you are in north Georgia, and the person moves like four miles away, that happens to be in Tennessee, there's not really a cause of action. If she moved to another state, yes, but-
Todd Orston: The distance has to be considered, not just the fact that you're in a different state, correct?
Leh Meriwether: Right, and here's the other thing. If she had moved just to south Georgia, and all of a sudden, making joint physical custody not possible, I think you hit the nail on the head. It is the distance. It's moving away and suddenly saying, "Yeah, we're not coming back. And by the way, I'm not going to honor this court order that says you have joint legal, joint physical custody."
Todd Orston: Right, yeah. "The distance now makes it impossible for me to exercise the court ordered rights, visitation rights, or parenting time rights, that I was given, pursuant to that order, because you've moved. And you are so far away. I can't drive 300 miles every weekend to exercise my parenting time, and have my Wednesday dinner or Wednesday overnight." So it really comes down to distance. So number one, look at the terms of the existing order. And then, depending on what the move looks like, if it's over a state border, but it's four miles away, there's really nothing that needs to be changed. If it's a 100, 200, 300 miles, or even more, well now, you're talking about something very different; and this is whether or not it's a joint physical custody arrangement or not. Now what's happened is, the other parent has made a decision that takes the child away from you and interferes with your ability to exercise parenting time.
Todd Orston: So the first part, I would say, is what we would call a contempt. If there's a violation of the terms, it could constitute contempt. And the contempt there would be the advance notice.
Leh Meriwether: Right.
Todd Orston: Here, no advance notice, at least not that I'm reading. No advance notice was given other than a couple of days. A lot of times, it's like 30, 60, 90 days advance notice, so that might be a contempt issue. But then we have to jump into the modification issue.
Leh Meriwether: Well, there could be a contempt, too, if she, if it's joint physical, and they were doing every other week, like he had one week, she had this next week, and she just didn't bring the kids back down, that's also contempt action.
Todd Orston: Very possibly, but the other party could be like, "Come on up here. You can have your week. You know, but you can drive these 700 miles to, you know, and you'll have your week." And obviously, that's not practical. And it's not even possible in many situations, but that's the contempt. Then, we have to turn our attention to the modification issue.
Leh Meriwether: Right. So, you know, mods are ... You're going to want to file a modification and a contempt at the same time and ask for emergency relief, because all of a sudden, the kids are not seeing their, I'm guessing, father at this point. And the court's going to definitely question the wisdom of just getting up and moving without consulting with the other parent.
Todd Orston: Yeah. And especially like, let's assume this was happening right now. We're at the tail end of the summer. School is now starting or is about to start for almost all kids. The emergency issue might be, well, the child or children, they have been enrolled in their schools and have lived in Georgia their entire lives, or whatever the case might be. And that decision, that was made by the other parent. Now all of a sudden, the children are being enrolled in new schools. They've been taken away from an environment that they are used to and comfortable with, taken away from their father. And therefore, there might be an emergency, that the court might want to act quickly to say, "Well, hold on one second. We're going to maintain status quo, i.e. bring the children back. And if you want to relocate, fine. Petition the court. But right now, the children need to be brought back." But that's going to be up to the court, as to whether it defines the situation as an emergency.
Leh Meriwether: Exactly. And we often see courts take ... Now, they may not take it that week, but we see courts maybe pushing this one a little bit more advanced, because all of a sudden, someone's not getting their parenting time. And some courts take that very seriously.
Todd Orston: All right. Next one, number four. "My divorce was finalized in 2004, and my ex-husband was ordered to pay child support and alimony. After a couple of years, he stopped paying everything. I need to file a contempt case against him to collect the past-due amounts. Did I wait too long?"
Leh Meriwether: Well, you just did a seminar for our firm.
Todd Orston: Get out of town. Why, yes I did.
Leh Meriwether: It's very interesting this question came along when you had just done a presentation about it.
Todd Orston: I was saying this earlier, actually. It's like one of those things where you don't hear a song for a long time, and then you're like, "That's a good song," and then you just hear it like-
Leh Meriwether: All the time.
Todd Orston: ... a thousand times. It's like, where was I the other times? And it seems like this is not, or has not been, historically, at least in my practice, an issue that comes up often. And it seems like it is now coming up very often. I mean, I've had several people in the last several weeks call, where they have what we're going to call dormancy issues. And that's what we're talking about. We're talking about, does or can a legitimate court order become dormant.
Leh Meriwether: You probably should explain what that means.
Todd Orston: Absolutely. So under Georgia law, and again, you know, we're going to be talking about this in the context of and under Georgia law, an order of a court ... So let's say a court issues a formal order that requires something. Let's say it's a divorce order. After seven years, and there are some nuances here, but I'm just going to speak generally, after seven years, the terms of that order, that order becomes dormant; meaning that the court may lose and would lose its ability to enforce the terms of that contract, that agreement, that order.
Todd Orston: And what that means is, let's say somebody was obligated to do something, if you did not bring an action to enforce the terms of that order within the seven-year period, then it is now dormant. And the court, even if you are 100% right and the court 100% wants to help you, the court might not be able to. The court will say, "My hands are tied. You waited too long." Now under Georgia law, you have seven years. But then you actually have an additional three-year period where you are allowed to revive, move to revive that action. You have to petition the court. It's very specific. An attorney can help you. And then you can take a dormant action and revive it.
Todd Orston: All right. So in essence, what you have under Georgia law is a 10-year period. The other nuance that I will say is, in this situation, we're dealing with support. So it's a 2004 order, but it's not, that seven-year plus three-year period doesn't just begin at 2004 because we're talking about periodic payments. We're talking about, in essence, installment payments; every month, payment. Then every single month-
Leh Meriwether: It resets the clock.
Todd Orston: ... it resets the clock, all right? So what an attorney is going to have to do is basically look and see what was due, what was paid. And if anything falls outside of that 10-year period, any of those installments, any of those periodic payments fall outside, you may not be able to enforce. You may not be able to file a contempt on it. But more than likely, there are maybe even a lot of other payments that you can still revive.
Leh Meriwether: Right. So if you had, over the course of 10 years, he had paid, let's say there was 12 years of child support obligation, and he had paid 10 years. So now you can say, well, okay, 10 years has gone by. That statute is dormant. And on the 11th year, he just quit paying child support, thinking he could get away with it.
Todd Orston: You're within the seven at that point.
Leh Meriwether: Well, if he waited 10, if it was a 12-year order-
Todd Orston: Oh, got it, got it, got it.
Leh Meriwether: Right. So 10 years goes by, and he doesn't ... Then the 11th year. But the thing is, he failed to make a payment then, which revives the order. The one thing we can't revive is our time. We'll be right back, finishing answering this question.
Leh Meriwether: Welcome back, everyone. I'm Leh Meriwether, and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether and Tharp, and you're listening to Meriwether and Tharp Radio on the new Talk 106.7. If you want to learn more about us, you can always call or visit us online, AtlantaDivorceTeam.com. And today, we've been talking about all kinds of sort of challenging questions, some questions that we've been getting a lot more frequently. And so we wanted to address them and just dig into them. And where we left off, ran out of time, we were talking about, do you run out of time to collect on a judgment or a divorce order? Does it run out of time to do something about it?
Leh Meriwether: And we were kind of breaking down what the mechanisms, the legal mechanisms that are set in place, and their reasons for them. But really, what happened was, there was a case about eight months ago, in December of 2017, that really cleared the air on this, and basically said that George's dormancy statute that makes a judgment go away after 10 years, it continues to be revived if there's an obligation that's not being met on it.
Todd Orston: [crosstalk 00:23:46] A continuing obligation, right.
Leh Meriwether: A continuing obligation.
Todd Orston: Right. So if on the first day of every single month, an alimony payment was due, then if it was missed on January 1st of a particular year, then that seven-year plus three-year period starts for that one payment. And then the next month, it's missed again, it starts again for that payment. So basically, the long and the short is, it can be unenforceable.
Leh Meriwether: Right.
Todd Orston: So you have to be careful. The good thing is, you have a lot of time, 10 years. But the bad thing is, it can be unenforceable. And we have had people call us, where unfortunately, they've just waited too long. So for many reasons, we always tell people, "Act quickly if someone is not complying. I understand you don't want to get back into court. I understand you don't want to have to deal with the stress involved with litigation to try and enforce your rights, but do not wait. It is much better," because we've also had people who, they come in and they're like, "Oh, they haven't paid since 2006." And how much do they owe? You counted ... I mean, we've had things, you know, orders and arrearages, rather, that are in the hundreds of thousands of dollars.
Leh Meriwether: Yeah.
Todd Orston: Well, guess what. That party can't pay you several hundred thousand dollars-
Leh Meriwether: At once.
Todd Orston: ... so that means they're going to be put onto a payment schedule. And you will be long dead and gone by the time that amount gets paid off. So it is a lot better for you to, unfortunately, deal with the issue when only two payments, three payments, five payments, 10 payments have been missed, rather than 200 payments. And we're dealing with an amount of money that the other party is never going to be able to pay.
Leh Meriwether: Yeah. And there have been some cases where someone actually ... And we're going to have a whole show on child support actually, because the law recently changed this year in Georgia on that ... But there have been cases where someone, because of alcoholism, was in jail for a while. I've seen some where they went four or five years without paying. Well, they weren't around to pay. And so at that point, the parent didn't, there was no point in filing an action because they were in jail. But as soon as they got out and got a good-paying job, which I've seen before, then all of a sudden, they paid, because, "Okay, now I'm going to get paid."
Leh Meriwether: So usually, the best thing to do is talk to a lawyer, because they're going to talk to you about when is the right time to file. And not only that, but if you wait, so let's say someone's supposed to split an IRA with you, and you wait to do that, well, you've got not only the issue of the statute going dormant being a problem, but you also have the issue of, they may spend the money. I've seen that happen before, where the person just spent the money. And then they basically had a massive heart attack, and were on disability, and it was gone. And so they brought an action, and the court threw the person in jail, but the money was gone. There was just nothing you could do about it. So just don't wait on those things.
Todd Orston: All right. How about a question relating to alimony and adultery, okay? This one, the question is, "I was ordered to pay my ex-spouse alimony for a period of five years. About a year ago, she moved in with another man she was dating. She lived there for about eight months and only recently secured a residence for herself. Can I stop paying alimony because she moved in with another person? What can I do about the obligation?" So my first statement is, do not just stop paying.
Leh Meriwether: Right.
Todd Orston: So let's sort of clear the air. Let's put that out there. You can't just unilaterally decide to violate a court order.
Leh Meriwether: It depends on what the court order says.
Todd Orston: Absolutely, good point. Absolutely. Absent some automatic terminating language that basically says, "Upon this act occurring, you can stop paying," and most agreements don't have that kind of language; but absent that, then you must comply until you petition the court and ask the court to modify those terms and stop or terminate the obligation.
Leh Meriwether: Right. And you know, so the challenge here is the meretricious relationship, too, because here in Georgia, if you bring that action to assert, well, "I don't need to pay because they're living in a meretricious relationship," and Georgia has what's called a live-in lover statute. And a lot of statutes ... I'm sorry, a lot of states have a similar statute that says if, okay, someone's trying to avoid the alimony obligation ending, because they ... So they just move in and don't get married. So the state said, "Okay. Well now, we can't let that happen." So it created a right. But in Georgia, if you lose that action, they can ask, you can be required to pay the entire attorney's fees for the person that was receiving the alimony.
Todd Orston: Yeah.
Leh Meriwether: So, it's a delicate case.
Todd Orston: Yeah, so here's the interesting part. The interesting part is, historically, basically, the law was that you needed to show, obviously, that there was a relationship, that the party was engaging in this meretricious relationship, and that it had to be continuous and open, okay? Meaning that when you brought that action, they need to be, that person needs to be engaged in that behavior. But unfortunately we had sort, sort of like we were talking about before, we had situations where someone just waited too long. And two years after, let's say, there was a relationship, they try to bring an action to stop or terminate the alimony.
Todd Orston: But the problem was, within that two-year period, the person started a relationship, moved in, moved out, and was then living alone again.
Leh Meriwether: And so their defense was, "I'm not in a meretricious relationship. You can't do it. It hasn't been continuous and open." That was their defense.
Todd Orston: That's right. But like you were saying before about new case law, there was a 2017 case that actually dealt specifically with this issue, and basically said, "Hold on one second." It was sort of like, "Let's pump the brakes a little bit, not exactly what we mean, all right? You can't engage in that behavior but then stop, and then the other," and I think what the court was probably thinking is, what kind of a game are we going to allow to be played that somebody can move in with somebody, but right before somebody acts and files something, they, "Oh, no. I have my own place. Oh, no. I'm living with this ... Oh, no. Hold on, I have my own place." You know, that's a lot of moving. I hate moving.
Leh Meriwether: I'm not sure it'd be worth the alimony payments, unless they were huge.
Todd Orston: Yeah. But what the court basically said was, "Nope." I mean the, what, as long as you can show-
Leh Meriwether: And that actually was the term in there; nope.
Todd Orston: Yeah, it just said, "No." That was the entire order. It was amazing.
Leh Meriwether: Yeah.
Todd Orston: But it said, "Nope." It said, "As long as you can show that that party has entered or I was in a meretricious relationship," doesn't matter that, at the time that the person files the action, that meretricious relationship was over-
Leh Meriwether: To end the alimony, right.
Todd Orston: ... the court, the trial court would be justified in ordering for the termination of alimony; which again, even if you prove a meretricious relationship, it's not automatic. You have to petition the court. The court can terminate it or not. But at least now, the door is open if you just wait a little too long and file something at a time when the party is no longer engaged in that same relationship.
Leh Meriwether: So the law changed. And you know what? We could have a case this year or next year that kind of tweaks that or changes it.
Todd Orston: That's right.
Leh Meriwether: So the law is constantly evolving. So definitely check the date. If you listen, if you don't get a chance to listen to this today, or you know, when we do our child support update here soon, there's probably some radio shows that we've recorded a year ago or so that we don't want people to listen to anymore because the law has changed.
Todd Orston: Yeah, yeah. Exactly, exactly. But that's also why we do these updates.
Leh Meriwether: Yeah.
Todd Orston: All right, here's a quick one before the break. "What's an annulment?" There are, you know, people will call oftentimes, and they'll want information about annulment versus divorce. The question here, "I met my husband about six months ago. After a short period, we went to the courthouse and got married. He moved into my apartment, and I knew it wasn't going to work almost immediately. After a month, he moved out, and now he lives in another state. I haven't spoken to him since he moved. Can I get an annulment instead of a divorce?"
Todd Orston: Are you quiet because you want me to answer? All right, I'll jump in. Hey, listen, yeah, I'll hit the buzzer.
Leh Meriwether: I'm just kidding.
Todd Orston: [crosstalk 00:32:34] Yeah, so there are specific rules in Georgia about annulment-
Leh Meriwether: Yeah, very specific.
Todd Orston: Very specific, and there are specific grounds, okay? And we can go into those, maybe after the break, but at its core, I will say, under those circumstances, I do not believe that the person would be able to get an annulment.
Leh Meriwether: Not from a legal perspective, under Georgia law.
Todd Orston: Correct.
Leh Meriwether: Now, there may be religious annulments that you can get. But what we're talking about right now, the legal definition, in the state of Georgia, of annulment, it sounds like, no. But you know what? I wish we could give ourselves more time, but we can't. When we come back, we are going to break down what circumstances can you actually get an annulment legally in the state of Georgia, versus some sort of religious annulment. So we'll get into that when we get right back, when we come right back.
Leh Meriwether: Welcome back, everyone. I'm Leh Meriwether, and with me is Todd Orston. And you're listening to Meriwether and Tharp Radio on the new Talk 106.7. If you want to learn more about us, you can always check us out online, AtlantaDivorceTeam.com. Well today, we're getting into some interesting questions that we've been receiving recently, and we wanted to answer those. And part of the reason we wanted to answer them is because there's been some recent cases that came out that gave us a little more information, a little more ... What's the word ... guidance on how to deal with certain situations because they're, with some of the older, some of the more challenging things, there was no case law. And then we've had a recent case that actually changed the law, at least most people's perception of a certain statute, that had to do with meretricious relationships, and how does that a statute, the live-in lover statute, apply when someone terminates the meretricious relationship prior to filing or during the pendency of the case.
Leh Meriwether: So, all right, where we left off, we were talking about annulment. And it's so hyper-specific here in Georgia, as I would imagine in most states. So-
Todd Orston: And we get these questions all the time.
Leh Meriwether: We do. So what are the factors that need to be in place in order for you to get an annulment?
Todd Orston: All right. So again, very specific. And I can tell you right now, I'm going to start with why you can't, with just a statement about why the court, most of the time, is not going to accept an annulment simply because you don't want to be married, because that's really what I'm hearing and reading in that question. It is, "We tried, and it didn't work." That is not a legal ground for annulment in Georgia, under Georgia law. So things that would allow it, things like you find out that you and your spouse are related, like a parent-child or a parent-stepchild relationship ... Yeah, how that's a surprise-
Leh Meriwether: What is it, Oedipus Rex? Is that-
Todd Orston: Yeah. I mean, it's like, "Wait, hold on one second, honey. I think you may be my child." Anyway, grandparent-grandchild, aunt-nephew, uncle-niece, something like that. You don't have mental capacity to enter into a contract. Marriage is, legally speaking, a contract. So if one of the parties has some level of mental incapacity, then potentially, an annulment might be appropriate because it's void-
Leh Meriwether: Because they lack the capacity to know what, to understand what a marriage meant.
Todd Orston: That's right. You were under the age of 16 when you entered into your marriage. And again, that's under the age of 16. At 16, there are certain rules. Parents have to be involved, and basically ... And I've gotten some of these calls recently ... have to be involved and basically give permission for the child, 16 or over, to get married. But if it's under 16, then again, contractually speaking, a child cannot enter into a contract.
Leh Meriwether: How do they even get a marriage license?
Todd Orston: Yeah, that is a good question.
Leh Meriwether: I haven't looked at the marriage license rules, but-
Todd Orston: Usually, there are forms-
Leh Meriwether: ... this is a statute that's been in place for a long time-
Todd Orston: Yeah. And usually, my understanding is, there are forms that need to be filled out by the parents, basically giving permission. So the only thing that I could think of would be that it was falsified.
Leh Meriwether: Okay.
Todd Orston: So if you were forced to enter into the marriage, duress, and true duress isn't, "Marry me?" "No." "You better." "Okay." I mean, it's gun-to-the-head kind of duress. So if you're forced to enter into a marriage-
Leh Meriwether: Like The Princess Bride.
Todd Orston: Exactly, there you go. Great movie. You were fraudulently induced to enter into the marriage, that becomes, it's a little difficult to prove that; but nonetheless, if you can prove that there was some level of fraud that induced you to enter into the marriage, then you might be able to get it annulled; or your spouse was married to another living spouse at the time you entered into the marriage, you cannot be married to two people at the same time. If you marry someone when you were already married, other than potentially violating some criminal laws, then the second marriage is void.
Leh Meriwether: Right.
Todd Orston: So you cannot be married if you're already married.
Leh Meriwether: Yeah, I don't even know. I suppose you could file an annulment, but my understanding is that that second marriage isn't valid.
Todd Orston: Yeah, but you would, if there's a marriage license-
Leh Meriwether: [crosstalk 00:38:16] marriage license, yeah. You'd want to get that nullified.
Todd Orston: ... then you want to formally undo it-
Leh Meriwether: Yeah. That's true, that's true.
Todd Orston: So, all right. Next question, let's jump right in. "My husband says all of our property is his because he earned the money and bought it. He even says he'll get half of the money I inherited from my mom's estate." So a lot to unpack here, all right, and not a lot of time. So let's just deal, first, with the, "I earned it. It's mine."
Leh Meriwether: Well, that doesn't apply here in Georgia. It doesn't apply in any state where there's equitable division. The issue of, if there is something that is earned as a result of marital effort, such as a job, then it is marital; meaning it is subject to equitable division here in Georgia, in Florida, several other states, in the community property states. I mean, just because it's in your name, if you are married, it's subject to division by the courts. And I'm not going to, I'm not trying to give legal advice on the other states, but I'm saying when you're in a marriage, it's no longer your money, her money. It is y'all's money.
Todd Orston: Yeah.
Leh Meriwether: And it's only y'all's money in the South, but-
Todd Orston: Yeah, right, exactly. And I'm not originally from the South, so I'm not even going to try it. But no, look, the bottom line, and what I tell people is, if it was earned during the marriage, then, except through gift or inheritance, it is just as much your dollar as it is the other person's dollar. If you earned it, it's just as much their dollar as it is yours; if they earned it, same thing.
Todd Orston: So unfortunately, that thought process ... Or depending on who we're talking to and representing, may be fortunate or unfortunate ... that thought process, it's just wrong, okay?
Leh Meriwether: Right.
Todd Orston: There is a huge flaw. And even in Georgia, title doesn't mean anything. People will call all the time, and they'll say, "Well, the cars are in my spouse's name. The house is in my spouse's name. The retirement's in my spouse's name." And what I tell them oftentimes is, other than the fear that it could be sold or disposed of without your knowledge, I don't care; meaning we may have to take precautionary steps to avoid bad behavior, but in terms of the claim you will make to a divorce court, I don't care.
Leh Meriwether: Yep. The only exception to that is, really goes to the second question, the second thing. "He even says he will get half of the money I inherited from my mom's estate." So that's where title does matter, because if ... And it's just Georgia law. So if you inherit money, that's not a result of marital effort. That's just an inheritance. And if you put that in a bank account in solely your name, then that is your money. It's a separate property, not subject to equitable division in Georgia.
Todd Orston: And you might as well jump in, because this is a perfect time to segue just into a definition of commingling, because people who, and I hope that you would get the money not through an inheritance, you know, because that means you've lost somebody dear to you, but if you do have money that would be deemed separate property, you could unfortunately do damage to that separate nature by doing something called commingling.
Leh Meriwether: Right. So if you took that money, and you moved that money into a joint bank account, then it can be argued that you gifted that money to the marriage, and now it's subject to equitable vision. Same thing with a house, maybe you inherited a house. And it was originally in your name, or maybe you came into the marriage with a house, but then you added your spouse to the title later, then you have arguably gifted that house, that separate party, to the marriage.
Leh Meriwether: Now, does that mean that, even in that situation, because we've seen judges who say, "Okay. Well, I understand," because the law used to not be that, by the way. You used to be able to trace the source of the funds. And if you could trace the source of the funds, even though you commingled it, the court could say, "No, that's your separate property." But the law has changed, and it says, "Nope. You've gifted it to the marriage." But the court can say, "Yes, it was gifted to the marriage, but I don't think it's equitable for the husband here, who did nothing to earn this inheritance, for him to suddenly just get this 200," or whatever it may be. Let's say it's 200,000, "just suddenly get this as a windfall." So the court could just grant that as part of equitable division to the wife.
Todd Orston: Yeah. I mean, that's the true definition of equitable division. Equitable does not necessarily mean equal. It could be a 50/50. It could be a 90/10 split. It could be 100% to one party.
Leh Meriwether: Yeah.
Todd Orston: And it's just whatever the court deems is fair and reasonable under the specific circumstances of your particular case. So, you know, in a situation like this, even if you have done something to commingle, even if you have done something to destroy the separate nature, you might have some equitable claims. But I can tell you, it's a heck of a lot easier if you have strong separate property claims, because that shuts down the argument.
Leh Meriwether: Yeah.
Todd Orston: If it's an equitable argument, then a lot of judges will just feel like, "Well listen, I want to be fair. I want to sort of pull of King Solomon and split the baby. And I'm just going to take the estate and split it down the middle. And everybody gets 50/50." And under normal circumstances, that's not unfair or unreasonable.
Todd Orston: So be very careful, if you're dealing with separate property, to make sure you keep it separate, and you protect the separate nature of it.
Leh Meriwether: Exactly. You know, there's one more question I really wish we had time to get to, but we're going to have to save it for another show, because it's a really good question. But yeah, we're out of time again.
Todd Orston: We're out of time.
Leh Meriwether: Gosh. Hey everyone, thanks so much for listening. And I also wanted to thank people, you know, we do this to help people. And unfortunately, some people have been going out there and, because we also save the radio show in case you miss it when it comes out, when it comes out live, we save it in iTunes and SoundCloud. And you can find it out there. And some people have gone out there and given us five-star reviews, and we really appreciate it. We even had somebody who goes by HappyLife38. He gave us five stars and said, "I love the show." He said, "It's kind of weird to love this show because it's all about divorce, but I love this show." So I just wanted to give a quick shout-out and say thank you so much. So more of them, more of them.
Todd Orston: And by the way, I'm not happy. I didn't-
Leh Meriwether: Everyone, thanks so much for listening.
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