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Episode 78 - What's an Emergency in the Court's Eyes? Image

06/16/2021 12:00 am

When you are in the middle of a divorce or similar family law matter, everything can feel like an emergency. Emotion takes over and you feel the need for immediate relief from the Court system. As attorneys, we want to help where we can, but, unfortunately, the Courts have limited resources and thousands of cases to handle. Since the Courts know they cannot help everyone at the same time, they really have to set boundaries for what they consider emergencies. In this episode, we break down what is going on that limits the Court's resources. We also explore situations where Courts have held emergency hearings, and situations where they have told litigants that they will have to wait their turn.

Transcript

Leh Meriwether:              Todd, you might have to forgive me today.

Todd Orston:                     I forgive you about every day, so-

Leh Meriwether:              Today, I'm suffering from vacation brain. It's a new term I've come up with.

Todd Orston:                     You know what? I forgive you.

Leh Meriwether:              Oh, good. I am still on vacation at the beach right now.

Todd Orston:                     Let me help. We're in the studio.

Leh Meriwether:              Oh.

Todd Orston:                     We're doing the show.

Leh Meriwether:              That's why I didn't hear the waves anymore.

Todd Orston:                     I'm trying to catch you up. Right, yeah, I'm trying to-

Leh Meriwether:              Okay.

Todd Orston:                     Okay, all right. So now that you're caught up, what are we talking about today? By the way, I know you're excited.

Leh Meriwether:              Oh actually, I'm kind of sad today.

Todd Orston:                     You're sad?

Leh Meriwether:              Well, I'm sad I'm not at the beach.

Todd Orston:                     Oh, okay, got it.

Leh Meriwether:              Can we bring these mics to the beach?

Todd Orston:                     I am not spending an hour talking about why you're sad. There's no couch in here. This is not therapy radio.

Leh Meriwether:              Oh, man. Welcome, everyone. I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp. You're listening to Meriwether & Tharp Radio on the new Talk 106.7. Here, you 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. Well, Todd, today, I figured let's talk about emergencies.

Todd Orston:                     Emergencies.

Leh Meriwether:              Emergencies.

Todd Orston:                     Okay, I'm here. So, I mean, whatever you want to talk about is good.

Leh Meriwether:              Cut your arm, you call your lawyer.

Todd Orston:                     No. I am not a doctor and I don't play one on TV.

Leh Meriwether:              Break your leg, you call your lawyer.

Todd Orston:                     Call your ... Well, it depends on how you broke your leg.

Leh Meriwether:              That's true.

Todd Orston:                     Maybe you should still go to the doctor first, but-

Leh Meriwether:              Yeah.

Todd Orston:                     Yeah, worry about the lawsuit later.

Leh Meriwether:              No, today, we're actually talking about emergencies and what constitutes an emergency in a family law setting.

Todd Orston:                     Yeah, because a lot of people have different ideas about what constitutes an emergency. A lot of times, it's reasonable. I mean, I understand. When it's happening to you, it feels like an emergency.

Leh Meriwether:              Yep.

Todd Orston:                     Just because you think of it in terms of, "Oh my gosh, it's an emergency. I need some emergency immediate assistance," doesn't mean that, in the context of a divorce or any other kind of family law related legal matter, doesn't mean that the court is gonna look at it the same way.

Leh Meriwether:              Yeah. You've got two things working against you if something bad happens, and we're gonna break down different scenarios that we've seen happen, and what courts have constituted emergencies, and what courts haven't constituted emergency, and explain why they don't constitute certain things in emergencies. We want to sort of explain this because we have so many ... Often, a client will call and you've got the two things that are going on, one, high emotion. So, there's a lot of emotion going on. There's panic, often, with the situation, and then you couple that with ... we're in one of those instant societies. I mean, you can go online and look up anything on Google and seem to get an answer immediately, but yet you can't get relief in the civil system immediately. It's-

Todd Orston:                     By the way, some of the information you're getting online, not always correct.

Leh Meriwether:              This is true.

Todd Orston:                     Nonetheless, I understand your point.

Leh Meriwether:              This is true, which creates even more anxiety because we'll get a call saying, "Hey, I read online I get an emergency hearing for this." We're like, "Not sure where you read that, but let's break down what's going on and see what we can do to help."

Todd Orston:                     Sort of like when you look up ... you have a runny nose and it's always cancer or something like.

Leh Meriwether:              Yeah.

Todd Orston:                     Right?

Leh Meriwether:              Exactly.

Todd Orston:                     Right. Yeah, yeah. There's a lot of misinformation out there, a lot of incorrect information, but you're right. A lot of people, they'll go online, they'll look up something. Something's happened to them. There's a trigger. They go online. They do some research. Next thing you know, their emotional level is sky rocketing.

Leh Meriwether:              Mm-hmm (affirmative).

Todd Orston:                     Then they are desperate, or feel like they are desperate, to get some level of assistance from an attorney from the court, and sometimes it's possible. Sometimes, in the eyes of the court, it rises to the level of a legal emergency, and we can take steps to try and get them in front of a judge and get the judge or a court to pay some attention immediately. But a lot of times, what people think is an emergency to them, the court is not gonna look at it the same way. It doesn't mean you can't get help, but there's a timing issue.

Leh Meriwether:              Yep. I joke about calling your lawyer first about an emergency. We've literally had that happen, like something bad happens and they for some reason called us first, not sure why. I mean, well, I know why, because we're there providing support and counsel. It's supposed to be legal counsel and not medical counsel, but that's ... Sometimes, we're just a speed dial away and they call us before they call 9-1-1. Just to be clear, if there's a broken injury or someone's dying, call 9-1-1 first.

Leh Meriwether:              With that being said, let's break down what's going on in the courts because we need to sort of set this stage. Courts, and we're speaking in general but I'm gonna use numbers from Georgia because I've actually researched that. In Georgia, a lot of the judges have to deal with criminal, civil, and domestics. When I say domestics, I'm talking about family law, divorce, that sort of thing. I looked at one county one time when I was doing some research last year, and there was something like 1,100 active family law and divorce cases in front of this particular judge, 1,100, 1,100 active cases in any given time. There was about 1,050 active criminal cases in front of the same judge, and just shy, it like 290 active civil cases. When I say civil, I'm talking about personal injury, business disputes, and this was superior court. I'm referencing superior court in Georgia, civil disputes, maybe a few political disputes or something like that.

Leh Meriwether:              So, that is ... I mean, that's over 2,000 ... That's almost 2,500 cases. If a judge had to deal with one issue a day and didn't take any breaks, worked seven days a week, he can only get to 365 of them. I mean, if we do some simple math, suddenly you realize there's a lot this one judge has to deal with.

Todd Orston:                     That's not even breaking down in each case the different types of things that need to happen in each and every case.

Leh Meriwether:              Right.

Todd Orston:                     There are general status conferences. There are the people who need temporary hearings. Then there are the emergency issues that come up. There are the trials, the final trials that are occurring. The court has to handle all of that in each of those 2,000 plus cases.

Leh Meriwether:              Yep.

Todd Orston:                     So to your point, if it was just one issue that was dealt with each day, that means 365 cases are going to get some level of help. Then when you break it down even further, yeah, there might be 2,000 cases, but in each one of those cases throughout a year, many of them will need temporary hearings. Some of them will get emergency hearings. Many of them, not all, but will get at least a conference and some of them will get final trials. So, we're talking about thousands of different types of court appearances that might be required-

Leh Meriwether:              In each case.

Todd Orston:                     ... in each case. Well, not thousands in each case-

Leh Meriwether:              But, yeah.

Todd Orston:                     Yeah, yeah, but numerous in each case, which amounts to thousands of different opportunities for the court to get involved and do something in a case.

Leh Meriwether:              Right.

Todd Orston:                     So, it is a daunting task. We always do and we always will give so much credit to the judges, because there are many, many counties where there might be three judges, four judges, there are counties where there are ten judges and they probably need ten more to deal with all the different cases. They don't have that, and they do what they can. A lot of times what that means is when you define it as an emergency, you're saying, again, "Judge, I need to be heard now."

Leh Meriwether:              Right.

Todd Orston:                     Court might be saying, "You've got about 1,200 issues before you that need to be resolved. Tell me why I should bump you to the front of the list."

Leh Meriwether:              Yeah. So, that's what we're going to get in today, examples of when you might be bumped in front, into the front of the list above all the other people that are dealing with things. I could tell you that ... Give the perspective of a client. We've done everything. We've done everything in our power to settle the case, but unfortunately it hasn't got settled. So, the client says, "All right, well we're going to trial." We show up to court, and we show up at 9:00 AM that morning. We have been set down to try our case, but there's an emergency hearing in front of our case that takes six hours but the judge won't release because when the case starts, the judge thinks it's only going to take two hours because that's what the lawyers announced.

Leh Meriwether:              So, now our client is paying us to sit in court to wait to be heard, and they get very, very upset. To them, sometimes I've even had some clients when that happened, they said, "That's not an emergency. I can't believe this case took precedence over mine." It's the same thing as jumping to the front of a line in a ... Gosh, I just experienced that with traffic. I'm driving and this car, clearly the guy waited until last minute to cut in line and I-

Todd Orston:                     That's a different show.

Leh Meriwether:              Oh, okay.

Todd Orston:                     Yeah, that's a different show.

Leh Meriwether:              Yeah. Okay. Good idea. I don't want to get off on a rant. I mean, people get upset when you cut other people off. I mean, you've got all these factors that play. So, I think it's important that we lay this sort of foundation down-

Todd Orston:                     Absolutely.

Leh Meriwether:              ... to help set expectations.

Todd Orston:                     Yeah, you're right. We do a lot of shows where sometimes we will just come out and we will say, "The show is about reducing anxiety." Even if we don't explicitly state that's the purpose, much of what we do in this show is intended to try and reduce the anxiety by giving information, by answering questions, because if you reduce the anxiety, you're not going to get caught up in the emotion and you'll be able to make better decisions for yourself. Well, that's what we're doing here, because if you go through this process, if you need emergency help, we want you to get that help. You need to understand how the system works.

Leh Meriwether:              Yep. So, we're up next. We're going to dive into situations involving children, involving money, involving stuff, involving real estate, and we're going to break down examples of when the court might give you an emergency hearing and when a court's going to say, "I can't hear you for another month."

Leh Meriwether:              Well, Todd, I think I'm over my vacation brain. I'm back in the groove now.

Todd Orston:                     I'll be the judge of that.

Leh Meriwether:              Okay. All right. Still wishing I was hearing the waves though ... Oh, that's good. Nice. Although, I think-

Todd Orston:                     It almost sounds like a flushing of a toilet.

Leh Meriwether:              Yeah.

Todd Orston:                     All right, anyway.

Leh Meriwether:              All right. Hey, welcome back everyone. I'm Leh Meriwether. With me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp. You're listening to Meriwether & Tharp Radio on the new Talk 106.7. If you want to learn more about us, you can always call or visit us online at AtlantaDivorceTeam.com.

Leh Meriwether:              Well, today we're talking about what's an emergency. In the last segment, we broke down what's going on with the court system and why they actually have to triage things. The court only considers a very limited scope of issues as being an emergency. We broke down why the court has to do that and why it's fair, really. So, now we're going to get into ... Let's dive into custody first. There are certain situations dealing with custody, and custody is very important. We're dealing with children. There are innocent parties in this litigation, whether it's a modification or it's a divorce, it doesn't matter. They're just innocent parties.

Leh Meriwether:              So, there are certain situations when a court is going to say, "Yes, this is an emergency," even with child custody. There are certain situations where they're going to say it's not an emergency. Let's start with something easy, interfering with parenting time.

Todd Orston:                     Never heard of it.

Leh Meriwether:              Never heard of it. Never happens.

Todd Orston:                     Never happens. Building on what you were saying, obviously with all aspects of divorce and these types of family law related matters, emotions run high. They never run higher than when you're dealing with custodial issues. Some of the hottest we see people is when there are issues with interference with parenting time. What we mean by that is, I'm going to use just as an example, mom has primary physical custody, dad has parenting time on a weekend. It starts at five o'clock on a Friday, end at five o'clock on a Sunday. Five o'clock on Sunday rolls around, child or children are not returned.

Todd Orston:                     Seven o'clock rolls around, ten o'clock rolls around, that parent is now frantically trying to get in touch with the other parent, "Where are you? I'm waiting. Where are the kids?" No response, or there is a response and it's nothing I can share on the radio. We see those types of things all the time.

Leh Meriwether:              Yep. In fact, one happened this week.

Todd Orston:                     Right. That's right. Again, is that an emergency issue? Yeah, it is, meaning it needs to be resolved as quickly as possible. If it's something like the weekend has ended and you're not returning, it depends on what we're talking about.

Leh Meriwether:              Right.

Todd Orston:                     Meaning, are you going to get into court that night? Of course not. If the parent is saying, "I will return the kids tomorrow morning," that's not what the agreement says. It's a violation. You might be, meaning the other parent, let's say in this case the wife, is emotionally upset, angry, you name the emotion, it's there. Obviously, you're not going to be able to get in front of a judge. You may just have to wait until the following morning, and then if you want to file a contempt, if it's a violation of an existing order, so be it. Does that constitute an emergency?

Leh Meriwether:              Well, I'm not sure a court would jump on that if he had said, "Hey, I'll return them tomorrow."

Todd Orston:                     That's right. Right.

Leh Meriwether:              Maybe he said he was coming back from vacation. He told her he was going out of town and the car broke down. Perhaps he didn't say what we can't say on the radio, but he said, "Hey, I will be back. The car should be fixed. I got it in the shop. They don't open until nine o'clock tomorrow morning. As soon as the shop has been able to take care of it and repair the car, I will be in the car and I will deliver the kids to you as soon as I can. If you want to come pick them up, you're welcome to."

Todd Orston:                     By the way, it's usually not a valid excuse reason like that. Usually it's just, "Yeah, I don't want to do it."

Leh Meriwether:              Right.

Todd Orston:                     So basically, "I'll return them when I want to return them." The point is, is there any emergency relief that you can ask for or get? No, not likely because the child is going to be returned, and it's going to happen pretty quickly. Now, if you have that same scenario, and let's say a parenting schedule or parenting time ends, and you're like, "Where are the kids? Five o'clock just rolled around and the kids aren't back," and the other parent is radio silent, or even worse, comes back and says, "Yeah, they're living with me now. I'm not sending them back." Okay, then that's different. Now at that point, I'll pose the question again, might that rise to the level of an emergency?

Leh Meriwether:              Yes. In fact, we had that exact scenario happen this month in a court that was very, very busy. Unfortunately, a lawyer had to drop everything and went to the courthouse, drafted an emergency motion first thing in the morning, went to the courthouse, showed up in front of the judge, told the judge what was happening, and filed it, sent the other side a notice that they were filing it but they also said, "We need a hearing." She asked for basically an ex parte hearing, which means the other side doesn't show up. So, the court granted it, the ex parte hearing.

Leh Meriwether:              Now, there was other factors in this case too. There was concerns about the other parent. I'm going to keep who it was out, but who the other parent was already existing in the case. So, the judge issued an immediate order that granted the attorney and his client the authority to go to the sheriff's department to have the sheriffs go pick up the children. Now unfortunately, there was a serious concern that this person was going to flee. They had to go to three separate counties and three separate police departments, or sheriff's departments, to get the children back.

Todd Orston:                     Right. So, in that scenario, we have a situation where there is a flight risk, where clearly the terms of an existing order have been violated, where there are concerns about potentially the mental welfare of the parent who is now violating that order. All of those things now rise up and become the basis for a request not just for a hearing, because keep in mind, let's say in that same scenario the child or children were returned. It may no longer be an emergency, but doesn't mean that you can't file a contempt action, doesn't mean you can't ask for another temporary hearing to further limit the parenting time due to that bad behavior.

Todd Orston:                     It may not rise, and I don't think would rise, to the level of an emergency. As angry as you are, the court doesn't need to do anything immediately because you have gotten the child or children back.

Leh Meriwether:              Yeah, you've gotten the children back.

Todd Orston:                     In your situation, children weren't returned. There was this game playing going on, flight risk, everything that you discussed, absolutely. I think it would rise to the level of an emergency where the court has to drop a lot of things and say, "Yep, come on in." To your point, an ex parte, anything, that goes against our legal system, the basic tenets of our legal system where both parties are supposed to be present. So, a court clearly thinks it's pretty serious if it entertain a request to have that initial part of the hearing outside of the presence of the other party.

Leh Meriwether:              Right. Now, I will say the court gave notice.

Todd Orston:                     Absolutely.

Leh Meriwether:              It was such short notice that he had a hearing without the other side present.

Todd Orston:                     The reason for that is because it basically ... it's the court taking into consideration that the other party could play games and say, "I got notice. Well, I have X number of days to respond to what was filed. So, once a respond, then the court can put us on a calendar and do what the court wants." No. This is the court saying, "Listen, you got notice. Be here, don't be here, I don't care, but this is serious enough we're dealing with this right now."

Leh Meriwether:              Yep. All right, so you've got those scenarios. Now you may have a scenario where ... We got the failure to return the child, but maybe the person's not allowing one parent to talk to the children on the telephone. They call and they call, and it's clearly in the parenting plan that the parent can have face time with the child or telephone conversations with the child, but the other parent absolutely refuses. Is that an emergency?

Todd Orston:                     In my experience, usually no. Now, might that warrant or not might? Would it warrant a temporary hearing? Yes. Would a court, again, set aside everything else that it has to do in the 2,000 plus cases that are on the docket to deal with the issue of you're not having face time? No. Is it emotionally disturbing to you? Yeah. Is it something you need fixed immediately? Absolutely. Does the court feel it needs to shut everything else down to focus on that? No. Now, if it was a situation where it was no face time, no calls, and no contact at all, now you've changed-

Leh Meriwether:              Even in those scenarios, I've had the court ... They might bump things up and give you a hearing in a week or two.

Todd Orston:                     Yeah, but it may not be a true emergency where overnight you are walking into court.

Leh Meriwether:              Yeah, exactly. Sometime the court will sort of measure it and say, "Well, I can make some room in the next two weeks," but that's still expedited here in Georgia. In many states, two weeks is an expedited situation.

Todd Orston:                     Absolutely. I don't want anything that we're saying to lead anyone listening to believe, doesn't mean that you don't act quickly, doesn't mean that you don't file even the next morning-

Leh Meriwether:              File a contempt.

Todd Orston:                     ... file a contempt.

Leh Meriwether:              Right.

Todd Orston:                     Make a request for a court appearance. It doesn't mean that you don't make the request. What we are doing here is trying to set some expectations so you understand that despite the fact you've asked your attorney to file an emergency motion, despite the fact that it was filed and it's in the hands of the court, you may not get that hearing the next day. It may take weeks. Sometimes it takes months depending on the court and depending on how serious the court thinks the issue is.

Leh Meriwether:              Yep. You know what we take seriously? Our breaks. Hey, up next, we're going to continue to talk about examples of when a court would consider an issue concerning parenting time and children an emergency and when they won't.

Leh Meriwether:              You know, Todd, nothing can be more stressful than dealing with, "Where are my children going to go to school?", in the next two or three weeks.

Todd Orston:                     Definitely when it's three weeks out, not an issue anybody wants to be dealing with, but unfortunately a lot of our clients end up having to deal with that issue.

Leh Meriwether:              They do. Hey, welcome everyone. I'm Leh Meriwether, and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp, and you're listening to Meriwether & Tharp Radio on the new Talk 106.7. If you want to learn more about us, you can always call or visit us online at AtlantaDivorceTeam.com. Today, we're talking about what's an emergency, at what point will a court put everything aside, stop all their other active cases just to deal with your situation.

Leh Meriwether:              I want to be clear here because when you're going through a divorce, everything just feels so ... it feels ten times bigger than everyone else sees it as because it's emotionally impacting you and your children, if you have children. So, I wanted to lay that caveat out there. We're not saying it's not an emergency, but at the same time, we don't want you to be disappointed when the court can't deal with it. So, we wanted to spend this show talking about why the court can't just deal with everything right on the spot, and talk about which situations that you probably will get very quick relief, and which ones where you may get quicker relief, and then situations where the court's going to go, "You're going to have to wait in line."

Todd Orston:                     Sometimes those lines are very long.

Leh Meriwether:              Yes, they are. All right, so we've been talking child custody, and I think we barely scratched the surface of it because there's so many scenarios that can occur. One of the ones we see happen so often is dealing with a parent and the divorce has been filed, maybe it's filed in April or May, and one parent's moved out. The issue of custody hasn't quite been resolved on a temporary basis, and the parties are in a disagreement. Here in Georgia, and some states are similar now, school start August 1. So, in the middle of July, there's this panic. "Where are the kids going to school?", because it's based on the residency of the children.

Todd Orston:                     Yeah. So, I've seen many times, and we've dealt with this issue many times, where child, or children, or they're going to the same school. They're in this school, they've been there for years or however many years. All of a sudden, now parties are separated. One party moved out of either the county or at least that school district, and next thing you now it's ... Child has been either withdrawn, if it's during a school year, or over a summer you suddenly go in and ... I've had clients where they're like, "I went into the school to fill out some paperwork for the next year, and they told me that my spouse pulled my kids out." Basically, noticed the school that they are withdrawn, they're being put into another school.

Todd Orston:                     Obviously at that point, there is a lot of anxiety. There is a lot of anger, and frustration, and what have you. Absolutely, we have clients who are contacting us saying, "Do something, and do something now."

Leh Meriwether:              So, the best thing we can do is schedule what is called a temporary hearing. Often, though the court ... I've been in the court the third week of July and there was 30 cases on the calendar. Now, did I have an exact count? No, but I want to say 18 of those cases all had that exact issue in front of them. They all were saying, including me, "Judge, we need relief because we don't know where the kids are going to be going to school next week."

Leh Meriwether:              So, the court was like, "Well, I have 18 of those to deal with," I don't remember if it was exactly 18, but just six is a lot to deal with. So, the court was like, "I'm going to have to take these in the order in which you filed them. Then sometimes the court will stay late until ... There was a point in time where the court would say until like midnight, but they had to stop doing that a few years ago, several years ago, when we had The Great Recession. There wasn't enough money to pay the sheriffs deputies to stay at the courthouse to say late. So, back then, at that point it became a huge issue because the judges just couldn't stay late. There wasn't enough money in the county to pay the employees to be there.

Todd Orston:                     The fact that they wanted to stay that late to try and resolve issues is a testament to the dedication of the judges to the work that they're doing.

Leh Meriwether:              Yeah.

Todd Orston:                     Look, in a situation like this, we have people that will contact us that will say, "Oh my gosh, I need the help." What your attorney or you on your own can do is, you can petition the court. If you are even days away, you can petition for an emergency. The expectation we're setting, at least the one I'm trying to set, is that the court may not look at it as an emergency. You may be put down on a temporary hearing calendar. Instead of getting put on a calendar two months out, you may be put on one that's a week or so out.

Todd Orston:                     The way the court's going to think is clearly not great if a child is going to start in one school and then get moved either back to or into a different school. Not ideal. Courts are all about what is in a child's best interest, but despite that, the court also says, "Well, I've also got ten cases where kids are being physically injured, and I've got ten other cases where there's drugs and alcohol and criminal behavior." So, you may just unfortunately not get the priority level that you want, and you just have to understand that. What's going to end up happening is, ultimately you'll be back in front of that judge whenever the judge puts you on the calendar. Hopefully, the children will be moved into the school district and into the school where they belong.

Leh Meriwether:              Sometimes we've gone ahead and filed them but told our client upfront, "We don't think we're going to get a hearing date," but then all of a sudden, the court's like, "Well, my week-long criminal jury trial next week, they settled. The criminal defendant plead out, and I have a week free. So, come on in."

Todd Orston:                     I've actually had situations where ... I had one situation where I was told by the court that we were not going to be heard because of a trial that they were in for another two weeks. Came to court, I'm in my khakis, I'm dressed down not dressed for court. Next thing you know, we get a call and it says, "Yep, we settled. This case settled. Come on in." Come on in, what? Is there a barbecue? What am I coming in for? They were like, "Come on in for your hearing," and there was a scramble. I mean, the good thing is the way that we are, Meriwether & Tharp, the case was prepared. Everything was ready to go other than my wardrobe. So, with a quick ... I found a telephone booth, and I went in and did my quick change.

Leh Meriwether:              Turned into Superman.

Todd Orston:                     Yeah, right, exactly.

Leh Meriwether:              Super Todd.

Todd Orston:                     That's right, exactly. No cape, but a tie. Then went there and we had the hearing. So, you have to be ready. Again, it's not that the court didn't want to hear it, it's that the court couldn't. As soon as there was an opening, boom, next you know we're going to court.

Leh Meriwether:              I had that happen to me only one time, and after that I kept an emergency suit at the office so that never would happen again. The last one we probably want to touch on is relocation.

Todd Orston:                     It comes up all the time.

Leh Meriwether:              You've got a parenting plan, especially when you have one where it's like a 50/50 arrangement type situation or something close to it, and then all of a sudden a parent says ... the parent who's primary says, "I'm moving, and I'm taking the kids with me." Well, sometimes the court will step that up if they can to get a hearing in before the other parent is supposed to leave. Now, some courts have a standing order that prevents the one parent from leaving the state with the child. Some courts just ... they say that that provision only applies to divorce, not modification actions. So, it's very county dependent or state dependent. In some states, actually before you can leave, you have to petition the court. Here in Georgia, you can just leave.

Todd Orston:                     It doesn't mean everybody follows those rules,-

Leh Meriwether:              Well, this is true.

Todd Orston:                     ... which opens the door to the need for court intervention. Yeah, we deal with this all the time. Despite the fact that a standing order might exist, our clients will routinely, maybe not routinely but quite often, they will get a call and be like, "Yeah, we're moving to," whatever state, or, "We're moving out of the Atlanta area," or whatever area they're in and it's three, four hours away. Still in the state, but of course that interferes with the other party's ability to exercise regular parenting time. We have to then petition the court.

Todd Orston:                     Generally speaking, do courts take it seriously and try and give you a court date as quickly as possible? Yeah, because they don't want the move to occur, but the best advice here is do not wait. All right? Usually there are notice requirements in existing agreements that require the other party to give you notice of an intention to relocate. The problem that people have is that they will get that notice and it may be a 60 day requirement, and 58 days later, they're doing something, or sometimes 120 days later-

Leh Meriwether:              But Todd, they didn't think they were serious.

Todd Orston:                     Yeah, right. Exactly. Then the move is either about to happen, or it is happening, or it happened. Happened, bad, because then what you're asking the court to do is bring them back. The court might look and go, "You know what? Why didn't you do something? The other party has a job, and the kids are in a school, and now you want me to rip them out of that situation." So, act quickly. Then I believe the court will give you quick attention to deal with that issue.

Leh Meriwether:              Yeah, because when you file, the opposing council can easily file a response to your request for an emergency hearing and state that, "They were given notice 60 days ago, Judge, and they waited."

Todd Orston:                     We've made that argument.

Leh Meriwether:              Yeah, and successfully too. The court's like, "You know what? You're going to be put on the regular temporary hearing calendar." Up next, we're going to talk about situations when money is or is not an emergency.

Leh Meriwether:              Well, Todd, I know at the end of the last segment I said, "Is money an emergency?" Most people are going to say, "Yeah it's an emergency."

Todd Orston:                     If you don't think it's always an emergency, can I borrow some money?

Leh Meriwether:              I don't think it's an emergency.

Todd Orston:                     Yeah. Really? I can come up with an emergency, I'm telling you.

Leh Meriwether:              Well, maybe hiring a lawyer.

Todd Orston:                     Yeah, that's right.

Leh Meriwether:              Okay. Yeah, for an emergency like a relocation issue.

Todd Orston:                     That's right.

Leh Meriwether:              Hey, welcome back everyone. I'm Leh Meriwether, and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp, and you're listening to Meriwether & Tharp Radio on the new Talk 106.7. We've been talking about what is an emergency, particularly as it relates to our court system, family law, domestic matters. At what point will a court set aside everything in order to hear your case? When I say set aside things, like not hear in due course.

Leh Meriwether:              In the first segment, we talked about what's going on with the court system, why they can't just set everything aside and work on it, just the shear number of cases they're dealing with. Most judges in any given time ... some of the outerlying counties might not have as many, but some of the metropolitan areas, the judges are dealing with a lot of cases with many different complex issues. So, we've been mainly talking about child custody, because that's the biggest area where you see the most frequency of a court considering something to be an emergency.

Leh Meriwether:              Now we're talking about money, and stuff, and everything else that you might see in a domestic case. So, let's talk about credit cards. We get a call, "Hey, he quit paying on the credit card. My credit's going to be dinged. Can I get an emergency hearing?"

Todd Orston:                     No.

Leh Meriwether:              What? It's an emergency, Todd. My credit's about to be ruined.

Todd Orston:                     The likelihood of a court based on that one issue, again I will repeat, doesn't mean that we don't petition the court immediately, does not mean that we do not file immediately or request a hearing as soon as is possible, maybe even the next day. We are talking about what we think the court will or will not do. Do I believe that a failure to make a payment on a credit card will trigger with the court the filing ... or pardon me, the setting of an emergency hearing? I do not. Usually, that's a temporary issue. Sometimes it's not even a temporary issue. Sometimes, it depends on how close you are to a final trial, where the court might say, "You know what? We're just going to deal with all of this at the end."

Todd Orston:                     Now, there might be a cautionary statement, and please understand and let your clients know that if they engage in bad behavior and it's affecting the finances, that's going to come out at trial and that's going to be held against that party.

Leh Meriwether:              You and I actually had a case one time where the judge said, "If you all don't work this out, somebody may be going to jail."

Todd Orston:                     I will say, that's when we were on opposite sides, and I will say the conversation that took place thereafter was a pretty stern conversation of, "Do they mean me?" "They meant someone. I'm fairly certain it's not Leh and it's not me. So, I am not going to jail. So, yeah, take it seriously." Unfortunately with those types of financial issues, if it's at the beginning of a case, early on in a case, yeah, absolutely it might result in a temporary. An emergency, again, setting everything else aside to deal with that issue, likely not.

Leh Meriwether:              I just want to be clear, it's horrible that someone may completely ruin your credit. It's horrible that someone may not make a car payment. You've been dependent on this person. They suddenly quit making car payments and your car is about to be repossessed. Those things are horrible, but unfortunately, the courts are also dealing with horrible things. Like you said before, some situations of child abuse, some situations of spousal abuse-

Todd Orston:                     Spousal abuse, that's right.

Leh Meriwether:              ... because these same judges here hold family violence hearings from time to time. Now, they try to shift those to some magistrate court judges and different judges so the main superior court judges are freed up to hear the primary domestic issues. Still, it takes on the court system's time. I've had some judges at bar meetings get up and say, "Hey, I'm going to give you a list of the things that we do not consider an emergency. Not that we don't care, but we have so much we have to deal with, we have to triage."

Leh Meriwether:              So, they gave a list one day. So, two weeks later, a client calls and says, "I've got to have an emergency hearing." I'm like, "I'm not filing a request for an emergency hearing, because they just told me that's not an emergency-

Todd Orston:                     Yeah, here's the list.

Leh Meriwether:              ... and if you want to get on the judge's bad side, the one who's going to be assigned to your case, if you don't want to get on the judges bad side, you will not file an emergency hearing." Now, we still file the motion.

Todd Orston:                     Right, doesn't mean you're not asking for assistance immediately.

Leh Meriwether:              Right.

Todd Orston:                     Right. What about a different situation? What about wasting of assets? What about, let's say, one party over the other has control of a bank account. In that account is, using a number, $50,000 and there is evidence that that person is just going on a spending spree and the money is clearly disappearing. Might that rise to the level of an emergency?

Leh Meriwether:              It could, but you're not going to get a hearing within days unless something just suddenly freed on the court's calendar, but I've seen where judges will say, "Let's have a hearing in five days or ten days," because they're like, "It's money. You can always make more money. It's not people." Now real estate, at least here in Georgia because each piece of real estate is considered unique. I had a case where someone was threatening to literally destroy the house. Well, the judge gave me an emergency hearing.

Leh Meriwether:              Now, it still took me four days to get in front of the judge. He considered it an emergency hearing, but it took four days. When we had that hearing, there were seven sheriffs deputies standing behind the other side because of the allegations he also made against the court. That was a very stressful case, to say the least-

Todd Orston:                     Wow.

Leh Meriwether:              ... but very intense. The guy was like, "I am going to get a bulldozer and run over the house."

Todd Orston:                     Again, those are facts that the court-

Leh Meriwether:              Those are the extremes-

Todd Orston:                     ... clearly can say, "You know what? I need to deal with this right now. I can't wait a month for him to go," what?

Leh Meriwether:              Destroy the house, yeah.

Todd Orston:                     Go to somewhere and rent the bulldozer and just run over the house. Clearly, there's something there. There are exigent circumstances that require immediate attention, and the court's going to give that immediate attention. Usually when it's the wasting of assets-

Leh Meriwether:              The liquidating of a retirement account is an example-

Todd Orston:                     Absolutely.

Leh Meriwether:              ... where I've had courts ... Now, I think we had a few where there was allegations, like our client was tapping the 401k, that weren't true, but the court gave a hearing within I think six or seven days in that one. Of course, after the court saw the account, they dismissed it and seriously considered giving our client attorney's fees for wasting everyone's time.

Todd Orston:                     There are things that you can do like turning attention to real estate. There are things you can do to hopefully prevent that bad behavior from occurring.

Leh Meriwether:              Right.

Todd Orston:                     I've had cases, and I had one relatively recently, where the other party, the house was in their name, mortgage was in their name, title was in their name, and there was a concern that that person was going to sell the property. In the context of a divorce, there are things that you can do. You can file a lis pendens. In essence what you're doing is clouding title. That can interfere with the ability to sell, because to sell you have to be able to transfer a title-

Leh Meriwether:              A clean title.

Todd Orston:                     ... a clean title. If it's not clean, then-

Leh Meriwether:              Nobody's going to want to buy something-

Todd Orston:                     That's right. Actually, the closing attorney really at that point should be shutting everything down saying, "It's not going to happen, because there is a clean title." In that situation, you may not get the emergency either, because the court might look and go, "Well, go do what you need to do to stop it from happening."

Leh Meriwether:              File a lis pendens.

Todd Orston:                     That's right. Really again, if there's major waste or the potential for major waste, then courts may give you a temporary. I have seen wasting of assets, meaning bank accounts, retirement accounts, even businesses. There are times when I've seen where one party ran a business and they were running it into the ground, or pilfering, they were just emptying the accounts, and the court might at that point give an emergency hearing in order to basically control that.

Leh Meriwether:              Sometimes the court's concept of emergency is something three weeks out.

Todd Orston:                     Absolutely.

Leh Meriwether:              So, you're not getting in there immediately. You may have to wait a few weeks.

Todd Orston:                     Yeah, if anybody walks away with anything in terms of a message, it is ... and we've said this before, it's a court system. No system is perfect, but the courts are trying. What is your emergency may not be the other party's or it may not be the judge's definition of an emergency. It could take days, weeks, sometimes months to get in front of that judge.

Leh Meriwether:              Yeah. Now, but there's relief, like with the businesses I can remember of one where there was that concern. The other side was just running the business in the ground, and we filed a motion for the emergency appointment of a receiver who would step in the place of the business owner to operate the business to keep it from being run to the ground. I want to say, this was years and years ago, but it took like three weeks, four weeks to get in front of the judge even with an emergency in motion.

Todd Orston:                     Because the court's probably going to think there's not much the person can do overnight, and therefore, "I'll deal with the other real emergencies and deal with that tomorrow."

Leh Meriwether:              Nobody's getting beat up. There's no children that are maybe disappearing, so it's money. Well, you know what? I can't believe how fast this show went. I mean, we're already done. We could talk about more, but unfortunately we don't. Well, that about wraps up this show. Thanks so much for listening. You can always read more about us and find more information about us online at AtlantaDivorceTeam.com. If you have a topic you want us to explore, please email us at [email protected]

Speaker 3:                           This audio program does not establish an attorney-client relationship with Meriwether & Tharp.

 

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