Answering Top Questions on Custody, Contempt, And More
- What to do if you and your co-parent live in different states and there is no court order regarding parenting time?
- When should you file for a motion for contempt to enforce your parenting time?
- If my ex-wife continued to live with me and withdraw money from our joint bank account after the divorce, will I have to pay her back owed child support after she moves out?
- When is it appropriate to have a no contact provision in a settlement agreement?
- Can my soon to be ex-wife sleep with her lawyer that represents her in her TPO action?
Leh Meriwether: Welcome everyone. I'm Leh Meriwether and with me is Todd Orston. We are your co-hosts for Divorce Team Radio, a show sponsored by the divorce and family law firm of Meriwether & Tharp. Here you will learn about divorce, family law, and from time to time even tips on how to save your marriage if it's in the middle of a crisis. If you want to read more about us you can always check us out online, atlantadivorceteam.com who.
Todd, I don't know about you but I'm tired.
Todd Orston: We just started the show.
Leh Meriwether: I know. Yes-
Todd Orston: I mean...
Leh Meriwether: It's been one of those weeks. I'm just tired.
Todd Orston: Oh okay. I was about to say fourth segment, maybe. I mean, that's when you normally start nodding off anyway.
Leh Meriwether: So if you can wake... I still find the material exciting, I'm just tired.
Todd Orston: All right. Well, thanks for setting that up and presenting that at the beginning of the show so people are like, "Oh okay. No energy, he's falling asleep in segment three. All right, it's a no."
Leh Meriwether: Just kidding. Now everyone's going to be listening.
Todd Orston: I'm going to bring the energy then, all right?
Leh Meriwether: Okay good. Good. Good.
Todd Orston: All right.
Leh Meriwether: See now everybody's going to listen to the fourth segment to see if I actually do fall asleep.
Todd Orston: Ah, there's a method to your madness.
Leh Meriwether: Yeah.
Todd Orston: All right. I get it. I get it. All right, so what are we talking about today with a lot of energy? I'm going to talk like this the entire time.
Leh Meriwether: I don't know if I can take that or not.
Todd Orston: I don't know if I could either, actually.
Leh Meriwether: Oh. Well actually, we've got some questions today.
Todd Orston: Ah, I like questions.
Leh Meriwether: A smorgasbord of questions.
Todd Orston: Yeah, don't do that again. All right.
Leh Meriwether: It's not on any one specific subject area, we just have a variety.
Todd Orston: All right.
Leh Meriwether: It's the variety show today.
Todd Orston: A sort of a grab bag of questions, I like it.
Leh Meriwether: Yep.
Todd Orston: All right well, I mean it's what we do. So-
Leh Meriwether: Yeah. Here's the first one, Todd. Are you ready? What should I do?
Todd Orston: Oh God, Leh, I have so many things to say in response to that. Wait, is that the question? Oh okay.
Leh Meriwether: Well there's more to it there.
Todd Orston: I thought that was your question. I'm like Leh, we need a longer show.
Leh Meriwether: No. So the question starts off, "What should I do? Moved to Georgia in January of 2021 from Philadelphia with my 14 year old child. The agreement was to allow my child to go back up to Philly for the school year with her mother and come back to Georgia the next school year where she'll remain for high school, seeing her mother over the summer. I have reason to believe her mother will be trying to keep her in Philly. Is there something I can do? There is no official custody arrangement with the court, just between us personally." Oh boy.
Todd Orston: Yep. Well yeah, so the very last part of that question says it all.
Leh Meriwether: Yeah.
Todd Orston: The fact that there is no official custody documentation and agreement, and more importantly order, the fact that you have an agreement is unenforceable. And so the problem that you have here is that a verbal agreement that's not put into writing and then ultimately signed off on and included with a final order signed by a judge, is that it's just words. It really isn't going to be enforceable.
And on top of that, here's the other problem, and my main point there is simply you may have no choice but to just basically initiate a custody action to deal with the issue. But if it makes you feel any better, it's my opinion that even if you had an order that said all those things that, Leh, you just read, that this year with you, and the next year with mom, and summer here, and da da da da da, as your child gets older especially, things can change. So the door might be open to a modification anyway, so even if you had an order there's a lot of back and forth there. And if a child is coming to one of the parents saying, "I don't really want to move and spend that much time down there, or up here, or whatever the case might be, you could find yourself in front of a judge anyway in terms of a modification.
Leh Meriwether: Yep. And I'd point out this too, because the proper jurisdiction for a custody arrangement is where the child has been residing for the past six months. So I mean, it sounds like he's been down here since the beginning of the year. That's been more than six months, so Philadelphia might not be the correct place. But if she goes up to Philadelphia and stays there more than six months, then Philadelphia becomes the proper jurisdiction. So if you're down here in Georgia there's nothing you can do about it, you can't file down here if she's been up in Philadelphia for over six months.
Todd Orston: Yeah. And the interesting thing there is if an action is brought here initially, so let's say you do file here in Georgia, as long as you stay in Georgia after that any future modifications or custody actions would need to be brought here in Georgia. If you allow for the child to go up there and then unfortunately jurisdiction would be proper in Philly. Then if that's the court that ends up dealing with this custody action, from that day forward any future custody actions, as long as they stay in Philly, would have to be brought up there. So you would constantly have that to go there to fight any legal battles relating to custody.
Leh Meriwether: Yep. And Georgia, I think they're the only state that has a statute where a 14 year old can elect to live with whom they want to. They can file election. And we talked about that on the last show. But some people like that, some people don't like that rule. But Georgia's I think the only state that has that rule. So-
Todd Orston: Yeah. I mean-
Leh Meriwether: It could be advantageous for you or disadvantageous for you.
Todd Orston: Right. Right. And look, I can't speak to the laws of other states, but I have to assume also if you have a 14 year old child who would like there to be a change of custody, I can't believe that the only state that would hear the child and take the child's wishes into consideration is Georgia. We just have a formalized method where a child can sign an election. And you know what I'm saying, Leh?
Leh Meriwether: Yeah. Yeah, I know what you're saying.
Todd Orston: That's what I believe makes us different, but obviously in other states children have a voice. And so if your child is like, "I don't want to come back to Georgia," or, "I don't want to go to Philly." Whether it's here or there, I would like to believe that the court will hear the child and take the child's wishes into consideration.
Leh Meriwether: Right. It's just given a lot more weight up here with a statute. All right, let's go to the next one.
Todd Orston: All right. Long one, you want me to read it?
Leh Meriwether: Yes.
Todd Orston: All right. "Is a motion to enforce the same as a motion for contempt?"
Leh Meriwether: Never mind, I don't want you to read this one.
Todd Orston: Was there not enough energy? All right, "Is a motion to enforce this..." all right. Anyway. All right, so is it the same, motion to enforce same as motion for contempt?
Question is, "Custodial parent continually violates the court order by making unilateral decisions with regards to school and health. We share joint legal, and if we can't agree we go through mediation. He doesn't discuss anything with me. He and his mother, mostly his mother, make all of the decisions. And if not for my daughters telling me, I wouldn't know that he changed their school, or that my daughter had COVID 19, or that my other daughter is seeing a therapist for threatening to kill someone at school. The father listed me as number four on contact sheet and blocked me from receiving emails. I had to show the school, the court order before they would share these documents.
"I requested two years of medical records and the only name listed is the paternal grandmother. I take my girls to their pediatrician when they are with me and sick, and I discover their grandmother has as well but I never knew. My name was removed and her name added as the parent or guardian. Dad has primary physical and I have liberal visitation and parenting time. I exercise my visitation. I do my best to stay involved by attending their games, parent-teacher conferences, et cetera. Dad and grandma speak poorly of me to the kids. Can I file for contempt?
Leh Meriwether: Well, if there is an existing order it will be a contempt motion not a motion to enforce, because from what it sounds like, oh, I haven't read the order obviously, but assuming the order you have is very similar to the orders that we see here in Georgia, sounds as if he's in contempt of court.
Todd Orston: Yes.
Leh Meriwether: Again, I haven't seen the order she has but, I mean, the most common customary orders include language when it comes to joint legal that the other parent has to keep the other parent in the loop. I'm oversimplifying the language you usually see in the order, but it sounds as if he's intentionally trying to cut her out.
Todd Orston: Yeah. And having read the question I think I have a little bit more understanding. A motion to enforce is usually a tool where there's an agreement that hasn't yet made it into an order, let's say, and the other party's trying to back out of that agreement. And so you can move for the court to enforce that agreement and make it a court order. Once it's a court order, you don't have to do anything to make it a court order. But you can do things to enforce the terms, that would be through a contempt.
But I think we should talk a little bit more about this because I'm not just hearing a contempt issue. Based on some of this behavior, I think when we come back, we should really talk about modification as well.
Leh Meriwether: Oh absolutely, and we'll get into that when we come back.
I just wanted to let you know that if you ever wanted to listen to the show live, you can listen at 1:00 AM on Monday mornings on WSB. So you can always check us out there as well.
Todd Orston: Better than counting sheep I guess, right?
Leh Meriwether: That's right.
Todd Orston: You can turn on the show and we'll help you fall asleep.
Leh Meriwether: There you go.
Todd Orston: I'll talk very softly.
Leh Meriwether: Welcome back everyone. This is Leh and Todd and we are your co-hosts for Divorce Team Radio, a show sponsored by the divorce and family law firm of Meriwether and Tharp. If you want to read more about us you can always check us out online at atlantadivorceteam.com. And if you want to read a transcript of this show, or read transcript of our past shows you can find them at divorceteamradio.com.
Todd Orston: Yep. Yep.
Leh Meriwether: This question...
Todd Orston: There's a lot to it.
Leh Meriwether: Yeah.
Todd Orston: Yeah. Yeah. And what I was saying before the break is a contempt is more really for a sanctioning, a punishment. You're looking for the court to do the verbal slap on the wrist. "Hey, you're not abiding by the terms of my order. Behave." And there can be sanctions included. But again, and like you were saying during the break, there are things we don't know. But modification, my opinion, there may be an opening here for modification if the behavior is serious enough, bad enough, whatever. What do you think?
Leh Meriwether: Oh yeah. I mean, when I was listening to this I was thinking, without knowing the backstory of how we got to where we are, I've filed actions to modify custody based on a very similar fact pattern as this. Very similar. Doing things that are cutting mom out of the life of the children is an absolute reason to bring a modification case because they are taking intentional actions to alienate the affections of the children from their mother. And that's what I'm hearing here, and I mean I'm not kidding, I've seen this kind of case with a father and a grandmother and his mother, working together to push the mom out of the life of the children.
But we don't know the backstory. So when someone comes to me that has something like this I find the backstory first, because you may start with a motion for contempt. You may start with that and in a motion for contempt, and I'm speaking only of Georgia here, a court cannot change custody inside of a motion for contempt. It's a limited action. But a court can modify visitation to give mom more visitation time to sort of offset something that may have been done improperly to begin with, so the court has limited remedies in that regard.
But this may be one of those cases, without knowing the backstory, you may need to file just the contempt first because the court can come down with some really harsh punishments here. But what I've seen in these kind of cases is you start with a contempt because odds are the other party's going to do it again. And so you start with a contempt and then the second time the person violates the order, and maybe even violates the contempt order, then you go for modification. But there may be cases where you can file it jointly. You file a motion for contempt and a motion to modify at the same time. We don't have enough information here to say "that should be done," but a bare minimum, a bare minimum you should be filing contempt because it's only going to get worse.
Todd Orston: Yeah. And the last thing I'll say about this is time is of the essence. We have seen too many situations where there is this kind of behavior going on and the aggrieved parent, okay, waits too long. And the problem is if this is sort of chiseling away at the relationship between you and a child or children, it's chiseling away. And at some point it's going to get to a point where it may not be salvageable.
I have seen situations and I've had clients where they waited for years, and by the time they moved to do something a child, or the children were 14, 15, 16, 17 years old. I've had judges look at me and say, "I understand. I agree what was done is pretty bad. But I've got a 16 and 17 year old who say they will not go over to that parent's house. And so as much as I want to issue an order changing custody, the 17 year old and the 16, they both drive. So anything I put in place, the children are just not going to listen. They're just going to leave.
So it is of incredible important that you act quickly. If you don't know whether or not you have a good enough case get it reviewed by an attorney. Go talk to someone, show them some of this evidence and say, "Hey, do I have enough?"
Leh Meriwether: Yep. And going back to the discussion about a backstory. I've seen cases where there was a divorce sparked because one parent had an addiction, whether it was alcohol or drug addiction. I've seen cases where that parent lost custody for that reason. And the other parent, for an understandable reason, was trying to protect the children from seeing any more of that from the addicted parent. But then something amazing happened.
The parent who is suffering from the addiction is able to conquer their addiction and make huge changes in their lives, and become part of the children's' lives again. And so the protective parent goes overboard, and as a result makes what was already a bad situation even worse. And that's why if you had a situation where a parent had been an addict of some... There was that backstory, like I gave the example. The court's not going to immediately change custody in those situations. They'll admonish the party that was misbehaving but that party still remembers the harshness, what they went through when the person was truly suffering from the addiction. So I would just caution the overprotective parent in this situation, because people can save themselves. And if you overreact you can wind up losing custody, which could happen in this case. All right.
Todd Orston: Here, let me read this one to you because I know you have some spot on points, based on your experience, working with a client on something like this. So let me read this one. All right, "Will I have to pay child support arrears if my ex and I continue to live as husband and wife until after the children were adults? We divorced in 2012 but reconciled even before our divorce was final. We even bought a home together as co borrowers and signed contract as married. She was never removed from our joint bank account and had full access where she contributed a little, but withdrew a substantial amount per month to cover our children's expenses.
"For some time, our kids had debit cards for the joint account to use for food, clothes, school expenses. Our youngest is now 22, and my ex only recently accused me of never paying child support. She continued to have access to my account until our youngest was 20. When we broke up I severed financial ties. When I recently remarried..." I think I see where the problem comes in... "she made this accusation even though she never had an issue until I finally cut her out of my life and moved on. She's upset that she is no longer a beneficiary to my life insurance or survivor benefits, hence the ridiculous accusation. Will I have to pay arrears even though I supported my children?"
Leh Meriwether: Well, the short answer is you shouldn't. And I've had this exact case. I mean, it's eerie how close the fact pattern is. I had a very similar case, I represented the dad. They reconciled after the divorce and she brought an action for an unbelievable amount of child support. It was just enormous because it was over several years. And just like in this one it was over the course of several years. It added up immensely. And so on paper, it looked like he was going to owe, I can't remember the number, it was maybe $150,000. And that looks bad. That looks bad to a judge when they see it, so that's where when I say "you shouldn't," but if you don't defend yourself then you run into problems.
So what we had to do was we had to go spend some money, go to the banks, get all the bank records and do an accounting of all the money withdrawn from the account by the mom, and account for I think there was no money contributed by her. But he had to do a full accounting. And then over the course of time it showed that in some respects, depending on how you account it, she owed him $50,000. It was a huge number she owed him. But over the course of 10 years she had withdrawn way more than the child support. And so needless to say he was not stuck with a giant bill.
Todd Orston: And speaking of bills, when you say you had to do a lot of work. I mean, because I think the takeaway is don't do this. But how much work are we talking? I mean, was this a cheap thing to accomplish or not?
Leh Meriwether: He spent a lot of money. A lot of money.
Todd Orston: Yeah. And you're talking about on the litigation.
Leh Meriwether: Right. On the litigation, yeah.
Todd Orston: Yeah. It becomes a forensic nightmare. If you're dealing with this child support in kind kind of argument, I mean the amount of evidence you need to get your hands on and present properly to the court... I'm just saying that I understand where you were coming from. You were trying to do the right thing for the family. You were trying to be generous. You can't. There are still ways to be generous and helpful and all of that, but just giving sort of a carte blanche open access to accounts, it can create huge problems.
Leh Meriwether: Yeah. As it did. And sounds like it did it here and it did before. When we come back we'll continue to go through these questions.
Todd Orston: Hey everyone, you're listening to our podcast. But you have alternatives, you have choices. You can listen to us live also at 1:00 AM on Monday morning on WSB.
Leh Meriwether: If you're enjoying the show we would love it if you could go rate us in iTunes or wherever you may be listening to it. Give us a five star rating and tell us why you like the show.
Welcome back everyone. This is Leh and Todd and we are your co-hosts for Divorce Team Radio, a show sponsored by the divorce and family law firm of Meriwether & Tharp. If you want to read more about us you can always check us out online, the atlantadivorceteam.com. If you want to read a transcript of this show or go back and read transcripts of our other shows, you can find it at divorceteamradio.com.
All right, well today we are answering a smorgasbord, a variety of different questions on different subject areas. And as always it seems like some of these questions have a underlying moral to the story, like in our last one about a father trying to do the right thing. Trying to work things out for the sake of his kids and allow the mom to get access to his account, but only to have that niceness rewarded by the threat of civil litigation for child support later on even though she probably got more than the child support she was supposed to get. But as we usually see Todd, as soon as someone else gets in the picture that just triggers litigation.
Todd Orston: Yeah. That's why I made that comment. Unfortunately we see it too often: a new girlfriend, a new wife, whatever the case is. Sometimes people act maturely and sometimes they don't. And when you're dealing with this kind of a situation, not behaving and acting maturely oftentimes leads to litigation. So look, I understand why. But once you separate, once you divorce, keep things separate. That doesn't mean you can't be more generous. Like for instance I've seen people where, I'm just using the number, let's say they were supposed to pay $1,500 and they're like, "You know what? It's not enough. You need some extra, that's fine. Here's some extra. Here. I'll pay for something that I wasn't supposed to pay for." I'm not telling you not to do that. Giving open access to your accounts, as you can see it's dangerous. All right.
Leh Meriwether: Yeah I mean, well first off we were both saying "Don't do this." But if you were to do this and you were trying to keep things nice, I would absolutely have taken her off the bank account, perhaps set up a bank account in her name within maybe the same bank, and then set up a regular withdrawal. So if your child support, for example, is 1,500, but you know that she regularly spends 2,500 a month. You just have 2,500 bucks a month going to her account. And that way you have this very simple record of your child support payments to her. You don't have to spend thousands of dollars on forensic accountant to account for all the money she withdrew and none of the money she contributed. And it would pretty much crush any attempted action she would take.
Todd Orston: Yeah. And let me be very clear about one other thing. If you are supposed to pay 1,500 and you put 2,500 into the account, you're not getting credit for future payments.
Leh Meriwether: Nope.
Todd Orston: So when you start thinking, "Oh well, I've been doing something similar to this. And good golly, I've put $50,000 into the account and I was only supposed to pay 20."
Leh Meriwether: That's a gift.
Todd Orston: Well, more than likely that 30 constitutes a gift. So you can't then say, "Well, I want credit for all of that." You will get credit for the amount that you were supposed to pay but anything over and above that, that's a gift.
Leh Meriwether: Yep. So here's the next one. "In Georgia, how long can a grandparent visitation rights case take? How likely are the courts to give visitation?" Grandparents who used to see a nine year old child every other weekend since birth now cannot due to disrespecting the parent, undermining her authority, and just not respecting boundaries. The parent has advised the grandparents to petition the court should you want to visit your grandchild as the disrespect towards the parent is unbearable. The parent put up with the BS for nine years in an attempt to let the child know the deceased father's side of the family. There is verbal abuse from the grandparents to the living parent and even a physical alteration where the uncle attacked the mother."
Todd Orston: It's probably an altercation as opposed to an alteration. But I think we-
Leh Meriwether: Did I say "alteration?"
Todd Orston: "They came in and next thing you know they were hemming my pants. It was terrible."
Leh Meriwether: Oh, that's the tiredness in me. It didn't catch up on me. Oh the third...
Todd Orston: All right, so let's talk about these horrible alterations. And let's start with the first part of the question. How long can a grandparent visitation rights case take? As with any litigation this is not a simple matter. And grandparent visitation cases can even be a little bit more complex because you're really diving deeply into constitutional law. The constitutional rights of a parent to make decisions relating to their children as opposed to a third party stepping in and saying, "Yes, I know constitutionally speaking that's the parent and has certain rights, but I want some rights myself." So here, this is sort of a traditional situation where, unfortunately, one of the parents, but here the father passed away.
So the grandparents might be able to come in and make an argument that, and I'm not going to go into all, we can do a whole show on grandparent visitation. But-
Leh Meriwether: We have before actually.
Todd Orston: Right. Where they can come in and they can talk about, basically, how some level of harm could occur if they don't get time with a child. But here's the problem. The problem is the court's not going to ignore all of that evidence relating to their bad behavior. So here, I can tell you if I represented mom I would absolutely be focusing on that. I'd be focusing on the fact that basically the grandparents are kind of evil. They're doing a lot to alienate the relationship. And if they can prove, I can tell you right now that it'll be incredibly difficult to convince a judge that basically they should still be allowed to have meaningful or any contact with the child or children, simply because there's a history of them abusing that right.
Leh Meriwether: Yeah. And I think it all comes into what evidence does she get into court. I think the one thing that's strong, I'm just going to be devil's advocate for one minute, the biggest element that's in favor of the grandparents is that it's been a nine year relationship. It's an established relationship with the child where sometimes we see cases where the grandparents aren't that involved and then suddenly they try to get involved. But in this case it sounds like they've been involved since the beginning, and they can actually ask for a guardian ad litem to investigate. Now, they have to pay for it but they can ask for the guardian ad litem to investigate, to see if harm can result from terminating the relationship between the child and the grandparents. So-
Todd Orston: Yeah. I mean again, that would be-
Leh Meriwether: I mean, I've seen judges go both ways on this. It's a sensitive subject.
Todd Orston: It's a sensitive subject, but I will tell you that the tipping point will be do you have the evidence to show all of that bad behavior?
Leh Meriwether: Right.
Todd Orston: And if you can truly show that they have engaged in that kind of damaging, unhealthy behavior towards the children, then I can tell you right now I think, if I had the choice, I'd want to be representing mom because I think it'll be really, really difficult. And I think a judge would necessarily look at this and go, "This is hard. I mean, I would love nothing more than for you to have a healthy relationship with the child," talking to the grandparents I mean, "But there's nothing healthy about your relationship with them."
Leh Meriwether: And I don't know. Sometimes you and I both know that one person could say "this is verbal abuse" and the other person was just saying, "I was just trying to share some grandmotherly advice. I'm sorry you didn't like it." And the question is, is it done in front of the children, or the child in this case? So what I'm trying to do is say-
Todd Orston: Yeah. But "Your mother is stupid" is not grandmotherly advice.
Leh Meriwether: If that's what's being said.
Todd Orston: Right.
Leh Meriwether: But my point is you have to take it seriously. You can't just say, "Oh, they're going to lose this case," because I did see someone and who didn't take it seriously. And grandparents, I mean they absolutely should not have gotten any visitation time. And the court granted them visitation time. And I thought it was... And I wasn't in that case, I just saw it in the courtroom and I was shocked by the judges ruling. So that's why I'm saying you got to these seriously.
Todd Orston: Yeah I mean, and I will say hats off to the mom. Again, I'm pulling this simply from something that the mom wrote.
Leh Meriwether: Oh yeah. Yeah. Yeah. Yeah.
But hats off, if for almost a decade you put up with that behavior, trying to facilitate that relationship. Good for you, because it is the right thing to do. But at some point you do need to say "enough is enough."
Yeah. And maybe there's another route that can be taken. And sometimes the grandparents don't realize how offensive their words can be. And maybe a third party, a counselor, maybe there can be a go between because, like you pointed out, she was trying to do the right thing and let her child know his father's parents.
Todd Orston: Yeah. Well, there was also a physical altercation so maybe an MMA referee?
Leh Meriwether: Well, who was that between? That wasn't really clear.
Todd Orston: I don't know.
Leh Meriwether: Who attacked the mother? It doesn't sound like... But anyways, when we come back we'll continue to talk about the grandparent end of May fight.
I just wanted to let you know that if you ever wanted to listen to the show live, you can listen at 1:00 AM on Monday mornings on WSB. So you can always check us out there As well.
Todd Orston: Better than counting sheep I guess, right?
Leh Meriwether: That's right.
Todd Orston: You can turn on the show and we'll help you fall asleep.
Leh Meriwether: There you go.
Todd Orston: I'll talk very softly.
Leh Meriwether: Welcome back everyone. This is Leh and Todd and we are your co-hosts for Divorce Team Radio, a show sponsored by the divorce and family law firm of Meriwether & Tharp. If you want to read more about us you can always check us out online at atlantadivorceteam.com. And if you want to read a transcript of this show or all the others we have done, you can find them at divorceteamradio.com. Well let's [crosstalk 00:34:15] with questions Todd.
Todd Orston: All right, hit me. Not literally... Yeah. I had to be careful there. All right.
Leh Meriwether: All right. Divorce settlement, no contact? "I'm going through an uncontested divorce but my spouse will only sign the papers with two conditions. The first, she will claim her child on next year's tax return making me change my filing status to single, which will cause me to owe federal taxes for 2021. I have no issue with this based on how much in back taxes I owe.
"But the second condition is a no contact. I have never ever reached out to her in six months. I'm afraid that if something comes up like a tax issue, or something during our marriage, I will be stuck. I can do the first one, but won't agree to the second one because I've never heard of a no contact clause, which is not needed because I don't even love her anymore." Oh. "I also would like to remove her name from the apartment lease since she has been gone for six months.
Todd Orston: All right, okay. Too many comments. My head is going to pop. All right, let's start with taxes. Well first of all, that's a federal issue. So in terms of who gets to claim a child on their income tax returns, it is the parent who has a child more than 50% of the time. Now, where you get into a little bit of a hairy situation is where a divorce will be finalized towards the end of the year. You've been together the entire time. And both parties could say, "Well, we could both claim more than 50% of the time so who's going to claim this year?" And reasonable parties should be looking at it in terms of who will it actually benefit, because there are many situations where it will have zero, literally zero benefit for one, and a potentially significant benefit for the other. And if that's the case, I mean if you're not giving actually anything away I usually tell my client, "Listen, you're not going to benefit from it. It won't save you a dollar, just give a to them. And it's one more thing that you can throw in there and maybe you get something in return." Okay. So for taxes it is or will be what it's going to be, in terms of when you get the divorce. But you may not have a choice. It's a federal law.
Now let's talk about the no contact. The person writes that he has never, ever reached out in six months. And my initial question is never ever? Because no contact provisions, they don't just come up. Usually there's something behind it, and so as a fact finder here I would immediately be trying to understand why is this even a thought. If there's a history of abuse, okay, then that's something you need to come to grips with and acknowledge. But if there's nothing like that then putting a no contact provision, usually agreements that we do, they have standard language that neither party is going to harass the other kind of language.
A no contact provision is taking it sort of to the next level, ultimate level being a protective order. But again, I would want to look at the motivation. Why does she feel that she wants or needs this? And if there is a history there, before you go into a court setting where you want to fight against it, putting in some general terms of "All right fine, you don't want me to contact you? I won't contact you," may be appropriate, although you do need to carve out some allowance to communicate about the child.
Leh Meriwether: Well, if that's their child.
Todd Orston: Right-
Leh Meriwether: [crosstalk 00:38:30]-
Todd Orston: ... good point, because the writer does say she-
Leh Meriwether: Wants to claim her child.
Todd Orston: ... wants to claim her child. Well, if it's not your child you're not claiming it anyway. All right. Then you're right, then it's not even a federal issue. Then it's just a "Duh, no you can't claim that child because it's not your child. So okay, then the final issue would be the lease. And you would want to remove her name from the apartment lease since she has been gone for six months. The court order will not remove her name from a lease. A lease is a contract between you and a third party. Nothing the divorce court can do can modify that contract.
Now, can you put in terms as to who will possess and have control over that apartment and be able to live in that apartment? Of course, you can put that in there so even if she's on the lease, the order can say, "No, the husband is going to have complete sole use and possession of that apartment." You can then negotiate with the company, the-
Leh Meriwether: Landlord.
Todd Orston: ... landlord, thank you, to see about removing her name from the lease. But that would be something completely separate from the divorce.
Leh Meriwether: Right. Going back to what you were saying about the no contact, my preference would be just saying neither party will harass or intimidate the other party because now you're living your separate lives. I don't remember off the top of my head our standard language, but it's in there. But if you were going to agree to neither party will contact the other party since you're now getting divorced, I would include language, like you were saying, like except in the event you need to deal with any tax or financial issues that may have resulted as a result of the marriage, but arisen since the divorce, something along those lines.
Todd Orston: Yeah. The bottom line is you can carve out some exceptions, and I think you would need to do that especially if you're dealing with the lease, and if it's his child dealing with child related issues, then there has to be a means to communicate. But you can also put in communication has to be in writing. And you can put limitations so that decisions can be made, but they can be made in a safe way that everybody's comfortable with.
Leh Meriwether: Yep.
Todd Orston: All right, last one so are you ready? This is one we see all the time. No, actually one we see kind of never. But okay, "Can my wife sleep with or go out with her lawyer that represents her in a TPO? My wife and I are going through a divorce," clearly. No, I added the clearly. All right, "In the meanwhile she is sleeping with her lawyer that is representing her for a protection order. She continues to file motions that get dismissed for contempt, and while I'm under the 12 month TPO this attorney continues to make after hour visits per my neighbor sending me images. Is this legal?" Leh?
Leh Meriwether: I have to say, I think this is the first time I've ever been asked this question. Oh boy. All right, well first thing I would say is I'd be concerned. Most of the time TPOs say you can't have a third party spy on the other party on your behalf. And if she's running around filing contempts against you and then she finds out the neighbor took some pictures of the lawyer coming over, well that may give her evidence to actually win a contempt against you because they could say, "Hey look, you're having the next door neighbor spy on us." So that's something I'd be very concerned about.
Secondly, I'm not sure what it has to do... Let's assume for the moment this is happening, that she's sleeping with the lawyer. I don't know exactly what it has to do with the divorce. Now, if she's asking for alimony then that may be a basis to get the alimony blocked. Then you could argue about the adultery. But I have seen people... Let me take a step back.
I have heard of cases where an angry spouse accused the other spouse of sleeping with the lawyer, and it just absolutely wasn't true. And the judge did not take kindly to the accusation. It did not go over well in the courtroom, let me just put it that way. So you run the risk of alienating your judge, especially if the judge knows the lawyer of making that accusation. And you also run the risk of being held in contempt of filing the 12 month TPO if you reveal the source of your information, so I'm not feeling too good about you even bringing this up. What about you, Todd?
Todd Orston: Yeah. Well, I agree with you 100% but let me say this also. Put aside, and I thought you were going to go here, so my quick point is even if they are sleeping together that's not the main point. If they're filing frivolous motions, if they are engaging in what I'm going to call frivolous litigation, there are ways, or is a way for you to seek fees, although if your pro se maybe not, but to seek fees and sanctions against not only the other party but the attorney. So I'd be focusing on what they're trying to accomplish and do rather than what their relationship is.
Leh Meriwether: Yeah. And before we go, there is an ABA rule that says a lawyer should not sleep with the client. But now we are unfortunately out of time. Hey everyone, thanks so much for listening.