187 - Property Issues in Divorce From Celebrities to Your Questions
In this show, Todd and Leh decided to focus on property issues that arise during and after divorce cases. They start by exploring the divorce between Dr. Dre and Nicole Young. Then they examine the alleged claims by Orianne Cevey against Phil Collins 12 years after their divorce. They wrap up the show up by taking on very specific property questions that have arising in divorce cases.
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'll learn about divorce, family law, and from time to time, even tips on how to save your marriage if it's in the middle of a crisis. If you want to read more about us, you can always check us out online at atlantadivorceteam.com. Well, Todd, I think we got a good show today.
Todd Orston: I'm not going to argue.
Leh Meriwether: I agree.
Todd Orston: I think we do too. We're going to be talking about some celebrity news and then hitting some recent legal questions that are out there. Yeah, this hopefully will be a show that people can get a lot of information from.
Leh Meriwether: You being our celebrity reporter.
Todd Orston: I have nine protective orders against me. I've been called creepy. No, I get this from the internet. But what we're going to do is we're going to dive into a couple of issues. We've already talked about Dr. Dre, but that is an ongoing situation. So, yeah, there's some new stuff, some new allegations that have been made by his wife. So, we'll talk about that as it relates to division of property. And then hearkening back to my Genesis days, Phil Collins, and his former wife, Orianne, I believe is how she pronounces her name. They're in the news.
Todd Orston: To be honest with you, I don't really understand what's going on there. That's why I think it'll be interesting to talk about. They are divorced, and yet she is making demands for some of his now separate property. Okay. Again, not exactly sure, but we'll dive into that. And then, of course, we'll jump into some of the questions that are out there, legal questions as to people's specific cases that they're dealing with. Again, hopefully, there'll be a lot of information to take from the show.
Leh Meriwether: Yeah. So, we're going to focus more on the property side today, property issues in a divorce. Well, one of the questions does overlap into child support and visitation but trying to focus on the property issues today. Again, applying the law to specific examples help you understand how lawyers and judges will process legal issues or process factual scenarios as they apply this to the law in specific states. We're going to be focusing on Georgia. One of these cases is in Florida, I am less licensed in Florida. All right. Well, let's start with Dr. Dre. What's going on there?
Todd Orston: All right. So, Dr. Dre and his wife, Nicole Young, we've talked about this before, they are in the midst of a divorce action. What's really going to be an issue in this case is property. I mean, I'm not saying that there aren't custody issues or other issues in the case, but property is going to be a really, really big issue here. I mean, Dr. Dre, not only does he have a very famous name and he has an album or albums Rather. He has a full catalog of music, but he's got Beats. He's got other assets out there.
Todd Orston: Nicole is coming after anything and everything that she can come after. We talked about this in the last show. There was a premarital agreement, okay, basically, a prenuptial agreement that dealt with a lot of these issues. She's fighting about that. Basically, the position she's taking is that she shouldn't be held to the terms of that agreement. That's not what we're talking about. So, we're going to talk a little bit more about some of the claims she's making.
Todd Orston: So basically, Miss Young is claiming a marital ownership interest in several assets. Actually, it's interesting. It's not something we talk about all the time, because it doesn't apply in many cases. So, Dr. Dre's name, Dr. Dre is a trademarked name, and therefore it is an asset. She considers that to be an asset. She's also claiming an interest in some of his music like his iconic album, The Chronic, great album. So, she's basically saying, "I'm coming in. I own that part of that trademark and the value of that trademark. I own some of the music that has been created." Any income that is being received from The Chronic.
Todd Orston: Basically, she is then saying also, that he secretly transferred assets into an asset holding company right before he initiated divorce proceedings. So, she is claiming that there is bad faith that these assets like the trademarked name, like any of the music ownership was transferred into some holding company. She's claiming that the purpose there was in bad faith, that he was in bad faith trying to keep her away from it and keep it basically a separate asset by claiming, "Hey, it's in a separate company. That's a business asset. She has no claim to it." She's saying, "I disagree." So, she's coming after it.
Leh Meriwether: Yeah. Well, it all started with the prenups. I mean, as far as whether she can even make this claim. So, if the prenup is upheld, because if memory serves me correctly and it could be wrong, the trademark name, the album, the music, these assets are all his separate property under the premarital agreement and she cannot make any claim to them whatsoever. But let's assume for a moment that somehow these were carved out from the prenup or he didn't win the prenup argument. I think in our last show, he said that he felt like he had a pretty strong case of winning it.
Todd Orston: Yeah, she was claiming there's duress or that things have changed over the years. Basically, that she shouldn't be bound by those terms, but yeah.
Leh Meriwether: Right. So, here in Georgia, let's say it was a marital asset for the purpose of this analysis is that and I'm talking about the assets transferred in some holding company, that can be considered a fraudulent transfer. She can request a court of equity, which is what most divorce courts are. They're courts of equity. That means they have powers to do certain things that are considered fair, not necessarily legal.
Leh Meriwether: So, that's one of the big differences between a state court and a separate court here in Georgia. A separate court is a court of equity. There may not be a law in place that says, "Hey, in this scenario, this is exactly what you do." That's why the courts have equity. They can say, "You know what? We have a guideline to follow. What is fair for us to do?" So, the court can say, "You know what? We're going to undo these transactions."
Leh Meriwether: Now, of course, the law can change tomorrow and the fraudulent transferred laws can change. But we're going to undo these transactions and move them back into the marital column or into the personal assets rather being in this holding company. You see the same thing with trust too. We've had been seeing these battles and divorces where a husband secretly transfers or a wife, but usually it's a husband, secretly transfers marital assets into a trust to avoid the wife getting access to them in the divorce case. Well, if the court finds that this was a fraudulent transfer, the court has authority to undo the transaction. That's what could happen here if that's true.
Leh Meriwether: Now, if it's some company, like an LLC or something, the court has all kinds of remedies available to it if a marital asset has been shifted somewhere to avoid someone getting access to it. Here's one example I remember hearing where someone shifted $10 or $20 million offshore into an offshore account. The court said that, "Sir, you got to transfer that back." He refused. So, the court put him in jail. He sat in jail until they worked out a deal. She got her money. So that was not in Georgia. That was another state. So, the court has certain powers to coerce its cooperation, someone's cooperation.
Todd Orston: Yeah. What we usually tell people is those types of games, if there is a halfway intelligent attorney on the other side, it's not going to work, because the core to your point has remedies anything that you've done usually can be undone. The only time you really run into problems is where money or assets just disappear. We've seen courts try and sanction and actually do sanction people for assets that have disappeared. It's like, "Well, explain why a million dollars was here one day and gone the next. Tell me where it is." There's no trace that you can't find it.
Todd Orston: That is when courts will look at those kinds of situations and say, "Yeah, I think you're going to go to the pokey for a little while. If you can't remember where you put that..." I mean, I can understand I lose my keys all the time. I am fairly certain I'm not going to forget where I put a million dollars. So, judges will say, "Yeah, maybe you need some alone time to think about where you put that asset."
Leh Meriwether: Yeah. When we come back, we're going to talk about Phil Collins and what he's doing when it comes to a dispute about a settlement agreement and a real property distribution that was entered in 2008. We'll get into that when we come back.
Leh Meriwether: 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, 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. 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. If you want to read a transcript of this show or go back and listen to it again because our analysis is that good, then go to divorceteamradio.com. Are you ready, Todd?
Todd Orston: I'm always ready. I was waiting for you. Take your time.
Leh Meriwether: Today, we're talking about property issues. We were analyzing property issues and divorces. We were looking at two actually celebrity cases. One's Dr. Dre, and the other's Phil Collins and what they're having to do. And then once we finish our analysis there, we're going to dive into some questions that we've come across. They're the non-celebrity questions, but they're just as important and often just as complicated.
Todd Orston: So, Phil Collins, absolutely Genesis, Phil Collins, love them, mad props. He's fantastic. I'm going to use his own songs to explain this story. So, against all odds, his wife, former wife... They were divorced in 2008. ... said, "I want another day in paradise." He said, "I can't stop loving you." She said, "Take me home." Well, she went to the home that he gotten a divorce and now wants to keep the home, which is worth like $40 or $30 million.
Todd Orston: As he said in another song, obviously, there are both sides of the story. We're going to talk about both of them. So, yeah. Sorry, I told you, I warned you ahead of time that was going to be corny, but he is a prophet. I mean, his own music tells this story. So, Phil and his ex-wife, I may butcher the name, Orianne Cevey or Cevey. They were divorced in 2008. Part of the settlement, there was about a $46 million settlement. Remember divorced in 2008. So, he bought a Miami Beach home in 2016. They reconciled in 2018.
Todd Orston: By the way, my understanding is after she was divorced, she's been married at least a couple more times, one to some stripper and anyway. So, for whatever reason, Phil again, wanted to reconcile. They reconciled in 2018. She moved back in with him to that Miami house. The love was so strong that she has recently secretly remarried somebody else. When he said, "Well, I don't think that's going to work for me, you being married to another guy living in the Miami mansion. Can you please leave?" Not only did she say no, but she hired bodyguards to stop him from coming in to try and remove them.
Leh Meriwether: What?
Todd Orston: Oh, yeah. Apparently, there were four bodyguards that have stopped anyone from coming onto the property. So, not only did she do that, but she is now saying that she wants in excess of about $20 million, saying, "Fine, you can have the house back but pay me."
Leh Meriwether: Wow.
Todd Orston: Yeah, wow pretty much. It doesn't even begin. So, not exactly sure what her legal justification is. Hopefully, they're going to be able to relatively quickly get to some kind of resolution, but jokes aside. Again, it's going to come down... Leh, I'll let you jump in. It does come down to what were the terms of that agreement, because our sarcasm, my sarcasm comes from in Georgia, at least equitable division, whatever is done in that divorce, it's done.
Leh Meriwether: Yeah.
Todd Orston: So equitable division is not something that continuously can be revisited and modified and changed over time. It actually can't be modified. So, obviously, it begs the question, "How did that agreement read?" I have to assume Phil, he has more than a couple of dollars, he had good attorneys to help them in that divorce. I have to believe it's a rock-solid agreement. So, Leh, what's going on?
Leh Meriwether: So I haven't seen the pleadings. So, I don't know what's been filed. The same thing goes applies for Florida. I'm assuming this case would be down in Florida, because there is the Miami Beach home. The Florida has... It's called res judicata. It means it's already been decided. The reason the courts have that rule is because they don't want people litigating the same issue again and again and again. So, they had to create this rule. It's been in place for hundreds of years as far as I know that once you get your shot, that's it. It's over.
Leh Meriwether: I mean, you can appeal it and that sort of thing. The only exceptions are things where it's constantly evolving, like child custody, child support, alimony. Those things are ongoing. So, you can't decide that on a final basis. So, those are the exceptions in a divorce to that res judicata rule. That's Latin.
Leh Meriwether: If there's a settlement agreement, barring something where it said that, "Hey, if he sells this piece of property, she gets 50% of it. He sold the property and didn't pay her or maybe he had another house," again, I'm speculating here. I'm just throwing out an analysis. If he had another home and she was supposed to get 50% of the home and he sold it. As a result of the sale, earned $40 million and then took $33 million of it to buy this mansion, because I think that's what he's listed it for sale at $33 million. So, if he turned around to sell it, then she could make a claim that, "Hey, you didn't pay me."
Leh Meriwether: Now, that claim would be in the way of a contempt of court action. She would file suit that he did not follow through on the settlement agreement. Now, I haven't heard that that's what's going on. It just sounds like she's just having, "Hey, I'm not happy with the agreement. You need to pay me more money." With that scenario, she's not getting more money. If that's the scenario that she's just not happy with the agreement 12 years later, that's not going to happen.
Leh Meriwether: Now, if she's sitting in there on the property and her name's on the deed and he's asked her to leave, then he's going to have to follow landlord-tenant law, because Florida may have a law that I've... Because I've never litigated this issue in Florida, so I may be missing something. If you got an issue like this, you need to talk to a local Florida lawyer. But in general, you would file landlord-tenant action. You have to follow the law in Georgia. You have to give her proper notice that she needs to leave. If she doesn't leave, you have violent eviction action. It would be just like any other tenant. If she goes in there and destroys property, then she can be hit by a judgment.
Leh Meriwether: So, let's say he has a million dollars art work on the walls and she destroys that artwork, then as long as he has some proof of what it was valued at, then the court can hear evidence of that and then say, "Ma'am, you owe him $1 million." Sounds to me like she might... Well, I guess she could have spent $46 million in 12 years. But if she has anything, then he needs to go after it, go after any assets she has including garnishing her bank accounts and that sort of thing.
Todd Orston: Yeah, and it's interesting you bring up that personal property. Obviously, that's always a danger in a situation like this, where she once again has control over your separate personal property. Therefore, there's a question of, "Is that property safe?" I mean, she's already basically turned it into a fortress and hired an army to keep people out. Actually, that issue did come up, because he's of course fighting her on this. Phil, I mean, fight the good fight. This is ridiculous. But he has a lot of very expensive personal property in that house. Apparently, he is a big fan of antiques from the Alamo. So, he has collected and has some very, very multimillion-dollar kind of collection of Alamo-related antiques.
Todd Orston: So, what the court has ordered basically immediately is has ordered a third-party to conduct an inventory. We'll deal with the removal, meaning the removal of his ex-wife at a later date, but he brought to the court that emergency motion saying, "Hey, fine, I mean, I'll get into my house..." Because he wants to sell the house. That's one of the other things that is making this an emergency, but he wants his done. But he's basically saying, "Hey, she has control over all of these very expensive assets. I can't get to it. Can the court do something?" The court did.
Todd Orston: The court said, "Okay, fine, the third-party is going to go in there, inventory." That's like with a wink and a nod saying, "Ma'am, you better not do anything stupid with that property. All right, whatever's there better stay there." To your point, if she did something dumb, absolutely. I mean, if she has any money left, the court could look and say, "Yeah, Ma'am, you owe him some money to basically pay him back for whatever it is you destroyed, sold, whatever."
Leh Meriwether: I have never litigated this in Florida, so I don't know this. I'll answer these off the top of my head. But in Georgia, she could be considered to have a tenancy at will, which I mean, you have to go through the court system to have her moved. But if she destroys things, there's actually a criminal statute called Criminal Destruction of Property that the state could go after her criminally. She can be hit civilly with damages. If she damages personal property or even the house, she can be hit with damages for that too.
Leh Meriwether: As far as her armed guards go, I mean, they're going to be arrested if they interfere. So, when an eviction notice is sent, the sheriff's deputies show up to physically remove you from the property if you refuse. So, last thing you want to do is get in the fight with the sheriff's department. When we come back, we're going to answer your questions about divorce property issue.
Todd Orston: Hey, everyone, you're listening to our podcast, but you have alternatives. You have choices. You can listen to us at live also at 1:00 AM on Monday mornings on WSB.
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Leh Meriwether: Welcome back, everyone. This is Leh and Todd. 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. If you want to read a transcript of this show or go back and listen to it again, you can find it at divorceteamradio.com. You can find it anywhere you get your podcasts.
Leh Meriwether: All right. So, we just finished breaking down some property issues that don't make sense of going down in Miami with Phil Collins and his ex-wife. Todd, part of me feels like we're missing some facts, because you and I would not represent his ex-wife, because at least here in Georgia, as lawyers, we could be subjecting ourselves to attorney's fees.
Todd Orston: Yeah, it seems almost like a form of extortion here. I'm going to squat in the home or my client is going to squat in the home. I know you are desperate to sell it and get your $33 million or whatever you're going to get from it. But you know what? Hey, pay her $20 million or pay her something and then she'll leave, that has a really bad smell.
Leh Meriwether: Yeah, [crosstalk 00:23:53], if those are the facts.
Todd Orston: To your point, if there's something more that we're missing, so be it and the news will come out and we'll put it on another show. But all I can see right now is that this is just a money grab. She's basically like, "Look, I know I got a lot in the divorce, but I mean, the stripper I'm married and all my expenses and my new guy, it costs money. So, Phil, keep paying me." That is not how the system works.
Leh Meriwether: Those are two separate actions. That's something else that's important to remember here, and I'm talking in Georgia right now. This is also provided he never added her name to that mansion. So, apparently, she moved in 2018. He bought it in 2016. We've seen people do that, add their names... Well, their girlfriend's names, because at this point, she would be a girlfriend. ... to the property.
Leh Meriwether: So, there could be facts we're not aware of, which would obviously change our opinion of what's going on. So, we're only sharing our thoughts based on the limited information we have. We're not trying to make it a total assessment of the case at all. We were just saying if these are the facts, then this is what our opinion of what might happen in the courthouse. Still, I'm just scratching my head.
Todd Orston: Now, I'm more curious.
Leh Meriwether: So going back to what I was saying, two separate actions. If he owed her money, the proper course of action is not to squat on the house. It's to turn around and file a contempt action against him for the money. And then she needs to move out, because she can still get hit with attorney's fees if she's staying in that property without a valid legal basis. That's your [crosstalk 00:25:44]. Yeah, go ahead.
Todd Orston: No, I'm sorry. In Georgia, you can go after those fees from the attorney as well. If it's a frivolous matter, then the court could even penalize the attorney if it's a frivolous case. So, attorneys, at least here in Georgia, have to be very careful when they are jumping in and they're pursuing some legal action. If it doesn't have any merit, that could hit your pocket. It's not just your client getting hit with fees. You might be tasked with paying some of those fees as well. In a case like this, with a client like that, meaning Phil Collins, I seriously doubt he went bargain basement. My guess is the fees are going to be sizable and anyway.
Leh Meriwether: All right. So, let's jump into some questions. So, first one is, "Can I have my soon-to-be ex-husband removed from our home? In June, I purchased and obtained a firearm and a concealed carry permit. At the time, I was unaware that my then husband was not able to be in a home with a firearm. We're now going through a divorce due to his narcissistic ways. He will not leave the home. Since he's legally not allowed to be around a firearm, how can I get him to move out? I'm home with two other children and do not feel safe not having my firearm or having him around dude to his erratic behavior."
Todd Orston: Interesting. Yup, that is actually a very interesting fact pattern that I've never heard before, trying to use a prohibition that makes it so that your spouse can't be around a firearm as a grounds to somehow get him out of the house to give you sole use and possession of the home. It's interesting.
Todd Orston: Do I think it would play out in your favor? Probably not. More likely than not if the issue comes up... I mean, look, I'll attack it this way. From his point of view, he's taking a risk, because is it right that she is saying, "I have a gun"? I mean, that would mean in any situation where somebody has that kind of prohibition against being around a firearm, that the spouse if they want them out of the house can run out, buy a gun, bring it into the house, and go, "Ha-ha, leave."
Todd Orston: But the risk that the husband is taking is basically, that's what happens. She uses that to her advantage, calls the police. Police comes and say, "Sir, you are whatever," subject to a TPO or you are a felon or whatever the case might be. You're in this home. Hey, 10 feet away from you, there's a gun. So, you're in violation. Hopefully, it will not play out that way, but it could. And then all of a sudden, you're in hot water.
Todd Orston: The flip side for the person who asked the question is you do run the risk. If you brought that issue to the court, the court could look and think, "Ma'am, so then bring your gun somewhere. Put your gun somewhere else. I'm not going to order him out simply because you refuse to get rid of a gun that he is prohibited from being near." So, in other words, you're not going to win the argument of temporary use and possession of the home simply because you have that gun. Get rid of the gun, and then we'll deal with temporary use.
Leh Meriwether: I think she'd be better off just... Okay, there's two ways to it if we had more information. Let's assume using when there's some condition that he can't be around a firearm, that has to do with a probation. Meaning that he's on probation from a previous crime. A condition of his probation, a condition that keeps him out of jail is he can't be within so far of a firearm. I'm not suggesting she'd do this. You would have to sit down with a lawyer and really think through the consequences of this if he's truly a narcissist and he has erratic behavior. I've seen people go to the probation officer and inform them of what's going on. And then next thing you know, the probation could get revoked. He is now in jail.
Leh Meriwether: I'm not saying you do that, because there could be consequences for that. But that is a potential option if it's a condition of his probation. If you're going into court for the divorce, I would not even talk about the gun issue. If he has truly erratic behavior and it's negatively impacting the children in the home, you can ask that the court asked him to leave. The court depending on the facts that you have and the evidence you can present to the judge, the judge may order him to find another place to live. Going back to your point, Todd, it could sound as if you bought the firearm just as a basis to get him out of the house.
Todd Orston: Yeah, it looks a little bit manufactured. Yeah, I think you're spot on, focus on the bad behavior. Don't focus on that prohibition from being around a firearm, because a court could look at it and say, "All right, how about this, Ma'am? Either you send the firearm somewhere else, and we'll deal with the behavior and all the other stuff; or how about this? He can stay in the home and you and the children can move. If you need to be with your gun, then go somewhere with your gun, but that's not why you're going to get temporary sole use and possession of the home." So, I agree with you.
Leh Meriwether: It's got to be focusing on the behavior, because I mean, she does say she's afraid of him. That's part of reason why she got the gun, that's what she said.
Todd Orston: That's a different story.
Leh Meriwether: Yeah, depending on what court you're in, you may only have 30 minutes to an hour or so to present your case. You need to focus on the most important factors, not on this other. To me, this is a technicality that a court may just ignore and feel like... I think you nailed it. ... it's manufactured evidence.
Leh Meriwether: All right. Let's get this started, and we'll finish it up in the next segment. Is the house of marital asset? That's the question it starts with. Prior to marriage, a couple buys a house. So, they're both on the deed, then the couple marries. During the marriage, X conveys his or her interest to Y. Then couple files for divorce. Is the house a marital asset for purposes of equitable division or any portion of it or all of it? Thank you. That's the question.
Todd Orston: You're welcome.
Leh Meriwether: You got to answer first.
Todd Orston: Oh, okay. All right. I went straight to it. So, there are a few things to unpackage here. I'll frame it and then we'll deal with it after the break. What complicates it is it was purchased prior to the marriage, and it was put into joint names. So, at that point, they both equally own it. Because it was done before the marriage, arguably, it doesn't even matter where the down payment came from or anything like that.
Todd Orston: Now, then there's the issue of they marry. That changes the equation a little bit. It doesn't change what happened before, but we're going to have to start talking about, "Did that transfer, did the conveyance do something to change an ownership interest, a marital ownership interest?" That's where things get interesting.
Leh Meriwether: 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 sleep.
Leh Meriwether: There you go.
Todd Orston: I'll talk very soft.
Leh Meriwether: This is Leh and Todd. 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. You can read the transcript of this show and listen to it again at divorceteamradio.com or wherever you listen to podcasts.
Leh Meriwether: Today, we've been talking about property issues and divorces. We started with a couple celebrity cases and broke down what we thought about those cases based on the limited information we had. Now, we're taking questions that we've gotten that are just as complicated as the celebrity cases. You don't have to have a lot of money to make a divorce case complicated at all. So, we left off with a question. We stopped in the middle of answering it about whether a house is a marital asset. The couple had bought the house before they got married. And then one of them transferred their interest to the other in the middle of the marriage after they got married. So, take it away, Todd.
Todd Orston: All right. So, the question at this point becomes, "If you came into the marriage as a joint owner on the deed and a joint owner of that property, then did the conveyance during the marriage in some way change the equation?" All right. Did it somehow create some kind of a separate ownership interest in one party or the other? In other words, as the question said, when X conveyed to Y, did that mean that X was giving up any marital interest he or she had in the property?
Todd Orston: My quick answer would be more than likely no. During a marriage, their title... At least in Georgia, title doesn't really mean anything, okay? So that's not what is important. So, the court sees cases like that all the time. People will convey interest in an asset for numerous reasons. It could be tax reasons. It could be issues relating to potential creditors. So, just asset planning, just financial planning, where an asset might be moved into one person's name or another. The court's not going to be moved by that to the degree that they're going to be like, "Oh, okay, well, you did that. So, therefore, clearly, the other party doesn't have an ownership interest."
Todd Orston: I mean, we have situations... Lee, you can speak to this also. ... we've seen where one party was the breadwinner. For whatever reason, right or wrong, they put everything into their name, cars, houses, you name it. Everything was in their name. If it was as simple as well titled in his or her name, usually, his titled in his name, therefore, he gets everything. This would be a really broken system. So, do I think that the conveyance erased that person's interest, marital interest in the home? I don't believe so.
Leh Meriwether: Yeah, and part of that has to do with this is an equitable division state. So, you've got a court of equity, like we talked in the first segment. A court of equity, the court has the ability to look at what they consider fair. That's a very loose term, but fair and equitable. They're looking at the gist of what happened. The couple bought it together. They stayed together. They got married. They paid mortgage payments while they were married. It doesn't matter who paid. They were in this together. The courts say, "You know what? It's fair and equitable to just consider this marital property, period."
Todd Orston: Very quickly, let's say you're in a relationship and you are talking with your spouse about a conveyance like this with the intention being that "From this point forward, it will be my separate property," that's what a post-nuptial agreement is. So, there are ways that you can go about making sure that if or in the event there is a divorce, that that property remains your property. If that's truly what was intended, then think about a post-nuptial agreement. That's where you can both agree, you put it in writing. Basically, it becomes a binding contract.
Todd Orston: So, in the event of a divorce, if you then say, "Well, hold on one second, that house is mine," the other side can't say, "No, no, no, no, hold on. That was for tax purposes or whatever." No, we reached agreement. Here, this is where it says that is going to be mine even in the event of a divorce."
Leh Meriwether: Yup. On the flip side, I'll be real quick with this, I've seen situations where it was in the middle of the divorce and there was a conveyance. The conveyance was for the purposes of avoiding a debt. So, one of the parties owed money. So, they transferred ownership. When they get to the final hearing, the person who owns the house... It could be any property but owns the house. ... said, "Oh, no, they said they were giving up their interest in this." The court can look at all of this.
Leh Meriwether: So, let's say the other person says, "No, actually, I was trying to avoid this debt over here. That's why we did it." It's a court of equity, but the court also looks to see whether you have clean hands. So, the court can say, "Hey, you were trying to do something to avoid a legitimate debt over here. So, I'm not even going to consider the possibility that this is not equitable marital property." So, there had been cases on that too.
Todd Orston: All right. Next one.
Leh Meriwether: Next question.
Todd Orston: All right. We're going to try and get this. There's a lot to unpackage here, so I'll try and get through the facts pretty quickly. "Hello, I'm married for 16 years, never worked. My husband left me and two of his daughters. For more than a year, my daughters and I still live in the house, which my husband bought during our marriage. His name is only on," she says, "the contract." So, I'm assuming on the mortgage and maybe even on the title. "He still pays for all the bills, sends some money each week. If I divorce him..."
Todd Orston: So here's where the questions begin. "... are we going to be forced to leave the house? Does the court forced him to pay the bills and spend on us for us living here, or will I be forced to work and pay for all of these? My daughters homeschool." So, there's an alimony question here. There is A, "Does title mean anything?" question also. "Since I don't know anything about him," don't really understand that. Maybe they've been separated for a long time. "But if I divorced him and he has debts and loans after he left the house, will I be forced to pay it?" Post-separation debt.
Todd Orston: "I used to save my weekly allowance that he used to give me during the marriage. Is he going to take half of it if I divorced him?" So, there's a little bit more, but let's stop there. I think we're going to end up running into a hard stop. So, we have some alimony, some property division questions. Go ahead.
Leh Meriwether: First thing, the court doesn't really look at things in isolation. I mean, they may make a ruling on specific property issues, but they're going to look at things as a whole. That includes property and alimony, because one of the issues in alimony is needs versus ability to pay. So, what are your needs? So, the court has wide discretion on what to do here. When I say that, I'm talking also about whatever allowance you've set aside, that's going to be thrown into the marital estate pot. Is the court going to specifically isolate, "Well, this account, we're going to split 50/50. This account, we're going to split 50/50"? No, they're not looking at it that way.
Leh Meriwether: Then the issue of on your alimony, this is going to be, "What's his ability to pay?" So, his debts that he has will come into play on that. The court can exclude debt. So, let's say he ran up a $20,000 credit card and it was all on a girlfriend he had or another family, which I've seen in cases. The court can say, "That does not get calculated into the marital pot, because that was a result of he was spending money on another person. We're not even going to consider that." So, that gets thrown out and doesn't get considered.
Leh Meriwether: The house, I mean, you never know what the court is going to do with the house. I have seen cases where the court just says, "She gets the house free and clear. He has to keep paying the mortgage. It's just that straightforward." And then I'm not saying that would happen here, because you just never know. You need a lot more facts to say that would happen. Is it in the realm of possibility? Yes. Is it in the realm of probability? Usually, not. You got to look at all the factors. What are all the assets? What are all the debts? Are the debts all truly marital? Has he been living a separate life with someone else out there?
Leh Meriwether: So, what I typically tell someone in this situation is to get a firmer grasp on what you've got going forward. Often I say, you need to look at, in this case, sometimes getting a job. I hate to say that, because does he even have life insurance? For instance, what would happen if he got in a car accident tomorrow? There's nobody to pay the bills. If he has no life insurance, she's in a world of hurt and her daughters are too, and his daughters, their daughters.
Leh Meriwether: So, in this situation, the court has the ability to award alimony, has the ability to award the house to her, but you have to look at the entire marital state to know whether that's probable. She needs to start taking steps to protect herself, because the court could award that he's not maintaining life insurance. Now if he passes away, which I've seen happen, now she can't pay the mortgage. They're back in ground zero. So, she has to take control of her financial life, I believe. I mean, we can get a lot of relief from the court, but step one is get a firm grasp on your financial situation. Unfortunately, we are out of time. Hey, everyone. Thanks so much for listening.