188 - Adultery Q&A

As a follow up to episode 186, Leh and Todd answer questions that are focused on Adultery in this episode. The questions range from how to answer questions in a deposition if you are the 'mistress' or paramour to whether you can sue the person who led your spouse to cheat on you.

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 and 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. Todd, I'm glad to be back with you today.

Todd Orston: Absolutely. Did you have a nice break?

Leh Meriwether: I had a great break. How about you?

Todd Orston: My break was good, my break. Yeah, absolutely. I appreciate you asking.

Leh Meriwether: Man. For those of you listening, if you couldn't tell or if you listen regularly, unfortunately, we fell behind on our getting together for our shows. Lots going on during this time of year and it just caught up to us. I'm apologizing that we didn't keep our regularly scheduled program going, but we're back.

Todd Orston: Yeah, and I'm going to say I blame Leh. Only kidding. Only kidding. No, it was mutual, but we are back and ready as ever. Leh, let's jump in, because with these types of shows, oh, God, with so many of the shows that we do, it seems like we get to the end and we're like, "Oh, we need more time," so let's jump in. Today, what are we going to be talking about?

Leh Meriwether: Well, today, we're going to follow up on a show we did a few ... Well, I guess it was more than a few weeks ago. It was a few episodes ago where we were talking about adultery's impact on divorce. We do a little bit of prep before each show and put together some notes for the show. I had a bunch of questions in there, a Q&A that we were going to go through and there was just so much information to relay about adultery because it's so emotional, and there are a lot of people that wanted to have a greater impact on their divorce than it does, at least here in Georgia, but same thing in many other states as well. We just didn't get time, we didn't want to shortchange the listeners by running ahead to all the questions, so we said, "Let's just save the questions for another show," and that's what we're doing.

Todd Orston: Yeah. To build on what you just said, I will say that we're not saying that adultery doesn't have an impact, but sometimes it doesn't have as big an impact as people expect or believe or want it to have on their case. It becomes one of those situations, one of those issues that can really define a case. By that, I mean if people come into a case and they're not properly educated as to the impact that adultery can have, well, sometimes they'll end up spinning their wheels. They'll end up fighting perhaps unnecessarily, meaning pushing that issue and pursuing an agenda in that case because they think it's going to have some level of a payoff for ... Again, for lack of a better way of putting it, obviously there's no payoff in a divorce. But the point is they think it will have a greater impact.

Todd Orston: These shows, the reason it's important is because Leh and I, we see these questions come up all the time. People call and they're like, "Oh, guess what? I caught my spouse doing this. So boom, I win, right? I get this and I get that," and it's like, "Well, hold on, slow down." Let's break it down, let's talk about the facts, and let's figure out what kind of an impact it's actually going to have. That doesn't mean you can't fight for something, but if you're fighting for something and there's a 10% chance of success, you need to know that.

Todd Orston: You need to understand when you go into these conversations with your attorney, if you're doing this on your own and before you walk into court, you need to know what the chances of success at obtaining that benefit that you're fighting for, what are the chances. Because too many people, they'll go into it, there's a 5% chance of accomplishing what they want to accomplish, but if they don't realize that, they've now spent a whole bunch of time, money, and effort fighting in court and they end up in front of a judge not very sympathetic and they don't get what they expect.

Leh Meriwether: Yeah, and there's a lot of emotional costs that go with that as well. You've got the initial pain of the adultery, and then you add the fact that you went through this highly contested litigation for a year, two, three years, sometimes more, and to not get the result you expect and you wound up basically eating away at your marital estate. The marital estate is when you take your assets minus your liabilities and you have this much money left over. That number can get a lot smaller if you spend half of it on attorneys' fees.

Leh Meriwether: We don't want people to go in a direction that's not going to be helpful. By the way, the last episode that we did, it was 186, it was adultery's impact on divorce. Go back and listen to that show if you're just tuning in. You can go anywhere you can get your podcasts, it's available online. Go back and listen to that show because you'll hear all kinds of information about the different impacts on the different areas of a divorce.

Leh Meriwether: There's four core areas you'll hear about. Each one, we break it down. We've focused on Georgia. Keep in mind your states where it's just the reason for the divorce, there's just one reason, and it's plain old irreconcilable differences or it's just a no-fault state, and adultery doesn't even play at all in those states. It's important for you to talk to a local lawyer to see if adultery does have an impact on the divorce or not. Today, our questions, we, again, are going to focus on Georgia, touch on Florida. Those are the two states that we operate as a law firm. We're going to break them down, give you our two cents, and answer these questions as best we can. You ready?

Todd Orston: I've got my change ready. Here's my two cents. Let's start with ... All right. Let's jump in. First question is this. Do I have to answer all questions if I'm being deposed as a mistress? My boyfriend is getting divorced and I was subpoenaed to be questioned. The affair has already been admitted to in writing and she knows we are together. He doesn't spend money on me and I've not been around the children. Are there questions I can choose not to answer to protect my own rights? Do I have to answer questions if I have confessed them to my priest? What would be the reason to have me deposed if the whole affair is out in the open?

Leh Meriwether: These are great questions. All right. Let's break them down. First off, I'm going to answer the first question at the end. What would be the reason to have me deposed if the whole affair is out in the open? Two that jump to mind, and Todd, if I miss anything, feel free to add some more, but number one is emotion. I've seen this happen before where somebody is so upset by it. Even though it's already been admitted, they want to make the person that they feel caused this divorce or helped this caused divorce, they want to make them suffer in a way, and they have the legal right to come in there and ask you questions. That's the unfortunate practical answer sometimes, and I'm just being honest and upfront. The second reason-

Todd Orston: Yeah. Wait, before you jump into the ... Let me just build on that very quickly. What you're not saying, you're not saying it's okay to use this as a form of harassment. That's not what we're saying.

Leh Meriwether: Right. We're not saying that.

Todd Orston: What you're saying is that the unfortunate reality is the aggrieved party wants their pound of flesh, as they say. They are just so caught up in the emotion that they want you appear in front of a judge. They want to ask those questions. They want a deposition so they can hear from your voice what happened, even though it's been admitted to. Is that the right thing to do? No, but is it a reality? Oftentimes, it is.

Leh Meriwether: Yeah. Well said. I think you said it better than I did. The second reason is really the reason that's masking the first reason, not all the time because I have taken depositions and there was legitimate reasons for it. In fact, in the past, I've been very clear with my clients, we are not going to take a deposition just for the purpose of harassment, even if there's on its surface a legitimate reason.

Leh Meriwether: The legitimate reasons are, one, you're trying to determine if the mistress or the paramour has received funds from the marital estate, have they gone to this person, have they been around the children in an inappropriate way, because adultery typically does not impact child custody but there are times it does. If a spouse brings a paramour, mistress, whatever term we give this, around the children before even a divorce has been filed, that can have a negative impact on child custody in some jurisdictions. Those are the legitimate reasons that the two ones I see most often are those and-

Todd Orston: Oh, and very quickly, what about if the paramour is just not a great person? Forget about that they've done something inappropriate or engaged in inappropriate behavior in front of kids or in the presence of them, but it could just be that that person, you dig in, they have criminal history, they have drug abuse issues, they have psychological health issues that could be a concern, those are all types of things that the other party would be able to go into in that deposition.

Leh Meriwether: Yep. When we get back, we're going to finish answering this question. I just wanted to let you know that if you ever wanted to listen to this show live, you can listen at 1:00 a.m. on Monday mornings on WSB. You can always check us out there as well.

Todd Orston: Better than counting sheep, I guess, right? You can turn on the show and we'll help you fall asleep.

Leh Meriwether: There you go.

Todd Orston: I'll talk very soft.

Leh Meriwether: Welcome back, everyone. 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 you can read the transcript of this show and all our others if you go to divorceteamradio.com. Okay. Where we left off, we were breaking down this question, which it seems like a simple question upfront but there's a lot of things to unpack from it. The question was, do I have to answer all the questions if I'm being deposed as a mistress? There was a lot of sub questions, like what would be the reason to have me deposed if the affair is all out in the open?

Leh Meriwether: We wanted to touch base because, Todd, you made an excellent point that on the custody side, there are issues that can arise where ... Let me take one step back. In Georgia, a judge cannot limit who a parent brings around children except for one circumstance. If that person that the parent wants to bring the children around poses some sort of risk or harm to the children, the court can say that dad or mom, when you have custody with your children, this person, very specific, cannot be around the children, period. It's a very narrow, narrow exception and there has to be some concrete proof that this person poses some risk of harm to the children.

Leh Meriwether: You and I both had cases involving that one. I know on my end was the person was they were involved basically in an illegal activity, I won't give too much information, but as a result, they had some very unsavory characters coming around their home, and because of this person's "business," I'm going to put that in air quotes, the court found that this person should not be around the children because of the risk of a very dangerous person coming over to the house while the children are present. In fact, at the time the person was actually subpoenaed to come to the court to testify, they had an outstanding warrant for their arrest, and so after they got off the stand and testified, the sheriff's deputy took them back to jail.

Todd Orston: Wow.

Leh Meriwether: Yeah. You said you had one, too.

Todd Orston: I, unfortunately, can say I have many. Had one situation where the husband was seeing someone, and the amazing thing is he was seeing that person. He would invite that person over to the basement while the wife was sleeping upstairs and it further turned out to be that the man's drug dealer and was bringing drugs over. At one point, the wife walked downstairs, saw them sitting on the couch together, and there appeared to be drugs on the TV that was in front of the couch. I think that would rise the level of some concern. I don't think that in that situation, the judge was appreciative.

Todd Orston: I've had other situations where I don't know why this would be a problem, but the wife was engaging in sex parties in the house while the children were sleeping upstairs. Turned out that the older of the children wasn't always sleeping and witnessed some things that, jokes aside, no child should ever have to witness, and that was a problem. Then, look, there are situations like that where there's actual activities and things going on that are clearly detrimental, dangerous, whatever word you want to use.

Todd Orston: Then had a conversation with somebody not so long ago where the former spouse and the father started new relationship with somebody, and that person apparently was charged with a major drug felony, got probation for it but it was a federal charge. Does that open the door to a conversation, at the very least, regarding concern about whether that person should be present and should be able to be in the children's lives? Absolutely. I think it does call into question whether or not that would be a positive influence for the children and somebody who should be trusted. These are all examples that we've seen. Trust me, unfortunately, score's more, but these are the kinds of things that a judge will think about when that question is posed as to whether or not limitations should be put on that third party's ability to be around kids.

Leh Meriwether: Yep. I would say these examples are extreme examples and I would say they are the exceptions to the rule that the court's not going to say, "The kids can't be around this person." These are more exceptions than the rule. That's that. All right. Let's get into our other questions. Do I have to answer questions if I've confessed them to my priest? That has nothing to do with the answers that she gives, and whether you confess them to someone doesn't matter. Okay. Are there questions I can choose not to answer to protect my own rights? I'm not sure what rights she's talking about.

Leh Meriwether: In Georgia, adultery is on the books as being illegal. You can say, "I plead the Fifth." If a question is asked that would be an admission of a violation of a crime, then you can plead the Fifth, and I'm being very general there. There's more specifics to the Fifth Amendment, but you can plead the Fifth. There is a problem with pleading the Fifth. I was exposed in a deposition eons ago that I had had where the person just kept pleading the Fifth. I was trying to get evidence that this person had received significant funds from the other party that would have dramatically impacted equitable division.

Leh Meriwether: The person started playing the Fifth when I was asking questions about encounters and gifts, and so I said, "Oh, so have you received $100,000 from Mr. So-and-so?" The person said, "I plead the Fifth." The thing is with the Fifth, in a civil court, the civil court is allowed to make inferences from you pleading the Fifth, and that can create a problem. If you plead the Fifth, the court can say, "Oh, well, maybe they did receive $100,000 from Mr. So-and-so and I've got to make an adjustment on the equitable division," and again, we're talking about Georgia. From all practical purposes, you always have to talk to your lawyer about it, whoever's involved in the case. Pleading the Fifth is not a very practical thing because it's not something that I've seen prosecuted at any time recently. I'm talking about adultery.

Todd Orston: Yeah, I agree with that.

Leh Meriwether: How about you, Todd?

Todd Orston: Yeah. No, I have not and I don't anticipate we're going to see an uptick in prosecutions. As a former prosecutor, I know prosecutors are busy with a lot more serious crimes that are out there. But you are correct, I agree with you. The problem is that the assumption usually goes against the person pleading the Fifth on that issue. "Did you take $100,000?" "I'm pleading the Fifth." "Okay, I'm going to assume you did it." "All right. Did you sleep with," "I'm going to plead the Fifth." "All right, I'm going to assume you did it."

Todd Orston: All you're doing is you're protecting yourself from self-incrimination. You're protecting yourself from giving a statement that can be used against you in the criminal context or even in the context of the purposes for the criminal context. You're protecting yourself from incriminating yourself so that your own words can't be used against you but that doesn't mean-

Leh Meriwether: In a criminal case.

Todd Orston: ... in a criminal case, but that doesn't mean that the court in the present case, in the civil matter of the divorce, whatever it might be, that that can't be used against you, meaning an assumption can still be made. I've had conversations, strategic conversations with clients where we've talked about the potential risk of a criminal prosecution for adultery. Then we're like, "Look, they have video." It's like, "Why are you going to plead the Fifth? You were in a car and they have evidence," and so it's better just be honest. Show some remorse. Show some regret.

Todd Orston: Strategically, it's not going to benefit you to plead the Fifth because then, not only is it being presented to the court that you cheated, but now you're being, for lack of a better way of putting it, dishonest about it. You're not even willing to own up to that behavior. That's where this strategic discussion with your attorney is going to fall. Does it really hurt me? Am I really risking something more serious or should I just go ahead and say to the court mea culpa, "I made a mistake," okay, and so, "I'm sorry and I've said I'm sorry," and then see how the judge deals with it at that point.

Leh Meriwether: Man, that question had a lot in it.

Todd Orston: It did.

Leh Meriwether: Even though it seems simple on the surface. Okay. Next question, and then we'll have to answer when we come back from the break. Actually, I don't know if I can finish this. I'll get it started and we'll finish it. Can I sue my ex for cheating while we are married or get better child support? My ex and I got separated three years ago, got divorced in December 2019, mutual settlement. We have three kids and wanted to do the best for them but just found out the girlfriend he has now has been his mistress from five years ago. When we come back, we're going to get into this question and the answer.

Todd Orston: Hey, everyone, you're listening to our podcast, but you have alternatives, you have choices. You can listen to us live also at 1:00 a.m. on Monday morning on WSB.

Leh Meriwether: If you're enjoying this show, we would love it if you could go rate us on iTunes or wherever you may be listening to it. Give us a five-star rating and tell us why you like the show.

Leh Meriwether: Welcome back, 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 listen to this show and others or read a transcript of this show, you can go back and listen to it again at divorceteamradio.com or wherever you get your pods.

Leh Meriwether: All right. Where we left off, we were talking about a case where the parties have already been divorced but the wife, ex-wife, suddenly found out, so post-divorce, that he had had a mistress, the person he's currently living with or at least his girlfriend, was actually had been a mistress for the last five years, so during the marriage and she didn't know. I'll finish reading the question. I'm sure she was the reason why he left, but I don't have much proof than just some pictures of her on Facebook holding a pillow in his old apartment in 2015 and '16 and the other pictures about locations where she was, he was in the same location as well. I want to know if I can get a better child support for me and the kids even after the divorce. I'm in Georgia and he is between Georgia and Nashville. Todd?

Todd Orston: All right. Let's even change the facts. Let's say there's video, audio, a sketch artist. You have an army of witnesses who saw the acts in question. It still wouldn't impact child support like that. Child support is not punitive. Child support has to do with ... Again, different jurisdictions calculate child support differently, but I have not heard of any jurisdiction where child support is punitive in any form or fashion. By that, I mean it's not meant to punish. It is based typically on either one party's, the paying spouse's, income, usually gross income, and I'm talking now generally.

Todd Orston: In Georgia, it's an income share model where you take both parties' gross incomes, you throw it into a calculation that includes some other expenses, and it's going to spit out a very specific child support number. It's not a range, it's this is the number. The fact that you have found this stuff out has no bearing. The only way that you could change it, first of all, would be in the form of a modification, and even that modification would not be based on this behavior. It would have to be due to a change of circumstance and, again, this is here in Georgia, a change of circumstance that would warrant modification, and that would have to be financial in nature, either a change in your income, change in his income, a change in the expenses and needs of the kids, something that would potentially warrant a modification of the existing support.

Todd Orston: Unfortunately no, and I'm not making light of it. I'm sorry. Jokes aside, that's painful. To find out that you've been lied to and the lie has been ongoing for years, it's terrible. But, unfortunately, there's not going to be any financial windfall due to you learning of that, even if you had better evidence. Here, it's not even that great of evidence. But even if you had great evidence, it would not give you grounds to modify.

Leh Meriwether: I'll add to this. Let's say you were asking, "Hey, can I go back and get a different division of property?" Again, we're talking about Georgia because some jurisdictions, adultery doesn't matter. When I say jurisdiction, I'm talking about states. But even in counties in Georgia, some judges don't care that much about adultery, some do. The problem is I'm hearing that there's pictures on Facebook that existed, as I read this question, at the time of divorce. You had the opportunity to do what's called discovery and find out if he was having an affair and the fact that you didn't, again, sorry for the impact on your ... This discovery is obviously very painful. That's one of the challenges of being a lawyer. A lot of times, we have to deliver some really bad news.

Leh Meriwether: When you get a divorce, you have one chance to litigate these things, many of these things, and equitable division is one of them. If you do not do discovery, you waive any potential right to come back later. This is an example of that. There's very few exceptions to this. There is no exception in this case. You had the opportunity to find this out during the divorce and you chose not to so you can't reopen the divorce.

Todd Orston: Yep. Yep. Again, to anybody who's still in the process of divorcing or thinking about divorcing, even if you have that better evidence, it's not going to impact child support. Again, I don't want it to seem like, "Oh, had I only done things earlier, had I only gathered certain information earlier, then maybe it would have impacted." No, in this situation and in that context, it would not have any impact.

Todd Orston: All right, next question. Can I sue the man my wife is cheating on with me? I'm not sure I understand the ... I understand the question but maybe the ... Okay. The question is, I found my wife in a cheap motel with a convicted felon, all right, already the makings for a Netflix special, for aggravated assault on his girlfriend. That was a month ago and she's been living in the motel for three weeks now, refuses to leave.

Todd Orston: She left him once for two days. We were doing great for those two days until he texted her, wanting to meet at that same motel. She left right away. I've confronted him by phone, explained to him how this affects my family, told him never to contact my wife again. She goes to work and back to him every day. I feel if he wasn't in the picture, we'd still be together. He doesn't even live in our area. Again, the question, can I sue the man my wife is cheating on?

Leh Meriwether: Well, there used to be a cause of action in Georgia called alienation of affection, and you could sue someone for stealing away your wife or your husband but that law was done away with years ago. While you could file a lawsuit, you would lose and most likely be hit with attorneys' fees from the other side, because the statute did allow a lawsuit like this and, again, I'm talking about Georgia. I don't know about any other state that has this. I want to say that most states actually, if they did have this thing on the books, they had taken it away, the alienation of affection statute. Actually, I do remember 10 years ago, because I'd researched this 10 years ago because I had this exact question.

Leh Meriwether: Somebody wanted to file a lawsuit against someone for alienation of affection. There was a state at the time that could have changed since then, but still had this law on the books, where you could sue someone for basically stealing away your spouse. But in Georgia, no. She's a grown adult and she's making her choices as painful as they are to you and your family. You cannot sue the man who's doing this. Maybe in another state, but not Georgia.

Todd Orston: Yeah. Your recourse is, unfortunately, you pursue a divorce. You terminate that relationship with her, as opposed to being able to sue to gain some kind of financial windfall against the paramour. Jokes aside, we hear these types of painful stories all the time. It is unfortunate, I'm sorry you're going through that. I think, unfortunately, you have some difficult and painful decisions that need to be made coming up. Anyway, hopefully, you can work through this. My fingers are crossed that maybe your wife will come back for more than two days next time and realize what she is risking in terms of her family. All right, let's move on.

Leh Meriwether: Yeah. It does sound like there's something going on with his wife. There's something deeper going on here, something along the lines of for someone to go stay in a cheap hotel with a, sounds like, very aggressive person, if all this stuff is true, you all need more than just marriage counseling. It sounds like she needs some serious counseling on her own. Obviously, we're not psychologists, but we've seen this before. This kind of behavior, which doesn't make any sense, especially he says family, so I'm assuming there's kids at home, so for a mom to leave her kids to stay in a hotel with this guy, often, there's something dramatically wrong with the wife. I'm talking about from experience in cases, I'm not diagnosing your wife. It's going to be more than the marriage counseling that's going to take for this for you to work through this, unfortunately.

Todd Orston: I agree.

Leh Meriwether: We'll lay out the next question, and then we'll answer it when we come back. All right. Here's the question you've got to answer when we come back, Todd.

Todd Orston: I'm ready.

Leh Meriwether: This way, you have time to think about it. How much a stay-at-home mom should get from her ex-husband who earns a six-figure salary and owns properties? I'm a stay-at-home mom. I do not receive money from my husband for being a stay-at-home mom. I do all the jobs around the house, cooking, laundry, and take care of the kids all day. We have a prenup, and now we are talking about divorce because of his abuses. He doesn't want to honor it and decided not to give me any money. We'll answer that question 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 a.m. on Monday mornings on WSB. You can always check us out there as well.

Todd Orston: Better than counting sheep, I guess, right?

Leh Meriwether: That's right.

Todd Orston: You can turn on the show and we'll help you fall asleep.

Leh Meriwether: There you go.

Todd Orston: I'll talk very soft.

Leh Meriwether: Welcome back, everyone. This is Lee 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 you can read a transcript of this show or go back and listen to it again at divorceteamradio.com. All right. Where we left off, I threw a question on the table for Todd to answer about a stay-at-home mom who wants to know what she can get in the way of alimony from her husband who earns six-figure salary and owns property.

Todd Orston: All right. Well, the most important thing that was mentioned in the question was the mention of there being a prenuptial agreement. Being a stay-at-home mom, I'm not worried about the custody issues, I'm not worried about the child support issues. If, for whatever reason, the prenup that was put together mentions those or somehow has terms relating to what will happen in terms of custody and child support, those aren't going to be binding. The court's going to be able to deal with child support at that time, and the party who gets custody is going to, more than likely, be the one entitled to get child support.

Todd Orston: Again, if the prenup dictates that, let's say, husband gets custody, and it didn't say that here, I'm just trying to explore every avenue, if it says something about that, it doesn't matter, because the court's not going to accept a prenup that dictates who gets custody. The court's still going to determine what's in the best interest of the child at the time of the divorce.

Todd Orston: Now, bring it back to alimony. Can alimony be dealt with by a prenup? Absolutely. It's really going to come down to what does the prenup say? All right. The fact that he makes six figures, the fact that he has assets and other things, on the alimony side, is it relevant? It is, except for the fact that if there is a binding prenup, even though you may have been entitled to more or less, absent a prenup, it doesn't matter. The whole point of a prenup is you're saying, "I understand that the state law may afford me other rights or impose other obligations, but I am agreeing to these terms which we'll here and after, in essence, trump whatever the state law says and requires."

Todd Orston: Basically, you would have to look at that prenup. If you came to us, the first thing we'd be saying is, "Can we have a copy of the prenup? Let us take a look at that. Let us see what it requires." Then we can look at enforceability, of course. Let's assume it's enforceable, we're going to be able to advise you what does the prenup say. If he's saying, "I'm not going to do it," well, then, it becomes a much different issue.

Todd Orston: Now at this point, you're filing for divorce and you're filing a motion to enforce that prenuptial agreement. If you basically embark on a divorce, and you're like, "Okay, hey, we have an agreement already that defines what your obligations are to me for support for alimony," and he says, "Well, I'm not doing that." Well, at that point, there are steps that can be taken to enforce those terms, i.e. to force him to comply with the terms of the prenuptial agreement.

Leh Meriwether: Yep. The key word there is, is it an enforceable prenuptial agreement, because I've seen ones where there was an expression that in the event of divorce, that the husband would pay the wife so much money a year. I had one where the husband did not intend to draft it. He did not have a lawyer draft the prenup. He was paying her in the prenup more than he made in any given year. He just flat out wrote it wrong. Thankfully, there was a technical error in the execution of the document that I was able to have the whole thing thrown out. Did go to the Supreme Court of Georgia to win that. We did win it for him. He was very happy. He actually didn't want the divorce and, oddly enough, that she dismissed the divorce after we won the Supreme Court case.

Todd Orston: Surprising.

Leh Meriwether: Yeah, because she wasn't going to get out. But even from all practical purposes, she wasn't going to get the money that was in the prenup because he never made that much. He wrote it wrong. I don't know if we would have won on a different interpretation of it or in other grounds. Thankfully, we didn't have to go there, which is why you really should have a lawyer draft your prenups so you make sure you have the language correct, so you don't accidentally put in language that subjects you to an obligation, which almost sounds like what may have happened here.

Leh Meriwether: He may have done a prenup. He may have said, "Hey, I'll pay X number of dollars a month for X number of years," and then he realized, "Oh, my gosh, this is way more than I ever should pay. I need to get out of this." That almost sounds like, in this question, what happened. If she files a motion to enforce, and it's an enforceable, it's the keyword, enforceable prenup, he's going to have to pay it.

Todd Orston: That's right.

Leh Meriwether: All right. Ready for the next one?

Todd Orston: The next one, all right. How can I apply for alimony, I'm going to torture this, pendente lite in Georgia? That is Latin, basically during litigation. How can I apply for alimony during litigation in Georgia? I'm a stay-at-home mom, recently employed part-time, seeking a divorce. We've been married for nine years, and we have two kids, 10 and 8. I have no access to finances and can't afford to hire an attorney. I've applied for legal aid via the Georgia Bar Association, and I'm waiting to hear back. How can I apply for alimony during the divorce?

Leh Meriwether: Well, in Georgia, and many other states are like this as well, you can request a temporary hearing, and at the temporary hearing, the court can award temporary alimony. Now, obviously, all those other factors that go into play can make a big difference. Like for instance, what are your monthly expenses, what is his ability to pay, all those are going to come into play at that temporary hearing. One of the things that doesn't necessarily come into play ... Again, I'm talking about Georgia, because every state is different. Let's say in Georgia, you've only been married, let's say, five years. Well, often in a five-year marriage, you don't see any sort of long-term alimony. A lot of times, you don't see any alimony for final basis, or even, let's say, a three-year marriage.

Leh Meriwether: But during the pendency of the divorce, you do see alimony at court because the court will say, "Okay, Ms. Stay-at-home Mom, you need an opportunity to go out and find a job, and so I am going to order temporary alimony during this process because I can't have the mom who's taking care of the kids not have any money, because she's going to have child support, but she'll need additional money to go out find a job, maybe buy some new clothes, go on some interviews." All that's going to come into play.

Leh Meriwether: In Georgia, attorneys' fees are considered temporary alimony. She can request attorneys' fees in the case as part of her temporary request, and that counts as alimony so that she can actually litigate the case. There are some lawyers out there that you have to call around and ask if you can't find a pro bono, get the legal aid to help. I don't know how much money he makes, because that all plays into it as well. If he's only making $30,000, $40,000 a year, and all his money is going to pay the bills, then the best you can hope for is usually child support, because there's not enough money to go around. That's a harsh reality we have to deal with.

Leh Meriwether: Let's say he makes $150,000 a year and his debts aren't that high, and he's just choosing not to give you any money and he's trying to starve you out. Well, that's part of the reason why the Georgia legislature years ago enacted a statute that allows you to come to court and ask the court to level the playing field. You can come to court and ask the court to award you temporary attorneys' fees in order for you to litigate the case, because we didn't want the primary breadwinner, because this goes both ways. This isn't just the dad. We've seen stay-at-home dads come to court and ask for his temporary attorneys' fees, too, because the mom made significantly more money. It's to level the playing field.

Leh Meriwether: I forgot the actual title of the statute, but that's what everybody calls it. It's that opportunity to level the playing field, so nobody has an unfair advantage in court because it actually was happening a few decades ago. The stay-at-home mom was basically being starved out because dad just suddenly cut off the funds, and mom was forced to take whatever settlement proposal he was willing to give.

Todd Orston: Yeah. It's all about maintaining the status quo, and it does create an opportunity not only for a temporary but an emergency hearing if all of your finances, meaning if you've been cut off completely, so there are different avenues. But it does create an unfortunate situation where somebody is like, "I need to hire an attorney, I have no access to funds." That's where, unfortunately, they have to start looking to friends and family and, hopefully, they can get the help that they need so that they can get the help that they need from an attorney.

Leh Meriwether: Right. Yep. A lot of times, you get help from friends, you get to court, and then you get that temporary relief. Everyone, unfortunately, we're out of time. Thanks so much for listening.