Meriwether & Tharp, LLC
Meriwether & Tharp, LLC Varied
If you have divorce questions

195 - How Procrastination Can Crush Your Hopes for a 'Fair' Division of Assets in Your Divorce

195 - How Procrastination Can Crush Your Hopes for a 'Fair' Division of Assets in Your Divorce Image

04/08/2021 11:08 am

Everyone going through a divorce is seeking a fair division of the assets and liabilities. While their definition of 'fair' may differ, one thing remains constant . . . procrastination is not your friend. Whether it is making sure you are prepared at a basic level or needing to prove that a particular asset has a high (or low) value, preparation is king. In this show, Leh and Todd discuss how the impact procrastination can have at each stage of your case and what you can do to combat it.




Transcript

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 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 at atlantadivorceteam.com.

Todd, I know you've been putting off doing this show.

Todd Orston: Everyday. Every time we record. It's painful. No, I'm kidding. No. No, no. Trust me, procrastination for me is... Well, it does play a part in my overall personality and personal choice.

Leh Meriwether: Part of your way of life.

Todd Orston: It's part of my way of life. I've sort of become at one with that. But not with this show, no. This is priority number one for me.

Leh Meriwether: Okay, good. So I've noticed a theme that we've gotten onto here recently, but I think it's an important one and that's procrastination. We did one in general, and then we talked very specifically about how procrastination can hurt your child support case. I mean, not child support, child custody case. We haven't done child support yet. But I think what people don't realize is procrastination can actually crush your hopes for a fair division of assets in your divorce as well. So we wanted to break that down today, talk about how when you procrastinate, it can result in getting you... I'm going to put this in quotes because fairness is something that's very unique to each individual. But it can impact you getting a "fair division of your assets". People can't see my air quotes.

Todd Orston: Yeah, yeah. You're doing bunny ears. I get it.

Leh Meriwether: Yeah. Yeah. So we wanted to break that down today. We're going to talk about different phases of a divorce action and how procrastination can hurt each phase, and we're going to start as early settlement talks. And then once the case gets going or even when you're doing settlement talks, the discovery portion of the divorce process, which can be pre-lawsuit or post-lawsuit. Meaning during the lawsuit process or before you can get started. Developing a budget as you go along because there's...

While we're going to talk about the budget aspect in detail when we do a show on child support and alimony, your budget can impact what you ask for when it comes to equitable division. We'll talk about that in a minute. The mediation, temporary hearings, final hearings, and then post-divorce. So we're going to go through each step of the process and how... because sometimes people start off really well. And then as the case goes along, they start to procrastinate. And you may start off well, but you can't stop. You have to stay on top of the case at every step of the way.

And I'll also say this, Todd, the more you stay on top of your case, the more likely it will settle and you won't have to get to these other phases.

Todd Orston: Absolutely. And the point of the show is direct impact, the actual effect on the settlement, the ultimate settlement terms that you might reach. But I have to in any show on procrastination, I also have to touch on this. It also is going to increase cost. If you are procrastinating, that means that your attorney is probably going to have to do more work to try and gather the information that they need. They are going to be following up with you more often. They're going to be requesting more documents. As opposed to if you understand that what is necessary in terms of information and documents, if you understand what is required and you are on your own just every time a new statement comes in, you forward it to your attorney. If your attorney makes a request, you give it to them. You comply with that request and give them that information. You are going to save money because the attorney is going to constantly get this information, be able to work it into all of their analysis and process the information. And they don't have to chase you down for it.

We have had clients where we have sent 10, 15 emails. We have made phone calls. We have had long conversations about the importance of providing the information that's requested and still we don't get it. So that is a tremendous amount of time and effort and therefore money that you could've avoided had you just stayed on top of things and not procrastinated.

Leh Meriwether: That's an excellent point, and this applies at every level of the case. You can have your, especially if your marital state isn't that large. When I say it isn't that large, maybe there's so much debt it kind of offsets a lot of valuable assets you have. Well, all of a sudden so your net estate, meaning if you were to take all of your assets and use them to pay off all your debts, your net estate isn't very big.

So a lot of attorneys' fees can quickly crush a fair division of assets, which means in many respects that net estate, let's say it was $100,000. Well by the time the lawyers get done because each side was procrastinating, which we've seen happen before. The husband gets $25,000, the wife gets $25,000, and each of the lawyers get $25,000 in attorneys' fees. So all of a sudden your estate goes from being split two ways to being split four ways.

So by following what we're going to talk about here and make sure you're on top of... You personally are doing what you can control and stay on top of your case, you're going to increase the chances of not having attorneys' fees negatively impact the fair division of the assets in your divorce.

Todd Orston: Great point. Yup. All right. So let's jump in. Let's start talking sort of like you brought up earlier. Let's talk earliest stage. So what we are calling the early settlement talks. Leh, why can procrastination just kill your attempts and your success at just trying to resolve things during those early stages?

Leh Meriwether: I'm going to answer that question. Before I do, I wanted to give this quick... In case people are listening and go, "What is equitable division?" We defined it before, but I just want to make sure if you're listening to this show for the first time, we define it here. Equitable division, it's a term used in Georgia. It's the term used in many other states but not all states. It's the way in which you divide the marital assets, and those are the assets that have been, and liabilities.

So marital state includes assets, things you've accumulated during the marriage. 401Ks, houses, cars. And then your debts, your liabilities from maybe a loan on the 401K, car loans, credit cards, mortgages. So that's part of your marital estate. And then the courts, how they divide those up depends on the law of the state you live in. So sometimes it's equitable division, which means what's fair. So again, that fairness can be it's something determined by the judge or it is something determined by the judge if the two of you can't settle. Some states, they have the title community property, which means you automatically split things 50/50, and this is still going to apply even in those situations. But I've even seen some states where their statute says community property. But when you actually read into it-

Todd Orston: There's discretion.

Leh Meriwether: It's discretion, and it winds up being the same. It's equitable division. So I just wanted to make sure we started with that sort of baseline when we get started.

All right. So it can crush your case. So here's one common thing I see. So a couple sits down to talk about things, but they put off really sitting down doing what we call a marital balance sheet where you list all your assets and all your liabilities. They just put it off, put it off, put it off for the same reason why they probably put off doing a budget in their marriage, and I get it. I mean, it takes time, and it's for some people it's absolutely no fun. But as a result, someone promises something in those early settlement talks, and then they go to the lawyers and they say, "Hey, we worked out a deal, and we'd like you to type it up as an uncontested divorce." And they say, "Great." So they start going through it.

So a lawyer can only represent one side, so whoever called them, they may call back and say, "You know what, I was putting this together, and this really... I want to make sure you understand what you agree to because when I put all this information together, it's not adding up. And did you know that there was a tax lien on your house?" "No, I didn't know there was a tax lien on the house." "Yeah, if you're telling me there was $100,000 in equity, there's actually two liens adding up to $115,000 on the house." "What? I didn't know that."

So that's something that lawyers can discover during the process. I've seen this happen before a scenario very similar to that.

So anyways, so the person had to backtrack on the deal. Now that one was easy to backtrack on the deal because the other side hid the fact that there was tax liens on the property. But there are other situations where you just honestly forgot about something, and that maybe it was a... You set things up on auto payment. So maybe you had this credit... Not a credit card. Like one of those furniture store credits, and you bought all this furniture years ago. And you've been paying $200 a month on it for like five... It was a five year deal, no interest. And you just forgot about it. It was auto payment. There's $6000 left on it. So all of a sudden the deal you worked out is not very fair because, "Wait, you're taking all the furniture and that debt's in my name. We need to renegotiate." And theo there side suddenly feels like, "Well, wait a minute, you're backing out of the whole deal." And then they get mad. Then things fall apart.

When we come back, we're going to continue to break down how procrastination can crush your hopes for a fair division of assets in your divorce.

I just wanted to let you know that if you ever wanted to listen to this 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 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.

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.

All right, Todd, I talked way too much last segment. Your turn. So we could go, by the way, on and on about early settlement talks. The main point there is don't rush into those because you're like, "Hey, look, I don't even want to dig into this stuff. Take your time." The bigger estate, the more important it is to figure everything out. There could be tax implications associated with certain assets. Do your research first. Don't put it off. Don't procrastinate.

Okay.

Todd Orston: Yeah. Wait, wait. Before you move on, because I want to make sure it's very clear. We are not saying don't engage in those discussions.

Leh Meriwether: Right.

Todd Orston: This is not a comment by two attorneys saying, "You need an attorney. Don't even talk about this stuff without an attorney." This is us simply saying be prepared and every conversation or every part of this conversation at every stage, early settlement talks, mediation, discovery. The same thing applies. You have to be prepared. You don't go into these discussions unprepared. If you do, that's when mistakes are made. And when a mistake is made in this process, it is a mistake that can carry with you for years. It can impact you for years.

So you, Leh, you were talking about a situation where somebody realized that a mistake was made, that what they thought was a good settlement term was not. But they were able to back out of it. How many times have we seen, Leh, people where they just agree to things. They procrastinated, didn't do the work necessary to determine is it truly a fair agreement, but they lock in. They end up signing up something. Those are the terms and then a week, a month, a year later, they realize the true implications. So that's a lot of what we're talking about, it's that. It is if you don't do that work, you're going to find yourself in some real hot water. You're going to find yourself in a situation that you caused because you just simply didn't do the things necessary to be prepared.

Leh Meriwether: Right. And to answer the question, I've seen it happen more times than I can count, which is why in part we wanted to do this show. And when you have even people working, trying to be fair with each other working, but they are just unaware of a problem because they put off checking on some things. I mean, it could be with your accountant. It doesn't have to be with a lawyer, but checking on some things first. And I'm not talking about the fraud case I was talking about, I mean, giving an example of.

What happens is it creates a lot of distrust when someone backs out of a deal because the other person feels as if, "Oh, you were just placating me. Oh, you didn't really mean this. This is just a sign of how our co parenting relationship's going to be. We're going to agree to things, and you're going to back out." And it creates distrust on the go forward and can make more difficult in the divorce process because obviously things fall apart.

So going back to your point, Todd, that hey, we're not saying don't talk early about things. But make sure you have a lot of caveats in there if you're being pushed into things. Look, I understand what you're asking for. You're asking for X, Y, and Z. So you confirm what they've told you so that they know they've been heard, and you can say, "On the surface, it sounds fair, but I need to double check some things. For instance, you're saying you want me to take all this rental property because the value of it is if we sold it tomorrow, we'd get $200,000 after we paid off the mortgage on it. But I know we've been depreciating that rental property over the years. So I don't know the kind of capital gains are going to be hit on that. So I may not actually collect $100,000. I may only collect $50,000 because of a capital gain hit." It could be a lot of complicated things. I won't go into it. I just can tell you that's happened before.

So [inaudible 00:15:51], "Hey, let's go to our accountant to make sure because you agree with me. You want to a fair deal, right?" So you get the other person going, "Yeah, yeah. This is what this is all about, being fair." Like, "Well, if something like that happened to you and you agreed to take something thinking you were going to get $100,000 but it turns out you only got $50,000 because of some taxes, would you feel that's fair?" Most people if you're having honest settlement discussions say, "Well, no, that's no fair. Okay. Well, let's just make sure that we're... Let's not lock in. We have attentive feeling that we're... We have an agreement that we want to work towards something that's fair. We're defining fair as we get a 50/50 division of the marital estate and that mean what we take home. So let's go to an accountant and just have some stuff double checked or go to an attorney and have some stuff double checked."

So that way when things fall apart, it's really easy for you to say... The other person's like, "You know what, it's not that I don't distrust you, but we agreed upfront we wanted 50/50. Well now we don't have a 50/50. So let's figure out how to adjust to what we tentatively agreed to so it's still 50/50."

Todd Orston: Right. This goes to I'm sure you remember when you absolutely butchered that Shakespearean line of, "Me thinks me dost protest too much." But yeah, anyone who wants to go back and listen to that show, don't. But the only other point I would make is jokes aside, if you take that position and say, "You know what, this seems fair. Why don't we seek some help, some guidance, whether it's an attorney, an accountant, whatever because let's just work through these numbers a little bit or work through whatever the issue is." If they start pushing back, I can tell you that nine times out of 10, in my experience, when I start to reality test these points and I go through with someone...

This happened just a day ago where I was talking to someone, and they said, "I think this is a good deal, and my husband is offering X, Y, Z." I said, "Well, hold on one second." And I started going through these things, and I was like, "So he's offering this and this and no child support but pay the mortgage." "Yeah. Oh, absolutely. So I'll get the house. Oh, okay." "Can you afford the house? You're not going to be getting child support. And by the way, who's house is it?" "Oh, it's his house." "So who gets to keep the house as he's paying down the mortgage?" "Well, it would be his house." "Okay. So what are you getting? You're not even getting... He's basically saying, 'How about this? High five everyone. This is a winner. I'm not going to pay child support, but I'll pay the mortgage and you can live in this house. Then ultimately I get to keep the house, and I've paid down the mortgage with the child support.'"

Leh Meriwether: Right.

Todd Orston: So it's things like that where it's like if you don't get the help you need to make sure these terms are fair, you can make a big mistake.

All right. Let's jump into discovery.

Leh Meriwether: Before we get there because this is in our notes, and it goes along the same line. You made a really good point about can you afford the house. So one of the things you should be working on is a budget. Now budget is going to apply more to alimony and child support, but there are times when it impacts equitable division. So for instance, let's say, "Hey, I'm keeping the house." So on paper, everything looks great. It's a 50/50 division. And this applies at every phase of the divorce process.

But then you look at your budget and you realize, "Well, wait a minute, when we lived in this 7500 square foot home, my husband took care of everything. He took care of anything that broke in the house. He took care of it. He took care of the lawn because that's just stuff he liked to do. The house is 30 years old. I know we're going to have to replace the HVAC soon. I'm going to have to pay for a lawn service, and we're on a pretty big plot of land. It's going to cost $200-$300 a month to take care of that. Boy, I don't have that in my budget. Do I really need that big a house? If I have to go back to work, I'm going to hire a maid service to help take care of it. That's got to be in the budget."

So if you don't sit back and look at these things, if you put it off for whatever reason looking at these things, suddenly you find yourself what's called house poor because you have this nice house, but you can't afford to upkeep on it because you didn't do a budget ahead of time.

All right, discovery. Todd, how do people procrastinate in the discovery phase of a divorce case, and how does that hurt their case?

Todd Orston: All right. So very quickly, discovery again, it's exactly what it sounds like. It is each party's ability to discover information that is relevant to the issues in your case. So if there are property issues, you have the right to discover and get information about let's say the mortgage and the value of a house or if it's bank accounts or retirement accounts, you have the right to get statements and information as to the existence of accounts and then the value of those accounts. So you have the right to gather that information. Well, unfortunately if you don't ask the right questions, if you don't engage in that process, let's say you're doing this on your own. Well then you're not going to have the data necessary to make good decisions.

And before we go to break, the secondary part, very quickly, is that then your... After the break, we'll go into it a little bit more. Then your attorney is chasing you constantly if you have an attorney, trying to get that information, and all you're doing at that point is running up the cost. I haven't yet met a client who just loves when they hear they're paying extra money unnecessarily.

Leh Meriwether: When we come back, we're going to continue to talk about how procrastination can crush a fair division of assets.

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 and 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, and you can listen to this show and past episodes at wherever you get your pods.

Okay. When we left off, we were talking about procrastination and how it can crush your hopes for a fair division of assets in your divorce. So you do not want to procrastinate. So we've been focused a lot on the early parts of whether it's settlement or discovery because it's so important for the whole rest of the divorce process. That's why we spent so much time on it. But I know there was a couple more points we wanted to hit on discovery, and then move into the mediation phase. So Todd, what else have we left out on the discovery side?

Todd Orston: So obviously we've talked about, and my primary point before the break was that it can result in additional costs. I mean, I can't tell you how many times I've seen situations where we are making, like I said, email after email, call after call just to get the information that we need. So now backing into that point, we're digging a little bit deeper.

Understand these cases, it's all about the information. It's all about what data do you have. You cannot or will not unless it is the most basic, no children, no assets, what I call you go your way, I go my way kind of divorce, you need to have data in order to make sure you are being treated fairly. So when it comes to discovery, it's really important at every level but it's really important in the discovery process, don't procrastinate. Don't get lazy because your future and by that I mean your financial future or the future relationship you have with children. But in this case, division of property, your financial future depends on you making an educated decision based on data.

So if you don't do the things necessary to collect the right data, how can you be sure that it's a good decision that you're making? So please, please, please if you're working with an attorney or if you're doing this on your own, take the discovery period and discovery process rather incredibly seriously. I mean, just make sure that you understand that is going to be basically what dictates whether or not you are able to reach a fair settlement that is good for you, that will work for you not just now but in the future.

Leh Meriwether: So there's two other points I want to hit on discovery and then we're going to move on to mediation real quick. So two areas I see people procrastinate. One is the documents get turned over by the other side. So they come in and the person that receives them doesn't go through them. Sometimes they don't go through the documents until the divorce is over. The lawyer goes through them, but they may not notice things because they just don't live your life. But maybe you get something in and you look at it and go, "Well, hang on a minute. I don't recognize that phone number. Oh, wait a minute. I don't recognize that charge on that credit card. We never went to a hotel then. What? I never got a diamond ring." They can turn up things whereas the lawyer may not recognize it because for whatever reason, you haven't mentioned anything that would cause a certain item to be on our radar. But you would because you've been living with this person.

So don't procrastinate reviewing the documents that have been turned over. I saw a case where the other side reviewed the documents, and turned out the husband had a pension. And the funny thing was, he didn't even know he had the pension. I believe he didn't know it. He just wasn't paying attention to any of his things when it comes to retirement. It was discovered because the people went through the documents.

Todd Orston: And the problem is that oftentimes a settlement agreement will have agreement that says acceptance otherwise agreed to herein basically. What is in this person's name is theirs, what is in that person's name is theirs. So if you haven't specifically dealt with every asset, it may fall under that more broad umbrella is what's yours is yours and mine is mind. So that pension if it's not specifically dealt with, it would potentially probably fall under that other umbrella of, "Well, anything not specifically listed in this agreement, if it's in your name, it's yours." So you just missed out on potentially a large asset.

Leh Meriwether: Yup. So the funny this is both sides were actually happy they found it. So even though he was giving up half, he was like, "Hey, I'm happy to know I have it."

Todd Orston: It's the same thing when I put on a pair of jeans I haven't worn and I find a $5 bill. I'm like, "I feel like I won the lottery." It's amazing. Then I have to go through every pair of pants to see...

Leh Meriwether: Oh.

Todd Orston: Anyway.

Leh Meriwether: So sometimes the discovery is on your end too. When I say that, I'm not talking about turning over documents that you referred to earlier, Todd. I'm talking about let's say the market's crazy right now regarding homes. I'm just using this as an example because we've had those phases. So you're getting ready go to mediation, but one side thinks the house is worth $300,000. The other side thinks it's worth $400,000. Well, that's $100,000 sling, and mediation is... Unless both of you have already decide way ahead of time, we're just going to sell the house. And if you have, then there's no reason to do an appraisal. But if one of you actually wants to keep the house, then don't procrastinate trying to come to some sort of resolution or agree that, "Hey, we're going to hire this mutual evaluator. They're going to say, 'We believe the house has a value of X.'" And then you can operate off that at mediation. So there's nothing to fight about.

So don't procrastinate getting ahead of things, addressing things because the next phase we're going to talk about is mediation. If you can get ahead of these things, it really makes a difference. I once had a mediation where we had to pause it twice. Well, first off, I thought that we had an agreement that we were going to sell the house, then that changed. So there wasn't an agreement on the value of the house. So we had to pause the mediation. I mean, both lawyers recognized we don't want to argue over this. This is a waste of money. We didn't want our clients to pay our bill and the mediator bill to argue over something when we both said, both lawyers I think wisely said, "You know what, let's put a time out on the mediation. We both agree that this appraiser over here's great. They're really pretty accurate. Let's have them appraise the house. Whatever they come up with, that's the number we'll put in the marital balance sheet." And we did that.

Something came up again the second time that as much as I'm very proactive, sometimes things just happen at mediation. But most of the time, we're really good at not procrastinating, pushing everybody to get this information ahead of time so when you get to mediation, you dramatically increase the likelihood of reaching a fair settlement, and I mean fair on both sides because you really do want it to be fair on both sides, especially if you have kids because that dramatically increases the likelihood of a good co parenting relationship in the future.

Todd Orston: Yeah, let me put it this way. You definitely want to make sure that you identify all the issues, whether it's related to custody, support, division of property. You don't want to miss out on something. You don't want to find out after the fact that there was a pension and now you don't get a part of it. Well, just as important is you don't want to find out, even though you want to find out. You don't want to find out while you're sitting at mediation because remember, especially if you have an attorney, you're paying for that. You're paying for the mediator. You're paying for your attorney. The other side is paying for their attorney. There is at least the chance that all of those fees will be coming ultimately out of the marital estate. Therefore, you're spending a lot of money, but it's money well spent if you go in prepared. Mediation is a fantastic tool to try and avoid prolonged expensive litigation. But if you go in unprepared, unfortunately I've seen situations, I've been a part of it where we go in prepared. The other side is completely unprepared.

Leh Meriwether: Yeah.

Todd Orston: We start talking and we start working, and the positions they're taking are grossly unreasonable. And we throw data point after data point at them showing that's not reasonable, and there's no way we believe a court will do that and this is why. But unfortunately they weren't prepared, and therefore we get stuck. I've seen, I've been a part of 10 hour mediations where unfortunately we end up walking away with no agreement.

Leh Meriwether: Yeah. Now unfortunately we can't control the other side, but what we can do is if you're ahead of the game, you don't procrastinate getting your lawyer the documents is you turn all those documents over ahead of time. Now there may be situations, there's exceptions to most of these rules, but we're talking about in general you get everything to them ahead of time so there's no surprising on the other side that cause mediation to fall apart like you talked about, Todd. Because I've had it where the other side just wouldn't turn over tax returns, wouldn't turn over tax returns. Finally got them at mediation. It turns out they had depreciated a lot of rental homes. So there was going to be potentially a massive capital gain hit that dramatically changed the value of the proposal the other side was giving. And we had to walk away from mediation because of it because there was procrastination on their end. We knew why because they didn't want us to know about it, but you can't control that.

When we come back, we're going to continue to talk about how procrastination can crush your hopes for a fair division of assets.

I just wanted to let you know that if you ever wanted to listen to this 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 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 atlantadivorceteam.com.

If you want to read a transcript of this show or go back and listen to it again, you can always find it at divorceteamradio.com or listen to it again wherever you get your podcasts.

Okay. We are talking about how procrastination can crush your hopes for a fair division of assets in your divorce, and we've been focusing a lot on the settlement process. But that's because if you're prepared to sit down and settle, I think this is where a lot of people make a mistake, they think the mediation process... Well, the mediation process is a very relaxed setting, and unfortunately people confuse that with, "I don't need to be as prepared." But as Todd and I were talking off air, when you properly prepare for mediation, you're 80% prepared for a final hearing. Now final hearings come with a little bit of... You got to deal with the rules of evidence, so that can require a lot of extra work just to get that in there. But the framework of your argument is ready to go because you prepared for mediation.

I'm going to just give one tale for mediation. This is a case from years ago, and it involved a business. It was a fairly large estate, and it involved a business that the couple had tentatively agreed to divide in half. Now how they divided it in half was... Well, that was a big question, and the person on the other side, they were kind of busy having fun and enjoying the fruits of their labor. And as far as I could tell at mediation, he didn't get ready. My client did not procrastinate on this issue. We met for I don't know how many hours to go through how their business operates, how its run, and what is the really profitable aspect of the business. And when I say really profitable, I'm talking about the net profit. So at the end of the day, the agreement that was drafted basically it looked on paper that both sides got the same thing. But in reality, the practical application of what each one got, our client got a better deal.

The other side was very upset. They filed multiple contempt's. Now there was other things mixed in there, but they were complaining about the business deal that was worked out. They lost every single contempt. And the thing is once you reach an agreement and it becomes part of an order, it's called race judicata, meaning you can't go back and undo it. So that's why it's so important not to procrastinate getting ready.

Going back to your point, Todd, if your lawyer's asking to meet with you to go over things, don't put it off. Make it happen sooner rather than later because here's what happens. Inevitably, you get in that meeting. The lawyer asks you a certain questions, and you realize, "Gosh, I need more information before we can finish this meeting." So you put a pause on that preparation meeting. You go back and get more information. You come back and meet with your lawyer again. Now if you wait to two days before the mediation for that meeting, you won't have time to get ready. I mean, I can't say for sure because I don't know what's happening on the other side, but it kind of felt like that's what happened on the other side. Maybe it didn't happen. I don't know. But all I know is I felt much more prepared than the other side at the mediation because my client did not procrastinate. She was on top of it. That's why I want to share that.

So let's briefly talk about hearings because everything we've been talking about so far has led up to this point. So I'll just mention this briefly, Todd, and then you can go into final hearings. But temporary hearings typically judges do not address final issues. Equitable division is considered a final issue in a temporary hearing. There are sometimes exceptions to that, and you would need to talk to your lawyer about whether that would be an exception. But rarely do you sell a house, order a house sold in the middle of a temporary hearing because it's a final issue. The exception might be both sides lost their job. This happened in 2008 with the great recession, and the other side didn't want to sell the house. It was going into foreclosure. The judge ordered it sold, and the proceeds put in an escrow account to be decided later. So I've seen that happen before, but it is a rarity. And there was certain circumstances in place.

All right. Todd, let's spend the rest of the show talking about really final hearings and how important it is to not procrastinate when it comes to that final hearing.

Todd Orston: Yeah. So again, and I'm not going to hit this point hard because I've said it several times already. Cost. So obviously the more you work with your attorney to prepare for anything, but now we're talking about hearings, to prepare for that hearing, not only will you save money but of course, you're then going to be better prepared. And the more prepared you are, hopefully the better chance there is that the result you get will be something that benefits you, that doesn't hurt you, that something isn't missed. I mean, you and I can probably tell story after story of going into court and it becomes abundantly clear, oftentimes there's a pro se litigant on the other side, but there are also and have been situations where there was counsel on the other side. And they clearly were not prepared. They had not done the work. They had not done the heavy lifting necessary to make sure they understood all the issues so that they could go into court. In this situation, we're talking about court.

They could go in and argue to the court what fair looks like because that's what you're doing. You're walking into court, and you're saying, "Judge, we have tried to settle. We engaged in early discussions. We went to mediation. Those efforts failed for whatever reason. We therefore need this court to hear the issue and make a decision." Well, once again, it's never okay to procrastinate because it always hurts, never helps. Here, it's the same thing. If you walk into court and you have procrastinated and you have not done the heavy lifting necessary to be prepared, it doesn't take a rocket scientist to tell you the result's not going to be good. You're going to walk in and you're not going to understand the issues. You're not going to know what to argue. You're not going to argue the right thing, and then the court's going to be left with what? With incomplete or whatever arguments on issues, and the court's going to make a determination and that determination, that order that you get from the judge, it may not be something that benefits you. And you only have yourself to blame.

And the only thing you have to do to avoid that is be prepared. Don't procrastinate. Gather the information, make sure you schedule time with your attorney so that you can talk about strategy. You can talk about the documents and information. Discovery that you have to supplement discovery. The other side will ask for that supplementation. And by the way, if you procrastinate at that point, you could find yourself on the receiving end of motions to compel that you haven't provided information the other side say that they need and want for that trial. So a bunch of things can happen if you just sort of sit on your hands and don't do the things necessary to prepare.

Leh Meriwether: And let me tell you, I've never seen this fly to get a continuance. "Judge, I'm not prepared because I've been procrastinating." That is not going to grant you a continuance because I have seen people come in, lawyers, pro se litigants meaning you represent yourself where they say, "Judge, I need a continuance." "Why do you need a continuance?" "Well, I'm just not prepared." "What have you been doing for the last four months since your mediation?" "Well, judge, well, I've been working and taking care of the kids. And he hasn't been helping." And the judge is like, "That's not an excuse. We're going forward."

Now if you said, "Judge, I was diagnosed with cancer right after the mediation, and I've been going through intense chemotherapy because I'm stage four," judge is going to be like, "Continuance granted." In that case, it's not exactly procrastination so much as you're just... I've had lost a few friends to cancer recently, and I've seen how it can be... Sometimes the cure is worst than the illness, and I've seen how it tears people up.

Todd Orston: But a less doom and gloom kind of example would simply be how about you have been trying to get documents related to assets or whatever, but you had to go directly, let's say, to a bank and send out third party notices to produce and you're still waiting for that data. You're waiting for that information. Then of course, the court I believe oftentimes will say, "Okay. You're making the effort. You need more information. You're not prepared. I get it. You're not prepared not due to a lack of work or lack of effort."

Leh Meriwether: Yeah. You did not procrastinate. You are on top of it. But other people didn't get you the information in a timely manner.

Todd Orston: Right.

Leh Meriwether: The key is here you can't introduce evidence after your trial. You have to have all your evidence together at trial, and then from that evidence, the judge makes the decision on what is a fair division of assets. And then after that, it's race judicata. You cannot come back and change it.

Todd Orston: Get it right the right time or unfortunately you have to live with the consequence.

Leh Meriwether: Exactly.

Well, hope everyone understands how procrastination can crush your hopes of a fair division of assets in your divorce. And hey, everyone, thanks so much for listening.