198 Divorce and Custody Q&A
- I have been married for 1.3 yrs, can I divorce my wife if she is verbally abusive?
- How can I file for Divorce in GA if my spouse lives in NC?
- Can out of state travel consent be revoked or conditional?
- In the event something happens to me, will my child's father get my son?
- What rights does my child's father have?
- Are notarized documents binding in court?
- Can He kick me out?
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 we 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.
Todd Orston: Leh.
Leh Meriwether: I got lots of questions for you today.
Todd Orston: Are any of them related to the law?
Leh Meriwether: No. No, nope.
Todd Orston: Okay, good. Then this is a perfect venue. Absolutely. Let's just dig in. I'm in a sharing mood.
Leh Meriwether: How do you calculate board feet that would be in a log? That's my first question for you.
Todd Orston: That's an easy one. That's actually very ... I hire somebody that knows how to do that. Is that the right answer?
Leh Meriwether: All right. Well, that is an answer.
Todd Orston: I actually think it's the perfect answer.
Leh Meriwether: With that in mind, maybe we should shift back to the law.
Todd Orston: Okay. I think that's a good idea. So what are we doing today?
Leh Meriwether: All right. Well, today, I really do have a lot of questions for you. So we're just going to, what we like to do every once in a while is take some questions and answer them. In that process of answering them, explain the law, and explain the law in multiple areas. These will be focused on divorce and child custody. The nice thing about doing these questions is often, sometimes I'll get these questions that are really ... I don't know what the right words are. They're unusual. They're not commonplace. So it gives us an opportunity to explore, in some cases, a little nuanced area of the law. But then we also expand on the primary or the general principle upon which that law is based, or which our answer is based, so that we can explain family law, divorce law, law in general, through the use of these questions. All right, are you ready for the first one?
Todd Orston: One second, I'm stretching. I don't want to pull a hammy.
Leh Meriwether: All right. All right.
Todd Orston: I think I'm ready now.
Leh Meriwether: Okay, good. All right. So here is the question. "Married for 1.3 years." Have to get precise there. "Can I divorce my wife if she's verbally abusive? She threatens my deportation often, I support her and her two children. I have managed to open my own business, and she doesn't help out at all. She refuses to help or to allow me to hire help. I have recordings of her trying to consistently kick me out. I need help on what I can do. It feels like because I'm a man asking for help, I'm getting the runaround once I say she's abusive. What are my options? Can someone use my recording?"
So can he get divorced if she's verbally abusive?
Todd Orston: Nope. It's the American way. You got to stay with her and put up with the ... No, I'm kidding.
Leh Meriwether: Of course.
Todd Orston: Of course you can. Nobody deserves to be treated that way. End of story. That's not a statement of everyone who suffers some level of abuse needs to just race out and get a divorce. There are other options, therapy, looking to religious figures in your life that can step in and try to mediate, and help get you back on a healthier path. But at the end of the day, you can file for divorce if you feel that's where your relationship is. So in other words, in Georgia, there, and everywhere, but in Georgia we have grounds for divorce. Some states are fault, you have to show fault. Some states, most states, or a lot of states, are no fault divorce. You don't have to actually show that a specific bad act occurred. All right?
So here, the general term is that the marriage is irretrievably broken. What does that mean? It means this ain't working anymore. It's broken. One of the things we have to state to the court is that you're living in a bonafide state of separation. You can still live under the same roof but still be separated. Your intention is to basically end the marriage. There is no hope for reconciliation. So if you are at a place where, unfortunately, you've tried to fix it, it's not fixable, then that's all you need to show the court in order to move forward with the divorce.
Leh Meriwether: Right, I'd add that I don't think verbal abuse is actually a grounds for divorce in Georgia, although there is several grounds that you can use. But the most common used ground is the marriage is just irretrievably broken with no chance of reconciliation. So that's the most common ground. You don't need the recordings. It's a short-term marriage. Normally the court is just going to say, "All right, you're getting a divorce, here is what we're doing." So no need to worry about recordings or any of that sort of thing.
One thing I might add is a book out there called Crucial Conversations. So before you go down the divorce path, that might be a book you consider reading, so that you can have a very difficult, crucial conversation with your wife about this current state of your relationship. Do it in a way that she understands you're coming from a place of, "Hey, we got married for a reason. I didn't get married thinking that we were going to get a divorce a year later. But I want us to work on things, and here is what I'm struggling with." So the book does an excellent job of breaking down how to have that difficult conversation, and how to make it productive. How to keep it a conversation and not let it devolve into an argument.
Todd Orston: Yeah. No, absolutely. I do want to say now, can someone use my recording? That's a different topic of a different show. If what the question there is there may be recordings that my spouse has taken of me, can they be used against me? Again, different issue. The answer oftentimes is yes, it just depends on how the recording was obtained. So there are some legal nuances there that would have to be considered. But again, that's a much bigger issues, a much bigger topic.
Leh Meriwether: All right, well, I think we've pretty much covered that one.
Todd Orston: I think so. So how about the next one? The next one, a question, is, "How can I file for divorce in Georgia if my spouse lives in North Carolina?" So this person writes, "I do not know his whereabouts. His family says he's in North Carolina. But do not know where, and his last known address he was evicted from." So clearly some stability issues. But Leh, where would that divorce be filed?
Leh Meriwether: Okay. Well, there is a few more bits of information that we would need in order to answer that question. So if you had lived in North Carolina and moved from North Carolina to Georgia, then North Carolina might potentially be the place to get the divorce, where you have to file it. If you got married here in Georgia, and he moved to North Carolina, then he's had what's called the requisite minimum contacts with the state in order to get divorced here in Georgia. So now, if you were going to file here in Georgia, you need to live here, have lived here at least six months. You can still file here, let's say you don't know where he is, you can file. But you have to serve him.
So there is different ways to serve him. But you have to make a concerted effort to try to find him. Do a postal trace, so you can go to the post office and say, "Hey, here is his last known address, did he put in a forwarding address?" If he did, the post office will give you that information. You can do what's called a skip trace. You can hire a private investigator to do that and find out where he's currently residing. Once you do all those things, then you show the court, "Here are all the efforts I have gone through to find my spouse. I can't find him. I don't know where he is."
Then at that point, you have to do what's called a motion for service by publication, the court will, if you've shown considerable efforts to find your spouse, they will approve it. Then you publish it in the newspaper, I believe it's for 60 days here in Georgia. Of course, that's subject to change, and we're saying this in 2021, the law is constantly evolving and changing. But then once the time period for the publication has gone by, where it's published in the newspaper, then you can go to the court and say, "All right. I followed the proper steps. He is now technically served under Georgia's publication laws. Now, I would like for my divorce to be granted."
Now in that scenario, all the divorce court can do is say, "You're divorced." They can't do anything like, "Oh, if he had a retirement account it's now yours," because you never got actual personal service over him. So there are limitations to that. Also, let's say the court grants your divorce, but then he finds out you filed for divorce. He can come back and say, "Hey, she knew where I was all along, she didn't really try," and can reopen the divorce. Now, hopefully the best case scenario is you find out where he is, and then you see if you can do an uncontested divorce. That's the best thing to do. So even if you live in North Carolina, you can get divorced here in Georgia. When we come back, we'll continue to answer questions like this.
I just wanted to let you know that if you ever wanted to listen to the show live, you can listen at one AM on Monday mornings, WSB. So 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 softly.
Leh Meriwether: Welcome back everyone. This is Leh and Todd, and we are your co-hosts for Divorce Team Radio, a show sponsored by the Divorce and Family Law Firm of Meriwether and Tharp. If you want to read more about us, you can always check us out online at Atlantadivorceteam.com. If you want to read a transcript of this show, or others, you can always go to Divorceteamradio.com. Well, today we're taking on some questions.
So questions dealing with divorce, and child custody, because we find that often you can learn a lot about the law by taking specific fact scenarios and breaking them down, trying to give an answer as best we can. Also, providing what additional information would be helpful in order to best answer the question. Of course, we're answering these questions based on Georgia law as it stands in 2021. So if you're listening to this two years later, the law may have changed, and if you're listening to this in another state, the law might be quite different. But you'll get an idea of how things are analyzed so that you can get good information in your state.
All right, this next one is a long question. Todd?
Todd Orston: Do we need to do a second show? Is this a full consult?
Leh Meriwether: Take notes, take notes.
Todd Orston: All right, take notes.
Leh Meriwether: I'm adding all this stuff in because it's important when we answer the question, because we may spend a significant amount of time on this question, just because there is a lot in it. All right, "Can out of state travel consent be revoked or conditional? My ex made plans to travel out of state with the kids, we have joint physical custody. I initially told her it was okay via text. Then I found out she was lying about things. So I told her I no longer gave her consent. Then I wrote an email outlining the terms of under which I would give my consent. I stated that if she failed to meet any of these terms, my consent would be revoked."
"Number one, provide me with an address where the children will be staying. Number two, a copy of your travel itinerary. Number three, you must facilitate telephonic video communication between the kids and me three times a day as is our normal tradition. Number four, you agree to send photographs of the boys at least once a day. Number give, you agree not to travel to any other city for any other reason without clearing, accept as needed for food, fuel, or restroom breaks while en route. She refuses to provide me the itinerary or addresses. She says she will give them to me once she reaches her destination. The order states the parties much have written permission prior to traveling out of state and the country with the children." Your turn Todd.
Todd Orston: I'm exhausted. All right. So there is a lot to unpackage here. So first of all, context is important. Why was this limitation first put into the existing order? Why do the parties have the right to say yay or nay to out of state or out of country travel? Not every agreement has that. So did something happen? It could be something like one of the parties isn't from the United States, maybe they are from a country, it's a non-Hague member, country where if, unfortunately, they go there and don't come back, getting children back might be difficult. What was the reasoning behind it?
So putting that aside, then I'll be honest with you, would I be saying to someone who presented all this to me would be, "You have to be really careful." Do you have a right to know where they're going? Absolutely. Do you have a right to a basic itinerary? Absolutely. But the more onerous you make your requirement, like here there are five things that were mentioned. It just gets more and more burdensome, and onerous, and what you are potentially doing is creating an opening for the other side to step in and try and modify to remove that limitation.
So for instance, provide me with the address where the children are going to be staying. Done. That's a basic. Absolutely agree with that. A court will agree with that. I don't think there will be any problem. A copy of your travel itinerary, not a problem. That's very basic. You must facilitate telephone video communication between the kids and me three times a day. You're on vacation. That's a little bit onerous. The burden there, if that's the tradition, I get it. But you should be open to, okay, during a vacation, maybe just once a day, how about that? Help me with that. But okay. If it was just those three, I'd be like, all right.
Now we get to four and five. You agree to send photographs of the boys at least once a day. I can tell you right now, most judges would look and go, "No. That's not reasonable." If you're going to withhold your authority for them to go on a trip unless they take videos, and pictures, and send them every day, I can tell you right now my opinion, no court is going to require that. The court may look at that as, you know what? You're holding that authority, that permission, hostage for something that the court doesn't see as a requirement, as something that is reasonable.
Then number five, you agree not to travel to any other city, for any other reason without clearing, except as needed for food, fuel, or restroom breaks while en route. The issue I have there is if I go to a city, look at Atlanta. Does that mean if I'm in Atlanta, I can't go to ... If I'm in Fulton County, I can't drive into Gwinett? I can't go to DeKalb County? I can't go to any of these cities in those counties because that would be something that I have to pick up the phone and go, "Hey, we're about to go over a border. We're going to go grab dinner in a different county." So be very careful how onerous you make these requirements, because I'm telling you, it can open the door to a modification. The judge could just strip all of that out and say, "You know what? You have itinerary, and an address where they're going to be staying, and a phone number where the children can be reached. That's it. That's all you have to do."
Leh Meriwether: Yeah. I mean, I think, putting aside what's in the order, I think it's not unreasonable to say ... I think it's good parenting, co-parenting if you're going on vacation to share with the other parent, "Hey, just want to let you know, we plan on going on vacation to Destin this year, during this time, and we're going to drive there." I think that's good parenting, because if something happens to you en route, the other parents can step in and make sure the children are okay. So example would be a car accident. I use the Destin example, because I've been, not personally, but I've had a close friend who witnessed something like that. The car broke down on the side of the road, there was children there, the dad got out of the car, another car, drunk driver, came by at 65 miles an hour, and killed the dad.
Todd Orston: Oh my god.
Leh Meriwether: It was horrible, and my friends witnessed the ... Anyways, it was horrible. She witnessed the whole thing, she stayed there with the kids until the other parent could get there. Or the police could get there, I should say. But that's an example, things can happen. That's just good co-parenting. I don't consider that, like you said, I don't consider that onerous. But once you start getting into the sending pictures and stuff, that's just too much. I've seen judges go ... Again, like you said, Todd, great point on what was the context of this original reason for the order in there.
But I've seen judges go, "You know what? Forget this. The only way you're going to have to need written permission is if the kids are leaving the country. Because they're in another country, and now they're subject to those other laws that creates complications. But anywhere else in the states, we're not going to have any of this written permission stuff. Forget that." So you have to be very careful there. If you're going to use this provision to create onerous requirements, the court is just not going to like that. So I agree with you on that.
Todd Orston: Well, good. My job here is done.
Leh Meriwether: As far as the specific clause that's written in here, can that be revoked or conditional? There's nothing that says it can't be conditional, there's nothing that says it can be revoked. You just run the risk of the other parent going back to court, like you said, Todd, and saying, "You know what, Judge? Can we take this out? Because I couldn't go on vacation this year because my ex put all these onerous restrictions on me."
Todd Orston: Yeah, I mean, look, just because you can doesn't mean you should. Just because the terms, the existing terms allow for you to take a certain position, doesn't mean that you should take that position. If we lived in a world where there was no such thing as a modification, I would still say co-parent well. Be reasonable. But at the end of the day, if it says A, B, C happens, you can sort of demand compliance with A, B, C. But we don't live in that world. We live in a world where you can modify. So if you take unreasonable positions, you are begging for a modification. We handle hundreds if not thousands of them every year. So the bottom line is that you need to be very careful, because you don't want to land back in court, being stripped of some of your rights simply because you were taking unreasonable, for lack of a better way of putting it, positions.
Leh Meriwether: Yep. When we come back, we're going to continue break down, answer questions just like this to help you learn about family law.
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 one AM on Monday morning on WSB.
Leh Meriwether: If you're enjoying the show, we would love it if you could go write us an iTunes or wherever you may be listening to it, give us a five star rating and tell us while 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, Atlantadivorceteam.com. If you want to read a transcript of this show or go back and listen to it again, you can find us at Divorceteamradio.com.
All right. We're going to continue to break down some questions that we get from time to time. These questions, some of them are unique in nature. But it allows us to give, basically go through the background law underlying what our answer would be. Of course, we also lay out additional things that could change your answer. We're giving it based on Georgia law in 2021. So if you live in a different state and you're listening to this, you definitely want to check with local counsel. All right, Todd, let's get going.
Todd Orston: All right. You know, Chatty Kathy. It's embarrassing. Anyway, so next question, how about this? "In the event something happens to me, will my child's father get my son? We are unwed, and he has threatened that if something happens to me, he gets my son because he is the surviving parent, and my family will never see him again. Is there something I can do to make sure that doesn't happen in the case something happens to me?"
Leh Meriwether: Well, first off, the first question I want to ask is has he legitimated, again, we're in Georgia, has he legitimated your son? So in Georgia, a father has no legal rights regarding his children if the children are born out of wedlock until they, what's called legitimated, gotten a court order that says he is the legitimate legal father of these children. So if he's done that, then no, there is nothing that she can do. That's the law in Georgia. I don't know how legitimation would impact in other states. You definitely need to ask legal counsel in other states. They may not have that rule regarding legitimation when it comes to where a child goes at the death of one party.
Now, that doesn't mean that the grandparents can't bring an action for grandparent visitation rights. So that is something allowable under Georgia law. That would sort of ... It's not a right. I say grandparent visitation rights, it's not a right here in Georgia. The only right they have is to come to court to request permission from the court to see their children. Then if the court grants it, it becomes a court order. That would limit his ability to keep the children from the family. So then the grandparents could share the grandkids with the other family members.
Now, if he hasn't legitimated, then he has no legal rights. Now that doesn't mean that, let's say two years from now something happens to you, and you had put in your will that your parents or your sister and brother-in-law get your children, or your son, that doesn't mean at that point in time he doesn't bring a legitimation action to challenge your will, or the request you made in your will. But if he has not been involved with your son up to that point, the court can deny him the request. So legitimation is something that a parent must take, or a father, I should say, it can only be brought by a father, must take action on it promptly, or at least be contributing to child support and being involved in a child's life. But if he does not do that, there comes a point, and the court is the one who makes this decision, that he abandons his right to his children.
Todd Orston: But you're also assuming, because keep in mind, in this hypothetical, you're dead. So it's going to be hard, jokes aside, for you to make that argument to the court. We deal with legitimations all the time, where a non-active parent, an uninvolved parent, three years, five years, seven to 10 years later steps in and says, "I'm ready to be a parent." The court can shut that down and say, "You know what? No. The other party is objecting, you've been out of this child or children's lives for years. No, you don't get to just suddenly decide it's time to be a parent." The court can reject and deny the request to legitimate. But the other parent is basically saying, "I object." You're not there to object.
So at that point, having in your will what your interest is in terms of who would take on that responsibility is good as simply a statement to the court of this is what my wishes were. Even having some information as to why you don't think that uninvolved parent, other parent, should not be given this right, because if you're not there to make those arguments. Let's say grandparents are going to have to step in, they're going to need something. Something other than we just don't want this to happen, so that they can try to convince that in terms of establishing a guardianship and giving them some level of responsibility over that child.
The bottom line is you're going to need something more. But this is one of those situations where if I'm going to sum it all up, I'm going to say there is no foolproof way to prevent that parent from doing something to try and fight for custody. You can position yourself well, or as best as you can. But at the end of the day, if they want to fight for it, they're going to find an opportunity to stand in front of a judge and ask for the right to act as that primary parent.
Leh Meriwether: Yep. Okay. All right, next question. "What rights does my child's father have? We are unmarried, he is with his ex-wife. They have a child, and now another on the way. My son was born in between when they were divorced. He left, never helped or anything. But I let him see my son on weekends at my house and I filed for child support. He is upset I filed for child support, and is requesting that I let him take my son every other weekend. But I'm uncomfortable with that because I've never met his ex-wife, and his kids, and his family that my son will be around, and my child's father is disrespectful, manipulative. But I want my son to be able to know him, but safely. I told him this, and he's threatened to take me to court, and says I don't allow him to see him. My son is seven months old. What can he do, what can I do?"
Todd Orston: Why do I get all the tough ones? There is a lot to unpackage here, because right now, if a child, like you were saying before, if a child is born out of wedlock, then the father, right now, doesn't have any rights. But, it comes down to is he involved? Does he have contact? If he is making efforts to have contact, you have to be very careful about preventing that contact from happening, because if he then goes to court, files a petition to legitimate, and the evidence the court hears is that he made what the court believes may be reasonable efforts to try and establish some kind of a parenting schedule, and all he hit was roadblock after roadblock, the court could be upset with that.
It could impact not the legitimation, legitimation comes down to, for the most part with a seven month old, is there the biological connection? Once he establishes that, more than likely, the court is going to legitimate. It's only, again, as we were saying before, where somebody goes years and does nothing, and has no contact, and then says, "I'm ready to legitimate," that the court can say, "No, too late." Seven months old, that's not the case. So for the most part. But I get it. I understand your concern. You want to know who is in that house. You want to know who your child is going to be around. So I understand your concerns.
But I have also seen judges get critical where somebody says, "I'm scared." But then you look at the person, and it's like, "Scared of what? The person has a job, there is no issues that anybody knew about, drugs, alcohol, illegal behavior." So you have to, unfortunately, you have to balance your concern with how that might look if he takes you back to court and what impact that could have on parenting time rights, how much time will he get?
So I think you need to send nice communications, meaning email, in writing. Don't just call, don't talk to him in person and that's the only communication we're talking about. You need to send some emails where you're saying, "Hey, all I need to know is, could you just tell me, maybe we can even meet for coffee, I just want to know who your wife is. I just want to make sure our son is safe." Say it in a way that's not offensive, but it shows that you're just trying to understand. That way, if you have to take a hard position, you have some evidence to defend your position.
Leh Meriwether: Going back to that book, Crucial Conversations, is an excellent book on how to have a conversation like that, because you're setting ... The fact that he wants to be involved, that's a good thing. Your son is seven months old, so you're actually setting the nature of your co-parenting relationship for a long time to come. So it's really important to get that relationship off on the right foot. Perhaps one thing I might recommend before the end is that you reach out and try some co-parent counseling. That may help. When we get back, we'll wrap this question up.
I just wanted to let you know that if you ever wanted to listen to this show live, you can listen at one 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, and we are your co-hosts for Divorce Team Radio. The show is 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 to listen to it again, you can always find it at Divorceteamradio.com. Well, let's continue to go through these questions, Todd. I know when we left off I was adding a little bit to your answer because we always seem to compliment each other when we answer these questions.
So we were talking about rights that a father might have when it's a seven month old. You had mentioned that odds are the court would grant a legitimation. So you want to get your co-parenting off on the right food. Like said, co-parent counseling is a good option. The Crucial Conversations will give you a good example of how to broach that question with him without being offensive. Because you say ... You have the best of intentions when asking the question. But he can take it all the wrong way, like you said, Todd, and say, "Oh, you don't trust me. I care about our son. I'm willing to pay child support, and how dare you think that I wouldn't protect my son." That can, again, set your co-parenting relationship off on the wrong foot.
The book Crucial Conversations allows you, or gives you the tools necessary to sort of lay the foundation before you ask the questions. We should actually go back and do a show, Todd ... Go back. In the future do a show about how to lay that good foundation for a difficult conversation, you know? Because there are techniques to do that, so the person is on the same page when you're having a discussion, and you're not setting up to suddenly get to a knockdown, drag out argument. All right, well, I guess it's your turn to ask me a question.
Todd Orston: All right. So, next question is, "Are notarized documents binding in court?" Oh, you want me to read the rest of it? All right. I guess the answer there is it depends on what the document is. "I co-signed my husband's vehicle and we are getting a divorce. If I get him to sign an agreement that he will get the vehicle refinanced and he doesn't, will that agreement hold up in court?"
Leh Meriwether: Well, that depends. So, if you are doing a comprehensive settlement agreement, you would want to include that in there. Not just include language that he's going to refinance that agreement ... Here's the other thing. So if you say he's going to refinance it, and he doesn't, okay, what's the court going to do? Here is the thing, when you get a divorce, typically there is a settlement agreement attached to the final order. If you do not include language on what happens if that person doesn't do things, the court can't order him ... All they can do is say, "Sir, you said you were going to do this. You didn't you're in contempt of court. Where is your toothbrush, because you're going to jail." The court can do that.
But that still doesn't change the fact that the car hasn't been refinanced. A lot of times, a contempt action makes things worse, because now the person goes to jail, they lose their job, now they can't definitely can't refinance the car. So what's often better is writing it better. So you give the person six months, or three months, whatever that number is, to refinance the car, get it out of your name. If they don't do it within the time period prescribed, they have to place it on the market for sale so they can sell it and pay off the vehicle in full.
So that's critical that you have the, well what if he doesn't do it, built into the agreement. You have to have a time parameter in which he needs to do it. So there is a little more to this question than was in there. Now, let's say you entered into a settlement agreement on everything, and you're getting ready to court, and he's trying to back out of it. You or your attorney can file ... I mean you if you don't have an attorney. But if you have an attorney, they can file a motion to enforce. So you can enforce the settlement agreement, if all the terms of the agreement are clear, and it's comprehensive, and the court can incorporate your agreement into a final order of the court. Then that agreement becomes enforceable by contempt. Does that make sense, Todd?
Todd Orston: No, very little of what you say makes sense.
Leh Meriwether: I should never have asked that question.
Todd Orston: That was tee ball, that was too easy. It's just the opposite, everything made perfect sense. But I wanted to make sure that I'm very clear, this will not stop a bank from coming after you.
Leh Meriwether: Mm-hmm (affirmative).
Todd Orston: So if you co-signed, getting an order from the court, I don't care how good the terms are. It is absolutely his debt. That doesn't mean anything to the bank. They blow their nose with that document. They're like, "Okay, that's cute. But guess what? You owe us money." So they will come after you. Now usually there is something called indemnification language that you can turn around and you can ... Let's say you're being sued by a creditor, you can turn around and counter sue him, because it is his responsibility pursuant to that divorce order. But that bank will absolutely come after you for the money.
Leh Meriwether: It's going to impact your credit. The court cannot address that. So your motorized document doesn't help you there. So unless you build in some, I've never seen it before, but maybe you can craft some crazy language in your settlement agreement that gives you [inaudible 00:40:02] if your credit is impacted. But it's still going to impact your credit score. You still may have a judgements on your record even if you may have a counter judgment against him to pay the balance in full.
But at the end of the day, you have another sheet of paper that may not be worth anything, because if he doesn't have the money to apy it, you're on the hook. So you want to look at other avenues in which to get your names off of there. That's why I suggested if he doesn't do it within a prescribed time period he has to sell the car.
Todd Orston: Yeah. Very quickly, before we move on, this is why it is so important, a contract is only as good as the terms contained in that contract. So where so many people get into trouble, is that they decide to do things on their own, which is great. I'm actually not being critical of people wanting, or needing, or both, to do things on their own. But if you're not asking the right questions, then you don't know what language, what terms need to be added.
That's where the problems come in, where it's the sale or the refinancing of a house, same thing for a car, where there is so many nuances that if you don't think about it, the court, in the future, can only enforce the actual terms contained in the agreement. You may think, "Well, this is grossly unreasonable behavior and I think the court will agree." At that point, the court doesn't care what's reasonable and what's not. At that point, it is 100% enforcement of an order. If the language isn't in there, the court will say, "My hands are tied, you should have put some verbiage in there that deals with what you're talking about, but you didn't."
Leh Meriwether: Yep. All right, let's see if we can squeeze in one more question. "Can he kick me out? We have been living together for six years, married five. But he never filed the marriage licenses." I don't know why you'd have more than one. "Threatens to kick me out in front of my kids a few times a week. Can he legally make me leave? I pay all the bills in the house but the rent. Can he legally make me leave the house? If so, how long would I have?"
Todd Orston: Okay. Well, so really, we've seen this so many times. It's that balance between eviction law, landlord/tenent issues, and divorce. When you're married, all that ... Because I've had people come in, and they're married, and the spouse is like, "The house is in my name, I'm going to evict you." It's like, "Try. Go for it." It's not going to happen, because as a married couple, there are different property issues that come up, because you're married, that house, even though it's in his name, can still be deemed marital property. Which means any eviction court is going to be like, "Well, I'm not going to kick this person out and evict this person from a house that may belong to them." So there are differences there.
Here is a situation where you were never married. I'm not saying that eviction will be easy. But the bottom line is because you don't have the protections associated with marriage, then unfortunately you may find yourself in a more difficult position. But that's on the legal side. Practically speaking, you're not going to be able to fight for some of the equity because you were never married, if that's the case, then you don't have any marital interest in that property if it's not in your name and never was transferred into your name.
Leh Meriwether: Yeah, it sounds like they're renting, though. She's not paying rent.
Todd Orston: Right. So since this is a rental issue, then it also, practically speaking, begs the question why do you want to stay? At that point, if it's that unhealthy, and he's threatening to kick you out, I'll be honest with you, the advice I'd be giving, other than what I've already stated, is start looking around. Start figuring out what your exit strategy is going to be. Don't wait for the sheriff to show up with the doc.
Leh Meriwether: Unfortunately, we can't wait for the end of the show. Actually, we wish we could go longer. But unfortunately, we're out of time. Hey everyone, thanks so much for listening. Hope you learned something valuable from the show.