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206 - Debunking 21 Divorce Myths

206 - Debunking 21 Divorce Myths Image

07/21/2021 5:00 pm

After taking countless questions over the years, Leh and Todd identified several misconceptions, or myths, the people often have about divorce. So, they decided to tackle 21 divorce myths that they often hear from people considering a divorce. These myths include:


  1. In order to get divorced, both parties have to agree.

  2. If my spouse cheated, I win everything.

  3. If he falls behind on child support, then he does not get visitation with the kids.

  4. Moms always get custody.

  5. I have to have a lawyer to file a divorce.

  6. I can't get divorced here because I was married in another state.

  7. I need my marriage certificate to obtain a divorce. .

  8. I won't pay CS because the other parent earns more money.

  9. We can just agree to no child support.

  10. I can just get a divorce, but my spouse and I can work out the details regarding child support, custody, alimony, division of assets later.

  11. The children will decide who has primary custody.

  12. The children can decide if they want to visit with a parent.

  13. I can't get in trouble if I don't "assist" with the other parent's efforts to exercise parenting time.

  14. I earned it - it's mine.

  15. We always kept accounts separate, so what's in my name will stay mine.

  16. Lawsuit proceeds from my injury lawsuit are mine.

  17. The other party acted badly so the judge will likely forgive my child support arrearage.

  18. We have been married a long time, so I am guaranteed alimony.

  19. I will quit my job/close my company doors and show I have no income to pay support.

  20. I need to add all the bad behavior into the complaint.

  21. Equitable division means 50/50 division of assets.





Transcript

Leh Meriwether: Welcome everyone, I'm Leh Meriwether, and with me is Todd Orston. We are your co-hosts for Divorce Team Radio show sponsored by the divorce and family law firm of Meriwether & Tharp. Here you'll learn about divorce family law and from time to time, even tips on how to save your marriage. If it's in the middle of a crisis. If you want to read more about us, you can always check us out online in atlantadivorceteam.com. Tom, one of my favorite shows that I used to really enjoy watching, I don't think it's on anymore, was Mythbusters.

Todd Orston: I like that show. I thought you were gonna go with something like Care Bears, but all right. I guess I'll believe that one of your favorite shows is Mythbusters, that's fine. I was gonna say Huggy Bear but then that goes back to Starsky and Hutch. I did like that and Huggy Bear was pretty cool, but that's not what the show is about. That's not why you went down this path, is it?

Leh Meriwether: No. But the topic you came up with, made me think about the show.

Todd Orston: Okay. So, you want me to tell, alright, I'll bring it up and then I'll talk about it, that's fine. Now we are going to be doing a show on debunking divorce myths, and we're going to debunk 21 Divorce myths. And basically what we're talking about is misunderstandings, right? Things that many people, too many people, think is accurate as it relates to divorce and these types of legal matters, and it's just not accurate. What they believe and what is true are two completely different things. And so, I can tell you, we handle calls daily, and we're talking hundreds per month, and it becomes pretty interesting when we see the same question hitting us again and again and again and again. And so, again, this show is... I think that was the most times, again, the word was used in a row ever in radio. I'm not bragging. So the show, we're going to hit it from the angle of, hey, here are a lot of these nets that we get sort of presented with in the form of questions and really positions people are taking when they call. And we're gonna let you know what's accurate and what's not.

Leh Meriwether: Right, So let's get start because we have 21 to go through.

Todd Orston: All right, here, why don't you take...

Leh Meriwether: I don't know if we're going get...

Todd Orston: Now, I was gonna say take the first one?

Leh Meriwether: Alright, so both parties need to agree the divorce.

Todd Orston: Actually I think you need seven people to. It might be, I don't know, it might be Act of Congress, but I'm not. Anyway, the answer is no. No. Both parties do not need to agree to the divorce. I mean if that were the case, then there would be unfortunately a lot of situations where people do not and cannot get a divorce simply because the other party is not cooperating.

Leh Meriwether: What's interesting is, before no fault divorce, so going back to the '60s, because the no fault divorce came along in the '70s and '80s, that actually was true. And I'd heard about cases where the lawyer on the other side and for the person that didn't want to get a divorce. One, that the marriage wasn't over and the divorce was denied. So that actually used to be, in many respects, true. But not today.

Todd Orston: Not today.

Leh Meriwether: Not with all the states having a no fault divorce. It only takes one person to get the divorce. I will say it takes two people to make the process go along relatively easy and relatively inexpensively. It only takes one to screw the whole thing up and make it cost a fortune.

Todd Orston: Great point. Very good point, we've done shows on that and I'm not going to belabor that point because again we have 21 myths to get to and we are burning time so...

Leh Meriwether: Number two.

Todd Orston: So how about the next one. Number two. How about, "I have evidence. I have recordings that maybe some video, a sketch artist, all right, but I have evidence of adultery and therefore I win. Game over. I get everything. I win."

Leh Meriwether: That myth is busted as well. That is a myth. In fact, in some states adultery isn't even relevant. There are some states that the only issue, it's a complete no fault divorce, that's the only basis for being able to grant a divorce or that's on the books. And adultery is irrelevant, as crazy as that sounds. Now here in Georgia, it is an issue, it's still on the books, and it can have an impact on your divorce. It can be a bar to alimony, it can impact equal division. But even in the worst case scenarios, when I say worst case, I saw a case where the gentleman had an entire separate family in another state, it was still an 80/20 split, he still got 20% of the estate. She got 80%. But it's not an automatic way win.

Todd Orston: Right. And my joke before, obviously I'm not making light of this. I mean, a lot of people are hurt by this kind of behavior, and the courts do take it seriously. No, let me say it a little differently. The expectation too many people have when they call is exactly what I said, which is, "I have the evidence and therefore clearly, things are all going to go my way at every level and on every aspect of the case." And unfortunately it doesn't play out that way. And another way to think of it is, you have to understand that judges hear cases daily. They hear thousands, not hundreds, thousands of different cases. Adultery is unfortunately a bigger problem than some people even believe, and I think they get a little numb to it. And I've seen judges say something along the lines of, "Listen, I get it, there was adultery, and you know what I'm going to do? I'm going to grant a divorce, I understand you don't want to be married anymore, that's what I'm going to do as it relates to the adultery. But now let's put that aside and deal with other issues in the court."

Leh Meriwether: Again, we're trying not to make light of someone's pain, because for many people, adultery is extremely painful. But what we don't want is to not inform you, and as a result, you spend a lot of time and money trying to get, for lack of a better term, some form of revenge in court and it never comes to pass. And then there's no emotional relief from the courts as a result of this and it can leave you better long after the divorce is granted. So we don't want you to go through that. You've already gone through enough pain associated with the adultery, you don't need that pain to be extended further. Now, that doesn't mean, don't ask about it, because there's, like we said, Georgia, it can have an impact on certain aspects of the divorce, we won't go into. We've had a whole show about its impact, we won't go into those, go listen that show I wish I could remember that number but I can't. But we had a whole show about the adultery's impact on the divorce. But we don't want your pain to extend beyond the divorce. So talk to a lawyer about it but just understand that doesn't mean it's an automatic win. All right, number three. "Well if I'm not receiving child support, then that means no visitation right Todd?"

Todd Orston: No. I'm sorry, my bad. Yeah, absolutely not. All right, there are people who call and they will say something along those lines where they feel it is absolutely appropriate. "I haven't received child support in a month, six months [inaudible 00:08:42] six years. And yeah, I just don't I don't send my, my kids over there anymore. I don't allow him to pick up the kids." It falls into that category of two wrongs don't make a right. And I know it sounds crazy, right? I mean, you need that financial assistance, I'm not taking away from that need. But as quickly as the other party can get in trouble be held in contempt for failure to pay child support, you could get in trouble for failing to allow the other party to exercise parenting time. And you know what, the trouble you get into who could be far worse than what happens in terms of sanctions by the court to the other party. Maybe the other party who failed to pay child support, but more than likely, the arrearage will be dealt with by the court saying, "You will pay this according to this kind of a schedule, make monthly payments, lump sum payments, whatever."

But if you have interfered with parenting time, you could actually lose custody. If the court feels it's egregious enough the court could sanction you by saying, "I know the other side's not been a good co-parent, has not paid all the support. But you know what? You withholding that parenting time, I'm taking the kids and giving them to the other party."

Leh Meriwether: Now the odds of that happening I think are very slim if that other person hasn't been paying, but I mean it is in the realm of possibility. So legally speaking the obligations of parenting time and child support do not coincide with each other, they're what's called independent obligations. So you cannot tie them together, that's the law, at least here in Georgia that is the law. When we come back we're going to continue to debunk many divorce myths.

Todd Orston: I just wanted to let you know that if you ever want 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.

Leh Meriwether: Better than counting sheep I guess right?

Todd Orston: That's right.

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

Todd Orston: There you go.

Leh Meriwether: I'll talk very softly.

Welcome back everyone, this is Leh and Todd and we are your co-host for Divorce Team Radio, a show sponsored by the divorce and family law firm of Meriwether & Tharp. If you want to read more about us, you can always check us out online at atlantadivorceteam.com. And if you want to read a transcript of this show or go back and listen to it again, you can always find it at divorceteamradio.com. So if you like Mythbusters, when it was on the air, then you'll enjoy this show because this show we are debunking the myths associated with divorce. Myths that, we get these questions, these common questions all the time. Sometimes the myths started in a realm, they had a valid basis maybe 50 years ago but not today. So we're breaking them down.

The last one was, if there is no child support paid, then the other parent does not have to allow visitation. That is not true. And I wanted to add one more thing to that before we hit the next myths. Part of the reasoning for that is that you're punishing the children for the other parent not paying child support. Yes it is hurtful, it's difficult to make ends meet when the other parent doesn't pay child support. But at the end of the day, the children still need to see both parents. So if you have an actively involved parent on the other end, maybe they hit some financial difficulty, that's not a basis to deny visitation. Because the child support has been paid and in effect, it hurts the children and that's why the courts, legally speaking, they're independent obligations and the courts do not tie them together. Okay, next myth.

Todd Orston: Next myth. Alright, so this one we get all the time. "I'm a dad and I know custody is gonna be an issue but moms always get custody.

Leh Meriwether: This is one that was, in many respects, was rooted in a situation years ago. There used to be the standard, it was called, oh gosh I'm blanking on the standard was so long ago. Basically there was in the law in Georgia and many other states that up to a certain point, it was presumed that it was in the best interest of children to be with their mother. So that this myth wasn't a myth back in the '80s and '90s. Today, that's not true so it isn't a myth today. And there are many states that there's a presumption of that it's in the best interest for the children to spend equal time with both parents. But here in Georgia, it's the best interest standard, as in most states, and so the courts look at a number of factors, even in the States with joint physical custody is the standard starting point, the courts still can look at that and to make sure, is our standard starting point in the best interest of the children? If not, then which parents should be the primary physical custodian. So of course looking at each case on a case by case basis because every situation is a little bit different.

Todd Orston: Yeah. And look, are there many situations where the mom might be awarded custody? Absolutely. And these types of custody cases, especially when we represent men, which we do all the time, there are just different arguments that need to be made, different ways to approach this problem. But oftentimes, when you're looking at, oh wow, all these women are getting awarded custody, you have to understand it's not simply because it's the mom, you have to jump into each of those cases and you'll see. There may be some judges who have certain beliefs, assumptions, whatever, about custody and which parent maybe would be the best fit to be the primary custodial parent. But oftentimes it's not about that, it's just about the fact that the mom in that situation, that particular case, has historically taken care of all of the children's needs. And this is just a reflection of the judge hearing that evidence, and saying, "Okay, Well, that's the way it's been, that's the way it's going continue to be. Alright? But we fight for and we get custody for fathers all the time. It's a case by case analysis, like you said.

Leh Meriwether: And there's been plenty of cases where dad got custody, there's been plenty of cases where it's in Georgia now more accepted that the joint physical custody. There was a time where it wasn't. But that's becoming more and more accepted these days. There's so many states besides Florida I know has liens joint physical custody. Okay. I think California does too, but obviously you got to talk to the lawyer in the state you live to find out what is the law and what is sort of the standard in the county in which you live. Okay next one.

Todd Orston: Not reading it.

Leh Meriwether: Your turn?

Todd Orston: I can read another one right, that's not really fair but whatever. No, I'm kidding. Alright, I'll read the next one. How about this? "I need to file for divorce. I have to have a lawyer to file.

Leh Meriwether: That is a myth, that is not true, you can file on your own. In fact, many courts have forms, packages, for, it's called pro se, you're representing yourself, for yourself, pro se, it's Latin. They have packages for pro se litigants to file for divorce themselves. And one thing to remember that here though, it is usually better to file with an attorney, it is very, very, very helpful to have a lawyer walk you through the process but it is not necessary, it is not absolutely necessary.

Todd Orston: Yeah, and in your jurisdiction, like for instance here in Georgia, we Meriwether & Tharp, we actually provide certain services, consultation services, to people who are wanting to handle things on their own, but they recognize that they have questions, questions about the forms, questions about the process, questions where to file, how to file, what it's going to cost, how I'm going to get that final divorce decree from the judge? And so just think of it also, not in terms of a black or white, it's this way or that way kind of thing. There is a gray area. You can look to attorneys in your jurisdiction, you just may have to look around.

But for instance, we can do a consultation with you where you'll sit with an attorney who will educate you as to the process so that when you're doing things, you're not starting from scratch, you've actually got notes you have some direction and instructions on what needs to be done.

Leh Meriwether: All right, number six oh my gosh rarely and number six, I can't get divorced here because I was married in another state.

Todd Orston: All right, the answer to that is no. The jurisdiction, and we could do five shows on jurisdiction, but jurisdiction, meaning the proper place where a case should be filed has nothing to do with where you were married. And so it's going to be based on where you currently live, and certain states or all states have different residency requirements. So if you were married in Louisiana and moved to Georgia, the courts then going to be looking at okay well, when did you move? Did you move yesterday? Well, you're not a resident of Georgia yet, you can't file a divorce here until you've lived here for six months.

So you're going to have to look at the jurisdictional law of the state in which you're living or usually a divorce is going to be filed where the defendant resides. And it makes sense because you can't just run off to Alaska, and then say, "Oh, everything's going to be handled here." There are situations where maybe it's proper. But the bottom line is you have to look at the law of this specific state where you're currently residing.

Leh Meriwether: And every state has what's called a residency requirement. In Georgia it's six months, so you have to be living here for, as a resident for at least six months in order for Georgia take jurisdiction. And there's still exceptions to that so we were talking very broadly here because, like you said Todd, you could spend six shows or three shows, whatever that number was, on jurisdiction.

Todd Orston: I thought you were trying to one up me ,I said five but fine six shows. Many shows, how about that?

Leh Meriwether: Many show. There's continuing legal education from lawyers that are eight hours long just talking about jurisdiction. So it can get quite complicated, but that's still a myth to say that you moved someplace but you don't have to... Where you got married is not relevant for the divorce purposes. What's relevant is where have you been residing? In Georgia, it has to be at least six months. All right.

Todd Orston: Let's try and get one more in. I'll read this one. "Do I need my marriage certificate to obtain a divorce?"

Leh Meriwether: No. So, and most of the time people, all you need to do is swear under oath in your complaint that you were legally married and when you were legally married and that's it. And rarely have I ever seen someone contest the fact that they were married. It happens. I'm not sure I've ever had it happen, I've heard it happening in other cases. And then at that point you might need your marriage certificate to prove it, or at least, you may need your tax returns, if you filed your tax returns as being married that's evidence that you were married because you were holding yourselves out as married so. But short answer is no, you do not need to have a marriage certificate to obtain a divorce.

Todd Orston: Yeah, I've only seen it also in a few rare instances. And I'm not even saying that the efforts of the party trying to say there is no marriage were successful, but I understand what they were trying to accomplish because by basically saying there's no marriage, all of the rights relating to a divorce, it's out the window so any property rights, things like that. So I understand strategically the benefit.

Leh Meriwether: Yep. When we come back, we'll continue to bust the divorce myth.

Todd Orston: I just wanted to let you know that if you ever want 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.

Leh Meriwether: Better than counting sheep I guess right?

Todd Orston: That's right.

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

Todd Orston: There you go.

Leh Meriwether: I'll talk very softly.

Welcome back everyone, this is Leh and Todd and we are your co-host for Divorce Team Radio, a show sponsored by the divorce and family law firm of Meriwether & Tharp. If you want to read more about us, you can always check us out online at atlantadivorceteam.com. And if you want to read a transcript of this show or go back and listen to it again, you can always find it at divorceteamradio.com or wherever you get your podcasts. And we are pretty much everywhere that I know of. Everywhere from iTunes to Google Play Store to Spotify, Stitcher. Those are the top ones. All right, I'm still waiting for my $10 million contract for Spotify though.

Todd Orston: Keep waiting. Anyway. Yeah, you getting that, I'm gonna debunk that myth right now. All right.

Leh Meriwether: All right, next myth, "I don't have to pay child support because the other parent makes more money."

Todd Orston: No. That is not the way it works, all right? And so basically, child support is calculated different ways in different jurisdictions in different states. So first off, I will say something we say all the time which is, contact an attorney in your jurisdiction, if you're not in Georgia, because you're gonna want to understand exactly what the method of calculation of child support is in that state. Now, here in Georgia, as an example, it's an income share model. The court will look at and the calculation is done by considering the gross income of both parties. And I will tell you this, just because one party makes more doesn't mean that the noncustodial parent doesn't pay. Now, are there situations where a non custodial parent actually receives child support? Yes.

If somebody is uber wealthy, makes ridiculous amounts of income, it is possible that they may be ordered to pay child support because the child support is to help that noncustodial parent provide a life, for the kids that is similar to the one that they have experienced and are experiencing at the other parents home. But absent that big difference in incomes, if it's just more, than I can tell you right now that the non custodial parent is still going to have that obligation to pay. It'll be less, like here with that income share model, that will change the amount that they have to pay because it's a sliding scale if you will, so they may pay less, but they still have to pay.

Leh Meriwether: So in Georgia, just as a quick example, if one party makes only makes like 10,000 and the other party makes 90,000, you combine those together that equals $100,000 combined. So the one parent only makes 10,000, that's 10% of the total 100,000 and then there's a a schedule and you look at that and so at $100,000 combined income, the child support obligation would be like, $1,000 a month that's not what it is I'm just throwing it out there for my math. And so the other parent obligation will be 10% of that $1,000 or $100. So that's how it works. Okay.

Todd Orston: How about this one a follow up to that one. All right. We can agree to no child support.

Leh Meriwether: I would have to say that is busted as well. Well, at the end of the day, the court has to approve that because the court is there to protect the children. So there are situations where parties will agree there's no child support and I've seen the judge say, Thank you for your agreement, I reject it, there will be child support in this case. So do you say partially busted?

Todd Orston: Yeah. I mean, you're the fan of the show so I would say yes, it is partially busted because there are situations and Georgia law even has in the calculation, sort of methodology, the ability to deviate from what Georgia law requires, meaning, if somebody runs the numbers has a $600 child support payment you can deviate and back that down to zero but you have to show legal justification. There are specific circumstances where it would be justified. For instance, if there's a shared custody arrangement, then you might be able to say that one party paying to the other, it's just not reasonable and they're spending equal amounts of time. Or how about a travel, there's something here called a travel deviation. If you live in different states and in order for me to exercise parenting time I have to fly to that other state, get a place to stay, I'm incurring all of these costs, then the court might say, "Okay, the 600 You were supposed to pay. I agree, don't pay anything because you're spending well more than $600 just to exercise your parenting time."

Leh Meriwether: Right, so to say that you can agree to no child support, it's partially true, but at the end partially false because at the end of the day, the court can reject that agreement and order a child support based on what the court thinks is appropriate. So, partially busted. Alright, next one, "I can get a divorce, but my spouse and I will work out the details regarding child support, custody, alimony, equal division later, because I need to get remarried. I'm flying to Hawaii to get married in a month. So can't the court just grant my divorce so I can get remarried?"

Todd Orston: Well, I hope your spouse is invited to the wedding because there's going to be some issues. You are still married. And because I will tell you that is also debunked. Now, there are some jurisdictions where the court will grant a divorce and the underlying issues in that divorce haven't been resolved. Georgia is not one of them. Georgia, if you want to divorce, everything needs to be resolved. Alright so any child support issues custody issues, if you go to a judge and you're like, "Listen, just give us the divorce, we'll figure everything out later," what the judge hears is, "I'm going to be seeing you guys in another year two, three, whatever it might be because you're not just going to resolve this. Alright, so get it all done now otherwise I'm not going to sign off on a divorce." That's how it's handled here. Again, I have heard of other jurisdictions where people get the divorce, and for years they are fighting about those other issues that they said they would resolve, but again, not here in Georgia.

Leh Meriwether: Yeah, it doesn't make any sense to me at all. I scratch my head when I get those orders. All right. And I've seen somewhere that divorce was granted and child custody was granted, but everything else was sort of, or the equal division was granted but like, child support and alimony was it was just... In Georgia, that myth is busted, everything has to be decided before court will grant a divorce. All right.

Todd Orston: How about this one. Let's talk about about kids. How about this one, the kids, the children are going to decide who has primary custody.

Leh Meriwether: Well, that's busted. The kids do not decide who's going to be the primary physical custodian. Now, in Georgia, there is what's called an affidavit of election, so a child 14 years of age and older can elect to say to the court, "I would like to have my mom or my dad be the primary physical custodian of me," that's all they can do. They can't say, "These are the times I want to see my parents," they can't say any of those things. All they can do is elect who they want to spend the primary time with, which parent is going to be their primary physical custodian. And even then, a court can reject that election.

Now, it's very difficult to overcome an election but the court has the authority to reject that. So, at the end of the day, I would say the way we phrase this myth it's busted, but there is an element of truth to it, it's just not as clear cut as the statement says.

Todd Orston: Okay, I agree. There are ways where children's opinions can be considered by the court. And the way I oftentimes put it with people is, I will say in Georgia, the earliest ages at 11. But, at 11, the weight of that election and the opinion of the child has on the court's decision is less than at 12 and at 13, at, 14,15, 16, 17. The older the child gets, the more weight that that election will carry, all right? Now, you already touched on this, but, how about this one, before we end, what about the children don't want to visit so they can decide if and when they visit with the other parent.

Leh Meriwether: That is busted for sure. Now the children's input can be given and in a hotly contested case where perhaps there's some abuse involved, and they can express a concern about visiting that parents because of that and the evidence that is presented to the court can impact the visitation schedule. But if you have an existing visitation schedule and the kids just say, Yeah, I don't feel like seeing mom today or I don't feel like seeing dad today," they cannot make that decision, it is the other parents right to see, especially if there's a court order, a right to see the children. And interfering, encouraging that for the children can get you in hot water. I even saw one time a woman who would not basically force the child even though the child was older to get in the car with dad and the judge threw her in jail on Christmas Eve, for not enforcing the court order. So, it is not something you messed around with. When we come back we're going to finish off the 21 myths that we have seen in divorce cases and what people bring up. We're going to finish debunking these myths.

Todd Orston: I just wanted to let you know that if you ever want 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.

Leh Meriwether: Better than counting sheep I guess right?

Todd Orston: That's right.

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

Todd Orston: There you go.

Leh Meriwether: I'll talk very softly.

Welcome back everyone, this is Leh and Todd and we are your co-host for Divorce Team Radio, a show sponsored by the divorce and family law firm of Meriwether & Tharp. If you want to read more about us, you can always check us out online at atlantadivorceteam.com. And if you want to read a transcript of this show or go back and listen to it again, you can always find it at divorceteamradio.com Okay, today we are debunking divorce myths. Yep,

Todd Orston: And Leh, as you so often do, you jumped ahead. All right. So we've already dealt with number 13 also. Before we were talking about, can children decide if they want to visit. And then the 13 is, "I can't get in trouble if I don't assist with the other parents efforts to exercise parenting time," and you already said that's wrong. And I also have seen situations, I saw a situation where, in that case, the mother, every time there was a pickup drop off, so when the father would come to the house to pick up, the mom would leave the house, and the kids were "instructed" Just don't go to the door. So the father would get to the door, nobody would answer, and mom would use the defense or try to use the defense of, "What am I supposed to do" I was out." Yeah, you're always out. All right, and there seems to be a strategy at play. All right, let's go on to the next one. So how about this, let's talk about property now. "I earned it so it's mine."

Leh Meriwether: I need the sound a bit big metal thing coming out and going, "Busted." Yeah, that is not the rule here in Georgia. Anything earned as a result of marital efforts or efforts during the course of the marriage is marital property regardless of whom it is titled in. So it is, just because you've earned it, and I've seen this both cases, I've seen the wife be the primary breadwinner who made a fortune, built up a giant 401k, and the dad was a stay at home dad but maybe he wasn't the best stay at home dad and maybe he spent more money than he should have and. But at the end of the day, that doesn't matter. It is all subject to equitable division regardless of who earned it and who saved that who did a better job.

Todd Orston: I agree. Next one.

Leh Meriwether: All right, next one. All right, we always keep our accounts separate so what's in my name will stay mine right?

Todd Orston: Wrong. Another big Gong going off. And this goes back to what you were just talking about. Title means nothing. It doesn't matter if you buy a house, put it only in one party's name, it doesn't matter. If you have a bank account it's only one party's name, it doesn't matter. If historically, you've even had conversations, meaning your strategy from the moment you married was that, "What is mine, and I'm going to keep everything I earn in an account in my name, you do the same over there, and never the twain shall meet." Unfortunately, under Georgia law, doesn't matter. Everything you earn during the marriage is marital.

If your intention is to make sure that what you earn and keep an account in your name stays yours in the event of a divorce, and the other side also, that's what a prenup or a post nuptial agreement is about. That is basically creating the ability to sort of say, "Whatever Georgia law might require or allow, we're going to ignore that. We want these accounts to be separate property in the event of a divorce." But again, it takes that extra work, just saying it's mine, it doesn't make it so.

Leh Meriwether: Right. I was going to mention, there's two exceptions to this really are, one is, if you had a prenup then yeah, if you had that kind of language in there, then that would be the situation. Or if you had separate property. So if you came into the marriage with a home and titled at home, he never put it into joint names, then the title actually means something but we're focusing on things that were earned during the course of the marriage and that's when title doesn't mean anything. Or if you use marital funds and pay down the mortgage on a property that was titled in your name, there's still now and there was an equity interest in that property, even though it was titled in your name and a separate property so. All right let's keep going.

Todd Orston: Alright so as is too often the case, we're running out of time. So very quickly, how about this. "Lawsuit proceeds from my injury lawsuit are mine."

Leh Meriwether: Partially busted. There are elements in many personal injury lawsuits that are considered joint property. So pain and suffering, yep, that's your separate property, but lost wages or medical bills. If there was money spent towards medical bills, and it came as a result of insurance that was paid for through the course of the marriage, or let's say you lost your job and so part of the compensation was lost wages, those two things are marital. So, if you receive compensation for that, that is a marital component. The pain and suffering part, the personal injury settlement is your separate property.

Todd Orston: Yeah, and there's also what's called a co-mingling, I'm going to call it a co-mingling dilemma, you have to be very careful. You may have gotten an award and 100% of that was for pain and suffering, but you put that into a joint account and start mixing in other marital dollars and you can destroy the separate nature of that award. So you have to be very, very careful. Alright next one.

Leh Meriwether: Child support arrearages. Well if the other has been acting really badly, that means the judge can forgive my child support arrearage right?

Todd Orston: Nope. That's not the way it works. Actually, just again spoke to somebody today, where they were like, "Look, I'm," in that situation, it was even, "I've had my child with me for months. So during this period of time I wasn't paying I had my child with me." The problem is that unfortunately, until you change the order requiring you to pay child support, you are obligated. And the court cannot forgive that obligation, cannot erase that arrearage. So, if you're in a situation where you think you shouldn't be paying child support, and you think you have legal grounds that would terminate or modify the child support obligation, Don't just sit back and say, "Well, that's good enough. I believe it so it's good enough." Do something. Do something on your own, hire an attorney, file a modification action, do something so that you can change the existing order that's the only way you can get away from that obligation.

Otherwise, and here's the big problem, not only do you owe the child support, but interest is accruing on that child support. I have seen people years and years later, they thought they were in the clear, and all of a sudden they get hit with a contempt action, and a $10,000 child support amount is now $25,000 or more because interest accrued.

Leh Meriwether: Right, and speaking of child support real quick on the personal injury settlement, the court can consider that personal injury settlement as a form of income when calculating child support to. So maybe not the whole thing, there's a formula. Anyways, I just want to throw that out there just because you got this settlement and it's separate property from the standpoint of equitable vision doesn't mean you may have to pay some child support as a result of it.

Todd Orston: Quickly, alimony. So next one, alimony, "We've been married a long time so I'm guaranteed alimony."

Leh Meriwether: That is busted, there is no guarantee of alimony, alimony has many factors involved and there is no guarantee for alimony particularly here in Georgia. So that's the easiest one.

Todd Orston: Yeah, it's need versus ability to pay. You have to show a need. If you have more than enough money, you're walking with a bunch of assets, your incomes are the same, it doesn't matter if you're married, one year, 10 years, 100 years, unfortunately, you may not be getting alimony. All right next one.

Leh Meriwether: All right, I will quit my job close my company doors and show I have no income so I don't have to pay child support.

Todd Orston: Nopers. All right, the court could do something called imputation of income, the court can hear those types of facts, and sometimes I joke with people and I'll be like, "Look, it's the example of the doctor who gives up his practice and goes into court and says, "Judge. Yes, I was a doctor making half a million but I wanted to dance, jazz hands and I love to dance," and the judge looks at them and says, "That's fine, but you better make a half million dancing."" So, understand that the court can impute income. All right, how about this one. "I need to add all bad behavior into the complaint."

Leh Meriwether: Nope, busted. You don't have to do that. In fact, we try to avoid including all the bad behavior and the complaint because it helps encourage a settlement. So, there may be a time where you have to amend your complaint and include those things but I would talk to a lawyer about that but that is not necessarily true, especially here in Georgia and in states where it doesn't matter, you don't want to put it in there, because it's irrelevant.

Todd Orston: All right, 21, it me.

Leh Meriwether: Equitable division means 50/50 right?

Todd Orston: No. Equitable division does not mean 50/50. In Georgia, and where states that adopt the equitable division method, equitable means what is fair and reasonable under the specific circumstances of your particular case. And so 50/50 could be fair and equitable, but 70/30 could be, 60/40, something different than 50/50. So no, that's debunked. In equitable division states that adopts that method, equitable does not necessarily mean equal it oftentimes does, but it doesn't have to.

Leh Meriwether: Wow, we got through it, amazing. 21 Myths Busted or at least partially busted, hairy one. Thanks so much for listening.