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Episode 66 - 5 Things That Can Block, Stop or Reduce an Alimony Obligation

Episode 66 - 5 Things That Can Block, Stop or Reduce an Alimony Obligation Image

11/20/2018 9:13 am

As a general rule, there are five things that can block, stop, or reduce an alimony obligation in Georgia. In this show, Leh and Todd break down what those things are and how they impact a case here in Georgia. They also discuss how one might take action on them if they are paying an alimony obligation that they feel is unjust.

Transcript

Leh Meriwether:              Welcome, everyone. I'm Leh Meriwether, and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp, and you're listening to The New Cooking Show with Todd Orston.

Todd Orston:                     Ramen noodles, all the time.

Leh Meriwether:              We're going to talk about recipes that you can use to help with your legal matter. No, I'm just kidding. I had to mix it up a little.

Todd Orston:                     You had me excited there for a second. I'm like, "This is going to be one heck of a show." I may not fall asleep during this one.

Leh Meriwether:              Well, we're just kidding, everyone. What you're really listening to is Meriwether & Tharp Radio on the new Talk 106.7. Here you're going to learn about divorce, family law, tips on how to save your marriage if it's in the middle of a crisis, and from time to time, even tips on how to take your marriage to the next level. If you want to learn more about us, you can always call or visit us online at AtlantaDivorceTeam.com, and if you couldn't have told by my joke, we try to take a little bit lighthearted approach, just to keep it interesting. But we do take family law very, very seriously, and today we're going to talk about the five things that can block, stop, or reduce an alimony obligation.

Todd Orston:                     We need sound effects.

Leh Meriwether:              We do need sound effects.

Todd Orston:                     All right.

Leh Meriwether:              All right. Let's start with blocking alimony.

Todd Orston:                     All right. So what do you mean by blocking alimony?

Leh Meriwether:              What I mean is, is there a way, is there something, we're talking about Georgia right now, that would prevent an award of alimony, and there's, in Georgia, and some states don't have this, but Georgia does, that adultery, if the cause of the divorce was adultery, that is a bar to alimony.

Todd Orston:                     Yeah, so that's what we mean by block. It's not a factor that the court will consider in determining whether or not the court wants to issue an award of alimony, it is that even if the court, in all other respects, loves you as a witness and loves you as a party and thinks that you are great and fantastic, if it is proven you had an affair and that that affair, that that adultery, resulted in the breakup of the marriage, the court is then barred from issuing an award of alimony, so is therefore blocked from issuing that award.

Leh Meriwether:              Yup, and it's my understanding that in order for it to count as adultery, it has to involve sexual intercourse, so there's no, what do you call, emotional affairs. That does not block an award. It has to be actual sexual intercourse with someone that is not your spouse.

Todd Orston:                     Yeah, and we have people come all the time, and sometimes ... Let me say it this way, an emotional relationship can be as destructive to your marriage as a sexual one, so I'm not downplaying the seriousness of that kind of an extramarital relationship-

Leh Meriwether:              Good point.

Todd Orston:                     ... but I will say that unfortunately, in the eyes of the court and pursuant to Georgia law, that unfortunately is not going to trigger this block. It's not going to trigger the absolute bar, and a court can still issue an order that includes alimony, despite the fact that the party has been engaged in that relationship, but keep in mind, there's the absolute bar, the block, but if, let's say somebody is engaged in a long-term emotional relationship and then decides to end the marriage, or the other spouse finds out about it and ends the marriage, remember that adultery, just because it's not a bar, the court can still consider that to be an inappropriate relationship and then can say, "Well, it's within the court's discretion whether or not to issue an award of alimony, and I'm not going to."

Leh Meriwether:              Right.

Todd Orston:                     But it's just not a guaranteed block.

Leh Meriwether:              Yes.

Todd Orston:                     And I will say this. I have to jump up on my soapbox for just a moment. I know you knew this-

Leh Meriwether:              It's a good thing you have a radio show.

Todd Orston:                     Absolutely, I have the platform. So I actually am bothered by this rule, and I've said this before, and the reason I'm bothered is because I believe that there is, while it may be gender neutral, I think there is a disproportionate impact on women. Women for the most part are going to be, I mean statistically, I don't have the actual number, but statistically, it is mostly women who are going to be recipients of alimony, so if a woman has an adulterous affair and the other party can prove it, it can block them from having or receiving any alimony. If, in that same relationship, a man has an adulterous affair, because we've gone into this also before in previous shows, it is rehabilitative in nature and it cannot be punitive, there is no corresponding punishment to a man, so a man can have an affair-

Leh Meriwether:              When it comes to the alimony.

Todd Orston:                     When it comes to alimony. We talked about this off air, and you're right, it can impact something like division of property.

Leh Meriwether:              Right.

Todd Orston:                     Okay, but as it relates solely to alimony, there is an absolute punishment to a woman who has an affair, and there is no, as it relates only to alimony, a corresponding punishment to a man in that same relationship who has an affair, and that bothers me.

Leh Meriwether:              I will say that the statute itself is gender neutral, so it doesn't say if the wife has an affair or a husband has an affair, so what we're talking about is how it's impacting what's actually going on, but I will say that we now see more cases of men asking for alimony. We see a lot more stay-at-home dads-

Todd Orston:                     Absolutely.

Leh Meriwether:              ... and the impact is just as harsh on them.

Todd Orston:                     It is, and my point is merely the disproportionate impact because of statistics.

Leh Meriwether:              But you know what we've seen, what I think I've seen though, is I've seen some judges, sort of when you have that situation where someone may have made a mistake or anything, and maybe the reason they made the mistake is something that the husband was doing, I've seen the court say, "Well, I don't think the cause of this divorce was the adulterous affair, I think it was that it was something-

Todd Orston:                     Cruel treatment.

Leh Meriwether:              ... by the husband, which led to the affair," so we've seen, I had a case where my client, the opposing party, the case starts off with the opposing party handing me a picture of my client in bed naked with another man. I did not need to see my client naked, but I guess they thought it was funny, but anyways, so they had clear evidence of adultery, but by the time we finished the trial, the court found that that wasn't the cause of the divorce, and she still got alimony.

Todd Orston:                     Well, and that's the big thing there, it's you have to show that it's the cause of the breakup, and if there is a horrible relationship and for six months, a year, two years, three years, we've seen five, six, seven years, where the parties are not having marital relations, where it's clearly a broken down marriage, maybe they were staying together for the sake of the children, we're going to wait for the kids to graduate from high school and then we'll get a divorce, and then all of a sudden one party comes in and says, "She had a an affair," or "He had an affair," and therefore no alimony, and the court can easily go, "Now, hold on one second. It sounds like you were only together and you had really moved on with your lives-"

Leh Meriwether:              Yeah, you really separated-

Todd Orston:                     Yeah, years earlier, so therefore, you cannot show that it was the cause of the breakup.

Leh Meriwether:              That's a good point, because the court will look at what was the point where the court really thinks the parties separated, so there's no such thing as legal separation in Georgia, but the court will say, "When were these parties really living in a bona fide state of separation?" So if the adulterous event occurs after the point of separation, then that was not the cause of the divorce.

Todd Orston:                     That's right.

Leh Meriwether:              And on that point, too, we should probably point out that if, we'll stick with that gender situation, if the husband finds about the divorce and then subsequently has sex with his wife-

Todd Orston:                     Not the divorce, the adultery.

Leh Meriwether:              I mean the adultery.

Todd Orston:                     Yeah, yeah, sure.

Leh Meriwether:              Thanks for clearing that up. Well, he has now forgiven for his wife-

Todd Orston:                     It's called condonation.

Leh Meriwether:              Right.

Todd Orston:                     And so you have in the eyes of the court and in the eyes of the law, you have now condoned that improper behavior, so most of the time, if not all the time, what attorneys will do is they will tell their clients that if you're going through a divorce, and especially if there's this issue of adultery, "Okay, just be aware that if it's not a true effort to reconcile, then you need to stay away from sexual relations with your wife, because if you engage, then it can basically destroy any argument that you have that the affair caused the breakup, because you've forgiven."

Leh Meriwether:              Yup, and so you have now, that block no longer exists.

Todd Orston:                     That's right.

Leh Meriwether:              All right, well before we get into the other ways that you can stop or reduce an alimony obligation, I probably should just spend a minute talking about the different types of alimony here in Georgia. I know with the change in the tax law it doesn't have the same impact except, there used to be a tax impact, so you used to have lump sump alimony and periodic alimony, and lump sum was, it was a fixed amount over a period of time or just simply a fixed amount. It is non-modifiable and it was non-taxable, and then periodic was something that you could come back and later modify, and it was often over a period of time with monthly payments and everything, and that used to be or starting in 2019, up until 2019, it's tax deductible. Starting in 2019, it is no longer tax deductible, so that has not been a separating point anymore for periodic alimony.

Todd Orston:                     And we did a show just last week that delves more deeply into those issues.

Leh Meriwether:              Yeah, so but the important thing with the periodic, if there's an award of lump sum alimony or someone agrees to pay lump sum alimony, you can't stop or reduce your alimony obligation because that is a fixed amount that is non-modifiable, so on the go-for, we are merely talking about awards or agreements for periodic alimony. So I just want to make sure we're clear on that, because up next, we're going to get into what really can stop or reduce an alimony obligation, including some unusual circumstances and an unusual statute that's called the live-in lover statute. You don't want to miss it.

                                                Welcome back everyone, I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp, and you're listening to Meriwether & Tharp Radio on the new Talk 106.7. If you want to learn more about us, you can always call or visit us online at AtlantaDivorceTeam.com.

                                                Well, today, we're talking about the five things that can block, stop, or reduce an alimony obligation, and no, Todd, it's not buying your wife ramen noodles for dinner.

Todd Orston:                     I'm telling you, she wouldn't eat ramen noodles if ...

Leh Meriwether:              If you tried to force her to?

Todd Orston:                     No, no. No. Now, if you want to turn this into a cooking show, let's do it.

Leh Meriwether:              My wife made me this great meatloaf the other day. No, just kidding. She really did make the meatloaf, and it was great.

Todd Orston:                     In the muffin tin?

Leh Meriwether:              Yeah, in the muffin tin. It was fantastic.

Todd Orston:                     Do you know the muffin man? Sorry.

Leh Meriwether:              Now you're really getting off topic.

Todd Orston:                     Exactly.

Leh Meriwether:              All right.

Todd Orston:                     Which means, let's get back on topic.

Leh Meriwether:              Yes.

Todd Orston:                     All right, so we've been talking about how to block or what can block, and adultery can act as a block or an absolute bar to alimony, so now we're going to focus a little more on what can stop or reduce an alimony obligation. What that means is, as opposed to before, alimony has not been set or has not been included in an order because there was a bar, and the court did not or could not issue an award of alimony. So now we're talking about, okay, after a divorce, alimony was ordered, there's an order that includes a requirement for one party to pay the other, but are there things that can happen that could result in alimony stopping, or open the door to a reduction of whatever the amount of alimony is.

Leh Meriwether:              So one of them is the death of a spouse. There's actually a code section on this in Georgia's 19-6-7 and if the party that's liable to pay the alimony, if they are killed or die, whatever happens, they are no longer obligated to pay alimony and this is just under the statute, and the person receiving it cannot pursue the estate of the obligor, that's whoever was supposed to pay the alimony. Now, in that situation though, you can contract around that. We've seen situations where we've drafted contracts where an obligor, the husband, owned or he had a life insurance policy, and so we just wrote in there that if he were to pass away before he paid all the alimony payments that we were discussing, that she could have a charge against his life insurance, so she had to be listed as a beneficiary for a certain amount that would equal the outstanding alimony and child support obligation, because there's usually child support tied to that, so you can negotiate around that and put it into a contract that will take over the statute.

Todd Orston:                     Yeah, in essence, if you're going to create a waiver like that, if you're going to create some exception to the rule, it has to be a knowing and voluntary waiver of a certain right, all right, and so it needs to be very explicit, it needs to spell out exactly what the exception is, and in doing so, then it is basic contract law and at that point, you are bound by the terms of the contract.

Leh Meriwether:              Yes, and on the flip side, if the other person who is receiving the alimony, if that ends, if they die, the person who's supposed to receive it, because it's personal to them, then the estate can't necessarily go after the obligor for that.

Todd Orston:                     Right, because it's need versus ability to pay, right? So the basic premise of alimony is what is your need. Not the need of all of your other relatives who might benefit from your estate upon your death, so upon death, then-

Leh Meriwether:              You don't have a need anymore.

Todd Orston:                     Yeah.

Leh Meriwether:              I know, morbid, but-

Todd Orston:                     I tried to figure out the argument about a continuing need after death, haven't come up with it. So, yeah, unfortunately or fortunately, upon the death of either party, it would terminate.

Leh Meriwether:              Now, again, we are talking about periodic or rehabilitative alimony. We're not talking about lump sum alimony, and that's something that's non-modifiable, so if you agreed to pay, I'm paying lump sum alimony in the amount of $1000.00 a month for five years and one of you died two years in, you would still owe the balance of that obligation. So the classification of the alimony is very important when you're drafting a settlement agreement, and most of the time, the courts, rarely do I ever see a court award lump sum alimony. It's usually some form of periodic alimony.

Todd Orston:                     Yeah, usually, how about this, usually when we're dealing with lump sum, it is lump sum in terms of a lump sum. It is, I am going to, instead of paying you periodic alimony or alimony over a period of time and multiple payments, I will give you $5000, $10,000, $100,000, whatever the case might be, you will get a check for that amount and then I'm done. Right? There's no more payments after that. So usually that wouldn't even apply because the death more than likely occurred after the lump sum payment was made, but in the circumstance, if there was a circumstance where someone gets an award or agrees, let's say, and there's a lump sum provision for $50,000 paid on date specific, and then that recipient dies prior to receipt, then it is still due and owing to the estate.

Leh Meriwether:              Right, so just, that's a little nuance, but it can make a big difference, because if your spouse dies, you don't want to be paying their relatives alimony.

Todd Orston:                     That's right.

Leh Meriwether:              All right, well, let's talk about another situation where it can stop the alimony, and that's remarriage. Now, most of you probably already know this, you've heard it lots of times, but it's actually in the statute that a remarriage of a spouse who's receiving alimony terminates the alimony obligation. Now, here's something that's really important, because this is in the statute. You can actually waive this termination, and if you're not careful or document, if you agree to a settlement proposal where you're paying alimony, there's this, it's actually a case, I think it's Varn v. Varn here in Georgia, and it requires, it has to be knowing, and you have to literally in our agreements, when someone's waiving alimony, we put in a reference to that actual case and that everybody understands, you have a statutory right to have alimony terminate, this is if you were the obligor, at a point of remarriage, or just, you have statutory rights to modify alimony, but you can waive those rights. So if you put in one of those waivers and then you're not specific in your settlement agreement, then you may still have to pay alimony if your spouse, ex-spouse, gets remarried.

Todd Orston:                     Yeah. So you hit the nail on the head. You have to be very careful. If you're trying to draft documents yourself, or even if somebody is drafting them for you, you need to educate yourself so that you understand that it's a contract, and it's a contract that can have long-lasting impact on you and significant impact on you, so you have to be very careful about the words that you use to make sure that you're not agreeing to something that can really come back and bite you years down the line, and we've seen that in many different ways. Sometimes people will waive the ability to modify alimony, I've seen people modify child support, I've even seen, I saw a case where somebody said that they would agree to non-modification of alimony and opposing counsel stepped in and said, under Georgia law, the term alimony includes both child support and alimony, spousal support, and therefore, he was barred from modifying either.

Leh Meriwether:              Really?

Todd Orston:                     Yeah, so you have to be very careful about the words that you use and if you don't-

Leh Meriwether:              Was that an argument he made?

Todd Orston:                     It was an argument that was made, and case law was shown to the court to basically, and that was up in your neck of the woods, in Cherokee County.

Leh Meriwether:              I'm wondering, because there has been a subsequent case to Varn that said, on child support where they broke it out, you have to specifically waive your right to modify child support.

Todd Orston:                     Right.

Leh Meriwether:              So maybe he made the argument before-

Todd Orston:                     And this was years, I can tell you right now, that the case I'm talking about was probably about 15 years ago.

Leh Meriwether:              You know what would be interesting?

Todd Orston:                     Mm-hmm (affirmative).

Leh Meriwether:              If that ... well, no. It would have been too long ago, then. Anyway, so many cases, so many things to argue.

Todd Orston:                     Yeah, so you have to be careful. That's all we're saying. We're saying be very careful about the words that you use, because if you waive something, it's waived. You can't undo that. You can't un-ring that bell, and so that's where people like us come into play, where we will use the right language, but even then, educate yourself-

Leh Meriwether:              Because you don't want to promise your spouse, let's say you're trying to negotiate with your spouse, you don't want to tell him or her the wrong thing, because even if it's not enforceable, you could get someone's, if you say, "Oh, I'll do this, I'll do X, Y, and Z," and then you talk to your lawyer and go, "No, no. You don't want to do that because that's non-modifiable," and you have to go back to them and say, "Oh, I can't do X, Y, and Z," what you're doing is you're making it more difficult to settle your case.

Todd Orston:                     That's right.

Leh Meriwether:              So before you make any sort of proposal to your spouse, like if you and your spouse are sitting around the kitchen table trying to negotiate a settlement, make sure you talk to your lawyer about the proper words to use, the terminology to use, so you understand what kind of alimony you may be offering in a settlement so that you don't waive your right to have it terminate at the death of a spouse or at the remarriage of a spouse. You want to make sure you still have that, you don't want to waive that statutory right.

Todd Orston:                     Yeah, and keep in mind, under 19-6-5, and we can go into this in a moment, but it specifically spells out that it shall terminate upon remarriage of the party, so understand, going back to this whole remarriage issue, and I think we'll probably have a little bit to talk about after the break, that these changes, some of them are mandatory, meaning if something happens-

Leh Meriwether:              The court doesn't have a choice.

Todd Orston:                     Yeah, and so you have to be very careful about what words are used in the agreement.

Leh Meriwether:              And up next, you're going to learn more about ways that you can stop alimony.

                                                Welcome back everyone, I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp, and you're listening to Meriwether & Tharp Radio on the new Talk 106.7. If you want to learn more about us, you can always call or visit us online at AtlantaDivorceTeam.com.

                                                Well, today, we're talking about the five things that can block, stop, or reduce an alimony obligation, and we've gone through the first three, and I think before we get onto number four, there was something on the break you realized that we just need to make sure everybody knows.

Todd Orston:                     Yeah, so the statute, the way 19-6-5 reads, it says, "All obligations for permanent alimony, however created, the time for performance of which has not arrived, shall terminate upon remarriage of the party to whom obligations are owed unless otherwise provided." Otherwise provided means did you somehow waive it or contractually give up that right, but the term, "the time for performance of which has not arrived," I want to make sure that it is very clear. If there is already an amount that was due and owing that has not yet been paid, in other words, there is an arrearage, and let's say it's periodic and you haven't paid for the last 12 months and $10,000.00 is owed, but then there is a death, that arrearage amount is still due and owing. In other words, you can't never pay, pass away, and then think ... Well, you're not thinking anything, but ...

Leh Meriwether:              True.

Todd Orston:                     Yeah, that'd be really, this is the zombie show, and ... No, then you can't go into death thinking that, "Hey, all my debts are clear and my spouse doesn't get anything."

Leh Meriwether:              Right.

Todd Orston:                     Okay, your estate will be called upon, more than likely, to pay that arrearage off.

Leh Meriwether:              And the arrearage is whatever you should have paid up to this point that you haven't, that's what we call an arrearage, that's what you would owe. And the same thing goes for if the estate, if the recipient passed away, their estate would have a claim against you, as well, if you hadn't paid, if you were $10, $20, $50,000.00 behind.

Todd Orston:                     Yeah, the estate can come after you and say, "Hey, you were supposed to have paid $50,000.00, and by the way, just because your former spouse has passed away, we need that money paid into the estate."

Leh Meriwether:              Right, it's the future payments that go away.

Todd Orston:                     That's right.

Leh Meriwether:              So that's a good point. All right, well then the next thing that can reduce or sometimes stop an alimony obligation is a change in financial circumstances. Now, this is not limited to the person who's paying the alimony. It can apply also to the former spouse who's receiving the alimony, so a change, and it's a change in income or financial status of either former spouse. So that's one of the factors the court can look at, and one of the other important factors here is that you can only file a modification once every two years after the last order, so you can't just file it one year and then six months later, file another modification.

Todd Orston:                     And I want to make sure that we are clear, the last order, I don't believe that that includes the initial order.

Leh Meriwether:              Right.

Todd Orston:                     It's modification orders. So in other words, let's say you are divorced in January. You don't have to wait two years to modify for the first time. You can modify, let's say, six months later, and once you get an order in that case, you have to wait two years. Okay, now, there are some exceptions, and we've gone into this in other shows, so I'm not going to go into a lot of detail, but there are some exceptions to the rule. Somebody involuntarily loses their job or something happens, there are emergency circumstances that can circumvent that two-year limitation, but like I said, we're not going to go into that here. I just wanted to make sure that that's clear.

Leh Meriwether:              So one of the things, let's talk about income and financial status, because that can have, you can have all kinds of situations. We've seen situations where the person paying, they had a net worth of several million dollars, and they lost their job. Now they came to file for a modification. Well, if your obligation could be met with some of your estate, the court may not grant a modification of alimony. They may say, "You've got five million dollars over here to pay your alimony payments until you get a new job, so I'm not modifying it."

Todd Orston:                     Yeah, especially in a situation like that, when you're talking about big numbers like that, and let's say there's a $3000.00 alimony payment or even $5000.00 alimony payment. It would take a lot of $5000.00 alimony payments to burn through five million dollars.

Leh Meriwether:              Right.

Todd Orston:                     So it is unlikely, I can tell you right now, that if somebody came to me and said, "I would like to file," and that was their set of circumstances, I would probably be looking at them going, "Unless you're telling me something happened where you will never, ever, ever, ever be able to work again," and even then, I might have to say to you, "I don't know if you're going to get this modification." It may not be worth the time, money, and effort to fight this fight, because you're sitting on five million dollars, and let's say you have two years left on an alimony obligation, I understand you're now digging into your savings, but the court's probably not going to have a lot of sympathy for you.

Leh Meriwether:              Yeah, because your income may have changed, but your financial circumstances didn't necessarily change, you still have a high net worth. Now these are factors, so let's add one more factor to that. Let's say the wife at the time of the divorce was making $24,000.00 a year and the husband was making $300,000.00 a year and now he's lost his job and the wife also has, or the ex-wife at this point, has a net worth, let's say it was a settlement agreement and she has a net worth of two million dollars, okay, and at the time he loses his job, she's now making $120,000.00 a year. Well, that might be, so while his job loss by itself, because of his access to additional monies, wouldn't be enough to modify alimony, the fact that she's now making five times as much as she was at the time of divorce, you combine all those factors together and you know what, you have a good chance to modify alimony.

Todd Orston:                     Go back to the very basics of the analysis regarding alimony. It is need versus ability to pay, so just because somebody has a need, if the other party doesn't have a corresponding ability to pay, if their budget is so tight that there's no money left over to pay any alimony, then guess what? The court can't order anything, because you can't get blood from a turnip or a stone or whatever you can get blood from.

Leh Meriwether:              I try not to get blood from things.

Todd Orston:                     Okay, good point. But on the flip side, if someone comes in and is, let's say, earning minimum wage and they prove to the court at the divorce that they have a need, well, going from minimum wage or nothing to $120,000, there's a clear argument that their need has changed. They have more than enough money to pay their bills and then some, and therefore, the money that I was giving over here, especially considering maybe I have a loss of income, the money over here, you don't need that anymore.

Leh Meriwether:              Right.

Todd Orston:                     It's nice, I'm sure you're enjoying that payment, but you don't actually have the same need.

Leh Meriwether:              Yeah, so the court looks at all these different factors. Probably an important thing to point out is the statute just, it doesn't give specifics. It doesn't say, "If this happens, you get a change," and it's a change of X percent. It's just, it's this big, broad statement that a change in the income and financial status of either former spouse is a basis to come back to court to modify an alimony payment, so it's up to the judge.

Todd Orston:                     Its subjective.

Leh Meriwether:              Or jury, you know, actually you can have a jury trial in Georgia on this issue.

Todd Orston:                     Yeah. Yeah, and one of the few states where that is possible. And it is very subjective, but then again, we've talked about this a lot, so much of family law is based on that kind of a subjective analysis, and judges are given a lot of freedom to make decisions just in terms of what do they think is the right thing to do, the right thing to happen, and they have to consider a bunch of things, but there are so many things that can be considered, what that really means is, legislature has given judges all sorts of ways that they can do what it is they feel is appropriate. They can base it on financial circumstances, they can base it on standard of living, they can base it on ... okay, but there is one in this statute, there is one definite, and that is as it relates to, and we talked about this earlier, as it relates to prevailing parties.

Leh Meriwether:              Yeah, so one of the things, two important things if you're going to bring an action, well, the two points I want to kind of end on, on this issue, number one, you need to talk to a lawyer before you bring an action to modify. It's critical, because you need to know that lawyer's experience in front of that judge as it relates to those specific circumstances that you've got. That's number one. Number two, one important thing to remember or know, that if you bring an action to modify alimony, one of the last sections of the statute says that the court may, where justice and finances, the court can look at all those things, can award attorney's fees to the prevailing party. So if you bring an action to modify alimony and you lose, you may not only have to pay your lawyer's fees-

Todd Orston:                     Well, I want to be more clear, so the prevailing party as it relates to, what it says is that in the event the petitioner, meaning the person who is trying to modify, does not prevail in the petition for modification on the grounds set forth in this subsection, the petitioner shall be liable.

Leh Meriwether:              Oh wait, that's the different section. You jumped ahead.

Todd Orston:                     Oh, I'm always jumping ahead. That's just ... my mind is so quick that I'm ... so, all right. So there is the prevailing party, and if you bring the action and lose, you better be ready to pay your bill and the opposing party's. But on the flip side, if the person bringing it wins, okay, the court can still, in addition to giving that financial assistance, can also grant an award of fees.

Leh Meriwether:              Yeah, and up next, we're going to break into what happens if your spouse cohabitates with another.

                                                You know Todd, these, what we're about to talk about, the live-in lover situations can be some of the more interesting cases that we have when it comes to modification.

                                                Hey everyone, welcome back, I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp, and you're listening to Meriwether & Tharp Radio on the new Talk 106.7. If you want to learn more about us, you can always call or visit us online at AtlantaDivorceTeam.com.

                                                Today, we're talking about the five things that can block, stop, or reduce an alimony obligation, and where we left off, we were talking about a change in financial circumstances, and I do want to make sure we clarify the issue of attorney's fees, so-

Todd Orston:                     Yeah, you were right, I definitely jumped ahead to the live-in lover and cohabitation statute.

Leh Meriwether:              So let me explain something real quick, and we're going to get into what this live-in lover statute and how that can help you reduce your alimony obligation, but before I do, there's two parts in this statute that talk about attorney's fees, and one of them is buried in a subsection that some lawyers don't know about. The first one has to do, if you bring it for a change in circumstances, the court may, meaning it doesn't have to, but may award attorney's fees to the prevailing party, but if you bring a case based on cohabitation, and cohabitation means, the live-in lover statute means that if you, in order to keep your alimony obligation while still living with someone, you just don't marry them. You move in with the, the ex-spouse moves in with someone else, and enters into what appears to be a marriage relationship, but they don't actually get married, which would terminate the alimony obligation.

                                                The courts, I'm sorry, the Georgia legislature years and years and ... decades ago, came up with what they call the live-in lover statute. People were trying to avoid having their alimony terminate by just not getting married, but they lived like they were married, and Georgia's not the only one with that statute. I know Florida has it, too, and lots of states had it, because they said it wasn't fair that two people were living like they were married, but they just didn't get married so they could still collect alimony and they didn't want one person paying for two other people living together, and so they created this statute.

                                                Now, buried in the subsection that allows you to bring this action, it says that if you bring an action because you're alleging your ex-spouse is cohabitating in a meretricious relationship and you lose, you shall pay the other side's reasonable attorney's fees. The court doesn't have an option, it's obligated to order you to pay attorney's fees, and the reason I'm guessing the legislature put that in there is so that people didn't just frivolously bring an action, because maybe the ex-spouse stays one night over with their boyfriend or girlfriend and they just happen to sleep over there, you don't want one case after another being brought, "Oh, they're in a meretricious relationship and I shouldn't have to pay alimony anymore."

Todd Orston:                     And it would, I mean, the floodgates would open, because it's a very emotional issue. Someone is paying support and then they see the person they're paying support to in a committed relationship with someone, so the thinking, and we've heard this time and time and time again, of the payor coming in and saying, "Why am I still paying support to basically financially provide not only for my ex but for my ex's boyfriend or girlfriend?" Because it specifically says that it's regardless of the sex.

Leh Meriwether:              Right.

Todd Orston:                     So the bottom line is that the legislature realized this and said, I'm thinking, that yeah, we're going to put something in place so that you have to have some skin in the game. If you're going to actually bring this kind of an action, you better be darn sure that you've got the grounds to justify a modification, because if you lose, then not only are you paying for yourself, but you're paying for your ex's attorney's fees.

Leh Meriwether:              So let's define this cohabitation and meretricious relationship real quick. The statute says, "Cohabitation means dwelling together continuously and openly in a meretricious relationship," which means as if you're married, with another person, regardless of the sex of the other person. So you've got ... Excuse me, sorry about that.

Todd Orston:                     You're getting all choked up.

Leh Meriwether:              I'm getting all choked up. So you've got, they move in together, and they start sharing electric bills, they've signed a lease together, these are the things that would identify this. They post on Facebook that they have moved in together, these are the kind of ... Social media's an excellent source of information as to whether the parties are living together, or they'll say, "In a committed relationship," and then you see them living together, and I'm not talking about they have two houses and one's staying over at another house like four or five days, out of every two weeks they're sleeping over there four or five days, that's not living together continuously. They have to be, sometimes you'll see them sharing credit cards or sharing some kind of bills beyond utilities. It could be credit cards, it could be an auto payment, we've seen people cosign for their girlfriends and boyfriends, so those kind of things, factors, all come into play, and it can't be something for a month, either.

                                                When someone comes to me, one of these cases, we talk about, sometimes we'll hire a private investigator, and this is before social media, one of my first cases was long before social media had gotten big, so we didn't have those avenues, so I hired a private investigator, who basically camped outside their house and videotaped the fact that over a two-week period, he was over there every single night. So we got that and a few other pieces of evidence and we filed and we did discovery and in the discovery action, because I don't think Florida had, I can't remember if Florida had that same thing, if you lose, you have to pay the other side, but it's been years, because my first action was actually, no, my second action was in Florida, my first one was in Georgia, because my client lived up here in Georgia and we filed down in Florida, that's where the original divorce was, but through discovery, where we get to ask all kinds of questions and ask for receipts and stuff, we got back all kinds of information.

                                                We got joint, both their names were on an auto loan, both their names were on one of the utility bills, and then they'd split up the other ones, but they clearly were paying, splitting the costs of living there, and in that situation, now fortunately, she ultimately settled and agreed, "Okay, yeah, I'll terminate," and then they went ahead and got married, because it was basically like "We've been caught." She thought he would never find out because she was living in another state, and she was like, "All right, fine, we're getting married," and we were able to settle, thankfully.

Todd Orston:                     Now, building on what you said before about you don't want to do it if they've just been living together for a month, the flip side is waiting too long can also be a problem. I actually had a case once where my client thought that that was happening, researched it, found out that it was happening, sat on that information for a period of months, and then came to me and basically was like, "Oh, they were living together," I said, "Oh, okay, they're living together." "No, no, no. They were," and by the time he actually started to initiate something, they had broken up, and she had moved back out and had her own place, had her own expenses, and at that point, the proverbial ship has sailed. So you don't want to run into it and race into this issue, especially considering what the ramifications are if you fail in your effort to modify, but you also don't want to wait too long, because life happens, things change, and you may lose that window of opportunity.

Leh Meriwether:              Right, so one thing to be careful here is because some people want to, I mentioned a private investigator, just to give this quick caveat, certain things you can videotape. You can't put a video camera inside their house or put an audio recorder inside their house. The video, it's got to be public, so in our situation, the private investigator was outside the home on a public street videotaping what cars were parked there.

Todd Orston:                     If you are planning on surveilling, do yourself a favor and speak to an attorney.

Leh Meriwether:              Yes, and please don't go to the mailbox and pull out their mail, because that is a federal crime.

Todd Orston:                     Yeah, there are, the ramifications, the consequences of some of that behavior, it's not just a civil wrong, it is a criminal wrong, meaning there are criminal sanctions, so you go in, you could be criminally prosecuted for going into someone's mailbox, taking their mail. You can be criminally prosecuted for setting up surveillance inside someone's home or whatever.

Leh Meriwether:              Or even going into their garbage could be considered invasion of privacy in certain situations.

Todd Orston:                     Yeah, so you, and the law on that, it's not always changing, but it is evolving over time, and so you have to be very careful. Talk to an attorney.

Leh Meriwether:              I will say one of the advantages today is that so many people just post it on social media. I mean, you'll have ... Excuse me. I keep coughing. So you may have these, you may have it where they may not say they're in this relationship but they post at the house all the time, "Oh, I had a great time today, I'm so glad he moved in with me," so you see all these things, quite often, the social media, those are admissions and I know we've got some cases right now where that's a large portion of our evidence is social media.

Todd Orston:                     Oh, we've had cases, I know I've had cases personally where the treasure trove of information that was obtained from sites like Facebook, so be very careful what you post and if you are somebody researching trying to use it as a tool, make sure you take the screenshots and get that information before it disappears.

Leh Meriwether:              Yes, absolutely, before you file something and it's gone.

Todd Orston:                     That's right.

Leh Meriwether:              Well everyone, that about wraps up this show, and I wish we could go on, because there's so much more we can talk about on this subject, but we only have so much time. You can always read more about this subject and find out more about us online at AtlantaDivorceTeam.com. Thanks so much for listening.

Speaker 3:                           This audio program does not establish an attorney-client relationship with Meriwether & Tharp.