Episode 92 - 7 Things to Consider BEFORE Attempting a DIY Divorce
On the surface, divorce can appear simple. But, as the saying goes, the devil is in the details. As a result, so many people get themselves into horrible situations when they try to handle their divorce on their own. It has nothing to do with their intelligence either. If you are confronting a situation where you think you either can't afford an attorney or don't need an attorney, you will want to listen to this show. Leh and Todd talk about 7 things you should consider before trying a DIY divorce. They even explore options that you may not have thought of.
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 Meriwether & Tharp radio on the new Talk 1067. Here you will learn about divorce, family law, tips on how to save your marriage if is in the middle of a crisis, and even tips on how to take your marriage to the next level. If you wanna learn more about us you can always call or visit us online at atlantadivorceteam.com.
Todd Orston: Well done.
Leh Meriwether: Thank you.
Todd Orston: I mean, seriously. I ... Tear.
Leh Meriwether: A tear. I've been practicing.
Todd Orston: Yes, you have.
Leh Meriwether: Thankfully.
Todd Orston: Well, hello again.
Leh Meriwether: Are we ready to dig in?
Todd Orston: We are. What are we talking about today?
Leh Meriwether: Today, we're gonna talk about DIY divorce.
Todd Orston: Okay.
Leh Meriwether: You can't get it at Home Depot.
Todd Orston: No. I've done a couple of DIY things at my house.
Leh Meriwether: How'd they turn out?
Todd Orston: My wife wished I DI-didn't.
Leh Meriwether: But, with divorce it is possible.
Todd Orston: It is possible.
Leh Meriwether: I talk to people all the time. And, I mean, I know you do also. And just two days ago I was on the phone with somebody, and they were talking about the possibility of doing it themselves, handling their own divorce, absolutely. Can you, yes. Is there're a requirement that you hire an attorney, no. Is it potentially better if you do, yeah. I mean, because one of the things we're gonna go into throughout the show is, a lot of people handle it and they get it done and they do it right. What they don't hear about, and what many people don't hear about is all the people who try to do it on their own and they make big mistakes.
Todd Orston: Yes.
Leh Meriwether: And these kinds of mistakes can carry with you, not just for days, weeks or even months, but for years. So-
Todd Orston: Sometimes, even a lifetime.
Leh Meriwether: Absolutely. So, we're gonna break down some of the pros and cons of doing a divorce yourself. We're gonna talk about the ideal situations where it would be ... I think, there's little chance of you really messing things up with doing it yourself, and then we're gonna about, we're gonna get some cautionary tales where people, very intelligent people, this is not something that's limited to people that can't afford a lawyer. There's a lot of people out there that think that bringing lawyers in complicates the process. And sometimes it's not that the lawyers complicate the process, it's just that the process is more complicated than they understand. And we're gonna talk about the consequences of not doing it right and give some real life examples of what happens when you don't do it ... when you try to do it yourself and do it the wrong way, and the ...
I mean, in some cases it's a million dollar impact, and we'll talk about that. But first off, I probably wanna ... we probably wanna say, we don't have any ... I don't want us ... When we talk about the cons of DIY divorce, we do make money when people hire us. So, this isn't something where we're saying, "Hey, don't do it because you need to hire a lawyer." We're not saying that at all. What we are saying is, there's cautionary tales. And, I mean, you can just look at our website. We have 5000 pages of content on our website that, I mean, you can almost do your divorce yourself if you read it. And then, we've got our podcast. Our past radio shows we convert to a podcast. We broadcast in iTunes, in Stitcher, and on our website even and put the transcript of the show on our website. And you could probably, many people could just listen to all the shows, or at least the ones that are applicable to them and an okay job.
But, if you think about it, that's ... We have, I think, 91 episodes up there now. And if you were to listen to all 91-
Todd Orston: I'm sorry. Call in, and we'll talk about some other hobbies.
Leh Meriwether: But I mean, that's 91 hours of content that you have to ... So, how much is your time worth, spending that kind of time?
Todd Orston: Well, there's the way that we look at it. I was gonna say, the way I look at it, but the way that we look at it is there's a certain amount of basic information that anybody can't get by going online and doing some searching. We're not in the business of playing games of hide the ball, of taking that information, not disclosing and basically saying the only way you get it is if you come in and pay us. We actually want our clients to be educated.
Leh Meriwether: Yes.
Todd Orston: Because if they're educated, then it makes it easier for us. We can then talk to them, explain things to them. They've already looked at our website. I mean, when we take calls for perspective clients, almost without fail, I will say, "Have you gone to our website?" Whether you hire us or not, go to our website. There is a tremendous amount of information for free there. There's no obligation. You don't have to sign up. You don't have to do ... Just go there, read. Educate yourself. We have condensed and consolidated all of that information into, basically, a format that's easy to access, easy to get information out of.
We do that for a number of reasons. And the second reason, other than wanting people to be educated is because we know that while this is not ... You hit on this. Divorce is not complex, but it can be complicated.
Leh Meriwether: Right.
Todd Orston: There are a lot of ins and outs. We're not talking about brain surgery here, but there are a lot of things that are complicated. And, like I said before, if you make a mistake, if you don't educate yourself, maybe even hire someone to help you, you make a mistake and it can carry with you for years.
Leh Meriwether: Yeah, so I'm gonna give a few examples of where we've seen that happen. So, I had a case where I was handling a ... Now, it wasn't a DIY divorce, but the client had done his own prenup with his wife and the way it read the opposing counsel took what he put in there. It wasn't the best language, and the opposing counsel was arguing that our client had committed to pay his client 400 thousand dollars in non modifiable, non bankruptable alimony to his client. So, he only made 75 thousand dollars a year, so suddenly he has 400 thousand dollar liability that he can't ... It's ... He can't [inaudible 00:06:39] at all.
Todd Orston: I'm not a mathematician, but that doesn't work.
Leh Meriwether: No, so he couldn't even write it off or anything like that so, had he done ... Had he talked to a lawyer it would have been a different language. Now, I will say there was a silver lining there and that we were able to win. But, I mean, he went up to the Supreme Court of Georgia, but he spent 25, 30 thousand dollars in legal fee trying to avoid 15 hundred dollars and having a prenup put together.
Todd Orston: And by the way, I mean, I'm glad you talk about the positive outcome and silver lining.
Leh Meriwether: Yeah.
Todd Orston: A lot of situations, and I would even go so far as to say the majority of situations don't have that happy ending. Normally, if you enter into a contract, whether that's a prenuptial agreement or a divorce agreement, if you are an adult, you're of sound mind and you sign off on that agreement, you're locked in and getting out of it, or trying to change it might actually be impossible. So, yes. That's great and we did help that client, but I want people to really understand that if you do this on your own, you sign off on everything, that may be the exception to the rule.
Leh Meriwether: Yeah, and it's funny you mention that. So, I had another person that came in for a consultation.
Todd Orston: Now you're just bragging. It's just, "I helped another person."
Leh Meriwether: No, this one was the one where there wasn't a silver lining. So, he had represent ... A smart guy. He made pretty good money. I can't remember the exact number, but it was over 100 thousand dollars, made pretty good money and he's like, "Well, I can do the divorce myself." And so, he entered into an agreement that, basically, he unknowingly committed to one million dollars in alimony over the lifetime of the payments that he couldn't modify, and he didn't know it. He just wasn't paying attention and there was issues about whether it was even tax deductible. I couldn't do anything. He was locked in place. That was an example of, he had entered a contract that could not be changed. You couldn't ...
And here's the important thing, what I think everybody needs to know is that when you enter this agreement it becomes a court order, and some of the aspects of that court order cannot be changed. You cannot bankrupt on them, and if you don't pay them you go to jail because this is a situation of almost ... Some people argue this is almost like debtor's prison. If you don't make your alimony payment, the court has an obligation to enforce its orders and the court could order you to go to jail until you make your alimony payments.
So, I mean, this is very serious.
Todd Orston: Yeah. I mean, with contempts, obviously if it's a situation where you agree to a million dollars and you make far, far, far less than that, more than likely a contempt would be brought and the court would recognize you don't have the ability and therefore you are not in willful contempt, but you still owe the money. So, what has basically happened, if you agreed even to that kind of amount and the judge says, "Okay, fine. You can't pay 10 thousand dollars a month," or whatever crazy number you agreed to, but lowers it to 25 hundred but you're paying for the rest of your life. You're paying ...
I mean, so ... And we're moving a little bit away from the basic point which is, talk to an attorney at the very least, and we're gonna go into this later on. There are options-
Leh Meriwether: Besides-
Todd Orston: ... just retaining.
Leh Meriwether: Yes.
Todd Orston: Go and speak to an attorney. At the very least, do a consultation. We do something called consolations or coaching. There are different option. Explore those options as quickly as you should be going to a website to educate yourself. Make a phone call. Pick up the phone. Talk to an attorney. Find one that you like and see what your options are.
Leh Meriwether: So, up next we're gonna get into the situations where it's, probably, you're pretty safe with a DIY divorce. We're gonna get into situations where you really wanna consult with an attorney. We're gonna get into situations with ... where ... what DIY divorce websites, what they're missing. What they-
Todd Orston: DOY is doy. So I ... Yeah.
Leh Meriwether: DIY. What they can't do for you, what information you will be missing by using them rather than consulting with an attorney. And we're gonna get into some more cautionary tales up next.
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 Meriwether & Tharp radio on the new Talk 1067. If you wanna read more about us, you can always call or visit us online at atlantadivorceteam.com.
So, all right. We have been talking about DIY divorce, and we believe in helping people. That's why we do this show. That's why we built a huge website. So ... But we want to talk about the challenges of doing your divorce by yourself and what sort of problems you can get into and that sort of thing, and that's what we've been talking about. I think, before we move on, we actually have seven things that you really should consider before trying to do it all yourself. But we before we get there, let's give two more cautionary things about a DIY divorce website.
Todd Orston: Yeah. I mean, we have talked a lot about our website. We have a tremendous amount of information, and we're not sitting here saying we are the only website out there, that we're the only source for information about divorce, we're the best. But you have to be careful, and that goes even for our website because we put information out there, but it's not just what content we put out there, it's also how it's interpreted. And also, there are a lot of things that need to be considered. We've put information out there, but what you think applies to you may not apply, or you read one part but you haven't read three other parts that apply. And so, you may, unfortunately, think you understand something but you don't.
So, there are definitely weaknesses in just relying on your own search, online search or otherwise. Things like a lot of those sites, even our website. We can't and don't give out advice. We have content.
Leh Meriwether: We talk about the law.
Todd Orston: That's right.
Leh Meriwether: But we can't say how that law applies to your specific situation.
Todd Orston: And no one can, and if you go to a website and it appears like they are giving you some level of legal advice, click over to the next website because they can't and they shouldn't, and we don't.
Leh Meriwether: Yeah, we break down the things that a court consider when deciding custody. Basically, we try to explain the law in a way that's easily understood. Because, sometimes we have to read the statutes four and five times.
Todd Orston: Absolutely.
Leh Meriwether: And even then, the judges misread it.
Todd Orston: And law changes, and new laws come out.
Leh Meriwether: Laws change, yep.
Todd Orston: And so-
Leh Meriwether: In fact, we're having to rewrite parts of our website because of some recent law changes.
Todd Orston: Constantly. That's right. That's why we're constantly making changes.
Leh Meriwether: Yes.
Todd Orston: And then, sort of like what we were doing in the last segment, talking about experiences. You're not gonna get that from a website.
Leh Meriwether: Yeah. So, I mean, when you come and talk to a lawyer, like at our firm, a lot of them have ... If they ... We all have a lot of experience. Now, you may talk to someone that may have been out for five years, but if they're working inside a firm where cumulatively there's well over 200 years of experience ... And so, what you do is you hear, "Okay, that sounds great in theory, but did you think about X, Y and Z?" And usually people go, "Oh, I didn't think about that." Because what we see, because we do modification cases too, we have seen where certain settlement provisions or custody arrangements really can end up in utter failure, and it's not in the children's best interest.
That leads me to another thing that I just remembered, is that we've seen courts where someone puts together a settlement agreement that both parties agree to it, and they walk in and the judge says, "I'm not accepting this. I'm not accepting this. It's not up to code. It's missing this," or, "I can't tell you everything it's missing, but I can tell you that without these items I can't grant your divorce."
Todd Orston: And the court's job is not to educate you.
Leh Meriwether: No.
Todd Orston: Sometimes, judges will say, "Yep, I'm not accepting this." They're not gonna tell you what they will accept.
Leh Meriwether: Right.
Todd Orston: If things are missing, they're not gonna tell you this is what you need to do, A, B, C, D, and then you can go fix it, come back. Sometimes, they just say, "You know what? You're not prepared and I'm rejecting this agreement. Come back when you're done." A good example of that is custody, joint physical custody. There are some courts and some judges that, even if parties agree, they do not agree. Meaning, the court will not agree, will not consent and sign off on an order that allows for a joint physical custody arrangement, and had you gone and spoken to an attorney you might have come up with some strategies. You might of, first of all, educated yourself and known the judge, known what was possible or not possible, and then tweaked the agreement in some way to make it more palatable, more acceptable to the court.
Leh Meriwether: Yep. So let's talk about, what are the situations where it might be best for someone to use a DIY website?
Todd Orston: All right. So, I'm gonna start with the first one, no children and the finances have always been kept separate. And sometimes, grouping it into the very simplistic kind of case where people have kept it separate, or if you don't have a lot of assets. You may have a joint account or joint accounts, but there's just not a lot of assets there. You see that a lot in short term marriages, especially young people getting married and they haven't built up that nest egg. There's not a lot of-
Leh Meriwether: They're living in an apartment. They haven't even bought a house.
Todd Orston: That's right. So, they don't own a house that has to be divided. They each have their own car. There are no children, no pets that they're gonna fight over who gets custody. Then, not only is it possible, but we've talked people out of hiring us because it's like, "Look, you don't need to pay a retainer to us, maybe do a consultation to educate yourself," or draft the documents, come in, we'll look at it in a consult and make sure that it meets all the requirements. But otherwise, you can do it yourself.
Leh Meriwether: Yeah, and we've even had situations where they called us and we said, "Well, I'm not sure that ... You could probably do a lot of this on your own." And what they did is they came in, "Great, but I need a place to get started. I've read your website, but just give me help. Help get me started." So, they came in. We did a lot of the initial paperwork in that initial consultation, because it was so simple we could, and then they walked out with all the documents they needed to get through the whole process. So, we've even done that before.
Todd Orston: But, if we're talking about a from scratch, DIY, you're not doing a consultation, we're talking about simple.
Leh Meriwether: Yeah, it's gotta be simple.
Todd Orston: If it's not simple, if there are children, if there are retirement accounts that need to be divided, anything like that, if alimony is a topic of discussion then can you do it yourself, yes. There's a lot more opportunity for long term harm.
Leh Meriwether: And what's interesting is, so there are websites that charge for forms, but I know here in Georgia most of the counties have sample forms on their website. So, you don't even have to pay for the forms.
Todd Orston: That's right.
Leh Meriwether: You can fill it out. Because the DIY websites where you pay, they can't give you legal advice as you fill it out, so-
Todd Orston: And some of them say that that advice is available, and you can come in and you can pay a tremendous amount of money for documents that are free on other state or county websites. The bottom line is, if you're gonna pay money why go to a national firm that basically is selling documents, rather than a local Georgia, if-
Leh Meriwether: We're talking about Georgia.
Todd Orston: Right here in Georgia, yeah.
... a local attorney. And whether you wanna retain them or do a consult, then you're getting good advice and good help from somebody who knows the specific laws of your state.
Leh Meriwether: And I will say, so a lot of people may not think about this, but it is so worth it to take your time, I think, to at least meet with a local lawyer in your county. Because, here's the thing, if missing work, if you can't afford to take time off work, because a lot of these courts you've gotta go to court to finalize your divorce, if you want afford to miss time away from work, what you don't wanna do is go to the courthouse three, four, five times and miss five days of work. Because each time you go the judge is like, "Well, this form isn't right, and this form isn't right, and this form isn't right." And we've actually gotten hired by people that said, "I couldn't afford to take anymore days off and get it wrong."
And so, they hired us. We cleaned up the paperwork and we went to-
Todd Orston: I've seen it.
Leh Meriwether: Yeah.
Todd Orston: I've gone to court where I've taken finals. Go to court one day to take a final, people stand up, they're not prepared. The judge sends them away. Just so happens, I'm there again, let's say, in a week, or two weeks or a month and I'm there to take a final in a different case and the court says, "Smith case." They stand up and it's like, "Well, what do you have? Nope, missed it again. Thank you very much. Come back when you're ready."
Leh Meriwether: Yep.
Todd Orston: So, it does happen.
Leh Meriwether: I think we've already led in, so the first tip is you don't always have to retain a lawyer to get good legal advice. So, that's our first tip and we've talked about that a lot. But I think I call it DIYMH.
Todd Orston: God bless you. I mean, we gotta stop with these.
Leh Meriwether: Don't like my acronyms?
Todd Orston: Mental health?
Leh Meriwether: No, do it yourself with minimal help.
Todd Orston: Oh, okay. I'll make some notes. Guess maybe I need more than minimal help.
Leh Meriwether: No, and that's what we do. We DIYMH. We do coaching sessions, and there's lawyers out there that do it. It's been permitted in many jurisdictions, where pro se litigants they can't afford to hire a lawyer full-time, but they can afford to get ongoing consultation.
Todd Orston: That just means going in for an hour, hour and a half, whatever it is.
Leh Meriwether: Just pay the hourly rate.
Todd Orston: And you're gonna sit with the attorney as if you were the client, and you're gonna talk about options. You're gonna talk strategy, and they're gonna help you. Or like we do, we'll even give you some forms. We'll help you fill it out. Whatever help you need to do it yourself properly, we're gonna give that help.
Leh Meriwether: We've even had cases where the client couldn't afford us, but they couldn't afford to not talk to a lawyer. They met with us all along the way. The other side had a lawyer. They went to court. They tried the case and they won, because ... I think the reason they won is because they did take the time to do the consulting with an attorney.
Hey, up next we're gonna get into six more things you should be considering before doing a DIY divorce.
Welcome, everyone. I'm Leh Meriwether and with me 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 1067. If you wanna read more about us you can always check us out online at atlantadivorceteam.com.
Todd Orston: You can check us out out.
Leh Meriwether: Take us out. All right. So, we've been talking about DIY divorce and we've talked about some cautionary tales, things that can go wrong quickly if you're doing it yourself without talking to a lawyer, but that doesn't change the fact that sometimes people have limited resources and can't afford an attorney, at least to retain them full-time. So we talked about DIYMH, do it yourself with minimal help. I know you love that.
Todd Orston: I love it. I'm gonna make a T-shirt.
Leh Meriwether: Make a T-shirt. All right, so-
Todd Orston: But before we move on, because you had talked about going onto tip two and before you do I wanna make one more statement about what we were talking about in the last segment. And that's, before you sign off on an agreement my advice, our advice is gonna be have it reviewed by an attorney.
Leh Meriwether: Yes.
Todd Orston: Even if you're doing it on your own, I mean, unless you are just unwilling or unable to have attorney, just do a quick review and have it reviews, or at the very least build into that agreement the ability to walk away, and basically pull out of that agreement. In mediation, depending on if certain factors are present, parties will walk away and have, basically, a period of a few days.
Leh Meriwether: If they're not represented by a lawyer.
Todd Orston: Correct, to walk away, basically to pull out of an agreement reached at mediation. If you don't do it within that time period, you are bound. That goes to what we were talking about before. Build into an agreement that you have one, two, three, four, five days to basically walk away, to have it reviewed by an attorney and, if necessary, basically withdraw your consent.
Leh Meriwether: Yeah. And probably should mention this one other thing, that sometimes people are like, "Well, we can just ..." you may get ... Start over again.
You may have situations where the husband or the wife, depends, but let's say the husband comes to the wife and says, "I've hired a lawyer. We wanna do this uncontested. They've drafted the paperwork. They can represent both of us." We've heard that comment made, but under every state that I'm aware of in the United States is a lawyer can only represent one party. So, as soon as you hear that, that a lawyer can represent both of you, that's not true. And so, if the ... Whoever hired the lawyer, that's their client. And so, if you get that settlement agreement, go have a lawyer review it.
Todd Orston: And be very clear. If you think that the attorney is representing both of you, and you're sitting in a meeting, at some point, don't be shy, and say, "I just need to be clear. Who do you represent? Are you representing me? So, the advice I'm getting, or that I think I'm getting from you, are you giving me advice as my legal counsel?" That attorney should, at that point, either say one of two things, "Yes, I'm your attorney," and "Ma'am," or sir, "I'm not your attorney," or, "No, actually I represent your husband or wife and I can't give you legal advice."
If they say, "No, no. I'm representing both of you," understand that what's just happened, forget about being wrong, it's building into that agreement the ability to have it set aside. Because if the other party, or one of the parties then says, "Wait, hold on one second. I was getting advice. I was told that they represented both of us, but that's a conflict," then you're building in this argument that, "No, no. Judge, I thought I was being represented, that it was my attorney. I want that agreement set aside." So, all that effort, all that work for nothing because the agreement gets thrown out.
Leh Meriwether: Yes. So, all right. Let's go to tip number two.
Todd Orston: Yep.
Leh Meriwether: All right. So, the question you need to ask yourself when you're working with a settlement agreement is, are you answering the who, what, when, where, how and to what extent questions? And so, any time you have an obligation inside of a settlement agreement you need to have in there who's doing what, when, where, how and to what extent. I know that sounds ... You probably learned that in grade school, but it is important.
So, every time you've got something critical in there you need to look at each paragraph of the settlement agreement to see if that is stated. So a good example is, you'll see things where it'll say, "Well, so and so's gonna close out their credit card and remove so and so's name from this credit card account," and that's all it says. There's no deadline. And so, you need deadlines. Is this within 30 days, or can I remove this person? And to the extent that they don't and a liability occurs that they're gonna be indemnified. So, if the husband didn't pay a credit card that the wife's name was on and she gets a call from the creditor that she can turn around and go after him for not following through on it.
Todd Orston: And here, let me break it down just a little bit more. Let's even have a situation where, let's say, there's a big credit card balance in the parties' joint names, and let's say the husband is going to be responsible for paying that big balance off. And two years later, three years later you're going to buy a car, or you're going to buy a house and they look at your credit and it's like, "Well, you still owe 30 thousand dollars on this credit card." And you're like, "No, no, no. That's my ex-husband," they're gonna look at you and say, "No, it's on your credit," and all you can do is then try to enforce the agreement. But if all it says is that he is responsible, then-
Leh Meriwether: He could pay it off-
Todd Orston: If he's paying the monthly-
Leh Meriwether: He could take 30 years to pay it off.
Todd Orston: If he's making the monthly payments, then he is in compliance with the terms of the agreement. So, you need to think not just superficially. You need to dig a little bit deeper and make sure that there's some language in there that is truly gonna protect you.
Leh Meriwether: Yeah, that's an excellent point because if it just says he's responsible for it, and he pays the minimum and it doesn't ding your credit, in the sense-
Todd Orston: There's nothing you can do.
Leh Meriwether: There is nothing she can do. She cannot remove that from her credit. I will say one thing she can do is, this is outside, but she can do ... She has to go to some place that does manual underwriting, meaning that they look beyond the four corners of your credit score. And one of the things that has driven me to do ... to make sure that we do a good job as a divorce firm is what happened to my wife. And so, she had poor representation in hers, and it dealt with credit cards and she wasn't given good advice, and as a result we had to do a lot of manual underwriting for a few years of our marriage. And it's not her fault at all, but because there was things on her credit that in the settlement agreement it said he was responsible for, but there was no details on what that meant.
Todd Orston: Yep. So, we've seen a lot of people get into trouble. And when I say trouble, it's just it has a longterm effect because they're sitting there waiting for it to be paid off.
Leh Meriwether: And so, another good example of that has to do with the children. Some people will just say ... They'll just keep this big, vague thing where they're like, "All right. Well, mom and dad are gonna split custody." Thankfully, the new parenting plans that have come out make that more difficult, but you still need some level of detail in the parenting plan, who's responsible for taking care of what part of the children's daily needs.
Todd Orston: How about decision making authority.
Leh Meriwether: Decision making authority.
Todd Orston: I mean, and again, you're right. The parenting plan orders, this goes back to where courts will often times reject an agreement-
Leh Meriwether: A settlement, yeah.
Todd Orston: ... if it doesn't have all the required terms and deal with all the required issues. But final decision making authority, we've seen and courts have seen may agreements where it's the parties are gonna mutually agree on major issues relating to the children, and that's it. Well, that means that there's no tie breaking method, which means that if you hit an impasse there is no fixing it. There's no getting beyond that impasse, other than one of you is gonna end up filing something with the court.
Leh Meriwether: To get a modification.
Todd Orston: That's right.
Leh Meriwether: To fix it. So, yeah. So, make sure you're addressing all those questions in every key paragraph of your agreement.
All right. The next one is ... The next thing to consider is, what is modifiable and what is not modifiable? And what I mean by that is, when you go to court and when it's done most of the time it's ... You can't revisit that in a later court action, most of the time, in most civil proceedings, and criminal proceedings too. It's called [inaudible 00:31:33]. It's already been decided.
So in divorce world, however, there are two exceptions to that. One is support, and the other is child custody. Those two things are modifiable.
Todd Orston: Because life happens.
Leh Meriwether: Because life happens. But there are times when you can waive the ... your ability to modify child support and your ability to modify alimony.
Todd Orston: Don't do it.
Leh Meriwether: Yeah, don't. I'm sorry. Don't waive it.
Todd Orston: Don't do it.
Leh Meriwether: So, there is times when you can even waive those two things. Usually, child custody, the courts always have the ability to come back and modify that.
Todd Orston: Yeah, that ... You can't do something that's non modifiable. If suddenly you have an addiction, the court's not gonna be like, "Well, I'm sorry. I know wife is doing crack now, but it's non modifiable, so she gets the kids."
Leh Meriwether: I can't waive custody. So ... But what isn't modifiable is the division of your assets and your liability. So, going back to the example that you gave earlier where the person ... It just said that the husband could make the credit card payments, or is responsible for them and that was it, you can't change that. You can't go back to court and say, "Hey, can we make this happen in 30 days?" No, you're stuck. So, that is ... You just can't change it.
Todd Orston: Yeah, so you wanna ... The way that we handle that is dealing with, like what you were saying, the who, what, where, when, why, all of those things. We need to understand what the debt is. You need to understand who's gonna be responsible, whose name is it in? Who's responsible, when is it gonna be paid, how's it gonna be paid, what happens if it's not paid by a certain deadline? If you put all those things in, then it's enforceable, then you have a plan and you're done and you can protect yourself.
Leh Meriwether: Hey, and up next we're gonna hit the last few tips of what you need to take into consideration.
Hey, Todd, while we take a break here, what do you think about taking a moment to speak just to our podcast listeners?
Todd Orston: I think that sounds like a great idea.
Leh Meriwether: All right. Well, first off, we wanted to thank everyone who is listening and downloading our podcast. We are so glad that you've taken the time out of your busy day to listen to us.
Todd Orston: Absolutely. We especially wanted to thank all of you that took a few minutes to post a five star review of our show in iTunes.
Leh Meriwether: Yeah, and if you're enjoying the show and getting a lot out of it and you haven't posted a review yet, we would be so grateful if you would take a moment, or two to post a five star review for us wherever you listen to the show. And if you're really enjoying it, please let us know what is it about the show that you enjoy in the review. If you wanna post a review, but you're having trouble figuring out how to do so, just google, "How do I post a podcast review in iTunes," or Podcast Addict or SoundCloud, whatever you're listening to.
Todd Orston: Absolutely. We'd give you a step by step guide on how to do it, but as soon as the show comes out Apple or Google is probably going to issue an update that changes everything.
Leh Meriwether: Absolutely. Hey, everyone. Thanks so much for listening.
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 1067. If you wanna read more about us, you can always check us out online at atlantadivorceteam.com.
Well, today we're talking DIY divorce and we've been talking about all the things that you need to keep in mind if you're considering doing this. We've talked about one scenario where it makes a lot of sense to do it yourself, but talked about all the other scenarios where it doesn't. And we've got a few more tips that we need to hit in this last segment. They're pretty straight forward. That's why we saved them for the last segment.
The first, so we're on tip number four now and that's that these agreements are enforceable by contempt. And we alluded to that in the first segment of the show, but if you don't comply with these provisions, if you entered in something where you say, "I'm gonna pay $5000 a month," and you're not paying attention or commit to, when you add up the whole settlement agreement it equals five grand, but you only make $4000 a month, or that's your take home, well the court can say, "That's what you agreed to. You need to pay it," and then you can be held in contempt of court.
Todd Orston: Yeah, there's no coming back and saying, "Judge, I don't know what I was thinking. I didn't mean to agree to that." At that point, the court's gonna say, "There's nothing ..." Actually, the court could say, "There's nothing I can do," because the grounds for modification are that there's been a material change of circumstance. If you made 60 thousand dollars, and agreed to pay $5000 per month, 60 thousand dollars, in alimony and you then two years later go back to court and say, "I can't do that." And at that time you're making 60 thousand dollars or more, then there hasn't been a material change of circumstance to warrant a modification. So, you have to be very, very careful.
And contempt is, if you had the ability to do it and you chose not to, might have been difficult, it may have financially put some pressure on you, but you could have tried to borrow. You could have used credit cards. You could have not gone on one or two trips. Then, you could be held in contempt, and that could include, sort of like what you were talking about earlier, jail.
Leh Meriwether: Yeah, and that's ... Nobody wants to go to jail.
Todd Orston: No.
Leh Meriwether: All right. So, tip number five, divorce agreements have exclusions in bankruptcy court. So, a lot of people don't realize this, but when you make a financial commitment in a divorce decree that that can be something that you cannot bankrupt on. So, perhaps you bankrupt, like you said, I've got these credit cards and they are jointly titled in my wife's name and I'm gonna just get out of filing them, but then they come after her afterwards, she can turn around and bring you in for a contempt action and you're still gonna have to pay them because you agreed to render the divorce decree and the court can say, "Hey, this falls into an exemption under the bankruptcy court rules."
Todd Orston: Well, because at that point it's not just purely a debt to a third party creditor. At that point, it's a contractual obligation. You voluntarily contracted to take on responsibility for that debt.
Leh Meriwether: Yeah, in a domestic setting.
Todd Orston: In a domestic setting.
Leh Meriwether: Yeah, because you can bankrupt on most contracts.
Todd Orston: Correct.
Leh Meriwether: But there are exceptions. So, student loans is an exception, and domestic cases is an exception. So, that's something that's critical that people need to keep in mind.
All right, number six, third parties don't have to follow your agreement. And we've, again, have alluded to that, but what we mean by that is, because I've heard people call up and say, "Well, my divorce decree says that my husband's responsible for the credit card, but he quit paying it six months ago and they're coming after me. I don't have to pay it, do I?" And unfortunately, we have to explain, "Yeah, because you entered an agreement to be jointly responsible for this credit card with the credit card company. The credit card company was not part of your agreement with your husband. So, you're still obligated to pay the bill, even though he's not paying it." Now, you can bring him into court for contempt-
Todd Orston: Yeah, and there's something called indemnification language that is gonna be included in all of our agreements, but in most agreements. And what that means is that you have the ability to then, in essence, look to your ex-spouse and say, "You are responsible for this." And basically it means, if a third party comes after me I can look to my former spouse, and you need to indemnify. You need to make me whole. And so, that is the case but it's a huge headache, and it's a headache that you can, again tying into the overall theme of the show, that you can potentially avoid if you do things right the first time.
Leh Meriwether: Yeah. And it's ... Another example is dealing with a house, because that can be a really big one, and that was another thing that happened to my too, that he was gonna pay it. And here's the other thing, I probably need to point this out, that you can see people that while they're married they appear responsible. They're paying the bills, but divorce impacts people differently and there have been situations where the divorce was so emotionally devastating, at least on a short term basis, to one of the parties that they just quit paying everything. And they're like, "Oh, I don't understand. They were so responsible while we were married, and now they're not paying and I relied on their past," basically past performance in this situation. That's why you can't do that. That's why it's so important that you have the right language in your agreement.
All right, number seven. I wanted to spend a little time on number seven because I think there's a lot of little nuances here.
Todd Orston: Absolutely.
Leh Meriwether: And there's things that people need to understand. So, there may actually be resources to hire an attorney in your situation. Now, we've seen situations where one spouse controls all the money, or at least the vast majority of it. You may have two working spouses, but one makes 20 grand a year and the other makes 200 thousand dollars a year, and the bread winning spouse, and it could be the husband or the wife because we've seen those scenarios, says, "Well, you need to use your 20 to pay for a lawyer." But meanwhile, this other person has all this money.
And so, the first reaction is, "I can't afford a lawyer because you're not even giving me money for child support," or, "You're not giving me money to pay my car payment or whatnot so I can't afford a lawyer." Well, in Georgia at least, and I know there's a lot of states out there that have a similar code sectioned. How judges apply those code section's another story, but there are code sections out there that says, "Hey, look. We want the parties to be on a even playing field." And so, the court can order the higher income earner to pay some or all of the attorney's fees of the other party to equal it out.
And so, I think that's something that's really important that people need to understand.
Todd Orston: Yeah, it's discretionary. It's gonna be up to a court, and typically what we're talking about is an award of legal fees. It's gonna come at one of two times, either as interim fees, meaning it's during the pendency of the case before it's finalized. You look to the court and say, "Hey, my client," we would be saying, "Our client needs financial assistance. Cannot afford an attorney without the financial help of the other spouse." And then, the court can give those temporary or interim fees. Or, you have to pay everything yourself and at the end you can ask the court to award some fees. But again, that's not helping you throughout the pendency of case.
Leh Meriwether: Right.
Todd Orston: But again, it's discretionary.
Leh Meriwether: Yeah, and we see these situations where there's ... one party's using these bullying tactics. Where they're saying, "Hey, look. If you don't sign this agreement I'm taking the kids from you," or, "I'm gonna make you pay alimony for the rest of your life if you don't sign my agreement." So, I mean, on both sides I've seen ... I've seen both parties play the ... use the kids, which horrible at all kinds of levels, but don't be frightened if a spouse says, "If you don't sign this agreement I'm taking your kids from you," because they don't have that ... The court, when you get into divorce court the judge is the one who decides who the kids are going with. So, don't let one parent try to bully you into signing an agreement that you may feel ... because you feel like you can't afford a lawyer.
I'm gonna circle back around to our ... One of our first things was that, well, just borrow 200, 300 bucks from a friend and go have a consultation to find out what your rights are.
Todd Orston: This goes back to what we said, it's not always all or nothing. I mean, I get it. Hiring an attorney's a lot of money. I talk to people every single day and we talk about what they are capable of doing. And there are people who call up, and good for them, it's not even an issue. "I wanna hire you. I have the money. I'm gonna hire you," great. Then there are many, many, many people who call us and we will spend a significant amount of time talking with them. And we'll talk pricing and they'll be like, "I can't do that. I wish that I could, but I can't."
Leh Meriwether: Yep.
Todd Orston: Doesn't mean that the conversation ends. That's when we start talking about doing a one-fer coaching session, or consultation.
Leh Meriwether: An ongoing coaching session.
Todd Orston: Or an ongoing coaching, which is basically like doing a a consult but then you have the ability to follow up.
Leh Meriwether: Yeah, "Hey, I've got a hearing coming up. What do I need to do to prepare?"
Todd Orston: Correct.
Leh Meriwether: And, "What evidence can I get into court," and we can do that and we have successfully.
Todd Orston: And different attorneys offer different things. It just really comes down to asking the right questions and figuring out what your ability is, in terms of payment, and what is offered by the attorneys.
Leh Meriwether: So, as a quick wrap up because we're just about out of time, here's the seven quick tips. You don't have to retain a lawyer to obtain good legal advice. Two, are you answering the who, what, when, where, how and to what extent questions? Three, understand what is modifiable and what is not. Four, these agreements are enforceable by contempt. Five, divorce agreements have exclusions in bankruptcy. Six, third parties don't have to follow your agreement. And seven, there may be resources to hire an attorney.
So, those are the six ... seven things you need to consider when getting a divorce. And hey, everyone, thanks so much for listening. If you wanna read more about us, you can always go to atlantadivorceteam.com. And we actually, if you missed part of this or wanna listen to it again, we put the shows up on our website. Thanks again.
Speaker 3: This audio program does not establish an attorney/client relationship with Meriwether & Tharp.