Episode 154 - A Smorgasbord of Family Law Questions and Answers
Application of the law to questions is one of the best ways to understand how divorce and family law work. Leh and Todd give practical advice on how to deal with variety of challenging situations in this show. The topics covered include child custody, child support, modifications, equitable division, and dealing with DFCS.
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. Here you'll 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 read more about us, you can always check us out online atlantadivorceteam.com. It's that time of the year again, Todd.
Todd Orston: Ah.
Leh Meriwether: I'm [inaudible 00:00:37]
Todd Orston: [crosstalk 00:00:37] Halloween.
Leh Meriwether: Halloween?
Todd Orston: I don't know. What I mean…
Leh Meriwether: We're past that.
Todd Orston: That time of the year. I don't know. Oh, for me to mock you mercilessly during the show.
Leh Meriwether: That's every show.
Todd Orston: Okay.
Leh Meriwether: That's not a time of the year.
Todd Orston: All right. What time of the year-
Leh Meriwether: It's time for Q&A.
Todd Orston: Oh.
Leh Meriwether: Yes. Where we take questions.
Todd Orston: I wish you'd have told me before I got here. I have a whole other show prepared.
Leh Meriwether: Well, I wanted to surprise you and put you on the spot.
Todd Orston: I am surprised.
Leh Meriwether: All right. Well, this is one of those shows where we take questions that we've received or have come across from time to time and we talk about on the air. We sort of break them down and we do, often we'd go much further than actually answering the question. We use those questions as an opportunity to explain divorce or family law whatever the question may be. I have a smorgasbord here, I didn't narrow these down to just divorce. We've done that before, but decided let's go with this smorgasbord.
Todd Orston: Oh, my god. Don't say that word again. Seriously? Seriously?
Leh Meriwether: How about a cornucopia of questions?
Todd Orston: Oh. How about just a lot?
Leh Meriwether: Okay. Plethora?
Todd Orston: Plethora, yeah. You can handle plethora.
Leh Meriwether: Okay. All right.
Todd Orston: Yeah. We do this for like you were saying because, I mean, as a firm and as attorneys, we know people have a lot of questions and sometimes getting access to attorneys is difficult or costly. We do what we can to try and answer questions and hit different types of issues in these questions so that anyone can listen to the shows, can read a transcript, can go on to our website, and can educate themselves because really when it comes down to it, such a big part of this entire process is about education.
If you can educate yourself or have someone, an attorney, help educate you about the process, it can avoid the pitfalls that a lot of people, unfortunately, can't avoid where they get stuck and they're trying to settle but one party wants one thing, the other party wants something dramatically different, you don't know what's right, you don't know what's reasonable. We try to give some information to help and maybe that'll help you bridge the gap and be able to settle.
Leh Meriwether: All right. Let's dive in. Let's start with… Actually, this is a nuanced child support question. Question is, can I sue my ex-husband over travel fees? Since the order was established in 2014, he has not made any travel to pick up our son. He said that he would spend $545. Let's say, no. He would pay $545 in child support, but we would receive $300 because of that 545, he would be spending $245 to travel, the cost to travel to see his son, but he hasn't traveled at all in the four-year period.
That's what's called a travel deviation. That's allowable under Georgia law and many other states have a similar type of deviation. You have a standard set of child support. What it sounds like is the guideline said he should have been paying $545, but since he was claiming it was going to cost $245 to visit, because I'm guessing he lived far away from where his son was living that he gave him deviation so he didn't have to pay as much. But, in this case, he never visited. He used that as an excuse not to pay as much child support. Now-
Todd Orston: Or maybe his motivation was he was going to exercise. I mean, I'm not going to be-
Leh Meriwether: Well, you're being awfully generous here.
Todd Orston: I'm trying. I'm trying. It's the season, right? No. But you're right. Travel deviations are normal and really this can be fixed. It's a modification really. At this point, that's really what you need to be looking at.
Leh Meriwether: In this case, you can't… The short answer is no you can't get that money back. What you can do is follow modification, and in this case, she can actually… I think in Georgia anyways, the statute says if you got a deviation, a downward deviation because of travel deviation and you did not exercise that travel deviation or is, that I think it says, "You shall get attorney's fees."
You can come back to court and the court may be required to award you attorney's fees. I don't know how that impact… There's been some changes in the law since that was put in the statute a while back but…
Todd Orston: It would definitely be worthwhile talking to an attorney, okay, because what you're talking about is the attorney fee award that goes along with a modification. The underlying way to fix this is a modification, would be a modification of child support where you are basically going in and you were saying that there has been a material change of circumstance that change being, he got a deviation for travel, he is not traveling anymore. Therefore, judge, child sport needs to be revisited and reset basically and you don't include a travel deviation. Under these circumstances, you would probably have a good chance of getting it.
Leh Meriwether: Yes. The other thing I might say is don't wait. Don't wait four years. If he's not, if he hasn't visited… I'd give someone a year and if they didn't visit in that year time period, I would come back to court.
Todd Orston: Well, and in this one, I don't know if you've waited long enough, 2014. No. I'm joking. That was a little sarcasm. If truly this was established, child support was established in 2014, and since that date, he has not done any traveling, that's more than enough time.
Leh Meriwether: Yeah.
Todd Orston: But you're talking about, for other people listening who might be dealing with a similar issue, we are not talking… I agree. We're not talking about the other party misses one visit-
Leh Meriwether: Yeah. Correct.
Todd Orston: … or something. There has to be a pattern of inactivity, of a failure to exercise parenting time. If it's one or two times, even maybe three or four times. The court might look at it and go, "Well, hold on one second. Life happens, they weren't able to visit, but I'm not going to change things."
Leh Meriwether: Or what could have happened like I've actually seen this happen before where they had plenty, they thought it was going to cost them X number of dollars to visit, and then there was a crisis with gasoline and the gasoline prices shot through the roof, and so all of a sudden that $245 wouldn't last for one trip a month. It basically doubled. Now, [inaudible 00:07:12] they had to cut the travel in half because there's not enough money.
Todd Orston: The court is not going to, in essence, punished that one party because life happened because something happened. You really have to think of all the facts and circumstances surrounding that issue before you raced to court, file a modification because you don't want to do it if you don't really have a good chance of success.
Leh Meriwether: Right. All right.
Todd Orston: All right, next one. My mom has temporary custody, can she deny me visitation? Here the person says she got, I'm assuming she means my mom got custody of my kids when I went to rehab. I stayed there two years but kept them every other weekend. Then, I moved in with them but never got custody back. I then relapsed and got help and two months after leaving home. Now, I haven't been able to see them since May.
Again, forgive the choppy reading. I'm doing my best trying to summarize what is written here, but basically, this is somebody that has an unfortunate issue. All right. A drug or alcohol whatever it is, substance abuse issue. What it sounds like is a guardianship was established where this person's mother, so the child or children's grandmother basically got a guardianship where she was able to then take over the parental duties for these grandkids.
Leh Meriwether: Put the kids on her, probably on her insurance [crosstalk 00:08:44]
Todd Orston: Right and enrolled them in school and all the things that a parent would be able to do now with a guardianship, the grandmother can do. Basically, the only thing that you can do at that point and you don't want to do this if you are not clean.
Leh Meriwether: Yeah.
Todd Orston: If you're still battling with, if you're not stable and you're still battling with substance abuse issues, then it's not the time to try and fight this fight, because of court's going to be considering, "What is in the children's best interest at the very core of that decision?" It's what's going to be best for these kids? If you're not clean and if you haven't successfully dealt with these issues and put some time.
In other words, giving it some time where I'm clean. It's not like, "Well, I've been clean for a week."
Leh Meriwether: Right.
Todd Orston: All right. You have some time where you've been clean, you've been on the straight and narrow, you… All right. Then, you can file to try and terminate the guardianship.
Leh Meriwether: Right.
Todd Orston: What that sometimes opens up the door to if maybe you need a little bit more time to show stability, maybe it opens up the door at the very least to negotiating with the grandmother, if the grandmother says, "I'm going to fight you and I think I have a winning case." Maybe you can then work in some parenting time, some visitation, if you will, with the kids while you continue to work on yourself.
Leh Meriwether: Yeah. I would add to that if you go into court too early and you truly have not gotten a hold of the substance, whatever you're struggling with, the court action, all the stress of the court action could send you into another relapse.
Todd Orston: Yeah. It's a great point.
Leh Meriwether: I think there's two sides of this coin. There's the legal side, and then there's the practical side and that's what I think people should weigh a lot more heavy-
Todd Orston: Great point.
Leh Meriwether: … is the practical side. I think if you… Going back to your point, you show grandma or your mom, you show, I've been clean for two years, you're probably not going to have a fight at that point.
Todd Orston: It could be a year. It could be eight months. It could be… You need some evidence to show you are successfully dealing with this issue and you are ready to step back into that parental role.
Leh Meriwether: Up next, we're going to continue to break down some, a smorgasbord of questions. I just wanted to let you know that if you ever wanted to listen to the show live, you can listen at 1:00 AM on Monday mornings, WSB. You can always check us out there as well.
Todd Orston: Better than like counting sheep I guess, right?
Leh Meriwether: That's right.
Todd Orston: You can turn on the show and we'll help you fall asleep.
Leh Meriwether: There you go.
Todd Orston: I'll talk very soft.
Leh Meriwether: Welcome back, everyone. I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether and Tharp and you're listening to Meriwether and Tharp Radio. If you want to read more about us, you can always check us out online, atlantadivorceteam.com.
Well, today we decided to take on some questions and answer them on the air, trying to throw some curve balls at Todd. See if I can trip him up. He's not tripping yet.
Todd Orston: You will not trip me.
Leh Meriwether: I got one that-
Todd Orston: You almost trip me just now, I didn't even know if you were talking to me.
Leh Meriwether: I got something that may trip you up. Well, we're talking about drugs in this one so.
Todd Orston: All right. I will take my chances.
Leh Meriwether: Can DCS drug screen me if I live in a different state and are visiting? I'm visiting my mother in another state and she has temporary custody of three children due to their parents being on meth. I was told because we were going to be in her home that DCS will make us do a drug screen. Can they legally do this if I'm not a resident of that state?
Todd Orston: All right. That's an interesting one. First of all, DCS can't… Tell me if I'm wrong. They can't force you, they're not putting a gun to your head, taking you to a drug screening location and forcing you to do anything. But if they are the agency in charge of making decisions or giving opinions to the court that relates to custody and that custodial issue and decision could affect your rights, you saying, "No. I will not submit to the test," might affect, not might, will likely affect and impact the DFCS workers decisions and opinions relating-
Leh Meriwether: Recommendations.
Todd Orston: … and recommendations relating to custody. So, no, you come in for a holiday, do I anticipate a DFCS workers showing up with three officers and forcing you to go potty in a cup? No. I don't think that's happening. But by saying no, if you are part of an active investigation and there are things-
Leh Meriwether: Well, I think in this case it was his mom that is or his mom has custody, and so he's concerned or he or she is concerned if they go visit that since they're in the house with the children, they could, he's concerned that can he be forced. I mean, you answer the question I would think correctly. Well, at least, here in Georgia, you can't be forced, but they could, because if they… If they placed the children with mom or grandma, they can take the children away from grandma if they think the children-
Todd Orston: For instance-
Leh Meriwether: … are not safe.
Todd Orston: Right. For instance, if the parents are saying your mother, right, the person who has custody right now, temporary custody, is not safe because she has children, you, and you come into town all the time and you're doing meth, and you're doing meth around the kids, okay, then if you say, "No. I'm not submitting to the test." Then, what are they going to believe? They're going to then say, "Well, you know what? Maybe he is doing meth, and therefore, maybe this is an unsafe environment, and therefore, maybe we do need to take the kids away." It could absolutely impact your mother's case as it relates to the placement of the children.
Leh Meriwether: You just have to decide, I mean, you could… I don't know other states so right now we're just talking about Georgia. I don't know if they're visiting at other state. I would imagine it's the same thing because there's no probable cause to force someone to do a drug test.
Todd Orston: Right. There's no court order either forcing that-
Leh Meriwether: That person.
Todd Orston: … that you submit.
Leh Meriwether: Right.
Todd Orston: Right.
Leh Meriwether: I would imagine that you couldn't, but you need to talk… Well, first off, if you're not doing drugs, there's nothing to worry about but if there's an issue there, maybe marijuana or something like that or there's a possibility of a positive drug test because of perhaps you have an opioid subscription, a prescription, not subscription, a prescription which will be legal, but it just creates a mess.
Talk to your mom about it, find out how serious the situation is, and how likely are they just to show up at the house?
Todd Orston: All right. How about this one? What do I do when a stepparent threatens a child and the child feels endanger and scared? The writer writes, "What do I do when a stepparent has been harassing and threatening a child?" This parent has not adopted the stepchild and has no legal right over them. They have been to prison before for stealing money from a country club, then burning the money and the club down. Lovely. The child stood up for his mother when he was being harassed and he continued to tell the child, he didn't care if he went to jail again. The child would not talk back again or else, i.e. there was a threat.
Basically, this is a child is living with the mother and a stepparent and that stepparent's behavior is less than ideal. What can be done? The bottom line is if the writer, I couldn't tell, but if the writer is the other parent, then once again, it's a modification. I mean, at that point what you're doing is you are petitioning the court for a modification of custody and parenting time by stating that it is an unsafe, unstable environment that this person poses a threat or danger to the child or children, and therefore, the courts intervention is required in order to safeguard the child or children and take them out of that unsafe, unstable environment.
Leh Meriwether: You have to be careful here because I'm going to throw in this, the word of caution because we know that sometimes kids exaggerate things. We don't know if the step-parent really had done these things, the child could be just saying that maybe-
Todd Orston: Or the child could be just misbehaving, and then when he plays parent, the child is angry.
Leh Meriwether: Right. Which we've seen happen before. One parent gets a completely different story and all that was, was a, it was, there was no, there was discipline going on, there was no corporal punishment, but there was discipline, the child doesn't like the discipline because they don't like the person who's giving the discipline. They tell the story or maybe in their minds it's true, but it's a dramatic exaggeration of what actually happened.
You have a decent relationship with the other parent, I strongly recommend first calling the other parents say, "Hey, Johnny just reported this to me. I want to know, we need to be on the same page when it comes to our son. What's going on?" No accusing. Just say, "Here's the fact I heard." Then asked a question.
Todd Orston: That may not be possible though because we've also seen situations where if a child is saying, "I am… I'm being abused emotionally, physically, psychologically, and therefore, going to the parent would open that child up to retaliation or whatever. I understand, it may not be possible. I think what you're saying though is a 100% spot-on and correct.
The problem is if you can't go to the parent, which would be ideal, the other parent, to identify whether or not there's any truth to this, then you better have a heart-to-heart with the child and do what we do as attorneys, where it's almost like a little cross-examination, where it's like, "Look, if I go to bat here, if I'm going to do something to try and protect you, I better not find out that you're misbehaving, that you did…" If it's like, "Well, he yelled at me and that was wrong."
Okay, but you also stole a $100 out of his wallet. You broke into the liquor cabinet and they have a right to be angry. I need to know, what did you do? Did you do something wrong that as I'm fighting for you the judge looks and goes, "Well, that was reasonable parenting." You have to… Don't just jump into this, file something, and think, "I'm going to win the day." You better be sure about what you're trying to accomplish.
Leh Meriwether: Yes. Because I've seen it happen both ways. One where the child was being disciplined, dad heard a different story, big old case starts, both parties spend lots of money, and then nothing at the end changes because it, and unfortunately, it took, what? A year of litigation before the true story came out, which was unfortunate.
I've also seen where there was actual, the child was actually in danger and this was a real interesting case because it was a hotly contested custody case, where dad won primary, physical custody, and mom at… This is a few years later, he had managed to actually develop a co-parenting relationship with his ex-wife despite the really contested divorce case, and because of that relationship, because he worked hard to develop that co-parent relationship, gave her a lot of extra time, that sort of thing.
But she had met somebody that was physically abusive and the daughter kept seeing it. He went to her and said, "Look, what can I do to help you get out of situation because I know you love our daughter, you know I love our daughter, what can I do?"
What he wound up actually doing was giving her like $1500. He didn't have to. He gave her $1500. She broke up with the guy, moved out, when he wasn't there. Then, she got a place of her own using the $1500 and that solved the problem. That $1500 was far cheaper than a contested litigation.
Todd Orston: Absolutely.
Leh Meriwether: The answer isn't always litigation. If you can work on that co-parenting relationship. Well, that's why co-parenting is so important, really.
Todd Orston: But it's not only about or it's not just about litigation. Litigation should be the last recourse, okay? It's all about, in my mind, education. Meaning, you have to have the information you need to know whether or not you have a good case, strong case. People come to attorneys because we have the knowledge and experience to say, "Do you have a case, do you not have a case. You have a good argument or a bad argument."
Don't just jump into litigation unless you know you have the evidence necessary to accomplish what you're trying to accomplish.
Leh Meriwether: Exactly. Up next, we're going to answer the question, how do I file a complaint against the judge who wouldn't hear my side in a case and hung up the phone during a court call?
Todd Orston: Hey, everyone. You're listening to our podcast, but you have alternatives. You have choices. You can listen to us live also at 1:00 AM on Monday morning on WSB.
Leh Meriwether: If you're enjoying the show, we would love it if you could go rate us in iTunes or wherever you may be listening to it. Give us a five-star rating and tell us why you like the show. Welcome back, everyone. I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether and Tharp, and you're listening to Meriwether and Tharp Radio. If you want to read more about us, you can always check us out online, atlantadivorceteam.com.
Todd, I want to hear your answer to this.
Todd Orston: The answer?
Leh Meriwether: Or is the answer, "Leh, you answer it."
Todd Orston: The answer is blue.
Leh Meriwether: Blue. Okay. All right. Well, the question is, how do I file a complaint against the judge who wouldn't hear my side of the case and hung up the phone on me during our court call? I have a family law case with my ex-husband and he's wanting to take custody because she is in school and feels that I'm using the excuse as for her not to visit him. I'm in Georgia, he's in California. They believe that the schools start at age six for the kids, when it's actually age four.
I get to read between the lines, I guess, she enrolled the child in preschool and maybe in California that starts at six, and so she's trying to block the other parent's visitation time as a result. Well, so the important lesson here is, first off, I don't know California law so we're going to have to speak on Georgia. The important lesson here is you must get a transcript of any court hearing.
So a transcript is where a court reporter is taking down every word you say, the judge says. Basically, anybody involved in the case, every words being taken down by the court reporter. There's a cost for it, most court reporters here in Georgia, they're $45 an hour, and then you have to split that cost with the other side if they agree. You need to come into court with your checkbook ready to pay for the court reporter.
Now, there are some places that actually will audio record everything so it's automatically taken care of, but then you have to pay for the transcript later. Before you walk into that courtroom or show up on that phone, you need to know is this case being taken down and how, because if you don't, there's nothing you can do, because there's… It's your word against the judge in this case and the other side probably too, so it's critical it's taken down because if it is and the judge did something wrong, that can be appealed.
Todd Orston: Well, yeah. There's really two sides or two ways to attack it. You've got the appellate issue you were just talking about. If there was an issue of law that the judge just violated your rights by not giving you your say, then it could have opened the door to an appeal. If the behavior was truly egregious, then you want to contact the Bar. If this is in California there might be some kind of a judicial qualifications committee or commission that basically can, if the behavior was bad enough, and it's got to be really bad, but could look at whether or not the behavior rose to level of it deserve sanctions of some kind.
But I'm telling you right now that should be your last option, especially if you have a pending case and that is something absolutely contact an attorney in California. If that's where you're saying all this happened, pick up the phone, do whatever you have to do, get an attorney who understands the law, understands the judge, understands the system, and get the advice you need because you do not want to go down that path of start, you start throwing stones at a judge only to find out that the judge did everything correctly, you just didn't understand the system.
Now, you've just painted yourself as somebody who is just litigious and unreasonable and that could affect you in different ways.
Leh Meriwether: Because procedurally, maybe there's a procedure in California that if someone filed a motion and you don't file a counter to that motion, a response to the motion, you don't get to say anything in the courtroom in response. I don't know the rules there, but that there is that possibility so to your point, like the judge could have been following the procedure correctly, you didn't know it, and then you make a complaint against the judge, and now, you've really ticked off the person deciding your case.
Todd Orston: Just so you understand, they may have the right to terminate the call whenever they want. I have seen judges in a hearing, they finish the hearing, they are done, another party or a party or an attorney wants to say something else and the judge stands up and walks off the bench. That's sort of the in-person equivalent of hanging up on them. Can a judge do that? Maybe. That's why talking to an attorney, it'll educate you and you'll understand whether or not you do have rights or any kind of recourse.
Leh Meriwether: All right. Another question.
Todd Orston: All right. How about this one? Can I pick my children up on their father's parenting days instead of his mother while he is out of state for work? Father is out of state for work for a week during his parenting time, he is going to allow his mother to keep the children instead of the children's mother. The children's mother has primary custody and the father has secondary custody.
Basically, what I'm understanding is that the biological mother of these children, the biological father, he works, he has secondary custody, and during a period of time that he's supposed to be exercising parenting time is going to be out of town for work, and instead of that person, the father, saying to the mother, the biological mother, "Why don't you go ahead and take the kids? I'm going to be out of town." The biological father is like, "Ah-ah, grandma's going to step in into my shoes and will provide the care necessary for the kids, and no, you don't need to do anything." Now, the question then becomes, can I do something about it? Leh?
Leh Meriwether: Well, it depends on what's in the parenting plan. If there is a rule… It's called a right of first refusal on the parenting plan, which most judges actually don't like, that says that if a parent is going to be gone for more than 24 hours, for example, or 12 hours or they vary, that the other parent can step in during that parenting time. If there is no right of first refusal on the parent plan, dad can do whatever he wants with the kids on his time.
In fact, we actually try to encourage that when you have a secondary custodian, you have some grandparents that we're active in the children's lives and they're thinking about, "Well, do I need to file an action and get involved in the divorce case?" We say, "No. No. Why don't you let, you share some of that time with dad." The paternal grandparents because we try to recommend that sometimes so dad could do what… I mean, as long as he's not doing anything illegal or putting the children in harm's way, what he does on his time is entirely up to him. What you do on your time, a mom does on her time is entirely up to her.
Todd Orston: Yeah. It also is going to come down to what kind of out-of-town job are we talking about? Meaning, what's the duration? If we're talking about a weekend, and again, building on everything you already said, if there's something in the parenting plan, right of first refusal, all right, if there is a right of first refusal, then great. Then, you just have to follow the rule as it's stated in your parenting plan order.
But bottom line is you could potentially go back to court and modify if warranted. Meaning, if this is for the next weekend or for even a week, he's going to be out of town working, you don't want to do anything. If he took a job on an oil rig in the Gulf and he's going to be gone for six months to a year-
Leh Meriwether: Six months. Yeah.
Todd Orston: … then, that may absolutely open the door. If he's like, "No. No. Every visit will now be with grandma." That may open the door for you to go back to court. That's a material change of circumstance that you can say to a judge basically, "While I'm okay with grandma having some time, grandma is not the father, and therefore, while he's out of town, we need to work something else out and I want the children to primarily be with me."
But, again, the facts have to warrant that kind of effort because that's a lot of effort, could be a high cost and it may not even be successful.
Leh Meriwether: Exactly. All right, speaking of warrants. We can squeeze in one last question. Why was my ex not charged with parental kidnapping? My 12-year-old daughter called for her mom, unknown to me, for her to come and get her during my visitation. We had joint custody. She was upset, I wasn't allowing her to watch TV, and so she called her mom, her mom shows up, she tries to take the children, police are called, daughter stays with me, but she was not arrested or given a trespass warning for attempted parental kidnapping. Why was she not charged with parental or attempted parental kidnapping for coming to get my daughter on my time?
Todd Orston: Oh, I'm waiting for your answer.
Leh Meriwether: So, I want you to answer it.
Todd Orston: Oh, it's my turn. Okay. Got it. Got it. Because they're a parent, all right, and they have custodial rights, it sounds like they do have some custodial rights, the police are going to look at this as a civil matter where they are going to say, "If they are violating a court order, then it is contempt of court." Meaning, it can be looked at as contempt of court.
Usually, where you see, as a former prosecutor I would tell you, that usually where you see parental kidnapping cases is where it's either somebody who is not, has no legal rights, so maybe there's no legitimation or, and that's a situation where they could have legal rights but they just haven't established them yet or somebody that truly like a grandparent or someone, an uncle, someone who doesn't have and can't get legal rights and they just abscond with the child, that's parental kidnapping.
Usually, when you're dealing with a situation where it's a parent taking a child not during their parenting time, you're not going to get a criminal charge brought against them, what you're going to do is you're going to immediately contact the police, see if they will help, if they don't end up helping, you run to court, you file an emergency motion for contempt basically, in order to try and get your child back.
Leh Meriwether: Right. The police just don't like to get involved. The only other time I've seen parental kidnapping is if there was a order that the other parent had supervised visitation because of some drug or alcohol addiction and they suddenly take off with the child. That's when I've seen the police get involved as well. Well, we'll hit some more questions when we come right back.
I just wanted to let that if you ever wanted to listen to the show live, you can listen at 1:00 AM on Monday mornings, WSB. You can always check us out there as well.
Todd Orston: Better than like counting sheep I guess, right?
Leh Meriwether: That's right.
Todd Orston: You can turn on the show and we'll help you fall asleep.
Leh Meriwether: There you go.
Todd Orston: I'll talk very soft.
Leh Meriwether: Todd, I got a good question for you.
Todd Orston: Oh, god. Oh, the comments I could make right now. What is your good question, Leh?
Leh Meriwether: Here's the question. My husband and I agreed on a divorce and he would move out by the end of the year. Now, he's changed his mind, what can I do? This is my second marriage to my husband but we both agreed that this, we missed this one too. Now, that we are close to the time for him to leave, he has changed his mind. He wants to stay until April of 2020. His name is not on the deed and he has stopped paying any of the bills.
He has taken his name off the bills [inaudible 00:34:29] name from his account and we both closed the joint account. Do I have any recourse to have him removed?
Todd Orston: It depends. Depends on what I'm… I'm not understanding here where it says my husband and I agreed on a divorce. If that means that you have not just agreed in concept to the fact that you are going to go through a divorce again, but you have reached an agreement and have written out that agreement, and you have a signed agreement, maybe it's even filed in a divorce action, very, very different.
If you have agreed in concept to some terms and those terms include that you will get sole use and possession and ownership of the home and he will move out by a date-specific, then if he wakes up and he says, "Yeah, by the way, I'm not moving out." Well, then, you don't really have recourse because you don't have an agreement. You can't enforce something like that or it becomes very difficult to enforce something like that.
The court is going to want something in writing that the court can enforce. If you, on the other hand, have an agreement and it's written and it's a contract and now he goes, "Well, yeah. I know I was supposed to move out today, but give me another six months." Your response is, "Okay. I need you out. I have an agreement and if you don't get out…" If the case hasn't been finalized, you better start working to get that case finalized so that settlement agreement becomes an order of the court. That's how it works.
You file a, what we call a final judgment to creative divorce, and that will incorporate a settlement agreement. Once that happens, the terms of the agreement become a part of the order, it can be enforced by a judge. You want to get that done as quickly as possible so you can move to enforce that agreement. If that's already been done, then you may have to file a contempt action with the court saying he's not in compliance with the court order, that requires him to move out by a date-specific, and hopefully, the court will not only have him, not have him removed, but make sure that he is removed, but could also sanction him.
Leh Meriwether: Right. If they haven't filed anything, probably her next best step, if he's going to suddenly not cooperate at all, she needs to go ahead and file for divorce, and if nothing's been input in writing, she would need to push for mediation as quick as possible or if there's some tension in there, in the household, she could ask for a temporary hearing and ask the judge to make him get out.
Todd Orston: The court might look at that favorably. Meaning, if this happened months ago and you've done other things to separate and head down this path of divorce and the court hears the story that you entered into this agreement and he was supposed to do XYZ, he was supposed to move out by a date-specific, and now all of a sudden, he's not doing it. The court could look and go, "Well, but you've done all these other things too."
Leh Meriwether: Right. Like, stop paying all the other bills.
Todd Orston: Yeah. Right. No. Go ahead, sir. I want you out. It may not be that date but, hopefully, it's close to that date, and then you could focus on getting the divorce.
Leh Meriwether: Yeah. All right. Do I have to give my jewelry back after a divorce? I got married in Georgia and two weeks later, he decided to leave me. Three months later I got served with divorce papers and he's asking for his gifts back such as engagement ring, wedding ring, and a gift which his mom gave me. In Georgia, do I legally have to return his gifts and the engagement ring?
These gifts like an engagement ring, that's considered a conditional gift. The condition is I'm giving you this ring and if you meet the condition, we get married. It's yours. Now, the wedding ring arguably is marital property but he can't force you to give back an engagement ring. He might argue those are "marital property." The judges don't… I've never actually tried a case with this.
Todd Orston: No. Yeah. Here's the challenge. The challenge is sort of like what you were talking about. The wedding ring you get arguably during the marriage. It's like-
Leh Meriwether: Well, during the ceremony. Yeah.
Todd Orston: During the ceremony and you're sort of getting it right at the beginning of the marriage. The engagement ring you got, it was a premarital gift-
Leh Meriwether: That's yours.
Todd Orston: … a conditional gift so when you get into a divorce situation and you were talking… Here in Georgia, it's called equitable division of property. When you're trying to divide property equitably, it doesn't mean it has to be 50/50. It doesn't mean equal. It means what's fair and reasonable under the circumstances of your case.
Then, the courts can be looking at it and looking at all these facts and go, "Okay, well, what's the marital property? What's the separate property?" Marital property the court might go, "Well, the wedding ring and there might be some other jewelry and gifts." If gifts were given beforehand, if you got a watch for a birthday or something like that, that's your separate property.
Leh Meriwether: Right. That's why the engagement ring is your separate property.
Todd Orston: Right. So, it becomes difficult if not impossible to get that back. Meaning, him to get it back. Wedding ring might be deemed marital property.
Leh Meriwether: Which I think you're right that it was given before the announcement that they were married. It's part of the ceremony so arguably that's separate property too.
Todd Orston: Yeah. So, and the law… I mean, I've seen courts go different ways on this so I'm just telling you this. What you have going for you is that they are gifts and often times courts will want to allow you to keep certain gifts, but you've also been, what's going against you is, it's a two-week marriage.
Leh Meriwether: Yeah.
Todd Orston: A court might be looking at this going, "Well, hold on one second. I mean, why is it reasonable for you to keep all of this jewelry, all of this expensive property when you only stayed married for two weeks?"
Leh Meriwether: Now, my counter to that like if you were to argue that would be, "Judge, it's his… He's the one who moved out. He's the one asking for this and she spent $20,000 on this wedding ceremony." [inaudible 00:40:46] and so, "Look, if the court's trying to be fair, why should that, he just…"
Todd Orston: That is the counter. Right.
Leh Meriwether: That's the counter.
Todd Orston: Absolutely. My argument was not saying that's the right one [crosstalk 00:40:58]-
Leh Meriwether: Right. You're just saying that's the argument.
Todd Orston: … Devil's advocate, his argument or the court… Well, his argument would be, "Why should you dedicate two of your weeks to me, and then all of a sudden you get to keep thousands and thousands of dollars' worth of jewelry?" The court might look at it that way and go, "I'm going to give some of that jewelry back."
Leh Meriwether: I think the short answer, I think this is more of a practical answer than anything.
Todd Orston: I agree.
Leh Meriwether: How much is that ring worth and how much money are you willing to spend in attorney's fees to keep it? If you're talking about $30,000 ring and it's a two-week marriage, you could probably get in front of a judge pretty quick for a final hearing, but if it's a $3000 or $4000 ring, you're going to spend that much with a lawyer easily, if giving him back one of the rings makes this happen and gets rid of this person that sounds like they weren't much of… I mean, that just sounds crazy to me.
I mean, getting married, going through all that, and then leaving after two weeks. I mean, this sounds to me like they're doing you a huge favor. You may just want to give it back and just be rid of them. I mean, that-
Todd Orston: But it depends… You're 100% right. It depends on what kind of a fight you want.
Leh Meriwether: Yeah.
Todd Orston: I mean, if your tolerance level is pretty high and you're like, "I don't care. I'll see you in court." Well, then, okay. But you know what you're getting into.
Leh Meriwether: Yeah. All right. Are you ready?
Todd Orston: Yeah.
Leh Meriwether: Okay. It's kind of a long question. We only have two minutes left so you got to give a quick answer.
Todd Orston: All right.
Leh Meriwether: All right? Do I have to go to mediation before I can file for an order violating if my ex-husband is not paying what he owes me? He owes me the interest in the marital home. He sold it but does not, he's refusing to pay her. There's a clause in their agreement that says if either of the parties wishes to challenge the other's compliance with the terms of this order the parties are directed to appear before the mediation center in the county for at least one session of good-faith mediation to resolve their dispute as a condition precedent to filing any action to enforce the terms of this order.
Upon mutual agreement, the parties may substitute a private mediator blah-blah-blah, the party must schedule and appear for the mediation within 30 days of the first written request, but this provision shall not apply in circumstances of contempt or modification actions regarding inability to pay or failure to pay any support obligations.
Todd Orston: It all comes down to the terms of the agreement which become the terms of the order right. If the order says you have to go to mediation, then you have to go to mediation. But it's going to be based on the specific terms of the order, and here, at the very end, it says the provisions shall not apply to the following circumstances, contempt or modification actions regarding inability to pay or failure to pay any support obligation. If we're talking about support, and he's failing to pay all of the support, it doesn't look like you have to go to mediation.
But, again, my best advice would be talk to an attorney. At least, pay for a consultation with an attorney who can review the agreement, review those terms, and tell you what you need to do because you want to walk into that court wearing a white hat saying, "I've done everything I'm supposed to do. He did nothing he's supposed to do. Please hold him in contempt."
Leh Meriwether: It sounds like when she said interests in the marital home that sounds like an equitable division issue, not support.
Todd Orston: Right. Which means that you would probably have to go to mediation.
Leh Meriwether: Unfortunately, we have to end the show. Hey, everybody. Thanks so much for listening.