Episode 149 - Changes to Family Law Over the Years
As society changes, so does the law. Divorce law is no exception. Over the last three decades, we have seen a lot of changes to the practice of divorce law. In this show, Leh and Todd discuss some of those changes to Divorce law as they relate to Child Custody, Child Support, Equitable Division of Assets, and Alimony.
Leh Meriwether: Todd, can you believe that we're almost at episode 150?
Todd Orston: Liar.
Leh Meriwether: What am I lying about?
Todd Orston: Yes, I can believe it, seeing as how we've been talking about it for the past week and a half. I believe it. It's pretty amazing, jokes aside. We've been doing this for several years now, and like you said, we're coming up on show 150 and it's kind of crazy.
Leh Meriwether: I know. What's also crazy is how much the law has changed just in the time we've practiced law. It's pretty amazing.
Welcome, 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 the Meriwether and Tharp Show. 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 learn more about us you can check us out online at atlantadivorceteam.com
Today, I figured-
Todd Orston: I think you already teased it. I'm not sure, but are we going to talk about changes to family law?
Leh Meriwether: Why not.
Todd Orston: Nothing gets by me.
Leh Meriwether: You're so amazing, Todd.
Todd Orston: And we have that recorded. Thank you. We're going to talk about changes to the law, because you're right, even over this short period of time... I mean, it's a few years, but still... the law has changed in pretty significant ways. You've been practicing a lot longer than me, of course. You're much older.
Leh Meriwether: And wiser.
Todd Orston: You've been practicing longer, let's just leave it at that.
But since you and I started practicing at around the same time, the changes that we've seen in the law and the ways that... When we say changes to the law, it's not just the law itself, meaning the wording of actual laws that apply to family law; we're talking about the way courts look at different issues and consider different issues, and even issues that weren't topics of conversation, for the most part, back when we first started are now commonplace. Hopefully, we're going to use this show to go into a lot of those.
Leh Meriwether: Let's start with custody, because a lot has changed.
Todd Orston: Just don't say it that way any more.
Leh Meriwether: Just don't say custody.
Todd Orston: It's a little aggressive.
Leh Meriwether: Well, okay.
Todd Orston: Custody.
Leh Meriwether: Custody.
Todd Orston: Got it.
Leh Meriwether: A long time ago, in a galaxy far, far away... All right, seriously. We used to have what's called the tender years doctrine. I know that was here in Georgia. I don't know how prevalent that was. I don't know how many other states had something similar to it, but this was as late as the '80s that a lot of places had this.
Todd Orston: My understanding is it applied throughout the 50 states, meaning the majority of the states either adopted it or their own laws were based on the tender years doctrine.
Leh Meriwether: The tender years doctrine was that in the first... I think in Georgia it was... eight years of a child's life it is presumed... meaning the court starts here... that it is in the child's best interest to remain with his or her mother. That was the law of the land for a long time. As society evolved and women started going into the workforce and you had two household families, that presumption was no longer a presumption and they changed the law. They removed that altogether so that it was gender neutral. There was no presumption. They got rid of it.
I won't mention any names, but I will say that there were still some judges that practiced the tender years doctrine for years after the fact.
Todd Orston: And there are some judges still that... Maybe they don't think of it in terms of the tender years doctrine, but they lean in that direction regardless. But nowadays... and a lot of people listening have probably either read or heard that a lot of what the court does is apply a certain standard, and it's the best-interest-of-the-child standard. That's what really applies. By getting rid of the tender years doctrine, what the law basically said to judges is think about what's going to be best for a child. That might be the mom, but it might be the dad.
Leh Meriwether: I think the next evolution was not necessarily something in the law, it was just how things were happening in a lot of states around the country where courts were favoring moms. Even though the tender years doctrine had been removed from the law, you saw a lot of courts... and I'm going by statistics... 80, 90 percent of the time, depending on the state... 70 to 90 percent of the time you would see moms winning primary physical custody.
Todd Orston: Absent really bad behavior, there was that presumption.
Leh Meriwether: Then, as things evolved, we're seeing more judges here in Georgia granting 50-50 custody. I will say in many states, however, the presumption has now changed: that it is presumed to be in the best interest of the children to spend 50% of the time with each parent. It's moved from presumed that one parent... in this particular case, it was the mom... It has moved from presumed best interest to be with mom to be in the best interest to be with both parents equally, which is a huge pendulum swing.
Todd Orston: Absolutely a big swing. I have been practicing since the '80s, so since the '90s I can tell you... and we've talked about this... when I was just starting in family law... so we're at the end of the '90s, beginning of the 2000s... I can tell you right now that I took training to be a guardian ad litem. I will never forget: when I took that training they actually brought someone in, an adult, who spoke about the evils of joint physical custody. We were taught that is not a viable or a good solution for a child or children. This person came in, said he was a product of that, and it basically negatively affected his life.
I'm not taking anything away from his experience, but talking about pendulum swings, I was literally taught, "Do not do this." As a guardian ad litem, somebody appointed by the court to represent the best interests or the interests of a child... they don't represent the child, they represent the interests of the child and make an announcement to the court in the context of a custody determination.
Leh Meriwether: Or recommendation.
Todd Orston: Or recommendation, right. It swung, or has swung, from that to nowadays you have more and more courts being okay with a joint physical custody arrangement as long as you can prove that's going to be in the child's best interest.
Leh Meriwether: That's particularly here in Georgia because we don't have a statute saying that, but there are states now that have a statutes that say, "The presumption is 50-50 custody to be in the best interest of the child." Then you've got to come in and provide evidence to show to the court that is not in the child's best interest.
I went to seminar probably 19 years ago now, and the presenter was a psychologist and she had been following a lot of longitudinal studies... often 15, 20 plus years, and they follow families. In this case, the hypothesis was, "Does 50-50 custody harm the children?" And the answer was no, or I guess the hypothesis... the affirmative statement... that it harms the children, the answer was that's wrong. The hypothesis was wrong.
One of the studies I read went further to say... The goal was to determine whether it really was harmful to children or not, so they followed all these hundreds of families that had a joint physical custody arrangement. The results of the study was that it didn't harm that at all any worse than where dad has every other weekend. But their evidence said that those children that had the 50-50 custody arrangement were more emotionally adjusted as adults than the children that weren't, but they said, "We can't go into that because that wasn't the hypothesis we were working with."
That's really interesting, so a lot of states have taken that research and changed their laws.
Todd Orston: Now let me say, here in Georgia I don't want that to mean that you need to go into a custody case with the assumption that there will be a presumption that 50-50 applies, because that's not Georgia.
Leh Meriwether: Yeah, because that's not Georgia.
Todd Orston: That is not the case. But, where an every other weekend with maybe a mid-week dinner was maybe a norm for the father, I can tell you over the years that has extended. What was the norm then, now the norm might be instead of a Friday to a Sunday with a mid-week dinner, it could be Friday to Monday.
Leh Meriwether: Or Thursday to Monday.
Todd Orston: It could be Thursday to Sunday or Thursday to Monday. There's a lot more time given to fathers and that's why courts are leaning also in favor of joint.
Leh Meriwether: Up next, we're going to talk about other areas of family law that we have seen transformed and changed over the course of the past few decades.
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 on WSB. You can always check us out there as well.
Todd Orston: Better than counting sheep, I guess. You can turn on the show and we'll help you fall asleep.
Leh Meriwether: There you go.
Todd Orston: I'll talk very softly.
Leh Meriwether: Welcome back, everyone. I'm Leh Meriwether with Todd Orston. Todd and I are partners at the law firm of Meriwether and Tharp and you're listening to the Meriwether and Tharp Show. If you want to read more about us, you can always check us out online: atlantadivorceteam.com. And if, for whatever reason, you're catching this show in the middle and you missed the first part, well you can always do to divorceteamradio.com and find other ways to listen the show, as well as read transcripts of this show and others.
Today we're talking about the changes that we've seen to family law over the past few decades. A lot of them occurred while we were practicing, so we've seen the law evolve not just from a statutory perspective. When I say statutory, it's what the legislature... they enact laws laying out how judges are to decide cases. But also case law: how courts are deciding things, how they're analyzing things. We've seen an evolution and part of it is because society has changed, and unfortunately sometimes the law is slow to catch up.
A good example is the moving from tender years doctrine to, in some states, a 50-50 custodial arrangement as being the default. That's also a result of so many families are now dual income families. You don't see as many families with stay at home moms or stay at home dads any more. Society has changed and the law has changed with society.
Todd Orston: Another good example is relocation. As we have become a much more transitory population, it has become more commonplace for people to want to move. Where, in the past, a court might've had a lot more problem with one party saying, "I want to relocate," whether it was for a job, to be closer to extended family, whatever... While a court may have been more upset about it in the past, now it's much more commonplace. People looking for a job are not geographically isolated and limited. You might look for a job and find a job across the country.
Leh Meriwether: Or your current job moves you across the country.
Todd Orston: Exactly. It used to only be the military where you dealt with that quite often where someone was like, "Right now, I'm at a base in Georgia, but I've just been moved to California. I've just been moved to somewhere else: Alabama."
Leh Meriwether: Guam.
Todd Orston: Yeah. We would have to deal with those kinds of relocation issues quite a bit, but now people will take jobs and they're all over the country. On top of that, they may have moved here for a job, but then they're going through a divorce and they're like, "We lived for a long period of time in this other state. Both of our extended families live in that state. I'd like to go back."
Leh Meriwether: What was really interesting is that for 30 years in the state of Georgia that a relocation was not... this is by case law... considered a substantial change in circumstances to merit a modification of custody. Just to give a brief background on what it takes to change a custody agreement, when you go to the court you have to be able to show the court that there has been a substantial change in circumstances where the current parenting arrangement is no longer in the child's best interest.
I thought it was crazy, when I first learned about this decades ago, that the supreme court was saying, "A move is not a substantial change in circumstances."
Todd Orston: Relocation in and of itself was not considered a substantial change.
Leh Meriwether: I did not agree with that.
Todd Orston: Me neither.
Leh Meriwether: It took somebody in the mid-2000s to... I guess they decided, "All right, I'm going to challenge this," and they took it up to the courts. They did it the right way: they had all kinds of data, they had experts come in, if I'm remembering this case correctly. They presented this and the supreme court changed their ruling. They said, "We're going to throw out the 30 years of prior case law because we think society has changed and this law is no longer appropriate."
In Florida it's even more restrictive than Georgia in that if you move more than 50 miles from your current location... not move to another state, like in Georgia... you have to petition the court to relocate with the child. Part of that is because the courts are starting to default to the 50-50 custodial arrangement.
Todd Orston: So you're saying that if you're the one moving that you have to petition the court to be permitted to move, as opposed to you put the other party... Here, the way it works is that there's a notice requirement. Let's say you have 60 days notice. You have to say, "My intention is to relocate more than 50 miles, 100 miles, out of state." And you put them on notice. Then it's for the other party to decide whether or not they want to file a modification stating that that relocation will substantial and materially your custody rights.
So you're saying you have proactively petition the court.
Leh Meriwether: The one moving has to petition the court, so it's a lot more challenging. I don't know the legislative background, because while I have handled cases in Florida that's not my primary area and I've never delved into what developed that, but I'm sure part of it was to encourage parents to live close together for the sake of their children, but it's interesting the differences.
The key point is that wherever you're listening to this, you need to talk to an attorney if you're thinking about changing where you live.
Todd Orston: Listen, it's always a gamble. I had a case once where... and this is now probably about 10 plus years ago... all the reasoning for my client's desire to relocate was sound. She had gotten remarried.
Leh Meriwether: I thought you were going to say it was really noisy where she lived.
Todd Orston: No, it was not based on sound. I'll try to write my comments out ahead of time so you can study them and understand.
So it wasn't like, "I want to move simply because I want to get away from my soon-to-be ex-spouse." There was a legitimate reason: she was remarried. She put the other party on notice. "My new husband lives in another state, so we want to be together." So we had all that evidence, but unfortunately the court was like, "No. Ma'am, if you leave, I'm changing custody." I was able to very quickly backpedal before that became the order of the court, and my client kept custody, but it was with that condition.
Leh Meriwether: She couldn't move.
Todd Orston: Yeah. "If you move, that's going to change something."
Leh Meriwether: She can move, but the child stays.
Todd Orston: That's an important point, that the court cannot force an adult to do anything. In Georgia, the way that it's working is the court can say, "You can't move," but what that really means is that child cannot move. The court has jurisdiction of the child, but an adult can do whatever they want. In that situation, the court looked at me and was like, "Tell me what your client is going to do because that's going to dictate what I do."
Leh Meriwether: That was awfully nice of the judge.
Todd Orston: I was very appreciative.
Leh Meriwether: Another thing that I've seen develop over the years is co-parent counseling. We didn't really this years ago. The fact that there are counselors out there that their job is to help two parents learn to communicate better for the sake of their children is pretty amazing. Now, some states even have what's called co-parenting coordinators. We can have orders of that in Georgia.
I want to say California actually has a statute that recognizers co-parenting coordinators as an arm of the court. Now, we're not California lawyers, this is just based on my recollection of talking to a California attorney a few years ago, but a judge can order... if there's two parents that are struggling in the divorce... the appointment of a co-parent coordinator, and they actually are given authority to make decisions. So if you've got two parents that are fighting over something, before they run back to the court and clog up the court system, this co-parenting coordinator can hear both sides and say, "Here's what we're doing."
Todd Orston: You have to understand that a lot of the push to allow for these third parties to step in and take on those roles is that courts don't want the system to get clogged. They actually like mediation. At this point, most people have heard of mediation. They know someone that's gone through mediation, and it became so common because it was a great method in the eyes of the court to resolve a case, which means that you're keeping that case off of the docket, or getting off of the docket faster, and keeping them out of court.
The same thing goes for these parenting coordinators. These kinds of people can step in and, hopefully, pave the way to resolving issues before they blow up into something that requires court intervention.
Leh Meriwether: I kind of wish that Georgia would explore something like that, because we see judges all the time... not all the time... but it seems like every year I see at least one case where a judge has issued an order granting the divorce, essentially closing the case, and saying that once the child's counselor thinks it's okay that dad can move from supervised visitation to regular visitation, and the supreme court has said... I should say, the Georgia supreme court has said that a judge can't do that. They can't allow a third party to make a change in parenting time later on. It's got to be the court.
The only way that's going to change is... That's a potential future change.
Todd Orston: Absolutely. At show number 300, we'll talk about it.
Leh Meriwether: Yes, that would be very interesting. You know what else is interesting? The changes to alimony that we're going to talk about up next.
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 go could 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 the Meriwether and Tharp Show. If you want to learn more about us, you can always check us out online; atlantadivorceteam.com.
Todd Orston: That's all folks.
Leh Meriwether: We still have more time. That's not all.
Todd Orston: Oh, for you it is. I am pulling the plug.
Leh Meriwether: All right, well you can finish the show, then.
Today we're talking about the things that we have seen over the years, the changes to family law that we have seen over the years. We started talking about custody. We spent a couple of segments on that just because there's a lot to it.
Todd Orston: There's a lot to it.
Leh Meriwether: There was a lot to custody with a lot of changes we've seen there. I'm sure we haven't even covered all the changes, just some of the bigger ones we remember. We're going to talk about alimony, but before I get there, I was at a mediation the other and our mediator, who'd been practicing law just a bit longer than I have... he had graduated law school in 1977... he made a comment that when he was in law school the word mediation was never mentioned once. There was never discussions about mediation. There was never discussions about alternative dispute resolution. It was all trial, trial, trial.
I think that has been a huge change over the years to where courts now have orders in place that you can't have a final hearing... in some cases, you can't even have what's called a temporary hearing... until you've attempted mediation.
Todd Orston: I would say, in terms of biggest changes, it is the most widely adopted changes to the systemic approach to divorce. Again, it goes to a court's desire to keep people out of court. What I've said to people, when we talk about these issues, is just think about every single case was not only filed but then needed a trial. If everything had to be resolved by the judge, the system would shut down, or every county would need about 100 more judges.
Leh Meriwether: Or it would take 10 years to get a divorce.
Todd Orston: The courts have really embraced alternative dispute resolution because what it's doing is it's getting people out of the system. It's also allowing them to have a bigger hand in getting a resolution that comes from them rather than a third party. How many have you heard, we're in court, and a judge is like, "I'm going to give you guys an opportunity. Why don't you step out into the hall, because if you want me... a third party who doesn't know you, doesn't know your kids, doesn't know anything about what you're dealing with... You want me to be the one that's making life decisions for you family? Why don't you step out there and see if you can't work some things out. If you need, there's a mediator waiting for you."
That's the interesting thing and what I love: not only do they love mediation, a lot of these courts also have, on staff... especially the bigger counties... mediators waiting the wings. Courts will go, "Look, you have a trial today. That's fine. You can have your day, but by the way there's a mediator sitting out there and if you want some help just let me know and I'll let you use the mediator."
Leh Meriwether: That's only certain counties, because there's a lot of counties [crosstalk 00:26:08].
Todd Orston: It's not a lot, but the bigger counties that have that ability to have people just on staff... not on staff, but waiting.
Leh Meriwether: Not just in family law. I've seen it in all kinds of other arenas. Small claims court, landlord-tenant cases... Mediation has really been something that has evolved. Even in the '80s it was just getting started. There may have been some waves starting back then.
Another cool thing is arbitrations, because for the longest time... at least in Georgia... the only one who could decide custody was a judge. I think it was 2007 or 2006 the legislature allowed the parties to pick an arbitrator to make custody decisions. Now, they could appeal that decision and the judge could double check the arbitrator, but at the end of the day that also allowed some parties that may have had some private issues that they didn't want to be made public in a courtroom, they could go have their case heard by an arbitrator.
Todd Orston: Yeah. In terms of changes, I'm going to say over the last four to five years... I'm not going to go so far as to say it's prevalent... the use of private judges in these cases has become much more popular. I think a lot of that has to do with a lot of great judges have retired relatively young, you know what I'm saying? They put themselves out there as what we call a senior judge and a lot of them put themselves out there that they're willing to take on... which really is arbitration... as a senior judge to basically become a private judge. And what does it do? It gets you out the system. You might sometimes have to wait two, three, four, five months to be heard on a final trial calendar.
Leh Meriwether: At least.
Todd Orston: With a private judge, you can expedite that. As long as the parties are ready, you might be able to get a... Within 30 days you might be able to get with a private judge and have the entire matter dealt with. The great thing is that you might be able to get somebody who was a sitting family law judge who knows the law, understands the ins and outs of custody and all the other issues, and you're done.
Leh Meriwether: Another nice change that we've seen.
Alimony is something that has been really evolving. I think if there's been a, quote, monumental change, the only one I may have seen since the '80s till last year... or the beginning of this year... is that it's no longer tax-deductible and taxable to the receiver, tax-deductible to the payor. That to me is probably the biggest alimony change: from a legal perspective, what the law has changed, because that changes the dynamic of the negotiations. You run the math on it, it's really not... It can be very unfortunate, because there's less money to go around.
Todd Orston: The long and the short of it is that before, when it was being handled by the... The payor would not pay taxes on that money. The recipient would pay the taxes. The payor would pay... just using a number... 3,000 dollars in alimony, but they were done. That 3,000 dollars, in essence, comes off of their income. The recipient has to pay the taxes and the recipient, more than likely because they're receiving alimony, has a lower tax bracket. They're paying a lower tax amount and that allowed for you to negotiate higher alimony awards because of the way it was structured.
Once they changed that, automatically it's great for the recipient except for the fact that it opens the door to re-negotiation... not re-negotiation, but a different kind of negotiation because 3,000 dollars is now 3,000 dollars plus the tax impact. So it's a bigger hit, which means that maybe that person can't pay 3,000. Maybe they're like, "I can only pay 2,500."
Leh Meriwether: Or two.
Todd Orston: Or two, "Because I have to take into the account the taxes."
Leh Meriwether: I do feel like alimony is kind of phasing out. This is even before this tax change. Not to say it's not still being awarded, but years past... maybe a couple of decades ago... there were a lot of cases where alimony was practically a given. I don't know if it was an expectation, but you could reliably say to your client, with a 99% probability, "I think you're getting alimony in this case."
Today it's hard to make that probability... I don't want to say a promise, because we can't promise anything, but we can't estimate things like that any more.
Todd Orston: Yeah. If I could put my finger on what I think the biggest change is, I would say there's a bigger expectation by courts that the recipient of alimony... there's an expectation that they should be getting out there and earning and supporting themselves. It is more rehabilitative in nature than it has ever been in the past. That doesn't mean a lifetime award is impossible, but it's a heck of a lot more unlikely than it used to be. Tell me if I'm wrong.
Leh Meriwether: There may be states that... but where we have offices, that's kind of what we're seeing.
Todd Orston: I have seen judges time and time again take into consideration not just that party's needs but, "What do you need to do to ween yourself off of the need for alimony?" And if you have degrees and even if you haven't worked for 10, 15 years... If you haven't worked for 10 or 15 years and you're in your mid to late 60s, that's a different story. If you've been married for 10 or 15 years and you're in your 40s, the court will understand and alimony will probably be awarded, but the court is also going to be looking at you going, "It's not going to be lifetime. You need to get out there and do something. If you have a degree in training, go get more training. Do whatever you have to do so that you can be self-reliant."
Leh Meriwether: "Get re-trained so you re-enter the workforce."
Todd Orston: Right.
Leh Meriwether: That's an interesting change.
We've also seen, especially here in Georgia, a huge change to child support. I think the biggest change was that in the past, the people who had to pay child support, it was paid on a percentage of their income only. Sometimes those awards could be huge. They weren't consistent. You could have one judge award 1,000 dollars a month: the next judge, on the same set of facts, award 2,500 dollars a month. It was creating a very disparate impact depending on which judge you were in front of.
Up next, we're going to talk more about those changes to child support as well as changes to equitable division.
I just wanted to let you know that if you ever wanted to listen to this show live, you can listen at 1:00 AM on Monday mornings on WSB. You can always check us out there as well.
Todd Orston: Better than counting sheep, I guess.
Leh Meriwether: That's right.
Todd Orston: You can turn on the show and we'll help you fall asleep.
Leh Meriwether: There you go.
Todd Orston: I'll talk very softly.
Leh Meriwether: Todd, you're just talking too slow today. I don't know what it is.
Todd Orston: I've been accused of many things. Talking too slowly? Never.
Leh Meriwether: We've got so much to cover.
Todd Orston: And you're wasting time.
Leh Meriwether: Welcome back, everyone. This is Leh and Todd, and you're listening to the Meriwether and Tharp Show. If you want to read more about us, you can always check us out online: atlantadivorceteam.com.
We're down to the last segment. Let's cover the last things. What we've been talking about this whole show is changes that we've seen to the law, especially family law, over the course of the last several decades, or few decades, I don't know. Todd's pretty young.
Todd Orston: I'm nine. I'm a prodigy. I became an attorney when I was three.
Leh Meriwether: We talked about changes to custody, the evolution of mediation and alternative dispute resolution, changes in alimony, and we started talking about changes in child support, because we've seen... especially here in Georgia. There was this huge switch from focusing only on the person paying child support to switching to what's called an income sharing approach, which I think is a lot fairer, because I've seen cases where the person paying, they made about 30. The person receiving the child support made about 100, and arguably the one making 100 really didn't need child support.
Todd Orston: Or not the full amount, where it used to be application of a percentage to the gross income of the payor, ignoring the income of the recipient. Now, the recipient's income is taken into account, so I try to explain that if the recipient has three times as much income, then the percentage, the ratio, in the current calculation... We have other shows and stuff where we go into this more fully. It fixes the numbers. It takes that into account so that the payor, there is recognition of the fact that they make a lot less than the other party, the recipient, and it tries to level things out and make it more fair.
I agree with you. I think it was a necessary change and it was very helpful and fair to the payors of child support.
Leh Meriwether: And I think overall it was fair to the children, because... staying within the realm of child support... we would see cases where... especially when we had the big downturn back in 2008... where people are trying to pay their child support but they just can't. So they're being dragged into court for all kinds of things, all kinds of issues surrounding... They can't pay their child support: it's the majority of their monthly payment is child support, because it's after taxes, and they barely can live. So when the kids are coming to see dad, who's paying this incredible amount of child support, dad barely has any money to do anything with the kids, whereas mom gets to do all these great things with the kids. Dad can't do anything.
I'm giving some extreme examples here, but there was a fair amount of inequity that I feel like the new child support guidelines has corrected. Then they also changed the guidelines to... this happened two years ago, I think... The courts can now take into consideration the expenses... it has to be reasonable, of course... of the payor.
Todd Orston: Within reason. As I like to sometimes joke, you can't argue to the court that "My third Porsche is killing me. Unfortunately, judge, I would love to pay, but I can't." That's not going to fly. It has to reasonable, normal, ordinary kinds of living expenses, and if after that you don't have the ability to pay more, then that's going to be taken into account.
I will also say that there's been some decent clarification regarding contempt, because in terms of defending against a contempt, it has become very clear over the last several years that you have to do everything... beg, barrow, don't steal... in order to comply with that court order. You can't simply say, "I just didn't have the money. I'm so sorry. I tried." A lot of judges... and the case law supports this... are absolutely pushing those people to prove... "If you're going to come before me and you didn't comply with the court order, and I want to make sure that you have done everything possible to comply." You can't just say, "I'm not making as much as I..." "Okay, I understand it. Have you gotten a second job? Did you go to family and friends to see if you could barrow? How about taking out another credit card? Have you done everything that you can?" If you can't prove that, then more than likely you're going to be held in contempt.
Leh Meriwether: Yeah. Going back to where I wanted to get on the 2008 situation, back in 2008 we saw people that couldn't pay. They lost their jobs, they couldn't pay. They finally get a job, but a contempt action has been filed against them. They just got a job. They walk into court, say, "Judge, I just got a new job. I'm going to start making payments," and there were judges throwing those folks in jail, and then they lost their brand new job they got and unfortunately the child didn't get the child support. But if the court had said, "Okay, go to work. When can you make the next payment? Let's have a follow up hearing and see if you're following this."
They changed the statute now, where you can actually have... I forgot what it is. Pat would know. Where the person can be referred to a government organization to help them find a better job. So rather than just immediately throwing them in jail...
Todd Orston: I will tell you this. Jail, I will tell you this: a big swing also. It is hard... not impossible... difficult to get a judge, especially if it's not just a long term thumbing of the nose at the court order...
Leh Meriwether: Yeah, we're not talking about the deadbeat dads.
Todd Orston: It's really hard to convince a judge to not at least give the non-paying spouse or non-compliant spouse some opportunity to comply. Jail is going to be the last option considered by the courts.
So what are some other changes?
Leh Meriwether: I believe in the last couple decades they've made it where if you have a professional license you can lose it if you don't pay your child support: that they can suspend your driver's license for not paying, they can seize your tax returns. There's a bunch of cool things there: a little more enforcement power of the state to make sure... Now, we're talking about the deadbeat moms and dads who aren't paying at all.
Todd Orston: What about equitable division?
Leh Meriwether: In equitable division, I think the biggest thing we've seen there is the removal of fault. In Georgia, there's 13 grounds I believe that you can file on, but in Florida it's one ground. It's no fault, period. The courts there and up here... adultery just doesn't have the same impact that it did two decades ago.
Todd Orston: Here we also have no fault. You don't need to prove fault. Historically, there were states... or maybe are states... but the bottom line is that you have to show fault in order to get divorced.
Here, there are some grounds like adultery, habitual intoxication, things like that, where you can use that as a ground for divorce, but strategically... in my opinion... it's unnecessary because you can still bring up back behavior in the context of a divorce, but you don't need to include it or make it a ground for the divorce. And you're right: adultery, which can be a ground... One big swing I have seen also is that it doesn't have the effect and impact on a divorce that many people think that it does or should.
Leh Meriwether: There's exceptions to that in what we're seeing, like the real egregious cases where someone has an entire second family in another state. Barring those extreme...
Todd Orston: Well, when you break it down into what we call the four core areas, custody usually... adultery, unless it's directly impacting, like the affair was being carried out in front of a child, it's not going to impact custody. It can't impact child support. Child support, it's one party is the primary and if they're getting child support it's formulaic, and there isn't a punitive component to child support. You're left with alimony and division of property, and while it can potentially have an impact, many judges are like, "Look, that happened and that's why you want a divorce and that's what I'm going to do. I'm going to grant the divorce." It doesn't then translate into the judge throwing the book at the person who committed the adultery.
Leh Meriwether: Right. "Guess what? It sounds like you need a divorce. I'm going to give you a divorce. And we're going to split everything up 50-50."
I think that's one of the big changes I've seen. I'm speaking in generalities. There's exceptions.
Todd Orston: We have made arguments and other attorneys have made arguments where they have won more for their client because the other party engaged in bad behavior. We're not saying it can't happen, it's just not nearly as commonplace as a lot of people who call us with questions may believe.
Leh Meriwether: Some of the other changes we won't have time to get through in this show, but the evolution of grandparents being able to visit with children... I have to be careful not to say grandparent visitation rights, because they don't actually have a right, but there's a statute that gives them the ability to petition the court for the opportunity to visit with the children. There's been changes to juvenile court law, but we won't have time to get into them. I did talk to David [Canali 00:44:18]: he's done CLEs on grandparent visitation cases, and he's going to come on our show and talk about grandparent cases.
Todd Orston: I look forward it.
Leh Meriwether: That's an interesting one. But we'll have to save that for another time.
Hey everyone, thanks so much for listening.