Common Misconceptions About Divorce

There are many different opinions about divorce issues, but not all advice is good advice! In this episode of Divorce Team Radio you will hear Todd Orston, Partner at the Divorce and Family law firm of Meriwether &Tharp, LLC, explain some very common misconceptions people have about issues like adultery, alimony and property division in a divorce.

Todd Orston:

Welcome everyone to Divorce Team Radio, sponsored by the divorce and family law firm of Meriwether & Tharp. I'm your host, Todd Orston. And here, we're going to learn about divorce, family law, and from time to time, even tips on how save to your marriage if it's in the middle of a crisis. You want to read more about us? You can check us out online at atlantadivorceteam.com. All right, let's get started. As I talk to people, as I work with people, common questions come up again and again and again. I guess that's why they're common. So these questions relate to a number of things, getting started, meaning hiring an attorney, or once they've hired, just the process, even questions regarding do they even need to hire an attorney. And again and again, I give certain answers, I give certain information. And when it happens often enough, it makes me, again, sit up and realize that these are things that are on many people's minds. This is important to a lot of people.

So that's the focus of today's show. I want to talk about common questions that people have about the process, common misconceptions that people may have that sometimes can influence their decisions, rightly or wrongly, about the divorce process. And I want to give some good information. I want to answer some of those questions, I want to correct some of those misconceptions, and that's what we're going to do today. So let's get started and let's start with an initial question of how long is the divorce going to take? I don't know. I'm going to give a little bit more than that, but I don't know. There is so much behind that question or that would go into the answer to that question that no attorney can give you a definitive answer. We can guesstimate. We can listen to, basically, the issues and we can look based on history and experience and all those things, we can guess.

And sometimes, the guess is based on our experience and knowledge and familiarity with the types of issues we're dealing with. Sometimes, we're pretty darn close in terms of that estimate, but it's still a guess. I've talked about this before. I have seen six month marriages result in over a year of intense litigation. I have seen 40 year marriages resolved in weeks. It just depends. It depends on which of the four core areas of a divorce apply. Are there children? If so, that's a complication. We have to deal with custody, we have to deal with child support. Are there alimony issues present? What kind of property do we need to deal with? So all of those issues, all right, could affect how long the divorce will take. The better question, when you're sitting down with an attorney or when you're thinking about hiring an attorney it's...

To me, the right question isn't how long will the divorce take it, it is are there any things that I'm telling you that could prevent a relatively quick resolution here? Are there any things I might be doing or I might do in the future that interfere with our ability to settle this quicker? So when you jump into a case also, it's not just issue complexity, right? I talked about the four core, but of those four core, how complex are the issues? Custody to great, loving, healthy, stable parents, fantastic. Throw in a drug addiction or abuse of behavior, and you're off to the races. Things just got a lot more complex. We're dealing with alimony? Is the person asking for six months of alimony because it's a relatively short-term marriage where they both work? Not a big issue.

You've been married for 30 years and your spouse has never worked before? And even if they do go work, the amount of income they might generate is not much? Things just got more complex. Then what kind of discovery is needed? And I'm going to go into discovery in a moment, but what kind of discovery and what is discovery? Discovery is each party's ability to engage in the requesting of documents and information, to gather documents and information relevant to that case that is important and necessary to resolve the issues in the case. You have a right to do that. Like I said, I'm going to go into that in more detail, because that is a question that commonly comes up, but we'll get to that in a moment. It also depends, the length of a case, on the party's ability and willingness to negotiate in good faith.

If you are taking unreasonable positions, if the other party's taking unreasonable positions, if the parties are allowing emotion to dictate their strategies and approach in the case, then unfortunately, that could prolong things. And then of course, it depends on the court calendar. What does that mean? Well, as you can probably imagine, and if you don't understand this already, that's interesting, but your case is probably not the only case pending in that county, in front of that judge. Each judge, each courtroom could have hundreds, not could, likely has hundreds, not a hundred, not less than a hundred, hundreds of pending cases at any given time. And that means a whole bunch of attorneys working on those cases, a whole bunch of parties needing time in front of the court, and I'm going to get into that also a little bit later. But how long will the divorce take? I don't know.

But if you come into a case, looking to be amicable, to approach things in an amicable way, to educate yourself and make sure you understand what the issues are, understand what would constitute reasonable versus unreasonable positions to take on all of the core issues that need to be resolved, if you engage in discovery voluntarily, if you cooperate in that process, then hopefully, the divorce won't take as long. I mean, I've seen very complex cases that require significant discovery, that require a lot of information, still get resolved relatively quickly because of the parties and their willingness to cooperate and work together to accomplish the goal. I'm sorry that the goal is a divorce, but most people who aren't caught up in the emotion too much will probably agree. Even parties who are getting divorced and can't agree on much, likely will agree that they would rather not pay an arm and a leg to their respective attorneys and would rather get through the process in a more efficient way, but that's going to take work. So how long will the divorce take? I don't know.

But if you spend time to hire the right attorney, look for someone or a firm that is resolution focused, and if you go into it, understanding that you're going to have to give to get, and you're going to take reasonable positions based on you educating yourself or being educated by your attorney about those issues, then hopefully, if the other party does the same thing, you can keep things amicable and you can get it done sooner rather than later. You also have to think about different states have different waiting periods. I'm doing this show based on Georgia law and I'm speaking about Georgia law. Here, we have a 30 day waiting period from the date that the defendant is served with the petition for divorce. There are other states that are three months, six months, even a year. So that also needs to be contemplated when asking this question. All right. When we come back, let's talk money. I get that question all the time. "Hey, Todd, I've told you a little bit about what's going on, how much will my divorce cost?" I'll give you my answer when we come back.

Speaker 2:

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. So you can always check us out there as well.

Todd Orston:

Better than counting sheep, I guess, right? It's-

Speaker 2:

That's right.

Todd Orston:

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

Speaker 2:

There you go.

Todd Orston:

I'll talk very soft. Welcome back everyone to Divorce Team Radio, I'm Todd, and this is a show sponsored by the divorce and family law firm of Meriwether & Tharp. You want to read more about us? Check us out online at atlantadivorceteam.com. And if you want to read a transcript of this show or others, or go back and listen to this show or others again, you can find them at divorceteamradio.com. So we're talking about these common questions that come up, things that people call and they talk about the specifics of their case, but then they have these general questions that are important to them. And when I say it comes up a lot, I mean routinely, I mean daily, I talk to people. And at least one of these questions, and sometimes, many of the questions I'm dealing with in the show come up with each person. And so the first one that we talked about is how long is the divorce going to take, answer, I don't know. But there are things you can do or not do, things that are present in your case that can impact the duration.

And so now, let's talk about another somewhat related question, which is how much is my divorce going to cost? That's important to everyone. And we recognize that, we understand that, all right? I don't want to just throw a bunch of money at legal services, I get it. But these are important issues that involve your property, that involve your children, support. And you need to make sure you're protected. So people will ask, "Okay, fine, I need help, but how much is it going to cost me?" And that's difficult, it's difficult to answer, it's another answer of I don't know, but it depends on many of the same things. And just like with how long will the case last, how long will it take to resolve the case, a lot of those same issues come up, starting with be smart about the firm you hire. Ask about their billing practices, ask questions about how often are you going to even get a statement relating to the work that's being done. We do that at Meriwether & Tharp every two weeks.

So there are some that will give it to you every month, two, three, four, five months. Sometimes, you wait until the end of the case. Sometimes, unfortunately, there's just not a lot of record keeping going on. But how much will it cost? Ask questions of the attorney you are thinking about hiring. Think about the case complexity, how many of those same four core issues, how many of those issues are present in your case? Are they complex? Are there issues? In other words, custody. Is it going to be an issue where the parties are in agreement? "Hey, I've talked to my spouse, we pretty much agree on physical custody, legal custody. We've talked about these things. I went onto your website, Todd, I educated myself. My spouse did the same thing and I think we are pretty much there, maybe a couple of questions, maybe some tweaking." "Okay, great." As opposed to, "I have concerns about the other parent, I want primary custody and the other parent's taking similar positions," things just got more complex.

Now, things are contested. There is a difference between an uncontested case and a contested case. Again, going to go into that, because that's a common question. Then there's the question of discovery. And basically, will it require... And this goes sort of towards complexity. Are you going to need hearings? Can you reach an agreement or do you need to go in front of a judge and ask a judge to make decisions? That can start right at the beginning. Are there emergency issues that require the filing of an emergency motion for relief, temporary relief? Does it require final trial? Most courts require mediation. And all of that takes effort, which means all of that incurs cost. So, going back to what I was saying at the beginning, ask good questions of the firm you are interviewing, of the attorney you are speaking with. Before you hire, before you retain, make sure you understand their philosophy, their approach, their billing practices. Make sure you understand, and better yet, make sure that that attorney and that firm understands your goals.

Make sure that they understand, you want to be educated, you want to take reasonable positions, you do have goals, and let's try and be amicable and get through this. So how much will it cost? Any attorney who looks at you and says, "Hey, pay a retainer and I'm anticipating this cost," and says it with some level of conviction, unfortunately, walk the other way, because it's likely not accurate. It might be, meaning it might be close, but the point that I'm making is that so many things can happen in this kind of a case that could prolong things, that could interfere with the timely resolution of a case. But if you're getting those statements on a regular basis, you know the work that's being done, you're taking reasonable positions, you understand the positions of the other side, that's going to help you get things done sooner, and for less money.

So let's talk about another question. I get it all the time. "Todd, I'm ready to retain. I want to file for an uncontested divorce." "Okay. Well, correct me if I'm wrong, we just spent the last 10 minutes talking about how you and your spouse do not agree on who will be the primary custodial parent," or, "We've just talked about how you want more of the assets or the other party is asking for alliance share of the assets or lengthy alimony," or whatever the case might be. "Well yeah, but I don't want to fight." "Okay." There is a huge misconception about the definition of contested versus uncontested. And what most people that call think in terms of those definitions is not what it truly means in the divorce system. A lot of people think of it in terms of, "I want to be amicable, I don't want this to turn into a big fight, I don't want to spend the equivalent of a college education cost on legal fees."

What it means to a court or an attorney is very different. When you file for uncontested, for instance, some... And I've talked about this before. You file for divorce, you list uncontested, you're basically stating to the court, you are ready to take a final. You have all the documents prepared, you're about to file them, you are ready to be put on a calendar to take a final. So when somebody says to me, "I want to file an uncontested divorce," I'll say, "Oh, so you've reached..." I don't say this sarcastically, but in essence, "So you've reached an agreement, you guys have agreed on all the terms." "Absolutely." "Okay. What's the child support amount that you've calculated?" "Oh, I don't know." "Okay. How about custody? Who's going to have primary?" "Oh, I'm going to have primary." "Okay, great. What's the schedule going to look like?" "Oh, well we haven't worked that out yet." "How about holidays?" "Nope." "Summer?" "Mm-mm." "Okay."

This is still a contested case, simply meaning you don't have an agreement yet. So understand that when you're filing, you can't just decide uncontested. And also, that doesn't mean... Because a lot of people will equate that to cost. "Well, let's file for uncontested and then there'll be a lower cost." And that's not the case. If it's truly uncontested maybe, but then you have to show the attorney, here are all the terms, silver platter, boom. This is everything you need to know, this is how we're going to deal with custody, this is what we're going to do with child support, this is what we're going to do with alimony and division of property and debt, we're done. Go ahead and draft it up, I'll sign, the other party will sign, we'll be done. That's uncontested.

So why can't I just file? You can and you can mark off uncontested, but that basically triggers the court to do certain things you're not ready for. So instead, mindset. Think of how you're going to enter the case prepared and ready to be reasonable and keep things amicable in order to, hopefully, get you through it much faster and get to that uncontested point, right? Where everything's agreed upon. When we come back, let's talk a little bit about discovery. 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.

Speaker 2:

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.

Todd Orston:

Welcome back everyone, I'm Todd. This is Divorce Team Radio, the show sponsored by Meriwether & Tharp. And if you want to read more about us, check us out online at atlantadivorceteam.com. If you want to read transcripts or listen to shows, find them at divorceteamradio.com. So we're talking about these common questions and misconceptions that people call and ask about and issues that they raise. And I spend a lot of time educating about these things. So, here you go. Let's talk about it here, let me answer these questions, let me give this information so that, hopefully, it helps some people as they're thinking about the process, as they're thinking about what they need to do to move forward if, unfortunately, they are facing a divorce. So we've talked about how long will it take, we've talked about cost, we've talked about can I file contested, uncontested? How about discovery? The question that I get all the time is, "Todd, why do I have to provide all of this information?"

Well, that information is called discovery. Cases are about two things, issues and the evidence related to those issues. That's called discovery. The ability to gather the information you need, the evidence you need to address the underlying issues, those core issues in your case. If there are equitable division of property issues, you need to understand about the accounts, you need to understand about retirement, banking, investment accounts. Are there cryptocurrencies? Is there a house, cars, boat, jet ski spaceship? Whatever it might be. And I can say that because my guess is Elon Musk has a spaceship somewhere. All right. I'm sure he has one for personal use, maybe I'm wrong. But bottom line is you need to deal with those issues, you need to ask questions. If you walk into court unprepared, if you haven't asked the questions, how can you make sure you're being treated fairly? You can't. If you don't know what accounts are out there, how do you know what you might or should be entitled to?

And so discovery is a tool that is intended to keep people honest. What do I mean by that? It is a tool that requires compliance, that requires disclosure, because a court doesn't want to deal with an issue of, "Hey, I asked these questions about the bank accounts that are controlled by my spouse and they just won't give it to me." So there are rules specifically to address the right to request the information and the obligation, sanctionable if you don't comply to turn over that information because it's relevant to the case and the issues at hand. So why do I have to? Well, simple answer, it's a rule, you got to do it. But as quickly as you may have to turn over information, it's very likely there's information you also want. It's a two-way road. Now sometimes, it's sort of a highway in one direction and a small country road the other. You control all the assets, you're the one that works, you're the one that has the career, you're the one that has all the information relating to finances and everything.

Yes, you're going to have to turn that over and make it available. And the other side will be able to review that. And if you have any questions or you need any documents and information from the other party, they're going to have to give you that information. And there are different types of discovery. We've done shows on this, notices to produce where you're asking for documents. Interrogatories, you have written questions that require written answers, request for admissions. Admit that on such a date, you were at this place, admit that on such a date, you did this. Depositions where under oath, you can go in and ask questions, third party discovery, you have to send things to banks and corporations and other third parties. Remember, cases aren't about what you say, it's what you can prove.

You can say all you want that there's a bank account with a hundred million dollars in it. You don't show the judge a statement that shows that money, then it might as well not exist. So now, let's talk about mediation. I get the question all the time. "Can we go straight to mediation? I've spoken to my spouse and we're thinking about just going straight to mediation." Technically, the answer is yes, you can do that. Is it advisable? Absolutely not. Like I was saying before, if you don't want to go into a hearing or trial unprepared, why would you want to do that for mediation? Mediation is a great opportunity, it's a fantastic tool, using what we call a mediator, but a third party neutral. Someone who can step in, unbiased, and help bridge gaps, help allow people to have a meeting of the mind, to reach some kind of agreement and avoid further litigation.

It's a great way to minimize the stress and the cost associated with divorce. But if you go in unprepared, how can you be confident the terms are fair? Okay, you're sitting in mediation, mediator goes, "What do you want to do with the house?" "All right, well, I guess I'll just keep it and the other party can keep the account." "Okay. Well, the account has $5,000 in it. How much is the house worth?" "It's not that much." "Well, okay, great. How much?" "Yeah, it's... I don't know. It's not much." "Oh, okay. But if you're saying I will keep the house and they get a $5,000 car, is the house worth 5,000 or 50,000 or a hundred thousand?" So do you see how, maybe without that information, if the other party said, "Yeah, that's fine. I'll keep the car, you keep the house," well, that's grossly unfair.

Account divisions, but you don't know anything about the accounts. You don't know what accounts exist, you don't know what the values in the accounts are, you don't know if there's been any unreasonable spending out of the accounts. Do you know how many times we've done discovery and we found that leading up to a divorce, money has been withdrawn, cash withdrawals, things of that nature, and then we ultimately find that there was some other account opened and there's a sizable amount of money sitting in those accounts? So mediation, again, fantastic tool. But you want to go in prepared, almost, if not, as prepared as if you're having a hearing or trial in front of a judge. I can tell you that we at Meriwether & Tharp, I mean, we have a lot of great success at mediation. And I could sit here and say it's because of the attorneys and skill and all that, but I'm not. I do think we're good, but it's because we go in incredibly prepared.

We go in with detailed information and tools and marital balance sheets and things where we can, with confidence and authority, say, "Hey, this is what the evidence looks like related to this issue." "Oh, you want to talk about alimony? Boom. Here are pay stubs, here are tax returns, here's this here's that, here's a budget, domestic relations financial affidavit, here you go." And division of property, bank statements, tax returns, you name it. You go in prepared. That way, when the other side says, "Well, I want this," we're ready. We're ready. Like for instance, a tool, we use a marital balance sheet, which basically breaks down all the different assets and debts. And then as you assign it to one party or the other, you can see what kind of a percent division that is.

It is such a useful tool that isn't always used. And when we walk in and the other side goes, "I want this," and we plug it in and 30 seconds later, we can show that would result in a 70-30 split of the existing estate. It's not just us saying no, it's us saying heck no, but here's why. It wouldn't be fair or reasonable because you'd be getting the lion's share of the assets and we have something to back it up. So do you want to go straight to mediation? Not without doing some prep work, a lot of prep work. And then absolutely. As a matter of fact, most courts require it. At least before final trial, many judges require it now before a temporary hearing. So as with hearings and everything be, you got to prepare. You got to do the leg work, that's going to help you resolve it. You're going to make the most of that opportunity to settle. All right. When we come back, how about the question of why is it taking so long to get in front of a judge? All right, be right back.

Speaker 2:

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. So you can always check us out there as well.

Todd Orston:

Better than counting sheep, I guess, right? It's-

Speaker 2:

That's right.

Todd Orston:

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

Speaker 2:

There you go.

Todd Orston:

I'll talk very soft. Welcome back everyone to Divorce Team Radio. I'm Todd Orston and this is a show sponsored by the divorce and family law firm of Meriwether & Tharp. If you want to read more about us, check us out online at atlantadivorceteam.com. And if you want to read a transcript or listen to shows again, find them divorceteamradio.com, or if you want to listen to the show live, you can listen at 1:00 AM on Monday mornings on WSB. All right. We're talking about these common questions. I answer these questions probably daily. And clearly, it's on a lot of people's minds and thus, the reason for the show. I want to give this information because it's clearly on a lot of people's minds. We've talked about cost and duration, all these things. So let's talk now about the court calendar.

Why, Todd, is it taking so long to get in front of a judge? Well, as I said earlier, believe it or not, yours isn't the only case needing the court's attention. Assigned judges could have hundreds of cases that require a hearing. Hundreds. And there are sometimes emergency issues, there are sometimes just last minute things that get put on a calendar that in terms of importance, well, they might be a little bit more... They may require more immediate attention. And so I will put it this way. It is a Herculean task for courts to get all the issues taken care of, all the cases heard, temporary and emergency hearings, motion hearings, status conferences, trials. And on top of that, with one exception that I know of, and that's Fulton County, Atlanta, where there is a dedicated family court bench. Judges only hear the family law related cases.

Other than that, judges, they are hearing the divorces and the modifications and the contempts and the adoptions and you name it, and they're also handling general civil matters. And they're also handling a criminal docket, a calendar of criminal cases, hundreds of cases. And so when I get the question of why is it taking so long to get in front of the judge, I get frustrated because I know my client is frustrated. And I wish there was some button I could push and, boom, we have a date and we're going to go to court that day, but I don't have access to that button. And I do have a deep level of compassion for the court trying to balance all of these needs, all of these cases that require attention, all the issues that need to be resolved. Now, granted, I'm interested in one, and I will do, and your attorney should be doing what it can to get in front of the judge as soon as possible.

But I got to tell you, there are times where we contact the court only to find out that they're in the middle of some three week trial. Or unfortunately, they are so booked up with cases that things aren't being put on calendars for two months, three months. There are some courts where when your case is finally ready for a final trial, depending on the complexity in your case, the amount of time you need, it could be months before you actually get that trial date. You're sort of in a queue with other cases that might be older. And if a whole bunch of people are saying, "We could not settle and we need a court date, we need a hearing, we need a trial," you may be at the end of a pretty long list of cases that need to be heard before you. So all that an attorney can do is petition the court, ask the court, follow up with the court in an appropriate, respectful way to get on the calendar, to have the issue, whatever it is, heard as soon as possible.

But understand we, and I say we, attorneys, we can't dictate when that happens. We can ask, we can be the squeaky wheel that contacts the court to see, "Hey, are there any other openings, can something happen sooner than the calendar that you put us on?" But at the end of the day, all we can do is ask. All right. And let's now talk about grounds for divorce. Another common question I get all the time is do I need to add a specific ground for divorce into the petition? So some states require you to put specific grounds for divorce into the petition. Georgia, you don't. Meaning if there's, let's say adultery, you don't need to list adultery as a ground for divorce. You can put a general ground that the marriage is irretrievably broken. Now, does that affect you? Does that hurt your case? I mean the question is do I need to or should I add that specific ground?

And this is what I tell people. Sometimes, you do want to put it in. Oftentimes, I will tell people, you don't need to right away. Number one, you can always amend the petition that you filed to add another ground for divorce. I mean, you can't after you've started the final trial, but leading up to that, for the most part, you can. And two, let's say adultery is the issue. Just because you didn't put as a ground for divorce the issue of adultery doesn't mean you can't bring up the issues related to adultery. It's still a behavior. It's still something, an issue, that could impact the court's decision on some of the core issues. So are you hurting yourself by not adding it? No. Well, then the question becomes, "Okay, well, is it benefiting me? If I don't put it in, is that helping me in some way?"

And arguably, the answer could be a little, because remember, when you file a petition and you hand it to... And by hand it, I mean when you serve it on the other party, they're going to read it, and it's a public record. And so if they read it and, boom, big, bold print, it says that they committed adultery, what do you think that's going to do to their willingness to negotiate and try and resolve the case sooner rather than later? My experience is that oftentimes, it pushes people farther away from that settlement table. Immediately, the emotions go up because they're like, "I can't believe," in essence, "I can't believe you put that into a petition, filed it with the court, and now, it's out there." Granted, between you and me, it's not like people are just going and reading divorce petitions, not saying nobody does. Maybe there are people that don't have better hobbies, but... So by not putting it in, I believe in some cases, in many cases, it might be a good idea.

You can hold it back, you can... Not refile, but you can amend your petition, you can do that later on. But you have to understand, when you put it as a ground for divorce, then you're basically saying, "Judge, I want you to find," whatever the allegation is, whatever the issue is, so let's say adultery, "I want you to grant the divorce based on your finding that adultery occurred." It's something you have to now prove, as opposed to, "The marriage is broken, it's irretrievably broken, judge." So all you have to do is say, in essence, "Don't want to be married anymore, it's broken," and you're going to get the divorce. You say adultery and you want it granted on the grounds of adultery, you better be able to prove adultery. So A, it makes it a little bit harder in terms of what you need to prove. And B, it may actually impact, at least short-term, your ability to reach an agreement with the other party.

And to be clear, I'm not saying that behavior, whatever it might be, is not something that you should bring up in the context of your settlement negotiations or anything. Bring it up, absolutely. But the question is do I need to add it to the petition? And my answer is, oftentimes, no. Sometimes, strategically, you do want to. Sometimes, the behavior is so egregious, you want them to know that's what this case is about. It's an aggressive move, but sometimes, it's what you need. Well, hopefully, this information helps these common questions, the common issues, and these misconceptions sometimes people have, hopefully, I've clarified it a little bit. Thanks so much for listening.