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Episode 79 - Custody Arrangements for Pets? and other Personal Property Issues In a Divorce

Episode 79 - Custody Arrangements for Pets? and other Personal Property Issues In a Divorce Image

11/20/2018 9:29 am

The struggle with dealing with pets and other personal property in a divorce is the cost-benefit analysis. Often it is not fiscally wise to spend hard earned money on attorney fees when you can replace the same item you are arguing over for far less. But, certain items carry an immense sentimental attachment and it is hard to quantify the value. Pets are often a good example of this. While some Courts in other states are starting to consider "Pet Custody," many states like Georgia and Florida still consider pets as personal property and many Judges do not like to deal with issues of personal property. In this show, we dive into these issues, explain the rationale behind Judges not wanting to get involved with personal property, and discuss options to deal with personal property that does not involve lawyers fees or expensive trials.

Transcript

Leh Meriwether:              Todd, we've got a hot one today.

Todd Orston:                     There are so many places I can go with that one.

Leh Meriwether:              I'm not referring to the hundred-degree weather outside.

Todd Orston:                     Got it.

Leh Meriwether:              I'm talking about a new hot topic, that's something that seems to be litigated more and more in domestic cases, particularly in divorces.

Todd Orston:                     Pray tell.

Leh Meriwether:              Pets.

Todd Orston:                     Pets.

Leh Meriwether:              Pets.

Todd Orston:                     That is not a new issue. Now, jokes aside, that is an issue that we always talk about how divorce is very emotionally charged, and anybody listening, and anybody knows emotion runs high, and it's amazing because I have sometimes seen the emotions run higher when it relates to the family pet, than it does for the kids.

Leh Meriwether:              Yeah. 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 Meriwether and Tharp Radio on the new Talk 106.7. Here, you will learn about divorce, family law, tips on how to save your marriage, if it's in the middle of a crisis, and, from time to time, even tips on how to take your marriage to the next level. If you want to learn more about us, you can always call or visit us online, at AtlantaDivorceTeam.com.

                                                Well, today, like I mentioned at the beginning, we're going to talk about pets, and actually other personal property issues, because, at least here in Georgia, all marital assets are subject to equitable division. I still have [crosstalk 00:01:47]

Todd Orston:                     You've only been doing this for like 20 or so years. I wouldn't expect you to know that term.

Leh Meriwether:              I still feel like I'm on vacation. Yes. Some states are community property states, but at the end of the day, the courts divide up marital assets, and those range from bank accounts, retirement accounts, cars, houses, personal property such as clothes and furniture, and jewelry. All of those things have to be divided as well, and pets fall into that. We've seen situations where personal property turned the simplest divorce into a hotly contested one, when it really shouldn't have.

Todd Orston:                     Yeah, I mean we've seen the fights over the proverbial toaster, right? I mean "I want it," "No, I want it." But that pales in comparison to some of the fights that we've seen over pets, and look, you were talking to a ... and I know you also, we are animal lovers, we have pets, we've been raised with pets. They are part of our family. I get it. Under the law, it is defined as chattel.

Leh Meriwether:              Right. Here in Georgia.

Todd Orston:                     Here in Georgia. So it is defined as chattel, it is defined as personal property, and therefore, oftentimes, courts will give it the same level of attention as they do the couch, or the TV. But the winds are changing.

Leh Meriwether:              Yup, and that's what we're going to talk about today.

Todd Orston:                     That's right.

Leh Meriwether:              Some of the states now, not all, like Florida, I'll say right now, Florida and Georgia still are pretty ... have stayed steady with that pets are property, period, can't do anything beyond that, we just award who's gonna get what pet, and there's no standard in which to make that award, it's just whatever the court thinks is fair, or equitable. But there are states, and we'll touch on those, where we see the law changing, and courts actually coming up with pet custody agreements, as crazy as that may sound, but it's not crazy to those that maybe they didn't have children, and that's where we see a lot of ... that's been my personal experience.

                                                When there were no children involved, the pets became the children. I even had a case, and we're gonna talk about all personal property today, and break down why courts tend to ... why it may not be a good idea to fight about personal property, talk about why courts tend to not want to get into personal property issues, and, at the end of the show, we're going to break down ways to resolve personal property issues so that you don't spend thousands of dollars on attorney's fees, 'cause I had a case, one time, where despite my best advice, the client wanted to fight over a $300 digital camera, and he spent $1200 fighting over that $300-

Todd Orston:                     Which would have bought a much nicer camera.

Leh Meriwether:              Yeah, a much nicer camera, or four of that other one. So he could have had four of them, for the price he fought for that one, but like you said, emotion takes over. They want this win. So why we're doing this show is to hopefully bring a little bit of reason back into the equation, so that you don't spend $10000 fighting over a thousand dollar chainsaw.

Todd Orston:                     Yeah, you know, a good attorney is going to try and talk some sense into a client. A good attorney, I believe, is going to try and help the client see reason, because some of these fights, listen, I get it, if it's some kind of a collection, and it has high either numerical value, or high emotional value, then I get it. We are not saying don't fight for those things. What we're talking about is sometimes people are fighting over that toaster, or something that could be easily, not just replaced, but it may be a ten-year-old toaster, and there are far better toasters out there. Like I've been using my parents' old Crock Pot from like nineteen-seventy-something, and it still cooks, and it's still great, but then we upgraded, and got one of those instant pot things, and it's like the clouds parted, and it's like, Aha! So I'd be more than happy to give away my 1970 ... but some people might go, "No, that was my parents', and I have a strong tie to it," but you just need to think about what it is you're fighting about, to really determine whether or not it's worth the fight at all.

Leh Meriwether:              We had a case one time where the mediation almost fell apart over a dining room table. I remember that, and it was unfortunate, because the dining room table had this ... I don't even remember why it had this enormous sentimental value to everybody, which I mean honestly, that's the most difficult one to deal with, because there is no financial value, and if you looked at it, I want to say it was you could go buy another one for $1000. It wasn't even an expensive table, not that $1000 is cheap, but we weren't talking about a $20000 table that you could turn around and sell somewhere for a nice price, but it's something you could possibly pick up at a garage sale for $200. So that was the struggle that everyone in the room, except for the parties, was having.

                                                The mediator, I remember, was trying to say, "Look, you're spending $1000 an hour talking about a table you can go to a garage sale and buy for $300." So that's what we want to do today. We want to break those things down, talk about those, and talk about how to deal with pets, because that, boy, I had a six-hour mediation over a brand new, I think it was a Labrador Retriever puppy that I think they paid $200 for. Six hours of mediation. Two lawyers, and a mediator.

Todd Orston:                     Which, again, I understand the connection.

Leh Meriwether:              Yeah we both have ... I have a dog.

Todd Orston:                     We have two dogs, we have a cat, just lost another cat. Not lost.

Leh Meriwether:              Passed away.

Todd Orston:                     18 years old, and better place. I was raised in a family where we would have upwards of five dogs at a time, so animals are important to me. They do become part of the family, even when my wife hates the fact that I let them on the bed, and all that kind of stuff. But I get it. If, God forbid, I was going through a divorce, I would hate to walk away from my two dogs, because they follow me all over the house. So there is a close connection, a good connection with those animals. But at some point, you need to just step away, meaning you need to just sort of step back, and start thinking about what are you fighting over? Is it worth the fight? It may be. It may be one of those where you're like, "No, I have the stronger connection, and I absolutely must have that animal." Okay, I get it, and that's where the attorney will come in, and will help you to fight for it. But sometimes it's just better to just move on, and-

Leh Meriwether:              Yeah, I mean the pound has a lot of ... and I'm not trying to minimize the relationship at all, but the pound has a lot of animals that are going to be put to sleep if someone doesn't come in and rescue them.

Todd Orston:                     Yeah, and 'cause if this ... think about the alternative. The alternative is now you haven't been able to settle, you are in court, you are having a trial, and you're presenting this issue, and there are some other ways to deal with it, but let's assume you're in court, right.

Leh Meriwether:              Yeah, we'll talk about those at the end, yeah.

Todd Orston:                     Then the judge is not going to feel that emotional connection with the animal.

Leh Meriwether:              Not at all.

Todd Orston:                     And the court, and I think it's even ... I'm guess here, but even in other jurisdictions, where the law has changed, and there is more weight given to these types of pieces of property, but you have to understand, the court's not going to get caught up in the same emotion, and the court's gonna be thinking about it in terms of all right, you got the sofa, you got the TV, you got this. All right, this party maybe has a strong connection, fine. You can keep the dog.

Leh Meriwether:              Yeah.

Todd Orston:                     Or the kids are going over here, let the dog-

Leh Meriwether:              Go where the kids-

Todd Orston:                     Go where the kids are going. Not a lot of thought is going to be given to that emotional connection you have with an animal.

Leh Meriwether:              They can't feel it, 'cause they don't share that emotional connection.

Todd Orston:                     That's right.

Leh Meriwether:              So that's the struggle, and not only that, but you've got judges that are assigning serious cases involving child custody, some states have a separate family division, others don't. So you have some judges deciding rape cases, murder cases, family violence cases, and they struggle when someone comes in fighting over a pet.

Todd Orston:                     There are judges that refuse to deal with property issues.

Leh Meriwether:              Yeah.

Todd Orston:                     So you just need to know your judge.

Leh Meriwether:              Yup, and up next, we're gonna continue to talk about the pet and personal property issues, the challenges they present, and how you go about dealing with those challenges.

                                                You know, Todd, one of the tough parts about pets is, 'cause you mentioned earlier, was that-

Todd Orston:                     Going to the bathroom in the house.

Leh Meriwether:              They what?

Todd Orston:                     What? Oh, I'm sorry. I'm sorry.

Leh Meriwether:              [crosstalk 00:11:43] go to the bathroom in the house.

Todd Orston:                     Yeah, I'm sorry, I thought you were going in a different direction. Got it.

Leh Meriwether:              Is that they're so ... I mean people have that emotional connection, but there have been some courts out there that, and I'm going to sort of paraphrase what one court wrote, 'cause there was a long hearing about who should have custody of these pets, and one of the judges wrote an opinion that basically said for pet owners, and I'm a pet owner, don't take offense to this, I'm just telling you what the judge said. That "To take up public and private resources to litigate equitable division or custody of a family pet is offensive." This judge said, "It's demeaning for the court and legal counsel to use legal and court resources to litigate pet custody rights."

Todd Orston:                     And that's a strong-

Leh Meriwether:              That was a very ... apparently it was a 15 page opinion.

Todd Orston:                     Now that's a very strong opinion on that one issue, but while I will, on one hand, say I don't think every judge takes a strong a position on it, there are judges that have those types of opinions, and like I said before the break, there are courts that won't deal with division of property, that almost will basically refuse to hear the issue, and you can-

Leh Meriwether:              You go outside, and figure that out.

Todd Orston:                     That's right, and so one of the things we're going to go into later is other options that you have to try and resolve issues relating to custody, or pardon me, custody of pets, or division of property. But, as it relates to pets, that is spot on, because even though I believe it is sort of an extreme position, it does reflect, I believe, the position, maybe watered down a bit, of a lot of courts that, in essence, they're going to treat that like a property issue, and at the end of the day, they don't want to be there dealing with who gets the family turtle.

Leh Meriwether:              Yeah.

Todd Orston:                     And so at the end of the day, they're gonna be like, "You know what, eenie, meenie, miney, fine. You get the turtle."

Leh Meriwether:              Yeah.

Todd Orston:                     So they're not thinking of it in terms of the emotional connection.

Leh Meriwether:              So what we're trying to do is basically expectation set, just like we were last week, with emergencies, because, and you may have someone, I could see this, you got somebody, you're sitting in court, you haven't seen your daughter or your son, or both of them, in two weeks, because the other parent's run off with them, and you therefore are at an emergency hearing, and the judge is like, "Well, hang on a minute, I've got to decide who gets Fido." So it's very stressful for the other ones that are dealing with custody fights of children, or may not have seen them, to sit there and wait for that. So just trying to set expectations.

                                                Now, all that being said, there are some courts that are starting to address this issue. So like there was a situation in Tennessee where they upheld and award of ownership of the party's dogs in a divorce, and where the trial court actually considered the dog's needs, and the party's ability to care for them, in making the decision. So the trail court made that decision, they went up on a P.O., and the Tennessee court upheld the ruling. Now that doesn't mean that they suddenly made all these pet custody rights, but when deciding-

Todd Orston:                     But in essence, they did.

Leh Meriwether:              Yeah.

Todd Orston:                     I mean, by considering, I'm sorry to interrupt, but by considering the needs of the pet-

Leh Meriwether:              And the ability of one of the parties to care for him-

Todd Orston:                     Then that is absolutely treating it like a custodial issue, like the standard here, for children, and really almost country-wide, is what's in the best interest of a child? It's almost as if they created this hybrid best interest of the pet standard, and it was upheld by the higher court.

Leh Meriwether:              Yup, and in Michigan, there was a court determined that it was appropriate to award Finn, the dog, I think that's the ... Finn, the dog, to keep all the ... I'm sorry [crosstalk 00:15:49]

Todd Orston:                     To one party, to keep all of the [crosstalk 00:15:52]

Leh Meriwether:              Yeah, to keep all the other animals together, and both these cases recognized that the two spouses were battling over a dog they had once raised together, and they decided not to apply a strict property analysis to the dogs.

Todd Orston:                     But let me take a step back, because I'm thinking about cases over the years, and I can talk about a big number, a large number of cases where testimony came out, in a hearing, or a trial, about the dog, or about the cat, or about whatever. Usually it's a dog, but the connection that one party or the other has, when we bought the dog, why we bought the dog, who wanted the dog, took care of the dog, the dog, the dog, the dog. So courts have listened to that kind of testimony for a long time. That's not, in my mind, what's unique.

                                                What's unique is that we have higher courts that are now basically accepting that level of scrutiny by the trial court, and accepting the positions that the trial courts are taking by treating them like what they are, which is more than just property.

Leh Meriwether:              And there was a case in New York where, if I'm understanding this right, it was Travis vs. Murray. It was a New York Supreme Court case where they actually, I guess the court created a new standard. I think it was called the best-for-all standard. So what's in the best interest of the pet-

Todd Orston:                     The best for all standard.

Leh Meriwether:              The best for all, and awarded custody of the pet to one party, but they also said, at the same time, that this award was non-modifiable, meaning once they make the decision, you're not coming back to fight over it again and again, unlike awards of child custody.

Todd Orston:                     Right, and again, someone suddenly changes their behavior, like a party gets custody of a child, but all of a sudden, then they have a substance abuse issue, or they have something else comes up, then of course, you can come back, you can modify. Here, the court is like "Look, I'm going to consider some of these other issues to determine what's best for everyone, including the pet, but this is not going to result in years of litigation, including modifications, and what have you. I'm going to consider it, and then we're done."

Leh Meriwether:              In Connecticut, there was a case where the court awarded joint legal custody of a pair of Labrador Retrievers, but one parent had primary physical custody, so they literally applied all the same factors of parenting to the dogs.

Todd Orston:                     I can't say that I agree. That's where I'm struggling. I do consider pets to be parts of a family, so I get it on that level, but I also, as a family lawyer, I have seen how different terms in an agreement can create years of conflict, and if you have an acrimonious divorce, if you have two parties that can't get along, now they have to share joint physical custody of pets. You're begging for conflict, and so while I understand both parties have a connection, and maybe it's not just good for the parties, but for the pet, to see everybody, and spend time with everybody, I foresee, unfortunately, years of strife associated with that.

Leh Meriwether:              And you know, it's interesting you say that, because there was actually a Florida appellate court that reversed a trial court award of pet visitation rights, and part of the analysis was that the Florida's judicial resources are already taxed as it is, and they didn't want to tax them further by dealing with pet issues, when they were having trouble just getting to the custody issues, and the child support enforcement issues. I mean they have divisions just handling child support orders, and they said, "Look, we can't add to what we're already not ... kids are already going without child support. We can't add issues of pets to that."

Todd Orston:                     Sometimes we have a hard time getting pretty serious custody cases on a calendar.

Leh Meriwether:              Yeah, we talked about that last week.

Todd Orston:                     That's right. I can't even imagine if the entire case was about custody of a dog.

Leh Meriwether:              Yeah.

Todd Orston:                     The chances of seeing that actually appear on a calendar would be somewhere between slim and none, and I can't say I disagree with that Florida court. That would not be a good use. I'm not going to go so far as to call it a waste of time, or an abuse of those resources, but I can't say, if I'm going to prioritize something, that I'm going to prioritize future modification actions relating to custody of a dog. That's where I struggle. I want people's emotional needs to be met, but I also see the flip side, where bad things are coming up, and bad things have to be dealt with by a court, and this is just one more thing to add on to the plate, and I don't even know if it would get the attention that everybody wants.

Leh Meriwether:              Yeah. I'll share with you two more cases. One in Alabama, where a trial court relied upon an Alabama animal protection statute in awarding a family dog to one spouse, based on the dog's best interests. So I guess they went outside of the family division and looked at that statute. Then there was a case in Maryland where the court ordered shared custody based on six month intervals. I would think that would be kind of rough, but I actually had a case, real quick, where ... it wasn't my case, somebody was telling me about it, who was a pilot, and he worked for this private company that dealt with private jets, and so the husband lived, and if I remember correctly, in New York. The ex-wife lived in California. They had a pet dog, and they paid I don't know how many thousands of dollars a month to have that dog flown every month to the other parent.

Todd Orston:                     First-class, of course.

Leh Meriwether:              Well no, with a private jet.

Todd Orston:                     Private jet?

Leh Meriwether:              Private jet. Not even first class. Pretty amazing.

Todd Orston:                     I'm a little nauseous, but we'll talk about that next segment.

Leh Meriwether:              Exactly. We've got the first class treatment up next.

                                                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 on the new Talk 106.7.

                                                Today, we've been talking about pets, and other personal property issues that come up in cases, and we've been trying to sort of set some expectations as to why courts don't typically like to deal with pet issues, but we've also been talking about some courts in other states where they've actually decided to create new standards to evaluate who should have the family dog, on a primary basis, and almost create pet custody rights, which we both, Todd and I are both animal ... we both have pets. I have a dog.

Todd Orston:                     We're both animals, absolutely.

Leh Meriwether:              We're both animals, yeah. Animal lovers. But I guess we personally see the limitations of our court process, and when we struggle to get a client relief on an issue regarding child custody, it's difficult for us to say "Yeah, we need to take up court resources to deal with pets," and I'm not trying to say anything negative about someone who loves their pet and wants to fight over it. I'm just saying, hey, look, people ... not everybody's gonna have that emotional connection with your pet, number one. Number two, it can rub people in the court system the wrong way. But as we've seen from some of these courts, I mean gosh, it went all the way up to supreme court of New York.

Todd Orston:                     That's the amazing thing. Not just that trial courts are adopting these, and creating, these standards, but that higher courts, appellate courts, are basically saying "Sure," they're saying "Okay, you've created this pseudo-custodial standard to apply to animals. Okay, good, sounds perfect." Now, like I was saying before though, I think courts have done it. We've both been in front of judges where we've had to argue the issue of custody of a dog-

Leh Meriwether:              But the court just said it's personal property at that point. I've never had a case where the court gave it visitation rights.

Todd Orston:                     Well, no, no, no. You're correct. I've never had one with visitation rights, but I have had, in most of the times, in most of the cases where we've dealt with ownership -- I'm going to stop saying custody -- ownership of an animal, I have seen judges listen to the testimony that came out relating to one party or the other's availability to take care of the animal, where the children are going to be, the children's connection with the animal, the connection that each party had with the animal.

                                                So I'm not gonna say that that's new. Even here in Georgia, there are judges who will accept that information, that evidence. But what we are seeing is definitely, I think we've hit a turning point where the definition of a dog just as chattel, as just property, is clearly, from what you read before, it's changing.

Leh Meriwether:              Yeah. Just not in Georgia, and Florida.

Todd Orston:                     Not yet. But there are plenty of animal lovers here in Georgia that something tells me it's just a matter of time-

Leh Meriwether:              Before something goes before the legislature.

Todd Orston:                     Yeah, so but-

Leh Meriwether:              But even in that case, and I know we're saving this for towards the end, I still don't think it's a good ... I don't think it's a good idea for people to use the court resources for that, but there are other options, but I think they're actually better.

Todd Orston:                     Yeah, and I don't disagree with you, but we're coming at it from the point of view of we see all the other serious issues that have to be addressed. We've spent a lot of time, especially in the last show, talking about why courts are limited in what they can do, because of their dockets, because of how much work that they have. So here, you're talking about custody fights for an animal, and while I get it, I really do, I can't say that I agree that a court should be spending that much time dealing with a custody fight related to a pet.

Leh Meriwether:              Yeah. So let's talk a little bit about other personal property issues, and 'cause I've seen people spend thousands of dollars fighting over night-vision goggles, one time. A chainsaw another time.

Todd Orston:                     You would, come on, God forbid you ever have to go do this, but you would fight for your chainsaw.

Leh Meriwether:              Oh, I love my chainsaw. It's huge. It's got a 42 inch bar.

Todd Orston:                     All right, but see, for God's sake-

Leh Meriwether:              I'm just kidding.

Todd Orston:                     You're talking almost like it should be a custody fight.

Leh Meriwether:              I could go buy another one.

Todd Orston:                     All right, how about six months on, six months off?

Leh Meriwether:              I can go buy another chainsaw.

Todd Orston:                     Yeah, there you go.

Leh Meriwether:              I am not gonna spend $10000 to fight over a chainsaw I could replace for $1000 or $1500.

Todd Orston:                     Right. But obviously, people have connections to property, and so what we deal with regularly are these fights. Sometimes it's reasonable, but sometimes it's not. Obviously reasonableness is in the eyes of the beholder-

Leh Meriwether:              So let's talk about [crosstalk 00:27:54]. So I really see three points where you've got sort of a legitimate tension, when it comes to do I spend money on attorney's fees to fight? One is something of sentimental value. Maybe it's something from, I'll give you an example, Stephanie has this piece of furniture that's over 200 years old. It's called Aunt Molly. It's been passed down from grandmother to daughter, to granddaughter.

Todd Orston:                     And I'm sorry, the piece of furniture is-

Leh Meriwether:              Over 200 years old.

Todd Orston:                     No, no, no. Let's go back to the name.

Leh Meriwether:              It's called Aunt Molly. I don't remember why it's called Aunt Molly, I'll have to ask Stephanie.

Todd Orston:                     Aunt Molly. Okay.

Leh Meriwether:              But it's called Aunt Molly, and the heirlooms [crosstalk 00:28:33]

Todd Orston:                     Do you talk to the furniture? I'm just ... this is a small room, I'm feeling a little unsafe right now. I'm just-

Leh Meriwether:              Hey, I didn't name the furniture. But it's got the cuff links from a great-great-great grandfather who fought in the war of 1812 inside of it, so there's all these family heirlooms in there. Those aren't ... you can't replace those. Those have ... they're more than a sentimental value. They're irreplaceable. Something that's over 200 years old now, so that's something that I could see it's almost, you can't put a price on it. I could see arguing over that. Obviously, that's separate property she brought into the marriage, but still-

Todd Orston:                     But let's assume that it wasn't.

Leh Meriwether:              Yeah.

Todd Orston:                     Yeah let's say it was gifted to both parties by whoever owned it before, but I can understand that, because that's not the proverbial toaster that people-

Leh Meriwether:              I can understand that. Yeah.

Todd Orston:                     Or the chainsaw, to use your example, that it's a chainsaw. It may, in your mind, be the best darn chainsaw ever, and unless you're a lumberjack-

Leh Meriwether:              It is.

Todd Orston:                     That competes in those things, which are really cool, but if it's one of those types of chainsaws, maybe you're like, "I need that chainsaw. That's part of my work, or-"

Leh Meriwether:              Yeah. Those chainsaws are more like 20 grand.

Todd Orston:                     Yeah. So I get it, but-

Leh Meriwether:              Yeah, but then you get into a cost-benefit analysis.

Todd Orston:                     Right, exactly. But here, you're talking about a piece of furniture you speak to, and you may have that emotional connection with that sofa, or whatever that is, and I understand the fight.

Leh Meriwether:              Yeah. And so another one would be we see this, like maybe on a temporary basis, there's an argument of "Hey, I need to take this furniture out of the house so I can set up my new apartment, or new house, or whatever," but you need, you're gonna sell the marital home, and you need that furniture in the home, because it's going to help stage it, it's going to help it sell faster, sell for a better price, so you've got those sort of tension situations where-

Todd Orston:                     Although that's not gonna deal with ownership. That's gonna deal with temporary possession-

Leh Meriwether:              It's a temporary issue. Yeah.

Todd Orston:                     Right. And usually that comes up in the context of a temporary hearing, and judges deal with that different ways. Sometimes it's keep everything in the house, and sometimes it's some of the things can go in order to furnish the new home.

Leh Meriwether:              Yup, so family photos, that's another one that you can't really replace them. Now, thankfully, we're in a digital age, where this isn't as big a fight anymore, because all you have to do is just go copy a folder, or several folders.

Todd Orston:                     Yeah. Usually the fight is over the methodology. How are we going to go about doing it, because the party who has them doesn't trust the other party to simply take possession and then return them and not damage them. So it ends up becoming more of a fight over how, as opposed to whether or not it's going to happen.

Leh Meriwether:              And it was more of a fight, and you might see it for longer term marriages, I think in the future, family photos are not going to be that big of an issue, but I've seen people spend five thousand dollars fighting over trying to get their family photos, because they were printed. There's negatives, but there's no ... it's not a digital copy. So once that's gone, you can't replace it. So in some respects, that's also irreplaceable, those photos.

Todd Orston:                     Right.

Leh Meriwether:              So that's one of those situations where I can understand someone willing to spend $5000 to get their half of the family photos, and they put a dollar figure on it, and they went to court, and we fought over it, and got an order saying that they had to be returned, so [crosstalk 00:31:58]

Todd Orston:                     It comes down to is it replaceable? Sort of like the chainsaw, sort of like the toaster.

Leh Meriwether:              You keep picking on my chainsaw.

Todd Orston:                     Yeah, well yeah, for lack of a-

Leh Meriwether:              I'm just kidding.

Todd Orston:                     Yeah, but if it's replaceable, and it's replaceable, and spending three grand to fight over something that you could replace, brand new, with more whistles and bells, for four hundred, it doesn't make sense.

Leh Meriwether:              Although I couldn't replace this for $400.

Todd Orston:                     All right, but you know-

Leh Meriwether:              It's a specialty chainsaw. It's made to slab cut trees, and-

Todd Orston:                     See now who's talking about chainsaws? All right. You're hyper focused. So but if it's replaceable, for whatever cost, then that's one thing. A named piece of furniture, jokes aside, that dates back to the 1800s, that can't be replaced.

Leh Meriwether:              Well you could make another piece of furniture, it's just not the same.

Todd Orston:                     All right, are you going to name it? Is it Uncle something? I don't ...

Leh Meriwether:              Aunt Molly died, and now we have Uncle Sam.

Todd Orston:                     All right, this just got weird.

Leh Meriwether:              It's been weird, Todd.

Todd Orston:                     [crosstalk 00:33:05] with you, every day. All right.

Leh Meriwether:              All right, back to personal property.

Todd Orston:                     Back to named furniture.

Leh Meriwether:              And chainsaws.

Todd Orston:                     And chainsaws. All right, if you could replace it, that's my point, then you need to step back and think about it. But if it's the pictures, or the irreplaceable items, I understand, and maybe that is a fight worth fighting.

Leh Meriwether:              Yeah. But what we can't fight is taking a break. Hey, we'll be right back, and up next we're gonna go into the ways that you avoid the court process and save lots of money to deal with these pet and personal property issues.

                                                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 on the new Talk 106.7. In this show, we've been talking about pets, and personal property, and Todd's been making fun of my Aunt Molly.

Todd Orston:                     Hey, you're the one, during the break, that said she was heavy. All right? So.

Leh Meriwether:              Shh, I don't want her to know that! No, like I said, what's really cool is it was all done by hand. I'm a woodworker. It was all made by hand, and you just can't replace that, with that history.

Todd Orston:                     And that's worth fighting for, right? I mean even though one party might, in this situation, one party over the other would have a separate property claim, so it may not be an issue that even has to be negotiated, but that's not always the case. If it's something that can't be replaced, then that may be worthy of a fight, or of an effort to try and win that piece of property. But otherwise, you need to, again, take a step back, and determine whether or not the value is something that needs to be fought over.

Leh Meriwether:              And even come up with a ... determine a budget on how much you're willing to spend on it, and make a serious assessment of, before you tell your lawyer, "Hey I want this," how much you're willing to spend on it, how much you could replace it for. 'Cause some of these things that you can go to a garage sale and buy for $50, and you spend a thousand or two thousand in attorney's fees, it just doesn't make good business sense, but when you get involved in divorce, the emotion takes over, and you stop thinking along those lines, but that's why you hire a lawyer to help you work through those decisions, and make wise decisions, rather than emotional decisions. So let's talk about resolutions.

Todd Orston:                     Yeah, let's talk about resolution, because there are ways to resolve this. We've talked about the courts, and we've talked about how they may be reluctant to deal with these issues. That doesn't mean they don't get resolved.

Leh Meriwether:              Right, so let's talk about pets. Let's hit that one first, and then we'll talk about the other personal property ways to deal with them.

Todd Orston:                     Let them go, and if they return, they're yours forever.

Leh Meriwether:              So you both move, and see whose house the pet ends up in?

Todd Orston:                     Right. It's like with those movies where the dog traveled like 3000 miles, and no. All right. Definitely, I'm kidding. But with pets, there are solutions. We heard about some of these other states and jurisdictions where they did deal with things in terms of a schedule.

Leh Meriwether:              Yeah.

Todd Orston:                     Okay. So can you do it? Yeah, absolutely.

Leh Meriwether:              I've had some settlement agreements that, now here's ... let me make sure ... let me make this point clear. Even in Georgia, you can enter into a settlement agreement that has a pet custody arrangement, and even, I'm not kidding, pet support to pay for expenses. I have had one where we worked out where the-

Todd Orston:                     Veterinary care.

Leh Meriwether:              Veterinary care, the food, and all that. That was actually written into the agreement, who's gonna pay what, and a court will enforce that settlement agreement, because at that point, it becomes a contract between you and your spouse, that a court will enforce, because that contract becomes incorporated into a final order. What the courts don't like is when they have to make the decision.

Todd Orston:                     And let's touch on that for a second. So I want to segue for a moment. Rather than talking about different types of property, and types of solutions, I want to hit on one thing first. We've talked about the reluctance of courts to deal with these issues, but there is another way, if the parties can't reach an agreement, whether it's on an animal, whether it's on [crosstalk 00:37:51]

Leh Meriwether:              A chainsaw.

Todd Orston:                     A chainsaw, okay. There are other things that we can do, like arbitration.

Leh Meriwether:              Yup.

Todd Orston:                     All right, so let's talk about that for a moment, then we can go back to some of these more specific types of property, and how to deal with it.

Leh Meriwether:              Yeah. So let's say-

Todd Orston:                     Explain what arbitration is.

Leh Meriwether:              So arbitration is where you hire a third party who has the ability to make a decision that the two of you cannot reach. The great thing about an arbitrator is they're private, and they are hired for that one specific task, and if you come to them, and you say, and we're gonna talk about all situations, well I'm going to touch on pets, focus on pets mainly. They're hired. So they're not going to be upset, like "I'm really going to have to make a decision about pets?" They're like, "All right, let's ... tell me why you think you should be the primary custodian of this pet," and because the reason why that works so well is you're not taking up the public resources where courts ... they're the only ones that can make decisions, and order sheriffs to go rescue children, or something like that. You're dealing with a private arbitrator, you're paying for them to pay attention to that issue-

Todd Orston:                     To all the facts, that's right.

Leh Meriwether:              To that issue, and those facts, whether it be a pet, or a chainsaw, and they're going to take all of those factors into consideration, and it's very informal. That's the other nice thing. You don't need a lawyer for it. You can get one if you want, but that just adds to the cost. But you can, and the two of you split the costs, they can range anywhere from, a little lower, I've seen them everywhere from $150 an hour upwards over $600 an hour, but I mean, there's a good range. So if you get one for $200 an hour, it's $100 a person, and sometimes they say, "Hey look, you can present your ... if the two of you agree, you could just write what you think the arbitrator should do, and present a written proposal to the arbitrator," for the pets, for the furniture, for all the personal property, and stuff, and then they'll go through it, and then they'll make a decision.

                                                Now I've seen it where they show up to the house-

Todd Orston:                     I was just gonna touch on that. That's the, to me, the most compelling, and maybe in some situations, appealing aspects of arbitration over allowing the court system to, and the judge, to make a decision, is that I've seen situations where the arbitrator will literally meet at the house, and then will say, "Okay, walk me through. Show me all the property. Show me everything. Give me a list. Okay." And I've seen them just act in a very Solomon-esque kind of way, where they're just splitting the baby. They're just, "Okay, pick one. All right, now you pick one, now you pick one, now you pick one," and they'll stay there, I mean I've heard of arbitrations going for like 10 plus hours.

Leh Meriwether:              Yeah, me too.

Todd Orston:                     But they'll stay there-

Leh Meriwether:              It's still cheaper, though.

Todd Orston:                     It's still cheaper than having a full hearing or trial, preparing for it, having an attorney handle it, and at the end of the day, hopefully, the arbitrator is going to get it right, meaning it's going to be divided, you may not get everything that you want, but you're going to get a lot.

Leh Meriwether:              And if there's pets involved, I've seen where the arbitrators are actually watching how the pet, and I usually see dogs. I usually don't see anything else, but dogs seem like the biggest thing, and maybe I'm missing it, but they watch how the dog interacts with the parties, and everything, and to help make the decision of who's going to care for the dog.

Todd Orston:                     Right.

Leh Meriwether:              But the other great thing is you can tell the arbitrator, here are what the decisions we want you to make, and here are the factors we want you to consider, and so they will make that ... they will make rulings on those issues, as you set those forth, which is wonderful. The court doesn't have to do any of that.

Todd Orston:                     And a lot of times, the way that we handle it is a lot of times we will go into a contested case, and by that I mean let's say we were approaching trial. We'll head into that trial already having dealt with property in that way, meaning we've already agreed that we're just going to submit that to arbitration.

Leh Meriwether:              Right, so we ask the court just to deal with the bigger issues, like the house, the retirement, the kids, and we tell the judge there's going to be binding arbitration on the issues of personal property, and so that's the key question, I mean the key thing to remember. When you enter in arbitration, you want it to be binding, meaning that whatever the arbitrator rules on, you can't get out of it.

Todd Orston:                     You definitely don't want to spend 10 hours sifting through all the property, and then get a decision, only so that the other party can go, "You know what? That doesn't work for me. I don't want to be bound by it."

Leh Meriwether:              So and the courts actually go, "Okay, I understand the parties are contesting this, but hey, I don't have to deal with those things, they decided for an arbitrator to deal with it," and I've seen some judges actually applaud the parties for, thank you very much, that I don't have to deal with this.

Todd Orston:                     That's right.

Leh Meriwether:              And I don't mean it in a bad way, they're just like, I have all these other things I've got to deal with, I'm glad I don't have to deal with these aspects of your case.

Todd Orston:                     And that goes back to some of these other issues. We were talking in the context of pets, but for instance, we were talking about photographs, or we're talking about collectibles, we're talking about those types of things. The arbitrator can handle all of those things.

Leh Meriwether:              They can.

Todd Orston:                     And sometimes, and this is where strategy comes into play. Sometimes you just have to know your judge, and there are some judges where your attorney might look at you and go, "We really want the judge to deal with this," and then there are situations where we'll look, and we'll go, "We really don't want that judge to have to deal with that," because if the judge gets annoyed, he may order everything, or she may order everything sold.

Leh Meriwether:              Yes.

Todd Orston:                     So an arbitrator's more than likely not going to take that kind of a Draconian step, like just sell everything and split the proceeds. But it comes down to, you've got to know your court, know your judge, and then you can make a strategic decision as to how to deal with the issue of property.

Leh Meriwether:              So we're almost out of time. I wanted to give one other good tip to resolve these. If you can't afford an arbitrator, one of the best things to do is you go into the house, step one, you itemize everything in the house. Step two, you ask your spouse to agree to the itemized list, just the list of the stuff in the house, the personal items, when you itemize them, make a description of the item, the room the item is located in, and then create a husband and wife column, make your proposal to your spouse. If they don't agree with it, ask them to make a counter, and you agree to what you can agree, and then after that point, for the things you can't agree on, you flip a coin, and whoever wins the toss gets to pick the first contested item, and then the person who lost the toss gets to pick the second contested item, and you just go back, and you go down the list, and then that way both sides are going to be equally unhappy, but then you don't spend a whole lot of money in attorney's fees, and arbitrator fees.

                                                Well that about wraps up this show. Thanks so much for listening. If you want to read more about us, you can check us out online at AtlantaDivorceTeam.com.

Speaker 4:                           This audio program does not establish an attorney-client relationship with Meriwether and Tharp.