Divorce and Child Custody Q&A
- Can my ex get out of selling the house by filing for bankrutpcy?
- Does the opposing party have to file a response with the Court in order to get a Court date for custody.
- If I do not file a response to a Motion for Judgment, am I in default?
- Can my child's father get rights to see our daughter if I choose not to have him involved?
- Can I move myself and my child across state lines when my child's father has week off and week on parenting time?
- If the Court Order says we share the tax deduction for the children, what will happen if my ex filed for both kids the past few years?
Leh Meriwether: Welcome everyone. I'm Leh Meriwether and with me is Todd Orston. We are your co-host for Divorce Team Radio, a show sponsored by the divorce and family law firm of Meriwether and Tharp. Here you'll learn about divorce, family law, and from time to time even tips on how to save your marriage if it's in the middle of a crisis. If you want to read more about us, you can always check us out online, Atlantadivorceteam.com. Todd, how are you doing?
Todd Orston: I'm good.
Leh Meriwether: Good?
Todd Orston: Yeah. I could complain, but we're on air, so.
Leh Meriwether: Who would listen?
Todd Orston: Awkward. So no, everything is good. Everything is good. We are navigating the holidays well and although we can't say that for all of our clients, things seem to be relatively calm this year. We don't have all the fires that sometimes come up during the holidays but overall, I would say, two thumbs up, maybe even three. I'd have to borrow one.
Leh Meriwether: Borrow one. Oh man. All right, well that's good.
Todd Orston: How about you?
Leh Meriwether: Good, good. Have some scheduling conflicts. I just realized right before we start recording and I'm going to have to work those out when I got off the phone. Yey.
Todd Orston: I mean, these are great things for people to listen to. I mean, it's not like you could have worked those out ahead of time, but whatever.
Leh Meriwether: Well, I would had to have known about them ahead of time.
Todd Orston: Do you have bunions or anything else you want complain about? I mean.
Leh Meriwether: Well, actually, no, you mentioned now, I was kidding. No, everything's fantastic. All right, but, we're here to help some folks who do not have things... Things aren't fantastic for them at the moment. They have some challenges and they're trying to work through those challenges. And that's what we're here for. We've all had challenges. We all get through difficult times. We encounter difficult times. I don't think there's an exception for anybody. The key is when you encounter these challenges, how do you deal with them? Do you go at them alone or do you reach out for help? And we like to help people, so. I think it's very important to reach out for help so that you make the right decision. You don't do something foolish that gets you in trouble.
Todd Orston: Yeah. Yeah. And look, when we say these things, we're not trying to say contact us. That doesn't mean you can't. I'm saying contact someone because so many problems that people have that they experience, trouble they get into, is simply because they didn't ask the right question and pose that question to the right person. And so many problems can be avoided. And we see it again and again and again. So when we say this, we are truly saying, I'm going to say it this way, I don't care who you contact, as long it is somebody who has the knowledge, the experience, the training, to be able to give you an answer. In other words, you can't go to your aunt Margaret and say, legally speaking, what do you recommend?
Leh Meriwether: What if she's a lawyer?
Todd Orston: You know what, maybe too close. I don't know. But fine, all right, that's the caveat. If Margaret's an attorney, then she's fantastic. Go to her. Otherwise, if Margaret's a plumber, you probably don't want to get legal advice from Margaret. I don't care how many divorces she's had, so it doesn't make her an expert. So get the information you need to make good decisions and avoid problems because, again, and this is the biggest point that I will make. We have the benefit of having seen so many people do the right thing and also do the wrong thing. And oftentimes those wrong things can be avoided.
Leh Meriwether: All right, well, let's dig in some, we got some questions that we're going to answer. And as always, we like to sort of analyze the questions and sometimes go even beyond the questions to help people understand, how do you process through challenges like this and the law surrounding the challenges? So. All right.
Leh Meriwether: So the first one is, how can my ex file bankruptcy and get out of having to sell the house, which we are to split the profit for in the divorce decree? And in the divorce degree, we will sell the house within one year and sell the profit. I've allowed her to stay in the home seven years for the sake of her children, that was your first mistake. The children are grown and have moved on with their lives. I have told her it is time to sell the home. She refuses. I sent her a contempt of court order and she said she filed bankruptcy. And that it is no longer enforceable. Is this true?
Todd Orston: Okay. Well, let's start with, I agree with you. Number one, just allowing her to stay in the home in violation or sort of in opposition to what the terms of the existing agreement and order are, you shouldn't have done that. All right. That becomes a problem in and of itself. Secondarily, seven years, you have to understand you have a period of time within which you can enforce a court order.
Todd Orston: All right, it could become stale after, it's seven years, you can reopen it and extend to 10. But then at that point, filing a contempt can become difficult if not impossible. So you want to make sure you act in a timely manner and this person may have waited too long. I don't know, but that's definitely an issue. Now, going back to the bankruptcy issue. No, the bankruptcy court's not going to say, "Disregard that state order, state court order."
Todd Orston: Bankruptcy court is a federal court. Now, they do have some authority to do things, even if it goes against what a state court wants to do or says to do. But there are things that you have to do here. Take a look at that bankruptcy filing, because there's probably a huge difference between what this ex-spouse of yours is saying and what is accurate. The bankruptcy court, more than likely, is not saying you don't have to comply and you're going to get the house and that person won't get anything. You may look at the petition and see they didn't even mention that you have an ownership interest in that property.
Todd Orston: And therefore, the bankruptcy court doesn't know. Now I will say this by filing for bankruptcy protection. It puts a stay on, on any state court proceedings. So you may not be able to just move forward with the contempt, but it definitely opens the door for you to communicate not only in the state court venue, but also maybe in the bankruptcy court venue where you can, and you may want to speak to an attorney who really knows about this. But you might be able to throw your hat in the ring, if you will, where you're basically like, "Hey, hold on one second. I'm an owner of that property."
Todd Orston: So if she or he, or whomever, isn't relaying that to the federal court, to the bankruptcy court, yet, listen, don't just think you're going to take that property please, because I own that. And hopefully you'll be protected.
Leh Meriwether: Well, we're assuming. We don't know if his name was on the house.
Todd Orston: Right.
Leh Meriwether: There's exemptions and exceptions in the bankruptcy code to obligations that arise out of a divorce decree, such as alimony and child support. They're very specific, especially when you're trying to do a chapter seven. And this is as of 2021, and there could have been a change in the law or a case that I haven't seen recently so you always want to double check with a bankruptcy lawyer. But as a whole, there are several things exempted and they're including obligations that arise out of a divorce decree.
Leh Meriwether: So that's something very important to remember that she can't, and not to mention this is an asset she's getting, and if she didn't list it, for example, she listed, when you file for bankruptcy, you're telling the world that you don't have the money to pay your debts. Well, if there was a house there, that she was required to sell in a divorce decree, and she did not disclose that on her bankruptcy form and her receiving half the equity in the house could have satisfied some of those debts.
Leh Meriwether: And I'm speaking potentially, because we don't practice bankruptcy law, but there's that potential out there where a court could say, well, hey, you need to ex... Or a bankruptcy trustee could ask for that to be executed, to sell it so that she or he could use that money to pay... Or it's a she, I'm sorry, to pay for any outstanding debts that she's trying to avoid paying, so.
Leh Meriwether: And not to mention that the bankruptcy court didn't block anything, he can still file for contempt to order the sale of that home. And if she doesn't know to object on the grounds that the order had become stale. I've never seen a judge [foreign language 00:09:39], meaning on their own, suddenly say, "Well, I can't afford this or enforce this order. It's been seven years." Usually you have to see the other side-
Todd Orston: Yeah. I haven't seen a judge, I agree with you, I haven't seen a judge do it on their own. But again, it's something that people need to be aware of. And again, that's why I was saying, going back to the bankruptcy filing, you have to look at what was filed and what was claimed in that filing because there are homestead exemptions and other things that, again, a bankruptcy attorney would need to really speak to you about.
Todd Orston: But the bottom line is, there could be a lot of hypocrisy here where they're saying, "I need my home. I can't pay my debts, but my home, please let me keep my home." And yet here's an order that says, "That home you're saying you want to keep, was supposed to be sold, which would've put more money in your pocket to pay the bills." So definitely, you need to look at whatever that petition is, that was filed.
Leh Meriwether: When we come back, we're going to answer this question, does the opposing party have to respond to get a court date for custody? Mom was served over 30 days ago, the lawyers now saying it's going to be hard to get a court date because opposing party did not respond after she was served. Does she have to, in order to move forward? We're going to answer that when we come back.
Leh Meriwether: 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?
Leh Meriwether: That's right.
Todd Orston: You can turn on the show and we'll help you fall asleep.
Leh Meriwether: There you go.
Todd Orston: I'll talk very soft.
Leh Meriwether: Welcome back, everyone. This is Lee and Todd and we are your co-host for Divorce Team Radio, a show sponsored by the divorce and family law firm of Meriwether and Tharp. If you want to read more about us, you can always check us out online at Atlantadivorceteam.com. And if you want to read a transcript of this show or of the others, you can find it at divorceteamradio.com.
Leh Meriwether: Well, today we are doing Q and A and we are answering people's questions, sometimes explore it, going beyond the question to talk about the law surrounding it and give practical, sometimes practical advice on how to deal with the situation as well. Where we left off was the following question, does the opposing party have to respond to get a court date for custody? Mom was served over 30 days ago, the lawyer is now saying that it's going to be hard to get a court date because the opposing party did not respond after she was served. Does she have to, in order to move forward?
Todd Orston: Interesting. All right.
Leh Meriwether: You want me to answer that?
Todd Orston: Absolutely. Go for it.
Leh Meriwether: So in Georgia, I don't know about other states, but I know in Georgia, if you do not file an answer to a complaint for divorce, I'm speaking very specific here. It is not a default. You don't automatically win. Whereas if you were to file a complaint for what's called damages, somebody breached a contract, didn't pay you what they were supposed to and you filed a complaint against them and they didn't answer in 30 days. And then they didn't answer after 45 days. You could move the court to award you what you were asking for in your complaint. You can't do that in divorce because it's a court of equity, but it does say in the statute that you don't have to give, if they don't answer, you don't have to give them notice of the court date.
Leh Meriwether: Now, as a practical matter, it's just not good practice to do that, again, because it's a court of equity, particularly if there's children involved. I think it looks good to the court because sometimes the court will make you do it anyways. That once the 30 days has run, you go ahead and put it on the calendar, and this is assuming you haven't been able to sit down and try to work out an agreement with the other party, with your spouse, but you put it on the court date and you send her notice of the court date.
Leh Meriwether: You only have to mail it at this point. If she was actually served with original complaint and move forward. I'm not sure what the, maybe you misunderstood what your lawyer was saying so that part didn't quite make any sense to me. But all that's going to matter is the court's going to see... Again, speaking of it here in Georgia, the court's going to see you gave the other side notice of your upcoming court date.
Todd Orston: Yeah. And so a motion for judgment, the full name is a motion for judgment on the-
Leh Meriwether: Oh wait, wait. You're looking at the other question.
Todd Orston: Oh.
Leh Meriwether: We're looking at the one, does the opposing party have to respond to [crosstalk 00:14:20].
Todd Orston: Oh, I'm sorry. I apologize. Yeah. You're right. Jumped ahead. I did jump ahead. It's such a great question. No, I agree with you. In terms of a default, you don't have to worry about, I mean, you need to show up in court, but I agree with you first and foremost, giving notice is better than not. Different judges handle it differently and by that, I mean, I've seen judges where, for the second time, third time that a party doesn't show up, they're like, "Well, we're going to push it to the next calendar."
Todd Orston: And let's go ahead and they'll look at their calendar clerk and be like, "Let's make sure we send something out." And then I've seen judges say, "Well, they didn't file an answer. All right, is the other party here in court? Well, let's move forward with a hearing." And so it really depends. I agree with you, the better practice is, go ahead and send the notice because I can tell you this, every time that I go into court, almost every time, and the judge says, "Is person A here?" "Yes, Judge. I'm here with my client." "Is person B here?" Crickets.
Todd Orston: And then the judge looks at me and goes, "Has notice been sent?" "Yes, Judge. We sent an email, we sent a letter and we've received no response, no answer, nothing." The judge then will be like, "Well, okay, you've done what you need to do. And even though you didn't have an obligation to send that notice, basically, let's go ahead and move forward."
Todd Orston: And it's really hard if not impossible to undo that because then the courts look at you going, you didn't do the few basic things you needed to do in order to protect yourself. You just didn't even file an answer. So if you don't care, then why should this court care? Why should this court just keep allowing you to not show up, not respond? Yeah, we moved forward and we're going to stand by the court order.
Leh Meriwether: I'd like to point out too, because I went back and looked at the question while you were talking, they did say custody was in the question, get a court date for custody, not just a divorce. It's very important for court to, and when it comes to custody because the courts, I mean, they're there to really, in many respects, protect the children. And they're going to want to make sure that you gave the other side plenty of notice when it comes to the children regarding the court date.
Leh Meriwether: And I mean, I even had that in a case where the opposing party was in jail. The court wanted to make sure the other side had been given adequate notice about custody, and even then, the courts, they don't want to deprive the children from seeing one of the parents and they want to make sure there's no fraud involved or anything like that. So the more steps you take to make sure the other person was given notice of the court date, the more likely you will have your court, you will be heard on that day and get a court order that you're looking for.
Leh Meriwether: Now, if you're asking for sole physical custody and the other person just doesn't have any rights or anything, you better come in there prepared to disclose to the court why you're asking for such an extreme parenting plan, where it basically excludes the other parent. We've had that before where a parent was in jail for child molestation, but we actually got the, we brought to court with us, a certified copy of the person's, and I think they pled guilty, if I remember. Anyways, to proof that they had either pled guilty or found guilty of this charge because we had, basically, that parent, that father was, he was not having any legal rights, any parenting time with these children. And he was supposed to be in jail for 20 years.
Leh Meriwether: So we didn't even want to, any kind of requirement that she had to take the children to the jail for them to see their father. And the court granted it because we came to court with the evidence to present to the court of why we were asking for such an extreme parenting plan.
Todd Orston: Before we go on to the next one, my question there is typically when you have another party who's in jail, getting them notice is not difficult. And then the secondary point, I guess, would be, usually the judge will say, "Well, then I guess we need to take steps to somehow get the person brought over from jail to court for this hearing."
Leh Meriwether: Yeah. In this case, the person was jailed in another state.
Todd Orston: Yeah. Okay.
Leh Meriwether: So yeah. It would be a good point though because if it's in your state, they're going to transport the prisoner to show up to court.
Todd Orston: Yeah. Okay. And now let's go to the question that clearly, I was chomping at the bit to answer. All right. How about this? I'll read this one to you because I think it's just, that should be my [inaudible 00:19:13].
Leh Meriwether: Okay.
Todd Orston: Okay. So I'm going through a divorce and my wife filed a motion for judgment to have it expedited. However, I didn't receive any paperwork and now an attorney is stating I'm in default because it's past the deadline to respond. Will I still be able to dispute what she is asking for in court? I'm trying to either take over the house we bought or have her buy me out. Also, we did not officially separate until a month ago and the hearing is on October 15th. If that makes a difference.I'm trying to explore all avenues so that everything will be split equally when we see the judge.
Leh Meriwether: Well, I feel like I'm missing some kind of information here. Usually, you see a motion for judgment on the pleadings, is what it's called and that is to expedite and get a hearing date, a final hearing date. And it almost sounds as if he was, the attorney believes that the husband was served with the divorce complaint, but did not file an answer. That's the way it kind of sounds. I'm not kind of, but that's the way it sounds. And he's claiming he didn't receive any paperwork. What I would do is go to the courthouse and get a, or ask the lawyer for a copy and then immediately file your answer. That way you can show up to court and dispute what she may be asking for.
Todd Orston: Well, and let me tell you, my quick thought is usually a motion for judgment on the pleadings, that's when everything has been resolved, that's when, so in other words, if you need a final hearing, because the other party didn't answer, we talked about this a little bit, if you already have an agreement, then you can take that agreement. You file the motion for judgment on the pleadings.
Todd Orston: What that motion does, you have to answer some statutory questions. Who you are, where you live, you're in the right jurisdiction, you filed it because you want the divorce, there's some basic questions, okay. And I'm summarizing, that's not exactly how it goes. But instead of going to court and presenting that information and testimony in front of the judge, you can do it in the form of a motion.
Todd Orston: A motion for judgment on the pleadings rather than live testimony. So usually, everything's resolved. So you're asking for that hearing, I mean, for that court to review the motion and say, "Hey, go ahead and sign off on everything because here are the answers to the questions and we don't want to have to come to court." So I'm missing a little bit more because if-
Leh Meriwether: When we come back, we'll finish answering this question.
Todd Orston: Hey, everyone, you're listening to our podcast, but you have alternatives. You have choices. You can listen to us live also at 1:00 AM on Monday morning on WSB.
Leh Meriwether: If you're enjoying the show, we would love it if you could go rate us on iTunes or wherever you may be listening to it, give us a five star rating and tell us why you like the show.
Leh Meriwether: Welcome back, everyone. This is Lee and Todd. And we are your co-host for Divorce Team Radio, a show sponsored by the divorce and family law firm of Meriwether and Tharp. If you want to read more about us, you can always check us out online at Atlantadivorceteam.com. And if you want to read a transcript of this show or other shows, you can find them at divorceteamradio.com.
Leh Meriwether: Well, today we're doing Q and A and we were in the middle of a question and I interrupted Todd, because he was about to go over.
Todd Orston: Yeah. I'm like a race horse at the gate. I just start running and-
Leh Meriwether: You're just jumping ahead.
Todd Orston: Yeah. You're just [crosstalk 00:23:09]. All right. Well, going back to what I was saying though. Yeah, judgment on the pleadings, that's a tool that we normally use, and we were talking about this in the break, when there's an agreement. So my advice to this person, if this person was calling me, I'd be like, "Look, contact the clerk." You might want to go down to the courthouse and see what has been filed. If a motion for judgment on the pleadings has been filed, if you are saying you never entered into an agreement, well, that's kind of interesting because you may want to look to see what is being presented to the court. And now, I'm not saying it's happening here.
Todd Orston: We have seen situations where a party will forge a name. Okay, and I'm not saying that's going on here. But I'm saying, where it's like, "Oh yes, we reached this agreement. Here's the signature." And it's like, whatever, it looks like your signature a little bit, but you're like, "I never signed that." So bottom line is, look at what's been filed. Make sure it's a motion for judgment on the pleadings.
Todd Orston: And I agree with you, Lee. I mean, you need to file an answer if you haven't done it. What that's saying to the court is, whoa, whoa, whoa, hold on. We're not done yet. I need to defend myself and make sure that my rights are protected. And it's not. This motion is not timely. We are not ready for judgment to be entered.
Leh Meriwether: Yup. And I think you said it before the break too, is that, normally, nobody shows up to court. When the court grants the motion for judgment on the pleadings, it signs a final order. And typically, a final order says and incorporates a settlement agreement. But if there's no settlement agreement, I've never seen someone file a motion for judgment on the pleadings. There is no basis because you haven't laid out how you are dividing up the marital assets. So that's really confused on this one.
Leh Meriwether: He ends up saying, "I'm trying to explore all avenues so that everything will be split equally when we see the judge." Well, you need to make sure you have filed your answer and if you haven't filed your answer, file an objection to the motion for judgment on the police and ask for a court date. I mean, just put it down, ask for a court. And not to mention, if you're in a county that may have some mandatory mediation, you may ask for the court to order the two of you to mediation. But the court won't do anything if you have not filed an answer.
Leh Meriwether: So that's your first step, file an answer because it sounds like there wasn't one filed. But I could be wrong. But things aren't, for both you and I, things aren't adding up on this one. Something's missing.
Todd Orston: Yeah. All right. All right. What's not missing is the next question.
Leh Meriwether: Okay. You can read this one or am I reading?
Todd Orston: I can read this one. All right. So let's see. Wow. So I get the really long one. All right. All right. Just stop me again if I'm about to go into the next break. All right. Can my child's father have access to her or anything regarding her, if I choose not to have him involved? Not only has he put his hands on me in the past, once, he's also not really been present for six to seven months of my pregnancy. The physical abuse only happened once, however.
Todd Orston: The establishment we were at when it happened did call the police. I didn't press charges because he'd never done it before. But now I'm pregnant and he has joked about not being the father before, several times, and had just recently, as of October, started coming to appointments. He doesn't want to be truthful about him being with someone else, and quite frankly, I do not trust him to have my child in his care because I'm not sure who will actually be with her.
Todd Orston: He's been lying about claiming two foster kids on his taxes already and they belong to his mother. He lives there and they have been telling the agency that he doesn't, but he's still claiming them on his taxes and getting child tax credits. He recently told me that when his mom wasn't present to watch one of those foster kids, his little sister, who is mentally challenged, was left alone to watch her. He came home and noticed a pillow over a physically and mentally disabled two year old's face while in the care of his little sister. I do not trust him with my child.
Leh Meriwether: Hmm.
Todd Orston: Have fun.
Leh Meriwether: Well, first off, he doesn't have any legal rights until he, because it sounds like they're not married. He has no legal rights until he files an action with the court. So until a legitimation action is filed, you can deny him parenting time. He doesn't have the rights for parenting time. Now, if he were to file a legitimation action, I will tell you that I'm not hearing anything that's absolutely going to deprive him of giving parenting time.
Leh Meriwether: What I am hearing in this question is that the court will put, sort of, parameters on his parenting time, at least at first. Where he will gradually be, have more time with your child once he or she is born. And the parenting time will gradually, maybe short segments at first, and then it'll slowly increase and work up to like weekends and overnights and all that sort of thing. And there, you can ask for parameters regarding his parenting time with your child. But I'm not hearing anything that's going to block it.
Leh Meriwether: The only time I've ever had a case, well, we've had a few, where the father filed for legitimation and was not granted rights. One involved a, I won't even call him a gentleman, one involved a person, a guy, who wanted our client to get an abortion. She said she wouldn't. So in response, he punched her in the stomach and shoved her down the stairs in an effort to force the killing of the child and basically forced an abortion on his own.
Leh Meriwether: Not only was he not granted parenting time with that child or a legitimation rights, the court ordered that he had to pay child support for that child. So he had to pay child support for a child he couldn't even see because of the, and he will spend time in jail for that too. So it's usually extreme circumstances where court will deny legitimation rights.
Todd Orston: Yeah. Now I will say this. I would tell you, be careful though, because Lee, you are a hundred percent right. Until you legitimate the other parent or you, the parent, that has not legitimated, does not have any legal rights. So technically, legally speaking, you have the right to say no parenting time. That can come back and bite you. Reading that question, that very, very, very long question, jokes aside, you said that basically, he just started or recently started going to appointments.
Todd Orston: And so, there's evidence there that he's trying to be involved. I have seen judges be critical. Okay. And I'm not talking about what impact that has on a court judgment or ruling, but I've seen courts be critical when there is a father who wants to be involved and is trying to be involved.
Todd Orston: And the other parent is just interfering with that and preventing that from happening so that if you find yourself in a situation where legitimation has been filed and the evidence comes out, that I went to doctor's appointments, and I this and I that, I've given money to try and support. I'm trying to be a good father. And every effort I've made to have just a visit, I'm not even talking about taking for a weekend, but just stop by to see my newborn child has been rejected, the court could be very critical of your behavior.
Todd Orston: Even though you're within your legal rights because the other party doesn't have legal rights yet, the court can be critical. So I would just tell you, be careful. I, personally, usually tell mothers in this situation, unless there's a safety concern or anything, be open to some contact, put whatever rules in place, limitations in place, that you feel are appropriate. But be open to some contact so that if you end up going in front of a judge who will likely grant some rights to that parent, you don't look like you've just, out of spite or some other improper reason, you've just prevented that parent from forging some, kind of, and creating some kind of a relationship with their newborn.
Leh Meriwether: Great advice there and I would add that there's a way to approach your concerns to them. I know I recommend this book all the time, but Crucial Conversations is a great book. I would recommend reading that book and using the information in it to sit down and talk. If he's showing interest and he's actually showing up to doctor's appointments, I mean, a lot of guys don't do that. Husbands and wives, yes. But when you have a situation like this, where the child's out of wedlock, a lot of times the guys don't do that.
Leh Meriwether: So the fact that he's actually showing an interest is good. You want the father of your child involved in their life. There's so much evidence out there that having the child, having a healthy relationship with their mother and father is absolutely critical to, I mean, to the development of the child, it's very healthy. Other exceptions of that rule, absolutely there's exceptions.
Leh Meriwether: But all in all, the chances of that child having success in life go up dramatically when you have both parents involved. So look to ways where perhaps you can encourage that, actually his involvement. I know that may sound weird, but it will help your child in the long run. And when we come back, we'll continue answering the questions.
Leh Meriwether: 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 like counting sheep, I guess, right?
Leh Meriwether: That's right.
Todd Orston: You can turn on the show and we'll help you fall asleep.
Leh Meriwether: There you go.
Todd Orston: I'll talk very softly.
Leh Meriwether: Welcome back, everyone. This is Lee and Todd, and we are your co-host for Divorce Team Radio, a show sponsored by the divorce and family law firm of Meriwether and Tharp. If you want to read more about us, you can always check us out online at Atlantadivorceteam.com. And if you want to read a transcript of this show or go back and listen to it again, you can find it at divorceteamradio.com. Okay. Today we are doing Q and As. And Todd finished reading one of the longest questions we've ever had.
Leh Meriwether: Now, here's another one for Utah. Can I move myself and my child across a state line, less than an hour driving distance? For context, we live in a town in Georgia that is right around a 10-minute drive from the state line. I work across the line in Alabama, a 45-minute drive, and I'd really like to move there. My child's father and I are in the midst of a divorce, but have no court ordered custody, only a mutually agreed week on, week off system going. He doesn't want me to change his school system, despite it being much better. And for now, I have a way to keep him going to school in the hometown where he goes currently. So that's fine. Just hoping he changes his mind eventually. But can I legally move across the state line with him, with it being only a 45-minutes away?
Todd Orston: All right. Well, to start the answer, I would say that the game changing point here is the fact that there's a pending case. Okay. If there wasn't a pending case, my answer would be probably a little different, if not a lot different. When there is a pending case, first of all, many courts in Georgia or maybe many, many, some, but maybe some, there's something called a standing order. And oftentimes the standing order, if this court that you're talking about has one, says that a child or children shall not be removed from the jurisdiction of the court, at least not without permission from the court.
Todd Orston: You're asking a question, can I? The person or the entity that you should be asking that question to would be the court. And in a situation like this, I would say, A, you might be violating the standing order. But even if you're in a county where there is no true standing order, understand that you could pack up, you could move. You could say it's only 45 minutes, big deal. You've given up your lease. You've made all these changes in your life. And then all of a sudden it gets brought to the court's attention. And the court says, "Well, have fun in Alabama, but your child is staying here in Georgia."
Todd Orston: And all of a sudden you're dealing with an order, a temporary order or emergency order from the court, transferring custody to the other parent who's still in Georgia. So my response would be, go ahead and just deal with the issue. If you really want to move across the border. Okay, I get it. Do it properly. Bring it to the other party's attention. See if you can get it done by agreement. If you can't do it by agreement, take a look at all the facts and circumstances to see how strong an argument you have because maybe you want to, on a temporary basis, petition the court for the right to move.
Todd Orston: "Judge, here are the valid reasons why this move would be good for me, why it would be fine for our child. It won't interfere materially. I'll do more of the driving back and forth. I will make it so that the impact on the other parent is minimal, but I would like permission to move." Worst case, now's not the right time. Best case, the court says, "Okay, that's fine. It's short enough. You can move."
Leh Meriwether: Well, I'd like to add to that, that the key factor the court's going to be considering is what is in the child's best interest. So it may be just absolutely awesome for you but if the court says, "You know what? Right now, I mean, the child's doing great in school. All his children, I mean, children, all, his or her friends are here and he's getting to see mom and dad equally."I mean, I can't imagine a great... You want to break that up?
Leh Meriwether: It's going to depend at the end of the day on what kind of judge you have. Judges come to the courtroom with different mindsets. And some judges may say, "Well, I just tend to leave the child with the mom." There are some judges that say, "I'm always shooting for the situation where the child sees both parents 50/50. And if there's a parent that doesn't want that, then I'm going to tend to rule against that parent."
Leh Meriwether: I mean, I've seen some judges like that. So that. Just upping and moving, like to your point, Todd, could put you in a really bad situation and where you only get the weekends because the child's in school. And I mean, not only you're disrupting, you're moving, but you want to change schools in the middle of a divorce for your child? I mean, that just doesn't. And it's not a good idea. You've got to sit down with the other parent and have a discussion about it.
Leh Meriwether: And if they're not going to agree, you're just going to have, I mean, I know in Florida, let me take a step back. Crossing state line doesn't, because the child's in school, in a school district, whether you crossed state lines or moved to another county within Georgia, it's the same analysis. Because anytime you're suddenly moving, changing, [inaudible 00:39:48], you can't have the child do week on, week off because the child's attending a certain school, it's a disruption. And it's going to have to be dealt with the courts.
Todd Orston: Yeah. And, look, for about two years, I lived in LaGrange, Georgia and right across the border, I mean, it was on the border with Alabama. So a 10-minute drive and you're in another state. That's not exactly what we're talking about here. A court there might, and I'm saying might, be okay, because it's like, well, it's a 10-minute drive. A 45-plus minute drive? That becomes different. Right?
Todd Orston: Then, that means if you are keeping the child in the Georgia school system, that means that you have to wake up even earlier, which means you have to wake your child up even earlier in order to transport them to their school in Georgia. That's a best interest of the child issue. Right?
Todd Orston: Is that really the best thing for the child right now? Or would it be better, let the child live with the other parent in that jurisdiction. And it's a five-minute drive to school. So that's why, that old, that theory of, act and then ask for forgiveness later, doesn't work here because the consequence can be pretty significant if you are suddenly stripped of your primary custodial right. And it's given to the other parent simply because you already just up and moved.
Leh Meriwether: Exactly. All right. Next question. What happens when my ex filed for both kids four years on taxes, when the court order states, we both claim one. He has primary custody, but the court papers say he claims one and I claim one. He has claimed both for four years. I want to claim one, now that I'm working. He says, "No," and I can get in trouble now. Okay. What's [crosstalk 00:41:40] you.
Todd Orston: All right. It's a contempt issue. So first and foremost, on the state court side, right? There's a Georgia order, it says you were supposed to be able to claim a child. And he was supposed to be able to claim a child, he went ahead and claimed both. It violates that court order, right? The agreement that was incorporated into the court order. And therefore, you can file for contempt. Now, what I have also seen is, and I'm not guaranteeing anything because it's A, it's the federal government, B, it's the IRS and the federal government who knows what they're going to prioritize and how they're going to deal with it.
Todd Orston: But I have had clients where they had filed, claimed a child. What happened was, the federal government kicked back the return and basically said, "No, no, no, hold on, that social security number for that child, that's already been claimed by somebody else." And they communicated through some channels saying, "Well, that's wrong." I have a court order that says, "I am the one that's allowed to claim the child." The federal government then apparently reached out to the other parent and said, "You need to file a revised return." All right? Because you weren't supposed to make that claim.
Todd Orston: Now, how far the federal government, the IRS is going to push that? Probably not very far, which is why, really, the solution is the contempt. You need to petition the court and say, "This is what happened." And he needs to be, or she, whoever it is, needs to be sanctioned and basically told they have to revise the return. And you're probably going to want to go in, also figuring out what the actual monetary damage to you is. So you can petition the court and say, I was damaged to this extent. And therefore, that party needs to be sanctioned and that sanction needs to include some compensation for whatever I've lost.
Leh Meriwether: So the way you would do that was, you would have an accountant come testify that had you done the return claiming one of the children, you would've gotten a return of $1,500, instead you had to pay a thousand dollars. So there's $2,500 difference and so you ask the court to not only award your attorney's fees, find him in willful contempt and order that he pay you the $2,500 difference for violating the order, which a court has the authority to do.
Leh Meriwether: And obviously, the next time, if he has to write a check potentially for a $4,000 between attorney's fees and the restitution for violating the order, he's not going to do it next time. But you're right, Todd, the situation you gave the court, the IRS doesn't have to follow a decree, a state decree. They can just follow their law, but who knows? Just asking sometimes, you may get the help of the IRS.
Leh Meriwether: Hey, everyone. We're out of time. Thanks so much for listening.