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If you have divorce questions

Episode 135 - Divorce Questions and Answers

Episode 135 - Divorce Questions and Answers Image

08/21/2019 2:43 pm

Todd and Leh take on more Divorce Questions that folks have asked anonymously. If you have questions you would like answered on air, you can email us at [email protected] In this show, they discuss and answer about ten (10) questions that center around divorce cases. The questions they tackle include: what can you do if visitation is being blocked; can you the state with the children prior to filing for divorce; when should you file for divorce if you are pregnant; whether someone could be forced to share an address with their soon-to-be ex-spouse; how to make sure that their ex-spouse follows the Court order and sells the house; where should you file for a Qualified Domestic Relations Order; at what point do pre-marital stocks convert to marital stocks and can you still argue they should be considered separate property; and can you request an emergency hearing arising out of educational concerns?

Transcript

Leh Meriwether: Welcome everyone. I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp. And you are listening to The Meriwether & Tharp Show. Here you'll learn about divorce, family law, tips on how to save your marriage if it's in the middle of a crisis and from time to time, even tips on how to take your marriage to the next level. If you want to learn more about us, you can always check us out online atlantadivorceteam.com.

Well, we wanted to talk about something new that we're doing now. WSB the radio show we are on News 95.5 AM 750 WSB has now allowed us to use the open mic app or open mic function so that if you have divorce questions that you would like for us to answer on the air or you've got even marriage questions like what ... maybe you're struggling in your marriage and you don't necessarily want to get a divorce what could you possibly do to turn your marriage around? We'd love to hear it. We'd love to try to give you some help with that. So you can either download the app from the app store and it's the WSB 95.5 AM 750 WSB App. You can download it from the store and there's a thing in there. You can scroll over to it and you'll see open Mike and you click it and then record it and the recording will get to us.

I believe it's also on their website as well, which is wsbradio.com. So feel free to check it out there. Leave us a question and we're going to start dedicating shows to answering those questions. Depending on how the questions come in, we may answer some of those questions into, shows where we planned. We might do like one question a show or something like that. We haven't figured out quite how we're going to do it yet.

Todd Orston: Oh, I know exactly how going to do it.

Leh Meriwether: You know exactly? You got it figured out?

Todd Orston: No. I figured it out. I just haven't told you.

Leh Meriwether: Oh, okay. We'll go. I'm sure you'll tell me in the middle of the next show.

Todd Orston: I'm sure.

Leh Meriwether: Which is when I'll figure it out [crosstalk 00:02:04]. Well, today we are going to do a question and answer show. We do one once a quarter roughly.

Todd Orston: Yeah. About. We save up questions and like you were saying, sometimes we'll, especially depending on the nature of the question or if it relates to a show that we're doing, we may embed that question somewhere in a show, answer the question for you on a regular basis. We'll just do that with all of our shows. But like now where we have a lot of questions that we want to answer, it is easier just to do an entire show. And so that's what today actually the next two shows are going to look like. It's going to be us answering questions that people have. And a lot of times the way we answer it, it's not just directed at the person asking the question.

We're going to answer in a way that hopefully you'll be able to pull information or pull advice out of the answers we give and apply to your own situation. So that's what we're going to do.

Leh Meriwether: I might add this point because the open mic here, it's recording your voice. If for whatever reason you don't want us to play the recording on air just put it when you say, "Hey look, here's my question. I'd like for it to be not played on air.

Todd Orston: Right. Correct.

Leh Meriwether: So we will just read the ... we'll transcribe your question and we'll just read it aloud so it'll be our voices, but if you don't have any concerns, we'll just going to play your question on air and then we'll answer it or at least Todd will.

Todd Orston: And I'll try and use your voice.

Leh Meriwether: Okay.

Todd Orston: I have no idea what that means.

Leh Meriwether: All right, well we're going to start off with some divorce related questions and we have all kinds of really interesting ones and I'm going to throw the first one at Todd.

Todd Orston: I'm ready. Wait. Hold on. Okay, now I'm ready.

Leh Meriwether: Okay. Good. How do I get visitation to see my child from a previous marriage? My ex wife will not allow me to spend any time with my child. We're divorced now and even though it's not court ordered, I pay child support. How do I go about getting visitation to see my child?

Todd Orston: Interesting. At least here in Georgia, the chances of you getting a divorce granted, but not having issues like custody and parenting time and child support dealt with, it's a rarity.

Leh Meriwether: I don't think I have ever seen it.

Todd Orston: I've ever seen it. I was trying to I guess put a little wiggle room in there because this has happened to this person. Usually a court is going to say, "I want all of the issues related to your marriage, including custodial issues and support issues dealt with because in essence, I don't want you coming back again and again and again to deal with those things." Now let's say you have gotten a divorce, my guess is this would maybe be a divorce granted in another jurisdiction.

Leh Meriwether: Yeah. Because I have seen that before where-

Todd Orston: Exactly.

Leh Meriwether: ... A divorce will be granted. Well, I have seen at Georgia. I'll take that back. I've seen cases where the divorce was granted, but it was because it was a divorce by publication. They couldn't find the other person and so all they could do is grant the divorce in that situation.

Todd Orston: Right. Exactly.

Leh Meriwether: So I think that's the only exception there. But I have seen a lot of other states, I can't tell you which ones, where someone will come to me with a divorce decree in no custody determination, no child support. It's kind of strange to me, but ...

Todd Orston: Yeah it is. But the long and short of it is that you can come back and file a separate custody action. So you can come back, you can file a petition for child custody, parenting time and that will reopen the door to those issues. And then you'll be able to just as if the divorce were pending and it was being dealt with in your divorce, you're going to deal with all of those issues and the court will look at best interest of the child standard or consider that standard in determining what would be in your child or children's best interest regarding a parenting time, regarding physical custody, decision making authority as it relates to legal custody.

All of those issues can be dealt with at that time. More than likely whether you petition for it or not, either the other party will then counter with a child support petition or the court will even say again, because they don't want to keep coming back or you to keep coming back. Will say, "Okay, I see you have filed this petition for custody. Let's figure out what child support is going to be. We're going to deal with all of these right now."

Leh Meriwether: Yeah. And now another caveat here, if this was issued by another court, so let's say you live in Georgia, it was issued by a court in another state and they still live there. Your children and ex-wife still live in that state. You're going to have to go to where they live to file your ... we don't practice outside of, well we do have someone attorneys licensed in South Carolina, Tennessee, Georgia. I'm licensed in Florida as well, but I mean outside of any of those jurisdictions. But you would probably call it something like initial custody determination and you have to file it there and I would go ahead and file for child support. If you're voluntarily paying that looks good to the judge, go ahead and do that.

Todd Orston: You might actually save some money depending on how much you're paying because sometimes people are actually overpaying. I'll throw one more caveat in there. Sometimes in other jurisdictions, not here in Georgia usually, but in other jurisdictions, sometimes a divorce will be granted, but the case is sort of still pending. So yes, you've got your divorce, but the case is still pending, which means you can't just initiate a new action somewhere else because that jurisdiction still maintains jurisdiction over the subject matter and over the parties and all of that. Which means you really still, even though you've moved, you may still have to go to that court to finalize and resolve all of those issues.

Leh Meriwether: Yeah. Alright, next question.

Todd Orston: All right. Let me throw this one at you.

Leh Meriwether: Okay.

Todd Orston: Can I leave the state with my children and file for divorce? I currently live in Georgia with my children and my husband, and basically I'm looking to get a divorce. I have family in West Virginia that are willing to help me get back on my feet. Can I take my kids and leave?

Leh Meriwether: All right. Well, there's several aspects of this. So let's start broad. I'll start with the legal aspect. If there's no divorce pending either of you can leave the state of Georgia with the children and it does not kidnapping because you both have a 100% interest in your children. So if you were to move to West Virginia with the children and left him here, well you are ... that's legally okay as long as there's no divorce pending. And Georgia as in most states, when someone files for divorce, a standing order goes in place. Not all the time, but most of the time a standing order goes in place. It says during the pendency of this divorce, neither parent shall leave the state to the jurisdiction of the court with the minor children unless there's been an agreement or another order of the court.

So if there's a divorce filed, then you're not going to be able to leave unless you get permission from dad or permission from the court. All right. So that's the first legal answer. Now, the second part is if you moved to West Virginia, every state has what's called a residency requirement. So for Georgia, you have to be living here at least six months before you can file for divorce. So Virginia may have something similar. So if you move up to Virginia to file for divorce, you would have to be residing up there for at least six months. And he might have an argument that Virginia does not have jurisdiction over him because he hasn't lived in Virginia. So there could be jurisdictional issues. Then you've got the other issue of if you were to move and he doesn't agree with it, he's going to immediately file here in Georgia. And he's going to ask for the court, because we've done this before, ask for the court to order the children to come back to West Virginia.

And sometimes it can be looked poorly on by the court if you just picked up and left with the kids and didn't involve dad in that decision at all. We've seen situations where a mom did that. I don't know your circumstances, but I've seen situations where the mom did that and the court will end up giving dad primary physical custody because the court there was lots of other circumstances going on. So I would meet with a lawyer before you make this move and at least have a consultation even if you don't hire him and go through in detail everything that's going on because if there's family violence, well, there's all kinds of factors that can make this move okay because you're trying to protect you and the children. But then there's circumstances where it can be used against you. And I definitely don't want to be used against us for going over. So when we come back, we're going to continue to answer all kinds of divorce questions.

Welcome everyone, I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp and you're listening to The Meriwether & Tharp Show. If you want to read more about us, you can always check us out online atlantadivorceteam.com and if you want to go back, if you missed the first part of this show, you can always go back and listen to it at any of the places you find podcasts, iTunes, Google play store, Stitcher, Spotify. I could keep going on, but then Todd would throw something at me.

Todd Orston: I'm going to do that anyway.

Leh Meriwether: But you can also go to divorceteamradio.com and actually see a transcript of the show. And what we announced in the last segment was that, if you have questions that you want to ask us that and have us answer on the air, you can use WSB's open mic App or open mic application that you can find on their website or you can download the WSB radio app and on it is a place where you can push the button and record your question or it could be a marriage question, a marriage and crisis question, a divorce question, a child support question, anything relating to family law. We will do our best to answer it. All right, well the whole show today and the the next one too is we're going to be answering questions that we have gotten in that, not necessarily through the ... we're just now announcing the open mic app but questions that we have and we're answering them because we found that often you can use other people's situations to learn about family law because it's using hypotheticals. These are real situations and we're applying the law as we understand the questions, we're applying the law to them and trying to give ... Well, I'm trying to give good answers. I don't know about Todd.

Todd Orston: And we're just about out of time for this segment. Why don't we get to some of these questions?

Leh Meriwether: Well, I was waiting for you to [inaudible 00:13:00]. Next question for you. I want to get a divorce, but I'm pregnant. I will hire an attorney once my baby is born, but should I file to get legally separated first? My husband wants a divorce while we're still married because I'm pregnant. Is it a good idea to file to get legally separated first so he could move out and then we'd get divorced after the baby is born? How does child support and custody work in Georgia?

Todd Orston: All right. So if a child is on the way, in any divorce filing you're going to have to let the court know. And I can tell you right now that court is not going to grant the divorce and finalize the case while a baby is on the way. So, basically you would, in order to finalize a divorce case, have to wait until the baby is born. That way you can deal with custody, you can deal with child support. Again, going back to what we were saying in the last segment, courts don't want you to keep coming back to court. If a baby's on the way, then we're going to deal with those custodial issues and the support issues when the baby is born because prior to that you can't deal with custody, the court won't. You're not going to deal with child support, same thing.

So, going forward with a separation isn't really necessary. I mean you could technically, you could try and file something and the court might be able to deal with some temporary issues like use and possession of the home on a temporary basis, payment of bills, things like that. But what the court's not going to do is finalize a divorce for you. So filing a separate, separate, like a separate maintenance action or anything like that doesn't really make sense if your ultimate goal is a divorce. You might want to just be meeting with an attorney, prepping, getting all your documents and all your information gathered and organized so that way you can either file or wait for the baby to be born file and you're better prepared.

Leh Meriwether: And I would add that there is no such thing as legal separation in Georgia. So there's nothing to file on that level. There's a separate maintenance action where someone providing you support and are dependent on them you could bring that but there is no legal separation in Georgia. All right. The other thing I might add is, what we don't know are they getting along okay? Because things can happen. If the plan is to bring this baby, what sounds like it's a full term, things can happen and you might need him there in case something bad happens.

So you may not want him to move out right away and I don't know what's going on, the dynamics there. But think about those things and you're going to be dealing with him for the rest of your life so long as your child is alive. And the more you can sort of set that groundwork to say we may not be married anymore, but we can be great co-parents, it starts before the baby's born. And I would strongly encourage you to consider that before just saying, "Hey, I need you to get out of the house."

Todd Orston: All right. Here's an interesting one. We actually get this question in some form of fashion quite often. If I'm in the middle of a divorce and I don't want to give my ex my new address, do I have to, if it's not ordered by a judge? We have two children together. There's a long history of abuse. I left him in September because of physical abuse, but the mental and verbal abuse continues to this day and I have evidence supporting this issue. He filed in Oklahoma so that I couldn't file in my new home state of Georgia in March. He hasn't paid child support since I moved here in September. He will not send any other papers because you refused to pay child support. So it goes on basically though that the main issue is I don't want him to know where I am. We have a lot of issues we have to deal with, but I don't want him to know where I am. So what would your answer be Leh?

Leh Meriwether: There actually is a case out in Georgia where it says, I mean, it was involving a husband bringing action. I want to say, I'm just saying it not being an exact quote, but it says, "A dad is entitled to know where his children are residing." Now, the exception of that is if there is a family violence restraining order, which I don't hear one was filed in this case. I hear there was abuse. I'm not trying to minimize that at all. Don't misunderstand me

Todd Orston: At all. Right at all.

Leh Meriwether: But without that order in place, he's entitled to know where you live. If the children are living with you, when the children are living with you. That is something he's entitled to know now.

Todd Orston: Now let me ask you this though. So there's no TPO because to get to a point where you have the evidence to establish the need for a TPO and to get a court to grant and by the way, we're talking about a Temporary Protective Order. So you may not have the evidence necessary to justify a TPO, but there may absolutely be security and safety concerns. So walk me through it. Walk everyone through it. The progression. So let's say you have moved somewhere, your spouse says, "I need to know your address." And you say, "No." What's the logical progression there? Like how do you think things would play out?

Leh Meriwether: Well, in this situation, he's already filed something in Oklahoma. Well, it sounds like he filed it and I didn't do the math on the calendar, but it sounds like he may have filed it in time so that Oklahoma does have jurisdiction. If they had resided here in Georgia for more than six months, then she might have an argument that Georgia should have jurisdiction over the custody issues only. One of the defenses to that argument by the way, is that there was a move and the father didn't know where she moved to so he couldn't find out where they live. So that six month issue that the Georgia court said, are not applying it in this case because she never told him where she was living.

The case went down to Florida because that's where they were living before she moved. So the best course of action would be to hire an attorney in Oklahoma. I'm assuming Oklahoma's similar to Georgia and that you can have a temporary hearing. Most states have them, but you would definitely need to talk to a lawyer up there, get a temporary hearing up there and get in front of the judge and explain to him the safety concerns. And if the court agrees with you, the court will put ... they will put in place a safety plan that would protect you and allow him to see the children provided there's no abuse surrounding the children. And even then the court may grant some form of supervised visitation so that he still ... because he has a constitutional right to see his children.

Todd Orston: Yeah. I mean, look, we can't speak to what Oklahoma law is. Okay. But if this were here in Georgia, meaning if roles were reversed or the situation was reversed, I would be saying to a client that basically you have two choices, you do nothing and don't give the address and you look like the bad person. And more than likely the father's going to be pounding on the courts doors saying, "See, she's not co-parenting with me and won't give me this information and I have a right to it." As opposed to you being proactive, you knock nicely on the court's door and you say, "No, I have not given him the address and I don't want him to have the address for all of these reasons."

And at that point then the court might be able to issue an order that says, "Okay sir, you don't need to have her address right now. And while it's not a protective order, don't go near her, don't talk to her, just stay away." Okay, but then you look like you did the right thing. You went, you proactively approached the court, asked for help and hopefully got the help that you wanted.

Leh Meriwether: Interesting in that same question, if you go on, she says that he keeps threatening to file emergency custody hearings. Well, don't let him do it. You should be the one proactively doing it. If and I think in this situation, this particular person, she has limited resources, I would definitely reach out to friends and family to at least get some money together to talk to an attorney up there. Some states allow limited appearances so you can hire an attorney just for a temporary order. Like Florida is one that's really big on that. Sometimes lawyers jump in and then they jumped back out because the person can't afford for the lawyer to be involved 100% of the time.

Oklahoma may be one of those states. So it's worth it to get on the phone with a lawyer up there to decide how do I go about doing this? And maybe you can have a lawyer just show up to court for you and maybe there's a pro bono lawyer up there that can help you and maybe there's some legal aid up there that can help you too. So you need to be proactive on this. Just like we're being proactive and letting you know to come back because when you come back we're going to continue to break down some really interesting questions that we have come across in divorces.

Welcome everyone. I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp and you're listening to The Meriweather & Tharp Show. If you want to read more about us, you can always check us out online at atlantadivorceteam.com. You want to check out past shows, you can always check out past shows at divorceteamradio.com and we're going over questions today that we have and answering them. And there are some really interesting ones and they present some challenges. And if you've got questions that you would love for us to answer on the air, you can always use the WSB's open mic which you can find online on their website, wsbradio.com or you can find the app, the WSB radio App in the app store. Download it, leave us a question and we'll answer it on the air. All right, ready?

Todd Orston: I was born ready.

Leh Meriwether: We'll see.

Todd Orston: Did I really say that? Well thank goodness it wasn't recorded at least.

Leh Meriwether: We'll see. All right. How can my wife ensure that her ex husband refinances or sells their house in compliance with their divorce decree? My wife and her ex husband owned a house together that he currently lives in and is responsible for payments and maintenance of. It is spelled out in the degree that he shall sell or refinance or remove her name within a certain period. The date that this is completed is approaching and he has not even started the process or given indication that he plans to. What recourses my wife have to ensure that her` ex husband complies with the divorce decree?

Todd Orston: All right. We get this all the time and I'm going to approach it from two different angles. All right. Because obviously the question here is, I have a decree, this is what was required, meaning the sale of the home. How can we enforce the decree and how can we force compliance? But there's and another thing that I would be remiss in my duties if I didn't mention. Really the important stage is when the document, the decree is being drafted. If you reach to an agreement, it's all what terms are in the agreement. Because if you don't put the right terms in, the right enforcement terms and penalties, if things aren't done by certain dates, I've seen people get into a lot of trouble where somebody can literally stay for years and years and years and nothing happens. If all it says is that this party or that party will make their best effort to sell the house within 12 months and all they have to do then is go in front of a judge and say, "I made my best effort."

All right, well, standing outside on your lawn and saying, "I want to refinance." That's not really a good effort but you may not be able to enforce anything. So you have to have strong language in the agreement. So in the drafting stage, at the divorce level, you have to make sure you put the right stuff in. That's where an attorney can help.

Now, post divorce, you have a decree, how do you handle that? Again, go back to the terms of the agreement. So there might actually be good, strong terms that deal with what the other party is required to do and by when. So look to those terms. If it's not that clear, Okay, then I mean you ... unfortunately, we're dealing with division of property in Georgia. You can't modify terms relating to division of property. So in essence you're going to have to figure out whether or not you can bring a contempt action and say that the failures by the husband constitute in effect a violation of the terms that that husband is in contempt.

And you're going to be looking at the court saying, look it says that by such and such date he was supposed to do these things. Clearly he hasn't put forth these efforts to get it done and we need him to be sanctioned in order to force compliance.

Leh Meriwether: And I think one of the questions in here was, is there anything we can do to push him along and from a court standpoint, he hasn't violated an order yet.

Todd Orston: That's all right.

Leh Meriwether: Because it didn't say that he missed the deadline.

Todd Orston: It's a great point.

Leh Meriwether: It's coming up.

Todd Orston: So you can't file a contempt because he's not technically in contempt.

Leh Meriwether: Right. So I mean one thing I would suggest, because we have done this before. Just like I said, we've had this exact question before.

Todd Orston: Many times.

Leh Meriwether: So what I typically tell the client to do is write just a really nice email. "Hey, I know the time period either sell the house, refinancing is around the corner. The market's really hot right now. I'm planning on a vacation coming up soon. And I just was reaching out to you because I know I'm going to have to quick claim the house to you as part of this process. Can you give me any ideas when you think this is going to happen so that I make sure that I don't delay the process at all and I'm in town to make this happen."

And so you send out something very nice like that. You're trying to say, "I'm trying to help co-op move this along-

Todd Orston: You're also creating a record.

Leh Meriwether: ... You're creating a record. I've seen situations where the person just flat out forgot. I mean, just flat out forgot to do it. And an email like that or a letter like that can be a, "Oh gosh, I need to take care of this right away."

Todd Orston: Yeah, be civil to your point. You don't have to talk about a vacation or this or that. I'm okay with, "Hey, haven't heard from you about the sale of the house. I know the deadline is coming up. Can you just give me an update as to where you stand on the refinance? Thank you so much." And should you send that once a day? No. Should you send it once a week? Probably not. Once a month? If it's a six month period that the person had. If by month four you haven't heard something, month four I would send your first email. Month five I would send an email. Maybe the tone of your emails a little more serious in that, "Hey, I'm getting a little concerned. We're approaching that six month mark. Haven't even heard from you."

Leh Meriwether: What's going on?

Todd Orston: "I've tried to communicate with you and remember you're creating a record. So you're basically saying, "I've tried to reach out to you. I tried calling you and I also emailed you and you're not giving me any information to explain what the status is. Can you please tell me that we're on track and you're going to be able to get my name off of that indebtedness by such and such date." If they then don't respond, then shortly before, maybe seven days, 10 days before that expiration, or before that six month, let's say deadline, that's when you can step it up a little bit more and say, "Look, you still are not communicating with me. I'm going to have no choice but to file a contempt. I really want to avoid that. I would like to keep this out of the courts, but you're leaving me with no choice."

And that way if you go to court and you can show the court, "Judge, I tried. I tried at four months, five months and then before the six month deadline and I got nothing. And so I'm here due to his noncompliance or her noncompliance.

Leh Meriwether: And I've had that exact scenario happen. My client did exactly what you just talked about and it was, when we got in front of the judge, she said, "What do you want to do?" I said, "Well, judge, we want attorney's fees and we would like for the court to find him a willful contempt, but give him 30 days to either get a refinance in order or have hired sales-

Todd Orston: A realtor.

Leh Meriwether: ...realtor, and then set a compliance hearing 30 days from now." And she did exactly what we asked ... awarded every penny in attorney's fees we asked for and he was supposed to pay those attorney's fees by the next court date. And she was very explicit when he said, "Sir, they're being extremely generous. She gave you all these notices and if they had asked for you to be thrown in jail today, I would have thrown you in jail because she gave you all these opportunities and these very kind reminders and you did nothing with them. But she's being one step further. But let me be clear, if you haven't taken care of this by this date when we show up, bring your toothbrush."

Todd Orston: So, all right, I mean, technically they'll provide you a toothbrush. I mean that's not really ... anyway, whatever. That's just ... you got clothes, shoes. It's actually rather nice. No, I'm kidding.

Leh Meriwether: I fortunately never went to jail.

Todd Orston: Try to stay out of jail. Yeah. All right. How about this question? Do I need to file a QDRO, and by the way, that's a Q-D-R-O. We refer to it as a QDRO and stands for a Qualified Domestic Relations Order. So do I need to file a QDRO in the state where my divorce was granted? I'm a resident of the state of Georgia and my divorce was granted in Colorado. My ex spouse is wanting part of my pension.

Leh Meriwether: Oh, that's interesting. First off, normally when we do divorces, the QDRO was done right away. It is done within ... We try to get it done within what's called the term of court. And it's my understanding you've got to go back to the judge that initially granted your divorce for them to grant the QDRO because you're referencing, typically in a QDRO, you're referencing that the divorce was granted pursue with the laws of that state. And that's what triggers the QDRO language that allows you to divide the pension without a tax penalty and all that stuff.

So the fact that there has been a huge delay, well, first off, it's on her. That's what it sounds like. That she needs to hire an attorney that's licensed in the state of Colorado and get out there and take care of this because that's her responsibility. Unless it says in the divorce decree, it was his responsibility and in that case, you need to take care of it now before something happens.

Todd Orston: And you do not want to wait on these things because we have had situations, I have had cases where somebody waited and they called and they're like, I was supposed to get a lot of money, 200,000, $300,000, but now they've taken 401K loans, they've done x and Y and Z in the market and whatever.

Leh Meriwether: [crosstalk 00:32:11] crash.

Todd Orston: Yeah. And now there's only $100,000 left or five or $50,000 left. And I have to look at the person and go, the money's gone. I mean, we can go in front of the judge and we can do the QDRO, but at the end of the day, if the money's not there, the court can't make it materialize.

Leh Meriwether: Right. The court can hold them in willful contempt in order to pay something but-

Todd Orston: That's right.

Leh Meriwether: ... If it's gone, it's gone. I had a case similar to that where the person waited 15 years and the guy had spent it. He retired and split the IRA.

Todd Orston: Yeah, Wow.

Leh Meriwether: So, yeah, not good. But what is good is that we're going to continue to go through some really interesting questions and answer everyone's questions. Well, most people's questions.

Welcome everyone, I'm Lee Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp. And you're listening to The Meriweather & Tharp Show. If you want to read more about us, you can always check us out online atlantadivorceteam.com. If you want to see the transcript of the show, you can always go to divorceteamradio.com. And if you want to leave us a question, you can go to WSB's open mic either on their website or on their app, WSB radios app. Go to the open mic function and leave us a message about a question about maybe a family law issue or a divorce or maybe even a marriage issue. And we will do our best to answer your question live on air. Okay.

Todd Orston: Alright.

Leh Meriwether: More questions.

Todd Orston: More questions. So how do I get a divorce from an abusive husband as cheaply as possible if he is not willing. My husband and I have been separated for over a year, but when I was with him, he was abusive towards our kids and towards the end started making threats towards me. I don't have a lot of money and need to get completely free of him in case he decides to come back. He is unpredictable and so I don't know how he'll take the divorce.

Leh Meriwether: Well.

Todd Orston: This actually is the time you have to answer. Right? The pregnant pause, I mean, if you did that for dramatic effect ...

Leh Meriwether: It was for dramatic effect. Now. So here's the struggle with ... whenever you deal, if there's one thing that makes one divorce more expensive than the next divorce with a similar set of facts. It's emotion. And so when we're talking about an abusive husband, someone who is really driven by emotions and his anger, it makes it difficult. I'm just being honest about it. Now, if there has been past incidences of family violence where he's hit you or struck you or he has threatened you in any way, I'm going to kill you. If there's threats of physical violence in Georgia at least those can be considered making terroristic threats. And those are our basis for our family violence protective order.

And a lot of times that can at least minimize things sometimes. Now there's extra costs associated with having a lawyer with you in court for that hearing. But at least to get the family violence protective order. We had two whole shows talking about family violence, protective orders. You may want to go back and listen to those, but you can get those on your own and that would give you a buffer between you and him during the divorce process. So if there's a fear that he is going to lash out at you then you can get a family violence protective order.

And I want to say there was a case, I'd have to go back and double check the research on it, but I remember a case where there wasn't a recent act of family violence, but there was a past act and the court said, you can get, even though you, let's say you waited six months, the court said it was still okay to get the protective order because the person was getting ready to start a divorce. I'd have to go back and double check that case. By Chris Warner, I read that case last year or two years ago.

Todd Orston: Yeah. Let's put it this way. Put cost aside for a moment. You're dealing with an emotional person with a tendency towards abusive behavior, towards kids and towards you. So in terms of how can you get through this, forget about cost for a moment. I know it's important, but is it going to be an easy thing to get through? Probably not. It sounds like this is a guy that's going to fight you tooth and nail on any and every issue. So you have to unfortunately be ready for the fight.

Now if you have an attorney standing next to you, fighting along with you and on your behalf, understand it's going to take more effort, more time, more money. Okay. So in terms of how can I do this as quickly and cheaply as possible, cheaply, I don't really know what to say because it sounds like you've got a fight on your hands. Okay. As timely as possible, or in other words, how quickly can you get this done? Unfortunately it sounds like to get the protection that you need and make sure that all aspects of the divorce order or agreement protect you, protect the kids and deal with custodial issues, fairly support issues fairly, it's going to take some effort. All right? And you're just going to have to go in as prepared as possible to make sure that when you present to a judge or if an attorney of course presents to a judge, that you're presenting the right information, the right way, and hopefully you'll get the right results.

Leh Meriwether: And you probably, before you file, if you're limited in the funds, sit down with the lawyer, talk about what sort of game plan you can come up with to help minimize that emotion. So if you're thinking ... I've had situations that were very similar to this where we started with and actually we sent the opposing side a very nice letter saying, "Hey look, it's been a rough marriage ..." Just acknowledging things whether they are true or not. But there's been a rough marriage. I understand you've moved out. You've been separated for a while and she would like to move forward with the divorce action.

We would like to do this as amicably as possible. Would you be willing to acknowledge service? And then if he reacts poorly to it, calls her, threatens her, then you immediately go get the family violence protective order. But you'd be surprised sometimes be like, "Oh, okay." And then they'll actually sit down and you're able to work things out. But it just depends on the situation and you're going to have to talk to a seasoned family law lawyer who's had experience in these types of situations to, if there maybe one of those situations where you could see if there's an opportunity to sit down with the person because I've had it where ...

I've done this recently where I sat down, it was a family violence situation and I sat down with the opposing party at my office and we were able to work something out. Our client wasn't anywhere around, and so it was just myself and the opposing party and we are able to work it out, so.

Todd Orston: Okay, well let's go onto the next one.

Leh Meriwether: All right. I have a pending divorce action in Georgia. I have a brokerage account that contains stock that I got before my marriage. However, I've commingled marital funds in that account. And it says, wow, he's had it back since the '80s and they inherited it from his grandfather as a child. However, he has used the brokerage for living expenses during the marriage and deposited proceeds from the sale of a house during the marriage. Is My K0 stock separate or marital? I have statements showing that it predated the marriage. Thanks.

Todd Orston: All right. Comingling, that's a naughty word when it relates to division of property. Commingling can destroy the separate nature of an asset. Now, under these circumstances that were just described, the person may be okay because if what we're talking about is an account that has stock but also has-

Leh Meriwether: Cash.

Todd Orston: ... Cash, okay then that's very different because the stock, as long as that stock is still there and you can show, you can track and trace it back to prior to your marriage, let's say there's a thousand shares of stock and you have it from before you're married, you have it when you get married and you're getting a divorce and the thousand shares of stock are still, there not-

Leh Meriwether: And [crosstalk 00:40:31] your name.

Todd Orston: ... similar shares, then you sold and you then bought more shares and then you sold them. No. If they are the exact same stock shares, then you should have a strong separate property claim. Now, if you had also $10,000, let's say you sold some of the shares, $20,000 is what you got for the sale of the shares and that was in that account and you sold a house and you put that into the account and you took some money out and you put some money in. You took some money out, put some money in. Well, the cash, I can't say the same thing about. You may have commingled that money and unfortunately you may have destroyed, probably did destroy the separate nature of the cash assets.

Leh Meriwether: And I think it depends ... Well first off, if you took money out of that brokerage account or say you sold some stock to buy some stuff for the house, well that does .... There is no reverse commingling. Meaning that you pulled money out from a separate asset, used it on a marital asset, whatever you pulled out that's now marital, but it doesn't change the nature of the original stock-

Todd Orston: That's right.

Leh Meriwether: ... in brokerage account. Now, I think going back to what you said, it sounds like they may be okay in this situation because if there's limited transactions, so the only thing that went in that account was just the proceeds from the house and you can clearly show here's the proceeds, here's the interest. That part's marital. You can pull it back out. You're probably okay. But if it's in and out, in and out, not okay.

Todd Orston: Yeah. So I'm feeling good about that one, but, all right, very quickly, can you request an emergency hearing for temporary custody in Georgia for a school change due to deficient education? So it's a long explanation. We're running out of time so I'm just going to summarize and basically say, this person has been waiting for a hearing for three years and basically there's been a change of school and so the child has been moved into a school and this person is saying it's not a great school and ...

Leh Meriwether: Yeah, so it's a bad school.

Todd Orston: Yeah. So would that rise to the level of something that would warrant an emergency hearing?

Leh Meriwether: The court is going to say we already scheduled for a final. We're not going to have a separate hearing just on this issue. That's the final issue. What you've got to do is ... and what the question also said that they'd been in front of the judge before and they just keep getting pushed off. But maybe make a short motion saying, "Hey, motion for expedited final hearing and then include in that the basis for it. The child's three years behind, the child's not getting proper education. If the court hears this, the evidence I'm going to produce will put this child in a school where they'll get an individual education plan that's going to help the child excel when they get ... they'll help the child do better in life, but in the best interests of the children, can we have a hearing as quickly as possible, so well.

Todd Orston: As quickly as possible, we have to finish the show.

Leh Meriwether: Yes. Everyone again, if you've got a question for us, use the open mic feature with WSB. They're wsbradio.com or the App that you can download from the app store and we look forward to your questions. Thanks so much for listening.