Divorce: Why Details Matter

Information and details are incredibly important in a divorce. As a general rule, the more you have the more protected you will be! In this episode of Divorce Team Radio Todd Orston, Partner at the Divorce and Family law firm of Meriwether &Tharp, LLC, discusses why the discovery and use of detailed information relating to your case will help guarantee your custody, support and property rights are protected!

Todd Orston:

Welcome everyone to Divorce Team Radio sponsored by the Divorce and Family Law Firm of Meriwether and Tharp. I'm your host Todd Orston and here we're going to learn about divorce family law and from time to time even tips on how to save your marriage if it's in the middle of a crisis. You want to read more about us, you can always check us out online at atlantadivorceteam.com. All right. Let's get started. Today I want to talk about that saying we've all heard, "Devil's in the details." I don't know where it came from. I don't know who created the saying. But when it comes to divorce, I can tell you right now the devil's in the details. I can tell you right now that it is all about getting the right details. The right specific details into the agreement. If you fail to do that it can come back and it can bite you and it can affect all four core areas of the divorce. It can affect custody issues. It can affect child support. It can affect alimony, division of property and debt.

If you don't get the right terms into the agreement, understand that agreement becomes the final order. It becomes the binding order that requires parties to do or not do certain things and if there is a failure to do, then you want to have that ability to pursue a contempt. To look to a court and say, "Hey, the other party was obligated to do something or not do something and they didn't do or did do something that violates the terms of the order." Think about what I just said, "That violates the terms of the order." The problem is too often people will call and they will say, "Hey, I think my former spouse violated our agreement." The first thing I will say is, "Okay. Do you have the order in front of you? Let's go ahead, let's take a look at that order. Let's figure out what the actual obligation was." Too often, not all the time. But too often I'll take a look at the terms of the existing order, oftentimes one that they did themselves and I will say, "Unfortunately you didn't get the right terms in there."

So when you're looking at a judge saying, Judge. He failed to or she failed to comply with a term of our agreement. The court says, well show me the agreement that was made the final order?" When you can't say, here specifically this is what created the obligation. Then the court's going to look and go, how do I hold that person in contempt? It doesn't specifically say what you are thinking it says. So it's all about the detail and this show, I want to go through some of those detail issues that people miss. We're going to hit all four core areas and I'm not going to lie I'm not going to get to every single one. There are plenty of examples where someone doesn't add something into the custody terms or doesn't add something into the property terms or decides to deal with an asset or a payment or a living arrangement in a certain way. But doesn't add the detail necessary to give you the protection you need. So I'm not going to hit them all but we're going to make a dent here.

So let's start with general. All right? I'm going to go into more specifics. I'm going to go into issues with real property, businesses, just asset division, custody, child support. We're going to go into those things but let's talk general first. So I've talked about this before and this is more of a general thing. Sort of like that umbrella that covers all of this. Don't rush through the process. Don't get caught up in that feeling of I just want this over with. So go ahead. Give me the agreement, I'll sign. Don't do it and that's not me screaming for you absolutely to hire an attorney. If you're not going to get the help of an attorney do it yourself. If you're going to represent yourself then represent yourself. You wouldn't want an attorney you hire to do not a good job, a thorough job. So why would you do a non-thorough or unthorough whatever job for yourself? So don't rush through the process. I know it's hard. I know it's draining but you have to do some discovery.

You have to ask some questions so that when you enter into the agreement you know what you're agreeing to and you know that those terms are fair. Don't fail to get assets valued. If there's a house don't assume the other party is just telling you the truth about a value. Don't be talked into accepting a value. Now I mean, can you do that? Of course you can, and maybe it's not a big asset and maybe it's not going to make much of a financial difference. But if it's a piece of art and you think maybe there's value, you may want to get it valued. I've seen situations where an art that nobody thought had value, it suddenly turns out it's worth tens of thousands of dollars. Houses where they agreed on a number only to later find that the party who kept the house, got the house in the agreement sold it for far more. Another one, don't not verify account values. If you're not going to do discovery, you're asking for trouble. If you're not going to ask the right questions, if you're not going to gather the right data.

Then how do you know if what's being said to you is true? "Hey, how much is in that account we're about to divide?" "There's only a $1000 in it." "Okay. All right. I'll get 500, you get 500. We'll call it a day?" "Yeah, sure. Perfect." But had you looked you might see that a week, a month, whatever. Earlier 500, a 1,000, 10,000, $20,000 was removed from that account. But you didn't put any protectionary language into the agreement to cover you. So you have to engage in that behavior. You have to ask questions, you have to gather information. Another general one. Don't fail to consider hidden assets or improper spending. This goes to what I was just talking about. You may agree on a value of an account. Where did that money go? If you do discovery you might be able to look at several months or years. Even if you don't hire an expert, you might be able to see, hey wait a minute, $500 is being taken out in cash multiple times per week. So if you don't do that reviewing. Right?

If you don't review the evidence you're not going to be able to identify issues and put the right terms into the agreement. Another one, don't fail to consider tax consequences. People will go in and they'll just be like, "Okay. Let's just divide. You keep that account and I'll keep this account." Then they come back and they're like, "Wait a minute? I kept an account that had a value. I thought it was an equal value but I kept the 401k and she kept cash. Now I'm being told that I'm going to get hit with penalties and fees and whatever if I take money out of the account. So the 50,000 I got and the 50,000 she got it's not really apples to apples." Another thing, don't fail to consider your post divorce budget. Whatever you're agreeing on, can you afford to agree on it? Is it going to have an impact on you today, tomorrow, next week, next month? That unfortunately you just can't handle. Right? Think about ways to minimize the impact of whatever terms you agree on and I understand this can get expensive I'm not discounting that.

But think about at least talking with an attorney. Think about talking to an accountant or a tax professional and finally speaking of taxes, don't fail to think about tax implications. Different types of assets are treated differently and if you put one term over another term it can have a major impact on you. One that you don't easily see. But a tax professional, an accountant, even a lawyer with experience in this area is going to help you recognize those issues. So that way when you jump in you start trying to work on these terms, you know you're going to get it right. All right. When we come back, let's talk about houses. A lot of issues come up when dealing with the marital residents. I want to make sure you get the terms right. We'll be right back.

Speaker 2:

I just wanted to let you know that if you ever wanted to listen to the show live you can listen at 1:00 AM on Monday mornings on WSB. So you can always check us out there as well.

Todd Orston:

Better than counting sheep I guess. Right?

Speaker 2:

That's right.

Todd Orston:

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

Speaker 2:

There you go.

Todd Orston:

I'll talk very soft. Welcome back everyone to Divorce Team Radio a show sponsored by the Divorce and Family Law Firm of Meriwether and Tharp. I'm your host Todd Orston and if you want to read more about us you can check us out online at atlantadivorceteam.com or read transcripts of the show or go back and listen to them again at divorceteamradio.com. Also, want to let you know that if you want to listen to the show live you can listen at 1:00 AM on Monday mornings on WSB. So we're talking about the detail that is necessary when you are putting together a settlement agreement. As they say that saying of, "The devil's in the detail." It is absolutely accurate. I have seen too many people walk through my door or call me on the phone or email me something to review. That is like, "Hey, the other party's not complying with what we agreed on." But I read the agreement and I say, wait but that's not what the agreement says. The detail that you're talking about, your expectation that's not reflected in the terms of the agreement. So unfortunately you may not have recourse.

You may not be able to file anything because really what you would file for non-compliance with the terms of an order is you file a contempt here in Georgia, a contempt action. You're basically saying, Judge the other party had the ability to comply but fail to comply willfully with the term of an agreement that was ultimately entered into a final order. So the terms of the agreement become the order of the court. But if it doesn't say, you must do X, Y, Z." You can't ask the court to hold somebody in contempt. So it is all about the detail. Let's talk now about marital residences. I will tell you it is one of the more common topics, issues, whatever you want to call it where I see people get themselves into trouble by not adding the right detail. It's just again and again and again and all they needed to do was think through the issue and perhaps get some help. But hopefully this show, this is going to give you some of that help. It's going to help you think about things you should be adding to terms of an agreement.

So let's start with... How about just, if you're going to stay under the same roof longer term, post divorce? I've seen that husband or wife will get the house. The other party can stay there for... I've seen three, six, nine, upwards of a year months. Okay. Listen if you guys get along I'm not going to say it's unreasonable or I'm not judging. But what happens if cohabitation post divorce doesn't work? So did you add terms about who has to stay or gets to stay and who has to leave? How about terms relating to what happens if the person who gets to keep and stay in the home wants the other one to leave? What notice do they have to give to the other party? How long will the other party have to vacate? You need to go into that kind of detail. How about just post divorce continuing to co-own real property? That is a huge, huge problem area and therefore if you're going to do it and I'm not recommending it.

But if you're going to do it and I've seen people do it for different reasons, "The market's down, it's on the way up. Everybody thinks that if we hold onto it for six months, a year the value will increase by X percent and everybody is happy." Fine. I mean, I understand the logic. But what if one of the parties wants or needs to sell? They lost their job. They can't make whatever payments and by the way that's an issue. Have you dealt with who is going to pay the mortgage on that property? Who's going to be responsible for all the expenses? You need to be clear. Is the other party going to pay a rent to stay there? Will something be put on hold? Some alimony payments for the duration of the time that party is there. What if you get to a point where a house is going to be sold and it could be in this context or even in the agreement? If the parties say, okay. This piece of real property will be sold. I've seen people come to me almost like, "Hey, high five, we've already dealt with the house."

"Oh great, let's talk about that for a second. What terms have you agreed on?" "We're going to list it for sale and then we'll just split everything 50/50." "Great. What else?" "Well, we haven't talked about anything else." "Okay., Huge problem." So you have to get down and deal with that minutiae. You have to deal with the smaller details which aren't so small. It's things as basic as... Because you know if your goal is to sell the house that doesn't magically happen. Who's going to choose the listing agent? Who's going to choose or set the listing price? What happens if the parties can't agree on a listing agent or a listing price? Who's going to pay carrying and maintenance costs for the house? It's going to be hard to sell the house when it looks like the jungle out of Apocalypse Now in the front yard because nobody's mowing. So what if somebody makes an offer on the house? Can a party just unilaterally reject the contract? What kind of a contract or what contract terms must be accepted? Let's say the parties aren't under the same roof, somebody moves out, agree to sell.

You know how many times I've seen situations where the party that stayed in the house doesn't cooperate and usually the agenda is simply, they don't want to leave. So maybe they will let the grass grow long, maybe they will not keep the house in a showable condition. Well, what if the party isn't cooperating keeping the house in showable condition? What can you do about it? What steps can you take to deal with that act of interference with effectuating that basic term of, "We're going to sell the house?" Let's talk about refinancing. You have to put in the what if language, I see so many people get into trouble here. They'll come to me and they'll say, "Todd, they had six months to refinance." "Okay. Six months, one day I get it it's a violation. What does it say in the agreement in terms of what if? What if they failed to do that?" "Well no, we didn't really put any of that in." "Okay, that's an issue." Okay? So things you should be thinking about. All right.

If it fails to happen then the house has to be listed for sale and once again we get into who's choosing the listing agent? Sometimes I will say to the person not living in the home that didn't get the property who doesn't have that obligation and responsibility of refinancing. I will say, "Why don't you agree that you are the one that gets to control those things? Otherwise the other person who's in the house comfortable maybe isn't motivated as much as you are." So you need to deal with all those same issues relating to the listing and sale of the property. So you can't just say you need to refinance within six months. At that point it has to be sold. Here are the terms of the sale. This is who's making the decisions and if the other party fails to maintain it in a showable condition. You might even want to put language in that says, "That party upon notice will have to move out." So I'm not saying that it... I get it. You add these types of things and it creates more potential for disagreement.

But if everybody is going into this with the same desire to avoid litigation, to reach an agreement, to be amicable then you both should be looking at it not like one party or the other is being unreasonable or making demands and... You need to both go into it thinking these specifics, these nuances and the minutia and these terms are going to help everybody. All right? So if you go into it thinking that this isn't an attack on you then you will start to realize, oh okay. All these terms that we're adding, this is going to avoid so many problems. Problems that could draw everybody back into court in a contempt or in some issues of modification. All right. When we come back I'm going to keep talking about the details you can't miss, let's talk about cars. Be right back. Hey, everyone, you're listening to our podcast but you have alternatives. You have choices. You can listen to us live also at 1:00 AM on Monday morning on WSB.

Speaker 2:

If you're enjoying the show, we would love it if you could go rate us on iTunes or wherever you may be listening to it. Give us a five star rating and tell us why you like the show?

Todd Orston:

Welcome back everyone, I'm Todd. This is Divorce Team Radio a show sponsored by Meriwether and Tharp. If you want to read more about us check us out online at atlantadivorceteam.com and if you want to read a transcript of this show or go back and listen to it again you can find it at divorceteamradio.com. So today it's all about details. The proverbial statement that, "Devil is in the details." Okay? Well, we're talking about how missing out on those details. Failing to include those details in a settlement agreement can cost dearly today, a week a month from now it can be incredibly costly. So don't do it. You need to give this some deeper thought, talk to someone if you need to. But that's where the experience and expertise of professionals who do this, this is where that comes in. That's where the value is seen. You might think, "Well, we're saving money." Okay, great. Except for the fact that if a week or a month or whatever later you have to pursue a contempt and if you didn't put the right terms in.

Or if you wake up and you realize you can't live with those terms. Well, unfortunately you're stuck. So we're talking about the details that you need to think about that should be going into settlement agreements if you're getting a divorce. We've talked generally. I've talked about the house. Let's talk about cars. I see this come up often and it makes sense. Right? I mean, most people have a car. Most families have at least one car. If there's one car, I guess you could divide that one car but does that make it two motorcycles? I don't know. All right, that's a philosophical debate I don't know. But normally you're not going to divide the car, someone's going to get the car or if there's two cars each party let's say gets one of the cars. Well, is that all you put in? I get this car, you get that car. I'm responsible for this you're responsible for that. We're done. Well, you can stop there but what about the payments? Whose name is the car titled in? Where is the title?

Is there a debt? It's great to say that one party will carry and be responsible for the debt. What if the debt's in both names? What if the other party acted as a guarantor? Sometimes people don't even remember that they did that. So is it going to be required to do a refinancing? To make sure that the other party that's not keeping the car isn't in some way in the future saddled with that debt? Let's say it is in your name jointly and let's say this happens also, "Hey, it's okay. There's about a year, year and a half whatever it might be left on that debt. I'm okay, my name can stay on it." "Okay. What happens if payments aren't made? What if the other party misses a payment? Now all of a sudden that's hitting your credit negatively. That's affecting you, that's having a real world effect on your credit." Okay, what do you do about it? Well, if you don't put the right details in more than likely you're going to do a whole bunch of nothing.

You can file a contempt but without the right terms it becomes more difficult, more challenging for a judge to actually sanction and fix the problem and by the way at that point the damage is already done. So if that is an issue then basically you need to think about deadlines to refinance. You need to think about what if... Same with a house. What if a deadline to refinance is missed? What happens to the car at that point? I can tell you right now at that point you may want to be thinking about, "Hey, you can keep that car. You're going to refinance and get my name off of it. But if that fails to happen you have X number of days and then the car possession and ownership of the car transfers over to me." Be very specific. I'm not saying you have to put strong terms like that in every agreement, but I am saying... Hopefully the purpose of this show is not just for you to think about specific terms but it's to change the way you think. You need to go into this thinking that there is another level. Right?

It's that onion kind of way of thinking about it. There are multiple layers. You can't just peel that first layer off. You need to be thinking about the smaller details. Those are the ones that can get you. So if it's missed, how do you deal with a payment or refinancing rather? How do you deal with that failure? Basically if you do get the car back... I've seen this happen also. Let's say you put in language that says you get to have possession and ownership of that vehicle and you're looking going, "I just need to return it." Well, do you have the right to just return it? If you return it, what if it's for a loss? Who's responsible for the loss? You need to deal with those issues too. I've seen people where they take a car and sometimes it's even by agreement. Payments weren't made, they demand the car. The other party says, "Fine, I can't afford it you take it." They return it to a dealership and all of a sudden they're hit with a $5000 whatever it might deficiency, a debt. Who's responsible for that?

So the more details you put in oftentimes I find what it's going to do is it's also going to keep people a little bit more honest. For lack of a better way of saying it. The opposite of that is not dishonest. I'm saying, it's going to keep them from doing something that... Because they're going to realize there can be some real world consequences for them. If it says that if they do A, B, C they could be saddled with a sizeable debt and it's in writing. Well, it might keep them on the straight narrow. So when you're thinking about a car you need to go into that kind of detail. If it's as simple as, "I'm keeping my car, it's in my name. I'll be responsible for the debt, all in my name and the same thing for my spouse." Then great, very simple. But when you're thinking about some of these kind of non-traditional situations you have to be really, really careful. All right, let's talk about division of property and remember in Georgia you cannot modify division of property.

Whatever you put in and this goes for the house, this goes for the car. But I'm just saying, just remember you need to get it right the first time. If you don't get it right the first time you can't go back and ask the court to add more terms. So mistakes that people make, not considering all of the retirement assets. Your spouse early in the marriage was in the military, well there might be some retirement there, some accounts and you might have a claim. Pensions from an old job that you don't even remember your spouse had they may exist. This goes back to the discovery issue. I've seen people make mistakes where in essence they're treating accounts the same. They're treating all assets the same. A 100,000 in a retirement account versus a 100,000 in post tax cash, that is not apples to apples. They're tax considerations and access to fund issues. Someone takes the 100,000 in cash, they've got a 100,000. Somebody takes a 401k taxes have not been paid on it, there could be penalties and taxes that are incurred if you take money out. That's not a 100,000.

So you need to think about those types of things before you go into the agreement. You need to think about the actual tax consequences. If you don't I've seen it come back and bite people and then have regrets. "I didn't realize." Well, had you done certain things you would you would've realized. So another big issue is co-owning or co-managing a business, dangerous and I understand sometimes it's unavoidable. Well, not unavoidable but let's just use that word. Sometimes it is unavoidable and when we come back I'm going to tell you why if you can you should avoid it or at least you need to focus on the minutiae. You need to focus on those finer details otherwise I'm telling you major problems. We'll talk about them when I come back.

Speaker 2:

I just wanted to let you know that if you ever wanted to listen to the show live you can listen at 1:00 AM on Monday mornings WSB. So you can always check us out there as well.

Todd Orston:

Better than counting sheep I guess. Right?

Speaker 2:

That's right.

Todd Orston:

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

Speaker 2:

There you go.

Todd Orston:

I'll talk very soft. All right. Welcome back everyone, I'm Todd this is Divorce Team Radio and if you want to read more about us check us out online at atlantadivorceteam.com. Or if you want to read transcripts or listen to them again you can find them at divorceteamradio.com. So we're talking about the details. The details that need to go into agreements because if you miss them... We've all heard that saying, "If I had a nickel for every time." Well, I'm telling you at this point in my career if I had a nickel for every time somebody called and said, "Hey, take a look at these terms. Am I protected? Can I file a contempt or deal with this and get in front of a judge and get some assistance?" I have to look at them and say, "Unfortunately, no. You didn't put the details in that you want in but it's too late. You can't enforce something if it's not there." So we're talking about some of the specifics, some of the smaller finer details. We've talked about the house, we've talked about the car and other property.

Well, let's talk and let's talk more about businesses. As I was saying it's dangerous. I've seen major, major problems and I will tell you most of the time if it's a bigger more established business. Oftentimes people have dealt with some of the specifics because I will tell you that is one of those situations where you really should. If you're a business owner, if the other party is involved to some degree and you are thinking about a co-ownership, co-management then you need to be thinking of this not only in terms of the divorce. But you need to be thinking of it in terms of business management, you need to be talking to an expert in that area. Thinking about terms of an operating or partnership agreement. Because I have seen problems where people think they're going to co-own, co-manage a company and they didn't get along as husband, wife, spouse, spouse and they certainly are not going to get along as co-managers of a company. So you need to be thinking of things in terms of just the overall daily management access to records, access to accounts, who's in what management position.

Can one person force a buyout of the other? If they can't agree what happens? Those things, some of them can go into a divorce agreement. Most of them really at that point I think the business lawyer should be thinking of things in terms of that partnership agreement. So the best results I've seen is where there are both and the attorneys can work together to come up with terms that make sense. Terms that would relate to either the closure of the business, the sale of the business or the removal of one party from active management of the business. But I've also seen issues with, okay well let's say somebody is excluded. Do you have specific terms about how they're going to be paid for their interest in the business? It was a marital asset. So let's say party one is going to continue to operate and manage the business, they're not selling it. Okay, what's the buyout? How will the payments be made? You need to go into specifics, what happens if that fails to happen? What happens if payments aren't made or aren't made in a timely manner?

You need to be thinking about that. You can't just say, "Well, you have to pay me X." Even if you're like, "Well, you have to pay me X and you're going to pay me once a month." Okay. Better would be start thinking also about the what if, what if that fails to happen? What recourse do you have other than just going to court saying, "Hey, judge contempt." So like I said, I have seen it go both ways. I've seen co-ownership and management of a business work but I've seen it also work only for a time until things kind of crumble and parties are then left... Because they don't have the details. They're left in a very uncomfortable untenable situation. Because anybody listening, whether you own a business or not you can imagine if the parties couldn't get along as spouses can you imagine what it's like trying to operate that business? So let's talk about debt. Well, a general mistake is just assuming all the debt and not having a good strong handle on your budget.

Not ordering the closure of joint accounts and in terms of closure of joint accounts you need to have access. Let's say you are the secondary on the account, don't you want written confirmation showing that the joint account was closed? Or not ideal, if you are removing somebody from a joint account and you're maintaining that joint account. Don't you want information specifically that shows that the person has been removed has no access and cannot access the account? Typically it's better just close those joint accounts, open up a new one. Sometimes though people are like, "Hey. That account I've had it for 25 years, I don't want to give it up I have benefits." So dealing with these issues in detail is incredibly important. How about personal property? I've seen people where they make the mistake, "All right. I get this property, you get that property. List, list. Fantastic, high five." Okay and then they keep the property stored in that other person's home, maybe it was the marital home. Bad idea. Get your stuff. I have seen so many problems. So if you're going to do that both parties want some specific language.

"If I have the house, when are you going to pick up your stuff? How long am I going to keep it?" What happens if you keep it beyond that date? What am I allowed to do with that property? Does it become mine? Do I get to throw it out?" If I'm the other party I want assurances, "Hey. You're allowing me to keep these boxes here rather than go get a storage container. So great, you're going to keep them in the basement or in the garage. Fine." Well, what are your rights? What if you need access to it? How are you going to get confirmation that the boxes are still there? Do you understand what's going to happen if you fail to pick them up? Bad idea by the way but it happens all the time. Also going into detail about identifying all the property that needs to be divided, valuing the property to be divided. Let's quickly talk before we're done on custody and parenting time. A problem is that sometimes people are vague, you have to be specific. You have to think about pick up and drop off times.

Access to information, sharing of information. Other things you can think about, should think about. Things that aren't necessarily in a parenting plan order. What if the other party is late to a pickup? How late is late? What happens if they're too late? Do you get to just leave? Do you have to wait for five minutes, 10 minutes, 20, 30, 40 minutes? What happens if the other party doesn't give you notice that they're not going to exercise? Is there a cost incurred? You have to work, the other party was supposed to have and exercise custody you had to go hire a babysitter. There are other terms that we put in regularly, right? First refusals and those types of things. What about travel notifications? Generally it says, if you're going to leave for a period of time you have to give notice. Okay, be very specific as to what that notice is. Make sure you put in specific language about what access the child has to a phone or a computer while with the other parent.

If you give a phone to your child to use so that you can communicate, make sure you have specific terms in there that the other party's not going to access it. Not going to take it from the child without some kind of notice given to you, that it is there specifically to facilitate contact between the other parent and the child. So unfortunately we are out of time, like I said I wasn't going to get to everything. But remember when you're talking about entering into terms of an agreement you have to think about the details please and even if you aren't in a position or desiring to hire an attorney you can do a consult. At the very least go pay for an hour or so with an attorney so you can ask questions and make sure you're not missing things and omitting things from an agreement where it can come back and bite you. Thanks for listening I hope it helps.