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benefits and pitfalls to a hearing or final trial


Do You Really Want Your Day in Court?


Are you are determined to present your divorce case to a judge? Are you confident that the judge in your divorce case will understand and take your side? In this episode of Divorce Team Radio, listen as Todd Orston, Partner at the Divorce and Family law firm of Meriwether &Tharp, LLC, explores the benefits and potential pitfalls associated with pushing your case to a hearing or final trial.

Todd Orston:

Welcome back everyone to Divorce Team Radio, a show sponsored by the divorce and family law firm of Meriwether & Tharp. I'm your host, Todd Orston, and here you'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. If you want to read more about us, you can always check us out online at All right, let's get started.

I want to talk today about something that clients say to me all the time. I hear it all the time. And while I understand where they're coming from, and sometimes it's a reasonable statement, sometimes I agree wholeheartedly. A lot of times, there are many things that you need to think about before you just adopt that way of thinking, before you just act on that thought.

And the statement that I'm talking about is, "Todd, I want my day in court. I've got a story, I have facts, I have evidence. I want my day in court. A judge needs to hear me." Well again, sometimes it is the only option. If the other side's taking unreasonable positions, you may find yourself in a situation where unfortunately you don't have any options. But court is not the end all, be all answer. You may have a right to your day in court. You may have a right to present your story, your evidence to a judge. And in Georgia, you even have the right to present some issues to a jury. But is that the right choice? The answer oftentimes is no. There are other options.

And let me say it this way. If you have hired an attorney, if you've vetted that attorney, if you've done any research about the attorney or the firm that they work with, you probably already are comfortable with whether or not that attorney is comfortable going into court and trying a case. It's not a fear issue. It is not a... Oftentimes, most of the time it's not a reluctance to go to court. It's what we do.

My position, my opinion is that a good attorney is going to do what they can to avoid unnecessary litigation. A lot of that comes from education. And I don't mean the education that an attorney received to become an attorney. I'm talking about the education that the attorney gives to a client, explaining the system how things could potentially play out, what the potential positive outcome could be, but also what the potential harm could be.

So while it's easy to say, "I have a story, I want to tell it in court," it may not always be the best choice. You know why? Because as many stories as you have, there is a very good chance, and by that I mean 99% chance that the other side's going to come in with their own stories. They're going to come in with their own facts, with their own witnesses. They're going to try and paint a much different picture.

So while you are confident in your story, you have to understand the other side's going to be coming in with their own story. And then you're stuck with a judge who is doing everything they can during that limited period of time to listen to both sides and decide on issues that will likely affect you and your family for years and years to come. And I wish I could say that in every situation where someone took the position, "I'm going to go to court, I'm going to tell my story." I wish I could say that in every one of those situations, the outcome was great for that person.

But like I said, I've seen situations where you go into court, and you're telling stories, and what comes out of the other side's mouth, your head wants to explode. I often tell clients as we are going into court or prior to, "Do not be surprised by what you hear the other side or their attorney say." I'm not saying everybody lies, but I will tell you there is a whole bunch of truth stretching going on in court. And maybe sometimes, it's just a matter of you've got your version of events and they have theirs. Sometimes, it's outright lies.

The point is that you may get your day in court, you have a right to it. But again, then you're in front of a judge, and the judge is going to have to decide who they believe. It becomes a little bit of a factual beauty pageant.

And I have the utmost respect for the judges who are tasked with this responsibility. They have to listen to story, after story, after story, and sometimes they are heartbreaking stories. Yours may be a heartbreaking story. But if you don't tell the story the right way, if you don't present the right evidence, if you don't prove things rather than just say things, if you can't prove certain things, you could have, when I say the best story, it could be the most horrible story. But you might have facts that you would think in your mind any judge would look at, listen to, and say, "Oh my gosh, I have to protect this person. I have to punish the other side."

Problem is that they just listened to the other side as well and the evidence that they presented to counter your stories. And you may walk out not getting what it is you wanted to get, accomplishing what you wanted to accomplish.

So while you may have a right you to go into this process, not taking a position that, "I know the facts, I know those facts." I mean they've blown my mind. Every person I talk to, they're like, "Oh my gosh." Everyone who hears these facts, like I said, it just blows their minds. "My neighbor's uncle who heard at the barbecue what I suffered said if they were the judge, my spouse would be in prison." Okay, well that's great. But that's not court. That's not a judge. And so it's very different, because you're going in prepared, and more than likely the other side's going to try and be prepared as well.

So where does that leave you? Well, you obviously have options in terms of settlement. You can agree on terms or not. But at the end of the day, my opinion and the opinion of the vast majority of attorneys, and I would like to believe every single judge out there is you have to go into this situation working towards a resolution, open to considering options on all the relevant issues.

If you go in with a mindset of, "They did X, and therefore the punishment should be severe, and that's the only thing I'll accept." Well, I'm not saying that may not be an appropriate position. But that kind of narrow view, that kind of narrow approach to trying to resolve your case, the only guarantee there isn't the outcome, meaning what the judge might do or what the settlement terms might look like. The only guarantee there is you are going to go to court, and it's going to take a financial and emotional toll on you, and you may not get and likely won't get everything that you are thinking you deserve.

So when we come back, I want to keep talking about this. I want to talk about at Meriwether & Tharp, what we call resolution focus, what that means. What it means when somebody talks about an amicable divorce, and the kinds of things that you should be thinking about. If you're going into this process, if you're in the middle of this process, things you should be thinking about in terms of your approach, your mindset. Because if you think about things the right way, hopefully it's going to direct you towards some kind of an acceptable resolution, that will hopefully avoid all the emotional and financial pain that goes along with protracted litigation. When we come back, we'll talk about that, and we'll also start diving into when court may only be or may be the only option. 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, 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, I'll talk very soft.

Todd Orston:

Welcome back everyone to Divorce Team Radio, a show sponsored by the divorce and family law firm of Meriwether & Tharp. If you want to read more about us, you can always check us out online at And if you want to read a transcript of this or other shows, or go back and listen to this or other shows, again, you can find them at

So today, we're talking about that statement, "I want my day in court." And I don't want to belabor the point more than I already have. But if that's your mindset, then what you're doing is you're shutting down the potential to resolve your case and avoid a whole bunch of potentially unnecessary litigation. We on this show, I on this show have repeatedly talked about I get the emotional impact. I understand. Not as well as my client who suffered at the hands of let's say an abusive spouse, but I get it, this is what I do. And I understand the effect that that frustration, anger, pain can have on you.

And when you finally start to see the light at the end of the tunnel, when you see that there is a better life for you, some people run towards that in terms of, "Good, I need my freedom. Let me get to freedom as quickly and efficiently as possible." But some people, they want their pound of flesh, and one way to get that in their minds is court. "I want to stand in front of a judge and have a judge look at my spouse and basically chastise, punish, whatever, that bad behavior."

But that's not what the system really is for. And as I said in the previous segment, you have a judge who doesn't know much about your case, who now is going to be hearing not just your version of events but the other party's, and then has to decide what to do with that. And sometimes the judge, I've heard them say it. "You both seem credible. I don't know who's right or who's wrong, but this is what we're going to do about the divorce. This is what we're going to do about custody, parenting time, child support, alimony, division of property, and debt."

So making an assumption that just because you have a story, that's going to resonate with a judge to such a degree that you're just going to get what it is you're asking for, that's flawed strategy.

And so sometimes, I have to talk to clients and say exactly this. "I know you have a story. I've heard the story, I've seen the evidence, I'm ready for a hearing, I've got it all here. But guess what? I've talked to opposing counsel, or I've read something written by the opposing party and their attorney. And we're telling this story, but guess what? They're going to bring up this over here. They're going to tell a different story. They're going to try and paint you in a bad light, which means we're going to be standing in front of a judge, and that judge is now going to have to judge. And if we do a great job and we're believable, fantastic, but the other side could do the same thing."

So you have to be very careful. If you're going into this process, you have to understand there's two sides to every coin. And when you flip that coin in front of the judge, maybe the judge is going to do one thing, maybe another.

So when we went to break, what I want to start talking about here is, okay, I know I have a story. I know I want to judge or I think I want to judge to hear, but I also don't want this to be 12 plus months of litigation.

So where's that middle ground? Well, the middle ground is you need to go into a case like this with a resolution focus. It starts with you. An extension of that is you need to find an attorney who adopts that same kind of resolution focus. Fighting for the sake of fighting, litigating for the sake of litigating helps no one. Well, maybe one person involved. But the parties, no.

So what are we talking about here? We're talking about, you need to go into a case like this with a resolution focus. You need to think in terms of, how can I amicably get through this? Am I telling you you need to be best friends with that party you're so angry at? No, that ship may have sailed. But especially if you have children, you need to go into this understanding that unless the evidence is so dramatically bad that maybe a judge will really limit or even stop all contact between that parent and a child, then if that's not the case, the other party's going to be involved, and you're going to have to co-parent with them.

So what is amicable? Well, amicable as I was saying before, you're going into a case trying to put that emotion to the side. You are angry, you're hurt, all of the emotions, all of the above. But you need to go into this and understand that that's not going to help you in this case. What's going to help is if you do the work necessary to identify the issues, and then approach those issues with the other party in a reasonable way. Meaning, understand you're not going to get everything you're asking for. And trial. Maybe that will go your way. But even if it does, maybe you're not going to still get everything you want from the judge.

Amicable is educating yourself and being educated about the issues so that you can negotiate something that's fair and reasonable. And fair and reasonable is not something that only benefits you, or very dramatically benefits you over the other party.

Court is not or shouldn't be a platform. And I'm talking about divorce court, is not supposed to be just this platform for you to be able to air the dirty laundry. You are there for a purpose, and that purpose is to get a divorce. And to get the divorce, you have to deal with the underlying issues. So you need to go into these situations and you need to adopt that resolution focus.

To do that, you have to, to a certain degree put the emotion to the side, and that's going to be hard. I mean we've had people on the show, therapists and people who just themselves went through a divorce. I am not sitting here trying to tell you that it's easy, but the cases that get prolonged, those are the cases where oftentimes, one or the other party was unable to shelve that emotion. Sort of compartmentalize and push the emotional baggage if you will, your strong feelings for that other party. Put it somewhere where it won't interfere with your ability to discuss things and reach a reasonable settlement.

So as an attorney, my job is to basically educate people and say, "Hey, you could go to court, you could tell your story. And maybe things are going to go your way. But let me tell you what is sort of the norm, how courts handle this. Let's talk about the allegations and all these stories that you want to tell, and let's talk about what the potential outcome could be. Oh, and by the way, let's also focus now on things I've heard from opposing counsel. The allegations they're going to say." "Well they're not true. I didn't do those things." "I get it, I get it, but they're going to tell the court you did. And maybe the judge will believe it and maybe not." And sometimes I get it. Sometimes you're like, "Look, I'm willing to take that chance."

So I'm not saying just because stories are coming at you, you should just give in and give the other side what they want. That's not what I'm saying. What I'm saying is that that's a component. That is something you need to be thinking about. And if that's the case and you have to go to court, so be it.

But first and foremost, you need to be thinking, "Can I get through this without going to court? Can I get through this without it turning into something bigger and uglier than it needs to be?" Sometimes you can do it, sometimes you can't. Sometimes trial, it's not just the only option. Sometimes it is the best option. Sometimes going in front of a judge is the right thing.

When we come back, I'm going to jump in, we're going to talk about that. When trial, getting in front of a judge is not just an option, but it is the best option. 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 in iTunes or wherever you may be listening to it. Give us a five star rating and tell us why you like the show.

Todd Orston:

Welcome back everyone to Divorce Team Radio. I'm Todd Orston, your host and partner at the divorce and family law firm of Meriwether & Tharp. If you want to read more about us, you can check us out online at If you want to read a transcript of the show, go back and listen to it again. You can find us at And if you want to listen to the show live, you can listen at 1:00 AM on Monday mornings on WSB. All right, today I'm talking about that statement, that feeling, that approach to a divorce where somebody says, "I want my day in court." And usually they don't say it that way.

I want my day in court. I think a judge needs to hear these things. And I'm not just saying this, I get it. I mean, some of these stories that I hear, some of the facts that I review and talk to clients about, I could understand wanting to scream it from the mountaintop. But it doesn't mean it's always the right choice, strategically speaking.

So I want my day in court, I've seen it go horribly wrong. I've seen cases where somebody said, "I have these stories, I'm a good person, I want to go to court." And I've seen people lose custody.

Now you might be thinking, "Well, how?" I'll tell you how. Because for every story that person had, the other side had a whole bunch of other stories, and then it became a contest where the judge had to weigh each party's stories and make some decisions as what they felt was in the best interest of a child. And at the end of the day, the court may not have been happy with the other side. But unfortunately, the allegations made against the other party were more serious.

And I've told people again and again, just be ready. The other side might come up with things that you're sitting there going, "I don't know what you're talking about. I have no idea." Or there might be this little shred of truth.

I see that all the time, a stretching of the truth where it's like, "There was this abusive event," and I'm talking to a client and they're like, "I had a phone in my hand. They grabbed the phone, no contact was made, and now the story involves pushing, shoving, kicking, you name it. That just didn't happen."

But you have to understand, that party, if they're willing to even say or hint at something like that just during negotiations, then more than likely they're going to go into court. They're going to say the exact same thing, which means a judge is then going to have to determine, do they believe you or the other party?

And where it goes horribly wrong is when you bring up all of your stories, the other side brings up their stories, and the judge just feels that the other stories, the other party's stories are more credible.

So this is a cautionary statement that I keep making. Doesn't mean you go into your divorce scared. Doesn't mean you go into it where you're like, "Look, I'm just not going to fight. I'm not going to protect myself. I'm not going to make sure that the right thing happens and that I negotiate reasonable terms." But go in with your eyes wide open. Go in with your eyes not clouded by the emotion that you're feeling. Because if you can do that, you'll have the clarity necessary to make sure that you reach an amicable, reasonable resolution.

But that's not always possible. Sometimes, court's the only answer. I'm going to spend a little bit of time talking about that from both, or rather in temporary issues and permanent issues.

Now over both of them, just remember ultimately you are in front of a judge who is going to be judging. It's kind of interesting. Yeah, it's in the word itself and the name. The judges are judging.

So you are under a microscope. The judge is watching your behavior. The judge will consider at the appropriate time the positions that you have taken into your case. If you take really unreasonable positions or a position that the judge later deems to be unreasonable to the point where it becomes maybe even the word is frivolous, such that your behavior expanded the litigation, you could get hit with fees.

Put aside all the other serious stuff that could happen where it could impact custody decisions, and support decisions, and division of property and debt. It can also result in you getting hit with fees. So I'm not trying to scare you. Court is a good tool when it's used at the right time for the right reason. That's why judges are there.

So temporary, sometimes you need a hearing, I get it. You should always be trying to reach an amicable resolution. But sometimes it's not possible. What are some of those times?

Well, if your spouse controls finances, if they have shut you out of all of the accounts, if they are not making access possible for you to get your hands on some money to pay basic bills, if negotiation occurs and they won't make those funds available, that's what a judge is there for, to hopefully put a stop to that. On a temporary basis, and remember we're talking about temporary basis meaning during the pendency of a case until the final judgment, decree of divorce is entered by the court.

So if we're talking about a situation where there are safety concerns, then you may have to go in front of a judge, especially if your concerns may trump the other party's let's say parental rights. If there are safety concerns where the other party may have a right... Or not a right, but may be looking to the court for strict compliance with basic parenting rules, knowing where the child is sleeping at night.

Well if there are safety concerns and the other side is saying, "I want to know where you live," and you don't feel safe doing that, you may have to go in front of a judge.

Now these types of things obviously, you should try and negotiate ahead of time. But if you truly have that kind of a concern, more than likely the other side's not going to be reasonable. That's what a judge is there for.

If there are terms, well there would be terms relating to parenting time, and decision-making, and things of that nature, and if you need them to be tweaked, changed, limited and the other side won't do it, as long as you have a strong reason why, then you may have to look to a court.

If there's an issue in terms of fears that the other side might dispose of assets, then you may not have a choice. You may have to go in front of a judge. You may have to look to the judge to issue an order to prevent the spoilation, the wasting of assets. Everything that I'm saying is prefaced with you should be trying to reach an agreement, and that's what an attorney is going to do.

A good attorney recognizes that while you can fight, doesn't mean you need to fight. While you can go to court, doesn't mean you need to go to court. And building on that, again, we've done shows on this. It's all about talking to the attorney, getting a feel for the firm and the attorney to make sure you're picking someone who knows how to fight, but is not just out there picking a fight. Big difference.

So when we come back, I'm going to keep talking about when trial is absolutely necessary, when you may not be able to avoid it. And we're going to focus more on final trials. You've gone through the system, the process rather. You've dealt with the temporary issues, you have tried to negotiate, you've gone to mediation, mediation didn't work. And you are taking certain positions for certain reasons, and you feel like you have no choice but to go and present to a judge. We're going to talk about that when we come back.

Speaker 2:

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

Todd Orston:

Better than counting sheep I guess, right?

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, I'll talk very soft.

Todd Orston:

Welcome back. I'm Todd Orston. This is Divorce Team Radio, a show sponsored by Meriwether & Tharp. And if you want to read more about us, you can check us out online at And if you want to read a transcript of the show or go back and listen to it again, you can find us at

So we're talking today about, "I want my day in court." All right, I get it. Sometimes, a lot of times, most of the time you can avoid it. Sometimes you can't.

So we talked about temporary issues where you may need a temporary hearing, and that's costly. Anytime you go to court, if you have an attorney I mean, it's costly. It's not just the X number of hours that the attorney is in court. We're also talking about the prep work that goes into preparing for the case, preparing for the hearing.

And then like I've been saying, there's the primary danger if you will. It's not the money you might have to spend, it's the fact that you may not get what you're looking for. And if you don't get what you're looking for, maybe it's close to what you were looking for, and maybe it's not even close, and maybe those terms really don't benefit you. And now you're stuck with it for the remainder of the case.

And I can speak in terms of here in Georgia, could a contested case take upwards of a year? Yeah. Can it go beyond that? It can. It just depends. Depends on the county, depends on the court, and the size of the calendar. It could depend on, are there experts involved? Do those experts need additional time, more time to do their investigations, or whatever work they're being tasked to do? So on the temporary basis, you have to be really careful.

Now on a final basis also, nothing changes. Cost is still there. The reason you want your day in court, if it's only because you feel you have the stronger story and you are ready and wanting to tell your story, that's not the reason. That's not what trial should be used for. It's because you have tried to resolve things, you have taken what are reasonable positions.

And granted, reasonable could mean something that the other side looks at and is like, "I'm not doing that." I am not trying to sit here and define reasonable as giving into the other side. It's not what I'm saying. Reasonable is just think in terms of how judges typically handle certain things, what protections need to be put in place? And just make sure that you're not, for instance, "My spouse has a drinking problem." "Really? So you want to go in front of a judge?" "Absolutely. They're going to hear about this." "How much do they drink?" "Like a six-pack a month." Really? Okay. More than likely, the judge drinks more than that. No offense judges, I have no idea what their drinking habits are.

But if you are taking that kind of a strong position thinking that a judge is going to take a hard position and punish that other party by limiting their rights in some way, that's not going to cut it. And now, you're walking in front of a judge taking kind of a litigious position, the court doesn't accept it, and maybe it paints you in a way where the judge is like, "Hey, if I'm going to limit some rights, I may have to limit yours. You're so caught up in the emotion, that that's just not reasonable." So you need to take reasonable positions, keep your eye on how can we resolve this amicably and reasonably. But sometimes, you can't.

Had a case where there was concern about the... I represented the mom, the father's work schedule. Non-traditional kind of a work schedule, was a manager that basically worked long hours, weekends, nights, and deferred a lot to his parents, the grandparents. And my client's position was, "He's not there. I'm always doing the things I need to do to take care of the kids, and he's not really helping because he's off working. And so I think it's very reasonable that I move with our children to another state so I can marry this man who lives there."

Well we talked about the way judges sometimes look at these relocation issues. We talked about the facts, we talked about the father's schedule. We talked about all of these things. And my client was still taking that position of, "I want my day in court." Luckily, we were able to because of some of the concerns pre try, it's called pretrial, pre try the case with the judge, sort of give a few facts and circumstances relating to the case and the issue.

And let's just say that that judge did not mince words. And for lack of a better way of saying it, told me that if we went forward with the trial, obviously we have our right, obviously the judge hasn't made a decision and would consider all of the facts, but those kids might not be with mom and might be staying here with dad and grandparents.

So we were able to avoid the trial and my client was able to maintain primary custody, albeit she didn't move with the kids. But it's not always that way. Let's play that one out. She felt so strongly that dad was in essence a deadbeat dad, not deadbeat in financial terms. He provided. But that she was the primary, she was the person who was doing the heavy lifting taking care of the children's needs. And she felt so strongly, and she wanted to move on with her life, and she met the man of her dreams, and she wanted to move to that other state and start that life. Had we not pre tried the case with that judge to get an idea of how the judge would lean, she would've lost custody. And that's exactly what I'm talking about.

And I've seen this with issues of addiction, where you don't feel like what you do or your behavior is bad enough. And unfortunately, the judge disagrees. I've seen it with issues of cohabitation and the behavior while children are around and, "It's not that bad. The kids are asleep." And you find yourself in front of a judge who doesn't like that behavior. Addiction issues, drugs, alcohol. I'm not telling you what is a reasonable amount of alcohol. Six-pack a month, you're doing fine, my opinion. But that's not what we're talking about.

I've had people where they were like, "All right, so I smoke five times a day, but big deal. I stop when the kids are there," and there's really no evidence that they do stop. Or even more serious drugs where it shows up in a drug test but, "I'm going to tell the judge that I'm not taking it anymore. I'm clean." If we can settle something like that as opposed to walking in front of a judge, great.

Now I've seen the opposite where the other side is making allegations and there's no evidence. The other side is saying, "You should have limited parenting time. You wasted assets in such a way that we're not going to settle if you don't pay X amount more to our client."

Those are the times after negotiation, after trying to obtain the help of maybe even an expert, a guardian ad litem appointed in a case, custodial evaluator, even a financial expert.

I had a case where it was really an issue of support, and had a financial expert. And we went through the numbers, and we were able to show the other side, including their expert, that what they were asking for constituted probably 90% of my client's net income, after tax income. And we weren't going to do that. And they said, "Well no, that's not what we're asking for, but we do want this number." "Yeah. So that is what you're asking for." And we went around and around. We went to mediation. That didn't work out.

Those are the times where you unfortunately may have no choice but to go to court, look to a judge, and say, "This is why we haven't reached an agreement. We need this court's help. We need some direction, we need a ruling. Here's our case." But at least you go into it knowing you did everything you could to avoid it. And I will say I believe if you can show that to the court, the court will respect that and will understand that unfortunately you had no choice, and maybe it will reflect in the judge's ruling. Thanks everyone for listening, and join us next time. We're going to dive into some other great topics. I hope it helped, and we'll see you soon.