Everything you need to know about the Divorce Process 

Speaker 1 (00:09):

Welcome back everyone to Divorce Team Radio, sponsored by the divorce and family law firm of Merriweather and Tharp. I'm your host, Todd Orton. 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, check us out online@atlantadivorceteam.com. Alright, let's get started. What I want to talk about today and in different shows we've touched on this, but I want to talk today, I want to give sort of a run through of everything that you want to be thinking about. If you are about to file or you have just been served with a divorce, what does the divorce process look like?

(01:01):

Obviously a lot of people, they feel a lot of anxiety, they don't know what to expect and it's alien to them. I've had people apologize to me, I'm sorry, I didn't know that's what needs to be done and my response usually is, well, it would be weird if you did know that. I mean why If you don't do what I do for a living, it's not like you go home at the end of the day and just pick up a good old book on divorce and sort of shore up your knowledge on the divorce process. But if you're going through it, obviously you don't want to go into the process blind, ignorant, whatever word you want to use. I mean you need to be prepared. You need to educate yourself or get educated so that you have an understanding of what the process is going to look like.

(02:02):

If you don't know that, how can you properly prepare? If you can't properly prepare, can you really be upset if you don't get the resolution that you're looking for? Can you be upset if you haven't done all the things you really should be doing if your settlement maybe isn't as fair as it should have been if you didn't gather the information you needed to make good decisions? So you have to understand the divorce process whether you are filing pro se, meaning if you're going to be representing yourself or if you are hiring or have hired an attorney to handle it for you. It's important that you understand the process and just building on that for a moment, some people might say, well, if I hired somebody, why do I need to understand it? They're going to take care of it for me. Well, knowledge is power at Merriweather and Tharpe.

(03:07):

We firmly believe that. That's why we do these free telephone consultations with people to give them information they can use. That's why we have a website that we're constantly improving with thousands of pages of free information. That's why we do this show with tons of free information because we want people to have that power. We want to empower people and it's not difficult. You just need to get your hands on the right information and educate yourself and even if you are hiring an attorney to handle things, spending a few minutes, maybe more than a few minutes, but educating yourself about the process, understanding the different components of a divorce, understanding the different things you should do, can do, must do. Then when your attorney is talking to you about it, you don't need to spend an exorbitant amount of time getting educated. You might be able to just say, no, I get it. I understand, or at least I think I understand you're going to do X, Y, z first. We're going to file the petition. I get it. Then an answer will be filed and we have to do discovery and maybe we need to file some motions. I get it.

(04:35):

So educating yourself will help you because it can make you work more efficiently or allow you to work more efficiently with the attorney who is helping you. So if you've listened to us before, then you should at this point already have a pretty strong understanding of what the process looks like, but purpose of the show, again, I want to basically put everything into this show. So if you listen to this show, you're going to walk away hopefully with a really strong understanding of what divorce looks like process wise. I mean, so let's break it into again, foundationally, let's start at the bottom and let me explain the five main components of a divorce.

(05:32):

So we have number one pleadings and I'm going to go into all of these in more detail. Number two, discovery. Number three, motions. Number four, settlement efforts and number five, litigation. So those are generally speaking five of the main components of divorce litigation. Let's start by talking about pleadings. So pleadings are defined as formal documents filed with the court that state the party's basic positions. In a divorce case, you're going to have the initial petition for divorce, also known as a complaint for divorce. That's what starts the action. You file it with the court, then you have to deal with service of that petition on the defendant. They can accept service through the execution of a document called an acknowledgement of service or if not, or if there are reasons why you have to have them served. Maybe you feel like they're going to flee the jurisdiction or there might be other emergency issue that requires it, but you have to have them served.

(06:56):

Once that happens or if you've been served, that's when that person or yourself, you need to file what's called an answer. An answer is a response to the petition. Quite simply, you're offering a basic response to the things stated in the petition. Now you can file just a basic answer or you can file an answer and counterclaim answer. You answer the things in the petition counterclaim. It's sort of like you're filing your own standalone divorce petition. If you file a simple answer, that's it. It doesn't stand on its own. The counterclaim becomes your petition for divorce.

(07:43):

If the petitioner withdraws or dismisses their own petition for divorce, your counterclaim would survive. You didn't file a counterclaim. You could get months and months and months into the divorce. Things aren't going very well for the other side, they decide to dismiss. You never filed the counterclaim, the case is gone. You have to start from scratch. Now, in terms of what a petition looks like, Georgia's not what's called a notice or I'm sorry. Well, we are a notice pleading state or basically we don't have to go into all the detail that some other jurisdictions require. So there's notice pleading and then there's fact-based pleading fact-based pleading. You have to go into specific detail. Some states still have fact-based pleading requirements, California, New York, Pennsylvania, Florida, Texas, Missouri, Virginia, Illinois, New Jersey, Connecticut, and Louisiana. And that means that you have to go into specific detail. Notice pleading you can state things more generally. So here in Georgia, and I always say this, if you're not in Georgia, you definitely want to talk to someone in your jurisdiction who can give you specific information and advice relating to practice there.

(09:15):

So basically notice pleading. You can state things more generally. Children, you can claim you want primary custody. You don't need to go into or include the facts to justify why you would be the better choice. You can say you want child support. You don't need to include numbers, amounts, income of parties, things like that. It's important you prepare initial pleadings properly. But the good thing is you can also amend pleadings that you filed. Answer is you have to be very careful. Of course you don't want to admit the wrong thing. You don't want to respond in a way that locks you into an answer, an allegation of, well, I want the divorce on the grounds of cruel treatment. And you suddenly admit, then in essence you're admitting you engaged in that cruel treatment. So you have to be very careful. The ground for divorce is oftentimes a general ground and that can be amended later. Addiction, abuse, things like that. Strategy becomes important. You can include those serious, specific grounds. Oftentimes I'll tell people, keep it general because maybe what that'll do is open the door to settlement. You put in addiction cruel treatment, and that becomes public record. Now all of a sudden maybe you've triggered that other side and they're less likely to want to settle. Alright, when we come back, we're going to keep talking about the divorce process and we'll jump into number two, discovery. We'll be right back.

Speaker 2 (10:58):

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

Speaker 1 (11:09):

Well. Better than counting sheep, I guess, right? That's right. You can turn on the show and we'll help you fall asleep.

Speaker 2 (11:16):

There you go. I'll talk

Speaker 1 (11:17):

Very softly.

(11:23):

Welcome back everyone to Divorce Team Radio, a show sponsored by the divorce and family law firm of Merriweather and Tharp. I'm your host, Todd Orton, partner at Merriweather and Tharp. And if you want to read more about us, you can always check us out online@atlantadivorceteam.com or if you want to read transcripts or go back and listen to shows, again, you can find them@divorceteamradio.com. So today I'm doing a deep dive about divorce and basically what I am wanting for this show, I want anyone who listens to the show reads a transcript. I want them to walk away with a deep understanding, a picture in their mind of what divorce looks like, meaning the process. Obviously every divorce is different. I mean maybe you'll settle quickly, maybe you won't. Maybe it will require courtroom effort, maybe not. But you need to understand what a divorce looks like in the first segment I started with pleadings and pleadings are those legal documents that you are filing with the court that start the action. They are things like the answer. They are things like the counterclaim. They are things like the initial petition for divorce. They are documents that establish your position in the case on whatever the issue might be.

(13:05):

And we're going to go into some other types of pleadings like motions that you might file with the court, but I kept them separate because when you're thinking about the divorce process, there are these basic pleadings and then of course there are other things you might need to do to protect yourself to move the case forward, to deal with temporary issues, whatever. But before we get to that, let's talk about something else that I have spent a lot of time in the past talking about, but it is so incredibly important and unfortunately, especially when people are, I'm going to say it two ways, when people are doing things on their own and they unfortunately don't really understand the importance of discovery, and there are plenty of people who hire attorneys and I hear them talk about why do we need to do this? Why do we need to engage in discovery?

(14:09):

But discovery is an integral part of any divorce. Does it mean that you have to spend days and weeks and months engaging in discovery? It doesn't mean that it's not required and it depends on the complexity of the case, but if it takes you five seconds or if it takes you five months to get the answers you need so that you are educated so that you are prepared to engage in settlement negotiations or if you can't settle to present the right facts and evidence to the court so you can accomplish your goals, you need to prioritize discovery.

(14:57):

So again, we've done shows on discovery, but let's talk for a moment about the different types of discovery commonly used in divorce cases. And I'm saying in divorce cases, I mean these are common tools in most if not all legal actions. So number one, notice to produce and production of documents, request for production of documents. That's basically going to be a list where you are asking for documents. Hey, if you have a bank account, please provide me with. And by the way, you don't have to say, Hey, please provide copies of bank statements during this period of time, the last 12 months, the last two years, three years, five years. It just depends. And there are some people who are like five years, that's ridiculous. You may be right, but what if there's an issue in your case about irresponsible spending? What if you're trying to gather information because you think money was taken out of an account three years, five years, seven years before?

(16:14):

Well now it's not that dumb or unreasonable to ask for it. So notice to produce is going to be asking for those documents. The next is interrogatories. That's where you are asking questions, needing written responses. So if you have an issue where you need to figure out the assets in the case, what assets might be controlled by the other party or in the possession of the other party? Let's say it's a bank account. The notice to produce request for production of documents, you're saying, Hey, for any of those accounts, please give me statements. Interrogatories are, Hey, please list any and all bank accounts in your name or in the name of the third party joint with you that you have statements for or whatever that are going to be relevant in this case. Then there's a request for an admission. Request to admit. Request to admit is basically it's not used as much. If there's behavior and you want to lock in some responses, you can do a request to admit, admit that you engaged in this behavior, admit that you did X, Y, Z. Admit that you whatever committed adultery, admit that you use this drug. Admit something and it puts the other side in that position where they have to do one of three things, tell the truth lie, and obviously you shouldn't be doing that or plead the fifth.

(18:06):

So it definitely creates a difficult situation for people because you're locking them into answers that could potentially affect the outcome of the case. Then there's third party discovery where let's say you look at someone and go, Hey, I need some bank records. And they say, I can't get them online, I don't have them. If I do even basic reasonable stuff, I won't be able to get my hands on it. Well, you have the ability to send discovery to third parties like banks. You can go straight to the source and try and get that information. And then finally something again, a tool that's not used as often. Depositions, sort of like a request to admit the purpose of the deposition is to lock someone into an answer. Basically it gives you the ability to put someone under oath and record that conversation and get a transcript of it and ask questions.

(19:20):

Difference with that versus interrogatories or I'm sorry, request to admit is the fact that request to admit you just write the question, admit that you did this and then you're done and you can add some additional follow-up questions there. But whatever is written, that's the scope. Those are your questions. Deposition, you have the ability to have the person under oath in front of you and you can ask questions, Hey, did you do this? Well, you're saying no, but what about this piece of evidence? What about this? What about that? And you can follow up and in essence, cross, cross examine the other side that the party that is being deposed the deponent, lock them into some answers.

(20:13):

Discovery is so, so important. If you don't have information that you need, how can you ensure your settlement is fair? How can you know what to fight for, what to ask a court for? Some courts have mandatory discovery, otherwise you have to request it. And if you don't, you can't later on complain about the fact that the other side didn't give you documents you might need. It means if you didn't ask the question formally, if you didn't file for discovery, you can't then later say, well, I didn't know about that lucrative business contract or hidden assets or whatever the issue might be. I've heard judges look at parties and say, did you ask file discovery? Because I'm looking in the file, I don't see that you asked for discovery.

(21:12):

And if you don't ask, you don't get. Which means you have to make decisions that maybe are based on accurate, good information and maybe not. So please, discovery is probably the most important aspect of a case. Don't ignore it. Don't minimize the importance. Alright? You need to give it the attention that it's due. Alright, when we come back, we're going to keep talking and let's talk about motions. And by that I don't mean dancing, I mean motions. You file in a case. If you're trying to accomplish something, it doesn't just happen. You have to specifically ask the court by filing a motion to do something and we're going to talk about what some of those things are. We'll 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 (22:22):

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.

Speaker 1 (22:36):

Welcome back everyone to Divorce Team Radio, a show sponsored by Merriwether and Farp. I'm your host, Todd Orton. If you want to read more about us, check us out online@atlantadivorceteam.com or if you want to read transcripts or listen to shows, again you can find it@divorceteamradio.com. Also wanted to let you know if you want to listen to the show live, you can listen at 1:00 AM Monday mornings on wsb. Alright, so we're talking about the divorce process, the nuts and bolts from A to Z, everything. And we've talked already about pleadings and that's documents that you file with the court that explain what it is you're trying to accomplish. A petition for divorce. And in that petition you are saying, I'm trying to accomplish a few things. Maybe custody is an issue, parenting time, child support, maybe alimony, maybe division of property and debt. And in Georgia it's a notice pleading requirement in terms of you don't have to go into all the detail, but you have to put the party the other side on notice.

(23:50):

Hey, this is what I'm trying to accomplish here. Some states and you need to make sure you talk to an expert, meaning a professional in your area, in your state if you're listening from outside Georgia to make sure that you understand that you're doing it properly. But there are some states where you have to go into detail. You're not just putting the other side on notice. It is fact-based. You need to actually put some evidence in there. Some you can't just say I want alimony. You need to actually put forth evidence to support that claim.

(24:35):

So we've talked about pleadings, we've talked about discovery. Now let's talk about motions. And basically what am I talking about when I talk about motions? Well, you filed the basic pleading a petition, the other side filed an answer, maybe a counterclaim. Maybe you have already started to exchange discovery requests or made documents and information is now being shared exchanged. Well are you done? I mean, is that all you need to do? And the answer is oftentimes no in very basic cases. But what happens when something not so basic comes up? Well then you need to file a motion within that action. A motion is again a type of pleading where you are looking to the court and you are saying, in order for us to move this case forward, we need some help. And this is the help we are looking for.

(25:52):

And there are a whole bunch of different types of motions you can file. I'm going to go over some of the basic ones. So let's say you know are going to have to deal with you name it, custody, parenting time, child support, and you don't think that it's going to be a very quick resolution. Well then you might have what we call temporary issues that need attention. You may also see a motion where with the use of the word interlocutory means the same thing. So basically you can look to the court, you can file a motion for temporary relief for a temporary hearing where you are saying to the court, judge, we can't wait until the case is just finalized. This could take months and we need to deal with some temporary issues like use of the house, use of cars, payment of bills, temporary alimony, temporary child support, temporary parenting time. Those things don't just happen. You can try and reach an agreement. If you can't reach an agreement, you can look to the court. Court doesn't just magically deal with the issues. You need to file a motion.

(27:18):

Now if some of those temporary issues, if some of them are taking on more of an emergency kind of feel, it's not a matter of you want help, you need help, behavioral issues, whatever the other side locks you out of accounts, you have no access to money. Well, the temporary issues could rise to the level of emergency issues. It's kind of a temporary on steroids and the court could prioritize your case, but you have to, again, it doesn't just happen. You have to file a motion with the court where you explain, hey, here are some of these temporary and emergency issues. There's behavior that we need to address. There is access to funds or other issues that judge if you don't basically address this as quickly as possible, then harm could befall me or the children or whomever, but we need your help Now then there's a motion to compel.

(28:39):

Motion to compel has to do with discovery. Remember we talked about discovery is so important. Well what if the other side thumbs their nose at your requests? Then you need to be able to get the court to do what it needs to do to force the issue of compliance with the discovery request. Motion to compel, you are asking the court to compel, to force the other side to respond appropriately to fully respond and disclose whatever the information is that you have asked for. Well, what happens if you get a temporary order case is pending. I'm not talking about post-judgment after the case is finalized. I'm talking about the case is pending. You've got a temporary order, it said that you're supposed to get a thousand dollars a month in support. Month one goes by, you don't get anything. Well then you can file a motion for contempt where you are looking to the court to sanction the other side force compliance and deal with other issues like, Hey judge, I had to incur a whole bunch of legal fees to deal with this non-compliance.

(29:54):

What if you need, let's say there's a child or children, what if you need a guardian ad litem that is somebody who is appointed by the court to do what the judge can't, which is to perform an investigation and then offer an opinion to the court relating to custody and parenting time. There are people, we call them gals or guardians, ad litem and an appointed guardian ad litem is going to do exactly what I just said. They're going to be able to investigate, talk to you, talk to the other parent, talk to children, talk to witnesses. They do not make a decision. What they do is then they will say, okay, based on my investigation, this is what I'm thinking and I'm going to make this opinion known to the court. The court does not need to accept the opinion of the guardian, but oftentimes they do, as long as the guardian has done a good job, a thorough investigation.

(31:00):

And then finally the last one I'll talk about in this show, what if you need other experts to get involved? How about motions for evaluations? If you are concerned about the other side's behavior, psychological issues, you can file a motion for psychological evaluation. And by the way, remember any motion you file, the other side gets to respond. You don't just ask for it and get it. I've had situations where let's say the other side filed a motion for something and we fight it. I want a psychological drug and alcohol evaluation of the other party of my client and there's no history of drug use, no history of alcohol use, and the only person who ever was diagnosed with something is the other party. So we can basically fight that demand, that request, that motion. But if you need psychological evaluation, then you file a motion business asset valuations, drug and alcohol custody evaluation.

(32:16):

So those things don't just happen. So you need to better understand if you are looking to accomplish goals, accomplish things in the divorce case, it doesn't just happen. You ask for information, engage in discovery, and you can try and work things out. You can try and hey, I think we need to do some psychological evaluations oftentimes to try and get that push through. You say, look, I'll submit or my client will submit to the same evaluation. That's fine, we'll make it mutual. But you need to ask the court for this help. And that's what motions do. So you need to understand the different types, understand therefore the issues in your case and how you can then look to the court for help through the filing of these motions. Alright, when we come back, let's talk about a couple of other things that I want to talk about settlement efforts and litigation. We'll be right back.

Speaker 2 (33:26):

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.

Speaker 1 (33:37):

Better than counting sheep I guess, right? That's right. You can turn on the show and we'll help you fall asleep.

Speaker 2 (33:44):

There you go, I'll talk very

Speaker 3 (33:45):

Soft.

Speaker 1 (33:49):

Welcome back everyone. I'm Todd. And this is Divorce Team Radio, a show sponsored by the divorce and family law firm of Merriwether and fart. If you want to read more about us, check us out online@atlantadivorceteam.com. Or if you want to read transcripts, listen to shows divorce team radio.com. Alright, we're talking about the divorce process. What does a divorce look like? What are the different components of a divorce? We talked about pleadings, we talked about the importance, the vital importance of discovery. We talked about motions. You can file, you're trying to accomplish certain things. They don't just happen. You have to actually ask the court to do those things if you can't reach an agreement.

(34:39):

So now let's talk about settlement efforts and litigation. So settlement efforts, I've talked about this before at Merriweather and Tharp. We are a resolution focused firm. What does that mean? Well, very, very basically I will say this, we always have an eye towards settlement. We're always open to have that conversation. Does it mean every case settles? No. Does it mean if the other side just demands or requests something that we're just going to give them what they're demanding? Of course not. Part of our job is to identify the issues, gather evidence relating to those issues and figure out what is going to be fair, what would be a fair settlement, what would be a fair resolution on all of those issues. Sometimes a lot of times we reach an agreement. Sometimes it takes more work. Sometimes unfortunately nothing that we can do outside of court is going to get us where we need to be, but we are always open to the discussion.

(35:55):

I've had cases, and I've talked about this before, had a case once where literally, and this has happened numerous times, this one was the, let's put it this way, five day trial is what I was staring down the barrel of. My client was looking at a complex five day trial. Opposing counsel literally walks into court and I walk up and I say, well, we're ready for trial, you're ready for trial. Are there any issues we can talk about to at least narrow down the issues? I understand your client is taking a strong position on something, but is there anything we can do to at least narrow down the issues that resulted in conversation? The judge gave us time and we took almost a full day and resolved probably 95% of the issues. And what was a five day trial was now basically a half day to deal with the one last unresolved issue.

(37:06):

So basically what I'm trying to say is settlement. You should always be thinking, is settlement possible? Is there an opening open door to basically engage in that conversation and try and avoid litigation? But remember, everything is connected. Are you going to be able to settle if you haven't gathered the right information and engaged in discovery? Probably not. Or at least you're not going to reach an agreement. That's fair. So once you've gathered the information, what are some different types of settlement efforts? Well number one, letter offers being sent back and forth. Identify the issues, gather some information, send a written letter saying this is what we are proposing. Oftentimes they are a little less detailed than what would ultimately go into the agreement. So you have to try and get as much detail into that letter as possible. Then that letter, if the other side writes back, it says, yes, we will accept those terms done. You take those terms and you flesh it out, put it into a settlement agreement that both parties can sign off on or you can jump right to drafting a proposed settlement agreement and other supporting settlement documents like a parenting plan order, child support addendum.

(38:43):

Then you know you're going to add all the necessary detail. Those documents will have the detail you need. It is always imperative. And this goes whether you are working with an attorney or doing it on your own. Make sure you are thinking the issues through that. You are not just saying, well, okay, here's a basic form I found and I'm just going to go, I'll sign this. You sign that. That's how people get into trouble because they didn't get the protectionary language that they needed into the agreement. But again, without going into all that detail, we can draft a settlement agreement. If you basically try letters go back and forth, maybe you propose a document like a settlement agreement. It doesn't work. Alright, you've all heard of mediation. I've done shows on mediation. The use of a third party neutral to step in and say, okay, I don't represent either party. I am unbiased.

(40:01):

And you can present things to the mediator who's then going to be that intermediary going back and forth to try and get you to an agreement. Once that happens, you have a memo of understanding, you can put that in writing. In some situations the attorneys will sit there and literally draft up all those final documents. Another tool would be a late case evaluation without going into all the detail. That's a settlement tool that can really help you analyze your case and make sure you're taking some good positions. Hey, this is what we're thinking. And then that person can step in and just offer an opinion and say, if you go in front of this judge, I think this is what's going to happen. There are also judicially hosted settlement conferences, which is like mediation, but using a judge, someone who has actually worn the robe, has done it for years and can really look at the parties and go do what you want in essence. But this is how I would handle this. So you may want to expect that this is the way it's going to get handled if you present it to the judge.

(41:18):

So let's say that doesn't work and you have to litigate. What do I mean by litigation? That's the court work. Those are the efforts where you are going in front of the judge. We've already talked about hearings. You might need a temporary hearing, an emergency hearing. Some of those motions that you file may require a court appearance. There may be the need for oral argument where the court gives both parties the ability to say their peace, make their arguments to the court, and then the court will issue a ruling. The more prepared you are, of course, the better you walk into court and you're not prepared. Then they're going to be looking at you like, well this is what we can expect at the final trial and hearings. Okay, I think I'll take my chances. They may be less likely to want to settle and resolve the case because they feel, Hey, if I walk into court, I think I'm going to be more prepared. So the more prepared you are, the better. Show that you're ready, show you, understand the process, show you understand the law, what reasonable should look like. You need to identify your exhibits and the evidence that you collected through the discovery process. Also important, don't miss court. If you miss court, you don't just get to come up with an excuse. I don't care how valid it is.

(42:56):

Sorry judge, I had a tummy ache. Sorry judge, the dog ate my court notice. That's not going to work. Verify the date, verify the time, verify is it in person, is it zoom? Verify all of that because if you have to go to court, please go to court, make sure you're there. And if you're working with an attorney, don't wait until the day before that hearing to start working with your attorney to prepare. Spend the time, make sure you are engaged in conversation with your attorney. Make sure that you are preparing. Also, make sure that you're taking reasonable positions. You don't want to fight the wrong fight and walk away with nothing but a large amount of legal fees. That does happen. So again, in terms of a case, if settlement, if everything has failed, then litigation. And there are ways to do it properly and there are ways that can almost guarantee you are going to walk away unhappy at some point because more than likely you weren't prepared. And it's going to show in the ruling of the court. Alright, well hopefully, like I promised at the beginning, hopefully this painted a good picture for you.

(44:26):

I hope the information helps. Thanks so much for listening.