How and When Should You File For Divorce

Start your divorce the wrong way and it could put you at a serious disadvantage. You must consider how and when to file your divorce in order to protect your finances and custody rights. In this episode of Divorce Team Radio Todd Orston, Partner at the Divorce and Family law firm of Meriwether &Tharp, LLC, shares his thoughts about issues like timing, methods of service, and the strategic consequences of your decisions.

Todd Orston:

Welcome everyone to Divorce Team Radio, 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 atlantadivorceteam.com. Okay, let's get started. So I talk to people every day, I mean new people, clients, but new people who are seeking help trying to get answers to questions. And while every case is factually unique, there are obviously similarities, and there is one thing that is very similar and one thing that happens quite often, and it's a question. It's a question that I get all the time from people, and it's a simple question that does not have a simple answer because there are a lot of things that you need to think about.

There are a lot of things that you need to consider when you are, A, asking the question, and obviously, from my point of view, when you're giving an answer. And the question is, when should I file? When should I file? If you're about to go forward, unfortunately, with a divorce action, if you have to modify existing terms, if you need to file some kind of a contempt action because there is a compliance issue. When should I file the legal action? It sounds simple, and to a certain degree it is, but again, the reason why I want to do a deep dive, we've brought this up in other shows, the reason I want to do a deep dive is because, as simple as the question seems, it's actually not that simple because there are practical considerations, there are strategic considerations, there are emotional considerations, there are considerations that will relate directly to the case. There are considerations that won't but could heavily impact you, and your mental health, and children.

So it is a really, really important question because there are going to be cases where the answer is tomorrow, today, yesterday, you need to file, and there are going to be times where it's like, well, hold on, are you ready to file? Is this the right time to file? And that's where professionals can jump in and can talk to you and hopefully give you the direction that you need to answer that question for yourself. Because at the end of the day, you need to remember this is your life, it would be your case, and it is not for anyone to tell you when to file, especially a divorce. That's an incredibly personal decision that you need to make. You didn't come to me or to any other professional to decide when it was time to enter into the marriage. Therefore, it's not for any attorney to tell you when it's time to end the marriage.

But, of course, factually speaking, sometimes it has to happen, right? There might be issues in the relationship. I mean, sometimes people just drift apart, but other times there are bigger issues at play. Adultery, abuse, if you are in danger, kids are not safe. If someone is threatening to leave with children, if someone is racing through the marital assets and just spending irresponsibly, if there are things that need to be stopped, then, of course, that could affect your timetable, and that's where the professional can step in. When I talk to people and they ask that question, I will say exactly what I'm saying right now. I can't tell you when the right time is, but if you have gotten answers to your questions, if you have identified some of the emergency issues that are present, and now that you have that understanding, if you think that now is the right time, I'll tell you if I don't agree, but otherwise, yeah, then now is the right time, and we will come up strategically speaking with the best way to go about starting the case, and that's a different conversation.

In other words, have the person served by a sheriff deputy or do it in a kinder, gentler way that hopefully brings them closer to a settlement table rather than pushing them farther away. So it's a personal question, but there are strategic considerations if there are these emergency issues that you need to deal with. And so we're going to talk in this show. I'm going to talk about that question in relation to different types of legal actions. I want to talk about the question of when should I file as it relates to divorces. I want to answer that question as it relates to modification actions. And a modification action can include, of course, custody issues, parenting time issues, child support, and even alimony. Now, here in Georgia, modification of division of property is not permitted. So even if you wake up one day and you're like, my spouse just won four lotteries in a row, and I have some debt that I was responsible for, but I'm going to go after them for some more, you can't do it. You can't go after those assets. Once it's done, it's done.

But there are alimony issues, there are support issues, financial issues that do come up that you can look to a court to try and modify. Then there's contempt actions which are compliance issues. Is the other party complying with the terms of an existing order? When should I file? And we're going to go into that. And then finally, legitimation. Legitimation actions filed by a father for a child born out of wedlock. In Georgia, if a child is born out of wedlock, it's unfortunate, but even though the father has signed a birth certificate, even though the father may have signed other documentation, put their name onto a birth certificate, and signed a document that some hospitals will give an acknowledgement of paternity, that is not a formal legitimation, that does not create a legal relationship. So I want to answer the question of when should I file as it relates to legitimation.

So there are in each of these going to be reasons to file immediately and reasons, strategic reasons, to say, you know what, hold on one second, let me wait. Maybe I won't file today, maybe tomorrow, maybe a week or a month or whatever from now, but let me slow down, analyze the problem, analyze the issues that are present, and then make that intelligent, educated decision to file so that hopefully you do file and you are in the best strategic position possible. I have seen people not take certain steps to make sure they're doing things the right way. They race to court, they file, but they're not prepared. They didn't ask the right questions of themselves or of a professional. They didn't think about what are you trying to accomplish. Obviously, a divorce is the ending of the marriage, but we all know it doesn't stop there. It's not just about the divorce.

The divorce is going to include property issues, support issues, if there are kids, custody and parenting time issues. So, are you prepared to deal with those issues? Do you know, and I don't mean specifically like all of the terms, I'm not saying before you file, you must know everything you're asking for and everything you're going to ask the other party to do, but do you have an idea if primary custody is something that you want? Do you have any documents, information, or evidence that will support that? If you're going to be asking for child support or you're going to be paying child support before you jump in and start fighting over what the amount should be, do you have an idea as to what would be a reasonable amount out? So we're going to go into all those things when we come back, all right. And so at the end of the break, when we come back, I'm going to discuss the question of when should I file as it relates to a divorce.

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 softly. Welcome back, everyone. I'm Todd, and this is Divorce Team Radio, 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 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. All right, so now let's get more specific. We're talking about that question, when should I file? All right, well, now we're going to talk specifically to divorce actions. As I said before, it's a very personal decision. It's not a decision for anyone, any professional, friend, family member to make. This is your decision and your decision alone, and I'm sorry if you have to make it or feel like you're in a position where you have to make it, but once you get to the point where you know that that's where things are heading, then the question comes up, obviously. When do I file?

Well, there are going to be cases, as I was saying before, where you may need to run to court and file, but strategically, maybe that's smart, maybe not. So you need to think about those things. You need to think about, for instance, are there some urgent emergency-type factors that would cause you to need to file immediately? We've dealt with all of them. Are there safety concerns? Is there abuse, verbal abuse, emotional abuse, financial abuse, physical abuse? Are there addiction issues, mental health issues, relocation issues, access to children issues? All of those types of behaviors could basically affect a decision as to when do I file. If you've been cut off from money, if you've been cut off from the children, if you have safety concerns, your safety is in question. Safety of children is in question. Well, obviously, no one should be looking at you saying, you know what? Give it a month or two, let's play this one out. Let's see how things work out. No, you need to get protection immediately, but again, that's a strategic decision.

You've considered those factors, and you are then deciding, okay, well, I know I need help, I need it now and so I'm not going to wait until someone gets hurt, or if I'm not seeing my children, that my relationship with the kids is damaged simply because I haven't had contact for such a long time. So obviously, the moment you file and get the other party served, there's some security, some safety, knowing that you can always look to the court for help. So until you file, there is no judge waiting in the wings, ready to just swing the magic gavel and help you. So obviously, the thought that, well, I'm going to file, so I'm immediately getting help, it doesn't really play out that way. It could sometimes take weeks or even months to get in front of a judge if you need help. But those are emergency issues, and what we're talking about is why would you want to file now, immediately, versus just wait and I don't mean wait months, I don't mean wait years. I mean, wait until you are prepared.

There are those safety concerns to file immediately. You may need to even file just to set the tone. You know you're going through this. If you are in a relationship with someone and the other party is very controlling, possibly abusive, probably all of the above, then, A, there's probably other issues like access to finances, interference with the children, or other issues, abuse issues that could pressure you or push you to file immediately. But sometimes when you're dealing with those types of personalities, you need to just get in there, file, and what you're doing is you're regaining some of that control, some of that power that they have consistently tried to strip away from you, all right? So that could be a reason, but if there is no urgent need to file immediately, then oftentimes I will say don't, all right? We at Meriwether & Tharp, we are what we call a resolution-focused firm.

Now, what does that mean? Does that mean we are afraid of the fight? No. What it means is that we're not going to drag our clients unnecessarily into litigation, and there are ways to try and promote settlement, and there are ways that unfortunately lead the parties down that path of litigation. You want to get started, next thing you know, your spouse is at their place of employment, and a sheriff deputy walks in, calls the name. Your spouse is called to the front and handed the documents by a sheriff deputy, you think that's going to make them happy? You think that's going to make them want to discuss terms of a divorce or at least take reasonable positions when they do discuss it?

So strategically, what are you trying to accomplish? What protection do you need? So you may want to, if there's no emergency, slow down and think about what you're trying to accomplish. We break things down into, and we've gone over this in shows, the four core areas of a divorce. Determine which of the core areas apply. Are there going to be custody issues? Is there going to be a child support issue, alimony issues, division of property, and debt? Then think about what are you trying to accomplish as it relates to each of them? Are you looking for primary physical custody? Do you have access to the assets? Do you need to get information about them? Are you looking for that 50/50 split? Are you going to need alimony? Are you going to be paying child support or receiving child support? All of these are factors that you need to be thinking about, and once you understand which ones of the core issues apply, then you can start digging down.

Then you can start to build on, okay, well, I know custody applies, so we have to deal with physical custody and legal custody, and we have to do [inaudible 00:19:13]. So by doing that, then if there's no emergency issue, getting back on track and talking about when should I file? Then you can start to think in terms of, okay, now I understand what I'm trying to accomplish. I'd like this to be an amicable situation. There are no emergencies. Now I'm ready. I will file and I will discuss this, or I'll have my attorney discuss with my spouse, and hopefully we can keep things calm, but now that I have filed, it may trigger negative behavior if it triggers negative behavior. Are you prepared? Absolutely. Now you're very prepared because you've done that work, you have identified the issues, you've gathered some information. Am I saying you need to have all your evidence before you file? No.

Should you be doing a little bit of the work necessary to identify the issues and basically be prepared? Yeah, absolutely. Now that could take a day, a week, it could take a month. I've had people come and say, "I'm not ready, and I think we're going to go ahead and move forward in about four to five months, but I want to be prepared." I know it's going to happen, so let's start working through the four core, let's start working on what I should, meaning the client should be gathering in terms of information, and that way, when it's time to file, I am ready.

So when it comes to the question, when should I file? Again, it's not a simple question, it's a question you need to ask yourself, and, of course, we can help for you to make that decision, but if there are no emergencies, then just be prepared, prepare accordingly. That way, when you file, because once you file, that's going to trigger a reaction. The reaction could be, I mean, I'm not going to sit here and say positive, but it could be the difference between negative and really negative. And so, by preparing, it puts you in the position where you are ready for anything you can respond however you need to respond. Okay, after the break, we're now going to switch things to another area, another type of case, and I'm going to start talking about that question of when should I file in relation to modification action.

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. I'm Todd, and this is Divorce Team Radio, sponsored by the divorce and family law firm of Meriwether & Tharp. All right, so what we're talking about is that very basic initial question of when should I file? And by that, I mean, when should I file the legal action? And I talked about that in general terms. We've talked about divorce. Now let's talk about modifications. And as I said, modifications are actions to modify or change terms of an existing court order. So a court order has been entered, let's say, in the context of a divorce, and that divorce order included terms relating to custody, or child support, or alimony, but something material has happened since then that affects basically your ability to comply and would, legally speaking, warrant modification, warrant a change of those terms. It's not easy to do because courts naturally want you to comply with the terms of an existing order, but the law also takes into account that sometimes life happens and you can't control it.

Something happens, and what was good on Monday, maybe on Friday, is not good anymore. What you could comply with or what should have been something that lasted for years in terms of terms of the agreement, what was good at this point, something has happened, and it's just not reasonable. You can't comply. It wouldn't be healthy for either the parties, one of the parties, or children. So a modification, it can impact custody and parenting time issues, child support, alimony. As I said before, in Georgia, you can't modify equitable division. So you have to show a change of circumstance to justify it. So now let's bring it back. When should I file? Is it a simple question? Not really. All right, there are going to be situations where you need to race to court and file yesterday. I understand time travel and all that can be difficult, but as soon as possible, you need to file. But there are going to be times where you need to sort of slow down and make sure you have information necessary to justify that modification.

The last thing you want to do is file, but you're not prepared, and the other side then starts to act, and your case gets very difficult at that point because remember, what you're doing is you're saying to the court, I know my ex, I know the other party isn't going to like this, but what I was paying, I need to pay less, or what they were paying, I need them to pay more, or these are the terms relating to custody, and I want to take more time, or I want to take primary custody, or I want them to have just less time for different reasons. So a modification as opposed to a divorce, and divorce can, of course, get very contentious, modifications can get very contentious because what you thought was done, over and done with, isn't.

And here you are back in court, fighting about issues that you thought were resolved. So that can trigger people, and don't get me wrong, it is a necessary tool. What I'm saying is, you need to be prepared. So before you file, there are things to think about, and like I said, there are going to be times where you need to race to court, you need to do it, but there are also going to be times where slow down, think about what you're trying to accomplish and what your goals are, and then you can start, you're working backwards, then you can start to sort of say, okay, well, if I want to modify and I need to show a change of circumstance, and this is what I'm looking to accomplish, what evidence do I have? Do I have a case? This is not a shoot-from-the-hip kind of situation where you just think about it and you do it.

Because in a divorce case, I can tell you one thing, you're going to get a divorce. If you go in prepared, unprepared, it may affect the terms of the divorce order, but ultimately you're going to get that divorce. In a modification case, it's not that simple. If you don't have a case, if you go in unprepared, if you don't gather and present the right information, you're going to lose, and that could open you up to legal fees. So again, it's not a race to the court. It's unlikely the opposing party is going to initiate first, right? I mean, we already talked about it, it really shouldn't be a consideration. I want to be the plaintiff, need to be the plaintiff. There's a benefit there, but in a modification, it's you saying something's changed and I need to change the order. The other party probably isn't thinking the same thing. It does happen. So it's not a matter of racing to court, and the court's going to be like, well, that party filed first.

There are times, though, I have to say this, there are times where you do need to file, and it might look better if you file to modify, usually as it relates to custody issues where if it's that important, instead of allowing for the other party to file a contempt, go ahead and move forward with the modification. And what you're stating to the court, at least, is the way I think of it. You're stating to the court, this is very important, and I know there's some compliance concerns and some other issues, but judge, we need help. But that goes right to the heart of are there emergency issues that could affect timing, timing to file.

If there are no emergency issues, children aren't in danger, all right, the other party just isn't exercising their parenting time, the kids are struggling with that, and you need to just get some kind of a new order in place or on the financial side, if there are emergency issues, were you ordered to pay X but that was based on, let's say, child support, that was based on a certain income. Well, if you have some big payments coming up, especially if it's not just your child support. Let's say there's private school tuition and the payment's not due yet, but if things have happened, I can tell you right now I've seen people get in trouble because they have these obligations and they wait and they wait and they wait. And the problem is those debts, those responsibilities don't go away. They turn into debts that the court cannot and will not forgive.

So let's deal with it very quickly. If there are no emergency issues, then do you just race to court? No. Make sure you have a case. Back into your goals. What are you trying to accomplish? ID the issues, gather information to support your case. Are there witnesses? Gather some affidavits. Do you need records? Get them. Talk to a professional. Do you have a strong case or any case? Child support and alimony is similar, these are financial considerations. Has there been a change, lost income, increased income, higher costs? So if there's lost income, you probably need to file quickly. The only time I would say no is I've had people come to me and say, "I lost my job." Wow, okay, we definitely need to deal with this, and we'll jump in and we'll do it. Are you applying for another job? "Oh, I've already got another job."

Well, I'm sorry, what do you mean? "Well, yeah, I've already applied, and my severance will run out in a month, and I have a new job." Paying a lot less? "No, no, no. Probably a little more." Okay, well, there is no case here. So you need to think of it in those terms. If it's lost income and it's not going to be replaced quickly, you need to file quickly and understand that when you don't pay these amounts, it's not just the unpaid amount. There's also interest accruing. I've seen people wait long periods of time, and the interest is even more than the underlying amount. It could be tens of thousands of dollars, not to mention potential sanctions. So when do you file? If it's something where you are paying, I usually say to people, if you've suffered a change, then we need to act quickly.

That may mean file today, tomorrow, or a week or a month from now, but we need to do something quickly so at least the court can then jump in and start to help you. If there is no financial gun to your head, then you may want to just wait, gather the information, make sure you have the strongest case possible going in, and that will hopefully lead you towards a quick resolution because the other party will see you have all that evidence and there's not really much to fight about. All right, we're heading into another break. When we come back, I'm going to consider the question of when should I file in relation to contempt actions and legitimation. 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.

Todd Orston:

I'll talk very softly. Welcome back. I'm Todd, and this is Divorce Team Radio, sponsored by the divorce and family law firm of Meriwether & Tharp. All right, so we're, in the show, we're talking about the question of when should I file. I want to hit two other types of cases, so I'm going to get through this intro very quickly because I want to jump in and get everything done in this segment. All right, so we're going to deal with contempt actions, which are compliance issues and legitimation, and that's the establishment of the legal relationship between a father and a child born out of wedlock. Let's start with contempt actions. Again, it's compliance issues. The court order said to do X, you either didn't do X, or the other party's not doing X and that's not acceptable. Either the other party is going to file a contempt against you and you have to defend, or you have to bring something against the party who's not complying.

So it can relate to any aspect of a court order, financial issues, custody, parenting time, support payments. And again, and I've said this several times in terms of timing and when should you file, do you have the information? Because in a contempt case, first of all, you want to get the other party back into compliance as soon as possible because, remember, that's what we're talking about. I'm not so much talking about the response of the person not in compliance. We are talking about when should you, if the facts warrant it, file a contempt action because of a non-compliance issue.

So sometimes, again, there might be issues if the contempt is the other party is withholding the kids or is disparaging me to the children, it's affecting a relationship, then you need to file as soon as possible. Anyway, I've seen bad situations, and I've seen people wait and wait and wait and pull an ostrich maneuver and head in the sand. I don't know, I've never actually seen them put their heads in the sand, but I'll watch that video afterwards. But they put their head in the sand, and then they wake up one, two, three, four, five years later, and they're kind of surprised that the relationship between them and a child or children has soured to the point where they really don't have a relationship anymore.

So if there's an emergent issue, then, of course. If it's affecting your relationship with kids, you need to deal with it immediately. If the other children, if there's safety concerns, you need to deal with it immediately. On the financial side, if the other party is not paying you, more than likely you need to file immediately. Now, by not filing immediately, does that mean you are waiving any right to claim those unpaid amounts? No, not at all. As a matter of fact, technically speaking, interest is accruing. The other party probably should modify quickly, but you may want to just make sure you have your ducks in a row. There's a shock-and-awe kind of thought process. At least, this is the way I look at it. If you go in and you're like contempt, you didn't pay. Well, that's worrying, I get it.

But if you go in instead and you spent the last month putting together a spreadsheet that shows all the payments that were supposed to be made and all the payments that were missing, and here's the bank records to support it, and you can say to the dime, to the penny, this is how much you owe in back support. That's powerful. That's not a general, Hey, you owe me. That's a here it is in black and white. You did not do these things. And, by the way, I didn't race to court. In those situations, it is probably a very good idea. Send the proverbial shot across the bow, send a demand letter, send some emails, and I don't mean 50, but send some. If you communicate via email, great. Even a text or two where you're like, Hey, listen, I don't know what's going on, but I know you have maybe some financial issues, but so do I. And I have bills to pay and kids to take care of, or whatever the case is, I need help. So you haven't paid, can you please catch up?

Courts like that. Courts will then say, wow, this party, this person, did everything they could to avoid having to go to court. So do you just race to court and file? Oftentimes, unless there's an emergency issue again, then no. It doesn't mean a big delay. Just means get your ducks in a row. Organize the information, make sure. The other issue is there are some people who will come and they'll be like, "I need to file a contempt." All right, what happened? "Well, interference with my parenting time." Okay, that's serious. Let's talk about it. What happened? "I was supposed to have a phone call yesterday, and they didn't let me talk to my child yesterday." Okay, all right, what else? "No, that's it." All right, well, probably don't want to go to court and file a contempt based on that one thing.

Strategically, probably not smart. The court's going to look, the most the court's going to do is verbally remind the other party, hey, if it's her time to talk or his time to talk, make sure it happens. You probably are better to gather up other violations, put the other party on notice in writing. Hey, this happened yesterday. Can't happen again. Please work with me. I appreciate it. Thank you very much. Not threats of I'll take you to court. And no, you don't need to make those threats until you get to the point where it's like you've given me no choice. So identify the issues, figure out what your goal is. Your goal here is compliance, and give them the opportunity to fix their issue in terms of compliance. And if there is a pattern, then you know the time is now and organize your thoughts, organize the information. You don't want this to be a six, eight, 10, 12 month kind of case.

How do you avoid that? Organize your stuff, get it over to them once you file. And then it's like, What are we fighting over? Here it is: you're not in compliance. So now let's talk how we're going to settle this, how we're going to resolve it. If you need a hearing, so be it. So that's contempt. As it relates to legitimation. And again, that is the creation of an establishment of that legal relationship. There's already a biological relationship, a legal relationship between the father and the child born out of wedlock. I will say that most of the time, it is important act immediately. To be honest with you, anyone who's listening that thinks that or that is in that situation, I am telling you right now, I don't care. I hope, actually, I hope the relationship between you and the mother is strong. I hope that you get along. I hope you're together, right? And at some point, marriage is a possibility or probability. That's great.

But even then, and especially then, you should have a conversation with the mom and say, Hey, look, either let's get married or let's just do a legitimation thing, and then that way it's done. We don't have to worry about it because until you do, I'll sometimes say to people, until you legitimate, I've said to people, I have as much legal right to your children as you do. It's weird, I know. I'm not fighting for legal rights of other people's children, but the point is, until you establish that legal relationship, you have no rights, and the mother can do whatever they want. It doesn't mean that the mom may not have to answer for some bad behavior. If a mom unnecessarily prevents a father from having any contact, at some point the father will legitimate. At some point, custody issues will come up, and at some point, the judge is going to look and go, mom, what the heck?

I mean, you guys didn't get along, but you didn't need to basically cut the father out of the child's life. But the point is that it is better to act quickly with a legitimation. Usually, there are no reasons why you should wait.

All right, so I wanted to let you know. Thank you very much for listening. If you ever want to listen to the show live, you can listen at 1:00 AM on Monday mornings on WSB. And if you want to read more about us, you can always check us out online at atlantadivorceteam.com and get transcripts of this and other shows at divorceteamradio.com. Hey, everyone, we're out of time. Thanks so much for listening.