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Episode 75- How to Prepare for a Temporary Hearing

Episode 75 - How to Prepare for A Temporary Hearing Image

11/20/2018 9:25 am

This Episode is the second part to our 2 part show on Temporary Hearings. This episode gets into the practical aspects of the actual preparation for a Temporary Hearing. By getting properly prepared, you not only improve your chances of a favorable outcome at Court, but you also increase the likelihood that you will be able to settle your temporary issues. If you can settle the temporary issues in your divorce or family law case, you can then avoid a hearing and reduce your over all attorney's fees.

Transcript

Leh Meriwether:              Todd, we're back again to talk about temporary hearings.

Todd Orston:                     I'm sorry. I mean, yes!

Leh Meriwether:              Well, in truth, we hope that people never have to go through temporary hearings. We do everything we can to try to settle the case, come up with a temporary order that everybody can work with while we try to resolve the case, but sometimes, you can't avoid them.

Todd Orston:                     Nope. I mean we say this all the time. We hope you don't have to go through a divorce. If you do, then we try to do it with as little litigation, meaning courtroom litigation, as possible. We want to settle, but I also say this all the time, you want to have, by your side, an attorney and or a firm that, while they don't want to push you into court, they're not afraid of court.

Leh Meriwether:              Exactly.

Todd Orston:                     I find that that's who we are. The analogy I sometimes use is the emergency room doctor. I have friends who are ER doctors. They don't wake up hoping that somebody gets into a bad car accident, or gets shot, but if it happens, and somebody is suddenly sitting on a bed in front of them, they're prepared.

Leh Meriwether:              Yup, and you're glad they're there.

Todd Orston:                     That's right.

Leh Meriwether:              Even if it's at one in the morning.

Todd Orston:                     That's right.

Leh Meriwether:              Hey, welcome everyone. I'm Leh Meriwether, and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether and Tharp, and you're listening to Meriwether and Tharp Radio, on the new Talk 106.7. Here, you'll learn about divorce, family law, occasionally tips on how to save your marriage, if it's in the middle of a crisis, and, from time to time, even tips on how to take your marriage to the next level. If you want to learn more about us, you can always call or visit us online at AtlantaDivorceTeam.com.

Leh Meriwether:              Now, last week, we talked about what to expect, and what not to expect, at a temporary hearing, 'cause we find that when people know what to expect, what not to expect, there's a level of anxiety that goes down, and when you get the anxiety level to go down, then you can actually think a little bit better. So that's one of the goals of these two shows, is for those that are going through a family law matter, wherever you may be, to take this information, be more prepared, and bring that anxiety level down so that, hopefully, you can resolve it, and if not, you're prepared, when you go into the courtroom.

Todd Orston:                     Yeah, by educating yourself, and setting reasonable expectations, anxiety levels go down. I can't tell you how many times I've spoken with somebody on the phone. We have a hearing coming up, we will spend time talking about what to expect, what not to expect, the duration, the cost, all of that. At the end of that conversation, they'll be like, "You know what, thank you so much. I can breathe again. At least I know what it's gonna be like, walking into court, and what I can expect.

Leh Meriwether:              Yup. So today, we're gonna talk about specifically how to prepare for a temporary hearing, and as I ... the same caveat I gave last week I'm gonna give this week. This isn't gonna cover every single situation. In fact, this is general in nature. A lot of these things are common to just about every single case. But after you listen to this, you'll want to talk to your lawyer on your specific case, to make sure that there's nothing else you're missing, or that you have the right checklist to prepare for your temporary hearing.

Todd Orston:                     Yeah, especially if you are in a jurisdiction outside of Georgia, because a lot of this information will probably apply, but if you're listening, you're not in Georgia, absolutely, you need to speak to an expert, speak to an attorney in your jurisdiction where you live, because there are differences, end of story. There are differences. We went into this in the last show, from court to court, here in Georgia. There are some judges who will give you two days, if you ask for it nicely, and even if you don't ask nicely. They'll give you as much time as you need, and there are some judges who say you have 30 minutes. That's it, and literally, I have seen judges where somebody, let's say they had 15 of the 30 minutes, and the attorney gets to 14 minutes and 59 seconds, click, gets to 15, and the judge goes-

Leh Meriwether:              [crosstalk 00:04:26] thank you very much!

Todd Orston:                     - sit down, thank you, you're done. "Uh, but Judge, I need to-"

Todd Orston:                     "No, you need to sit down."

Leh Meriwether:              Yeah.

Todd Orston:                     All right, so ... but it just depends, from judge to judge, county to county, so the same applies, if you're in another state, like Florida, like anywhere. The courts there are gonna handle things a little bit differently, but a lot of the information we're going into is general, and I think it will apply anywhere.

Leh Meriwether:              So let's start with most states, and maybe all states, I just haven't done an exact audit of every single state, but most states have a requirement that certain documents be filled out and either filed with the court, or turned over to the other side several days before a temporary hearing, and it varies from state to state, and jurisdiction to jurisdiction. Gosh, even county to county, sometimes, because sometimes they have standing orders that say you need to go a little bit beyond what we call the uniform superior court rules. They're not supposed to, but they kind of do. But I'll stop there, before I get into any trouble with any judges, but what we've got here is there is ... like here's a common one. We call it a domestic relations financial affidavit. It's called something slightly different in different jurisdictions, but essentially it's a statement of your assets, and your liabilities, and your monthly budget. So I'm oversimplifying, but that's what it is, and there's a requirement that that be exchanged, before a temporary hearing.

Todd Orston:                     And let me make a comment, based on the need to exchange before the hearing actually occurs. Take that very seriously, because different courts have different rules, but for the most part, there are some courts where if you do not comply with that rule, if you fail to turn certain information over, you may be prohibited from using that information, and if you are, let's say, a party who requires support, and you have a requirement to turn over a financial affidavit, and you fail to do so, you could walk in, and your attorney pulls out the affidavit that they prepared the day before, and haven't turned over yet, and there's an objection, and you may be prohibited from using that, which means you really can't establish a need for support, and that could, again, this is a temporary. That could impact you for months.

Leh Meriwether:              Right, or, what's often ... I think I see what happens most of the time. The judge, before the case even starts, everybody, you spend all this time, you get ready, you show up to court, and you say, "Judge, we're ready to go," and the other side says, "Judge, we're asking for a continuance. They haven't turned over the requirements, the documents that are required, under the rules, and we need a continuance," and 99% of the time, maybe it's 95% of the time, the judge is gonna grant that continuance.

Todd Orston:                     And this is where you, as a client, need to make sure, A, that your attorney is doing what the attorney needs to do in preparing documents, turning them over, and being proactive, and being prepared.

Leh Meriwether:              Well hopefully they know the lawyer knows what they're doing.

Todd Orston:                     Absolutely, but that's also, 'cause this is all about setting expectations. When your attorney is calling and emailing and saying, "I need these documents, I need you to fill this out, hey it's been a week, hey it's been two weeks, hey it's been four months," and they are badgering you-

Leh Meriwether:              For certain documents, yeah.

Todd Orston:                     That's why, because they are, hopefully politely, we are very polite, but we sometimes have clients that you know it's not a priority. They don't make it a priority, and we've talked about this on the show. You need to make it a priority, and that's why we're badgering you, because we know bad things can happen if you don't give us the information necessary for us to prepare those documents.

Leh Meriwether:              Right, so two other documents that are required, here in Georgia, at least, are a proposed temporary parenting plan-

Todd Orston:                     Even if you don't have kids. You just ... it's ... Judge, if I had a child, this is the time I would want to spend with him.

Leh Meriwether:              So obviously, if there's no kids, you don't have to do a temporary parenting plan. But if there are no children, you have to do child support worksheets.

Todd Orston:                     Well, obviously.

Leh Meriwether:              No, just kidding. Because they want you to support other children.

Todd Orston:                     Duh, you have to still pay child support.

Leh Meriwether:              Nope.

Todd Orston:                     Did I just say duh on the show?

Leh Meriwether:              I think you did.

Todd Orston:                     Oh my. At least my kids will like that.

Leh Meriwether:              Probably.

Todd Orston:                     Yeah, but child support worksheets, absolutely.

Leh Meriwether:              So if there's children, parenting plan.

Todd Orston:                     Yeah, if there are children, if child support is an issue.

Leh Meriwether:              Child support worksheets.

Todd Orston:                     Yup.

Leh Meriwether:              But the DRFA, if you're asking, if there's no children, and you're asking for alimony, or something along those lines, temporary, then you've got to turn that over.

Todd Orston:                     That's gonna be, at least from our point of view, the primary tool that you are using to establish a need, 'cause again, alimony, in Georgia, it's need based. It is do you have a need, and does the other party have an ability to pay? So you're gonna need to not just have your budget ready. That's why the other side has to, because then we need to look at there's, to, let's say we're trying to get alimony for our client. We need to look at the other party's DRFA in order to determine do they have an ability to pay, based on the budget information they provide.

Leh Meriwether:              So when we say DRFA, just-

Todd Orston:                     Yeah, sorry.

Leh Meriwether:              That's an acronym for a domestic relations [crosstalk 00:09:36]

Todd Orston:                     That's what the cool guys say, you know, [inaudible 00:09:40].

Leh Meriwether:              It stands for domestic relations financial affidavit. We say it all the time.

Todd Orston:                     Yes, DRFA. Sorry.

Leh Meriwether:              Yeah, DRFA. So we're gonna break this up into two core areas, because that's typically what you see, money issues, and parenting issues, or parenting time, so we're gonna break up the rest of the show and cover those two broad topics, and what you need to do to prepare on the money side, which would include alimony, child support, and attorney's fees, and what you need to do to prepare on the parenting time, which would include who's living where, when, and with ... every show.

Todd Orston:                     I love doing that. I love doing this show with you.

Leh Meriwether:              At least once every show, I get tongue tied.

Todd Orston:                     You suddenly turn into a Looney Toons character. It's amazing.

Leh Meriwether:              It's something about this show. So parenting time. Where are the kids gonna be, when, and with whom? So those are the two things we're gonna go over, and when we come back, we're gonna get into the money issues. What do you need to do to be ready to get support, if you need the support, or if you've had to move out, and you don't have enough money to pay support, how do you prove that you can't pay support? [inaudible 00:11:01].

Leh Meriwether:              Welcome back, everyone. I'm Leh Meriwether, and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether and Tharp, and you're listening to Meriwether and Tharp Radio, on the new Talk 106.7. Today, we are talking about ... we're following up, actually, on what we started last week about temporary hearings. We're diving a little bit deep on this one because it is so important, because most people, if you're gonna go to court in a family law situation, particularly a divorce, you're more likely to have a temporary hearing than you are a final, 'cause most cases we're able to work out, but sometimes, up front, there's temporary issues that've got to be dealt with during the pendency of the case. The reason, when I say pendency, because there's a lot of fact gathering that goes on during divorce process, and so some divorces can take six months, 12 months, two years, three years. I've even seen some take nine, but that's a whole nother story. Those are a very rare case where you see cases go up to appeal, and come back down, and go up to appeal, and thankfully, we don't have very many of those.

Leh Meriwether:              But we're gonna be talking about temporary hearings. So we're gonna start off this segment talking about the money issues. How do you get ready to address the money issues in your temporary hearing? Well-

Todd Orston:                     Documents, documents, documents. It's all about evidence. The good thing about the money issues is, especially on a temporary basis, what you're really talking about is budgets. What you're really talking about are numbers, and you know that saying, numbers don't lie, right? So don't expect you're gonna go in and just talk about numbers. You should be gathering information, gathering evidence, and the attorney that you're working with, or if you're doing this on your own, then you need to understand that evidence, when it comes to the numbers, there's no story to tell. It's okay, "I need money."

Todd Orston:                     "Okay, what's your income?"

Todd Orston:                     "Well, I don't have income."

Todd Orston:                     "All right, well do you have assets you could pull it from? Show me a statement. Show me your pay stub. Show me something to tell me what money is available."

Leh Meriwether:              Or do you even have any expenses where you need income?

Todd Orston:                     Exactly, exactly. You can't just go, "Well, I think it's going to-"

Leh Meriwether:              "I need ten thousand dollars a month."

Todd Orston:                     "I need ten thousand dollars to live," and the court will go, "I think I need a Ferrari, and I'm not getting a Ferrari, you're not getting ten thousand dollars." So it comes down to what can you prove, and it's not anecdotes, it's not stories, it's hard numbers. So-

Leh Meriwether:              Todd, I have won awards for like 10, 15 thousand dollars, on a temporary basis.

Todd Orston:                     Oh, no, no, yes-

Leh Meriwether:              I'm just messing with you. You're like, wait, are you?

Todd Orston:                     No, but I have seen cases where people have gotten those amounts, in award, but they had a budget.

Leh Meriwether:              [crosstalk 00:14:02] all these documents.

Todd Orston:                     Look, if you are in a situation where your monthly expenses are 30, 40, 50 thousand dollars, then yeah, you might be able to go in and justify a request for 15 thousand dollars.

Leh Meriwether:              If you can show it.

Todd Orston:                     If you can show it. If you are living, as a married couple, on a six thousand dollar a month budget, you're not gonna get six or seven thousand dollars in support. But that's where the attorney is gonna help you, where if you're doing it on your own, you need to understand, it's gonna be what can you prove? That's the first thing, and the first document is, as I called it, the DRFA.

Leh Meriwether:              The domestic relations financial affidavit.

Todd Orston:                     That's right. That is going to be the most important document, and that document, the way we prepare it, at least, is going to have a lot of, for lack of a better term, exhibits.

Leh Meriwether:              Right, so let's go detailed on it. So the first thing in there is your income, and obviously, if you don't have any, you put a zero, but if you do have income, pull your most recent paycheck stubs. Pull your W2 from last year, your errant paycheck stub from last year, your last couple, if you're a commissioned salesman, or something like that, where your income fluctuates from year to year, pull the last few years of tax returns, and the reason is when you put in your DRFA, a lot of times it's based on the last six or twelve months of income, you average it out, but if that number's different than what you made last year, let's say it shows less, you need to bring those documents in so you can tell your lawyer about it, so that you can be prepared, so on cross examination, they'll say, "Oh, so as soon as the divorce comes along you're making less money?" You need to be prepared to answer that question. So grab those documents.

Todd Orston:                     Absolutely, absolutely.

Leh Meriwether:              So that's the income. Then let's talk about the outflows. That's the inflow, now let's talk about the outflow: What you're spending your money on. So what kind of documents should we gather there?

Todd Orston:                     Yeah, so obviously when you're talking about the budget, it's your budget. Think about your budget. What kind of expenses do you have? Not only that, usually when you're dealing with a temporary hearing, a lot of times it is because the parties are not gonna live together, and therefore, now, instead of having one home, and shared expenses, you might be the person either moving out, or even if you're staying in the marital home, you, now, are gonna be responsible for certain expenses, and so you need to be prepared to explain, this is what electricity is gonna cost, this what water is gonna cost, this is what my rent is going to be. This is what my car expenses are going to be. How about car insurance? How about health insurance, which hopefully will be resolved anyway, and that's maintained.

Leh Meriwether:              You pull all those statements.

Todd Orston:                     Absolutely.

Leh Meriwether:              So if you're living in the house, or you think you're gonna be living in the house, pull all your ... see if you can gather the last 12 months of statements for all your utilities. If you've got children, childcare expenses, pull all those receipts, pull uncovered medical expenses receipts, if you have extra-curricular expenses, or things that are coming up, pull all the documents relating to those.

Todd Orston:                     I will say, there are some numbers that are exact. A rent payment is an exact number. A car payment is an exact number. But there are some things where you can take, and it is permissible to take, averages, like utilities.

Leh Meriwether:              They go up and down.

Todd Orston:                     They go up and down, so you don't need to literally say to the court, "Well, in March, my water bill was this, and then in April it was this." You can take an average, and that's accepted, as long as you know, it better be an accurate average, because when the domestic relations financial affidavit, emphasis on affidavit, it is a sworn document, so what you put in there, you better be able to back up, because if you don't, or if you can't, or if you put misleading or incorrect information, you'd better bet that you're gonna be cross-examined, and the mistake will be picked up by the other attorney, and it could hurt your credibility.

Leh Meriwether:              So one of the reasons you would gather all these documents, particularly the income documents, is let your lawyer double-check things, or often, lawyers have paralegals that will double-check the numbers you put in there, and some people are like, "Oh, that's an extra expense." If you're heading towards a temporary hearing, often, that extra expense is so worth it. There was a case where someone listed that their monthly expenses for their vacation was four thousand dollars. Well, first off, the number came back, for her monthly expense, as way high.

Todd Orston:                     I want to go on that vacation.

Leh Meriwether:              Yeah, exactly, but it turned out she put on the yearly number -- they had a really nice vacation last year -- not the monthly number, and so, but if we hadn't had our team review what she put together, she could've lost credibility on the stand.

Todd Orston:                     Well, and you know where that sometimes also comes up, where people will mistake pay periods, where sometimes, people are paid once a month. Sometimes they are paid biweekly. Sometimes they are paid twice a month. That could be the difference between twelve checks or 24 checks, or 26 checks, so you need to be very careful, because-

Leh Meriwether:              The DRFA is based on 12 months.

Todd Orston:                     That's right.

Leh Meriwether:              So you've got to pull all the documents together, and not only does it give your lawyer an opportunity to double-check things, or your legal team, but it also, you have it there for court, in case you get cross-examined on it. Now, most of the time, unless it's way off, they're not gonna have time to cross-examine you on that, unless you've got one of your, Todd, one of your two-day hearings, but if you have them there, then it's easy to say, "Here are the documents that came up with it," and boom, your credibility is restored, and the court's going, "Wow, they brought all their documents." The court's gonna believe your testimony, 'cause you brought things to back it up.

Todd Orston:                     Yeah, because if you don't have the information to back it up, then the court is going to basically make assumptions, or the court is going to impose that the judge's own -- I mean it's natural -- sense of right, wrong, reasonably, unreasonable, so if two people came before me, I'm not a judge, but if two people came before me and they said, "My expenses are 20 thousand dollars a month, that's what I need," my initial reaction would be, "You've got to be kidding me. That's ridiculous. I can't even imagine that." But if you, then, showed me that the marital expenses were 20, 30, 40 thousand dollars a month, and this is the lifestyle, and this is my car expense, and da, da, da, da, da, then I'd be like, "Oh, okay. Well now I see that that's a reasonable number. It's not some pie-in-the-sky request."

Leh Meriwether:              Going back to that, it's the lifestyle that that family's become accustomed to, and so the court's gonna maintain that status. [crosstalk 00:21:03] just don't want-

Todd Orston:                     Right. With some limitations. I mean, sometimes, the court will say, "Yeah, you could live that lifestyle while you were together, but you need to be a little more reasonable, now that you're maintaining two homes."

Leh Meriwether:              And a good example, another good example, is the court's like, "You're going through a divorce. You don't need that 48 thousand dollar vacation this year."

Todd Orston:                     I think I do. I mean I'm just ...

Leh Meriwether:              But we've had people that were wanting ... their support number included going on a very nice vacation, and the court said, "No, I'm not gonna do that."

Todd Orston:                     Especially not on a temporary basis.

Leh Meriwether:              On a temporary basis, right. Unfortunately, you're going through a rough time. You can cut back, a little bit, during this time.

Todd Orston:                     47 thousand, that's fine.

Leh Meriwether:              One thing I hate cutting back is on all the information we have to give, well we don't have to give, we love to give, but unfortunately, we're gonna have to cut back, and up next, we're gonna continue to dive into all of the different money issues that you should be preparing for at a temporary hearing, and then we're gonna get into the parenting issues that you should ... the things you can do to prepare for a temporary hearing, when it comes parenting.

Leh Meriwether:              Welcome back, everyone, I'm Leh Meriwether, and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether and Tharp, and you're listening to Meriwether and Tharp Radio on the new Talk 106.7. If you want to learn more about us, you can always call, or visit us online at AtlantaDivorceTeam.com. Well, let's get right back into it, Todd. Today, we're talking about temporary hearings, and how to prepare for temporary hearings. Last segment, we were talking about money issues, the things that you need to be doing to prepare, when it comes to money. We're talking about, particularly, child support, alimony, potentially, attorney's fees, and who's paying what bills, during the pendency of the case to make sure the mortgage doesn't go into foreclosure, or obviously, the utilities don't get shut off. So let's keep diving into how do you prepare for this, to make sure maybe you set yourself up to settle your case, so you don't have to get in front of a judge, or if you do, that you're ready to go, when you get in there. All right, so where'd we leave off?

Todd Orston:                     Well, why don't we jump in, and why don't we talk about ... let's jump into child support.

Leh Meriwether:              Okay.

Todd Orston:                     Okay. And again, going back to the DRFA, child support is based on, at least here in Georgia, and in most places, based on income, right? At least partly. Income is going to play a role. So the information on the domestic relations financial affidavit, as it relates to income, is important as it relates to the calculation of child support. But that's not where the analysis ends. That's not the end of the computation, because, at least here in Georgia, the computation of child support takes into account other expenses. Things like daycare, premiums for medical care, extraordinary activity expenses, or school expenses, things like that.

Todd Orston:                     So because of that, obviously, we want to be as accurate as possible, because if we leave something out, that could result in a loss of dollars in your pocket, to pay some of these actual expenses. So you need to be very clear, and you need to be very good about gathering information. If there's daycare, have statements regarding the daycare expense. If there are activity expenses, get something. It doesn't matter if you have to go to the coach, or if you have to go to somebody. Something that says what those expenses are.

Leh Meriwether:              And even, and here's ... like sometimes, your temporary hearing may be, let's say it's in May, and you know, in June, there's summer camps coming up. Well then go gather all the [crosstalk 00:25:01]

Todd Orston:                     Great point.

Leh Meriwether:              That maybe there was an email exchange between you and your spouse saying, "Hey, we're gonna put the kids in these summer camps," and then you go and print off the web pages that have that information, so when you go into court, say, "Judge, we've got these upcoming expenses. Can we split them 50-50?" You want to prepared. Like you said, earlier, you don't want to just throw numbers out there.

Todd Orston:                     Yeah, and I will say, it is possible, in a situation like that, that the court may not incorporate those camp tuition costs into the child support payment, but may deal with it separately-

Leh Meriwether:              Right, on a temporary basis.

Todd Orston:                     On a temporary basis, and say, "Okay, child support, monthly child support, will be calculated using this information. Oh, and by the way, there's summer camp, and both of you committed to summer camp, and the child's gonna go to summer camp. How much is it? Oh, it's $2500? Okay, each of you will pay $1250," or whatever the breakdown is.

Leh Meriwether:              That's a nice summer camp.

Todd Orston:                     Absolutely.

Leh Meriwether:              Wow.

Todd Orston:                     Between that and the 47 thousand, 48 thousand dollar vacation? That's a good year. So be very diligent gathering all that information, because, again, on a temporary, and also on a final, once you set the number, if you don't present the court with the right information, the court's gonna set support, and on a temporary, that support number could last for two, three, I don't know, five, ten, even over a year. It could last that long, and you're stuck with that number. If you wake up the next day, and you're like, "Oh, wait, wait! I forgot. I should have added ..." You're not gonna get another bite at that apple. You're gonna have to wait.

Leh Meriwether:              So another thing that you should do is let's say you've got a situation where you have traditionally paid the mortgage, and perhaps there's a situation, also, where the reason you're paying the mortgage is because your spouse, well they weren't as diligent, when it came to paying things on time, and you got hit with late fees, and whatnot, well you need to get that prepared, and actually prepare sort of a temporary order. I like to begin with the end in mind, and what would you like the judge to order, and work backwards. So we say, well, I'd want it to order that rather than me writing a check to my spouse, and then having them responsible for paying the mortgage, and the credit card statements, I would just rather pay them directly."

Leh Meriwether:              So what you do, is you maybe write up that proposal, and you lay out that the husband will be responsible for paying the mortgage payment, the following credit card statements, the following car payments, pay for the auto insurance, and so you list all these things out, in the order, that you would propose to the court. So you walk in there with an order ready to go, and you hand it to the judge, and say, "Judge, here's our proposal, and here's why we think it's fair," and have have all the documents to back it up, so that [crosstalk 00:27:55]

Todd Orston:                     Yeah, and that's the documents about the amounts, but also the documents as to if your justification is late payments, then you need statements from the bank, showing that there was a late payment, showing that fees were assessed, because of a missed payment, or a late payment. That way, when you look at the court, and you say, "I would like to be responsible," then you can show the court, "Hey, judge, and this is why, because unfortunately, I don't have 100% trust that my spouse will get it done, because my spouse, when he or she was responsible, in the past, failed to do it."

Leh Meriwether:              Right. So let me just take care of it, so that we don't have any more problems in here, and when you do it that way, it doesn't look like you don't want to pay alimony, 'cause let's say you've moved out of the house, and your spouse is gonna stay there, well you're still covering all those bills. So it looks good that you've walked into court, ready to take care of these things.

Leh Meriwether:              Now I think one thing that you should probably take into consideration, when preparing things, is, especially, we see a lot of cases where, when the parties are living together, they're actually going into debt, as it is, and now you're talking about increasing the average monthly expenses, because they have two households, so it's important to put together what I sometimes call maybe an alimony balance sheet, or something like that, where you list out all the core things that you're paying for, all the core things that your spouse is paying for, if you're the one who's obligated to pay support, or you take that out so the top line is your income, after taxes, followed by the child support, followed by perhaps alimony, and then all the bills you're gonna pay, and then all the bills that he or she is gonna pay, and then you list all that out, and first you start off with really the core areas: Food, shelter, transportation, insurance, health expenses, clothing, maybe the kids are getting ready to go back to school and they've outgrown their clothes.

Leh Meriwether:              So you list those items, and then if there's money leftover, maybe you add in more. Then you've got ... well the transportation would include car payment. But we've seen situations where the court said, "I'm sorry, but these credit cards aren't gonna get paid, because child support comes first." So that's part of your preparation. You may learn that you can't afford to pay child support, have your own place, and be in the other place. Or, on the flip side, you do your prep, and then, as the wife, you're sitting there going, "Oh my gosh, there's not enough money to go around," and maybe then you start looking for a job, or you start looking for, "We don't need to be spending $3500, $5000 on a temporary hearing, we need to be settling this."

Todd Orston:                     Yeah, and that's where, like you said, preparation is key. Also, just being able to look at it from that 50 thousand foot view, you need to understand that what may have worked before the separation may not work anymore, because I have that conversation with people all the time, where they will say, "Well, I did this, and I went on this kind of a vacation, and I want to keep doing it." But then when you break down the budget, when you look at the income that the spouse is earning, and the income that that person is ... the client is earning, and then you say, "Okay, but now, hold on, you've got these extra expenses. You're living in separate homes, and you have other expenses. The money is just not there." So you have to be able to wrap your arms around, okay, what is my new reality? The temporary hearing, in preparing for the temporary hearing, that's a big part, setting expectations. For us, it's setting our clients' expectations, and for clients, it should be making sure that their expectations are reasonable, and the way you get to that point is understand how everything works, together, budgetary constraints, and what have you, and understand how the court is gonna look at things, on a temporary basis, to maintain that status quo.

Leh Meriwether:              So when you bring all this together, the great thing is, while you may be preparing for a temporary hearing, that you can take all this data, and go to the other side, and say, "We're making this proposal because, really, there's nothing else left. Here's all the support. Are we missing anything?" So you've actually set yourself to hopefully settle the case, and that's part of the reason why we say, gather all these documents, get all these things together, put it on an Excel spreadsheet, break it down, who's paying for what, and what is left over, at the end of the month.

Todd Orston:                     Yeah, and opposing party, or opposing counsel may not accept your numbers, but you're prepared, because then your arguments aren't just pulled out of thin air. They are supported by documents, and-

Leh Meriwether:              But it's harder to reject [crosstalk 00:32:47] numbers.

Todd Orston:                     That's right.

Leh Meriwether:              It's a lot harder.

Todd Orston:                     We've met some people that can reject-

Leh Meriwether:              Anything, that's true.

Todd Orston:                     Yeah, but you are correct.

Leh Meriwether:              Hey, up next, we're gonna go into parenting time, and what you need to do to prepare for a temporary hearing when it comes to establishing parenting time. We'll be right back.

Leh Meriwether:              Welcome back, everyone. I'm Leh Meriwether, and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether and Tharp, and you're listening to Meriwether and Tharp Radio on the new Talk 106.7. Well we have been diving into how to prepare for a temporary hearing, and over the last couple segments, we talked about money issues, because that's a big, driving thing. We see it in every case. If you have a temporary hearing, whether there's children or not, there are money issues, but let's talk about parenting time, and we're gonna spend the last segment on parenting time, but before I get into that, there's two more things I want to touch on, because they actually encompass both parenting time and money issues.

Leh Meriwether:              If you have been sent discovery, and so discovery can be what's called requests for documents, from the other side, or what's called interrogatories, which are questions, you want to make sure those have been answered, because you don't want to come to court and say, "Judge, they were supposed to turn over documents, we didn't get them, we want a continuance." So make sure you've complied with all of the requests that have come from the other side, and number two, read over your interrogatory answers, before you go to court, because you want to make sure, whatever you say on the stand, it is not contrary to what you may have written in an interrogatory answer. So those are the two things I just wanted to hit.

Leh Meriwether:              All right, parenting time. Just like I said earlier, start with the end in mind, and I like for people to start by, and this is getting really practical. Pull out, or if you need to, just go to the local office supply store, Staples, Home Depot, not Home Depot, Office Depot, I've been there too much, recently.

Todd Orston:                     You can build a calendar, out of plywood, and-

Leh Meriwether:              You could! Yeah, nevermind. Buy one of those desk calendars, a big one, write out what the next 12 months might look like, especially if your spouse has moved out, try to think of all the events the kids have coming up, put it all on the calendar, and start putting together, especially if the temporary hearing is coming up on the holidays, where you've got, you know, you need to decide that ahead of time, or maybe it's coming up on the summer, and who's gonna go on vacation with the kids, and so put that all in a calendar. Write it out. Put it together, and then once you've put that together, work backwards. How do I get either my spouse to agree to this, what evidence do I need to get together to get my spouse to agree to this, or what evidence do I need to gather to present at a temporary hearing that the judge would award this?

Todd Orston:                     Well, and going to that effort, ant taking a giant sized calendar, or whatever you're-

Leh Meriwether:              Wall sized.

Todd Orston:                     Yeah, wall sized. No, but working with a calendar, mapping out what the children's schedule is gonna look like, and your schedule is gonna look like, that's gonna allow you to have and engage in intelligent conversations, when it comes to what kind of a parenting schedule is gonna work for you. Because I can tell you right now, the way that it works, you're gonna sit down, you're gonna start negotiating, whether it's before the hearing, or at the hearing, or whatever, and you have your wants and needs, but the opposing party is also gonna have wants and needs, and when they propose something, you're gonna need to be prepared to counter, or to say, "Well, that doesn't work." Simply saying, "That doesn't work for me," usually doesn't fly with opposing counsel, or with the court. You need to be able to specifically say "That doesn't work, let me explain why. This date, my parents, the children's grandparents, already bought tickets, and they're gonna take them to Hamilton. It's $9000 a ticket, they bought a whole bunch of them, and-" sorry, I love Hamilton, but, "And so, judge, that's not going to work, because I need that time." Especially on a temporary, that's absolutely appropriate to bring up, if you have something already scheduled, but if you don't have a calendar.

Leh Meriwether:              Or maybe you've got a parent that's dying, and you want the kids to go out there-

Todd Orston:                     Well thank you for bringing us to that.

Leh Meriwether:              I've had that recently, so I guess it's just fresh in my memory.

Todd Orston:                     Absolutely, and I've had cases where, unfortunately, the client has passed away, so major health issues, but you're right. But looking at the calendar, and being able to present that, not only in terms of discussions, negotiations-

Leh Meriwether:              It makes it look like you're not being obstinate. You're explaining things, you're being reasonable.

Todd Orston:                     That's right. You're not just being difficult for the sake of being difficult. You can show the court, sort of like what we said about numbers, "Hey, judge, here are the numbers." Here, it's like, "Here's the schedule. So when I say that's not going to work, I'm not just wanting to be obstinate, or-"

Leh Meriwether:              Or you can say, "I've got a conflict with that. We know the kids were already planning to go to Disney World with your folks, or my folks, so-"

Todd Orston:                     The 48 thousand dollar trip.

Leh Meriwether:              Yeah. Yeah well that's-

Todd Orston:                     You're living in the castle.

Leh Meriwether:              Yeah. On an island, on the Disney island.

Todd Orston:                     That's right.

Leh Meriwether:              Yeah, so all right, so that's one thing, and then basically, you can take that calendar, too, that calendar works at so many levels, 'cause it's very visual. It gives you that visual roadmap, allows you to negotiate, look reasonable. It's also something you can give to your lawyer, to turn into what's called a parenting plan, or that's what we call it in Georgia. They have different titles in different states, but essentially, you take that calendar, and you convert it to words. So that allows the lawyer, the paralegal to do that, or even the judge, sometimes, 'cause I've seen people literally hand the calendars as an exhibit, and the court used it to make a temporary order.

Todd Orston:                     All right, so let's talk about witness affidavits. In the last show, we sort of hinted at that, but Georgia is somewhat unique, and I can't speak for all the states, but usually an out-of-court statement constitutes what's called hearsay-

Leh Meriwether:              And it's inadmissible.

Todd Orston:                     And it's inadmissible. Georgia has waved a magic wand, or gavel, and said, "We will allow-" I was gonna use like a fairy godmother voice. "We will allow some hearsay." No, but the court will allow affidavits, and there is a specific reason, because, as we have said, you can only, at a temporary hearing, the party can testify, and one witness. Everything else can come in by means of an affidavit. So they need to be turned over, typically, 24 hours in advance.

Leh Meriwether:              Turned over to the other side.

Todd Orston:                     To the other side.

Leh Meriwether:              [crosstalk 00:40:10] put on notice of it.

Todd Orston:                     Yeah, 'cause otherwise, it constitutes what we call trial by ambush. You can't just, at the last minute, give all these affidavits, and then the other party doesn't have time to respond, or verify facts that are brought up in them.

Leh Meriwether:              So if you've ... on notice about a temporary hearing, and it's at the moment it's contested, and you need to gather witness affidavits to support your position, that they have seen you care for the children, and everything, start on that early, so you can turn it over on time, and also, you want to make sure the affidavits, they stick to the facts, they do not go off kilter, talk about well, "John used to tell me about how bad Jenny was," 'cause that's ... the court's gonna completely ignore that. It has to be based on their personal knowledge, and they also shouldn't embellish. They should be upfront, and honest, and say, "Hey, I've seen both parents interact at a party one time, and mom behaved this way, and dad behaved this way," and just the facts. Don't say, "And dad was horrible monster, or mom was completely," well, if mom was drunk, you can say that, but I mean, but just stick to the facts.

Todd Orston:                     Yeah, and I will usually talk to a client, if I have my way, I usually tell clients anybody that you think would be a good witness, have them just write something, not an affidavit form, just give me a narrative, let me read through it, because you would not believe some of the, well you would believe, but you would not believe some of the affidavits that we get, where we look, and we're like, "Oh, we're not using that one."

Leh Meriwether:              Yes.

Todd Orston:                     Like if I read that, I would not give custody to my client, so I typically will say, "Let me see the narrative ahead of time." Let the attorney strategically decide which one would be beneficial, and then we can turn those narratives into affidavits.

Leh Meriwether:              Yeah, and so if you do have a witness, we're gonna shift gears to witnesses. If you do have a witness that's coming to him, give your lawyer access to them so they can call, talk to them, make sure they know what they're gonna say, let the lawyer get the opportunity to ask questions, because the last thing you want to do is you think a witness is gonna say something that's gonna be favorable to you, they go into court, the lawyer hasn't had a chance to talk to them, and they say something that causes you to basically lose that hearing. You don't want that to happen. You want the lawyer to talk to the witness ahead of time, so set that up.

Leh Meriwether:              Another helpful thing is to write out a timeline of your marriage. Now, I know that we said, "You're not gonna be able to talk about your whole marriage," but the reason you do that is because you want to sort of have a general timeline of your marriage, with some bad ... if there was bad events in it, have it for your lawyer. Here's a quick example, I know we're running out of time, that's why I'm talking quick. So the wife says on the stand, "I don't think he should have that much parenting time, because he has a bad temper, and he's yelled at the kids before," and then come to find out that it was something that happened 10 years ago, he sorely regretted it, he had a horrible day at work, and he's never done it since, but your lawyer would know that, if you'd given him or her a timeline.

Todd Orston:                     Or, also, a timeline, let's say you are a working spouse, and, "Never spends time with the kids, is traveling all the time for work," and then you can pull out a calendar or pull up a timeline, and go, "Two days this month, four days that month, so no, the statement that I'm always traveling is just simply not accurate."

Leh Meriwether:              Right.

Todd Orston:                     So having that kind of information, the bottom line is that allows you to counter things that are being said against you, or you can make the points that you need to make in order to accomplish your goals.

Leh Meriwether:              So last couple things, if custody is contested, gather your children's school records, those can often show important things. Also, gather your children's health records, because that can show who is taking the kids to the doctor. Hey, everyone, thanks so much for listening. There is so much more we could go into, but these are the big ticket items to go to.

Todd Orston:                     And you can get more on our website.

Leh Meriwether:              You can get more on our website, AtlantaDivorceTeam.com. If you want to ask us more questions, email us at [email protected] Thanks so much for listening.

Speaker 3:                           This audio program does not establish an attorney-client relationship with Meriwether and Tharp.