Prove It!

In Divorce and Family Law cases it is not just what you say that counts - it is what you can PROVE that matters most! Judges in divorce cases rely on evidence, and in this episode of Divorce Team Radio Todd Orston, Partner at the Divorce and Family law firm of Meriwether &Tharp, LLC, discusses why it is vital to gather, organize and present evidence that supports the positions you take in divorce, custody and other family law cases.

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 we're going to learn about divorce, family law, and from time to time, even tips on how to save your marriage if it's in the middle of a crisis. If you want to read more about us, you can always check us out online at atlantadivorceteam.com. Okay, let's get started. I remember I was thinking about this the other day. I remember when I was a kid and you get into a disagreement with somebody and they look at you and they say, "Well, prove it." Prove it? Well, obviously back then those disagreements didn't land children in court and there was no presiding judge. But even back then, we understood the importance of evidence. We didn't really think of it in those terms, but that's really what it was. Prove it.

And it hasn't changed. It has evolved. Meaning as we became adults, as we had to live in this society we live in and deal with the issues we deal with, unfortunately divorce is a reality and now it becomes even more clear. It's not just what you say, it's what can you prove. The court without saying it is looking at every party that walks into a courtroom and says, or is saying, "Prove it. Don't just tell me a story. Don't just tell me what you think I want to hear. Prove something. Tell me why you are in the courtroom and now present me with the evidence necessary to prove the things you're asking for."

You have a story, I get it. And by story I simply mean you are able to tell the court about events. You are able to recollect things that happened that were said, that were done. And you know what? So does the other side. The other side is going to come in and they're going to have their story. "She did this." And then that party's going to go in and go, "No, that's not what happened. He did this." So everybody goes into court with a version of events and then you have this judge who is not superhuman sitting there having to determine credibility of witnesses and figure out, "All right, who's telling me the truth?"

And so you have to go into any case, any family law, and of course the show's about divorce and family law and those related things. So I'm talking about things in that context. So you have to go into these cases, not just thinking about, "I have a story." If that's where it ends for you, meaning if all the prep you're going to do is you're going to retell a story, then unfortunately you can't be surprised if the outcome isn't the one you were looking for, hoping for. You have to do more than that. You have to prove it because without saying it, that's what the court is thinking. That is what the court is expecting. That you're going to go in, you're going to prove whatever it is you're trying to prove.

So the show today, we're going to talk about what that means and I'm going to do it basically in relation to what we call the four core areas of a divorce. I'm going to talk generally about what I'm talking about. Then we're going to hit the four core. We're going to talk about custody cases, we're going to talk about issues relating to child support and alimony, and we'll talk about division of property and debt. Here in Georgia, that's referred to equitable division of property. Other states, it might be community property. So we're going to talk about those things.

So first, let's talk generally. How do you go about thinking, "How am I going to prove something?" And there are ways, there are many different ways, but come up with a plan first, and that's what I'm going to talk about right now. So you have to establish and create or build that foundation, an organized approach to gathering and organizing and then being able to present the evidence you need to prove whatever it is you're trying to prove.

So number one, think about which of those four core areas apply in your case. Do you have kids? Okay, great. If they're underage, still in high school or younger, then you know custody issues are going to come up, which means physical custody, legal custody. If there are no kids, you don't have to worry about that. You don't have to worry about child support. Maybe alimony is applicable, maybe not. Division of property and debt, okay. If that's the only thing you have to deal with, so be it. So figure out number one, the four core areas that apply.

Now, then you, two, want to think about your goals for each of those areas. What are you trying to accomplish? What do you want in terms of the four core? What do you want? Do you want primary custody? Do you want 60% of the marital estate? Do you want one asset over another? Do you need alimony? So think about not just the four core that apply, but now start thinking about your goals for each of those core areas. You're going to want to think about the, and anticipate the positions the other party might take as it relates to those four core. Is custody an issue? Well, what do you think the other side's going to say? Are they going to concede a point? Are they going to say, "Oh yeah, that's fine. You can have primary custody"? Or do you think that they might fight you for primary custody? Do you think that they might say that they are the better choice to be the primary physical custodian?

So anticipate the positions of the other party and that ties hand in hand with anticipate what big issues might be, not just the position that the other side is taking. What are they basing that position on? Are there behavioral issues? Well then, you know you need to deal with those issues head on. If there's a wasting of assets issue, if they're claiming that money disappeared, assets disappeared, you know you need to deal with that issue, which means now you can start to organize your thoughts and organize the evidence you're going to need to deal with it.

And then once you've done those things, number five, you can start to move on to the gathering of evidence stage. You've laid that foundation, you've identified the four core areas, you've identified your own goals and anticipated what the other side's goals are going to be and anticipated what those issues will be that might be raised during the hearing or will be raised. And so now you can focus on gathering the evidence you need to prove it, to prove what you need to prove to accomplish your goals because I know I'm getting a little repetitive, but you're not just going and telling a story. You are going and telling a story and presenting evidence that will hopefully convince the trier of fact, the judge, to do what it is you are recommending and requesting. Both parties that walk into court have their own agendas, they have their own goals, they have their own motivations, they have their own stories.

So by doing this, by approaching it in this organized way, I can tell you, it helps me. It helps me when a client comes in to think about, "Okay, this person needs help. What do they need help with? What are the goals? What are the issues?" All of that. And now I can start jumping in and not just listening to their story and getting facts about their story, but I can start to gather the evidence necessary to make the case to a judge if necessary.

But remember, hopefully if you are resolution focused, hopefully you can avoid court. But doing this will also help you avoid prolonged litigation. If you're not organized in your thought and your analysis and your gathering of evidence, then you're not really prepared. Which means when you approach the other side to talk about some of these core issues, they're going to sense that. They're going to know you don't have the evidence to prove certain things, which means it might embolden them to take difficult positions which could interfere with settlement. All right, when we come back, like I said, I'm going to jump in. I'm going to start with custody, some specific thoughts on how you can approach gathering the information you need to deal with custodial issues.

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 a.m. on Monday mornings, WSB, so you can always check us out there as well.

Todd Orston:

Better than counting Sheep, I guess. It's-

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 to Divorce Team Radio, the show sponsored by the divorce and family Law firm of Meriwether & Tharp. I'm your host Todd, and 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 the show or go back and listen to it again, you can find us at divorceteamradio.com. I just want to also let you know that if you want to listen to the show live, you can listen at 1:00 a.m. on Monday mornings on WSB.

All right, so today we are talking about how you prove it, how you turn just your story that you can tell into facts you can prove. That's what court cases are all about. If all you have is a story, and now I'm speaking as an attorney. I guess the whole show I'm speaking as an attorney. But if someone approaches my client and all they have is a story and my client, through the work that we're doing for them and through our efforts as their legal representative, if we have proof, I can tell you I feel a lot stronger about our case. And we've seen that happen and play out in court cases again and again and again. If we prepare accordingly and go into court with the evidence we need, we get good results. Not always, it's not a guarantee, but I can tell you that very often we walk into court and we can find some level of success simply because we did the preparatory work we needed to.

All right, so let's talk about custody and of course custody, very quickly, standard is best interest to the children. When dealing with custody and custodial issues, you're dealing with physical custody, meaning where the children will be on any given day. And legal custody, decision making and things of that nature, access to records. So we know at a very basic level that's what custody is comprised of. So if you have identified that as a core issue, then now you need to start thinking, "Okay, what are my goals? What position regarding custody do I think the other party's going to take? What are some issues that might come up? And now again, what evidence can I start to gather to prove my case?"

So a lot of things when it comes to custody, unlike some of the more financial related issues, support and division of property and debt. It's experiential, it's things you experienced, your stories. "I remember a time when... I experienced this at the house and this is what happened." There's no videos, there's no audio, there's no documents. It's just your story. So how do you prove it? Because for every one of those events you have your version and the other side's going to have potentially a different version.

So let's think of it again in a very logical organized way. If you see an issue coming, if you think that there's going to be an issue relating to custody and parenting time, you can start to, number one, anticipate and start to create good evidence. What do I mean by that? If you don't have the need to race to court and file for divorce, then you can start thinking about these things. Again, if you think the other side's going to do something, if you are going to do something, if you haven't been gathering evidence and organizing information that you could use, start.

So if you see, like I said, if you see that issue coming, you can start to create good evidence. If the other side doesn't or isn't exercising a lot of parenting time, they're just an uninvolved parent and you're doing everything, create a calendar. Start to create certain documents that ultimately you can bring into court and go, "Judge, here, I can show you. These are the days that he actually or she actually spent time with the kids. These are doctor events and teacher events and school events, and I went and the other party wasn't there. And there's no valid reason why they weren't there. As a matter of fact, here's the calendar. Yeah, didn't go to this event or spend any time on this weekend because he was golfing with his friends or she went to a spa for the ninth time that year." Must be nice.

So you can start to gather that information and you have that calendar. If the other party is constantly late picking up kids, document that. How do you document it? Well, I mean if you're living together it becomes a little more difficult, but that could go into your calendar. If you're not living together and you're trying to just work on parenting and you're in essence separated, document with a text or an email, "Hey listen, you were 30 minutes late today. You were 27 minutes yesterday. I'm trying to make my own plans, so can you please just do me a favor, try and be a little bit better or give me advanced notice and that way I can make alternate arrangements."

If it happens a lot and you walk into court and you have 5, 10, 15, 20, 25 of those text messages, well the court's going to see the pattern and will also see your gentle request for help. These, remember when you're creating evidence, make sure it's good evidence. No name-calling, it's not angry. I don't care how fed up you are with the behavior in question, stay calm. This is a document you want ultimately a judge to see. So stay calm, but start to document. If the other side's a difficult communicator, their choice of language, their tone, all of that. Texts, emails, rely more on the written word. If the other side does a lot of talking, "Hey, during pickup, the other side is always angry. Yells, accuses, blames, whatever the case might be. As I'm sitting there handing over a bag for the children's stuff, they are just name-calling and whatever."

Number one, depending on your jurisdiction, meaning the state that you're in, here in Georgia, you are allowed to record conversations you're a part of. So if it's a pickup, drop off, whatever at the local park or outside your house, you walk outside if you know the other side's going to be yelling and carrying on, record it. But remember, depending on the state you're in, there are different laws relating to it. If you're not in Georgia, contact an expert, contact an attorney in your area to make sure you're not doing something that's not just wrong. Forget about admissibility of evidence. It could be illegal. So you have to be very careful.

But start to gather that kind of information. Use online communication and calendaring softwares. There are ways and/or tools that they're great because it can actually alleviate some of the problems because it's a very easy way to communicate. But it also allows you to document problems. You send emails, the other side doesn't respond. You actually have a record of that. So those tools can be very helpful. Make sure you familiarize yourself with all aspects of the child's life. Make sure that you gather documents relating to school, gather documents relating to medical care, and absolutely be prepared if you walk into mediation or any kind of a court appearance, make sure you're not just there to say, "I want custody." "Well what about the doctor? Who's the child's pediatrician?" "Oh, I don't know." "How about the English teacher?" "No, no clue." "How about the school?" "It's down the street from my spouse or the other parent." That doesn't look good. So you don't want to prove that you're disinterested. You want to prove that you are 150% committed to taking care of your child's needs.

So those are different things that you can do. And if there's bad behavior, and I'm talking the bad stuff, if there's drinking, let's say your spouse is drinking or unfortunately drugs or something like that. Are there pictures you can take? Is there evidence that you can gather so that when you go into court and say, "He or she drinks too much." The other side's going to come up and say, "No, I don't. Not even close." So you need to be prepared to basically counter that denial with evidence. All right, 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 a.m. on Monday morning on WSB.

Speaker 2:

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Todd Orston:

Welcome back everyone. I'm Todd and this is Divorce Team Radio, a show sponsored by Meriwether & Tharp. If you want to read more about us, check us out online at atlantadivorceteam.com. If you want to read a transcript of this show or go back and listen to this show or other shows again, you can find them at divorceteamradio.com.

So today I'm talking about proof, evidence, the importance of it in the context of a legal action like a divorce or a custody case. It's not about what you say, it's about what you can prove. And in the second segment, we talked about custody, parenting time and things you should be thinking about so that when you're standing in front of a judge, you're not just talking about how great of a parent you are. You have evidence to support how involved you are, how you have prioritized the child's needs, those types of things, that you will be a good co-parent, able and willing to communicate and work with the other side. And vice versa, that maybe there's evidence that the other side will not co-parent because I've seen that many times. A party saying, "I want to be primary custodial parent." And the evidence that we're showing is evidence where every conversation related to a child immediately strays from what they're actually talking about, meaning it's name-calling and yelling and interference with parenting time and all this other behavior which can absolutely influence a judge and impact decisions relating to custody.

So now let's talk about support. Unlike custody and parenting time, which again, like I said, is very experiential. A lot of it, it's not like there are just absolutely easy-to-get records relating to some of the issues you want to talk about. Well, child support and alimony, and I'm bunching the two types of support even though they're very different, I'm bunching them together. Now we're getting into numbers, now we're getting into issues where there are going to be probably more records that you can pull to prove your case, to prove whatever it is you're looking to prove on that issue.

So again, think about the process and when you're talking about support, you have to think about the process, the calculation methods, and then of course your goals. Now what do I mean by calculation methods? Well, let's deal with child support first. Child support here in Georgia, there's a calculator. It asks for information regarding a number of things, gross income, expenses, things like that, that basically will be considered by the court and some of that information included in that calculation. So you're going to put in there gross income numbers. You're going to put into the worksheet information regarding healthcare premium costs. You're going to put in there information about extraordinary expenses and things like that.

So now that you've laid that foundation, now you can start to gather evidence. You don't just walk in and throw out a random number, "Judge, I want to pay zero." Or whatever the number is, even if in your mind it's a reasonable number. Here in Georgia, that's not the way it works. There's a specific calculation that needs to be done and whatever that number is, that's what the child support's going to be. But there are ways to... It's not uncommon. How about this? It's not uncommon for two parties to crunch numbers based on information they think is accurate and that child support obligation is significantly different. So it's important for you to take it seriously and gather the information that you need.

So child support, it takes into account all those things that I talked about. Things like daycare and health insurance premiums and activity expenses. So now that you know that, okay, is there a daycare cost? Gather current statements for the daycare. If you have a nanny, information relating to payment to the nanny. And make sure you're being very accurate. If it's, "Well, we pay the nanny this much." Don't forget about the fact that you increase the payments by X dollars to pay for gas. But gather information, any documents. If you don't have a contract with that person, if you do, great. If you don't, bank records will help. "Hey, here's the recurring payment every single month that I pay to the nanny and it's work-related, it is reasonable, and that needs to be included."

So you need to gather that information so that when the time comes and you start crunching the child support numbers, you have documents, documents relating to your income, pay stubs, tax records. That way if you're sitting across the table in settlement conference or in court, you're not just saying, "I earned this." You are saying, "Judge, here's my tax documents. Here are my most recent pay stubs. Here are other documents relating to my income and expenses and everything is put into this financial affidavit and also then transferred into the child support worksheets."

It's all about proof. What documents will support your positions and prove the things that need to be proved to ask the court to do something. "Judge, I think I should get $900 in child support." "Okay, show me the worksheet. Show me how you came up with these numbers. Why did you put that income for you in there? Why did you put the other side's income in there? Why did you put all these other expenses in there?" Then you have not just a calculation, you have a calculation with the evidence necessary to show it's accurate and it's what the court should adopt.

Now, alimony is different, but again, somewhat similar analysis. Where here in Georgia, where child support is pursuant to a formal calculation, it's mandatory if there's a child. There are exceptions, we call them deviations and I'm not going to go into that right now. We've gone into it before and will in the future, but alimony is discretionary. You don't have a right or just an... Well, let's leave it at that, an absolute right to alimony. You have to show you have a need and the other side has an ability to pay.

Okay, there you go. You've just laid the bottom level of that foundation. You're saying you have a need, so you have to work on your budget. You have to show your actual income. You have to show that every month if you have income or if you don't have income, your income is less than what your expenses are. You have to show your expenses are reasonable. You have to show that without the financial support of the other party, you financially won't be able to make it. Or if you're on the flip side, if the other side is asking for some astronomical amount and you're like, "I will be living in a cardboard box if I pay that," then you have to work on the basic information. You have to gather the evidence you need.

The other side is saying, "I need $3,000 a month." Well, if you make $4,000 a month, especially if you're grossing $4,000, which means it's less than that after you pay taxes, then you have to be ready to show the court, "Here is my income, here are my pay stubs, here are my tax documents, here's my own budget with supporting information." And what do I mean by budget? Here we call it a DRFA, domestic relations financial affidavit. You have to make sure that is very accurate. It goes through all your expenses, house, car, insurance, food, all the different types of normal monthly expenses that you incur. You need to be accurate and if possible, you need to have documents to support all of those expenses.

Now, sometimes it's an average, your electric bill will vary throughout the year. Your gas bill will vary. But you need documents to show, especially if you're averaging, "Hey, here's the average and I can show you for 12 months. Here you go. This what I base that average on." So you need to understand what the expenses are. By understanding the expenses, then you can start to gather the documents necessary so that when you give that DRFA, when you ask the court for support, or if you're saying, "Hey, the other side doesn't need support. Or I don't have the ability to pay support." You're not just crying, "Oh, I don't want to pay." You are proving to the court that whatever your position is, is reasonable, that whatever their position is, is not.

All right. When we come back, I'm going to jump into equitable division of property and debt. Another financial related one. But again, it's all... I mean, it's incredibly important what you can prove. Otherwise, bad things can happen.

Speaker 2:

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

Todd Orston:

Better than counting sheep, I guess.

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.

All right, we're in the final stretch. Welcome back everyone. I'm Todd Orston. This is Divorce Team Radio, a show sponsored by the divorce and family law firm of Meriwether & Tharp. If you want to read more about us, check us out online at atlantadivorceteam.com. You want to read a transcript of the show, go back and listen to this or other shows again, divorceteamradio.com.

Okay, we're talking today about proving it. How do I prove whatever it is I need to prove in court? How do I turn a story into evidence that the court can accept and then used to issue a ruling? And again, I'm talking in terms of court, but the same thing applies if you are just negotiating with another party. It is incredibly common, much more common than having to go into court and prove something because most cases will settle. But I will tell you, there are a lot of cases that go on for way longer than they need to simply because people didn't do what I'm talking about in this show. They take positions and offer no evidence. So they're expecting the other side to just capitulate to just, "Oh, well that's what you want? All right, I'll give it to you." And they're surprised when they don't.

Well, if you approached it in a more organized way, if you presented not just your story, not just a request, but if you present evidence, whether it's in the context of that hearing or if you're just sitting across the kitchen table with the other party, if you show them that you will be able to prove it, then it may actually lead you down the path of least resistance of settlement because the other side will go, "Oh, huh. Well I guess that makes sense. I guess I'm not going to get that support amount if that's all you're really earning. You know what? I didn't really track your earnings, so I thought you made more. Or I thought we had a lot more in the bank and I thought maybe you just made it disappear."

So we're talking now about division of property, division of debt. So I'm going to build off of what I just said. "Hey, I thought we had more." Well, we shouldn't just be assuming anything. Let's talk real numbers. So if you are approaching a case saying, "I want 50/50. Or it doesn't matter. I mean, it doesn't matter the percentage." To me, the base of that foundation you're trying to lay is, okay. You know that division of property and division of debt will be an issue. So you have on one hand debt. On one hand you have assets. So when you're dealing with, let's say the assets, number one, identify the assets. What accounts are in existence? What retirement, what 401Ks, what IRAs, whatever it might be, what brokerage accounts? What hard assets, artwork, jewelry, anything with significant value?

So now you've identified what exists. Then you can start thinking about, is it marital property or are there separate property claims? Again, not going to go into that. That's a bigger discussion and I've talked about it already. But what assets are there and then are they separate or are they marital subject to division? If you want to claim something separate, you better have proof that that's the case. You can't just say, "Yeah, you can't touch that. That's just mine." If it exists, the assumption is it's marital. You have to prove that it's separate, and there are specific rules relating to that evidence that you need to show, issues that can affect the separate nature.

So you're laying this foundation. Assets, is it marital? Okay, it's marital? Now let's talk about values. So you're talking about valuation. Do you just want one month of documents? Not if you can help it. If the asset in question has been around for years, get a few years of statements. If the other party controls that asset, if you have a concern about the spending from that asset, you're definitely going to want a number of years of statements. But again, you're laying this foundation and then you're identifying issues, which means you can start to gather the information you need. You can't just walk in and say, "He or she wasted money." "Okay, prove it." You can't just say that. Prove the other party engaged in wasteful behavior.

How do you do that? Well, records. When it comes to finances, that's the good thing. Unless you have assets in, let's say a safe or under your mattress or whatever it might be. Then it becomes incredibly difficult. Then it goes to the anticipation side that I was talking about earlier. If you know a divorce might be coming and there's a safe or there's a safety deposit box or there's a lucky mattress, then you want to identify, take some pictures, maybe some video, whatever, that the assets in question exist. There are other strategic concerns that, listen, if it's cash, if it just disappears, especially if that's the only cash you have, it's not like there are other assets to draw from. Once it's gone, it's gone. So there are other strategic considerations in terms of protecting that kind of an asset.

But now moving back to documents that you can get, evidence that you can obtain. The good thing with division of property and division of debt, property records. You're going to get statements for the bank accounts, brokerage accounts, investment accounts, retirement accounts. Start gathering that. And by the way, if you don't control those things and you don't have easy access, don't fret, don't worry. That's what discovery is for. The discovery process is that leveling of the playing field. It is the tool that allows for all parties to be on the same level, not to just allow one to control the information, which then gives them an unfair advantage. If there's an account controlled by person A, person B gets to see what's in that account. They get those records. So don't worry about that. But if you can obtain, then get the records.

And when it comes to spending, when it comes to debt, it's the same thing. You have to understand A, what debt is out there. If your position and what you're trying to accomplish is you want the other side to take on 100% of the debt, I'm not saying it's going to happen, but let's say that is your position, you better have some evidence. And that evidence better show that either there is such a disparity in your ability to earn your income levels, that the other party would be reasonable for them to carry those costs, or that maybe they engaged in irresponsible spending and it wasn't reasonable spending. They spent all that money because they went on shopping sprees and this and that, and literally over a span of X number of days or months blew through a whole bunch of money. In essence, the argument becomes judge.

But for that irresponsible behavior that seems to be occurring right as there's contemplation of, let's say a divorce, there would be a lot more money in the marital coffer, a lot more money available to divide by the parties. But now that party's going to walk away with, let me see this. Okay, there's Macy's and there's this and there's that. And there's department stores and online spending and Amazon. And I've seen things like cars being bought. I've seen things like real estate being bought. I've seen things like major investments in companies and/or transfer of assets just to third parties. You can't just say it happened. "He gives money to his family." "Okay, how much? When was the last time? Where'd the money come from?" And sometimes it becomes really hard because I've seen people who go to cash machines and they take money out of the cash machine. Well, obviously we're not going to get the records, at least not easily from the institution that manages those cash machines, but that means it's coming out of a bank record.

So as you can see, there's a lot to it. But if you think in an organized way, if you really break it down into lay that foundation, identify what you want to accomplish, identify the issues, and anticipate those issues, if you do those steps, you're going to put yourself in the best position possible to basically have an organized, reasonable position that you can defend, that you can present. And when there's pushback, the judge or the opposing party basically just has nothing to say and they just looking and go, "Okay, that makes sense." And hopefully you can then avoid that longer litigation and all that cost that goes with it. All right, we're out of time. Thank you so much for listening.