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Episode 95 - Top Divorce and Family Law Mistakes You Can Make

Episode 95 - Top Divorce and Family Law Mistakes You Can Make Image

11/20/2018 9:45 am

Going through a contested divorce can be one of the most emotionally traumatic things anyone goes through. Doing the right thing in the middle of the chaos quickly becomes one of the toughest challenges of the divorce process. Many people fall to the pressure and become their own worst enemy. In this episode, we discuss some of the Top Divorce Mistakes we see. Our hope is that those that listen to this show will learn from others and avoid these costly mistakes.

Transcript

Leh Meriwether:             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 1067. Here you'll learn about divorce, family law, 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 wanna learn more about us, you can always check us out online at atlantadivorceteam.com. All right Todd, you ready?

Todd Orston:                   oh, I'm always ready. I don't know if I'm gonna hear or learn or whatever. I'm here so I'm ready to go.

Leh Meriwether:             All right, good.

Todd Orston:                   So what are we talking about today?

Leh Meriwether:             The top divorce and family law mistakes that we see litigants make. So, not just people represented by lawyers but pro se litigants too.

Todd Orston:                   So let me translate that into actual English. The top mistakes people make in divorce cases.

Leh Meriwether:             Yes. What did I say?

Todd Orston:                   It was, I think you were just doing a word jumble there.

Leh Meriwether:             It was trying to wake you up.

Todd Orston:                   We try to keep people on their toes.

Leh Meriwether:             That's right.

Todd Orston:                   Yeah, top mistake attorney ... what?

Leh Meriwether:             Okay.

Todd Orston:                   So it's the top mistakes, so the whole point is, whether people are trying to handle things on their own of even if sometimes they get an attorney, there are things that people do, mistakes that people make that we constantly recognize. We advise people not to make them or how to avoid making them, and even when people are represented by an attorney, sometimes they just act in certain ways that actively harm their case. So these are the kinds of things that we're talking about. Mistakes that people make that can negatively impact and sometimes significantly impact your divorce.

Leh Meriwether:             Massively impact.

Todd Orston:                   Absolutely.

Leh Meriwether:             So, we're gonna talk about what we see and these are not legal mistakes. So we're not talking about mistakes that a lawyer could make in court or something like that, because well that's really hard to do when you're ... because every case is so fact dependent that you know, sometimes attorneys make judgment calls based on what they think the judge is gonna ...

Todd Orston:                   Yes. Strategic decisions. Right.

Leh Meriwether:             So, we're not gonna talk about that, because you know for most people out there, that's outside their control. I mean apart from choosing their lawyer, the rest of that's outside their control. So, we're gonna talk about what people can control. Things they can do during the case or things they should avoid during the case so that they have a better outcome. Whether it's by settlement or in front of a judge.

Todd Orston:                   All right, so what's the first one?

Leh Meriwether:             So, third party advice. Gosh, one of the most challenging things as a lawyer is hearing, "Well, I heard that so and so who got a divorce in the cul de sac that's right next to ours, well in her case she got this much in alimony and this much of the marital estate, and I think I should get the same thing."

Todd Orston:                   Yeah, my uncle's neighbor's pet turtle got a divorce and you know, got $15,000 a day of alimony. We deal with that all that time. Jokes aside, people will call and clients will come in, and part of our job, let me take a step back and say, part of our job, a big part of our job is to set expectations. To give our opinions and to say, "Okay, this is what I think, based on all of the facts and circumstances in your case. This is what I think you can expect on whatever the issue is that we're talking about."

Leh Meriwether:             In front of this particular judge, too.

Todd Orston:                   That's right. That's right. So that's our job, to set the expectations. The problem is, sometimes people will already have these preconceived notions, these expectations that have been set by talking with other people. Not lawyers, not people who practice family law, and a lot of times, it's just wrong. And so it's not that, like I'm one of those people, I'm one of those attorneys who will be like, "Look if you have somebody that you can rely upon that you wanna talk to, do it. This is a very emotional time for you, and if you have someone you trust, then absolutely don't shut the door to communication with that person." But sometimes I'll hear the advice that's being given and I'm like, "You need to shut that door."

Leh Meriwether:             Oh, yes, and I had a call not too long ago where someone called in, we didn't handle the original divorce but they were calling about an alimony modification and they said, "Well, I talked to two of my neighbors and they said they got lifetime alimony. Well, I only got 12 years. I think something went wrong in my case." And so I asked them, and I knew this person was calling from Florida, but their divorce was here in Georgia. So I asked them, "Now did your neighbors, did they happen to get divorced in Florida?" "Well, yes they did as a matter of fact." Well, in Florida there is such a thing, there is lifetime alimony. It's in a statute and if it was several years ago, after so many years of marriage there's a presumption of lifetime alimony awards. Not here in Georgia, and so I had to explain that to her.

Leh Meriwether:             So when you start listening to other people's cases, they may have been dealing with a different time, where the law, you know the law's constantly changing. So maybe they got a divorce five years ago and the law's changed since then. Or maybe they got a divorce in front of a different judge that thinks a different way, or another state.

Todd Orston:                   Or it could just be that there was an agreement between the parties, and one party gave away the proverbial farm because of whatever reason. "I wanted to be generous, I wanted ..." out of issues of feeling guilty, maybe they had an affair and they felt really bad and so they gave away a lot more than maybe they needed to, and then someone will come in and go, "Well, that person got $10,000 a month and their income is X and that's similar to my situation." It's like, "Yeah, but hold on one second. Did they have a trial? Did they actually ..." because your husband or wife is saying absolutely not to those types of numbers. And I don't think you're gonna get that from a judge. They got it by means of an agreement.

Leh Meriwether:             Yeah. So that's, you wanna listen to your lawyer's advice over the advice of third parties. Especially about what may have happened in their divorce cases. There may be some exceptions about that and we can talk about that some other time.

Todd Orston:                   So that goes into the next one, not listening to your lawyer.

Leh Meriwether:             Right, and so putting aside the third party stuff, you know a lot of times, and it's completely understandable. I'm not saying that the person who's doing this, I'm not saying they are a bad person or a stupid person. I'm not saying that at all. When divorce is, there's not too many types of situations dealing with court that are gonna stir up more emotion than a divorce. And a lot of judges have classically said, "I've seen criminal cases where the criminals come in, and you've got bad people acting on their best behavior. In divorce, you've got good people acting at their worst." It's the emotions are running high, and what happens is they hear advice from their lawyer and they don't wanna hear it, because it's not what they ... perhaps they feel like the other side needs to pay. Maybe there was adultery involved, and they say, "Well, that doesn't seem fair. How is it that he's not being punished for that," or "Why is it I have to pay all this alimony? She should go out and work."

Leh Meriwether:             So you have these things and when you don't listen to your lawyer and say, no I understand that but here's how the judge thinks about this issue and here's how the judge is gonna apply your facts to the law, and that's why you need to settle. And some people will just say, "I'm not, I wanna just roll the dice. I wanna go before the judge. My case is different," and you're sitting here, and from our standpoint, no it's not. "I tried three or four cases like this in front of the judge, very similar facts to yours. Not exactly the same but very similar and this is what the judge did," and then you go to court. And unfortunately you get the outcome that you expect, and it's not that you ... and you know some people are like, "Well, if that's what you're thinking, that's what we're gonna get." I'm like, "No, we're gonna fight like heck for you in the courtroom but I'm just telling you."

Todd Orston:                   Look, the way I put it is, "If you're going to spend to time and effort and money hiring an attorney to represent you and giving you the advice you need to make good decisions, then you need to trust that person. If you don't trust that person, and the advice that that attorney is giving you, then it's time to find another attorney." All right? Because what happens is, if you ignore that advice, again you hired the person because they understand the law. They understand the application of the facts in your case to the law. They understand who the judge is and which way a judge potentially leans on any given issue. Now, saying all this, that doesn't mean that you don't question strategy. That doesn't mean that you don't work hand in hand with your attorney to talk about the pros, the cons, the strengths, the weaknesses and come up with a strategy.

Todd Orston:                   There are plenty of times when we've looked at clients and we've said, "You don't really have much of a shot, with the percentage chance of succeeding is very low, and our client goes, "I need to fight the fight." For whatever reason, "I need to put this in front of a judge." Fine, done. We will fight tooth and nail for you and present the best case possible. What we're talking about, simple shutting down and not listening, when your attorney is giving you advice and it could be advice on a settlement, but it could also just be advice on behavior.

Leh Meriwether:             Yeah, and so the other thing too, a mistake I've seen people make is they'll not listen to their lawyer, they'll call another lawyer. Not give this lawyer all the facts, and it's not that sometimes the clients lie, but there are sometimes when, but not our clients. But sometimes people lie, but then there's other times that they just say what they think is important, and the lawyer says, well here's my legal advice based on what you told me, and so they switch lawyers. They spend a ton of money switching lawyers and then they get in front of this new attorney, and the attorney gets the rest of the facts, or they get the whole file from-

Todd Orston:                   Previous lawyer.

Leh Meriwether:             ... their back lawyer and they go, "Oh my gosh, you didn't tell me about this. Oh not, this is not good." So, it's like you said, we're not saying that you shouldn't question your lawyer. We're not saying that because you should understand what a strategy is being taken. What we're saying is, once that's been fully vetted, you really need to listen to your attorney. Hey, up next, we're gonna dig into more common mistakes we see.

Leh Meriwether:             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 1067. If you wanna learn more about us, you can always check us out online at atlantadivorceteam.com.

Leh Meriwether:             Well, today we're talking about the common mistakes that we see people make in divorce cases because unfortunately, sometimes the litigants, the people that are involved in the court case, they could become their own worst enemy. And so what we're trying to do is share things with you that we've seen that people have made mistakes, and that if you can avoid these things, you're gonna be a lot better off.

Leh Meriwether:             All right, number three.

Todd Orston:                   What I'm gonna call head in the sand, okay? And that's failing to act and procrastinating or putting things off, which ultimately results in you just not doing basic things that need to get done, and your failure to do those things can absolutely negatively impact you and your case.

Leh Meriwether:             And so we've seen this a lot with cases where you may have, I've seen it from both extremes like someone who doesn't want the divorce, so they think that, "If I just bury my head in the sand, it's just gonna go away. If I don't file the answer, they can't get a divorce." Well, if you don't file an answer, they can get a hearing, a final hearing and not give you a notice of that final hearing. This is in Georgia, and they can get a judgment against you, and we've seen just things where the spouse got 100% of the marital assets and this outrageous amount of alimony. When I say outrageous, meaning it was more than the person made. So you can't ignore the problem. You can't.

Leh Meriwether:             If you're struggling and which we've seen before, we totally get it. You know, this is one of the most stressful things anybody can go through is a divorce. But if you're at that stage where you're having trouble coming to grips with the fact your husband or wife has filed for divorce, you've got to get in to see a counselor to work through this, and you've got to put your trust in your lawyer that they're gonna file what you need to have filed, okay. So, don't put that off. Don't ignore discovery. So, if someone sends out discovery requests and say, "Well, if I don't answer, the case is gonna go away." No, because they can go to the judge and get an order, ordering you to turn it over, and they you're going to have to pay the other side's legal fees and everything. So, we've seen that happen.

Leh Meriwether:             Now on the other end of the spectrum, we've seen people that have made a mistake in their marriage. Maybe they've cheated, you know they've committed adultery. And so they say, "Well, I'm just, I'm gonna give up. She can have everything. He can have everything. I'll pay whatever they want in child support and alimony." No, and that's not a good thing either. Yes, you've made a mistake and you may have to pay for it, depending on the circumstances and the judge and all that sort of thing. But don't do something foolish like giving away the farm, because all that does is hurt you in the future when it comes to your children.

Todd Orston:                   Yeah. And again, feeling guilt about, let's say an affair and I'm not sitting here defending adultery, but you know suddenly saying, "I got caught in this affair, I'm going to give up on everything." Understand that adultery, as long as it was kept away from a child, it's not gonna have any bearing on custody, it's not gonna have any bearing on-

Leh Meriwether:             For most judges.

Todd Orston:                   ... for most judges, correct. It's not gonna have any bearing on child support. Alimony is not punitive so it shouldn't have any bearing on alimony and it may have an impact on division of property. So if you're walking away from the table and not negotiating on anything, well clearly you are causing yourself harm because the other party may get a lot of things that you wouldn't have had to give up had you just stay involved.

Leh Meriwether:             Right, and it doesn't mean you have to get ugly about it or sometimes say, fight, but you negotiate for something that's reasonable.

Todd Orston:                   That right.

Leh Meriwether:             Right, so let's go to number four. Agreeing to terms of a settlement agreement based on external oral promises. So, meaning that, "Hey if you sign this document, I'll let you ... yeah this document says you only have to pay $1,000 in child support, but I'll only ask for $800 a month." Or $500 a month.

Todd Orston:                   Or you know where I see it a lot? "Let's just do a weekend kind of parenting schedule. But don't worry, I'll let you have a lot of time with the kids. So yeah, it'll be a Friday to Sunday standard, you know maybe a week during the summer but don't worry, whenever you wanna see them and spend time with them you can." And people reach an agreement, they sign off on it, they don't talk to an attorney and lo and behold, a week in, month in, yeah in, all of a sudden the other party, there was a fight, an argument, whatever and the other party is like, "No, no, no. You have every other weekend and a week during the summer and that's what you're getting." And that's it and at that point, coming back and trying to modify, to undo what was done, if there hasn't actually been a change of circumstance may be difficult or impossible.

Leh Meriwether:             Yeah, and you can't say, oh they promised me this or they promised me that. Because most of the time these agreements have clauses saying there are no external oral promises, and it's a court order. The court's not gonna undo a previous court order. So, don't enter a settlement agreement based on what someone else has promised you. If they really intend on honoring that verbal or oral promise, then it should be in the written form. Because if it's not in writing and doesn't become part of the court order, the final court order granting the divorce or whatever. Whether it was a child custody action or legitimation, whatever it may be, it's not enforceable.

Todd Orston:                   Yeah, I sometimes jokingly say to clients that, part of my job, part of my role, is I get paid to be paranoid. I get paid to think about sometimes the worst case scenario in the future, and while you may not be just at war with your soon to be former spouse, understand that after a divorce the relationship is changed. And the person you are trusting will do the right thing may do the right thing but they may not. Or something may happen that they feel justified doing something different than what they orally promised.

Leh Meriwether:             They get in an argument like you said earlier or what we've seen is, one of both of the parties has a new significant other. And all of a sudden, that significant other says, "Well why are you doing something that's outside your agreement?" And the person goes, "Oh well, I guess maybe we'll follow the agreement."

Todd Orston:                   And it's interfering because, "I have visitation with my kids, and I wanna do this on this weekend," or, "I wanna go away on this vacation during the summer, and you're giving all this extra time, no don't." So things change so whatever, you hit the nail on the head. If it's gonna be the agreement, if that's what everybody agrees should be the terms of the agreement, make those the terms of the agreement.

Leh Meriwether:             Right, the written agreement.

Todd Orston:                   The written agreement. Okay. All right next, number five. Signing a settlement agreement before you talk to a lawyer. Okay.

Leh Meriwether:             Big no-no.

Todd Orston:                   Yeah, I will typically tell people first of all just like any business meeting, I don't care what you do for a living. If you're going into an important meeting, if you're trying to make the sale, if you're trying to close some kind of a deal, whatever it is, you don't go in cold. There's some level of preparation that you do. Why on earth would you go into a conversation that could potentially morph into a negotiation regarding settlement terms in a divorce, without doing some preparations?

Todd Orston:                   So, I typically tell people, before you even get to the point where there's an agreement to sign I believe, and I'm not saying this to try and drum up business. You talk to an attorney, educate yourself so that when you sit down you are educated and when the other party throws something unreasonable at you, you can say, "Wait, wait. Hold on one second. My understanding is that this is how that issue is handled. So, I'm not sure that's really reasonable." And you can have a good honest conversation and defend yourself.

Leh Meriwether:             Yeah, and to go to your point, you don't actually have to fully hire a lawyer. You know, you can just come in for a consultation for $300. That's the charge we normally have. And talk with them about what is common in the court system, what might be a good idea for their particular circumstances. What they should be thinking about. What is reasonable, what is unreasonable. At least from the court's perspective. And then when you have that conversation, like said, and the cool thing ... We need to have a show just on negotiation techniques. Because one of the things is, it's not you rejecting it, it's a third party rejecting when you say, "Well, my understanding is the courts, they don't like that, so I'm not sure that would fly.

Leh Meriwether:             Here's the other reason, well, I mean you may enter an agreement that you shouldn't. And that can, you know the question of it being enforceable, that's a whole nother issue. But sometimes you can enter an agreement, especially if the case is active litigation, that can be enforced by the court. So maybe you have a situation where your spouse is pressuring you. "Let's settle, let's settle, let's settle." And we're all about settlement, but what you do is you listen to them. You can say, "Okay, my understanding of your offer is XY and Z. Did I get that right?" "Oh yes, you did." "All right, well here's what I'm gonna do. I'm gonna go back and talk to my lawyer about it, and then I'll get back to you because I would like for us to resolve this between us to save money in attorney's fees."

Leh Meriwether:             And we like that, we really do.

Todd Orston:                   Absolutely.

Leh Meriwether:             But don't sign anything before you talk to your lawyer.

Todd Orston:                   Yeah, we were talking and I sort of strayed, I apologize, about talking with an attorney to educate yourself before you even get to a point where something is putting in writing. Put in writing. Oh my God, I'm catching it from you.

Leh Meriwether:             Put in writing.

Todd Orston:                   Yeah, but the other point, the main point is, if you do put something into writing or receive something from the other side, absolutely do not just sign. Because I can't tell you how many times people have buyer's remorse where they don't realize the actual impact and effect terms will have on them. Because they miss something, they didn't put something in that should have been there, or something was added that shouldn't be there. So, have an attorney at the very least, review it before you sign.

Leh Meriwether:             And don't be a penny wise and a pound foolish. It is worth paying the lawyer to review it. Hey, up next, we're gonna continue to go over some of the most common mistakes we see clients make in divorces.

Leh Meriwether:             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 1067. If you wanna learn more about us, you can always check us out online at atlantadivorceteam.com.

Leh Meriwether:             Well today, we're getting into the common mistakes that we see people make in divorce cases. Not just people represented by lawyers but people that try to handle the cases themselves. So, we've gone through what, five of them now.

Todd Orston:                   So number six. How about this? How about inaccurate information in a Domestic Relations Financial Affidavit?

Leh Meriwether:             Man, that is a hugely common mistake. And some people, they'll not take that seriously enough, and they won't focus and try to make sure all their numbers are accurate, or they'll try to give it to their lawyer at the very last minute, because they need to file it with the court, and especially here in Georgia. Well most states have a time requirement when you're supposed to file this before a hearing, so people rush through it, they don't make it a priority, and it gets filed and there's something wrong on it.

Todd Orston:                   Yeah, because you have to understand, as a litigator. As a family lawyer, part of my job is to ensure that the other party's claims relating to their budget, meaning the information in, we call it a DRFA. Domestic Relations Financial Affidavit. DRFA. So, that the information in the DRFA is accurate, and part of my job is to explore why the information may or may not be as accurate as it should be. And if it's not accurate, then it calls into question, or at least it's my job to call into question the credibility of that witness. Because if you are willing to put into a signed document filed with the court, and present it as evidence, and it's a notarized document, if you're willing to put false information into that, what other false information are you gonna give this court?

Leh Meriwether:             Right, that's the argument that we make. And even though it could be a simple mistake. Now there are some judges that kind of blow off the Domestic Relations Financial Affidavit but there's others that take it very, very seriously. They cite to it in their court order, their ruling. Like, "All right, I find, this is how we're gonna divide things up on." I had a case once, I mean it's everything from income and expenses but also assets, because I've seen someone listed on a financial affidavit $100,000 in jewelry. Well, when we went to have the itemization of the jewelry, we only were able to itemize $25,000. Now, my client also said they had over $100,000 in jewelry, and that he had remembered buying all of it. That was part of their retirement plan. I won't go into if that was a good retirement plan, but that was their, they were for whatever reason, that's what they were doing.

Leh Meriwether:             Okay, so she was claiming, "Well, we only had $25,000." Well I have a financial affidavit where she listed a hundred and he listed a hundred. So it looked very suspicious like she had suddenly absconded with about $75,000 in jewelry.

Todd Orston:                   And even if, because if we're talking about the actual, damn I'm getting choked up. The actual ... if I, tissue do we have tissue? No I don't need tissues out. I was looking for tissues to get me, I promise I'm not gonna cry. No. Even if the court doesn't take that into account, and basically take the missing asset and assign some value to a party, the impact on the credibility could be far more damaging because in other words, let's say, "Well there's $25,000 missing. Even if the court says, "Well, it's not there, I'm not doing anything about that." But now the court doesn't believe you? That impact, that harm to your credibility in the eyes of the court can have a real impact and can influence the court's decision on a whole bunch of other issues.

Leh Meriwether:             And here's another thing, we're all about settlement, we're trying to avoid court if we can, but as lawyers, if we have an affidavit and we look at it and go, "Well, this is not accurate. I know there are things that are not being disclosed here," we're now bound to go, "Okay, are they hiding things? This sounds like they're hiding things. When there's smoke, there's fire." And we have an ethical duty to explore that, or at least tell our client, "Hey, look, this doesn't look right. We can't explore it. Here's our avenues. We can do discovery and everything."

Leh Meriwether:             So, what happens is, if you start the case off with a bad Domestic Relations Financial Affidavit, and then we're not talking about off by five or ten bucks. We're talking about something significant. What it can cause the case to do is suddenly get more expensive. Because the other side, and it could be driven by the client, not the lawyer, the other side suddenly says, "You're hiding money." Or, "You're not being honest about everything, so we need to do a lot of discovery."

Todd Orston:                   Ut-oh, and also very quickly before we move onto the next one. Also, if you do one and you don't do a good job, and then you do another one and the numbers are different, if you don't think that the attorney is going to call into question the accuracy of your DRFAs-

Leh Meriwether:             The both of them.

Todd Orston:                   ... because it's like, "Well hold on one second. Here you said you have nothing, and here you said you have $100,000." Or, "Here it was $50,000 and here it's nothing. Ma'am, three weeks between these two drafts," or "Sir, it's clearly one is very, very, very wrong, okay? So which is correct?" Is it, there's money or there's an asset, or there's not. So you have to spend the time to make sure it's accurate.

Todd Orston:                   Okay, enough on that, let's go to the next one. Because I don't want to procrastinate.

Leh Meriwether:             Don't put it off. No, so procrastination. This is a little bit different than head in the sand, okay. So you have people that are, they don't have their head in the sand, they're very involved in the case, but they don't make their divorce a priority. And we actually had a whole show on How to Make Your Divorce a Priority, I think it was episode or show 53, if you want to go back and listen to it. But how to make your divorce a priority, you need to understand how to do that. Because here's what happens. You have someone who is active in the case, or talking to the lawyer or talking about strategy, and the lawyer says, "All right, here's what I need you to do. I need you to ..."

Leh Meriwether:             Let's say the issue is, there's an assertion that the husband's an alcoholic and he's denying it. "Okay, I need you to go an itemize," let's say the client's like, "I need to save money." "Okay, great. Well, we'll let you itemize all the bank records and every time he made a trip to a liquor store, and add it up for me." "Great, I'll do it, I'll save money." A week goes by. "I'm waiting on that Excel spreadsheet. Have you been able to do it?" "Oh, no. I'm gonna get to it next week." Next week, we don't get it. Next thing you know, court is two days away and we still don't have the report, because the person kept procrastinating. Don't put it off.

Leh Meriwether:             If you have something high priority, and a lot of times you know, use, if there's kids involved, take advantage of the other parent seeing the children, for you to do that work. The Domestic Relations Financial Affidavit is a great example. A lot of time we see inaccuracies because people procrastinated in doing it and then they threw something together kind of sloppily. And then we as lawyers are obligated to take advantage of that for our clients. So.

Todd Orston:                   Yeah, and let me say this. We have clients that will sometimes come to us at the end and they'll be like, "Why is this taking, why is this eight months in? Nine months in and we're not done yet?" And we'll say, "Well, hold on one second. It took us two and a half months to get some basic information, and then it took another two months to get responses to this discovery, and then it took another month or so to do XYZ." And it's like, the best way, if I could give any advice to anyone who has to go through this, it is again, don't procrastinate. Be as active and involved in your case as you can be. Do things as quickly as you can, because then there is no excuse as to why you can't get to the table, start talking and negotiating, and try and get the matter resolved.

Leh Meriwether:             You know, you reminded me another reason why I don't procrastinate. Because when you procrastinate, let's say somebody's asked for some discovery, or maybe it's financial information, and you wait til the very last minute to turn over, sometimes it can lead the other person to think that, "Oh, you don't wanna disclose this." But if you, you get the discovery question, boom within a week or two you've turned over everything. Wow, that looks to the other side, they don't have anything to hide. They wanna come to the table and negotiate something that's fair and you increase your likelihood of one, your case being less expensive, and two, you reaching an amicable resolution and through settlement, rather than through trial.

Todd Orston:                   So, let's move onto, I'm gonna sort of combine eight and nine together.

Leh Meriwether:             Okay.

Todd Orston:                   This is the wild, wild west scenario. They don't shoot from the hip. What does that mean?

Leh Meriwether:             So, there's two areas I think where it's important not to shoot from the hip. One is mediation, and two is court.

Todd Orston:                   And what do you mean by, or what do we mean by shoot from the hip?

Leh Meriwether:             So, shooting from the hip, it's actually a term that I think, was there a movie called that? It was a lawyer movie. Where it was, I thought, anyways. I'm gonna have to find that now.

Todd Orston:                   I was speaking more, I mean if we're gonna get into movie trivia ...

Leh Meriwether:             I'm gonna have to go look that up, because there was a lawyer and that was one of the discussions, he was shooting from the hip, meaning that rather than preparing, he was just walking in and winging it. He was just boom, shooting, just firing off cross examination questions, without thinking about the merits of those questions. Like, "Am I actually leading the jury or the judge a certain way?" Or he's just rapid firing questions just to look good?

Todd Orston:                   Yeah, and attorneys need to be quick on their feet, so technically speaking, they need to be able to deal with any issues and shoot from the hip in dealing with those issues that may be, those curve balls that come at you in the middle of a hearing or in the middle of a mediation. But that's not how you should be preparing for these things.

Leh Meriwether:             Right, and so we're mainly talking about you as the client. And if you're preparing for mediation, and sometimes people think, "Well, mediation, it's really informal. What do I really need to prepare? Can't we just go and talk?" And that's where a lot of people can get in trouble, enter agreements they shouldn't.

Todd Orston:                   Or not reach an agreement.

Leh Meriwether:             Not reach an agreement.

Todd Orston:                   You know, eight hours later, you're scratching your head wondering why things didn't get resolved, and people come to us and are like, "Well, we already tried mediation," and we'll jump in, look at the file and say, "Well, because you weren't prepared."

Leh Meriwether:             Up next, we're gonna get into more of these.

Leh Meriwether:             Todd, while we're on a break, let's take a moment to speak just with our podcast listeners.

Todd Orston:                   Great idea, Leh. First, thank you for listening. If you're a client of ours, thank you for taking the time to educate yourself. It really helps us help you.

Leh Meriwether:             And I wanted to thank those that recently took a moment to review our podcast. We really appreciate it. If you feel like you're gaining a value from this show, please take a moment to post a review. The reviews help others find the show, which allows us to help even more people.

Todd Orston:                   And if you're not sure how to post a review, our webmaster's put together a simple explanation on our webpage. You can find it at mtlawoffice.com/reviewit. That's M as in Mary, T as in Tom, lawoffice.com/reviewit.

Leh Meriwether:             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 1067. Here you will learn all about today, the common mistakes we see in divorce cases. If you wanna read more about us, you can always check us out online at atlantadivorceteam.com.

Leh Meriwether:             All right, well we gotta go rapid fire.

Todd Orston:                   Yeah, we were talking about not preparing for mediation, not preparing for court. So, let's quickly go to number 10, which is failing to take an active role in your case. Okay.

Leh Meriwether:             Yeah, so I'm gonna sort of tie that with those other two.

Todd Orston:                   Yeah, absolutely.

Leh Meriwether:             Because what happens is, people don't prepare for mediation, and so you need to take an active role and if your lawyer's not ... Let's say mediation's been scheduled and your lawyer hasn't reached out to you to say, "Hey, let's have a pre-mediation meeting, to make sure to make sure everything is, we're on the same page with everything. What you want, make sure all the documents are together and everything. Take an active role and reach out to a lawyer to schedule a pre-mediation meeting, and then don't just do that. Show up with, so let's say you've got two credit cards, two bank accounts, a retirement account. Get all that stuff together. Get the most current statements, come in to meet with the lawyer, don't have the lawyer have to ask you for it. Bring in the most current financial statements that you have, come to the table with, "Here's what I'd like to see as far as parenting time," if there's kids involved. Come in prepared.

Todd Orston:                   Just generally speaking, come in prepared. Because we could have a whole show on how to actively and properly prepare for-

Leh Meriwether:             We need to.

Todd Orston:                   ... meetings and absolutely. But the bottom line is, walk in prepared. There are too many people. Here are the extremes. The extremes are, there are people who, once they pay a retainer and hire an attorney, it's almost like they feel like, "I'm done. I've done all that I need to do."

Leh Meriwether:             The lawyer's gonna do everything.

Todd Orston:                   Yeah, you do everything and almost like a leave me along kind of attitude. And then there are people who want to just micromanage and that can interfere with the attorney/client relationship, and it also is something where you're never gonna be happy because you're not trusting the attorney and the attorney's ability to come up with strategy, and implement strategy. So you have to find a middle ground, but the middle ground absolutely should include active participation. Be proactive, don't procrastinate, and be a part of the team, because that's the way. When we're hired, the way that we like to think of it is, it truly is a team. Yes, you're hiring us for our expertise, but we have to now work together to accomplish your goals.

Leh Meriwether:             Right. So when your lawyer says, "I need you to come in to help prepare for court next week and talk about what your testimony's gonna be," don't ignore it. "Well, can't you just testify?" Nope. You need to be part of, take an active role in that preparation for that hearing. And here's another really important thing that I don't wanna, I know we have a lot of things to get to but I think this is critical. Because we've seen these mistakes, too.

Leh Meriwether:             If your lawyer is not getting back to you, if you've taken an active role, and I'm not saying you're not micromanaging, I'm not saying you've called five times that day for the last five days, that may be a little bit too much. But I'm saying if you've called three times in a week and you haven't gotten a call back and there's a hearing around the corner, you may be ... there may be a reason to be concerned. Because we've had cases where, I've actually had three cases where the lawyer in the middle of the case was disbarred. Which means they're not allowed to practice law and they just kind of disappeared, and gosh, I actually had a call two weeks ago. Where the person wasn't getting called back and I did some research, and found out the lawyer was in jail. He'd been arrested, and so he wasn't getting back to him.

Leh Meriwether:             So you've got to take an active role. So, in one case, the lawyer was getting notices of court, but he had disappeared and wasn't relaying them to the client. So there was a hearing held without our client's notice. Thankfully I got that one overturned, because he'd been disbarred. So the information should have gone directly to the client. Anyways, when you take an active role, that also means you're holding your lawyer accountable. That's what I wanted to make sure we threw in there.

Todd Orston:                   All right, next one.

Leh Meriwether:             Firing off emails or texts when you're angry or tired.

Todd Orston:                   Yeah, we've spent significant time on that in previous shows, but just to repeat, we're all to some degree, driven by emotion. We're emotional animals. I'm not trying to play the therapist here but it's true. I am guilty as everyone else when somebody upsets me, or angers me, that I wanna sit down at my computer and just start typing, tap, tap, tap. And I'm like, "Whoa, when you get this." But we train everyone at the firm, we train ourselves to once we are done tap, tap, tapping, walk away. Take a deep breath. Don't put an address into the send portion of the email, so that you don't accidentally send it before you have ...

Leh Meriwether:             Don't type it if you're on the phone, don't type it as a text message. Type it in the notes section. Most phones have a note section. Type out your email or text message you wanna send but probably shouldn't.

Todd Orston:                   Because words can hurt you.

Leh Meriwether:             Yes.

Todd Orston:                   Okay, they don't hurt you physically but-

Leh Meriwether:             They hurt you in court.

Todd Orston:                   ... as we have said time and time again, sort of like the Miranda warnings, anything you say can and will be used against you in a court of law. So, if you say something ugly and angry and insulting, be prepared for that to get thrown back in your face at the appropriate time in front of a court. So, be careful what you do and what you say.

Leh Meriwether:             And so avoid it when you're tired because sometimes you say things, you don't use a filter because you're tired, and when you're angry, definitely don't do it.

Todd Orston:                   And if you have the ability, we in our firm have a second eye policy. We want people to review those types of communications to make sure that, "Hey, I may be too invested here, and too emotional on this issue."

Leh Meriwether:             Yeah, sometimes you can have your lawyer look at some of them. And we even had Diane Dierks on the show, I mean she's got a class where she goes through and says, and looks at your text messages and your emails, to help you write better messages to the other spouse or ex-spouse.

Todd Orston:                   Okay, all right so next one. Calling your lawyer so many times that you use up all your money on phone calls and they have to withdraw. Okay.

Leh Meriwether:             And we've had to do that a few, I hate to do it, but we've had situations where the client would call or would call so many times during the day, that it would just chew up their retainer and they ran out of money, and we had to withdraw. So, I mean we get paid by the hour. So, and we have a whole show, actually a little while ago, we need to do another one, on how to effectively communicate with your lawyer.

Todd Orston:                   Yeah, I once had a client, very quickly, I had a client who left and was with another attorney, and complained about the billing and was very upset, and I looked at the billing and there was just hours of phone calls, hours of email, hours of even in office meetings. And she came in and started to act the same way, and I had to stop and say, "You know, all right. Hold on a second. I know you weren't happy about the billing over there, but you need to start ..." and I didn't say it this way but you need to look in a mirror. You need to understand that your behavior is resulting in some of these costs. You need to understand how to effectively and efficiently communicate with your attorney, because if you do that, you're gonna cut your bill by 25%, 50%, 75%.

Leh Meriwether:             And you'd rather have your lawyer prepare your settlement paperwork, prepare you for mediation, rather than to being on the phone all the time. Not that we don't want to talk to people, we just wanna be efficient with the time we spend on your file.

Todd Orston:                   Yeah, and instead of sending 50 emails with one question each email, that requires a response to each email, send one email with 50 topics or 50 questions. Then the attorney can say, "Oh okay. Well that's organized. Let me go through, answer, answer, answer, answer, answer, here's one email response." And what took twenty minutes to respond to all those things, what didn't happen is instead of it being 50 minutes or two hours responding to 50 different things, it only took 20 minutes.

Leh Meriwether:             All right, so the last one, I wish we had more time for it. Lying. I mean, that might be one of the worst mistakes that you can make in a divorce. Is absolutely just flat out lying during the course of the case. That will get you in so much hot water. I have seen judges get so angry from the bench, because someone lied to them, perjured themselves on the stand. You know, there are some situations where you could be arrested for that, for perjury. But there are definitely situations where we have seen, I mean to the benefit of our client, we caught the other side in a lie on cross examination, where they got hammered at the end. My client got 80% of the marital estate when normally it should have been maybe 50 or 60% but because the other side lied, boy there was a $200,000 swing on what recovery was for my client.

Todd Orston:                   Yeah, there's as I said before, I know we're almost out of time. It's all about credibility. And if you lie and get caught in that lie, and first of all, an attorney shouldn't be letting you lie. But if you get caught in a lie, it could be the smallest little white lie. It could damage your credibility which can then impact what the court does in terms of a final order on all the issues.

Leh Meriwether:             Yeah, well hey, thanks everyone for listening. That about wraps up this show. If you, you know what, if you're getting a lot out of this show, we would love it if you could review our show. You can check us out at mtlawoffice.com/reviewit. That will give you instructions on how to review the show. You can also watch the show at youtube.com/atlantadivorcelawyer. Thanks again for listening.

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