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Episode 57 - Understanding the Divorce Process and Why It Can Take So Long - Part 1

Episode 57 - Understanding the Divorce Process and Why It Can Take So Long - Part 1 Image

11/20/2018 9:05 am

One of the biggest complaints we get from even our happiest clients is the length of the divorce process. And they are not alone. As attorneys, it is also one of our biggest struggles with the legal system. For this reason, we decided to dedicate this show and the next two to the legal process. We take a sample case and walk through its life cycle, breaking down some of the most common delays that people may encounter and how it expands the overall length of a case.

Transcript

Leh:                       Well Todd, you know one of the things that people really struggle with in divorce is just because it can take so long. A divorce process can take so long, so people really get upset when they don't understand what's going on.

Todd:                    Knowledge is key. I mean that's why we do a lot of the things that we do, this radio show, the website. You know it's all about giving information, because it really is so easy to get frustrated when you don't have the information you need to understand what's happening, what's going to happen. So that's what we try to do. We try to give that information so it can hopefully alleviate that stress.

Leh:                       And that's what we're gonna do today. We are gonna really unpack the divorce process to explain what's really going on. 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.

Leh:                       Here you will 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 want to learn more about us, you can always call or visit us online at AtlantaDivorceTeam.com.

Leh:                       Todd, we've been talking about for a while now just kind of breaking down how to set yourself up for success. I mean obviously success to us is first you save your marriage, but let's just for the sake of this show, it can't be saved for whatever reason or a decision's been made outside of your control and now the divorce process has started. We look at success at resolving your divorce case without just an ugly divorce battle. And we like to see win-wins. Because usually when there's children involved, it's the best thing for them. They're the ones who are always caught in the middle when there's kids involved.

Todd:                    Yeah as we say, divorce hurts, it doesn't have to be nasty. And that really is what our whole philosophy is about. We understand that emotions run high in divorce. We understand you do not at that point see eye-to-eye with your spouse on all issues. That does not mean you have to become enemies. It doesn't mean that you can't try and work things out, you can't try and hopefully get through the process in an amicable fashion so that at the tail end, things aren't ... I don't know, the relationship isn't destroyed, and especially when there are children.

Todd:                    You still have a lot of years that you're gonna have to interact, and if you end the process as enemies, it's gonna make it a miserable many years.

Leh:                       Yep.

Todd:                    I've seen it take years and years to heal. Sometimes it never does.

Leh:                       Yeah. One of the frustrations that we see during the process is it taking so long. What's taking so long? Why is it taking so long? So we wanted to spend today and probably, because I know we're not gonna get to everything. We're probably gonna spend the next show as well talking about the process.

Leh:                       Where we are, let's assume for the moment that the decision's been made to go forward in the divorce. And depending on where you are in that process, you've hired a lawyer at this stage, and as far as the next step, we really talk about three possible options that people could take. You've got gather more information, you've got sit down across the table, that's what we say, sit across the table with your spouse to talk about the issues and how you can settle your case, or three go ahead and file the divorce, which officially starts the divorce process from a legal standpoint. Let's kind of break down each one so people understand what that is.

Leh:                       Gather more information. Why is it sometimes we tell our clients that, "Hey, let's gather more information before we rush in the courthouse to file something."

Todd:                    Well there's a few reasons. First of all, obviously in a divorce context, information is key. All right? So whether you're dealing with custody issues or alimony and support issues or division of property issues, gathering the information that you need is gonna be extremely important. Because those documents become the evidence that form the justification for whatever position you're going to take. So it is important sometimes to do the gathering of information at the front end. Because sometimes I know you may not believe this, but information can sometimes go missing.

Leh:                       It's not supposed to.

Todd:                    It's not supposed to, but therefore it might be sometimes good to gather the information before you even have discussed or sat down and really broach the subject with your spouse, divorce. Because what you don't want to have happen is documents disappear or even the assets themselves disappear. We believe that it's good, gather the information, we know it's there, that way we can track it. And if it disappears, we at least know it existed and can prove that it existed.

Leh:                       Right. And I'll say, just because it may disappear, the other reason the advantage of getting it ahead of time is because if you have it ahead of time, then you don't have to do what's called discovery, we're gonna talk about that later. But you can find that information, 99% of the time, but you're gonna spend a lot of money in the court process with legal fees trying to get that information. So if we can get it up front, it could save you money down the line.

Todd:                    Yeah.

Leh:                       And it could set you up for possibly settling the case, too. Because perhaps someone is in the middle of an affair. So they may break off the relationship if you go ahead and file, before you've gotten to get the evidence together that's admissible in court, that's the key. Is it admissible before a judge.

Todd:                    Yeah. I just heard someone talking on the news, and basically there was a quote, I'm not gonna get it right, but it was something along the lines of that sometimes these breakdowns occur when there is just a fundamental inability to basically agree on the basic facts.

Leh:                       Right.

Todd:                    So if you have two parties who can't agree on basic facts, what accounts exist, what the values of those accounts are, those types of things, then you are absolutely going to have conflict. Because you might say, "Oh I remember, there was $50,000 in that account." But you don't have the documents and the other side might be saying, "That $50,000 was used to, whatever, shampoo the dog." You know?

Leh:                       That's an expensive dog.

Todd:                    It's a very expensive dog. But there's a basic misunderstanding and inability to agree, and that's gonna create a breakdown in the negotiation process.

Leh:                       And documents, well that eliminates the arguments. Say, "Well you think it was $50,000. There's actually 25,000 documents, documents-

Todd:                    You'll get it, keep guessing.

Leh:                       ... $25,000 because here's the document that proves it.

Todd:                    Right.

Leh:                       And it actually helps to eliminate arguments or reduce the amount of arguments, which helps facilitate settlement, which is what we like to work towards.

Todd:                    Yeah and I think if I had to sort of sum it up in one way, it would be remember what the goal is here. And the goal is not a W in your collum. It's not the win.

Leh:                       Right.

Todd:                    This is a process, and you need to get through the process. Obviously you want to be treated fairly. Our job is to make sure that our clients are treated fairly. But the goal is not a win, the goal is to be treated fairly, and you're only going to be able to reach that agreement if you have the tools necessary to accomplish your goals, and that includes gathering this information.

Leh:                       Right. All right, so one of the other options is to sit down, discuss the core settlement issues with your spouse. And sometimes we do that because perhaps the parties have been talking about divorce, that issue has come up. And if one party just runs to the courthouse and files for a divorce, the other one can feel betrayed. Because they're like, "Hang on a minute, I thought we were gonna work this out." Now all of a sudden the other side gets served, and we're gonna talk about service in a minute. But the other side gets served with the divorce paperwork and oh my gosh, all of a sudden the defenses go up, the armaments get put in place, and we begin to go to war. And that, again, becomes expensive. And we say these things-

Todd:                    Yeah.

Leh:                       ... Because we've been there. We've done this, and we know that there are situations where you're not worried about documents going missing, you've got two good people that just happen to be at a place in life where they feel like they need to get a divorce. So sometimes the best thing to do is sit down, and have a discussion.

Todd:                    And sometimes that's not possible and we recognize that.

Leh:                       Yeah.

Todd:                    If there are safety concerns, if there are anger management issues, things like that, if we believe that by sitting down and talking and therefore telling the spouse that hey a divorce is coming, assets could disappear, other bad things could happen. Then sometimes that's not possible. Sometimes it is, though.

Leh:                       Yeah and that leads us to the third, usually next step, and that's to go ahead and file for divorce. Usually when you see situations where that is is you've got some sort of concern about anger management you got a concern about things going missing. So when you file for divorce, most counties in most states, I think it's all I haven't done a complete audit of every state in our great country, but you'll see where it says, "Okay, once a divorce is filed, all the assets need to be accounted for," essentially. So there's a standing order that goes in place, and in most jurisdictions it says that the assets shall not be depleted, except in the ordinary course of business.

Todd:                    Yeah and that's a bigger conversation.

Leh:                       Right.

Todd:                    And I think we should dive a little bit into that, because that terminology becomes a question to so many people. Because they'll say, "Okay, I got the paperwork." Or you're about to file this paperwork, there's a standing order. "I've read it, but I'm not sure I really understand what it means. Can I spend on this? Can I use this asset? Can I use that asset?" So there are a lot of question that come up in terms of what the standing order really is meant to do and what it actually does that I think we should go into.

Leh:                       Yeah definitely. Another situation where you would want to go ahead and file for divorce, if someone, you've got a spouse that doesn't have much access to resources, and if the issue of divorce comes up, the other spouse is gonna cut them off from all financial support. So sometimes you need to go to court to get what's called a temporary order, and we'll talk about that in a few minutes, that it lays out what you're supposed to do. Then another situation is where sometimes you have someone say, "Well if you file for divorce, I'm taking off with the kids." So if you give them a heads up, they may leave the state with the kids. So those situations are ones where you may want to go ahead and file for divorce and get that standing order.

Leh:                       Up next, you're gonna continue to hear the key elements of the divorce process. You don't want to miss it.

Leh:                       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.

Leh:                       If you want to learn more about us, you can always call or visit us online at AtlantaDivorceTeam.com.

Leh:                       Well Todd, we've been diving into the divorce process. And the goal of diving into this and going a little bit deeper than I think we've ever gone is to give people as much information about what goes on in the process of the divorce and maybe not going a deep dive in every segment, but at least giving more information, so that people really understand the things that can occur over the course of a divorce that cause it to take so long. Because some people, we've seen divorces, even the ones that are relatively uncontested take three months up to we've seen some go on for years.

Todd:                    You know the one cause of a lot of anxiety, you know we talk to people every single day who are either going through this process or about to go through the process or just contemplating it and trying to understand rights and obligations and all of that. And these things that we're going into right now, which to you and I and other people who practice in the field are second nature, right? It's just very basic information. I can tell you it is the cause of so much anxiety. People who call up and they're like, "I don't know about X, Y and Z and I am freaking out. I don't know what to expect." And in a 10, 15, 20, 30 minute phone call, just providing the basic information that we're gonna go over throughout the next two shows, all right, can relive so much anxiety, which is again we know. It's not a matter of think. We know this topic and this information is so important.

Leh:                       Yeah. In the last segment, we broke down sort of you've hired a lawyer, then there's possible three roads you can take. One was try to gather more information before you file for divorce, sit down and discuss the core settlement issues with your spouse, or file for divorce. And we kind of broke down why you might want to do one of those three things.

Leh:                       Now let's say you were able to sit down with your spouse and come up with a settlement agreement, agree to everything. Then you would go ahead and file what's called an uncontested divorce. And I know this is a sticking ... Drives you crazy sometimes that the terminology between contested and uncontested, and I think this is probably a good time-

Todd:                    Hate it. I was away from the microphone, I don't know if you could hear that. But-

Leh:                       Let's break this down.

Todd:                    Yeah.

Leh:                       It's really a term that the clerk of court wants, there's a box, literally on a lot of these forms. They check, is it contested or uncontested.

Todd:                    Yeah. The way that the courts define those terms and the way that most people and even a lot of practitioners think of it are very different.

Leh:                       Yeah.

Todd:                    Okay? So when people call and they'll say, "No, no, we want this to be uncontested." We have to explain to them, well first we gather information but then we have to explain, okay. What that really means to the court is you already have a full binding agreement.

Leh:                       Right. When you filed.

Todd:                    When you filed. So in other words, it's not that you think it's going to be an amicable divorce. "I think I'm going to be able to reach an agreement." It is that you have sat down and you have all but reached a full agreement and signed the documents and you are ready to walk into court to take what's called a final, get a final order. But most people who call up, they will say, "I get along very well with my spouse."

Leh:                       Right.

Todd:                    "We are talking about the issues. We want to file this as an uncontested divorce." But then we dig in and we're like, "Alright, so you've agreed on all of the custody issues, the parenting plan, the legal decision making? Or how about child support or how about all these issues?" And the answer usually is, "No, no, we haven't reached an agreement on all those things."

Leh:                       We haven't gotten to the details.

Todd:                    Exactly. But that's what the court ...

Leh:                       The court wants the details.

Todd:                    They want the details and expect the details.

Leh:                       Right.

Todd:                    There are some courts that if you mark down that it's an uncontested case, the court without you even knowing will put you down-

Leh:                       And we're talking in Georgia.

Todd:                    In Georgia, will put you down on a calendar for a final. And I can't tell you how many times I've seen people where Johnson V. Johnson. Are you here in court? And the two Johnson's step up, and the judge says, "Okay, come on up. Take the final. Where are your documents?" And they say, "Oh no, we don't have documents yet." And he's like, "Well you filed this as an uncontested. And to the court that means you've already reached a full agreement, so do you have an agreement?" "No we don't." "Alright," so you just wasted an entire morning in court and you're sent away and told, "Okay, come back when you're ready."

Leh:                       Right. Just to be clear to those listening, uncontested simply means that when you filed the complaint for divorce, and that's the legal document that starts the entire process, when that's filed with the court, if you have not completed in Georgia and every state's different for the naming of it, but a settlement agreement that handles assets and liabilities and alimony, child support worksheet, a child support addendum, and a parenting plan laying out who's got the children when and where-

Todd:                    And financial affidavits.

Leh:                       And financial affidavits, yep. Yeah because Florida requires when you file financial affidavits and that sort of thing, so if you haven't filed those with that, then the court's gonna consider it contested. Now does that mean you have to try your case? If you file it without a settlement agreement, Todd does that mean you have to try your divorce case?

Todd:                    No, absolutely not. All it means is you're not ready yet.

Leh:                       Yeah.

Todd:                    It just means-

Leh:                       It just means we haven't reached a binding settlement agreement.

Todd:                    That's right. My personal opinion, what I wish was the case is that the terminology used by the court would be with agreement or without agreement.

Leh:                       Yes.

Todd:                    Something along those lines. Something where it's more clear to people that do you have a full agreement and all the documentation? No, okay well then just file it that you don't have those documents yet.

Leh:                       Right.

Todd:                    And you can still deal with this as an uncontested in the sense that you're gonna work together, hand in hand, with your spouse to try and quickly come up with an agreement and there's not gonna be a lot of fighting, it's gonna be amicable.

Leh:                       I know we're spending a fair amount of time on this, but I think it's important because I've had so many cases where the other side received their paperwork and they got a copy of the form that was filed with the clerk and the box was checked contested and the person receiving it was very upset. They said, "I thought we were doing this uncontested." And it literally cost our client money. The other side ran out and hired a lawyer and got all, I don't want to say lawyered up. Got geared up for a battle when it didn't need to.

Todd:                    Yeah they took an aggressive stance.

Leh:                       Right.

Todd:                    Only because of a misconception, a misinterpretation-

Leh:                       A box.

Todd:                    ... That contested, oh they want to fight? Well fine, bring it on, I'm gonna go gear myself up for that fight. When all it meant was we don't have an agreement yet.

Leh:                       Yep. That's what it means. When you do it uncontested, you file it with all the paperwork. We love to go that route, because you're not dealing with the court process, which costs more money, and we'll talk about that later. But you're coming to court and basically here in Georgia, you wait 31 days after filing, because most of the time it's checked, it's based on the marriage is irretrievably broken, so you wait 31 days. And after 31 days, you can have a final hearing-

Todd:                    It's a cooling off period.

Leh:                       Right.

Todd:                    That's really what it is. It's a right or wrong, and some states have much longer than 31 days. 31 days I think is an appropriate cooling off period, and that just means from the date that the person is basically either served and an affidavit of service is filed or they sign an acknowledgement of service that gets filed with the court, then you have to wait 31 days before the court can issue a final order.

Leh:                       Right.

Todd:                    But during that period of time, we're not sitting around doing nothing, right?

Leh:                       Yeah, no. You're just getting ready. Oh let's take a step back. I will keep talking about uncontested, I guess. Once it's filed, then both parents need to go take, and this is true in Georgia and I'm pretty sure it's true in Florida and most states now.

Todd:                    You have to just check. Whatever jurisdiction you're in, you just have to check.

Leh:                       Yeah. But there is a requirement that both parties attend a parenting seminar, co-parenting seminar. Most of them are around four hours long or so, depending on your jurisdiction. But here in Georgia, I'm pretty sure it's four hours, and you just learn how to co-parent.

Todd:                    It's good. I've sat through it just because if I'm telling clients that they should go, I wanted to see what it was all about.

Leh:                       Yeah.

Todd:                    And you know what? Some of it is common sense, but it's all information that when you're going through the process, you need to hear it.

Leh:                       Yes.

Todd:                    You may be the best co-parent in the world, but it's a great reminder of why it's so important to co-parent well.

Leh:                       Yeah, exactly. You take care of that, so when you show up in the court, because I'll tell you in Georgia in particular, and there are certain judges, they will not grant the final divorce on an uncontested basis, even on an uncontested basis unless both parents have taken that parenting class.

Todd:                    That's right.

Leh:                       Now I have had a few where it was uncontested but you had kind of a parent that moved out of state and was very reluctant about the whole process that really almost abandoned the family, not exactly, or financially supporting them. But from an emotional and physical standpoint, they'd abandoned the family. So what the court did in some of these cases was they granted the divorce provided that the primary fiscal custodian, the one who had the children the majority of the time took the parenting course, then that parent could actually deny visitation to the other parent until they took the course. So that was actually written into the final order that gave them that ability to deny visitation until they took the course. So I've seen that exception a few times.

Todd:                    Oh absolutely I've seen that also. I've been in cases where I thought both parties had taken it, only to find out at the tail end our client did but the opposing party did not.

Leh:                       Right.

Todd:                    And the court has said, "We're not doing this right now."

Leh:                       Yeah.

Todd:                    You know, I mean I'm sorry it's an inconvenience to everybody, but go do it.

Leh:                       Yeah. Which is frustrating.

Todd:                    And we've seen also, I've seen situations where the judge has basically said, "Well thank you and your client for taking it, but you sir or ma'am, you have 30 days. And if you don't, it's contempt of court."

Leh:                       Yeah and I think that's a fair remedy. Hey up next we're gonna continue to go into those parts of the divorce process that you really need to know so that you can get through this with a much lower level of anxiety ...

Leh:                       Todd, you know I think the biggest challenge with our show today is not going too deep. I mean it's amazing, there's every aspect of the divorce process, there are so many details that we could go into.

Todd:                    Yeah I say to people on the phone all the time. I'm like, "look, I could just start talking and one thing you're gonna learn about me is I know how to talk."

Leh:                       Yeah you do.

Todd:                    And I can go really deep and talk about a bunch of things that may not be of interest to you.

Leh:                       Then you hear this (snore).

Todd:                    Yeah right exactly. But the point is that you're right. Sometimes people think, "oh I know about that."

Leh:                       Right.

Todd:                    And all we have to do is start talking for a few minutes and we can reveal that there's a lot more to it.

Leh:                       Mm-hmm (affirmative).

Todd:                    There are a lot more ... whether it's-

Leh:                       Nuances.

Todd:                    Yeah there are nuances to it, there are other levels, strategy levels where if you do one thing, sort of like what we were talking about with filing as contested or uncontested.

Leh:                       Right.

Todd:                    What you don't think about is the fact that if you want it to be an uncontested case just without any conversations saying contested, could suddenly send the other side into this spin where they're gearing up for war.

Leh:                       Right.

Todd:                    There are a lot of things that people don't think about.

Leh:                       Yeah. Hey 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.

Leh:                       We have been talking about the divorce process, and we just decided we're gonna start from the beginning and kind of walk through this process, different aspects of it, maybe make some detours here and there just to-

Todd:                    I am confident of that.

Leh:                       Yeah. Todd, you're bad at detours.

Todd:                    I'll behave, I'll behave.

Leh:                       So going detours here and there, just not going onto all the nuances, but touching on certain things with the goal of giving as much information as we can without causing you to (snore) fall asleep, so that you're better prepared for the process. And the more prepared you are, the easier it is to stomach it. If you understand, "Okay, this kind of case may take six months." You're like, "okay, then I won't be upset about it, I'll just work through the process. Tell me what stages I need to deal with things."

Leh:                       The next stage, we're gonna talk about the petition or the complaint for divorce. Every state has a different name for it, it's either a petition or a complaint for divorce.

Todd:                    And I've seen both here in Georgia.

Leh:                       Yeah.

Todd:                    Some people will call it a petition, some people call it a complaint.

Leh:                       Right.

Todd:                    Putting right or wrong aside in terms of what it should be called, just understand there are multiple names for it.

Leh:                       Yeah.

Todd:                    And they both accomplish the same thing.

Leh:                       And there's a few things that need to begin it. We're just gonna touch on a few things like jurisdiction. In Georgia, you can't file for divorce unless you have been a resident of this state for at least six months. And the reason, you know we should probably have a whole show on jurisdiction. With the stories we have, I know that we can keep it very very interesting. But the reason they do that is because, and this is I mean it was put in place years ago. Every state has its own what's called residency requirement, which means you have to be a resident of that state for a certain period of time. Every state has their own, because what they don't want is someone from Texas who says, "Well you know what? Georgia has more favorable Alimony laws, so I'm gonna hop on a plane and I'm gonna 'Move to Georgia' and be there for a week in a hotel, then file for divorce." They didn't want that, that's called forum shopping. So that means you're shopping for a place to file your divorce that'd be most favorable to your circumstances. Gotta be here for six months.

Leh:                       And sometimes that can delay the process. I've had people move here because of a job change, they'd been talking about getting a divorce, and they're ready to go and they come in and like, "yeah you've only been here for a month. You gotta wait five more months."

Todd:                    Yeah it also helps avoid and prevent abusive litigation, abusive practices like couple lives in Texas, to use your example. The spouse, one of the spouses packs up, moves to Georgia, let's say takes the kids, moves to Georgia, a week later files for divorce. Now all of a sudden, this person who's still in Texas whose whole life is in Texas needs to spend a whole bunch more time, money and effort coming to Georgia to respond to all the documents that are filed. It's not fair, it's not reasonable, it's ... Anyway, so that's why the six month residency requirement helps prevent that kind of behavior.

Leh:                       Yep. The other things that have to be included in there are the history of the marriage, when did people get married, how long have they been living what's called a bonafide state of separation, which means doesn't mean you have to be in two separate houses, but it means that you have stopped marital relations. And you can't file for divorce then continue marital relations, that actually will be a basis to have the divorce dismissed and you gotta start all over.

Todd:                    Yeah. I said this actually to somebody today, where you could be still living in the same bedroom in the same bed, okay? As long as marital relations are not occurring, then you are living in a bonafide state of separation.

Leh:                       Right.

Todd:                    At least in the context of a divorce and filing for divorce. So there are people who will call and they have a lot of anxiety. "Do I have to move out of the house? Do we need to be separated?" Okay? And the answer is no. You can be under the same roof, it really just comes down to the marital relations. And the reason why if you renew those relations that the case could be and should be dismissed, is in the petition, the petition is your words.

Leh:                       Mm-hmm (affirmative).

Todd:                    So it's almost like your affidavit that you are stating to the court that I am living in a bonafide state of separation. Then by taking steps to basically have relations with your spouse, what you put in your original petition is no longer valid.

Leh:                       Right. And you're kind of saying, the court can also look at, "Well your marriage isn't ever truly broken if you're having marital relations."

Todd:                    That's right.

Leh:                       And that, in just a second we're gonna talk about the grounds for filing for a divorce. But excuse me.

Todd:                    You're getting all choked up, I know this is serious stuff.

Leh:                       The other thing you have to list is you don't have to list all your marital assets, but you do have to make a statement that there are marital assets and liabilities that are subject to what's called equitable division, that's here in Georgia. Every state has their own term. And so these are generalized things that you need to have in complaint. I'm pretty sure every state has ... Now they may have different nuances of how you put the things in there, but we're going over very general stuff.

Todd:                    Yeah very quickly, we are not a notice pleading state. So there are states that you have to put everything you want-

Leh:                       Right.

Todd:                    ... Into the pleadings.

Leh:                       Yes.

Todd:                    Okay here, you just have to make a general statement.

Leh:                       Yes.

Todd:                    And that's what you were talking about.

Leh:                       Mm-hmm (affirmative.

Todd:                    That if there is property you want divided, you just need to say you are looking for an equitable division of the marital estate.

Leh:                       Right.

Todd:                    If there are children, you are looking for just the basics in terms of custody and parenting time. You don't need to go into all the detail in the petition.

Leh:                       Yeah and you do need to list that there were children born during the marriage and who they are and their birth dates, because the court wants to make sure that there hasn't been multiple litigation regarding those children going back to too has there been litigation about the children in another state.

Todd:                    Right.

Leh:                       So that needs to be listed in there. And if you want alimony, so it's going back to it's a general pleading, it's to put people on notice. So you don't have to put in there, "Hey I want $5,000 in alimony," you just need to put, "Hey I've been dependent on my spouse, so I need some spousal support and I need child support." Those are the key things in there.

Leh:                       Now grounds for divorce, every state's different about what you can put in there. You know by way of example, Florida only has two grounds for divorce. Just irretrievably broken or a mental capacity, there's a mental issue, someone has become mentally disabled or something along those lines. I'm sorry, we're not normally in Florida, I'm licensed in Florida, I just don't have Florida memorized off the top of my head.

Leh:                       But in Georgia, we actually have 13 different grounds for divorce. Now the one that we use most commonly is irretrievably broken.

Todd:                    That's the general grounds.

Leh:                       Right. So most, I think every state now as of 1980 or something, around 1980-ish had enacted what's called a no-fault statute, which means everyone could get divorced for no reason except that the marriage was irretrievably broken. Because before that you actually had to have a reason. So maybe there was adultery, or there was cruel treatment. I actually knew before the change, there was a lawyer that challenged that the marriage was broken and actually won.

Todd:                    Really?

Leh:                       I think it even went to a jury trial. Georgia's I think the only state that allows jury trials for divorces, but somebody was saying that there had been cruel treatment in the marriage so they should be entitled to a divorce and the other spouse didn't believe it and actually won the case.

Todd:                    Well and that's what we sometimes talk about. Because by putting in grounds other than the general grounds, A) you now have to prove that.

Leh:                       Yeah. If it goes to trial.

Todd:                    If it goes to trial. So if you can't reach an agreement and have to have a trial, then you have to prove that ground for divorce in order to get a divorce on that ground.

Leh:                       Right.

Todd:                    If you say cruel treatment, then you better be able to prove that cruel treatment occurred. And if you fail to meet that burden, it can impact the findings of the court. Meaning you may not get your divorce.

Leh:                       Right.

Todd:                    All right? But there's also another reason that you have to be very careful. If you put in certain terms and certain grounds like cruel treatment, understand you are putting that ina document that is in essence a public document, and if you have any hopes of reaching a settlement agreement with your spouse, you may be interfering with that ability because the first thing they're gonna see is, "Oh she or he is saying that I'm cruel. Or they're saying I'm an adulterer. Oh they're saying any one of these other grounds," and it can impact your ability to negotiate [crosstalk 00:32:59].

Leh:                       Yeah. They think I was cruel during the marriage? Wait 'till they see the divorce.

Todd:                    Yeah. And very quickly, you can always amend the petition.

Leh:                       Right.

Todd:                    Even if that behavior occurred, let's say it was adultery, you can still bring it up in the context of negotiations. And if it has to go to trial, you can amend.

Leh:                       Yeah. And hey, up next we're gonna talk about more reasons or bases for getting a divorce. Some of them in Georgia are really ... they might need to be removed, but you don't want to miss it, it's very very interesting ...

Leh:                       Todd, all right. I think this is ... We can have some fun with this.

Todd:                    I doubt it, but all right.

Leh:                       Well we don't have fun with it when we file it, because we don't include these.

Todd:                    Right.

Leh:                       I mean almost never, but let's talk about the grounds for divorce that are in Georgia. Arguably some need to be taken out.

Todd:                    You say fun, I mean interesting maybe.

Leh:                       That is what I said last time.

Todd:                    Yeah, yeah.

Leh:                       Last segment.

Todd:                    All right, so let's talk.

Leh:                       All right, hey before I talk, in case you're just joining us, my name is 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. and if you want to learn more about us, you can always read about us online at AtlantaDivorceTeam.com.

Leh:                       We've been talking all about today the divorce process and trying to break down some of the things that go on behind the scenes, some of the things that we've got to include in the complaint and how you can set yourself up to settle your case rather than go with an all-out war and how there's some little things that you can do like not worry about if you check a box called uncontested on a divorce piece of paper that you file with the clerk. Just learning little nuances and understanding what things mean can help go a long way to resolving your divorce rather than litigating it.

Todd:                    And to limit the anxiety that people naturally feel.

Leh:                       Right. Aright, well let's talk about the causes of divorce. Now you just made an excellent point int he last segment about that most of the time we file that the marriage is irretrievably broken. That's the no-fault provision. But you can include all kinds of other grounds. A lot of times we will list that there are other grounds for divorce, but in the interest of settlement that we are not pleading them at this time or something to that effect. But you know, the obvious one is adultery. Now understand this, that in Georgia, again now we're talking about specifically Georgia, because some states don't have all these grounds for divorce. Like Florida only has two for example. We are talking very specifically about Georgia. So adultery is one, and the reason you might plead that in a situation and you might wait 'till later, because complaint for divorce is public record and anybody can go read the basis for divorce. But adultery, if the cause of the divorce is the adultery of the party seeking alimony, it can bar alimony in Georgia.

Todd:                    Yeah. That's a very big nuance and a very big aspect of the law that can have a major impact on one or the other party.

Leh:                       Mm-hmm (affirmative).

Todd:                    And really as far as the grounds for divorce, there is no other example where behavior that can lead to and be considered a ground for divorce can also have a major impact on what we call one of the four core areas of divorce.

Leh:                       Right.

Todd:                    In this case alimony. So that is a major, major thing but going back to just discussing the grounds, okay, I want to make sure that it is very clear what we're talking about here. By putting in a ground for a divorce, it is what you are intending to prove in order to convince a judge to issue a final order.

Leh:                       Right.

Todd:                    By putting in that ground, you need to prove that ground. The reason irretrievably broken is the general ground that always gets granted on that ground, is because only one party has to say it's broken and can't be fixed. And it's very hard to refute that. I can't imagine somebody being able to come up with evidence to literally disprove that statement.

Leh:                       It only takes one person to say it's broken.

Todd:                    It's broken.

Leh:                       That's it.

Todd:                    Right. Whereas everything else that we're gonna go over right now is tied to very specific behavior and therefore if you can't prove the behavior occurred, then you can't get a divorce on that ground.

Leh:                       Right. One of the other grounds is intermarriage by persons within their prohibited degrees of consanguination.

Todd:                    Okay, yeah. Good job. I'm impressed.

Leh:                       You say it now.

Todd:                    Oh I'm not going to. I'm just gonna sit here and mock you, it's a lot more fun and safe. So what does that mean?

Leh:                       That means if you're married to your sister, that can be a grounds for divorce. Shouldn't be married to your sister or your first cousin, because it should be caught when you're applying for a marriage license, but sometimes there've been situations where you might have had adoptions where someone was adopted outside by they found out that they were actually biologically the same. So that would be a basis for a divorce.

Todd:                    Yeah. I mean personally don't marry your sister should be a bumper sticker on everybody's car, but that leads into the next one, mental incapacity at the time of the marriage. Again, the words are very important. At the time of the marriage, so what does that mean?

Leh:                       That means that when you actually got married and said I do, you were suffering from some sort of mental incapacity to enter into a contract.

Todd:                    Because that's what the marriage is. It's in essence a contract.

Leh:                       It's a marriage contract.

Todd:                    And it's basically saying, "I didn't know what I was doing."

Leh:                       Yeah. "I was drunk, I didn't know what I was-"

Todd:                    Yeah I don't know if the drunk rises to that level.

Leh:                       Maybe this works better in Las Vegas.

Todd:                    Yeah right, exactly.

Leh:                       I don't know what their grounds for divorce are there.

Todd:                    All right, impotency at the time of marriage. And I've been doing this a long time, I don't think I've ever seen that one used.

Leh:                       I've never seen the mental incapacity.

Todd:                    No, well I think that's because most attorneys can't spell it.

Leh:                       That's true. Or consanguinity I'm not saying it again. I said it right the first time. All right, so force, menace, duress, or fraud in obtaining the marriage.

Todd:                    Right. You can't put a gun to somebody's head. You know the proverbial shotgun wedding.

Leh:                       Right.

Todd:                    And duress, actual duress like threats of violence and-

Leh:                       There has to be actual, like-

Todd:                    Right.

Leh:                       It can't be, "Hey do this or else." It has to be, "If you don't do this I'm going to kill you."

Todd:                    That's right, that's right. My wife says something similar. She said, "If you don't marry me right now, I'm gonna kill you." So it was sort of the ... I guess similar. Oh my god, can I ... no, nevermind. Honey I love you. All right, all right.

Leh:                       I'm sending this one to her.

Todd:                    No, no, please don't. All right pregnancy of the wife by a man-

Leh:                       I will say I have seen one for fraud, the basis of fraud.

Todd:                    And I've seen that as well where people have held themselves out as something-

Leh:                       Right.

Todd:                    ... And stated some fact about them, then it turns out that it is absolutely not true.

Leh:                       Horrible, we may have had a case inside the firm where we actually alleged fraud. The guy was a ... I mean when you talk about con man, there should have been a movie made about this guy. He had so many wives, I think our client was number five or six, but he had lied about everything and he lied about who he was. If there was ever a case for fraud, that was it.

Todd:                    Alright, so the next one, pregnancy of the wife by a man other than the husband at the time of the marriage, unknown by the husband. So basically you're marrying someone-

Leh:                       [inaudible 00:41:12] pregnant, it's yours.

Todd:                    No they don't ... Oh yeah it's yours, right.

Leh:                       Right.

Todd:                    Or they don't say anything and it's like, "oh no we got pregnant on our-"

Leh:                       Honeymood.

Todd:                    "... Honeymoon" and then later on you find out it's not yours. I'm very sorry to break that news, all right, but that might be a grounds for a divorce.

Leh:                       We've had that happen.

Todd:                    Yeah.

Leh:                       Where I want to say, and I'm only identifying these things, I think the couple was white, then the baby came out black.

Todd:                    Mm-hmm (affirmative).

Leh:                       So ... so that was their clue.

Todd:                    I'm not a doctor, but yeah.

Leh:                       Yeah. Hm, that was interesting.

Todd:                    All right.

Leh:                       Alright.

Todd:                    Speeding up just a little bit, adultery in other of the parties after the marriage, we sort of talked about adultery. Willful and continued desertion by either of the parties for a term of one year. And again, what does that mean? That doesn't mean that you have both agreed to separate, one moves out, gets an apartment. It is literally the other person just packed a bag in the middle of the night and you haven't seen him in a year, you know know what's happened. They've deserted you.

Leh:                       Yep. The conviction of either party for an offense involving moral turpitude under which he or she is sentenced to imprisonment and a penal institution for a term of two years or longer. We've had those.

Todd:                    Yep.

Leh:                       We don't actually plead that, but definitely had that. Habitual intoxication-

Todd:                    You're getting all the hard ones.

Leh:                       Now we have plead that in  a case before.

Todd:                    Yeah.

Leh:                       And the reason we plead it was because there was issues with the children and the guy had been drinking and driving with the children in the car, so we specifically plead it, because we were asking for limited parenting time with him. So there are situations where you would plead these.

Todd:                    Here's one that Leh is gonna resonate with you. Incurable mental illness. Again, we're not talking about somebody has a temporary depression or some issues. We're talking about something major. Serious, something that can't be cured and that obviously impacts the marriage.

Leh:                       Yep.

Todd:                    Habitual drug addiction, similar to the intoxication.

Leh:                       Right. Pled that before.

Todd:                    Right. And the marriage, again, the general number 13, the marriage is irretrievably broken. And those are-

Leh:                       I think we skipped over cruel treatment, but cruel treatment's another one.

Todd:                    That's right. Those are the grounds for divorce, and understand again that just because something, one of those applies doesn't mean you have to plead it in the initial petition for divorce. Because by doing so, it can strategically speaking, impact your ability to reach an agreement, and that's what we really want.

Leh:                       Hey everyone, that about wraps up this show. You definitely want to check out the next show, because in the next show we're gonna talk about what happens after the complaint is filed, what are the next steps, what is the timeline that sort of occurs after the complaint is filed, what are the next steps that occur in a divorce, and you definitely want to listen to this because understanding these components of the process really will help reduce anxiety.

Leh:                       Until then, you can read more about us online at AtlantaDivorceTeam.com. You can even email us at [email protected] or post a question on a Facebook page at Facebook.com/AtlantaDivorceLawyers.

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