Episode 58 - Understanding the Divorce Process and Why It Can Take So Long - Part 2
In Episode 58, we pick up from where we left off in Episode 57. We continue our discussion on some of the most common delays that people may encounter and how it expands the overall length of a case.
In this episode, we discuss what it takes to start the legal aspect of the divorce process, what goes into a complaint for divorce, what does it mean to 'serve' someone with divorce paperwork, what the discovery process is and why it can create delays, and other steps in the divorce process that can cause it to take so long.
Leh: You know Todd, one of the things that I love about this radio show is that, we get to provide information that will hopefully help reduce, I know can't eliminate but, we reduce anxiety, because we're trying to break down the nuances of divorce cases, so that people can kind of know what to expect.
Todd: Well, I mean, we see it from both sides. We understand the law. We understand because it's what we do, but we also get to see people at the very beginning of the process where they don't know up from down, in from out. They're calling, and their anxiety levels are just through the roof. A lot of times it's simply because they just don't have basic information. I mean, the divorce process carries with it, obviously, a level of anxiety that, there's nothing that we can do to eliminate. But, so much of the anxiety is just based on a lack of information, and therefore, I also am excited about these shows, because it's just so easy. We can give this information, and hopefully, change people's lives, in terms of just eliminating that high level of anxiety.
Leh: Welcome everyone. I'm Leh Meriwether, and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp, and you're listening to Meriwether & Tharp Radio on the new Talk106.7. 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.
Leh: If you want to learn more about us, you can always call or visit us online at atlantadivorceteam.com. Now, last week, we did start to break down the divorce process. There's actually been studies out there, where they studied certain stress levels, and-
Todd: Can you say that three times, studied certain stress levels, yeah.
Leh: Study, study, study, yeah. Sorry, tongue tied. I get tongue tied all the time.
Todd: That's all right.
Leh: I just get so excited.
Todd: Yeah, you do. Calm it down, Leh, all right?
Leh: All right, sorry. But, they did studies where they measured the stress levels of people under certain situations, and the number one situation where people experienced the greatest level of stress, was the death of a family member. And the second highest level of stress was divorce. So, it is an event that can create the second highest level of stress in anyone's, most peoples lives.
Todd: Which, again, is why it is so important to me, that just by providing basic information, if we can eliminate just a portion of that stress, because like I said, you can't, we can't eliminate all of it. This is, in essence, the death of a relationship, and I can't change that fact, but what I can change, what attorney's can change, is we can provide information, so that you understand the process. You know what's going to happen, when it's going to happen, how it's going to happen, and by knowing those things, hopefully your stress level is reduced at least a little bit.
Leh: Right. So, last week, what we got into was, a decisions been made for a divorce. You've hired a divorce lawyer, and after that decision to hire a divorce lawyer, what are generally the next steps that you can take. We walked through those steps, at least as we practice. We walked through those steps, and then took you up to the point of filing a complaint. We talked about what happens if the divorce is truly uncontested, and how that moves forward.
Leh: But, at this stage, we're talking about the case is not uncontested, and again, that merely means that when you filed your divorce action, you didn't file it with settlement agreement paperwork. You hadn't agreed on every single issue. So, the way the court looks at, they call that "Contested." I put that in air-quotes, because it doesn't mean that you can't settle your case. It doesn't mean that you have to try your case in front of a judge. It's just a term that the court uses.
Leh: So, now the complaints been filed, but that actually doesn't really get the clock starting, as far as getting divorced, and doesn't necessarily, it's the official legal document starts a divorce, but it can't move forward until the next step. And that is service on the other party.
Todd: So obviously, the next step is sheriff deputy, send him out, have the person served, it's started, right? I mean, that's the-
Leh: Well, that's one possible choice.
Todd: Is that the best choice?
Leh: Depends. Usually not.
Leh: So, you have three, really, choices, especially here in Georgia, and many states are very similar to this. To get the divorce process started. Number one, if you've been talking to your spouse, or you think that they know this is coming, you can do what's called an Acknowledgement of Service. That's where the other side signs a piece of paper saying, and they swear under oath in front of a notary, and they say, "I have received a copy of the complaint for divorce, and all the attachments that go to it."
Leh: Now, I probably should mention, there are more documents that are filed with the divorce, than just the complaint, but we don't have to get into that. It's too deep. Too many details. So, they sign a document saying they've received a copy of it, and then that document is filed with the clerk of court, and that tells the court that the other side has been put on notice about this case.
Leh: The second choice is what's called a Process Server. Now, a process server, they have to be granted by the county, or the court system, permission, and they have to be an independent person, permission to deliver the paperwork to the person. Now, the reason we like private process servers is because, the service of divorce is a very public event, and to the extent we can minimize that publicity of it, it reduces the anger on the other side, and increases the likelihood that we'll be able to settle this case.
Todd: Now, let me jump in for a second, because some people will say, "I don't care if it makes my spouse angry. I just want to get him served. Let's get things started, and don't talk to me about angering my spouse because, I'm pretty angry myself, and too bad, and so sad." But, you need to think beyond just your anger, and your feelings. You need to think about the fact that this is a process that you are starting, and unless you want to guarantee it to be a very long, protracted event in your life, then you need to, strategically speaking, do whatever you can to try and minimize the friction, minimize the conflict. Sending a deputy out to, let's say, somebody's place of work, is absolutely going to anger them.
Todd: Now, sometimes they're, what I'm going to refer to as, exigent circumstances. There's a flight risk, or there's something where we have to do it.
Leh: Or, you're pretty sure they're going to dodge a private process server, and you need to sheriffs there.
Todd: That's right. So, there are times you have to do it, but there are many, many, many more situations, where what we say is, "Let's give them an opportunity to acknowledge service," and I know you haven't gotten to that yet, but let's try and avoid these other methods, that can cause embarrassment, which then translates directly into anger, which can then push them ... the way I put is, push them farther away from the negotiation table, which is exactly what you don't want.
Leh: Yeah. So, the other thing, give you another example of a sheriff's deputy, when they show up in your neighborhood, you know, you may serve the mother of the father with the children present. The children are all of a sudden like, "Mom? Dad? Why was there a sheriff's deputy at the door?" Now, all of a sudden, the kids are on notice, when you know, if done right, you've got to include the kids. We have a whole show on how you break the news to the kids, but you still want to minimize that stress for them. And not to mention the whole neighborhood now says, comes up to your son, or your daughter, and says, "Why was there a sheriff's deputy at your door?"
Leh: So, those are the things that you want to minimize. Now, if a person pulls up in a plain old car, a simple car, and pulls in, knocks on the door and says, "Hey, are you Mr. Jones?" And he says, "Yes," and you hand him the paperwork, nobody's going to know who that is. It just looks like someone delivering papers.
Todd: And also, on top of that, usually when you give, let's say you're using a sheriff deputy, you give them one address. You don't give them multiple addresses, and say, "Oh, you might catch them at home, and if not, you can go to their place of work, and you can do X, or Y, or Z." Using a process server is like a P.I., or like a private investigator. The bottom line is, we can give them information. We can say, "This is the car they drive. Here's a picture of them. This is where they live, but if you don't catch them there, you could catch them at work. Oh, and by the way, get to work at 9 AM in the morning, let's say. So, if you get there at like 8:50, you'll see the car. You can walk up, and you can do it in, hopefully, a non-invasive way."
Leh: That's a good point that you brought up, that, "Hey look, if you want to sort of expedite the process," if they won't acknowledge service of the complaint, which really expedites it, then the private process server's going to be much quicker, because we've had cases where it took the sheriff's deputy, gosh, three or four weeks to serve the other side.
Leh: So that's another delay of the process, because people will be like, "Well, why did my case take so long?" Well, we filed, and it took four weeks, a month, to get the other side served, because ... Now, there's counties that, there's places that I do know that don't like private process servers, so in that situation, we had to use the sheriff's deputy. But, I mean-
Todd: That's infrequent though.
Leh: That's infrequent, yeah.
Todd: Most places, you can use them. And to your point about sometimes it taking a long time, I once had one where we had to use three people, in two different cars, because the person was actively fleeing, and would just to try and avoid being followed, would drive in one direction, and then pull a quick U-turn, like out of a movie, and start going in a different direction, so if we had only one person, we wouldn't be able to catch them, because they'd be breaking traffic laws, and whatever. So, we would have people going in opposite directions, ready to, you know, pick up the person's tail.
Todd: Anyway, sometimes you have to, that's the point. You have to do these things. But, most of the time, it's actually going to, you know, although it may start things faster, it'll make it last longer.
Leh: Yeah. So, that's why we like to use, I mean, the number one acknowledgement of service, two private process server. It definitely helps with it.
Leh: And up next, we're going to talk about the other things to do, and other parts of the process, that's going to help move you forward.
Leh: Todd, I had no idea how much you could talk.
Todd: Yeah, you did. Liar.
Leh: I didn't.
Todd: It's amazing. Every other show, you're like, you know, "Todd, shut up. Shut up."
Leh: No, I'm just kidding. But, what we're talking about isn't a joke. Just bringing to light all the background of what goes on behind a divorce, the divorce process, so that people understand why things can take as long as they do. Hey everyone, I'm Leh Meriwether, and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp, and you're listening to Meriwether & Tharp Radio on the new Talk 106.7.If you want to learn about us, you can always call or visit us online, at atlantadivorceteam.com.
Leh: Now, what we've been talking about, is the divorce process. We actually started it last week, talking about the divorce process, and we're going a little bit deeper than we do normally, on talking about certain parts of family law. And the big reason we want to do this, is so people understand various aspects of the divorce, the divorce process, and why things can take so long.
Leh: We've been going a little bit, deep dive, Todd keeps taking us off on tangents.
Todd: Always my fault.
Leh: Yeah, I don't do that stuff. Just kidding. Where we left off, we had filed the complaint. We talked about how we serve the complaint, and ways to serve the complaint that help facilitate resolution of the divorce, rather than litigation. Not that we're afraid of litigation, but the more we can reduce, pull emotion out of the equation, the more likely we can reach an amicable settlement agreement.
Leh: All right, so once the person's been served, or they have acknowledged service, in Georgia, they have 30 days to file an answer or a counter claim with it. Some states are different, for example, I think Florida is 20 days, if I remember correctly, so wherever you are, you need to make sure that you know your time period. That's an example. So, you file the complaint, that's 30 days they have to file the answer and the counter claim. So, right there's a month.
Todd: Let me, very quickly, let's deal with one quick issue.
Leh: Is this another tangent?
Todd: It's sort of related. No, let's deal with one source of anxiety, that we deal with quite often. Somebody calls, they have been served with a petition for divorce, and we are now on day 37, and they have not filed an answer. "Oh my goodness. Is my spouse going to get everything? Did I lose? Are they going to get a default judgment?" You know, what do we tell them?
Leh: So, in Georgia, there's what's called a civil practice act, and every state has a civil practice act. It's basically, the rules of how we handle processes and deadlines with the court system. And in Georgia, it's 30 days, so on the 31st day, you are technically in default. I'm talking about the civil practice act at the moment. You're technically in default. After that, you have 15 more days to open that default, and in a normal case, where you're like, suing someone for damages, or breech of a contract, or something like that, if they don't file their answer, you win. All you have to do is prove damages to the court. So, you know, if you said, "So and so and I entered into an agreement, and I gave him a watch, and he was supposed to pay me $200," or something like that, and they don't file the answer, you win. You get a check for $200.
Todd: Right, meaning, at that point, your ability to defend yourself and offer a contrary position, and whatever, you can't.
Leh: You can't.
Todd: It's done.
Leh: It's done. We've seen big corporations make mistakes, and it cost them hundreds of thousands, sometimes millions of dollars. When you read online, there's this obvious panic that sets in for someone who has, you know, it's been 37 days and they haven't filed their answer. Now, in Georgia, and a lot of states are very similar to this, there is no such thing as a default divorce, and that's because most of the time, there are children involved. So, when someone goes to court, and someone else hasn't filed an answer, the other side still has to prove their case. They have to prove that they're entitled to a divorce, they have to prove the marriage is irretrievably broken. They have to introduce evidence to justify an award of child support. So, there is no default.
Leh: So, you can file an answer at 37 days, and be just fine. Where you get into a problem is if you don't file the answer. What it does give the other side, the ability to do, is go to the court, and this is again, I'm talking about in Georgia, and get a date for a final hearing, and not give you notice. So, you've been served with the complaint, didn't file an answer, the other side can have a final hearing, and you not show up. We've seen that happen before, where the other side never, they unfortunately didn't file an answer, and the other side basically got everything. They got the house, the retirement, primary custody of the kids, and outrageous amount of alimony, and that sort of thing.
Todd: So, to be clear, by filing an answer, what you're doing is, you are announcing to the court, "I received the petition. I know that, you know, I was served. I know this is case is pending. Here is my response to the allegations made in the petition, and by the way, anything that happens from this day forward, send it to me. Give me notice of hearings, give me, basically, notice of anything that is going to take place in the case, so that I can respond accordingly."
Todd: By not doing it, by not filing the answer, you're opening yourselves up to things happening without you knowing about it, and that can sometimes be extremely bad. It could include losing custody. It could include losing assets. It could include paying much more, in terms of support or alimony, simply because you didn't have your proverbial "Day in court." You couldn't defend yourself, and present your information and evidence, and that's a real problem. I will say this, and I know will second this, just because there's no such thing as a default judgment in a divorce in this state, does not mean you should not do anything and everything you can to file within that 30 day deadline.
Todd: Do everything you can. The reason we bring this up is not to give you an out, and to convince people it's okay to wait. It is simply to say, don't lose your mind simply because you missed the deadline, okay? Because I can't tell you how many frantic calls we have dealt with, where people are like, "Oh my gosh, he or she is going to get everything, because I didn't file an answer." Breath, okay?
Todd: So, do it, meaning file within that time requirement, but if for some reason, life happened and you didn't, it's okay, all right? Just do it as quickly as you can.
Leh: So, when you file the answer, the answer is, when we say an allegation, an allegation when you file a complaint, you are alleging something, meaning it hasn't been proven yet. So, if you think that the person, let's say there's an allegation that the wife has committed adultery, and that adultery is the cause of the divorce, and the wife files an answer and denies that in the answer, so the wife is saying, "I'm denying that," so she's denying the allegation. That's what you're doing. You're basically going count by count, and either admitting it or denying it, or say, "I'm without information to either prove, or to admit or deny." We don't really see that in divorce, but other types of litigation, you see that.
Todd: An example would be, "I should be the primary custodial parent for the children." Well, if you agree, you might say, "Okay. I admit that. I agree that my spouse should be the primary." Or you might say, "No, I don't agree. I deny that allegation." And, it might not mean that, you know, you should be the primary, but you may just not want to agree at that moment. You may want to say, "Hey, primary, let's figure out what the definition even means, and this is going to require some negotiation."
Leh: Yeah, and you actually, you saying that made me think of something. So, sometimes clients come to us and they say, "I don't want the divorce. She served me, but I think our marriage is salvageable." And they're like, "So, I'm just not going to file an answer." You don't want to do that. So, what we do in some situations, is we put in the answer that we deny that the marriage is irretrievably broken. We've actually had cases where they were able to get back together. So, the answer was very, very nice, for lack of a better term, but just said, "No." It was just deny, deny, deny, including deny that the marriage is irretrievably broken.
Todd: Yeah, and remember, the petition is not what wins the case. It's not what finalizes everything. It is the foot in the door. It is simply opening up that door to a divorce, basically saying, "I would like a divorce." The other side then says, "Okay, I hear you. You want the divorce. You've sort of stated some things you want. I don't think you should get all those things, or at least I want to be heard, in terms of what I think is fair." And then, basically you can deal with these specifics, both in negotiation, and of course, if negotiation doesn't work, then through trial.
Leh: Yep. I probably should point out that when you file the answer, you file it with the clerk of court. You don't just send it to the other side. And so, that's what we tend to do. And then, in that answer, it provides the court with our contact information, our email address, because many states now, and Georgia included, have it that pleadings can be served by email, no longer by U.S. mail, so that's where you're going to putting that information in there, and that's how you handle answer and the counter claim.
Leh: Now, the counter claim is just saying, you know, "I want a divorce, but I think the reasons for the divorce are because if X, Y, and Z, and I want primary custody." So, if you want the divorce too, you would add in a counter claim.
Leh: And, up next, we are going to continue to break down the divorce process, provide clarity to everyone.
Leh: Welcome back everyone. I'm Leh Meriwether, and with me is Todd Orston. Todd and I are partners with law firm of Meriwether & Tharp, and you're listening to Meriwether & 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: Today, we've been talking about, and actually going back to a week ago, we are talking about the divorce process. We're demystifying ... I can't talk today.
Todd: Hey, that's all right. I'm going to give you a couple more chances.
Leh: Demystifying the divorce process.
Todd: Ah, the crowd goes wild.
Leh: Woo hoo, I got it right. You know it's funny, I don't have these problems in the courtroom.
Todd: No, you really don't. Put a microphone in front of you, and things get crazy.
Leh: Sometimes you just get tongue twied.
Todd: Tongue twied, that's right.
Leh: All right, so we're breaking down the divorce process, going into some details on certain things, so that everyone understands what's going on, so they can be prepared, particularly when the divorce process takes so long. That's where people get really upset. "Why is it taking so long?" And, that's what we're trying to answer. We've probably going into, maybe too much detail, definitely going on some tangents here and there, but just trying to get people ready.
Todd: Well, we're trying to alleviate, as I've said repeatedly, tension and anxiety, and all of those negative feelings that are 150% related to one simple thing, and it's just a lack of information. So, we're trying to give that information, and you know, we are only scratching the surface. There are, on each of the topics we've talked about, there are a lot of sub-issues, and nuances, that we are not going into. There are strategic decisions, and strategic thoughts that people should be having, you know, and considering, when dealing with all these issues. We're not going into.
Todd: So, we're trying to give as much information as possible, because the process does take time. And that's, you're right, it's a big source of anxiety, because people go in with that misconception that, "Well, this should be a two month thing, and then I'm done." Yet, just by talking to them, you explain, "Well, hold on one second. It's 30 days, 31 days even if you do nothing." So, no matter what, it's going to be 31 days, because there's a 31 day wait period.
Leh: Right, once you file.
Todd: Once you file, and once you're served, or the acknowledgement is filed. So, right off the bat, it's a month. And, sometimes, we can use that month to get everything prepared, but if not, you know, a case going two, three, four, five, six months is not uncommon, in order to do things correctly.
Leh: Yep, so during that time period from the time that the complaint's been filed, to the answer, that's 30 days. People generally want to try to take parenting class during that time. Start putting together all the paperwork that it requires. Some counties have what's called standard discovery. That's Fulton County, here in Georgia. In a lot of stated, they actually have a separate family law division, in each county, Georgia doesn't unfortunately, from different efficiency standpoints. There are states that say, "Hey look, if you've started a divorce process, each side has to answer the following questions, or provide the follow documents."
Leh: So, depending on where you are, you have to start gathering that information, to turn it over to the other side, within the time limits that are set. Now, apart from that standard stuff that each stuff has to exchange, in some counties you just have to exchange a financial affidavit, and we've talked about what that means before, but that domestic relations financial affidavit, which is a complete statement of your assets and your liabilities, and your monthly budget.
Leh: So, both sides have to turn that over. You want to take the parenting class during, like I said, I already said that. Parenting class during this time. And then you, in Georgia, and every state's different, but in Georgia, you enter into a six month discovery period. Now, that doesn't mean that you can't settle your case any time in that in six months, but most of the time, the courts are going to let that case go on for at least six months, unless there is some sort of reason for it to be shortened, but most of the time it goes on for six months.
Todd: Yeah, the important thing about the six month-
Leh: And the six months starts after the answer.
Todd: Right. The importance of that, is that, again, information is important. So, the more information that you have, the better you can protect yourself, and an attorney can protect you. You have six months to gather that information. And, you have to diligently work to gather the information within that six month period. So, if you have to go to third parties, go first of all to your spouse, or go to third parties, like banks, or other institutions-
Leh: Or teachers, school systems.
Todd: That's right.
Leh: When child custody's an issue.
Todd: Then you have six months to do it. If you fail to do it, and to act in a diligent manner in your effort to gather that information within that six month period, then the discovery period is closed, which means you're done.
Leh: But, sometimes a judge will open that discovery period.
Todd: And, that's why I was saying that you have to make diligent efforts. You diligently have to pursue that discovery. If you are diligently pursuing the discovery, and through no fault of your own, you have been unable to gather the documents because the third parties aren't responding, or your spouse is hiding things, and you are now, you know, unfortunately scrambling to try and gather the information from other sources, then yes. A judge can extend the six months. If you just wait five and a half months to get started, you don't do anything, then more than likely, the court's probably not going to reopen, because the court's going to say, "What have you been doing for six months?"
Leh: Right. So, that doesn't mean once you've entered the discovery period, it doesn't mean that you can at least, in most of the state I know, that doesn't mean you can't settle case within the next 15 days, or two days, or what not. It just means that the court, unless both parties agree, that's the key element, are both parties agreeing to end the case through a settlement, the court's going to leave it open for at least six months, as a general rule. And so, anything can happen. You can go to a temporary hearing. We'll talk about that in a minute. I want to stick on discovery, but you can have a temporary hearing in that process. You can have mediation. You can have all kinds of other, what's called, alternative dispute resolutions, such as late case evaluations, judicially hosted settlement conferences, and I'll explain, or we'll explain what that means in a little bit.
Leh: But, let's stick with discovery for just a second. Give everyone like, an example of the different types of the discovery that can be performed during this period.
Todd: All right, so there's really not that many different forms, all right? You've got a notice to produce and request for the production of documents, all right? It's in the name. It's a request for the production of documents. You are looking to your spouse to turn over documents. So, you want to know about bank account, you say, "What bank accounts are there, and please provide me statements from this period to this period, relating to that bank account, or other institution."
Todd: Then there's something called interrogatories. And, I'm not doing a deep dive here, because we've done a show, you know, where we've gone into a little bit more detail.
Leh: I'm going to tangent.
Todd: No, yeah, sure.
Leh: Okay, it's my fault this time.
Todd: I usually do it, so-
Leh: So, I get a few tangents.
Leh: All right, so we've got informal and formal discovery. What Todd just mentioned was called formal discovery, and sometimes you want to do formal discovery, because there may be a concern that, and this is the lawyer speaking at the moment, your concerned your client doesn't know everything. And with the formal discovery process, when we send it to the spouse, you're like, "Well, hang on a minute. They lived in the same house. How can they not know all these things?" It happens all the time.
Leh: So, the other person turns over documents, and they basically, they're signing the response, is officially saying, "Here's everything." They're locking themselves in, so if during the course of the case, you discover that something wasn't fully disclosed, that will be used against them in trial, if you can't settle.
Leh: So, this is why sometimes you've got to do the formal discovery process, to get them to lock in, to say, "This is everything. These are all my-" and it's to avoid surprise. You know, it's to say, "Well, what evidence do you have to claim that my client committed adultery?" And then you turn over these documents, and that's supposed to be it. So, if you go to trial, and all of a sudden, pictures show up you've never seen before, well then you can object and say, "Judge, these weren't turned over in discovery-"
Todd: I guess in that situation, they were sort of there when the pictures were taken, so maybe they are aware of that bad behavior, but the bottom line is, trial by ambush is not allowed.
Todd: So that's what that is. It's an example of trial by ambush. I actually spoke to somebody just a couple days ago, where they went to court, and unfortunately, the caller's attorney, may not have asked the right questions, may not have done the discovery necessary, may not have turned over certain documents, and when they got to court, the important part of this is, got to court. Tried to use some of the documents, and they were excluded-
Leh: Because they didn't turn them over.
Todd: They didn't turn them over. So, during this process, it's all about the fair and open exchange of documents and information, and the court expects both parties to fairly, and openly, and honestly exchange documents, so that the court knows that when it goes to court, everybody's on the same page. Everybody has shared the same information.
Leh: The point is so that the, you know, this process is supposed to be fair.
Todd: That's right.
Leh: I mean, it's not always fair. But, that's sort of the goal, is to make it fair. No ambushes, not of that. And, it's supposed to be-
Todd: No game playing.
Leh: No game playing.
Leh: Well, because it's families.
Todd: That's right.
Leh: Well, it's that way in law period, but in trial practice period, but especially in family law, because at the end of the day, there's families involved, there's children, and the children aren't part of this process. I mean, they are pulled in from a practical standpoint, but they are innocent victims. So, that's why the court makes an extra effort to make sure that there's full disclosure on both sides, and that sort of thing, because at the end of the day, they have to make a ruling if you can't settle, which is part of the reason why we like settlement over trial, but the judge has to make a decision. And you know what-
Todd: You have to make a decision right now.
Leh: Yes, and that is, hey, tune in, in the next segment. We're going to keep digging a little bit deeper into this process.
Leh: I can't believe there is so much stuff to go over, Todd. We ran out of time in that segment.
Todd: We need about nine more shows, and then we're going to be done with this topic.
Leh: Yeah. At least nine. No, just kidding. Hey everyone, I'm Leh Meriwether, and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp, and you're listening to Meriwether & 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 going deep, really, into the divorce process. Maybe too deep. Hopefully I'm not putting you to sleep, Todd. Todd, wake up. No, we say that jokingly, because you know, we do this every day. It's part of what we do for a living, and it almost becomes habitual, but for someone going through the process-
Todd: It's new.
Leh: It's new, it can be stressful, but hearing it could be not the most exciting thing, but it's so critical, it's so important, because once you understand the process, it moves that, "Where are we going next?"
Todd: That's right.
Leh: And so, it helps remove that anxiety. So, we left off, we were talking about discovery, and we, I actually had lost a little bit of track of time. I had no idea how fast that segment went, but we were talking about discovery, and we were starting to explain the difference between formal and informal discovery, and I think we were talking about the situations where you want to do formal discovery. What's informal discovery?
Todd: Yeah, I put the cart before the horse. I started getting into formal discovery. So, you're right. Let me just very quickly explain. So, informal discovery versus formal discovery. Informal is, you're not sending the notice to produce, the interrogatories, the request to admit. Usually this happens when, I mean I'm not saying it doesn't happen between an attorney and a pro se litigant. Somebody representing themselves, but oftentimes, a very simple matter where two attorneys are involved in the case, and one just calls the other and says, "Hey, I don't want the parties to spend the money. I don't want them to have to go down the path of formal discovery. This is what I need. Can you send me some bank records? Can you send me a finalized domestic relations financial affidavit? Can you send me something on the 401k? If I have that, I'm good. I have what I need."
Todd: And, the other party says, "You know what? That's great. I need the same thing from you, or maybe a few other things." It's informal. It's not in writing, or at least, it's not formalized in one of these pleadings that I had mentioned before.
Leh: Yeah, and the reason we like the informal ... there are situations where we like it. First off, it can save clients money. But, if both sides are basically saying, "You know what? Okay. We don't get along anymore, but my husband or wife is not ..." sometimes I, "They're evil,"
Leh: "They're not evil. They're good people. We just don't get along-"
Todd: "I still have a level of trust."
Leh: "I have a level of trust." And so, in those situations, the lawyers pick up the phone, and go, "Okay, well let's help resolve this situation. Let's not litigate this. Let's just exchange this so we can properly advise our clients."
Todd: Yeah. And sometimes it starts informally, but even if things aren't heating up, it necessarily, sort of, transitions into formal discovery. Sometimes we will start with a simple matter. And we'll say, "You know what. We think we know what we need to know, but give us these documents."
Todd: The other side says, "Yeah. I think we know what we need to know. Give us some documents." But, once we start digging in, we realize, there's a lot more that needs to be disclosed, and at that point sometimes, even by agreement, the other attorney's will go, "You know what? I'm sending you a notice to produce. I'm sending you some formal discovery."
Leh: "I want to make sure that I'm protecting my client."
Todd: That's right. So, that's informal versus formal. So, what I was talking about then, was formal discovery. Notice to produce is a request for the production of documents. "If you have a bank record, send me a copy of that bank record."
Leh: And we usually ask for a time period.
Todd: Right. Then there's something called interrogatories. Interrogatories are written questions that require written answers. Now, to use the bank record example, it could be, "Please tell me what bank records, or bank accounts rather, you have. Name each and every bank account, and give the bank account number."
Leh: Right. Or it could be, "Please tell me why does the wife think," however you want to phrase it, "why does she think that she should be the primary physical custodian of the minor children."
Leh: Or, it could be another open ended question, "Do you have any concerns about the father, and his parenting skills with the children?"
Todd: Yeah. And there is duplication. So, going back to the bank record example, there's going to be some duplication. The notice to produce says, "If you have a bank account, give me the records." In the interrogatories, it's, "If you have a bank account, tell me the bank account number, so that we know everything that exists."
Todd: So, you're getting similar information about, let's say, those bank accounts, but you want that duplication-
Todd: Because you want to make sure you're not missing something. That's all I'm saying.
Leh: Sometimes you don't because, in Georgia again, some states are like this, you are limited to only 50, or you have a limit on the number of interrogatories you can ask. So, it may be a contested custody battle, or there's lots of issues with alimony, so you may want to be asking some more specific questions about-
Todd: And, it's with sub-parts, so anybody who's trying to do this on their own, remember, the interrogatories, it is 50 interrogatories, including sub-parts. So, you can't have interrogatory number one, A through Z.
Todd: Number two, A through Z. It is A through whatever, you know, it is. I guess that would be like a double X, or whatever. And, then you're done, and the only way you can ask more, is if you get permission from the court, and if you do ask more, they can just not answer you.
Leh: Yeah, they don't have to. Yep.
Todd: So, then there's something called the request to admit. Request to admit is exactly what it sounds like. You are requesting that the other party either admit or deny an allegations. So, admit that you had seven beers last night. Okay. Then, you have the opportunity to either admit, deny, or admit or deny, and offer, I guess there's four. You can offer an explanation, or you can say, "I don't have the information necessary to either admit or deny-"
Leh: But, you want to be careful there, because if you're not truthful in your answers, and the other side winds up proving you wrong, like you say, "Well, I'm not sure if I had seven beers," but you had a Facebook post saying, "I had seven beers last night-"
Todd: If I had seven beers, I'm not going to remember much anyway. So, maybe I'm not lying.
Leh: But, the point being, that you put yourself out where the other side can now get attorney's fees from you, if you don't answer truthfully.
Leh: It's a powerful tool that's sometimes used in cases.
Leh: And then the most expensive one, you know, is a deposition. And that's where you sit down. Everybody's in the same room. The opposing lawyer is asking you questions, under oath, and there is a court reporter taking down everything you say. It's definitely gets used against you in court, if you-
Todd: The whole purpose of it, is to gather information that you could actually use in court against the other party. It's a great method, but you're right. It's the most expensive. The preparation to prepare for the deposition, and then, the just act of taking deposition. And depositions, I've seen depositions take eight plus hours.
Todd: So, it just depends on what the issues are in the case. But, the good thing is, as opposed to a writing, you have the ability to follow up. You have the ability to ask a question, and when they answer in a certain way, and you think of 10 more things you could ask, boom. You jump in, and you ask those questions.
Leh: So, when you've got, and now in the discovery process, you send out a request. There's a time period to respond. In Georgia, it's 30 days to respond. If they don't turn over everything, you actually have to follow up with another letter. We call it 6.4(B) letter, here in Georgia, sating, "Hey, look. We didn't get everything." It's called a discovery dispute letter. "Please turn it over." You have to give them some time to turn it over. If they don't, then you file a motion to compel with the court. It might take you 30 days to get there. They have 30 days to answer it, and then it may take you another 15 days to get in front of a judge.
Leh: So, quickly, I've just identified a pretty much three month period, when it comes to getting documents. So, just sort of breaking down the time that's involved here. And you know, one of things, we're actually almost out of time for this show, and we're going to have to do another show on this. I mean, just keep going, because there's just so much information here. But, what can also draw out the process, and we'll get into that. That's going to have to come up real soon, here.
Todd: Yeah, it's-
Leh: We're going to have to go- business evaluations-
Todd: That's right.
Leh: Can draw it out. A guardian ad litem, a custody evaluation-
Todd: The mediation-
Leh: The mediation.
Todd: Preparing for and going to mediation, or late case evaluations. Sometimes those are use. There are so many things that can take place, and often do take place, as part of the divorce process that, unless you're talking about a situation where, again, contested versus uncontested, that you are coming to an attorney with the terms of an agreement basically spelled out. As I like to say, "On a silver platter," you're handing me all the settlement terms, unless you're doing that, it's going to take longer than you expected, just because there are so many things, documents that need to be prepared, information gathered, it's going to take time.
Leh: Yep. And one thing, we don't have any more of, is time. You know what, I did want to take a minute to just say, well actually I don't have a minute. I want to take a few seconds to say, hey, you definitely want to tune in on February 11th. We have a very special guest, and I hope I'm not jinxing it, I'm just, I'm going for it. We are going to have Dr. Gary Chapman, at least that's the plan, on the radio. He is the author of The Five Love Languages. This is going to be one of those shows of how to take your marriage to the next level. His book has sold almost 12 million copies.
Todd: Let me guess, you're excited?
Leh: I am so excited about this show, and I'm so looking forward to it. You definitely want to tune back in. Until then, you can read more about us online, at atlantadivorceteam.com. You can also email us any questions you may have, at [email protected]
Speaker 3: This audio program does not establish an attorney-client relationship with Meriwether & Tharp.