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Episode 59 - Understanding the Divorce Process and Why It Can Take So Long - Part 3

Episode 59 - Understanding the Divorce Process and Why It Can Take So Long - Part 3 Image

11/20/2018 9:07 am

In our last episode on the Divorce Process, we take you through the end of the divorce process and discuss some of the most common hurdles that draw out a divorce. We finish our discussion of discovery; touch on mediations, late case evaluations, and other alternative dispute resolution processes; and why it can take so long to be heard at a final trial.

Transcript

Leh:                       Welcome everyone. I'm Leh Meriwether and with me is Todd Orson. Todd and I are partners at the law firm of Meriwether and Tharp and you're listening to Meriwether and Tharp Radio on the New Talk 106.7.  Here, you 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. Well, Todd, I think ... I know you may be getting bored of this, but we haven't even finished talking about the divorce process.

Todd:                    If I'm bored at this point, I should have made a change years and years ago. I think it's a little late for that. No, I wouldn't say bored at all. I mean this is the lifeblood of ... I mean it goes right to the heart of what it is that we do because if you don't follow the right steps, if you don't do the things that you really should be doing, then the process could last a lot longer and the results that you get could be a lot worse than they would be had you just done certain basic things to protect yourself.

Leh:                       Yep. And so, what we're doing in today's show, we're gonna continue to talk about the divorce process. The last couple of shows we've been going in to kind of a little bit deeper than we normally do because we want people to really understand why a divorce, especially when there's a little, even a little bit of disagreement can take months and months and sometimes years. I think the more we explain the process, and that's why we're going through it in detail, and hopefully we're entertaining everyone. I mean we're throwing in some stories.

Todd:                    I laugh at you daily.

Leh:                       Well, you know what, if I can provide the humor so be it. If it means that we have people that learn a little bit more.

Todd:                    See, when you do that, you just give me more ammunition. All right. Yes, if we can educate, if we can just give people information that they can use, sometimes it's information that can help them avoid a divorce. Sometimes it is you're in a divorce, how can you make the process the least painful.

Leh:                       Right.

Todd:                    The least painful for you, for your children, for everyone involved, and how can you get through the process and circumnavigate the process the most efficiently. And, that's what we're really talking about. To do so, unfortunately, we have to go in to some detail. We have to really sort of boil it down to very basic parts and then build on that. So, what do you want to talk about today?

Leh:                       I though you were coming with that.

Todd:                    I guess the show's over. I have. I just show up.

Leh:                       I was trying to figure out ways I could keep twisting and tying my tongue. No, just kidding. No, where we left off was talking about discovery. We were talking about the different types of discovery and what can go on. If we give a little bit of recap or go over it, I apologize up front, but we talked about that you've got interrogatories, request for production of documents, request for admissions, depositions. So, those are different tools by which lawyers gather information.

Leh:                       So, if we have moved past the other phases, like the parties tried to work it out across the kitchen table and couldn't. And, maybe the reason they couldn't is because they couldn't come to a fair evaluation for something and they were at different positions. And, sometimes you have people realizing, you know what, we just disagree right now and maybe we could have someone come in there and help us figure out how to reach an agreement.

Leh:                       So, that's why sometimes the discovery is used so that you can gather that information so you can have a third party give an evaluation. Here's a good example, a house. Somebody says, "Well, I think that our house is worth $350,000", and someone else says, "I think it's worth $500,000 and you should give me half the equity." Well, rather than the two of them get in to a big ole fight about that, hire an appraiser. It's a third party independent person who comes back and says, "Hey, the house is not worth neither of what you think. It's actually worth only $385,000", and then you use that number.

Leh:                       So, that's an example of something that can extend the process, but it's a good thing to sometimes ... some people's ... some bleh, bleh, bee, babbo. I told you I was working out another way to get all tongue tied.

Todd:                    You need to discover or rediscover the English language ...

Leh:                       I do.

Todd:                    ... is what you need to discover.

Leh:                       I do. Sometimes I just ... I don't know what it is about this radio show. No, but what I was saying was sometimes people get in a rush, just like I was just a second ago, to get it over with.

Todd:                    Right.

Leh:                       And, as a result, they put themselves in a position where they start arguing with each other that makes, going back to what you said, an already uncomfortable situation much, much worse rather than we say, "You know what, let's be patient here. Let's bring a third party" and my example, an evaluator to evaluate the value of the house, "And we'll just agree that whatever that person says it's worth, that's the number we're gonna put in there."

Todd:                    Yeah, and sometimes look, there are times and there are cases where one party or the other doesn't want the truth to come out. You can't help that. Right? I mean meaning if the person who wants to keep the house wants it valued at $350,000 rather than $500,000, so that it affects the equitable division of the estate, that's a motivation that that person has to not be deceptive but at least to not be as forthcoming and honest about the value because they have a certain motivation. You can't help that, but that's what discovery is for. Discovery is intended to basically level the playing field. Basically, it opens the doors, the windows, you name it, and basically says look inside. Here you go. This is everything. These are the values of the accounts. These are the assets that exist. These are the debts that exist. Now, we can have an honest conversation about divorce. Hopefully, avoiding the stress and the strife that can turn what should be a three-month case in to a 12-month case.

Leh:                       So, one of the ways to reduce the time associated with the discovery process, which you have in all the states I know of, there may be some that don't I suppose, but the states I've ever worked with, I'm licensed in two states, and they have a discovery process. If you want to short of shorten that, don't resist giving information so that you can give the information to the opposing counsel so that they can properly advise their client to help reach a settlement.

Todd:                    And keep in mind, they have a right to the information.

Leh:                       They do.

Todd:                    As long ... like I will state this for Georgia, the other party, if they file formal discovery, it becomes in essence a dictate by the court that you are expected to respond to that discovery and failure to do so can result in certain consequences. If the court has to get involved, you will ultimately be compelled to do so and it could carry with it, that order could carry with it sanctions.

Leh:                       Right.

Todd:                    You don't want to go down that path.

Leh:                       But you give an example of one way that discovery can be expanded. So, somebody doesn't turn over ... they're uncooperative, they don't turn over everything, so what they have to do, and most states have this too, that the lawyer that asks for the information has to send out a discovery dispute letter and asking, "Hey, we got some documents but you still owe us 50 percent" and you have to identify what's owed or answers that are owed. And, they give a deadline. It could be 10 or 15 days, and then if they don't answer then or they give incomplete ... if they give partial responses, you again have to send a discovery dispute letter and that could delay it ten more days.

Leh:                       And then, if you file a motion ... let's say they don't turn it over, then you can file a motion to compel, and then there's a deadline for that. So, it takes your lawyer maybe a week or two to put that together, so that's two more weeks, and then you file it. And then, in our state, in Georgia, you get 30 days to answer. Some of the states it's 20 days, so that they cap that time. So now, another month's gone by. So, that's just one example of how it just keeps getting expanded.

Todd:                    And, I will say this, going back to the sanctions part of this and the what could happen if you have to step in front of a judge and have a judge deal with this issue. I once went to a case. We filed the motion to compel, went through and jumped through all the hoops to try and collect the information that we needed, and I was ready. I had my questions and the statements that I was going to make. I had everything written down. I had the letters that we had written. I had everything. I was ready to be the Clarence Darrow of family law that day. I was going to be more eloquent than anyone.

Leh:                       Than me?

Todd:                    Definitely of you. But, we got in there. I made just a few comments and then all of a sudden, the judge turns to opposing counsel and the opposing party and starts to rail in to them, "Did you turn this over?" "Well, but, uh", "Did you or did you not turn it over", "Um, um, but", and then for 15 minutes is yelling at opposing counsel, is yelling at the opposing party to the point where I sat back down. My client nudges me and says, "Are you gonna say anything", and I said, "Sometimes you have to learn when to just be quiet."

Todd:                    And, the judge took care of everything and I didn't even have to make an argument because the judge finally looked at me and said, "Do you have an order", "Uh, yes, Your Honor, I did happen to bring one." And, gave me everything that we were looking for. So, you don't want to be on the receiving end of a tongue lashing like that from a judge.

Leh:                       Right. And, you know, the bad thing about that is sometimes ... you have to prepare regardless because I've walked in to court before and the judge goes, "Well, why should they have to turn this over", and I'm like, "Okay, let me walk you through it, Judge."

Todd:                    That's right.

Leh:                       But besides it being ...

Todd:                    Listen to our radio show and that should educate you.

Leh:                       I'm sure that would go over really, really well. No, but sometimes I've had to go in to it and then by the time I finish, the judge was like, "Well, that makes sense" and awarded everything I asked for. So, regardless of the situation, you've got to be prepared. You really want to try to avoid it. But, one thing you definitely don't want to avoid is missing any more of our show because when we come back, we're gonna continue to go through the process. You're going to learn more about what can delay your case.

Leh:                       Welcome back everyone. I'm Leh Meriwether and with me is Todd Orson. Todd and I are partners at the law firm of Meriwether and Tharp and you're listening to Meriwether and Tharp Radio on the New Talk 106.7. Here, you will learn about divorce and family law and 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 read more about us, you can always call or visit us online at atlantadivorceteam.com I don't know what it is today, but I just ... I can't talk.

Todd:                    You're gonna get it right by the end of the show. I'm confident.

Leh:                       Now that you've said that, I'm gonna mess up every single one. I'm gonna do it on purpose actually.

Todd:                    I'm having fun so I hope you do.

Leh:                       Oh, I'm actually not feeling myself. The flu is going through our house, so.

Todd:                    Now you tell me. We're sitting in a tiny room. Fantastic.

Leh:                       Sorry. I had to have an excuse.

Todd:                    All right, well, breathe the other way, and let's jump back in and talk more about discovery. We're not talking about discovering the germs that I'm gonna be walking out of here with. We are talking about discovery in terms of documents, information, cases, any case, whether it's a family law case or otherwise. But, obviously, our focus is family law. Every single case, it comes down to the discovery of information that you need to know in order to make good, educated decisions.

Leh:                       Right.

Todd:                    And, built in to the system is the ability to ask questions that require, and by require I mean there is a mandate that you respond and give answers and provide documents and basically what we're talking about now is A, the importance of it, and things that you can do to make sure that you are doing it correctly and asking the right things.

Leh:                       Yep. So when we left off, we were talking about some things that can expand the process and take time. We've talked about when people don't turn their things over. But, there are other situations where maybe your marital estate's a little more complicated and those things can naturally cause the case to be more expensive. So, perhaps you've got a pension that we need to value, so you hire an expert and maybe it takes a couple of weeks, two, three weeks to agree on which expert you're gonna use and then you get the information to the expert and it takes them about a ... depending on their schedule, two weeks, maybe four weeks to evaluate it.

Leh:                       So, now you're six ... that's added six weeks right there, but you need to get the value of the pension, something that both parties can agree on so that we can settle. That's just one example. Sometimes you've got businesses that are involved. Somebody's got a business. What's that business value? Most businesses or many businesses have value, some don't have any. Some are negative and people are fighting over who ... "No, you take it", "No, you take it."

Todd:                    Right. Exactly. Yeah, it's more debt than asset.

Leh:                       Exactly. But even in those situations, you almost need to bring in a forensic accountant to do a full assessment of the problem because in those situations, you could have tax liabilities that you can't bankrupt on. So, even in those situations when you have debt, you may have to bring in a third party to do an evaluation of what sort of liability we could be potentially looking at because you can't bankrupt on a tax debt, for example. That's something very seriously you've got to deal with.  But, on the other end of the spectrum, you might have a business that's worth 20 million dollars.

Todd:                    Or, I've had situations where there was a business and the one party who ran and operated the business claimed numerous times that it has no value, that it's going under, that basically the one client that they have remaining is going to be gone soon, but then we did some discovery. We asked the right questions and we found out that they had just inked a new contract and although no monies had hit yet, that it was a multimillion dollar contract that was going to not just save, for lack of a better way of putting it, the company, it was going to turn it from a small little three-man shop, three-person shop. They were gonna have to hire 20 to 30 people to deal with this one contract. So, if you don't ask the right questions, you don't find that out, and if you don't find that out, you walk away potentially from a very lucrative piece of property that should be considered in the context of division of property.

Leh:                       A very similar case with somebody who is ... they were a third owner in the business saying, "Well, it's not worth anything. I can't sell it." That was one of the things. So, we did some discovery in that case and sure enough found an offer from another business that came in, the one that was considering buying them the year prior, and fortunately, they were honest, or at least their lawyer was honest and made them turn it over. But, we got that information. It showed that ... so when the person said, "Oh no, we ...", now we went to the business in that particular situation. So, perhaps the two other owners were like, "No, we are turning this information over."

Leh:                       So, we got it and it showed that he wasn't being ... maybe he had amnesia, but that's why we have discovery.

Todd:                    I think you're giving too much credit, but I get it.

Leh:                       Just trying to be nice. Like giving someone the benefit of the doubt.

Todd:                    But, the point is, if you don't ask the right questions and you don't pursue that discovery, then you're not gonna get the answers that you're looking for. I don't mean ... it may not fall in your favor. You may find out that the business truly has no value.

Leh:                       Right.

Todd:                    At least find out. At least ask the right questions. Ask them in the right way, so that way when you make your decisions in terms of settlement, you know that you're making a good decision based on valid facts.

Leh:                       So that's part of the process that can extend the length of time it takes to get a divorce.

Todd:                    That's right.

Leh:                       Now, another part of that has to do with I've seen cases ... well, let's say we've got child custody is an issue, that both parties equally ... some of the toughest cases, we have two good parents that love their children.

Todd:                    That is the toughest. It's easy, if somebody's ... look, I've joked about this before, that if one party is the PTA mom and the other one's in prison, it's not that hard of a case. I mean, you know, the person in prison ain't getting ...

Leh:                       Custody. Yeah.

Todd:                    ... custody. But, when you have ... and I do guardian work also, the hardest case is when you have two healthy, good parents that they're just at odds and can't reach an agreement and if a guardian has to step in or ultimately if a judge has to make a decision, that's difficult. I do not envy the judges.

Leh:                       So, that's a part of ... I'm actually gonna throw that in to the discovery phase. That can cause the divorce to get drawn out. So, a good example is perhaps you've got a guardian litem and they can take anywhere from three to six months on their own to do discovery. But, custody evaluations, same thing, and you've got a psychologist that comes in and meets with the parents and meets with the children and does psychological evaluations on the parents and receives information from both sides.

Leh:                       That process I've seen taken ... the shortest one I've ever saw was three months, but I routinely see 'em nine months, 12 months. And then, what'll happen is they'll issue an informal opinion to try to give the parties an opportunity to settle. But, that draws things out.

Leh:                       So that sort of leads us to the next thing. Let's say you get that result. You've been patient and you've gotten that information. You got the business information or you got some financial information at the very beginning of the case and you were waiting for the custodial evaluator to finish their evaluation. With that, now you have that information, let's go to mediation. Great. Well, typically, you'll set that out 30 to 45 day out because you want to give yourself 30 days to get updated financial information because there could have been a whole year since you got the last round of financial information.

Todd:                    And, also, from the moment that you get it, you don't want to go to mediation the next day. You have to take that information. You have to understand it. You have to review it and analyze it. I'm not saying you're spending three weeks dedicated to that. I mean no other work, but you still ... there's work that goes in to making sure that when you go in to mediation, you're prepared. That you've reviewed everything and you know what questions to ask and what positions to take.

Leh:                       So, I make that point because some people will go, "Okay, we've got this. Let's go right back to med ...", like, "Why are we waiting 30 days to go to mediation? Why can't we go next week?" Well, because we need that updated information, number one. And, sometimes, the lawyers are in court on other cases. Or, the mediator, sometimes you know a mediator has a good personality fit for the two parties, or maybe some mediators are very strong on custody, some are very strong on financials. We just know who ... most lawyers know which mediators have their strengths and they want those mediators, and some are really in demand. I know some mediators it's a 30-day wait to get on their calendar. But, that's because they're in demand.

Todd:                    And that's typically because they're the ones that are worth waiting for.

Leh:                       Right.

Todd:                    And so, a good attorney or an attorney that practices primarily in this area and has a lot of experience in the family law arena, they're gonna know the go-to people. I mean everybody has their favorites, not because a mediator works in their favor, just because they know ... like how do we judge? We judge are they gonna be fair?  Are they going to be responsible and reasonable? Do they understand the concepts and the legal issues that commonly come up in divorce mediation? That's what we want and we want a demeanor that is going to help facilitate settlement.

Todd:                    That's what we look for, and we know the people that work well. Work well with us and also work well with our clients. So, finding that right person and getting on the calendar, if you will, it takes time sometimes.

Leh:                       Well, when I say works well with us, we need to be clear, these mediators are neutrals.

Todd:                    And that's what I'm saying. I'm saying ...

Leh:                       Yeah, but the ...

Todd:                    It doesn't guarantee a result.

Leh:                       But sometimes you can get a good relationship with a mediator and they can actually speed up the mediation because they'll tell you like ... they give what's called reality checks. Sometimes ...

Todd:                    You are barking up the wrong tree.

Leh:                       Yeah, well, I'm not talking to you. I'm talking to the listeners.

Todd:                    I was role playing there, Leh. All right. We're gonna talk a little bit more about discovery during the break. Discovering what I'm trying to say.

Leh:                       You're suppose to leave me notes.

Todd:                    Okay, sorry.

Leh:                       No, but ...

Todd:                    I do have a note for you, I think we have to go to a break.

Leh:                       No. We're not done yet. Hey, don't go away. When we come back, we're gonna continue to go in to the different things in the divorce process that can really draw out your case. But, as long as you know it, it's easy to get through it.

Leh:                       Welcome back everyone. I'm Leh Meriwether and with me is Todd Orson. 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.

Todd:                    I'm giving that an A.

Leh:                       Woo-hoo.

Todd:                    Yeah. Not one misstatement. That was nicely done.

Leh:                       Oh, thank you.

Todd:                    Golf clap. All right.

Leh:                       If only I could talk in the radio like I talk everywhere else, we wouldn't have a problem.

Todd:                    Exactly. Put a microphone in front of you and all bets are off.

Leh:                       I don't know what's going on with me today.

Todd:                    All right. Well, I still love and respect you. All right? So now that we've hugged it out, let's move on with the show.

Leh:                       All right.

Todd:                    All right, so we are talking about discovery. We're talking about the importance of discovery. We're talking about the ... excuse me, I'm getting all choked up. Then, we talked about and started talking about mediation.

Leh:                       Right.

Todd:                    God, Leh, you're having a negative impact on me.

Leh:                       Sorry.

Todd:                    It's those germs you gave me.

Leh:                       You're going to start getting tongue tied too.

Todd:                    Yeah, so let's keep talking about mediation.

Leh:                       All right, well ...

Todd:                    As I choke.

Leh:                       While Todd's choking, we'll continue to go through the things that can draw out a case. You know, there's some times before you get to the discovery or in the middle of discovery another thing that we kind of jumped over was what's called a temporary hearing. You've got some cases where there's temporary hearings. So, a temporary hearing is, and most states that I know of have these, so a decision has to be made how to deal with the finances, how to deal with who's with the children at what time during the course of the divorce. The reason why they have that available because the courts know that a lot of cases can take three months up to 24 months or more, and so that's a long time for children to be in limbo or a long time for people to fight about who's paying what bill on what house or that sort of thing. So, the court likes to put an order in place that takes care of all of those things.

Leh:                       Sometimes before you can really get to the meat of the case, perhaps you need some help. Like we've got situations where somebody that they were not the primary bread winner and they need attorney's fees to do this discovery. We've had that before where unfortunately, and I'm not trying to pick on husbands, it's just the facts of the case, the husband just was very well off, had a business that was worth a fair amount of money, in the millions, and cut our client off. Before we could take any further steps, we didn't have the money to do the discovery, to hire business evaluator to evaluate his business, and he was unwilling to cooperate, so we went to the judge and the judge ordered for him to pay our attorney's fees during the representation of our client and ordered him to pay for a business evaluator to come value the business.

Leh:                       Now, some people might get fearful, and I'm not gonna get ... I don't want to get in too much of a tangent but the judge ordered that money be available for a business evaluator, and that person was gonna have to be chosen by the parties, or the lawyers. It was gonna be a neutral to get an evaluation.

Todd:                    The judge is usually pretty good about not just wasting money.

Leh:                       Yeah.

Todd:                    Not just saying, "Oh, you want an evaluator? Oh, you want a guardian? Oh, you want a this and a this and a that", yeah, let's go blow all this money on all these things. Maybe some of them aren't even necessary. So, judges are reluctant to just dig too deeply in to the marital assets, but the flip side of that is, they're going to make sure that both parties have access to marital funds in order to basically deal with these legal issues. So, just cutting someone off, usually that's not a viable option, and it's really just gonna end up creating more problems that you end up in front of the judge and then you've got a judge looking at you who really doesn't like the "game playing".

Leh:                       Yeah.

Todd:                    And so, you know, but that's where a good attorney is gonna step in and give advice that you need to hear about how to manage your case and what kind of strategies to employ.

Leh:                       So, that's another example of something that can delay the case. So, before we even get to the discovery process, we had to get in front of a judge. Sometimes you can take 30 to 60 days to get that temporary hearing. So, there's two months that can add on to the six-month discovery period. I say six months, that's here in Georgia. Every state's different how they handle that.

Leh:                       But, we're just trying to lay out the discovery process and the time associated with each component of it so people understand ... we've already talked about gosh, for months ... I mean we've at least laid out how easily a divorce could take a year.

Leh:                       Now there's other things. So, let's say mediation fails. We've talked about mediation and maybe it fails for whatever reason. Then, we get put on the trial calendar. Or, all too often, because there's so many ... the courts deal with so many cases, but thankfully, about 80 percent, roughly 80 percent, some jurisdictions it's 90 percent of the cases work themselves out.

Leh:                       But, of that remainder, that's still a lot of cases. If you have a jurisdiction that has 3,000 family law cases, you know, you take 20 percent of that, that's still 600 cases you have to deal with. If the court tried one case a day, didn't take a day off, it would take almost two years for them to reach your case. So, it's just simple math. Most cases take longer than a day.

Todd:                    And, that's hard to deal with. You know, the funny thing is it's hard for us to deal with that.

Leh:                       Yeah.

Todd:                    We have a case let's say that's been pending for eight months, and we're trying, begging to get on to a trial calendar. And, we write letters, and we make requests.

Leh:                       Or, we're on a trial calendar, but we just don't get reached.

Todd:                    And you don't get reached. You get bumped to the next calendar. You get bumped to the one after that and months are going by. I know the client is frustrated and it's hard for us to explain what is happening because, you know, really, it's out of our hands as well. We are frustrated, but that is, fortunately or unfortunately, the system. And so, you have to understand that when you are going through a divorce, a lot of the delay is just in dealing with and working within this system that we have. And, sometimes, depending on the county, you could have, in addition to the months where you're actively working, you could have an extra one, two, three, four, five, six months where the whole case is ready for a trial, you just can't get heard.

Leh:                       Right, and then the sad thing is when you hit that six months spot, you've got to go and get updated financials again.

Todd:                    That's right.

Leh:                       So, it creates a problem. Or, we had this recently happen, the case went on for two-and-a-half years. Well, the custody evaluation was done within the first year, so we get to year two-and-a-half where we're finally in front of the judge after multiple trial calendars where the argument is that the custody evaluator's information was old now. It's a year-and-a-half old and it shouldn't be ... this should be disregarded by the court. Now, thankfully, that didn't happen and still got a favorable ruling, but it created a problem.

Todd:                    Well, and we've both had situations where after a period of time, we have found out that assets have increased let's say in value by 10, 20, 30, 40 percent and had we not exchanged addition of discovery, had we not said, "Well, I don't want to have to do this but, go ahead and give me updated documents because we need to know", we wouldn't have known those things. We would have gone in to court, argued based on the old numbers, and our clients would have been hurt.

Todd:                    So, you have to ask those questions. And, I say it that way because there is frustration associated with that and people have to understand that if an attorney looks at you and says, "Unfortunately, we have to go back to the well. We have to ask for more documents", it's not that they're trying to run up the bill. It's that they are trying to protect you.

Leh:                       Yeah, and you can have two different ... this is interesting, so in Georgia, I don't know if you know this, but in Georgia, the divorce ...

Todd:                    It's the peach state.

Leh:                       Yes, it's the peach state.

Todd:                    Oh, there's more. I'm sorry.

Leh:                       So, in Georgia, the court decides or can decide to divide up the marital estate as of the date of the divorce. Did you know in Florida, they look at it as the date of filing the divorce.

Todd:                    Oh wow!

Leh:                       So, big difference. Now, sometimes the court can deviate from that and there's exceptions for that. But, the time of filing the divorce is when they look at it. Now, even in that situation, though, you still need updated information like payroll checks, because we've seen ... you and I've both seen cases where people have gotten 20, 30 thousand dollar pay increases or bonuses they didn't disclose to their spouse, of course that show up on tax returns, on those W-2s, paycheck stubs. And so, you go in to court, especially if there's child support at issue, and you walk in there with ... you think your child support number is 1500, and then you find out the other person got a huge bonus, and that can make a huge difference.

Todd:                    Absolutely. Absolutely. So, you have to have updated information.

Leh:                       Right.

Todd:                    But, that takes time.

Leh:                       Time.

Todd:                    That's the theme here. And so, it's us trying to explain it is a process. It is a system. You have to work within the system and work by the system rules, and unfortunately, it takes time if you're gonna do it the right way.

Leh:                       And this is what some people don't think about. This has happened to us this year, so we talked about being bumped from the trial calendar because just so many cases, but then you add in though Georgia doesn't handle snow very well. We've already had two periods where we had so much snow it almost shut everything down. The courthouses were closed for days. So, we had one case that was delayed for that.

Leh:                       And then, we get back there and we show up to court and there's this note on the door, "Judge has the flu." I mean right now I know there's hospitals in the metro Atlanta area that are over ... there's not enough rooms for all the flu patients. So, you had that. That delayed the case.  Another month and we come back again, I think the judge was having gallbladder surgery. I can't make this stuff up.

Todd:                    I say he just has court in the hospital room. I mean at that point, let's just get this done, Judge.

Leh:                       So, I mean so these things, life happens and it delays the case. But, one thing I don't want to delay is them learning more information, so when you come back, we are going to give you some more great information about the divorce process.

Leh:                       Welcome back everyone.  I'm Leh Meriwether and with me is Todd Orson. 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:                       Well, Todd, we've been ... we've kind of gotten towards the end. We've been breaking down the whole divorce process and sort of explaining, pulling back the curtain, why this process takes so long. What little things along the way that seem minor that can add months to the case. But, we wanted to make sure everybody understood, because if you hear this going in, I wouldn't say it makes it necessarily easier to deal with, but it makes it easier to avoid the frustration because you know it's coming.

Todd:                    It's all about setting expectations. And, I can't tell you how many times I've seen clients come over to us because they were working with an attorney and the attorney just set ... didn't properly or correctly set expectations, expectations regarding how long things would take or what steps of the process needed to be followed in order to get to a solution, get to either an agreement or final trial, and then they're ... people are sort of pulling their hair out, going "Just tell me something because yesterday I thought we were almost done and now you're telling me it's gonna take six more months to get in front of a judge and I don't know what to believe at this point."

Leh:                       Yeah, and you know, when you mentioned that, I've had people call in and go, "Hey, this just doesn't seem right. My lawyer's telling me X, Y, and Z."

Todd:                    And we've sometimes had to say ...

Leh:                       That's right.

Todd:                    ... that's right, it is correct.

Leh:                       Yeah, don't fire your lawyer. It sounds like you're doing a fine job.

Todd:                    And, you know, it's a multi-part reason. A, I know you're like me and we are not the kind of attorneys where we are going to badmouth people to win business or take business away from another attorney.

Leh:                       Right.

Todd:                    But, B, it's also about setting expectations. If I were to criticize somebody for doing something the right way, then the expectation you have just set is that person's gonna start working with you and expect something different.

Leh:                       Right.

Todd:                    And, when you don't give them something different, if they were angry with Attorney Number One, they're gonna be two times as angry with you.

Leh:                       Yep.

Todd:                    So, we are all about giving people information so they can make good decisions. That's the purpose of these shows, to let people understand it is a process. Some cases will last 30 days. Some cases will last a year. It just depends on the issues, it depends on so many things. And, people just need to understand it is a process.

Leh:                       And, you know, now, there is a silver lining during this process where ...

Todd:                    I love silver linings.

Leh:                       Especially if you can sell the silver. But, no, so during this process of waiting to get on a trial calendar, we've had lots of cases settled. While they may have failed at mediation, there's other avenues called alternative dispute resolution.

Todd:                    ADR.

Leh:                       ADR. And, one of 'em is called a late case evaluation. So, let's say mediation's failed. The mediator, while they may have given reality checks, like couldn't go the next step. They couldn't say, "Well, I really don't think your legal argument's gonna fly in front of this judge."

Todd:                    Well, let's break down just the name, a late case evaluation. It is something that usually takes place later in the case and you are having the facts evaluated absent a judge, meaning you're not going in front of a judge and having a decision or getting a decision. And, you're having somebody, usually somebody who is well versed in family law and divorce law, give you their opinion, to evaluate the facts and circumstances and then to say, "Okay, I hear you, and if those are the facts that come out in trial, this is where I think your case is. This is what I think a judge might do based on my experience."

Leh:                       So, you know, that evaluator, it's an informal process like mediation. You share the information. Both the parties show up, give their information, then they say, "Okay, based on what I've heard, here is how I think the judge is going to rule." Now, the nice thing is that a lot of times, that late case evaluator is saying, "Now, I've got three more hours, do you want to see if we can hammer this out" and they sort of act like a pseudo mediator. While they mediate the case, they're not bound by the limits of a mediator, which they're not suppose to give those evaluations.  Now, some of 'em reality check a little stronger than others, but the late case evaluators have a lot more strength.

Leh:                       And then, there's another tool called a judicially hosted settlement conference. There's some what's called senior judges. They have retired from being a judge full time, but they come in from time to time and you can pay them on a private basis and they can give ... they sort of host a settlement conference. So, it's still in the settlement and mediation type format but it's not called mediation. So, the judge, now the judge doesn't make a ruling, but again, it's informal. The judge says, "You know, before I retired, I was a judge for 25 years and here's how I would rule on this case."

Todd:                    Yeah, it's really ... it's 85 percent mediation, utilizing a judge who is no longer actively sitting on the bench or that has gone in to let's say senior status, where they may go in but they don't have their own courtroom and they're not handling cases every single day. So, it's about 85 percent mediation and 15 percent late case evaluation, because they're gonna come in and they're gonna say, "I've been doing this a long time. I've heard a lot of cases like this, and this is what I would do, but, if you want to roll the dice, you can do whatever you want. I don't know exactly what the judge you're in front of and who has this case is gonna do."

Todd:                    So, they can be incredibly powerful. But, as with everything, going back to our theme, it takes time. It takes time to reach the agreement as to whether or not you're gonna go down that path. And once you reach that agreement with opposing counsel, then you have to engage in a little bit more discovery to make sure all documents are updated, and then you have to prepare for and attend that settlement conference. It all takes time.

Leh:                       Yeah, and if you're dealing with a senior judge, you're going to have to work within his schedule because he may have points in time when he's on the bench, not in a full-time capacity but ... so it takes time to schedule the settlement conference.

Leh:                       And then, something that's relatively new, well, relatively new in the legal world, but it's been out for about ten years or so.

Todd:                    In family law, it's gaining momentum.

Leh:                       Yeah, it's called arbitration. And, arbitration is a point where you go in front of a third party neutral like ... they are a judge but they aren't a judge in the capacity that they've been elected as a judge. By agreement, you and your spouse make them the judge of your case.

Todd:                    A good example is all of those TV legal shows that you see, Judge So-And-So.

Leh:                       Judge Judy, yeah.

Todd:                    Yeah, Judge Whatever. I'm gonna go old school, I'm gonna kick it with Wapner. Okay?

Leh:                       Okay.

Todd:                    All right, but what that is is they are not really sitting as a judge. They are in essence an arbitrator wearing a robe.

Leh:                       Yes.

Todd:                    The parties go to them and say, "I want to be on TV. We have this legal issue. We will submit it to arbitration and you, the judge, are gonna play judge". But, in essence, what that really is is arbitration. Here, it's the same thing. There are people out there ...

Leh:                       There's no TV camera.

Todd:                    ... that's had experience. There's no TV camera. Not exactly the same thing. But, although that would be pretty neat to have Wapner sit in and arbitrate a couple of cases.

Leh:                       It'd be funny.

Todd:                    But, you are saying to this third party, "Hey, you have a lot of experience. We're not gonna go through this process and potentially be on a calendar for months and months before we're heard. We will submit this to you and we're giving you the authority to make a decision like a judge."

Leh:                       Yes, and it can be very powerful, especially after we just laid out how sometimes it can take a year to get in front of a judge, especially if it's complicated and you think it's gonna take five days, there was one case it took two years to get tried. So, in those cases, you're better off with an arbitrator to come in. It's quicker. You're done faster. Once it's set up, you don't have to worry about court schedules and all that sort of thing because that mediator is there ... or I'm sorry, the arbitrator is ... it's private. So, you're paying them to be there. And, it can be much more efficient.

Todd:                    It can be, absolutely. I mean and that's really where the attorney's gonna help to be able to say whether or not it is a good decision because there have been times where somebody has said ... opposing counsel has said, "How about arbitration" and we've jumped at the opportunity. But, sometimes, there are things that we want the judge to hear, need the judge to hear, especially if we foresee yeah, we might reach an agreement here, but you know what, we need to do some things otherwise even after an agreement is entered, we're gonna ... these parties are gonna be dealing with issues for years to come. We just need the judge to hear it now. So, but that's a strategy decision the attorneys are gonna have to make.

Leh:                       Yeah, and that's what it's all about, it's about making good, wise, strategic decisions throughout the case. Well, I wish strategically we could keep going on because we haven't had a chance to talk about appeals and how that can draw out the process. You win your case, your day in court finally. It took us three years to get here and the other side files for an appeal.

Todd:                    You've got a shop at home, just build us a radio station.

Leh:                       I could.

Todd:                    Now you're thinking.

Leh:                       Now I'm thinking. All right. If you don't mind driving them up to my house. All right, but I mean that draws out the process too, and can draw it out six months or a year. But, unfortunately, we don't have time to get in to that part in this show today.

Leh:                       Well, thank you so much everyone for listening. If you're enjoying this show, you can always send us an email, [email protected] You can email us questions there. If you're enjoying listening to this show online, post a review about us. We would love to hear your feedback. And you know, I do want to give a quick tip, next week, we have an exciting show that's all about how to take your marriage to the next level. You don't want to miss it.

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