Episode 74 - What to Expect at a Temporary Hearing
Leh Meriwether: You know, Todd, one of the reasons I love doing the radio show is it gives us a chance to really dive in deep sometimes on certain topics and gives us a chance to explain, sort of, I guess, pull back the curtains so people can see what's going on in the courtroom.
Todd Orston: I normally don't like when you pull back the curtains, but absolutely. Look. Court procedure and processes can be complicated. We do shows on all different topics, and sometimes we like to pick one aspect of the process and dive a little bit deeper, okay, because that's the whole purpose of the show, to educate, to give information, and today is no different.
Leh Meriwether: Yep. Hey, 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 Talk 1067. Here, you'll learn about divorce, family law, tips on how to save your marriage if it's in the middle of a crisis, and from time to time, even tips on how to take your marriage to the next level. If you want to learn more about us, you can always call or visit us online at atlantadivorceteam.com.
Leh Meriwether: Well, today we're going to dive into temporary hearings. This can get really ... I don't know if esoteric is the right word, but we're going to go a little bit deeper than we normally do. I know we enjoy shows like when we had Bill Eddy on to talk about the 5 Types of People Who Ruin Your Life. We like going into those topics, but on occasion, we like to dive deep on one topic as well, because we know that there's a lot of people out there than can use this information.
Todd Orston: And temporary hearings ... excuse me ... are ... I'm getting all choked up. Temporary hearings are very common. If you are dealing with some kind of a legal action, especially if you're dealing with a family law action, a temporary hearing, also known or in some courts known as an interlocutory hearing, are relatively common. Doesn't happen in every case. Doesn't have to happen in every case, but when there are temporary issues, issues that can't wait until the final adjudication, then most courts will give you that opportunity to come before the court and basically bring those issues up to get some relief pending the final decision of the court or final settlement.
Leh Meriwether: Yeah. Today, we've got a whole series of questions, and the plan is we're going to really talk about ... We're going to talk about what is a temporary hearing and what can you expect and not expect at a temporary hearing. And you don't want to miss next week, because next week we're going to continue this deep dive and we're going to talk about how you actually prepare for a temporary hearing. But today, we're going to talk about what to expect, because sometimes if you don't know what to expect, you can come into a hearing and really be surprised or disappointed because the court only can cover certain things.
Leh Meriwether: So, let's start with ... I think you started to explain this, but what is a temporary hearing?
Todd Orston: Well, temporary hearing as opposed to the final haring or final trial, it's pretty much what it sounds like. Like I said before, issues are going to come up in your case, and sometimes you can just wait until the very end and you can try and negotiate, and if negotiations fail, you can then present all of the issues, all the pending, unresolved issues to the court at that final trial. But some people and in some cases, you can't wait. You can't say, "Well, okay, three, four, five, six, seven, eight months from now, I'm going to resolve all the issues."
Todd Orston: There are some issues where it's sometimes custody issues, sometimes financial issues, support issues that just can't wait, and if you can't reach a temporary agreement, then this is an avenue that you can go down and you look to the court. You basically say, "Judge, we need some temporary help, and if you can give us this help, it's probably going to and hopefully carry us until we either resolve the case by settlement or we have a final trial [inaudible 00:04:16].
Leh Meriwether: The judge will step in and put something in place. Basically, sometimes they're trying to keep the status quo and sometimes they're trying to address a tension in the family relationship that can't wait and could cause potentially harm to the children, and so the court will step in and issue an order if the parties can't reach an agreement.
Leh Meriwether: Now this should be contrasted with other types of hearings that you can have in a family law or divorce case, like a motion to compel and a motion for contempt. Then, in many cases there's what's called a standing order, and sometimes a standing order will issue some temporary rules that you've got to follow until the end of the case, but it's not necessarily a temporary hearing. In fact, sometimes you've got to go to court for a temporary hearing to change components of the standing order because they may not work for your situation.
Todd Orston: Well, and I think that was the whole premise behind the standing order. It was to put certain rules in place upon the filing of an action that both parties are immediately bound by, because before courts started using standing orders, there were certain basic things like taking the children out of the jurisdiction of the court or doing [crosstalk 00:05:32].
Leh Meriwether: [crosstalk 00:05:33] interest or insurance.
Todd Orston: Insurance, that's right. Those types of things where you would have to go to court and say, "Oh, Judge, in this order, we need some terms that are going to deal with the insurance, make sure that my spouse doesn't change the insurance coverage or doesn't take the children out of state or do any of these things." Basically, the court was like, "Okay. We don't need to have a hearing on all of those things. You file an action. These are basic ground rules that you are now bound by."
Leh Meriwether: Yeah. Now we haven't studied every single jurisdiction, but all the jurisdictions I'm familiar with, there are standing orders. They're different in every jurisdiction. They're even different in Georgia. Each county has its own standing order and some are drastically different than others, so its important to read that. But we're talking about something different.
Todd Orston: Yeah. And very quickly, you said you were differentiating between a temporary hearing and some of those other motions hearings. Right?
Leh Meriwether: Right.
Todd Orston: But something that is similar is going to be what's called the emergency hearing.
Leh Meriwether: Right.
Todd Orston: An emergency hearing is, for the most part, a temporary hearing, but there are much more serious concerns, emergency concerns. What you're doing is you're then saying to the court ... With a temporary hearing, you're saying, "There are temporary issues. We can't wait for a final. Please put us on a calendar as soon as you can, but whenever the court is ready and available, put us on a calendar."
Todd Orston: Emergency is the same thing, except you're looking to the court and saying, "We need to be in front of you yesterday." This is an emergency. It's dealing with the safety or the health or welfare of a child or-
Leh Meriwether: Or the house is about to go into foreclosure.
Todd Orston: That's right, some emergency, financial issue that just cannot wait days, let alone weeks, months, or longer.
Leh Meriwether: Right. Now dealing with something like a house is different than dealing with a credit card. Every judge I've ever been in front of has said, "Well, failure to meet a credit card payment, that's not an emergency. That's an unfortunate situation, but that's not an emergency." But potentially losing a major asset, which is the house, often a major asset, that can be an emergency situation.
Todd Orston: Absolutely.
Leh Meriwether: All right. I think you've already mentioned this before, but temporary hearings are not the same around the country. Every jurisdiction, every state and even county addresses how temporary hearings are to be run. We're going to be focusing more on Georgia today, so if you're listening to this outside of Georgia, then just keep in mind that you need to talk to a local attorney to find out what a temporary hearing is like in your situation. But for the most part, what we're going to talk about is general nature, and as far as I know, applies to most states. Right now, we're taking a 50,000-foot view. In every jurisdiction I'm aware of, that anybody can ask for a temporary hearing. When I say anybody, I'm talking about the parties.
Todd Orston: Someone involved in the case.
Leh Meriwether: Somebody involved in the case.
Todd Orston: You don't just walk into court and say, "I would like a temporary hearing."
Leh Meriwether: Right. Like you said, some courts it's called interlocutory hearing, so they call it different things. We're just going to call it temporary hearing because that's what we're most familiar with, and it makes the most sense. It's a hearing to deal with temporary issues.
Todd Orston: Oh, come on, and it's an easier word.
Leh Meriwether: It is an easier word. One of the questions we get often is, "Will a temporary hearing set the course for the rest of my case?" In other words, will a temporary order also become my final order? That's a fear we get from a lot of people.
Todd Orston: That is a question that we get all the time, and the answer is maybe. I'm going to elaborate. The reason I can't say yes and I can't say no is ... My quick answer would be no, the court is going to ... If you can't reach an agreement, the court will see what you did on a temporary, but at the time of a final hearing, the court's going to, for the most part, listen to all the facts and all the evidence and might change what was done. Okay?
Leh Meriwether: Mm-hmm (affirmative).
Todd Orston: But, the whole precedent argument, is this setting a precedent, cannot be ignored because there are some situations where strategically, we will look at a client and we'll say, "We need to prepare for this trial, this temporary hearing, as if it's the final trial, because for the most part, what happens here at this temporary hearing more than likely the court will adopt at a final."
Leh Meriwether: Right.
Todd Orston: Is it possible? It's absolutely possible that what is done at the temporary might set, not precedent, but might basically create the framework for what the court adopts at a final trial.
Leh Meriwether: It's really ... It's a case-by-case situation.
Todd Orston: Absolutely.
Leh Meriwether: Because there's cases where you've got someone with a personality disorder on the other side, and if you read Bill Eddy's book, one of the books, Splitting, they're very compelling the first time you ever meet them. They speak with emotion and passion, which makes their factual arguments almost, a little bit more compelling. We've had many cases where our client lost at the temporary but time was on their side, so by the time they got to the final, the temporary order was basically completely reversed because the truth finally came out through the course of events.
Todd Orston: Absolutely.
Leh Meriwether: Definitely before you walk in, you got to talk to your attorney to make sure you know what to expect in this particular one and what sort of repercussions a temporary hearing would have.
Leh Meriwether: Up next, we're actually going to talk more detail about what exactly you can expect to happen at a temporary hearing.
Leh Meriwether: Welcome back, 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 1067. This show, we have been talking about temporary hearings. We're getting a little bit deeper as far as we're talking about one specific hearing that you might have in the case, but it's one of the most frequent hearings. In fact, in some counties, in some counties you see a lot of temporary hearings and very few final hearings, because what'll happen is you'll have a temporary hearing and then the parties will go to mediation afterwards and settle their case. As a general rule, I've probably had a lot more temporary hearings than I've ever had final hearings.
Todd Orston: And that's pretty normal. I would say the same thing goes for me. Going sort of to what we were talking about before, also if you have that opportunity in front of a judge and you have either a full hearing or ... Sometime it is important to know you might go to court either at a temporary or at a final, and sometimes the attorneys will ask for an opportunity to speak to the court, and the judge will bring, for that attorney conference, the attorneys back into chambers. Sometimes it gets resolved that way.
Todd Orston: Either way, whether it's a hearing or a pre-trial conference, you're getting to understand what the judge thinks about some of the issues. Absolutely, I agree with you because a lot of times what would happen is I'd have the temporary. I would understand the other party, understand the other attorney, understand what the judge might do or did do at the temporary, and that would really drive negotiations and mediation.
Leh Meriwether: I think it's important point to make right now to say that we're very resolution-focused here at Meriwether & Tharp, so most of the time we try to get things set up so you never have to have a hearing, period. But what we're talking about is settlement. Negotiations up to this point have failed, and here's what you can expect here. Next week, we're actually going to get into things you can do that will set yourself up to hopefully settle with your case, have what's called a temporary order that you never have to get in front of the judge to reach. I just wanted to make sure I put that point out there. If we're talking about ... Then the negotiations fail and you have to get in front of the judge to make a temporary ruling.
Leh Meriwether: Probably important, before we dive in exactly what to expect at a temporary hearing, to say as a general rule, the courts ... At least it's been my experience over the years. They like to keep the status quo. Here's a typical example we see. You've got a stay-at-home mom who's been the primary caregiver, and then you have a father that's been traveling. He travels for work. I'm not saying that's a typical case. I'm just giving an example that we see that's a good example to lay out.
Leh Meriwether: Well, in most of those cases, the court's going to say, "Hey, look. That's what you've been doing up to this point. I'm just going to keep that going, and here's what we're going to do. Here's the parenting time Dad's going to have," and that sort of thing. The only times that that might be different is if there's concerns or there's a discovery over some sort of alcohol abuse, where the mom was putting the children in danger.
Todd Orston: Oh, yeah. If there are safety concerns, things like that, whether it's safety concerns for the spouse, safety concerns for the children, then obviously that changes everything. But absent those types of exigent circumstances, those types of emergency or those specific types of examples, then the court really wants to maintain the status quo.
Leh Meriwether: Yep.
Todd Orston: And granted, maybe a tweak here or there, but you shouldn't go into a temporary hearing absent that kind of an emergency situation and expect that your roles have changed.
Leh Meriwether: Everything's changed.
Todd Orston: Right.
Leh Meriwether: Or a kid's world had changed.
Todd Orston: Exactly.
Leh Meriwether: All right. Let's start giving some specifics. What can we expect to happen at a temporary hearing? Then, we're going to do the opposite later. We're going to talk about what can you not expect at a temporary hearing. What's one of the things someone can expect to happen at a temporary hearing?
Todd Orston: Well, let's just start with, again, building on the status quo argument, that the court is really looking to maintain peace, to maintain status quo. What that really means is that the court's going to go in and the court's going to consider facts and circumstances, and absent those emergency situations, the court's going to make sure bills are paid. The court's going to make sure that children are being taken care of physically and financially. The court is going to make sure that if support is needed ... Let's say you have a situation where, let's say, it's a stay-at-home mom who has historically taken care of the children and does not work and have income, make sure that she has some income, that she has some support.
Leh Meriwether: Right. Child support.
Todd Orston: Not just child support, but maybe even alimony. All of those types of issues to get the parties from point A to point B, A being the filing of the divorce, B being a final resolution, whether that's a trial or an agreement. It's basically to get the parties comfortably down that path.
Leh Meriwether: Right, so chaos doesn't ensue.
Todd Orston: That's right.
Leh Meriwether: Sticking on the support component, we've seen cases where it was a relatively short-term marriage, so four years, where in a final, you would not see any sort of alimony award. But on a temporary basis, the court may order the husband ... We're going to pull some stereotypes right now because it's just easier. Order the husband to pay some temporary alimony, but basically let the wife know, "Hey, you've got to get a job because this is only temporary."
Leh Meriwether: It's because maybe he just filed and this was a shock to her, so the court's going to ... The court doesn't want her to suddenly file for bankruptcy or the kids not be able to eat when they're around her. Because you've got situations where the child support may not be immediately enough to take care of the expenses. She's got to get a job. That's where support ... You can have a temporary award of alimony, but on a final basis, no. There's going to be no alimony.
Todd Orston: Well, I think an interesting point, and an important point, that people should understand is that I've either been a part of a temporary hearing or I've talked to people, you could have a temporary hearing ... I've had a temporary hearing that lasted days.
Leh Meriwether: Yeah.
Todd Orston: I've had temporary hearings where the judge looked at us and said, "You have 30 minutes." I've talked to people, and I've even heard in other jurisdictions where the judge will literally say, "Each side 10 minutes. That's it. Tell me what the issues are, and let's move on."
Todd Orston: At a final trial, usually ... Like I said, I've had two-day hearings, but you're not going to have those types of time limitations normally at a final trial. People need to go into this process understanding that it's the abridged version. You have to get in and get out. You have to make your arguments very fast. You may not be able to present all the information, all the evidence, which means that you may result in a situation where all the judge is hearing is, 'Oh, ma'am, you're not working? Sir, you're working? Okay, sir, you're going to pay a little bit of alimony right now."
Todd Orston: But at the tail end, there could be a whole bunch of other facts and circumstances that come out where the judge might not have so much sympathy for the mother or wife and say, "You know what, ma'am? You need to go get a job. The case has gone on for another six months, and you had-
Leh Meriwether: Or a year or two years.
Todd Orston: "Or a year and you've had support all that period of time. You're still not working. You know what? He's not paying anymore support." So it might change, but, again, the court is only hearing, you're getting a snapshot of what's going on.
Leh Meriwether: Because you're right, because a lot of ... There are situations where a court will just say each side has one hour.
Todd Orston: Yeah.
Leh Meriwether: You have to be concise, and they're like, "I only want to hear the temporary issues." In a few minutes, we'll get into what the court typically won't hear. One of the things they may hear is who stays in the house. At a temporary hearing, a court can order one party to move out of the house and find another residence. Now, obviously, that's going to impact alimony and a potential payment of alimony because now, let's say it's the husband has to move out, and now they've got to spend money on their place and spend money on a place where the kids can come visit, so that's going to impact everything. That's one of the other things, who stays in the house.
Leh Meriwether: A temporary parenting plan. If somebody's moving out, who spends what time with the kids. Maybe it's the divorce is filed in May, and summer vacation is coming around the corner. Who can take the kids on vacation, when and where, because they may be out of state. So you get ... A lot of standing orders say you can't take the children out of the jurisdiction, which is typically defined as the state that you're in. Maybe you say, okay, it's okay that mom's going to take the kids on vacation here and dad's going to take the kids on vacation there. The court lays out a temporary parenting plan and lays out where the kids are going to be with, where are they going to be, when, and with whom.
Todd Orston: Yeah. Georgia, since we are talking primarily about Georgia, Georgia's very interesting because with family law cases, Georgia in terms of what evidence can be presented, how evidence is presented, Georgia actually allows the use of affidavits. I wanted to bring it up here because, again, sometimes people will go into a temporary hearing thinking, "Oop, it's time for my full trial on custody, and I want to fight for joint physical custody." Okay, well, guess what? You can't call other than ... You can usually call one witness that's-
Leh Meriwether: In addition to yourself.
Todd Orston: ... in addition to yourself, and then everything else has to be by affidavit, and affidavits, I'm not saying they don't have value. They can have a lot of value. Sometimes they don't have that much value. But the bottom line is you can't parade all these great witnesses in front of the judge and, therefore, you can't go in expecting ... You've never had joint physical custody, yet now at a temporary, you're going to fight for it when there's nothing to really justify a major change or a major movement off of the status quo.
Leh Meriwether: Right. Another thing that the court may do is restrain inappropriate conduct. Maybe mom and dad are not getting along, and they're yelling at each other in front of the kids. The court can say, "Look. You're going to communicate through this ..." Here's an example, some endorsement of it, but it's Our Family Wizard is a software that's an online software. Communication of the kids is going to go through this app, barring some sort of emergency, so trying to restrain inappropriate conduct.
Leh Meriwether: Sometimes I do feel restrained by these times [inaudible 00:22:18] talking this way. Up next, we're going to continue to talk about what to expect at a temporary hearing.
Leh Meriwether: Welcome back, 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 1067. If you want to learn about us more ... Or you want to learn about ... You want to learn more about us, you can always call or visit us online at atlantadivorceteam.com.
Todd Orston: You want to learn the English language, then you should go to another show.
Leh Meriwether: Today, we're talking about temporary hearings and what to expect in them. We've gone through a lot of things, but there's still a few more things you can expect at a temporary hearing. Where we left off was talking about that the court can restrain inappropriate conduct, such as neither party will talk adversely about the other in front of the children or to the children. Depending on how rough things have been up to the point of temporary hearing, the court often will put a lot of language in there that defines how the parents are to communicate with each other, how they are to communicate with the children, and how to ... I've even seen some orders that were specific about social media, saying that there shall be no postings on social media about this case or your children during the pendency of this case.
Todd Orston: Especially nowadays, kids at a younger and younger age have access to the Internet, have access to social media, and what courts are seeing ... What we are seeing is that there are situations where one or sometimes both spouses, both parents are just saying inappropriate things.
Leh Meriwether: Yeah.
Todd Orston: And their kids have access, or their kids can actually see all of those comments. Building on that, then, would be that the court has the ability also to appoint experts.
Leh Meriwether: Yep.
Todd Orston: A temporary hearing ... Again, this is all if you can't reach an agreement. Oftentimes, we'll have cases we agree a guardian ad litem is appropriate or a financial expert is appropriate, but if not, then those are things that we oftentimes will look to the court, and we will say, "Hey, there are some complex custodial issues, there are some complex financial matters, and we need somebody to be appointed." And the court will oftentimes, if it's appropriate, appoint someone to perform those, that work, rather, in the case.
Leh Meriwether: An example of somebody who could be appointed, so if there's concerns about substance abuse. There can be a party or both parties can be ordered to have a substance abuse evaluation, that you can appoint if there's contested custody. Sometimes you've got two really good parents who love their children deeply, and then sometimes you have two really bad parents. But in 99.9% of the cases in those situations, I see a judge ordering a guardian ad litem or what we call a custody evaluation. I've also heard it called a parenting evaluation. Florida uses that term. But Georgia calls it a custody evaluation or evaluator, and that's usually a psychologist who comes in and does perform some psychological tests to the parent and the children and issues expert recommendation to the court. Same thing with a guardian.
Todd Orston: Yeah, as opposed to the guardian who usually is not a psychologist or psychiatrist.
Leh Meriwether: They're often attorneys.
Todd Orston: They're often attorneys, but there are some who are not attorneys, but the long and the short is they're usually attorneys, and they're usually attorneys who practice in family law. They have a deeper knowledge of the things that the court is interested in, because keep in mind ... And we could do a whole show on guardians. The whole purpose of ...
Leh Meriwether: [crosstalk 00:26:19].
Todd Orston: Yeah. The whole purpose of the guardian is to do what the judge cannot do, which is perform a full investigation to dive into the best interests, the issues relating to the best interests of a child or children. A guardian can.
Leh Meriwether: Right. Sure.
Todd Orston: Then, the guardian makes that opinion known, a report and an opinion known to the court so that the court could then use it as a tool to make a decision.
Leh Meriwether: Right. Another example of a expert that can be appointed is a business evaluator. Perhaps you have a small business that's in the middle, that's part of this divorce. The court can order that business to be evaluated and appoint an evaluator. In rare cases, sometimes the business actually is included in it, and the court can issue certain restraints on that business and even appoint a receiver. If there's a dispute between the husband and wife on how to run the business, the court can order someone to come in and help run that business and deal with disputes. That's something we don't see very often, but the court has the power to do it.
Todd Orston: Yeah. Usually, you don't need to because most of the time, one party or the other was historically the one running the business, but we have both seen more often than, I guess ... We've seen situations where both parties start a business or one maybe starts the business, but they both become so involved. Maybe they're doing different things. One's doing the books and all the backroom kind of management, and the other one is doing whatever it is the business does.
Todd Orston: That's where it gets a little bit more difficult, but I will say that usually one party or the other... Either the parties are going to be allowed to keep going the way they're going, status quo, or the court's going to say, "One of you is going to manage it from this point forward, and then we'll deal with who gets the business and what we do with the business at the final trial."
Leh Meriwether: Part of the court ordering certain experts to come in, the court also will order who pays for them or how they are paid. I hate to mix this in, but the court does not deal with equitable division and decide at a temporary hearing. I'll explore that a little bit more later. But the court can order the liquidation of something in order to pay for these experts and to pay for attorneys' fees, which is another thing the court can address at a temporary hearing, because there are often situations where ...
Leh Meriwether: Most states have laws in there where basically if one party has all the financial advantage, they can be ordered to pay the attorneys' fees for the other party because you don't want to have a situation which we had 30, 40 years ago where you'd have a stay-at-home mom who couldn't afford an attorney. The lawyer on the other side just basically would ... and it was often the husband ... would steamroll the other side because they couldn't afford a lawyer.
Todd Orston: Yeah. Now I will say, one, in terms of liquidation of assets, one thing that people should understand doesn't happen, all right, is the sale of the marital residence. Usually, those types of big assets, that's not what we're talking about. The court is not going to come in and say, "Okay, let's sell the home."
Leh Meriwether: Right.
Todd Orston: Usually, what you're talking about is there's an IRA or there's some kind of a bank account or there's some kind of ... There's something where it's like, well, the parties really need money, but there's only this qualified account over here. Okay, if you need to take money out of that account to pay somebody's bills, pay legal fees, all that, fine. You can do it. But usually the sale of a residence ... This comes up a lot in discussion with clients. They're like, "Well, I want to sell the house. Let's go to court and let's have the court order that it be sold." It's not going to happen at a temporary. That goes well beyond maintaining status quo. That's going to be an issue that's reserved for a final trial.
Leh Meriwether: Yeah. To tie in off of that, the ... I can't remember what I was going to say.
Todd Orston: I think you tied that in well.
Leh Meriwether: [crosstalk 00:30:11].
Todd Orston: No. Absolutely.
Leh Meriwether: Weren't we all.
Todd Orston: Did I blind you with my knowledge?
Leh Meriwether: You did.
Todd Orston: Wow. All right.
Leh Meriwether: Impressed.
Todd Orston: I'm sorry. I didn't mean to impress you so much.
Leh Meriwether: I had a thought, and then it-
Todd Orston: It was gone.
Leh Meriwether: ... totally escaped me.
Todd Orston: All right.
Leh Meriwether: Sorry about that.
Todd Orston: Let's come up with some more thoughts, because I think we're still on the air.
Leh Meriwether: I have a lot more thoughts. I had something that was really good, but it just escaped me. So, anyway ...
Todd Orston: Experts. I mean [crosstalk 00:30:35].
Leh Meriwether: Yeah, there was one thing. Now I remember what it was. Tying it back to the attorneys' fees, I've seen ... The case starts or right before the case starts, the husband pulls $10,000 out of his IRA to cover his legal fees, but the wife doesn't have anything. We went to a temporary hearing, and the judge ordered, "Well, sir, you took 10 grand out for you. Take 10 grand out for your wife and give it to her."
Todd Orston: That's fair.
Leh Meriwether: Actually, I think he told him to take 15 so she netted 10. Anyway, so the court ordered a partial liquidation of the retirement account so that both sides have ... It was an even playing field.
Todd Orston: But again, that is in an effort to maintain status quo.
Leh Meriwether: Yeah.
Todd Orston: To make sure the parties are well-situated, that bills are being paid, that fees are available, the money's available to hire experts and hire attorneys and make sure that one party doesn't have an unfair advantage over the other. That, again, if you think of it, if you go into the process unfortunately and you are thinking you might need a temporary hearing, think of it in those terms. Think of it in terms of what needs to be done to maintain status quo. If you go in with that thought process, it's going to be a healthier experience for you because you're going to have good expectations in terms of what I can and can't have.
Leh Meriwether: Yeah. All right. What can you expect to not have in a temporary hearing? I know we've covered some of it, but let's make sure we cover them all.
Todd Orston: Yeah. Well, all right.
Leh Meriwether: At least the bulk of them.
Todd Orston: Yeah, absolutely. Not to happen, you're not going to be able to tell your entire story. Like I said, most courts, we have two days for a trial, for a temporary hearing, rather. That's not the norm.
Leh Meriwether: Yeah.
Todd Orston: The norm is you have a period of time and you better be very efficient in the delivery of that information to the court, so, "Judge, when I was three, I stole a matchbook." The court doesn't want to hear that.
Leh Meriwether: Right.
Todd Orston: Court wants to hear-
Leh Meriwether: Or, "You won't believe what he said to me on my wedding day."
Todd Orston: Yeah, right.
Leh Meriwether: The court [crosstalk 00:32:40].
Todd Orston: The court doesn't care about that.
Leh Meriwether: Well, at least they don't care about it for the temporary hearing.
Todd Orston: That's what I mean. Sometimes what we will do, we'll work with our client, and some of those facts might add a little bit of flavor, but it's just minimal.
Leh Meriwether: Yep.
Todd Orston: You don't want to get bogged down in all of that history, and so go in, be efficient, and just tell the facts that relate to the issues that brought you before the court for the temporary.
Leh Meriwether: Yeah. The court is not going to ... Like we said earlier, the court's not going to deal with equitable division, so, "Judge, can we split all these bank accounts now?" Court's not going to do that, barring a need, meaning we need to split it for the purpose so each side have attorneys' fees. Apart from that and just say, "Judge, can we just split this?" That's not going to happen.
Leh Meriwether: What is going to happen, up next is we're going to touch on a few more things on what not to expect at a temporary hearing.
Leh Meriwether: Welcome back, 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 1067.
Leh Meriwether: Today, we've been talking all about temporary hearings, and we've been mainly talking about what to expect and what not to expect at temporary hearings. What kind of power does the court have to issue orders at the end of a temporary hearing? Next week, we're going to go into how to prepare for a temporary hearing, but we want to talk first, talk about what to expect.
Leh Meriwether: We were working on what to expect not to happen in a temporary hearing, and I think we were leaving off ... We hadn't gotten to this one yet, so punishment. We often see people, they go to a temporary hearing, they're upset, they're hurt, they have found out their spouse has been cheating on them, and they want the judge to make them pay. The temporary hearing is really not the place for that to happen. In fact, at least in Georgia ... I don't know about other states, but at least in Georgia, you can have a situation where a spouse cheats, which is, if alimony's found to be the cause of the divorce ...
Todd Orston: Adultery, not alimony.
Leh Meriwether: I'm sorry. Yes. If adultery-
Todd Orston: I'm here for you, Leh.
Leh Meriwether: Thank goodness.
Todd Orston: Yeah.
Leh Meriwether: If they find that adultery is the cause of the divorce, then it's a barred alimony. Attorneys' fees is technically, under the statute in Georgia, is a form of alimony, but in the pendency of a case, a judge can order someone to pay the other's attorneys' fees, even if they cheated, because it's to level the playing field. Boy, that stings for some people to hear that. "My gosh, I caught my spouse cheating, and I have to pay for their attorneys' fees simply because I was the breadwinner?" Sometimes the answer to that yes.
Todd Orston: Well, because at the temporary hearing, what's happening is that money's going to be coming out of the proverbial marital pot.
Leh Meriwether: Right.
Todd Orston: Even though you are correct that attorneys' fees are sort of a part of alimony, at a temporary, again, the judge wants to maintain status quo. If one party is driving a super fancy car and has a bunch of money and goes and hires the biggest, baddest attorney they could find, and the spouse who was always dependent on that person for support can't go out and hire anyone, court's not going to allow that to happen. The law doesn't allow for that to happen.
Leh Meriwether: Yeah.
Todd Orston: The law basically-
Leh Meriwether: Here in Georgia.
Todd Orston: ... here in Georgia, wants to make sure that everybody's on a level playing field. In that way, the court knows that everybody has the same benefits and the same ability to present a case.
Leh Meriwether: Right. All right. Last two things, don't expect your lawyer to testify, and usually it's just you testifying, you and your spouse. In Georgia, they allow one more witness. Some states they don't. Georgia allows affidavits. A lot of states don't. We already touched on that, but I just wanted to emphasize that. Don't expect to be able to bring in all your friends and family that want to say something either to support you or against your spouse.
Todd Orston: Yeah. And just to build on what you said about an attorney testifying, obviously you need an attorney who is competent, who is able to go in, is quick on their feet, and in litigation knows how to question witnesses, and then also needs to be able to make a very compelling opening statement, a very compelling closing argument. But remember that the only testimony, the only evidence will come from people who are under oath and are testifying to the court.
Todd Orston: Again, as we are discussing, if you and maybe one other witness are the only people who you're allowed to bring as a live witness, that's where the evidence comes from. Things that your attorney is saying, that's not evidence. You need to be prepared so that you can go in and you present the evidence necessary to establish whatever it is you're trying to establish.
Leh Meriwether: Well, there's two more questions I definitely want us to answer before the end of the show. One is how much will a temporary hearing cost? And two is, is it possible there could be more than one temporary hearing in a case? Let's go into cost.
Todd Orston: Okay. No. Oh, you want more? All right. No, I can't tell you how much it's going to cost.
Leh Meriwether: Oh, okay.
Todd Orston: But I can tell you this. Tied into cost obviously is effort. How much effort will it take to prepare for and then present your case at a temporary hearing? It depends. It depends on how contentious things are. It depends on how many facts or how much evidence needs to be gathered and organized and presented. We have temporary hearings that take 30 minutes and I have extra time. There are other cases where we have two days and we needed two more. It really just depends on what the issues are.
Todd Orston: What people need to understand, though ... Because sometimes we will have clients and they'll see the amount of effort that it took to prepare for a temporary hearing. If you're going to go into court, our philosophy is you are going to go in prepared. You're going to do the work necessary to make the arguments you need to make to accomplish whatever you want to accomplish. That takes time, and if you're going to do it right, then that could cost some money. The same thing goes, obviously, for a final trial. This isn't a show about final trials, but sometimes I've seen temporaries that took more effort than the final trial.
Leh Meriwether: Right. Sometimes it's because things settled along the way and the final trial was a half day and-
Todd Orston: Yeah, that's right. You've narrowed issues or whatever.
Leh Meriwether: Yeah. I've had temporary hearings that took, like you, took two days, which was too long, but things happened in the middle of the hearing and the judge stopped it and ordered the guardian ad litem to do an additional investigation and come back four hours later, and we picked up the next day. That one, I was expecting ... I told my client, "The max I think it's going to take is a day." But the husband said something on the stand that was very concerning, and the judge, 4:00 in the afternoon, stops the hearing and orders the guardian to go and investigate, report back at 9:00 a.m. We all had to show back up at 9:00 a.m. That was not something that was expected.
Todd Orston: I'm not trying to one-up you, but I had one where the judge heard something concerning, stopped, and the GBI were called.
Leh Meriwether: Whoa.
Todd Orston: And we had to stay in the courtroom for about an hour before the GBI came and began an investigation about what was said.
Leh Meriwether: Oh, my.
Todd Orston: Yeah, things can happen in court. That's a rarity. I've never again had the GBI come.
Leh Meriwether: Thank goodness.
Todd Orston: Yes. In any event, but you need to go in eyes wide open with a full understanding that temporary hearings, once you get in, sometimes it could take 10 minutes to present the issue. Sometimes we don't even need the hearing. Sometimes we go and have a pre-trial conference. We talk to the judge. The judge says, "Hey, you have your day in court. I will give you time, but this is, I think, what I would do if I heard facts like this."
Leh Meriwether: Right. Go back to often costs are associated with the amount of time we spend, because we bill by the hour. You can say, "Well, it was only a four-hour hearing. Why did it cost so much?" Well, I can't remember who said it. I don't remember if it was Abraham Lincoln, but the phrase goes something along the lines, "My letter would have been shorter, but I didn't have the time to make it so."
Leh Meriwether: To be concise, to condense your, sometimes a 15-, 20-year marriage into four hours to hear temporary issues, you have to spend a lot of time preparing ahead of time to condense it down that small.
Todd Orston: It's the difference between when you see, when you watch, let's say, a pro se litigant or an attorney who really doesn't have experience in this area, where you'll see people and they'll take the stand and they're all over the place and the questions are all over the place, and they're diving into issues that really the court doesn't care about at a temporary. If you're going to have good representation and you're going to present the best case possible, it's going to take time to gather the information, condense it down to really the core issues that need to be presented.
Leh Meriwether: Unfortunately, we're running out of time again. Well, come back next week because we're going to talk about costs a little bit more next week, what you can do to keep your costs under control. The last question was, is it possible there could be more than one temporary hearing in your case? The answer is that, yes.
Todd Orston: Yep.
Leh Meriwether: The courts don't like it. They'd rather do a temporary and a final. I'm helping out someone on a case in Florida, and they're about to have a third temporary hearing on the issue of parenting time. I'm not sure why it's happened that way. It's just sometimes it just happens.
Todd Orston: Well, but again, this goes back to what we talked about where usually if there's a real ... not an emergency, but still something that can't wait for the final, then the court will entertain a request for a second. If it's just, "I don't like how they spread mayonnaise on their bread and we're still in the same home," the court's going to be like, "Yeah. I'm not hearing that." If it's an emergency or near emergency issue, then, yeah, getting the court to pay attention one more time and give one more temporary hearing is definitely possible.
Leh Meriwether: Yeah. Which, of course, would also increase the cost.
Todd Orston: That's right.
Leh Meriwether: Which makes it difficult to estimate. Well, that about wraps up this show. Thanks so much for listening. If you want to read more about us or find more information about us, go online at atlantadivorceteam.com. We are starting to post the shows up there, so if you actually want to go to our website and look up, just in the search bar type in podcast, you will find the podcast and you can read a short summary of the podcast. You can listen to the podcast. You can find it in iTunes. You can hear it also on SoundCloud.
Todd Orston: Played at parties. It's just ...
Leh Meriwether: Yeah.
Todd Orston: Wow.
Leh Meriwether: I do. People love it. I never heard that one before.
Todd Orston: Maybe not parties.
Leh Meriwether: Thank you, everyone. If there's a topic you want us to explore, please email us at [email protected]. Thanks so much for listening.
Speaker 3: This audio program does not establish an attorney-client relationship with Meriwether & Tharp.