As we continue to look at Dick and Jane and the topic of divorce, recall that the process is underway. As we move through the process, we are going to examine each phase from the perspective of Dick and from the perspective of Jane.

For this month, we will look at the temporary issues from the perspective of Jane. Jane’s primary concerns moving forward are as follows:

• Maintaining stability & a routine for the children;
• Making sure she has adequate funds to pay household expenses;
• Making sure she has adequate funds to get through the costs of the divorce, including amounts to find out about assets;
• Discovering information about the extent of Dick’s affair

In preparation for the temporary hearing, Jane should focus most on the children and the stability of the family. By presenting the case through that lens, all of her concerns above can be met. On a temporary basis, Jane would push for a determination that she has primary physical custody and joint legal custody of the children, with her having final decision making authority over legal decisions affecting the children’s healthcare, education, religion and general welfare. The Courts use a form document called a “Parenting Plan” to lay out the provisions controlling custody and visitation. It will be most important for Jane to come up with a realistic schedule for the children so that they can meet their academic and extracurricular requirements with minimal disruption. The Court will want to start the parties on a schedule that looks more and more like things will look when the parties are completely divorced. Jane may want to push for an order from the Court preventing Dick from introducing the children to any new love interests. On a temporary basis, a mutual order of this sort would not be out of the question.

From a financial standpoint, Jane will need to prepare a budget. The budget will document all of the household and children’s expenses. The budget is known as a Domestic Relations Financial Affidavit. The Court will look at the budget and determine the amount of money needed for Jane and the children and order that Dick pay the same. The Court can order that certain expenses be paid directly (like a mortgage) and that other funds are to be given to Jane for the payment of expenses.

Alimony is becoming increasingly harder and harder to obtain. Women of all walks of life are expected to work and contribute to the household expenses. On a temporary basis, the best argument for Jane to make is going to be to lay out a plan for the future. If Jane needs to go back for job training or schooling, she should present a plan to do so and ask for an award of money to pay for the same. The Courts are going to look much more favorably on Jane if she can present a logical plan to return to work as opposed to simply making a request for funds every month.

On the issue of attorney’s fees, Jane needs to outline the plan for litigating the case and, specifically, the amount of funds needed to get the case to a settlement posture. Courts are very receptive to the use of reasonable attorneys’ fees in order to get a case resolved and not subjected to a final trial. If Jane attempts to make the temporary hearing all about Dick’s affair and appears out for “vengeance” the Court is going to shoot her down. A Judge is not going to be inclined to allow Jane funds to go on the warpath. Jane will need a reasonable amount of money to use the discovery process to get a handle on the parties’ assets. One major issue will be determining the value of Dick’s new company (we will devote an entire blog post to this subject later). If Jane can outline a fee proposal designed to get this information, the Court would be inclined to grant the award.

It might be difficult for her to contemplate, but Jane will need to wrestle with the decision of selling the house. If the parties have equity in the house, a sale might be the only way to access the funds in order to divide them. This is particularly true if the parties do not have sufficient funds elsewhere to offset the value of the house. It might be tempting for Jane to enter into an agreement whereby she keeps the house and the equity in it and allows Dick to keep other assets in exchange. However, Jane should caution against becoming “house poor” or in a situation where she has a high, unaffordable mortgage payment and her savings is inaccessible due to being in the equity in the house. Jane will need to consider the needs of the children for stability and structure and determine if the house can or should be sold.

Next month, we will look at the same issues from Dick’s perspective. Dick must be very cautious about setting a precedent for payments and managing damage control.

By Justin O’Dell

As we continue to look at Dick and Jane and the topic of divorce, we will assume that both have met and selected counsel and that the process of divorce is underway.  This brings us to the filing of a divorce and what happens next.

Recall that our case involves a contested divorce (no settlement agreement reached before filing).  For those who do not recall the facts about this family, you can find them here:  https://odelloneal.com/blog/dick-and-jane/meet-dick-and-jane-2/.

The first issues, post-filing, for Dick and Jane are temporary issues.  In order to deal with these issues, Georgia law allows for a “temporary hearing.”  The purpose of a temporary hearing is to address the immediate needs of the parties and the children, specifically temporary custody, temporary child and spousal support, temporary use and possession of assets (including the house) and temporary payment of expenses.  The decisions on some of these issues can be quite different from the ultimate outcome in a divorce.  For example, on a temporary basis the Judge could order the wage earning party to continue to pay a variety of expenses directly, like mortgages and car payments.  Thus, issues like alimony and even child support may be addressed through the payment of direct expenses.  On a final basis, the Judge is going to expect each party to pay his or her own expenses and will deal with availability of funds through child and spousal support.  If the parties have a contested custody matter, the Judge may be inclined to consider alternative custody arrangements like shared/split parenting time or even “bird-nesting” (where the parents take turns living in the house with the children rather than the children moving from home to home).

Although Judges do not divide assets at a temporary hearing, it is not uncommon for the parties to be awarded temporary use and control of the same.  Those awards are generally an indication of where the asset is ultimately going to go.  For example, if a Judge awards Jane temporary use and possession of the marital residence on a temporary basis, the asset (if not sold) is going to probably remain with her in the final settlement.

A temporary hearing is also designed to ensure that each party has access to funds to secure adequate representation.  Georgia law allows an award to be made to the non-primary wage earning spouse from the marital estate or from the earnings of the other spouse for payment of her attorneys’ fees and litigation costs.  This allowance is recognition that it would be fundamentally unfair for one spouse to be forced into a settlement simply by being unable to afford the process or unable to conduct discovery regarding assets.

A temporary hearing is usually set anywhere from 30 – 45 days following the filing of the divorce, though this time can be longer in some counties than others.  Most parties are able to reach a temporary agreement without the intervention of a Court.  This is true even in instances where there are hotly contested issues in the case.  Many times, the temporary order is simply a reflection of the status quo.

One of the most underappreciated benefits of the temporary hearing can be the “venting” process.  In our case, Jane may be particularly upset about Dick’s alleged misconduct.  The lawyers in the case might be indicating a possible temporary resolution that would be workable for everyone.  Jane may feel that the resolution is unfair given “what he has done.”  In a temporary hearing, Jane can require Dick to get on the stand.  Dick can be compelled to answer questions about his conduct (or he can take the 5^th Amendment and refuse, which in a civil case allows the Judge to assume an admission).  Jane can take the stand and discuss the impact and difficulty on her children and her family.  Most often, the Judge will then issue a decision somewhere along the lines predicted by the lawyers.  Maybe the Judge will direct a comment or two toward Dick about his behavior.  Maybe the Judge will direct a comment or two toward Jane about moving on and making sure the children are not alienated against their Father, regardless of his behavior.  Jane may feel some catharsis from having had a public moment.  Both parties may come to understand that they do not want to be in front of a Judge again.  Finally, both parties may come to believe that when the lawyers who they have hired and who have extensive experience in the field and with the Judge, both indicate and seem to agree on a potential outcome, they are probably pretty accurate.

For Dick and Jane, we are going to look at the goals for a temporary hearing in the next few months.  We will view the case from each perspective.  In order to set up the discussion, we will assume that Dick has been unfaithful and that Jane is aware of it.  However, unbeknownst to Dick, Jane also had an extramarital relationship that started about a year ago.  Hers never became physical, but was emotionally intimate, flirtatious through texts and social media.  It was also around this time that Jane withdrew from Dick physically and emotionally.  When confronted with the issue of his affair, Dick left the house to stay with his brother.  He has been seeing the children some on weekends and attending their activities.  Thus far, he has been maintaining all of the household expenses and giving Jane a few hundred dollars each month for expenses.  We shall see how the temporary issues unfold…..

By Justin O’Dell

Starting this Fall, we switched our discussion of Dick and Jane to the topic of divorce.  This topic is going to be far ranging and extensive and we will also be looking at various issues from the perspectives of both Dick and of Jane.

We have been looking at the process of hiring and selecting a domestic lawyer to handle a divorce.  For this month, we will consider the initial consultation and the expectations of the client and lawyer in that initial meeting.

1. Consultations May Not Be Free. This is probably one of the biggest areas of disconnect between the public and family law attorneys.  The majority of attorney advertising is done by personal injury law firms and criminal defense firms.  Personal injury firms are paid based on a contingent fee, usually one-third to forty percent of the money recovered to the client.  Since they do not charge by the hour, these firms almost always offer free consultations.  Criminal law is generally handled on a flat fee basis and free consultations are also the norm.  Since these firms advertise “free consultations” many people are led to believe that all lawyers offer free consultations.  Most domestic lawyers (and general civil lawyers) charge their clients by the hour.  If they spent much of their day giving free hours to consultations, they would not have time left over for paying clients.  Some family law lawyers have managed to find a way to offer free consultations, but most do not.
2. How Much Will This All Cost? One question that is always asked during the initial consult is “How much is this going to cost me?”   The reality is that unless you walk in the door with a completed settlement agreement in hand, no one knows and no one can predict.  An experienced lawyer can look at the situation and generalize, but even a seasoned veteran attorney would be making nothing more than an educated guess.  The degree to which the couple chooses to fight will control the costs.  More important than “how much will this cost me?” a better question for your lawyer is “How do we keep costs under control on our end?”  There are a lot of aspects of divorce litigation that are optional, even if perhaps helpful.  For example, Jane might tell her lawyer that “I think Dick has hidden money.”   Jane’s lawyer can hire a forensic accountant to investigate.  However, if Dick is only earning $40,000 per year and the parties are living paycheck to paycheck, the most that Dick could likely squirrel away would be a few hundred or even a few thousand dollars.  Is it worth spending $5000 or more to try and find such a small sum?  Alternatively, Dick may have concerns that Jane has started seeing a new man since he and Jane separated.  Is it really worth spending thousands of dollars in discovery related to this new relationship, if it ultimately will have little bearing on the outcome?  The client and attorney should quickly try and develop a consensus about the overall plan for the divorce and discuss the various aspects of the case that need to be proven and spend resources and finances accordingly.
3. The Retainer & Billing Process. Most domestic attorneys work on a retainer.  Many clients do not get an adequate explanation of the retainer in their initial consultation.  Most attorneys bill incrementally (in tenths of an hour).  Many clients do not get an adequate explanation of incremental billing in their initial consultation.  Some lawyers charge an initial retainer ($2,500.00 or $5,000.00), draw down against that retainer on a monthly bill and require that the retainer account be reinstated to that level each and every month.  Other lawyers will require the amount to be reinstated only when it hits zero.  For billing purposes, some lawyers bill in minimal increments of six or twelve minutes.  This means that a quick phone call or e-mail could be charged for that minimum.  It is important in the initial consultation that both the lawyer and the client have a clear understanding of how the relationship will be charged.
4. How Will It Turn Out? Most clients come to a consultation expecting to find out “how this will all turn out?”  There are some areas where the domestic lawyer can offer opinions and thoughts regarding potential outcomes.  If certain variables are known (like each spouses’ gross income), then child support is fairly predictable due to Georgia’s Child Support Worksheet and calculator.  Other areas of dispute, like alimony, vary from County to County and even from Judge to Judge within a County.  These areas are also highly dependent upon the facts of the case and how those facts are presented to the Court.  Any prediction is nothing more than an experienced guess.  Instead of “how will it turn out?” the better question is “What kind of divorce am I going to have?”  The lawyer and client must be on the same page regarding the process of divorce.  Does the client want things settled quickly and without fighting (even if the client has to pay or give up more to their spouse)?  Does the client have certain issues that are “non-negotiable” like primary custody or protection of non-marital property?”  The more the client has in the “non-negotiable” column, the more likely the divorce will be a fight.

The first meeting with a lawyer is an important one.  Most often, the client wishes to receive answers to questions like cost and outcome.  The reality is that these issues, though important, are highly variable and highly unpredictable.  Rather than focus on costs and outcome, it is critical that both sides gain an understanding about the process of the divorce.   Over time, the process will help to control and manage both cost and outcome.