Pete Wright:
Welcome to How to Split a Toaster: A Divorce Podcast About Saving Your Relationships from TruStory FM. Today, your toaster is asking. We're answering.
Seth Nelson:
Welcome to the show, everybody. I'm Seth Nelson. As always, I'm here with my good friend, Pete Wright. Pete, there's no other way to say it. It's listener question day. As everyone knows-
Pete Wright:
Yay.
Seth Nelson:
... from listening to the show, it's our favorite day. So let's just jump right in and let's see what people are asking, and see if we can help a little bit here.
Pete Wright:
What characterizes this set of questions, I think, is the level of detail that we're getting from people who are writing, and we so appreciate it. It really helps get more thorough answers, and we appreciate you telling us what we need to know, and that's that. All right. So here we go.
Seth Nelson:
Yeah. And details matter. So when you give a lot of detail, even though Pete's like, "Oh my God, this is a long question," the details matter. So we'll do our best to answer. I mean, give some color commentary as well.
Pete Wright:
Well, this one is the best because it has math involved. So here we go. You're going to love it.
Seth Nelson:
Wait a minute. I got a pen, but I think it's out of ink.
Pete Wright:
Okay. I'm going to read it. You can solve your pen problem. Here we go. This one's from Christina. "Hello, my husband and I have been working amicably towards getting a divorce. The one issue holding us up is the house. We want one of us to have the house, but we cannot afford to refinance and pay the other person off. Loan assumption is also not an option. We do not have the ability to use retirement accounts or borrowing money from family."
"We've been reading and looking into couples that are divorced but continue to live together in the home. I was searching through your podcast and couldn't find an episode on this. I believe this is an up-and-coming trend, given the market, and many people like ourselves purchased homes during COVID and have a 2.99% interest rate that we don't want to give up. If we split up, we would not be able to purchase new homes on our own, and we would like the children to live in at least one home. Otherwise, we would both be in small basement apartments for about 2,500 to 3,000 a month."
"We've looked into it. We live 40 minutes from New York City on Long Island. We do not have family to live with. Could you please do an episode on this new type of living arrangement and how to navigate that? How does that work when you're legally divorced but still living in the home together? Is it even possible? How do you navigate what happens with the home after a certain amount of time? Your podcast has been immensely helpful to both of us. Thank you for all your time." Christina, thank you so much for writing. That is such a frustrating dilemma.
Seth Nelson:
It's simple. This is simple. Move to Tampa. Sell the house, move to Tampa. Prices are cheap here compared to New York. You'll do fine. Sometimes coming in from Long Island, it's 40 minutes. It could be four hours. Just take a flight from Tampa. We'll work it out.
Pete Wright:
All right. As long as we're pitching places, Oregon's fantastic. It's lovely. It smells great.
Seth Nelson:
The time zone is the problem, Pete.
Pete Wright:
Time zone is the boss.
Seth Nelson:
Here is the deal. Yeah. You guys are basically saying, "We don't want to give up our lifestyle."
Pete Wright:
"But we do want to give up our marriage."
Seth Nelson:
That's right, which is fine, but you're saying, "We can't borrow money. We can't take from retirement." You can always cash out of retirement. So you just don't want to take the penalty and the taxes. I appreciate all of that. So it's a little bit of cake and eat it too, but let me answer your questions directly. Yes, you can not be married and live in the same house.
Pete Wright:
I think they call those roommates.
Seth Nelson:
They do. They do. So what do you do with the house? I am going to put the kid issues aside for a minute. I'm focusing on the house, because that's where this was. So check your local jurisdiction, and ready for this? You might need a business lawyer. So here's what you might want to look into. You might want to look into creating what's called a partnership or an LLC, limited liability company.
That limited liability company, and there's a lot of work to do, so get with your lawyer on this, it's a separate entity. So you both potentially transfer your property that you currently own together into an LLC, a new entity. You both should be equal members of that LLC, both 50% owners. And when you create an LLC, you're going to have an operating agreement. That operating agreement is going to define your rights and responsibilities.
You both have to contribute half to the mortgage and the taxes, and the insurance, and you'll have a separate account. You'll have to put money into that account every month. That account might be used for maintenance and other expenditures for the home. Now, you're doing that. Things are going great, and then your new roommate, former spouse, starts dating someone, and they want to bring them over. You don't like that. You don't want to have this relationship in the LLC partnership anymore.
The operating agreement will define how you can dissolve the LLC, get rid of it, which might be that it gets sold. If you're doing that, check with your local jurisdiction. You might want to say that it gets sold to a third party that's not a member of the LLC, because when you put it on the market, they might be like, "I'll take that offer," which you can always do later. You can always amend stuff, but you don't want someone to make it where it's so miserable that you just need to get out.
So that operating agreement will define how you do it and how you get out. You can have things called shotgun clauses, where it will say, "Instead of selling to a third party, I can buy you out anytime, and you can buy me out anytime." And the way it works is, I give you an offer. You have 30 days to accept it, or if not, you can trigger that I buy it for that same price.
So we'll just use round numbers, and it's New York, so it sounds expensive. A million dollars. That's what the house is worth today. They're saying, "I don't want to lose the interest rate. We got all these problems on finances. I can't buy out the equity," go on and on. A year from now, you say, "I'll offer you $1.2 million for the house." They have 30 days to accept it, or they can say, "Nope, but you got to buy me for 1.2 million." That way, you maintain a fair offer. Okay?
So right when they give the offer, they can say, "I'll buy it from you for 1.2." It also means that they'll sell it to you for the same price. Check your local jurisdiction. Get with a lawyer. And here's the kicker, because I know what they're thinking, "It's a new entity. Do we have to refinance?" Check with your lender. If you've lived in the house more than two years, sometimes you can convert it to an LLC, and they'll transfer the mortgage to the LLC so you'll maintain your interest rate.
Pete Wright:
It's like putting it in a trust. Right? It's a similar kind of a change.
Seth Nelson:
It's not a trust, because a trust has beneficiaries, but it's the same concept as a trust is its own entity, such as an LLC. But really, check your local jurisdiction. Now, as it comes to parenting, you got to check with your lawyers on how you want to do this. Are you going to have parent on duty, like we've talked about in other shows, Pete, where you're responsible for the kids on Monday, Tuesday, he's responsible for the kids on Wednesday, Thursday, and then you alternate the weekends, and you're polite and you have dinner together if you're around, or do you basically say, "Look, you're in the guest room. I'm in the main room, and we are ships passing in the night, and we're just roommates. And when I have the kids, you need to vacate"? So you got to talk it through.
Pete Wright:
Are you privy to these kinds of relationships? I mean, do you have a sense on if they work?
Seth Nelson:
The answer is, yes, I'm privy to them. And yes, sometimes they can work for a period of time. But ultimately, it gets really complicated when someone wants to start dating.
Pete Wright:
Yeah. That's really it.
Seth Nelson:
Right? And it gets complicated because the new boyfriend or new girlfriend, or whatever terms you want to use, are going to be like, "You're still living with your ex." Right? "I can't come over?" "No, my ex is there."
Pete Wright:
Yeah. Actually, that's really important, because you might be fine with your ex living in this kind of arrangement, co-parenting. Everything's great, but that new third party might have issue with it.
Seth Nelson:
That's right. And you're going to need to then find someone that's secure enough in their own skin to be like, "I get it. You didn't want to go up the house for the kids, and it's good for your kids, and that means I'm never going to come around on Mondays and Tuesdays and every other weekends, or whatever the schedule is, and that's the way it goes. And I'm really never going to meet your kids, unless we go out somewhere. But then the kids come home and talking about..." It gets pretty complicated pretty quickly.
Pete Wright:
Well, luckily, the market changes, and kids grow up. This is a thing that isn't going to last forever. So whatever makes sense for you. Thank you so much, Christina.
Seth Nelson:
Great question.
Pete Wright:
I got one from David S., who says, "I'm no longer living with my spouse, and we're going to divorce eventually. But as of right now, the process is moving very, very slowly. I'm dating someone new, and I'm worried that if my spouse found out, that would harm the divorce process. Can you lay out the worst-case scenario? What should I be worried about when it comes to it getting out that I'm dating?"
Seth Nelson:
The worst-case scenario is they freak the fuck out, and they want to litigate and burn everything down.
Pete Wright:
Oh, so that's clear.
Seth Nelson:
I mean, that's really the worst-case scenario, right, is they can't control what you do. They'll blow up your phone, "Who is this? If you have kids, why are they around the kids? I want to do a background check." They're going to make up all this stuff. And let me be clear. This will happen whether or not they've moved on. Let's just say the guy has moved on, he's dating someone, and then the wife goes out on a date, and the husband freaks out, and the wife is like, "What are you talking about? You're the one that wanted the divorce. You've moved on."
Pete Wright:
"And you're already dating somebody new."
Seth Nelson:
It's a problem. I'm not saying it's a rational problem. It's a problem. Okay. So yeah, I would keep that on the down low as much as you can, because you never know how they're going to respond, and the worst-case scenario is they blow up your phone. They now want to stay connected to you through the divorce process to make your life miserable. They'll never say that, but that could be what's happening.
Pete Wright:
Okay. Watch it, and watch those friends' influences. We've talked about that before. You never know what of their friends are going to see you out in public with someone new, or see you on social media, or wherever.
Seth Nelson:
Exactly.
Pete Wright:
Yeah. All right.
Seth Nelson:
No matter where you go, someone's going to be there, whether it's a grocery store you don't frequent or whether it's an out-of-the-way place.
Pete Wright:
Yeah. As was said by the great Buckaroo Banzai, "Wherever you go, there you are."
Seth Nelson:
Or I think it was the comedian Wright? Was that his name? Steven Wright?
Pete Wright:
Steven Wright.
Seth Nelson:
Yeah. It's a small world, but I wouldn't want to paint it.
Pete Wright:
Yeah.
Seth Nelson:
Just got to be aware.
Pete Wright:
You've got a pretty good Steven Wright. Yeah. This next one's from Allie. This is a short one. "My spouse is a foreign national. How will this impact the divorce proceedings, especially regarding child custody and property division? I live in Miami. So does Florida law rule even though my spouse is in France?"
Seth Nelson:
Okay. If you've been a resident of the state of Florida for six months prior to filing for a dissolution of marriage, Florida has residency. If your child is here for six months under the UCCJEA, Uniform Child Custody Jurisdiction and Enforcement Act, Florida can have custody. That act also deals with foreign spouses. And if they're in France, then yeah, he would have to kind of implement the UCCJEA with a specific time frame.
It gets very technical. It's not something I deal with daily. It comes up from time to time. But yes, you can file in Florida, even if they're a foreign national, as long as you've lived here for six months, and you might want to say, "Well, hey, we had an intact marriage in Florida." So check with your local jurisdiction. Down in Miami, I know some really... I have a very talented lawyer in Miami. If you want to reach out to me, I'm happy to give a referral.
But be aware that maybe the kids travel to France for the summer or spring break, or during the holidays. You're not going to do every other weekend. Right? The Concorde doesn't fly anymore. It takes too long. Right? So yeah, you can still get divorced. Property settlement? It can be handled here in Florida, but what it can't do is transfer property in France. So depending on where you have property, they don't have the ability to, say, force a sale of property in France.
Pete Wright:
In Paris. Right. That was my next question. Does it matter? What if the spouse, the Parisian, files for divorce first?
Seth Nelson:
Well, then you've got a UCCJEA problem, and then you have comity, C-O-M-I-T-Y, is, will one jurisdiction honor what the other jurisdiction is doing? So yeah, check with your local jurisdiction. Get a lawyer.
Pete Wright:
From Barb, "How long does reunification therapy usually take? The podcast mentioned weekly sessions, but I'm wondering what a realistic time frame is for seeing real progress. Anyone have experience with this?"
Seth Nelson:
Great question. Not a good answer. Going to give you a lawyer answer. It depends.
Pete Wright:
Yeah. Yeah.
Seth Nelson:
Sorry about that. So how old is the kid? How long has it been since you were unified? Is it really based on what a parent is doing? Did you do something to the child? And I don't mean sexual abuse or anything, but you were traveling. You were busy. You didn't show up, or you got into a fight with your 16-year-old daughter about a guy that she wanted to date.
So I don't know enough about what is going on in that family unit or dynamic to tell you how long it will take. I don't know how cooperative or not cooperative the other parent is going to be. Are they going to be kind of stoke the fire, not in a good way? Are they going to bring the child to the counseling sessions? Are they going to put in consequences if the child doesn't participate in good faith?
I don't know the quality of the counselor that you have. So there's a lot of dynamics going on here that leads to a depends answer, which is not the best answer that you want. So it's hard to tell. Yes, it can be successful. Yes, it can take a very long time. And yes, even if it takes a very long time, it's worth it, because the other option is you don't have a relationship with your child.
Pete Wright:
Sure. We've got one from Alienated But Determined, "Documenting alienation for court. Advice needed. How can I document instances of parental alienation to present to the court? What is best practice for an alienated dad?"
Seth Nelson:
Stop using the word alienation.
Pete Wright:
Okay. We have a step number one. That seemed easy.
Seth Nelson:
Yup. Step number one, stop using the term alienation. Focus on behaviors. The court will come to its own conclusion on whether this child is, quote, unquote, "being alienated" or not, but it really doesn't matter whether the court says there's alienation or not, and here's why I say that. And this goes to your documentation. You text your child every day and say, "Hey, just checking in. I hope things are going well," or "I love you. Here if you ever need anything."
You're supposed to go have time-sharing, make sure you show up at the exact time and place you're supposed to be there. If they don't arrive, however, you're supposed to communicate with your co-parent, whether it's text or OurFamilyWizard, TalkingParents, any of the apps. Send them, "I'm here. Drop a pin. This is where I am, location, for time and date."
That way, you're documenting. You're doing two things. You're documenting, "I'm here where I'm supposed to be." And two, you're just being a good co-parent. "I'm here where I'm supposed to be. You're not here. I hope everything is okay. Please contact me, and let me know you're on your way." You wait your 15 or 30 minutes, "I'm sorry, I haven't heard from you. Please let me know later that everyone is safe. We can do makeup time-sharing later." Right? So that's how you document. If you are at the game, and they make the child go to the other side of the field, do not take pictures. Do not take pictures.
Pete Wright:
Why is that a problem?
Seth Nelson:
Because you don't want to be taking pictures of your child's co-parent and your child showing what they're doing in front of your child. You're just heightening conflict in front of your child. So everyone's like, "Well, how do you document it?" Well, you can get a PI to show up and take pictures, subtly. You can have a friend go with you that does not get involved but is just literally a fly on the wall that will go to court and say, "Yes, Dad was there and said to the child, 'Great game. Keep up the good work in the second half.' And Mom blew up at him saying, 'Don't tell her what to do in the second half.' And she walked across and toward..." So you can have witnesses, and they need to be credible, but-
Pete Wright:
But to clarify, you're talking about don't take pictures with the intention to document this maladaptive behavior.
Seth Nelson:
That's right.
Pete Wright:
You can take pictures of your kid playing a game.
Seth Nelson:
Of course. Of course. Don't do it about the behaviors. And literally, I've had these cases where parents get into a fight and they bring out their phone. And first off, they start filming, and it never shows what they think it should show. Right? And two, the very first question I ask, "So you're in a disagreement with your co-parent?" "Yes." "And is this the video?" "Yes." So I'm showing them the video. So I get the video into evidence, and then I ask them, "Do you think it was a wise decision to video an altercation you have with your co-parent in front of your child?"
Pete Wright:
My goodness.
Seth Nelson:
You're having a disagreement, and the first thing you're thinking is, "Oh, I'm going to prove this in court." Stop. Stop. De-escalate, don't escalate.
Pete Wright:
Yeah. Right.
Seth Nelson:
So a few things to do, a few things not to do. I love listener question day.
Pete Wright:
I know. It's the best. This one comes from Praying for Peace, Dodging Drama, "Have you ever dealt with a Catholic annulment after a high-conflict divorce? I just finished a three-year battle over custody of our daughter after a less-than-a-year marriage, and I am finally eligible to apply for an annulment. I'm worried because my ex may get access to my statements to the church and possibly those of other witnesses to the annulment. He also will be asked to provide a statement."
"Since we spent three years fighting over custody, I'm afraid he will take all the information from the annulment and try to make everything as difficult as possible for me. Is it possible he can take the fact that I am providing statements about what happened during our marriage and his treatment of me, which will be very negative, and use it to reopen our custody case to get more custody? I'm afraid to say anything negative about him in writing, for I fear I will be accused of alienating or being a bad co-parent."
"Co-parenting is difficult with him, and I do not want to create more conflict, but I need the annulment to move on and get remarried in the future. So I have to take the risk. And unfortunately, the church requires him to be involved in the process. TL;DR, can the Catholic annulment process cause post-divorce problems to be used to reopen or modify child custody? As a side note, I think having a priest on the show to discuss annulments in the Catholic Church and how it intersects with the legal divorce process would make a great show." Thank you so much for this question.
Seth Nelson:
So let's get this clear. She's asking a short, Jewish, bald lawyer in Tampa about a Catholic annulment.
Pete Wright:
I can't think of nobody better right now.
Seth Nelson:
Okay. So to your point, it is a religious legal process that you're going through, not the process in the United States of America, under any civil jurisdiction. Your question, at its really point, is, "Hey, if I say all this stuff in a religious legal process, can it impact me in the U.S. jurisdictional courts in the state that you're in?" Potentially. But in Florida, in Florida, once you get a final judgment and parenting plan, there has to be a substantial change in circumstances that is material to change that parenting plan, a substantial change in circumstances that is material.
Pete Wright:
Okay. Now, I'm going to go ahead and say, what I hear is substantial with air quotes and material with air quotes decided by the judge. How do they decide what is substantial and material?
Seth Nelson:
Yeah. So ultimately, it will be decided by the judge. And in Florida, it is a term of art. So, for example, if you moved three blocks away in the same school district, no one's going to say that's substantial. No one's going to say that's material. If you move more than 50 miles, that's substantial material change. So some is geographical location, some are behaviors.
This question dealt with behaviors, if I say all this bad stuff about them. What I would tell you in Florida is, if you said all this bad stuff about them during the divorce process, and you ended up with a parenting plan, and there's been no change, it's still the same bad stuff, doesn't matter. But that isn't her question. Her question is, can he open it back up? He can try. So if he filed, "Oh, there's been a substantial material change. Look at all the negative stuff she's saying about me," you're going to be saying, "No. I said all that negative stuff about you before. You knew about all this before we signed the final judgment, because you want some finality."
That's the whole point of a final judgment. But we know in family law, with the child, you can always come back and act in the best interest of the child. So if you were sitting in my office, but check with your local jurisdiction attorney, I would put dates and times, like, "These were the behaviors before we got our divorce in," let's say, "Florida." Right? It's all before the final judgment, before the parenting plan was signed. It's all before, before, before. "And since then, we haven't been living together." So I don't know what the church requires, like, "Hey, tell me something that happened last week." I don't know how they deal with that.
Pete Wright:
This is the thing that confuses me. Right? This is speaking for Dodging Drama, "Is it possible he can take the fact that I'm providing statements about what happened during our marriage and his treatment of me, which will be very negative, and reopen our custody case to get more custody?" That implies it's the same case. Right? I just want to reinforce what I think I heard you saying. Unless there is somehow more negative stuff that is due to come out, it would have all come out.
Seth Nelson:
In their reopening. Yeah. So I wouldn't be overly concerned about it, but I would certainly check with a lawyer on it before you go down that road, because you're obviously very concerned about co-parenting.
Pete Wright:
Yeah. Okay. Thank you for writing that. Is this considered an appeals case or-
Seth Nelson:
No. No. Appeal is after a trial and the judge, you think, made a mistake or the other side, and then you go to the appellate court. This is, "It's over. It's done. We have a final judgment. We have a parenting plan, but now I want to modify it."
Pete Wright:
Yeah. Okay.
Seth Nelson:
So, good question.
Pete Wright:
Question from Grace, "My partner and I have a 24-year age gap, myself being the younger party at 38, with Mister, as we will call him, being very close to retirement. What are some creative settlement ideas? For background, we have no children, no debt, and around 3 million in assets. Mister and I both currently work. We have two residences, and we currently live separately. It is friendly and amicable. I do not want to take away anything from his future retirement. Looking for creative options. Thank you." This seems like the easiest, the home plate question we've had.
Seth Nelson:
Yeah. I guess the real question is, when you divide the assets, how are you going to divide the assets? What this doesn't tell me is how long you've been married.
Pete Wright:
Which is important in the great state of Florida.
Seth Nelson:
Well, it is, because that's when the marital wealth would have been accumulated. If you got married a month ago, no problem. Right? Most of it's going to be nonmarital. So that's one of the issues, is, how much of these assets are marital versus nonmarital? I appreciate the sentiment. It sounds like, "Hey, my spouse is closing in on retirement age, and because we're going to get a divorce, I don't want that spouse to have to work many more years just to pay for the divorce."
That's great. So how do you do it? One, you become financially self-sufficient. You have two residences. Can you afford the residence that you're going to keep on your own salary? Do you, quote, "need alimony"? How are you going to divide the assets? Can you be creative there? Maybe you can't afford to refinance one of the houses. Well, you said no debt. So I don't know if that means no debt at all or is no debt on the mortgages. So if there's no debt, well, great. Then it's just your discretionary income other than taxes and insurance and the like.
And you say 3 million in assets. Is that liquid, or does that include the houses? Right? If one house is worth 2 million and the other is worth a million or 2,500,000, there's 500,000 in retirement. So how is it all divided? Right? So you got to get creative in how you do that. But a couple things you can do is, if he would owe you money, maybe you allow him to pay over time, but you get a security interest in the property, or vice versa.
Maybe you have a whole life policy that you can take and cash that out, because maybe that doesn't really impact him, because he doesn't really need the whole life policy if there's no kids. But great questions. I hope we helped. Needed a little more information there.
Pete Wright:
Yeah. A little bit. This one comes from Annulment Ambitions.
Seth Nelson:
Two annulment questions. Interesting.
Pete Wright:
I know. We've got two annulment questions. "I've been married less than a year. Can I get a legal annulment instead of a divorce? If so, how would that work? My ex has completely abandoned me, moved away, and does not want to be together. I'm hoping because the marriage was so short, it can be annulled, and no divorce is needed."
Seth Nelson:
In Florida, sometimes it's easier to get a divorce than it is an annulment.
Pete Wright:
Why? Why is that?
Seth Nelson:
If you consummated the marriage, it's really hard to get an annulment.
Pete Wright:
You're saying it's all about the sex?
Seth Nelson:
Well, I mean, we're talking about life here, Pete. Let's be honest about it. So yeah, in 18 years, I think I've only had one annulment. God, that was a long, long time ago. So sometimes it's just easier to get divorced, and people are like, "But I'd rather be annulled, because I don't want it to be that I was married, so I can say I wasn't married, because it was annulled." And it's all kind of in your head. Most people don't care.
Pete Wright:
We've never talked about annulment on the show. It's never been a topic of an episode proper. Can you just describe what it is in the eyes of the law?
Seth Nelson:
Yeah. It just means it never happened. You were never married. It's annulled. It's void.
Pete Wright:
They just take all the documentation. They just shred it. Just didn't exist.
Seth Nelson:
Pretty much. It's annulled. There'll be a marriage certificate, and then there'll be an annulment, like it's gone. There's more factors. For example-
Pete Wright:
Okay. All right. Please.
Seth Nelson:
... you get married, and you're happily married, and you're married for five years. You don't have children, but it won't matter for this analysis. And you go to your lawyer and you say, "I want to get an annulment." And your lawyer says, "Why?" "Because my husband is married to 10 years to someone else, currently."
Pete Wright:
Oh, okay.
Seth Nelson:
It's annulled. He's a bigamist, and your marriage was never a marriage.
Pete Wright:
It wasn't legal in the first place.
Seth Nelson:
It wasn't legal in the first place.
Pete Wright:
Right. It was a mistake.
Seth Nelson:
So there's a lot of other stuff, but I don't know the specific elements that I have to prove for an annulment off the top of my head, because I've dealt with it once in maybe 18 years.
Pete Wright:
Once. Sure.
Seth Nelson:
Yeah.
Pete Wright:
Sure. Does it matter? Because this came in the last question. Asking for the ex to be in the picture to somehow certify the annulment's taking place. Does the court require both parties to be present for a divorce or an annulment?
Seth Nelson:
No. You can do it in default. If they don't show up, you have haven't properly served, or you served by publication because you can't find them and they're gone, and you go to court, and you're honest, and the judge believes what you say, maybe you get an annulment. So check with your local lawyer, your jurisdiction.
Pete Wright:
Okay. Great question. We have another kind of a doozy. Let's wrap it up with this one. Here's a big one.
Seth Nelson:
Okay.
Pete Wright:
This one's from Cynthia. "My soon-to-be ex-husband signed a mediation agreement that he would keep his current girlfriend, former escort, away from our two daughters, who are three and six. This was also followed by a 1.5-year stipulation which kept the girlfriend away since she proved to be a dangerous person. The girlfriend now has moved in with my ex-husband and is bringing her around to our two daughters in his home on his custodial Saturday. My six-year-old daughter is telling me that she is seeing her on a weekly basis now."
"I addressed this with my attorney, and she is saying that I need to prove a violation of the order to show contempt. How can I show proof when they're inside his home? Shouldn't my daughter's testimony be enough proof? However, my attorney states that is risky. How can I show that he's violating the order intentionally, week over week, and keep my girls safe?" Now, there is a second part to this question. Do you want to take the first part now or-
Seth Nelson:
No. Throw it all in. Keep going.
Pete Wright:
All right. "My ex-husband also served me with discovery post-mediation. We were close to settling, but now I'm even served with a very intensive discovery. I have nothing to hide, but I feel like he's just dragging this case out and wasting time and money. We were so close. Why would he do this? Shouldn't there be a valid reason to serve discovery on me when we're already signed a custody order and an equalization order? Can he be sanctioned just to retaliate?"
"The other thing is, he is not represented by an attorney. So I'm not sure what his angle is, but the discovery feels like invasion of privacy since he's asking for things such as personal calendars directly, which I believe serve no purpose in moving the case forward. Is there anything I can do to speed up this case and not even do the discovery since we're already past mediation and so close to settling? Finis." Thank you, Cynthia.
Seth Nelson:
Okay. First part first. So part of the trick of being an attorney is, when people give you a fact scenario, there's no book that you go to and be like, "Oh, let me run it through ChatGPT and come up with what is really happening." So there are some procedural issues that you're saying. So what my understanding is, there's some sort of a parenting plan signed that is very specific that says, "A specific individual cannot be around my children, our children, for at least 1.5 years." And you believe that your co-parent is violating that agreement.
So, one, you got to make that agreement a court order. Check your local jurisdiction. It should be just a pretty standard thing to do, and then you can file a motion for contempt and enforcement and ask for sanctions. One, just saying, "Enforce it. Don't let him do it again. Contempt, he's in violation. Make him pay my attorney's fees." And sanctions go to her parenting class, or whatever other sanctions you might want to seek.
But your attorney is saying, "Well, you have to prove it in court." So you need proof. So I'm going to use the term proof as what happens in court. So you need information outside of court to bring into court that the judge can consider in making their determination on whether or not he's in contempt. And if they consider the information, and that information shows that he is willfully violating this agreement, hopefully a court order, by having this woman around the children, then it proved what you hope the information would prove.
But it only proves it if the judge believes it. So I use the term proof in court only. Otherwise, you have information. I agree with your lawyer. You don't want to bring a three-year-old and a six-year-old into court to testify that this woman is around. That is not healthy, in my view, for kids. So how do you do it?
Pete Wright:
I got an answer. Are you ready?
Seth Nelson:
Oh, yeah. Go.
Pete Wright:
A PI.
Seth Nelson:
There you go. You hire a private investigator.
Pete Wright:
That's right. About 15 minutes ago, I was listening.
Seth Nelson:
Exactly. So what is a PI going to do? A PI is going to take pictures. If they go out together and they're in the car, a PI is going to take a picture of her car in the driveway with a license that's registered to her before, during, and after the visitation. So that's how you ultimately prove it. I would not want to bring a child into court.
Now, switching to the discovery issues, that's also where I'm a little unclear about where we are in this process. But let's say you just don't have a final judgment. You don't have the final parenting plan signed. You're close, but you're not there. Yes, he's allowed to do discovery. I hear this a lot. It feels like an invasion of privacy.
You're allowed to object to discovery. In Florida, check your local jurisdiction, the discovery request has to be likely to lead to the discoverability of admissible evidence, likely to lead to the discoverability of admissible evidence. So if they're asking for your calendars, but you already have a signed parenting plan, I would say, "Judge, we got that issue resolved. What does it matter what my calendar said?" Right?
Pete Wright:
Right. We've solved the time issue.
Seth Nelson:
That's right. So it's not going to be likelihood to lead to any discoverable evidence. There's other ways to object, "Judge, it's unduly burdensome. It's harassing." I mean, there's all these other legal objections. You can't just say, "It feels like an invasion of privacy." Well, yeah, people look at your bank statements. That would feel like an invasion of privacy. So that's not a legal objection.
Pete Wright:
But that's part of the divorce.
Seth Nelson:
Right. Yeah. Go to your lawyer, "What are my legal objections?" Yes, people will drag this out. Set it for trial. Go get a case management conference, a meeting with the judge, and try and come up with a calendar of, "Judge, when is discovery going to be done? When can we get to trial? When do we have to go to mediation?" Move it forward. This is not fine wine. Doesn't get better with age. Great questions.
Pete Wright:
All right. That is a great question. A whole set of fantastic questions today. Thank you, everybody, for writing in. I can't believe we had a twofer on annulment questions. That's one for the books.
Seth Nelson:
Or two for the books.
Pete Wright:
Two for the books. Okay. It's two for the books. I hope that this helps. All of you who wrote in, thank you so much. And for those who haven't written in yet, it's not too late. We've got one more of these listener questions episodes coming as we wrap up our season in a few weeks. So visit howtosplitatoaster.com. There's a button that says Submit Your Question.
If you submit your question right there, we will answer it before the end of the season. Again, on behalf of Seth Nelson, America's favorite divorce attorney, I'm Pete Wright, and we'll see you next week right here on How to Split a Toaster: A Divorce Podcast About Saving Your Relationships.
Outro:
How to Split a Toaster is part of the TruStory FM Podcast Network, produced by Andy Nelson. Music by T. Bless & the Professionals and DB Studios. Seth Nelson is an attorney with NLG Divorce & Family Law, with offices in Tampa, Florida. While we may be discussing family law topics, How to Split a Toaster is not intended to, nor is it providing legal advice. Every situation is different.
If you have specific questions regarding your situation, please seek your own legal counsel with an attorney licensed to practice law in your jurisdiction. Pete Wright is not an attorney or employee of NLG Divorce & Family Law. Seth Nelson is licensed to practice law in Florida.
