The Grand Finale: Your Questions About the Divorce Journey • Your Divorce Case
In this special season finale episode of How to Split a Toaster, family law attorney Seth Nelson joins Pete Wright to wrap up their comprehensive "Your Divorce Case" series by tackling pressing listener questions. This episode marks the conclusion of Season 10, where they've guided listeners through every aspect of the divorce process, from initial consultation to appeals.
The episode dives deep into real-world divorce scenarios submitted by listeners, covering everything from custody arrangements for children with ADHD to hidden cryptocurrency assets and international divorce complications. The discussion provides practical insights into how these situations are typically handled in the courtroom, while breaking down complex legal concepts into understandable terms. The conversation consistently emphasizes the importance of consulting with local counsel, as laws and procedures vary by jurisdiction.
Questions we answer in this episode:
How do courts typically handle parenting plans when parents disagree about medical treatment?
What options exist when you suspect hidden financial assets?
How are digital assets like cryptocurrency handled in divorce proceedings?
Key Takeaways:
Settlement opportunities can arise at any point during the divorce process - even during trial
Court orders and requirements vary significantly by jurisdiction
Documentation and proper legal counsel are crucial throughout the divorce process
This episode serves as both an excellent standalone resource for specific divorce questions and a fitting conclusion to the season-long examination of the divorce process. Whether you're just starting your divorce journey or looking for specific guidance on complex issues, this episode offers valuable insights into navigating the legal and emotional challenges of divorce.
Links & Notes
Got a question you want to ask on the show? Click here!
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Pete Wright:
Hello, everybody. Welcome to How to Split a Toaster: A Divorce Podcast About Saving Your Relationships, from TruStory FM. Today it's listener question day.
Seth Nelson:
Welcome to the show, everyone. I'm Seth Nelson. As always, I'm here with my good friend, Pete Wright. I was just telling Pete before we started, it's not really listener question day, it's quiz Seth day, unannounced pop quiz. And Pete would love people to write in, other lawyers, judges, really anyone, you don't have to have credentials behind your name just to say that I'm wrong. So we'll see what happens.
Pete Wright:
Somebody who's quick on the Google trigger, whatever, we'll take it. Listener questions, here's where we're starting right here. This one comes from Tabby. Short one. "How do guardian ad litems typically handle cases involving domestic violence allegations?" This is a follow one from our great guardian ad litem show.
Seth Nelson:
Show. When you're dealing with domestic violence allegations in Florida, check your local jurisdiction. It really is, did it happen in front of the children and how is it, if at all, impacting the children? Obviously if there's been domestic violence in front of the children, that is going to have an impact on them. To what extent goes to how often and what's the extent of the domestic violence? So all of domestic violence is a matter of degree. And remember, in Florida, domestic violence in the civil case is defined by looking to the criminal statute. So you have to prove assault or battery or is it sexual assault? Is it aggravated battery? Is there a weapon involved? How frequently does it happen? How bad was it? Is it getting in an argument and slapping a phone out of someone's hand? That's domestic violence, and I'm not downplaying it, versus kicking the out of someone and dragging them across the floor by their hair and the kid seeing both of that.
Okay, so there's degrees. And a guardian ad litem will, one, see whether a domestic violence injunction was entered. If there's a criminal case, they'll look at the criminal case. They'll do their own investigation, which if there's a criminal case pending, the person who's being accused of domestic violence might not talk to the guardian about it because anything they say, as we all know from the movies, can and will be used against you in a court of law. So delicate subject. If they won't do any joint meetings, because there would probably be safety concerns, watching the children and seeing how the children interact. Now, I don't know if this domestic violence is against the other party, the other parent or the children. If it's against the children, that's really going to be a heightened standard and they might be asking for some psychological testing. They might be asking to come to court and say, "Judge, we need help just more than me." So, great question. Bad, bad facts.
Pete Wright:
What is the quickest turnaround time you've ever seen for a temporary relief order and what factors contributed to its speed?
Seth Nelson:
Ooh, that's a great question. I don't know the fastest on a temp relief order, on a true temp relief. I'm not talking in emergency motion. So temporary relief, it's at least three months would be the fastest because you have to go to mediation prior to get there. So what I really did is probably, and this is what we try to do is once we decide that we need to go to temp relief, we get a financial affidavit filed, we do our motion for temp relief, we set up for mediation as quickly as possible and we get a hearing as quickly as possible. So it really just says stay on top of it, keep following up, get the dates. And the less time you need for temp relief, if you need an hour or two hours, that's easier to get on the court's time than four hours or six hours. So the judge isn't going to give you that time for a temp relief.
Pete Wright:
Okay.
Seth Nelson:
Keep it moving forward.
Pete Wright:
That question came from Deb. Thank you, Deb for the question. Hope that helps keep it moving forward. Next one, we've got anonymous rights. "My attorney argues that temporary relief prolongs the overall divorce process and increases animosity. How do you respond to that perspective?"
Seth Nelson:
Well, first off, check your local jurisdiction. Listen to your local lawyer. I'm not giving you legal advice on that. It can certainly have heightened animosity. Someone goes to court and wins temporarily and someone loses. That's going to heighten animosity. It doesn't necessarily prolong it because the whole idea of temporary relief is you get in there while the case is moving forward. But like we've discussed before, Pete, do you set temp relief when you have a trial just a month later? Maybe you do in case your trial gets continued.
Pete Wright:
Okay. Another anonymous one. Two questions in this one. "If one spouse drains joint accounts as a power move before filing for divorce, can temporary relief address this retroactively, and how difficult is that to prove? And how can someone facing domestic abuse utilize temporary relief to ensure their safety during the divorce process and what evidence is most effective in these situations? Thanks, guys. Appreciate the show so much. Just listening through years worth on a binge." Oh my goodness.
Seth Nelson:
Oh. Poor person.
Pete Wright:
I know.
Seth Nelson:
There's better stuff on Netflix.
Pete Wright:
Thank you and we're sorry.
Seth Nelson:
Yeah.
Pete Wright:
So first question, if somebody drains the account, can temp relief address this retroactively?
Seth Nelson:
Yeah, that's not what temp relief is about. You might get an order saying that no one's supposed to do it. You could get a different order saying, "Hey, they have to account for it and get a tracing." Temporary relief is temporary moving forward, "Where are we now? Where are we going? How are we going to get there? What's the rules of the game between now and then?" Not really looking back.
Pete Wright:
Okay. Second part of that question, "How can someone facing domestic abuse utilize relief to ensure their safety during the divorce process and what evidence is most effective in these situations?"
Seth Nelson:
So first off, if there's domestic abuse, please talk to someone because there's potentially criminal charges that you could bring, there's domestic violence injunctions. People think of that as a restraining order. These things are called different things in different states. Please confirm and check with your local counsel to stay safe. Number one most important. Part of that process, or in temporary relief you can ask for exclusive use and possession of the marital home, therefore keeping the other person out. Now that's a civil order that if they violate, it's not a criminal offense. In domestic violence final judgments where if there is you're given exclusive use and possession of the marital home and they're not allowed to come within 500 feet, in Florida, but check your local jurisdiction, if they come within 500 feet, if they show up at the house, that in and of itself violating the domestic violence injunction is a criminal offense. It has a lot more teeth than just a temporary relief order.
Pete Wright:
Okay. Changes some things. All right, this one comes from Rebecca. "I'm currently a grad student working toward my MSW and this issue has come up a number of times in my research. Are there any studies that you've come across on the long-term effectiveness of guardian ad litem recommendations in promoting positive outcomes for children, as clearly a valuable part of the legal system? Has the Florida bar ever made an effort to understand the long-term impacts of employing a GAL through the legal system on families as opposed to more traditional forms of protected therapy?" Ooh, academic question, Seth. Are you ready for this?
Seth Nelson:
Well, I'm ready for it and I'm thinking to my father, blessed be his memory, who was a professor and did research. I know of no study.
Pete Wright:
Okay.
Seth Nelson:
I don't even know from a research scientific perspective how you can make that leap from how a guardian comes in, because all a guardian does is come in and say, they're not trying to be kumbaya, they're neutral and they're going in and evaluating and saying, "I think this is best for this family." But there's so many external factors that may or may not play out after that decision is made on whether the judge adopt the parenting plan in whole or in part of what the guardian did or advised or recommended. It's a great question about what's the long-term effective guardians. I don't know from a scientific perspective, not my field, how you could even gather the information and whether parents and kids would want to be part of that study.
Pete Wright:
Okay, fair enough. So it doesn't say it doesn't exist somewhere, but it's not here.
Seth Nelson:
I'm just unaware of it.
Pete Wright:
Yeah, all right. The next question is from Boq. Pop culture trivia, I have to imagine that name is anonymized. If not, it's fantastic. Do you know the most famous Boq in pop culture right now?
Seth Nelson:
I do not. And that is not a surprise that anyone's been listening to the show. I know nothing about pop culture.
Pete Wright:
I get one win. It's a character in Wicked.
Seth Nelson:
Ah, I know Wicked.
Pete Wright:
You know Wicked. There you go. And so this is what Boq has to say. "How do guardian ad litems typically coordinate with other professionals involved in the case, like therapists or school counselors? Can I expect them to just, I don't know, talk to these people without me present? Are they allowed to talk to whomever they please?"
Seth Nelson:
Yes, be prepared for them to talk to them without you present. But don't be prepared just for them to reach out to everybody. If there's someone that you believe they need to talk to, professional or otherwise, put them on your collateral list. But here are things to consider on the collateral list. How often do these people see you with the children? How often do they see the children? How often do they see your spouse or the other parent with the children? How frequently do they see them? When was the last time they saw them? Because I've been on cases where the other side puts all these collaterals on and right when they were collateral, I'm going to take their deposition because I'm going to see what the guardian says. And the guardian might say, "Oh, this party says that they're great parents and that they have always seen this parent do a great job with them." And then I take the deposition, I'm like, "The child is 12 years old, when's the last time you saw them with the child?" "Three years ago." "Okay, done with this witness," right?
Pete Wright:
Yeah. Okay.
Seth Nelson:
So give some thought because every collateral you put on the list, more time, more fees.
Pete Wright:
Okay, thank you, Boq. Great question. Next question from Torn Across Borders. There's a lot of drama in that name. I like it.
Seth Nelson:
Yeah, people are listening and I can already tell this is going to be a tough one.
Pete Wright:
"What is a typical long distance parenting plan for an infant and a toddler? My ex moved away to Canada and I still live in the US. He did not support us for six months, but has suddenly reappeared wanting this custody. He is crazy, in my opinion, but there's nothing I can point to like drugs or physical abuse. He has been very verbally and emotionally abusive to me and has threatened that he will take the children completely from me. He's demanding 50-50 custody in Canada where he would fly them back and forth every week. This seems horrible. He has a lot of money and lawyers and I'm worried we have a 50-50 presumption in our state.
"My lawyer is saying it could happen until school starts in the worst case. I'm pushing for a few monthly visits for a few days in my state, even since money is not an issue for him. I'm not sure if I should offer more time for the summer or let the kids go to Canada. Even two nights away seems too long as I am still nursing. I'm not ready to give them up for longer than a few nights and I don't even want to do that. But I'm trying to be reasonable. What is a normal schedule that is good for kids at this age? He doesn't know how to care for them and he never has had them on his own overnight, but he is now trying to act as the best father, bringing gifts, paying child support, taking the kids to the playground, et cetera. So I'm worried the judge will give him what he wants now that he appears interested."
An infant and a toddler to Canada every other week. Seth?
Seth Nelson:
Okay, so from the sound of the question, they do not live in Northern Wisconsin or Upper Peninsula of Michigan to make crossing the border easy. So let me lay out a, "typical," in quotes, air quotes, plan. A little bit of what you described, I'm going to start with school aged and back down to the infant and toddler. Because as their attorney said, well maybe this happens until school age because it cannot happen at school age because you can't do week on, week off and miss a week of school. So a typical long distance parenting plan is with let's say mom in this case during the school year and for winter break usually split in half. Dad might get more, maybe dad gets Thanksgiving, you alternate Thanksgiving every year, but maybe dad gets spring break every year. Maybe dad gets long weekends either in the mom's state or if he wants to fly the kids up for a long weekend.
As they get older, it gets harder because kids are involved in stuff on the weekends and part of being the parent is you fly down and you watch them in soccer games. That's part of parenting. And then more time in the summer. And the question is when you do more time in the summer, do you bookend it where mom gets the first week and the last week of summer and maybe one week in the middle and that's three weeks out of a 10 week summer and dad gets seven, which sounds horrible, but if it was 50-50 in the summer, mom would get five and dad would get five. So he's getting two extra weeks. Some people try to take out that middle week and just say, "No, it's just bookends. Dad gets eight, mom gets two." I always argue for a third or a fourth because the last week of summer it's all about getting the kids ready for school again, it's not really when you're doing vacation.
Pete Wright:
Okay. Yeah, it's not a vacation. Right.
Seth Nelson:
Okay. Down to the toddlers and the infant. Studies show that, this kind of goes to the MSW student that had a question a minute ago, but studies do show that kids do better with frequency of time seeing each parent. So that's why if it's a local parenting plan, two nights with mom, two nights with dad, switch the weekends, 2-2-3, 2-2-3. Infants don't do well on one week, on one week off. So I would encourage, if I was looking at this case new, I would encourage a lot of FaceTimes, even with the little ones. And it doesn't have to be... Like an infant and a toddler, it's hard to keep their attention. So maybe you put the FaceTime on an iPad that's propped up when they're eating to give them, "Hey, they're eating, look at what we're doing, talk to dad." And even if they get distracted and come back to it, dad has to understand that's the best you're going to get. So I would be looking into that.
Pete Wright:
What are the practicalities though of just getting the kids back and forth?
Seth Nelson:
That's what I was going to go to next is, one, how are they flying? Who's flying with them? Who's paying for the expense of the flights? And that's why in the summer, if dad's like, "I want them all summer," what's attractive to that for a judge is less flights. So you got to be careful why you're saying it's not best for the kids to do whatever plan you're doing because there's the reverse, "It's too much travel. Oh, okay, I'll give them to dad all summer."
Pete Wright:
Yeah, right.
Seth Nelson:
One trip at the beginning, one trip at the end.
Pete Wright:
And you're just eating up the frequency thing, right?
Seth Nelson:
Yeah.
Pete Wright:
You lose a lot of that.
Seth Nelson:
Yeah. Now, the fact that you're nursing, I've had judges say, "There's formula and you can store milk and do the best that you can and that's what we're going to do." So yeah, this is a tough, tough case and a judge has to make a decision on what's best for the children today. And if they do a 50-50 time sharing, they're not supposed to come back and say, "Well, now they're in school, let's change it." I mean, you're just getting more litigation, more litigation, more litigation. So it's a difficult one, but that could be a potential outcome. So tough one. I understand the headline on that one.
Pete Wright:
This next question comes from Doug who is talking about our appraisal episodes. "How do you handle appraising digital assets? You guys talked about wine and watches and real estate, but what about things like NFTs, domain names, even social media accounts? I've spent a ton on digital movies and TV shows. Does my Amazon Prime and Apple TV account have any value, and digital film collections that should be considered?" It sounds like I could have written this question.
Seth Nelson:
I was about to say, I was about to say, "Who is Doug?"
Pete Wright:
I swear it wasn't. Doug and I would be best friends if actually I knew Doug, we'd be tight.
Seth Nelson:
And here's the other thing. This is why another reason why I think you might've written this question, Pete.
Pete Wright:
Why?
Seth Nelson:
I don't know the answer.
Pete Wright:
Oh. We got one. Everybody, I know you've been waiting for this just as long as I have. And I'm just proud that we are back to the halcyon days of equanimity between us.
Seth Nelson:
Now that's the honest answer. The lawyer answer is, I'm about to make an argument, right?
Pete Wright:
Okay.
Seth Nelson:
So no, that's an excellent question. Yeah, if you've downloaded and purchased movies, I would say that's an asset. I wouldn't call it a collection because you can just download them still, assuming that you can, right? If there's an old movie, you can probably get online and still download it and pay for it. But if it's in your collection, I would go and see what the value is of downloading today. I don't think there would be any real value of having the whole collection and splitting it up, because you're not going to sell your Amazon Prime account to someone. I don't think there's a market for that.
Pete Wright:
Well, there's no market and I believe it's against terms of service. That's one of the great issues in digital asset holding is that once you pass on or lose access to that account, you're done. You can't will your movie collection to your kids by way of Amazon or Apple, that sort of thing.
Seth Nelson:
Right. What was the other ones he said in there? NFTs, you can certainly get an appraisals of those. I could get those, yeah.
Pete Wright:
Domain names too. Domain names. Howtosplitatoaster.com, very popular.
Seth Nelson:
Yeah. Oh, let me tell you. Let me tell you. If anyone wants to buy that, just click question, how much will we take for it? The button's right there, as Pete says.
Pete Wright:
Jokes on you though, you'll just get law questions all day long. That's all they'll use it for. Or social media accounts. I know there is a market for social media accounts, people buying and trading handles and great domain names.
Seth Nelson:
I would look for an expert. I would go research and find experts in this field and that's how I'd do it. Great question, Doug.
Pete Wright:
Great, great, great. All right, this next question from Ruby D, "Does the cost of the appraisal itself ever become a factor? Like if it costs $5,000 to appraise something that might only be worth $8,000, is it worth it?"
Seth Nelson:
Yes. I have that conversation all the time. They'll say, "Well, how much does appraisal cost?" And I'll get quotes from appraisers. And then they'll say, "Well, I can't tell you what that jewelry collection is worth because I haven't seen it." So sometimes I'll be like, "Hey, before you give me appraisal, let me show you some of it and see if it's even worth it." And they're going to do that to try to get the business, right? But no, I think that question not only about appraisals, if it costs 5,000 and it goes to 8,000, is it worth it? Everyone's like, "Well that's a three grand difference." Well no, because you got to pay the lawyers to argue about the appraisals and you're going to eat that up. So that goes with anything that we do. Is it worth the expense of litigation, whether it's attorney's fees, costs, expert fees, going to court, whatever it be, getting a transcript, all of it, is it worth what you're arguing about? And that ultimately is a client decision.
Pete Wright:
Hear me out Antiques Roadshow. It's like free appraisal, right?
Seth Nelson:
You can't call them in to testify.
Pete Wright:
You can't call Antiques Roadshow in to testify? That would be a celebrity trial.
Seth Nelson:
You want to know why?
Pete Wright:
Why?
Seth Nelson:
Because they're on to the next show. They're like Antique Roadshow.
Pete Wright:
It's in the name, it's a roadshow. All right, I'm the dummy. I'm sorry about that. New question from Deposition Dilemma. "Great show. I'm behind, but just caught up on the episode on depos and it was really timely for me. I have a few questions I hope you can bang out." This is a question that comes in a list. "Number one, what happens if my attorney doesn't object to a bad question? Can that hurt my case?" Do you want me to just roll them all out?
Seth Nelson:
Yes. First one is yes.
Pete Wright:
Oh good. Okay. Do you want to comment on it or shall I roll on?
Seth Nelson:
Keep rolling and we'll come back.
Pete Wright:
All right. "Are there any consequences for an attorney who makes too many objections? Number three, if the opposing lawyer keeps asking the same question in different ways, do I have to keep answering? When can I tell the lawyer to pound sand?" I love that so much. "What does a judge think if a deposition is full of objections? Does that make me look bad? Thanks, guys. I can't stress how helpful this show has been for me over the last six months. Thank you, Deposition Dilemma." What do you think?
Seth Nelson:
Okay. No, if your attorney keeps objecting, it does not make you look bad. You're just sitting there answering the questions, so that's fine. Too many objections in a deposition is not a problem at all. If anyone does a lot of objections in a depo, it's me because I am protecting the record and the majority of my objections will be objection to form, go ahead and answer. So if they keep asking you the same question a different way, ultimately I would say objection to form. And then you'd have to say, "Go ahead and answer." And then literally if it is over the top, I would say, "Asked and answered, asked and answered." And then finally I'm going to say, "I'm instructing my client not to answer." And then I'm going to take the heat in court.
Pete Wright:
This is the important thing. You, Dilemma, are not telling anyone to pound sand, but your lawyer might. That's what I'm hearing.
Seth Nelson:
That's right. But I'm going to say it nicely, "I'm going to instruct my client not to answer." So now, you can call into the show and tell us to pound sand anytime you want.
Pete Wright:
Anytime you want.
Seth Nelson:
Yeah.
Pete Wright:
And so the judge question, the last one, "What does a judge think if a deposition is full of objections? Does that make me look bad?"
Seth Nelson:
No, no. I thought I answered that. It does not.
Pete Wright:
Okay.
Seth Nelson:
It does not. But back to the bad question, if they don't object, you're in a little tight spot. So you need to follow the rules of, what I would advise, talk to your client, but we've gone through listen to the question, think about the question, answer it honestly, least number of words as possible and shut up. But if they say something like, "When did you stop beating your dog?" And your lawyer doesn't object, then you're going to say, "I can't answer that question because I never beat my dog." You got to clean it up a little bit in your answer, but be careful.
Pete Wright:
Got it. Question from Hidden Asset Headache. "Let's say my soon to be ex spouse has been a little too enthusiastic about crypto and now that we're divorcing I have a suspicion they've stashed away some digital assets off the books. Can a forensic accountant actually track down hidden cryptocurrency even if it's in a cold wallet?" I don't know what a cold wallet is." What kind of tricks do people usually pull to under report income in situations like this? And if it turns out they did hide money and fudge the tax numbers while we were filing jointly, am I on the hook for that too? Also real talk, hiring a forensic accountant sounds expensive. Is it even worth it for a regular divorce or is this only the ultra rich? Thanks, guys." And look at this, Producer Andy, so good, "A cold wallet, also known as offline storage is a cryptocurrency wallet that stores private keys offline, making it highly secure from online threats and hacks."
Seth Nelson:
Lot of questions there. People are asking multiples here.
Pete Wright:
I know.
Seth Nelson:
Okay, hidden assets, let's talk about that. One, you can ultimately find them though it might take a lot of work. And here's how you ultimately find them. At some point there was a transaction that took good old fashioned currency and turned it into crypto. You had to get into this crypto system somehow and you still to this day do that with cash. So you've got to find the in. So that's one. Then you start asking for the keys. And once you get into that one, you got to go through the blockchain and see what's going on in this account. Then the problem is if they're saying, "Well, I don't have the key, I don't have the key, I don't have the key," because they're using the cold wallet and they're storing that after, right? That's going to take computer forensics and all that. It's very expensive.
Now I'm going to get to, but they didn't disclose it. So you kind of asked I think two questions there. One was on the tax returns and one was what about in court? Well if it's not disclosed in court but you find it later, in Florida, you can go fraud on the court because they didn't disclose and they hid it on purpose and it was fraudulent, and undo everything, which is also another nightmare. On your tax returns, there is a federal tax law called innocent spouse concept, which is, I'm just saying husband, wife doesn't matter, the husband ran his business, always did stuff, it was a scrap metal business and he's always collecting junk, selling junk, doing this, doing that, buying equipment, selling equipment, and you're just at home raising the kids and he's e-filing it and you never even see him and he does them joint. The doctrine is innocent spouse, "I didn't know what was going on. I had no idea."
And I tease my wife about this concept because she doesn't audit my firm books. So if we're going to file married joint and I did something wrong on my firm books that gives me a different K-1 that then gets reported on our joint return and now it's fraudulent and she signed off on the return, I'm like, "You're never going to get innocent spouse. You used to be a tax lawyer that worked for the IRS. It's not happening."
Pete Wright:
Right.
Seth Nelson:
So whether it's for the uber wealthy or a regular divorce, so I don't know what you mean by regular divorce, but this goes back to the earlier question. If the appraisal is five grand and it's worth eight, is it worth it? The forensic accountant might be worth it just to save time and money so the lawyer's office doesn't have to do the standard of living analysis on an alimony, figuring out how much alimony someone may or may not need. Maybe figuring out the incomes that might be less expensive for the forensic accountant to do the tracing than the lawyer. So I don't know the complexities of it. If it is a two W-2 employees, you probably don't need a forensic accountant. If he's hiding some crypto, you got to decide whether you want to go try to find it or not.
But no, I've had cases where they were a teacher and a firefighter, let's say, and we needed a forensic accountant because they had some side hustles that were doing well. We had to value that. Or there was some tracing of some money that we had to determine how much was marital or not. So it's not all or nothing with forensic account. You can give them kind of piecemeal work too.
Pete Wright:
Targeted, yeah.
Seth Nelson:
Yeah.
Pete Wright:
Okay. This one comes from Ariel. "Hey, Pete. I found this show because I listened to you on Taking Control: The ADHD Podcast and this is a huge issue in my divorce right now. So Seth, how do you handle a parenting plan when one parent refuses to acknowledge a child's ADHD? My ex and I completely disagree on medication, routines and even the custody schedule. I'm worried that a 2-2-3 split is making things worse for our kiddo. Do you have any advice on how to navigate this from the perspective of ADHD parents and kids? Or would you consider bringing in an expert to dive deeper into this. Thank you so much."
Seth Nelson:
Oh, great question. This goes beyond just ADHD, so I'm going to expand it a bit. This goes on any medications. This goes for any time that parents aren't going to do it. Now with ADHD kids, there's a lot going on there that makes it more complicated. I appreciate that. But ultimately, if doctors are advising, and it's going to be about all the experts, that this child needs this medication and here's what happens, positive things, then that is a good thing for kids. And if they're unwilling to do the medication, then that's a problem.
And going from one household to another household where maybe routines are different and bedtimes are different, and I would get on as the page as much as you can. Maybe there is a pillow that's better or a mattress that you both can use, as much similarities as possible. But ultimately, that will be a court decision. And I've tried those cases when parents don't agree on medical issues and they're not easy because you really got to show. Now back to your 2-2-3 and I don't know where you are in your process, check with your lawyer, sometimes you go week on, week off.
Pete Wright:
To account for things like the stressors of neurodivergence.
Seth Nelson:
That's right. And what happens is child's with you on that week and homework's getting done, not late to school, takes the exams and gets Bs. The week with dad, late to school, homework's not being turned in, getting Cs and Ds on exams. So it's awful for your kid-
Pete Wright:
To be used as a test bed for parenting plans.
Seth Nelson:
Right. Good for your case, which is good for hopefully the long-term impacts. So I tell all my clients, "This is going to be short-term pain," and short-term might be 18 months.
Pete Wright:
18 months is a lot of time in a kid's life.
Seth Nelson:
In a kid's life. So great question. I hope I gave you some food for thought there.
Pete Wright:
Thank you, Ariel. And thank you for following the trail of breadcrumbs from The ADHD Show. Love that you did. That from Precarious Predicament Plight. "Hi, Pete and Seth. I just read an article about restaurant owners being briefed on what to do if ICE comes in to interrogate staff. We are in a precarious situation ourselves and my wife and I are facing a divorce. What do I need to do to protect myself from my government so we can get the divorce complete? I'm scared to walk into a courthouse right now. Thank you both."
Seth Nelson:
That's a really interesting question. The best thing you can do if you're afraid to walk into a courthouse is settle your case. Judges are there for two reasons in family law in Florida, check your local jurisdiction. One, they have to ultimately sign off on a parenting plan and they're the ones that have to sign the document that makes you divorced, the final judgment. And two, in Florida they have to take testimony to prove to their satisfaction that they have jurisdiction, power to hear the case, and that your marriage is irretrievably broken.
So what I mean by that, somebody has to show up at court and raise their right hand. In those questions, they go like this in Florida, "Have you been a resident of the State of Florida for the last six months prior to filing your dissolution of marriage?" If so, you usually have to show a driver's license. If you don't have a governmental issued ID, such as driver's license with a date on it, you can do an affidavit of residency where you get two people swearing, "Yeah, I know they've been a resident for six months." And I've done that before because during the pendency of the case or right before we filed, my client updated his driver's license so I don't have that evidence, the issue date is not compliant with the law. So you do an affidavit. And then, "Is your marriage irretrievably broken?" "Yes." And then there's some other questions that get asked. You don't have to go to that hearing. Your spouse can go to that hearing. And sometimes the hearing is on Zoom, so maybe you're not even, quote, unquote, "at the courthouse."
Pete Wright:
You don't have to go into a courtroom at all.
Seth Nelson:
Nowhere in those questions does it ask whether you're a citizen.
Pete Wright:
Fascinating and timely. And for our international audience, US Immigration and Customs Enforcement, that's ICE. That's ICE. Great question and sorry for that stress. These are hard times. From Default Decree Distressed Dispatcher, question is, "How should someone handle interactions or legal matters with their soon to be ex moving forward if they default on the divorce and the court has already made its decisions?"
Seth Nelson:
I would abide by whatever the final judgment says on, the court defaulted, made its decisions, you're done. Now if there's new stuff coming up, you got to deal with that as it arises.
Pete Wright:
What does that mean to default on the divorce?
Seth Nelson:
Yeah, so when you file and you have the person serve, they have 20 days in Florida to file an answer. If they don't file, you can get what's called a default. There's two types of default. One is a clerk's default that can turn into a final judgment. The other is a judge's default. The difference is I file and I sue you, Pete, and you go down to the courthouse and you take a sticky note and you say, "Seth's an idiot." And you take it and you say, "I want this filed in this case," and you write the case number on it. The clerk is required to take that filing. The clerk doesn't have the power not to put that in the court file.
Pete Wright:
Okay.
Seth Nelson:
If anything is in the court file, the clerk cannot do a clerk's default because you filed something, because they don't have the power to say that wasn't a proper answer to the petition. You go to court for that, you go to the judge. Okay? So if someone files something in court, you go and you say, "Judge, I want to default. They never responded appropriately." The judge might say, "I'll give them 10 more days and they still don't do it," whatever. So here's the tricky part, in a default you still have to go to court and put on evidence because the court has to make a decision on what's best for the child. But if the judge has made their decision pursuant to the question and the final judgment is there, abide by the final judgment.
Pete Wright:
Okay. From Settlement Saga Student, "What steps should someone take to prepare for a settlement conference when heading to trial? And how should they approach the possibility of the case settling during the trial?"
Seth Nelson:
You should always be prepared to settle by knowing the issues in the case, what you think the law will provide you based on the facts that you believe you have that the judge will find is true. It's not uncommon, but it doesn't happen every day, where you settle in the middle of trial. And the reason for that is you're settling because something happened in the courtroom and someone now thinks they have the upper hand or things aren't going as well and so maybe you'll get a settlement. Now sometimes the judge will be like, "You guys need to go talk about this," and they might apply some pressure in saying, "I'm not prejudging the case, but my understanding of these issues and how this is playing out," and he or she's going to say things positive or negative on both sides to give you both some "Uh-oh, that might work for me, that might not." "You sure you don't want to go talk about this? No one's going to be happy with what I'm about to say." Right? Like, "Uh-oh." Then you get some control back, because once you give it to the judge... Right? So you should always be ready to settle.
The other reason that sometimes things don't settle in court, if the judge is really quiet, is there's momentum in court and one day you think you're up, the next day you think you're down and then the next day maybe you're back up. So it all changes like the tennis match that we've talked before. But you should always be prepared to settle your case and don't make the mistake of, "You know what, I've spent this much money, what's the matter of spending more?" Don't go, "I'm in for a penny, in for a pound." That's just not a good logical explanation to not settle your case or, "I think I'm getting this." Look, if you can get a settlement that you can live with, then go for it.
Pete Wright:
Take it. All right. From Subpoena Strategy Seeker, "How do I determine which trial witnesses I need to subpoena and what factors I should consider when deciding which individuals are essential to support my case effectively?"
Seth Nelson:
This isn't just subpoena, and I just do this broader, how do you decide who to call? Start at the end. What do you want the judge to decide in your favor? What are those, quote, unquote, "facts" that the judge needs to say, yes, this is a fact that favors husband, this is a fact that favors wife, whatever side you're on. And then what information do you need to bring to the judge to prove those in court? And who or how are you going to prove them? If you have a document, a bank statement, how are you going to get that quote, unquote, "into evidence"? What witness is going to be on the stand that can testify that that's a true statement, that it's their bank statement? Did you waive records custodian? Just so everything you need to prove. And I like to have three ways to get the same information in evidence. Because if one doesn't work I need a backup and another backup. Sometimes you don't have that. Sometimes you have one thing, it's a witness. So you got to figure out what you're going to do, and far as the end result, what you want and then how do you prove that? And then who's going to be the witness to prove that? And that's how you come up with your witness list.
Pete Wright:
Begin with the end in mind.
Seth Nelson:
That's right.
Pete Wright:
Okay. From Standard Restrictions Curious, "What actions are prohibited once I've been served in a family law case under standard family law restraining orders? What are the key restrictions I need to be aware of?"
Seth Nelson:
Read the document.
Pete Wright:
It's on the document.
Seth Nelson:
Read the document.
Pete Wright:
Okay.
Seth Nelson:
Whatever that says you can't do, don't do. Standard domestic violence injunction language, don't go within 500 feet of the other person's residence or workplace. Don't knowingly go within 100 feet of their vehicle. Turn in your firearms to the authorities on a temporary basis. And read the document. I can't tell you what the standard is, you got to read it. There could be changes to it.
Also, in domestic violence cases, when you go to court the first time, it's usually what they call, it's a terrible name, it's called a cattle call. Everyone's there to have their case heard. The judge isn't going to listen to it, if you get an agreement, yes, the court will settle it then. If you don't and it's going to go to a half day trial, full day trial or three hour trial, whatever it is, that judge is going to call special set it, put it on a special date and time. At that hearing, I let the judge know whether there's any problems with the order. Let me give you an example of what it might be. Can't go within 500 feet of a child's school. I live within 500 feet of the school. It's across the street.
Pete Wright:
Right. What are you going to do?
Seth Nelson:
What are you going to do? So those are the type of things. Courts will work with you on that, like, "Okay, how do we solve that problem?" Right? I always let the court know, and these are recorded, I always let the court know whether my client has firearms and if so, they've been turned in because I'm going to court and saying they've been turned in. Or whether my client does not have firearms and say, "Judge, I know the court order is turn in firearms. My client doesn't have any. I just want the court to be aware." Because I think those are really highlight issues.
Pete Wright:
Okay. We've got a question here from Taylor. "What percentage of your cases go to trial? I really don't want to go to trial, but my attorney is almost certain we will have to. Unfortunately, my ex is demanding a super unreasonable parenting plan and it's not supported by the law, like full custody and decision-making. I know he only is doing this to spite me as he's hardly ever seen the children for the past year of our divorce and has only just started exercising his full parenting time for the last three months. I'm guessing because he just got a new lawyer.
"We have had motion after motion with awful allegations and it is expensive and emotionally exhausting. I just can't keep up like this. He acts so nice during court and in any written communication, but I do think even the judge now sees this as an act after all the hearings we have had. I want to end this. I'm willing to give up child support if he will stop this madness. But I understand this is not an option. What can I do to get him to settle and stop this craziness? Do you have any other advice? I can't give up on our children, so I truly feel stuck. I don't feel I have anything else to compromise on but money."
Seth Nelson:
Ask your lawyer to get a trial as soon as possible.
Pete Wright:
Set a date.
Seth Nelson:
Beat that drum. Set a date. Get into court. Fight for a date. I don't care if that date is eight months out. Get a date and keep getting case managements. "Judge, we're going to trial. We don't want a continuance. There should be no reason." Be a dog on a bone about getting finality as far as your first trial. And the reason I say that, when you're dealing with guys like this, some people have to be told in court and you got to press and press and press. Then once you get your final judgment, as we talked about, maybe they keep on doing it, maybe there's problems after. Unfortunately, some people are just wired this way where they're just going to do this to spite you. They like the conflict. So that's why you just got to hammer it.
Now, as much as you're saying there's been motion and motion and motion, look at how that question changed. I think the judge is figuring it out now that he's been in front of us a bunch of times. So sometimes they do this and you're going and going and going and it hurts their case, where if they showed up for trial one day, maybe they could pull one over on them. Sorry I don't have better news for you. And I would also tell your lawyer, send over an offer that you can live with.
Pete Wright:
Yeah.
Seth Nelson:
If he says no, he says no. Some people have to be told.
Pete Wright:
Can you reflect just a minute on there's one line in here that stuck out to me, which is, "I think because he got a new lawyer," can you talk about the new lawyer factor? It seems like-
Seth Nelson:
New lawyers can help or hurt.
Pete Wright:
Yeah.
Seth Nelson:
But if that lawyer is saying, "You're asking for all this time and you haven't used it, start using your time," that's what the lawyer's probably told him because now he's starting to use his time. And in doing so, he's helping his case because now he's actually showing up and doing that. So yes, lawyers have a big impact. I've talked to clients a lot that want to switch lawyers and I say, "Look, one, it's expensive to get me on board. You're not going to get that necessarily recovered in attorney's fees because I had to get up to speed. And some stuff, that ship has sailed. You already have a guardian. I don't like the guardian. You already got a forensic accountant, not my favorite one. There's nothing I'm going to be able to do about that. There's court orders, there's agreements." And it is easy to Monday morning quarterback, but you got to pick up and go.
Pete Wright:
We've got a question here from Retreat Receipts Reckoner. "My husband of 13 years asked for a divorce and then went on two vacations without me within the span of two months. The first just up and left without warning for five days and the second let the kids and I know that he would be gone for a week. Told the kids it was a retreat. My question is doesn't his charges count as using marital assets? I can't prove that he was with someone, but I'm very inclined to believe he was based on prior events. Unfortunately, I don't have receipts as he keeps his finances separately. Advice?"
Seth Nelson:
In Florida, check your local jurisdiction, any debts run on a credit card after the date of filing is a post filing debt that is non-marital. So I would just say any of these debts that he did on his credit card is post filing. He needs to pay that from non-marital money, not marital money. That's what I'd start with. Then I would argue that, "Judge, two trips back to back. We typically didn't go on trips like that. These weren't regular reoccurring expenses." It's one thing if he goes and he takes the kids and he runs the credit card buying the kids school clothes or fast food or whatever the case may be, then you can say that's regular reoccurring, fine, he can pay that out of marital assets. But these trips, these retreats, then start doing a subpoena. "Where did you go? What was the retreat?"
Pete Wright:
The fact that she doesn't have the receipts because he keeps his finances separately, that's not an issue.
Seth Nelson:
You're going to get them in discovery. No, you're going to get-
Pete Wright:
Yeah, that's going to come out.
Seth Nelson:
Well, it's an issue. It's going to come out. You've just got to be a dog on a bone.
Pete Wright:
Yeah. Thank you, Retreat Receipts Reckoner. These have been some really good questions, Seth.
Seth Nelson:
They've been excellent questions.
Pete Wright:
It's like people are actually listening to the show and maybe, I don't know, taking notes. It's extraordinary this level of introspection. How do you feel about this season? This was kind of a different way to do the show doing this Your Divorce Case map that we've been doing. How do you feel about it?
Seth Nelson:
You know, as we've talked from the very beginning of this show, I'm really pleased with the show if we're helping people. We are giving this out there in the world for free. No one has to listen to it. If you're listening to it it's because it's helping you. And they always say, if you can just help one person, it's worth it. Well, I don't know about that. I'd like to help more than just one person, right? But we are certainly by the questions we're getting and people writing these wonderful things to us, sometimes in an email, sometimes in the show notes, and when they click in and communicating with you and Andy and emails that I will get and forward to you, it's great.
And nowhere that I'm aware of for the general public is there soup to nuts, A to Z, your divorce. Yeah, there's some books out there, right? But it's hard to commute to work in a car driving and read a book. So if people found it helpful, it was great. I like going through the legal stuff. And I love the psychologists we come on board. I love that. I love the math stuff. There's a lot that I like about what I do. But I really just hope people found it helpful. And if that was the case, then I'm all for it.
Pete Wright:
Well, for those who are just coming to the show, this has been a heck of a season covering Your Divorce Case. We've gone from the initial consultation through pleadings and motions. We've done the entire anatomy of the courtroom, people and the facility. We've talked about temporary relief. We've done the entire PEACE process, that's PEACE process, parenting plans, equitable distribution, alimony, child support and everything else. We've talked about forensic accounting and mediation and guardian ad litems and depositions and appraisals and we've done the entire trial, we did three episodes on the trial, and finally the appeals process. What is the appeal? It's been an extraordinary learning season. Thank you, Seth, so much for doing this.
Seth Nelson:
Well, thank you, Pete. You asked the great question. Were you pleased with the season?
Pete Wright:
I'm very pleased with the season. I think it's going to make a wonderful... I think this will be our greatest bookshelf season that we've done. I think this will be an evergreen season that people will be able to come back to again and again and again for years. I hope it becomes that level of a tool for people in their divorce.
Seth Nelson:
Sounds good to me.
Pete Wright:
Sorry you have to go through it, but glad we can offer you something to help.
Seth Nelson:
Glad we can help you through it.
Pete Wright:
Yeah, thank you. Thank you, everybody. We will be back in late April, so we're taking a month and a half off to regroup and then we'll be back with some new episodes. We've got some great guests coming up for season 11. Thank you, everybody for downloading and listening to the show. If you have questions, you can always go to howtosplitatoaster.com, click the Ask a Question button and we'll answer it on an upcoming season 11 show. And it's possible that we'll have to do even more listener questions episodes. They're just stacking up.
Seth Nelson:
Yeah, maybe in the little break time, if there's a lot coming in, we'll pop on and do a show.
Pete Wright:
Yeah, we'll have to do them in a very special episode. And you could always ask us how much for the domain. We will take inquiries. On behalf of Seth Nelson, America's favorite divorce attorney, I'm Pete Wright. And we'll see you next season 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 and 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.
