Month: April 2012

What If I Need to Hire an Expert in My Wisconsin Divorce Case?

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In a divorce case, there can often be a need to hire experts to assist with specific issues.  Those experts might help with valuing assets (real estate, a business, personal property, pension, etc.) or provide testimony regarding one party’s earning capacity or ability to parent.

In Wisconsin, the Court may appoint an expert to accomplish this or a party may hire an independent expert.  If the Court appoints an expert, the Court will determine the responsibility for the expert’s fees which is generally an equal division.  The fees for an expert hired independently by one party will be that party’s sole responsibility.

An experienced family law attorney will assist you with finding the right expert for your needs.  There are often lists of experts regularly appointed by the Court in a given county.  These lists can be made available to family law attorneys and are very helpful in us finding the best match for your expert testimony needs.

To schedule a free initial office consultation to discuss hiring an expert your divorce, please contact us at 414-258-1644 or visit us at Nelson, Krueger & Millenbach, LLC  for further information.

How Is a Business Valued in a Wisconsin Divorce Case?

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When a divorce action involves ownership of a business, the Court must determine what will happen with the business.   The first step is to determine the value of that business.   An experienced family law attorney will help you hire the appropriate expert with the necessary qualifications to value the business.   In a Wisconsin divorce case, the parties can agree on an expert o r the Court can name one expert to value the business.  A party may also hire an independent expert to value the business.  If the Court names the expert or if the parties agree to one, the parties then typically share the cost of the valuation.

The expert will provide a list of necessary documents, such as tax returns and profit/loss statements, which are needed in order to determine the business’ value.   The owner or operator of the business will be required to turn over all of those documents.  If there are assets of the business, like equipment, inventory, or vehicles, a separate expert or appraisal may be needed to determine the value of those assets.

Once the expert has determined a value of a business, the parties can use that information when dividing all of the assets in a divorce.  If a party does not agree with the value, they are free to hire their own expert to conduct an evaluation.  However, the Court ordered expert is usually given more deference at trial in terms of his or her opinion.

To schedule a free initial office consultation to discuss the valuation of a business in your divorce, please contact us at 414-258-1644 or visit us at Nelson, Krueger & Millenbach, LLC for further information.

-Alison H.S. Davis

Types of Family Actions of Wisconsin – Divorce and Alternatives

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In Wisconsin, there are three actions that affect a marriage: divorce, legal separation and annulment.  All three actions serve to end or separate a marriage.

The legal basis for a divorce is that one or both of the parties must testify that the marriage is “irretrievably broken.”  Once a 120 day waiting period passes, a Judgment of Divorce can be granted that terminates the marriage.  After six months, the divorced parties are free to remarry.  In a divorce case, property and debt is divided, maintenance (alimony) is determined, and if there are minor children, custody, placement and child support is decided.

A legal separation is similar to a divorce, except that the legal basis is that there is a “substantial breakdown of the marital relationship.  Parties must also wait 120 days before a Judgment of Legal Separation can be granted.  Like a divorce case, property and debt is divided, maintenance (alimony) is determined, and if there are minor children, custody, placement and child support is decided.  The significant difference is that a legally separated couple cannot ever remarry, unless the Judgment of Divorce is granted at a later date.

An annulment may be granted if the Court determines that the marriage was prohibited from the start (due to age of a party, incompetence, influence of drugs/alcohol, one party was already married) or that there was a “fraud to the essentials of the marriage.”  An annulment means that the marriage never occurred.

To schedule a free initial office consultation to discuss your divorce or alternatives, please contact us at 414-258-1644 or visit us at Nelson, Krueger & Millenbach, LLC for further information.

–Alison H.S. Davis

Does It Matter Who Files For Divorce in Wisconsin?

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Wisconsin is a no fault state.  This means that the only ground for divorce is irretrievable breakdown and all fault issues are largely irrelevant as to the divorce itself.  Therefore, it does not matter who files or initiates the divorce action in Wisconsin.

Further, there is really no advantage as to who files a divorce action.  There are consequences, however.  For example, the person who files the action, known as the Petitioner, has to pay the court filing fee which is close to $200.00.  Furthermore, the Petitioner is typically responsible for the preparation of the majority of the paperwork throughout the action which could possibly result in additional attorneys fees.

However, sometimes there is no choice but to file.  If a spouse is disposing of assets, refusing to pay bills, being verbally or physically abusive or engaging in other harmful activities, it is time to consult an attorney to discuss filing for divorce.

To schedule a free initial office consultation to discuss filing for divorce, please contact us at 414-258-1644 or visit us at Nelson, Krueger & Millenbach, LLC  for further information.

 

What If I Do Not Agree With the Guardian ad Litem’s (GAL) Recommendation in Wisconsin?

nelsonda Custody and Placement , , , , , ,

When a Guardian ad Litem (GAL) makes his or her recommendation one parent is not going to be happy with the outcome.  If you are have received a less than favorable recommendation, don’t panic.  The GAL is not your judge and accordingly, will not be rendering decisions in your case.    You need to remember that the recommendation of the GAL becomes his or her “client” and therefore he or she needs to present evidence to support it.  Just like your lawyer needs to present exhibits and witnesses to support your position, the GAL needs to present evidence and witnesses to support his or her recommendation.  While judges do give GAL recommendations great weight, it is against public policy to simply rubber stamp the recommendation without a full hearing. 

The GAL should expect that a parent will respectfully challenge him or her by asking the basis for the recommendation.   The litigants have a right to see the documents and talk to the people who were the reason for the recommendation.   You also have to remember that your attorney will be afforded the opportunity to cross examine the GAL’s witnesses at trial. Therefore, if you feel that a GAL’s witness made an error your attorney can rectify that error at trial, if not before. 

It is also important to remember that a GAL should not make a final recommendation until the completion of trial.  Therefore, any recommendation made prior to trial is a “preliminary’ recommendation.   You have the ability to change the GAL’s recommendation by heeding his or her advice prior to the start of trial.  

–Rebecca K. Millenbach

What is a Guardian ad Litem in Wisconsin?

nelsonda Custody and Placement , , , , , , ,

When parents cannot reach an agreement regarding custody and placement of their children in family cases in Wisconsin, the Judge will appoint a Guardian ad Litem (or GAL. for short) to represent the best interests of the children.  The GAL is a neutral attorney selected by the Judge in a divorce, paternity or post-judgment case to advocate for the best interests of the children.  The Judge will make orders regarding the payment of GAL fees which is generally an equal division.  GAL’s bill for the time spent working on a case based on hourly rate determined by the Judge.

A GAL will review evidence and interview witnesses, including the parents, children themselves, medical professionals, teachers, etc., to form a recommendation regarding the custody and placement of the children.  This recommendation is based on what the GAL determines to be in the best interest of the children.  The recommendation is shared with the parents and the Court.  Often, this recommendation is helpful to the parents in reaching an agreement settling custody and placement issues prior to a Trial.

If the parents are unable to reach an agreement after receiving the GAL’s recommendation, the Court will schedule a Trial during which the Judge makes an ultimate decision regarding custody and placement of the children.  The GAL participates in the trial as an advocate for the best interests for the minor children.

For further details, please see us at Nelson, Krueger & Millenbach, LLC  or contact us for a free initial office consultation.

–Alison H.S. Davis

Hiring an “Aggressive” Attorney

nelsonda Divorce Attorneys, General Divorce , , , , , ,

Whether you have finally decided to file for divorce or your spouse has just had you served with papers, the next step is to select your lawyer. You are scorned and upset and you want an attorney that will fight to the bitter end for every penny, no matter what the cost. Whether it is your assets or your kids, you want an attorney that will be aggressive, unrelenting and strong. An attorney that will fight for what you want and not stop no matter what the financial or emotional cost. You have to ask yourself, though, is this really what you want?

There are many attorneys that will fit into this mold and take advantage of your vulnerable situation. When selecting an attorney you need to make sure you have an attorney who is not only a tough advocate but also an attorney who will advise and counsel you. Too often the aggressive “pitbull” attorney will fight without knowing what exactly he or she is fighting for. In a tenuous situation, such as a divorce, parties need to stay focused on the final goal and make sure that goal is realistic. A fight just to fight may result in additional trauma to you, your kids and your pocketbook.

When searching for the right attorney you need to find an attorney who understands the law and will not lead you astray with unrealistic expectations. Attorneys who are willing to zealously advocate for your position, but are strong enough to advise you when your position will not provide you with the result for which you seek. Too often litigants and their attorneys who take too strong arm approach to divorce negotiations which only ends up backfiring. The cost may be more than you can afford.

A good attorney is going to understand your goals, guide your expectations and help facilitate a settlement. A good attorney is going to understand when a settlement is not possible and it is time to prepare for litigation. So when looking for that “aggressive attorney” make sure that the aggressiveness does not come at the expense of placement with your kids or their college education fund.

-Rebecca K. Millenbach

Can I Take Back My Maiden Name in a Divorce in Wisconsin?

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Yes!  You can take back your maiden name in a divorce in Wisconsin.  Upon your request, the court can restore you to any former surname.  At the time of the final judgment of divorce, you will be asked if this is your request.  If so, the judgment of divorce will state that you are restored to your former name.  This is completely your choice – your ex-spouse has no input into this decision.

Sometimes, women want to hyphenate their maiden name with their current name.  Some judges will allow this but some will not.  It will really be up to the court in your particular case.

However, please be aware that you have to do all of the work if you change your name.  The judgment will simply award you the use of your former name.  It will be up to you to change your name on everything including your driver’s license, bank accounts, social security, etc.  You will need your actual divorce judgment (Findings of Fact, Conclusions of Law and Judgment of Divorce) to effectuate the change in most cases.

–Teri M Nelson

Can I Keep My Inheritance in a Divorce in Wisconsin?

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This is a question we often hear in a divorce action.  Inherited and gifted monies are exempt from division in a divorce in Wisconsin.  If you have kept these funds separate, in your own name, there is a high probability that you will be able to keep any gifts or inheritances in a divorce.  Sometimes, the court can divide these funds in unusual circumstances for “equitable reasons” but that is a fairly rare occurrence.

However, disputes arise when inherited or gifted funds have been “co-mingled” into a marital asset.  For example, if the funds were deposited into a joint account or were used to purchase a marital home.  In these situations, the nature of the funds have been transmuted into a marital asset.  Often, the individual receiving the inheritance or gift wants those funds back at the time of the divorce.  The current state of the law on this topic is that there must be “donative intent” on the part of the spouse who received the inheritance.  In other words, is there sufficient evidence that the spouse intended to give his or her inheritance to the marriage or to the other spouse?

This inquiry is very fact specific.  The court would look at the details of the marriage and the actions of both parties to make this determination.  In reality, however, family court is a court of equity and strives to arrive at a result that is fair and equitable to both parties.  Depending on when the inheritance was received and where the funds were spent or deposited, the court will sometimes give credit for co-mingled inherited or gifted funds.

For further details, please see our website at Nelson, Krueger & Millenbach, LLC or contact us for a free initial office consultation.

–Teri M Nelson

New Protections in Wisconsin for Domestic Violence Victims

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Governor Scott Walker signed several new bills into law this week which grant greater protection for domestic violence victims.

One law- called the TraJa Act- was named after Tracy Judd and her daughter Deja who were murdered in a domestic violence incident in Madison in 2009.   This law makes a third domestic violence conviction within 10 years a felony and gives judges the ability to impose harsher penalties on repeat domestic violence offenders.  It also expands the definition of a repeat offender as someone who commits domestic violence within 72 hours of a prior domestic violence arrest.  Another bill which was signed also allows judges to treat committing an act of domestic violence in front of a child as an aggravating factor during sentencing.

Gov. Walker also signed into law a measure which allows victims of domestic violence and stalking to keep a name change confidential.  Current law requires that public notice be published prior to a name change.

For more information about how to obtain restraining orders to protect against domestic violence, please see our website.

How to Prepare for a Divorce

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We tell our clients that a little pre-divorce planning goes a long way.  Here are some of the steps you can take to prepare for a divorce and possibly save yourself time, stress, money and attorneys fees.

  1.  Gather all of the relevant financial documentation that you can.  Documents tend to disappear or become inaccessible after a divorce is filed.  After all, your spouse will need these too.  If you can obtain copies and keep them in a safe location or give them to your attorney right away, you will be steps ahead in your divorce.  Supporting documentation for all of your and your spouse’s income, expenses, assets and debts are the most important.  For example, recent paystubs, W-2’s, tax returns, credit card statements, retirement account statements and bank statements are most helpful.  Copies of the titles to your real estate, mortgage statements and real estate tax bills are also necessary.  Also collection statements, whether recent or not, regarding any other asset or debt.
  2. If you do not have access to these documents or your spouse has not told you where they are, do a little digging.  Anything you can find is helpful.  You are entitled to all of this information whether your name is on the asset or debt or not.  Do not feel like you are doing something wrong by accessing this information.  If you have to attempt to “chase” your spouse for this information either directly or through his or her attorney, it is only going to cost you attorneys fees in the end.
  3. Go see an attorney!  Most attorneys will offer free initial consultations.  Don’t pay for a consultation. There are plenty of experienced attorneys who will see you for free.  You should also meet with more than one attorney.  As with anything, it pays to shop around.  You need to feel comfortable with that person and with taking their advice.  Therefore, you need to hire the right attorney for you.
  4. Change your passwords!  All passwords, whether for email, bank accounts or Facebook, should be changed even if you do not think your spouse knows what it is.  We have had many situations where damage has been done simply because the other spouse knows your password or it somehow is retained on your computer.
  5. Get a copy of your credit report.  Again, you are entitled to this information and you know all of the debts that need to be addressed.  Many times you will find debts of which you were not aware.  This is extremely important information to have.
  6. Protect your assets!  Discuss with your attorney whether you should close accounts or withdraw funds from an account.  Contact your bank or financial institution to find out if you can freeze an account pending a divorce.
  7. Close out joint credit cards, if possible, and/or obtain your own credit cards.
  8. Open your own bank accounts.  Change your direct payroll deposit to your own account.
  9. Discuss with your attorney whether you should or need to change your withholdings from your paycheck and whether you should stop/reduce your 401(k) contributions.  Your spouse will still receive one-half of your contributions that you make during your divorce and you may need the extra disposable income until the divorce becomes final.
  10. Take pictures or make a videotape of all of your personal belongings, furniture, etc.  Take an inventory, especially of items of value, and gather receipts or appraisals for those items if available.  This way if items are disposed of or taken, you have proof of what existed prior to the divorce being filed.
  11. Keep a log or journal of all important events, especially if related to children.  It is difficult to remember details, especially in times of stress, and those details may be important to your case later on.
  12. Consider counseling.  You are seeking to end a troubled marriage and are making a major life change.  Divorce is not an easy process and you may need assistance on a variety of different levels.

For further details, please see us at Nelson, Krueger & Millenbach, LLC or contact us for a free initial office consultation.

–Teri M Nelson

Divorce Headlines – Week of April 2, 2012

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In researching blog topics this week, I ran across two headline cases.  Both deal with a divorce in a unique way.

The first headline was that Heidi Klum filed for divorce from Seal.  Celebrity divorces are nothing new.  They fascinate us because they are windows into the lifestyles of the rich and famous.  Money can’t buy happiness – whether in life and marriage.  In fact, the stress of a high-profile life seems to make success at marriages even more difficult than that of most people.  This case, in particular, seems to be attracting interest only because the couple seemed happy with no outward signs of trouble.  They still are refusing to release details, for the sake of their children.  Thank goodness some celebrities still have integrity and case about the welfare of their children above all else.

The second headline which I found is controversial in the extreme.  A Maryland court denied the request for a divorce to two lesbians based on their same-sex marriage.  Maryland does not allow same-sex marriage but the couple was married in California during the period when same-sex marriage was legal.

Without commenting on the specifics of this issue, I will only say that the law often does not keep up with social developments or even technological developments, for that matter.  When sweeping changes occur in society or technology, it often takes years for the courts to catch up.  In the interim period, we have a sort of limbo in which individuals get caught up with no way to address specific issues.  Unfortunately, the victims of this can sometimes be children such as when surrogacy or in vitro fertilization was in its infancy.

In Wisconsin, we tend to be more conservative in our laws, especially as they relate to divorce and family law.  As an experienced divorce attorney at Nelson, Krueger & Millenbach, LLC, I would say that the family law courts in Wisconsin in particular tend to be conservative in their rulings.  This avoids these types of ground-breaking legal issues which often take years to resolve.