Year: 2013

Holiday Placement with Children

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With the holiday season upon us, we often see placement disputes.  It is important to follow your judgment of divorce or paternity when it comes to holiday placement.  The holiday schedule set forth in the court order takes precedence over regularly scheduled placement and should be followed except upon mutual agreement.

If you do not have a specific holiday schedule, the courts typically find that holidays should alternate which means whoever had the last holiday has the next upcoming holiday.  Christmas Eve and Christmas Day are separate holidays and each parent should see the children on one of those days.  The same is true with New Year’s Eve and New Year’s Day.  However, if the family of one parent has a typical tradition (i.e. always Christmas Eve), then that parent should receive that holiday assuming the other parent also doesn’t have family traditions on that day.

Please keep in mind that in disputes, the children are the ones who suffer.  They have the right to spend holidays with both parents and to see and spend time with both sides of their families.

Happy holidays to you.

Wisconsin Legislators Taking on the Issue of Revenge Porn

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Revenge Porn refers to the practice of ex-lovers or ex-spouses sending or posting compromising or romantic photos of their former significant other to a (or multiple) third party in order to humiliate that person. This practice has become alarmingly popular on social media networks and electronic communication.

This is something that family lawyers see all too often in cases. Ex-lovers or ex-spouses sparring with each other over social media, and crossing the line of exposing personal and private moments. Most often we see instances where the photographs were consensual photographs when taken, however when the parties break-up, they are used to harm someone. Obviously, this is without consent of the harmed party. While we vehemently advise clients against engaging in this practice for many reasons, there is no current law that deals with this issue.

Wisconsin lawmakers are looking to change that.

Under current law, anyone who possesses, reproduces or distributes an image of a nude person that was captured without that person’s consent faces a felony charge that carries a maximum sentence of $10,000 in fines and three-and-a-half years in prison. This is seen in family law cases of, for example, stalking and restraining orders.

Under the “Revenge porn bill”, anyone who disseminates a nude picture without the subject’s consent, regardless of whether the subject granted consent to capture the image, would be guilty of a misdemeanor punishable by up to $10,000 in fines and nine months in jail. This bill, if signed into law, would prohibit the specific instance discussed above.

On Tuesday, November 12, 2013, the Wisconsin Assembly passed this proposed law with ease. The state Senate will review the Revenge porn bill next, but not until after the new year.

Prohibited by law or not, we strongly discourage ex-lovers and ex-spouses from using private photos against each other, even if they were consensual photos when taken. Participating in revenge porn, or other harmful social media practices could effect custody and placement determinations by the court. Please see our previous blog for more on related social media issues in family law.

How Do You Modify Custody or Placement in Your Divorce or Paternity Judgment?

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Often times the circumstances surrounding the agreements made at the time of your divorce do not remain the same indefinitely. This is especially the case when children are involved.

There are specific time limits that must be followed in order to modify your Divorce or Paternity Judgment accurately. A final judgment may be modified for different reasons at different times. A “final judgment,” for the purposes of requesting a modification, in a divorce proceeding includes the Findings of Fact, Conclusions of Law and Judgment of Divorce and a Marital Settlement Agreement. For a paternity case, it includes the Findings of Fact, Conclusions of Law and Judgment of Paternity.

If you want to modify custody (decision-making rights) and physical placement for your child and it is within two years of the final judgment on your paternity or divorce case, you will need to file a Motion to Modify with the court, and it is your burden to show by substantial evidence that the current custody and physical placement is harmful to the physically or emotionally harmful to the best interest of the child.

After two years has passed from the final judgment, you can file a Motion to Modify with the court if there has been a substantial change of circumstances since the entry of the last order affecting legal custody or the last order substantially affecting physical placement , and modifying the current order is in the best interest of the child.

A “substantial change of circumstance” can include, but is not limited to: a considerable change in either spouse’s income or employment status, a new health problem which impacts the ability to work, moving to a new location, and substance abuse problems or criminal activity.

If your final judgment is no longer current and new circumstances warrant a modification, please contact Nelson, Krueger and Millenbach, LLC, to discuss your case with an experienced family law attorney.

What if I Married my Spouse Twice? How Does that Affect Maintenance in Wisconsin?

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Maintenance, or spousal support, is most often ordered by the court from one spouse to another when one spouse was financially dependent on the other during the marriage.

Typically, maintenance is intended to be “rehabilitative” and used to help the financially dependent spouse work towards a place where he/she can support his/herself.

Factors that the court considers when determining the appropriate maintenance amount are the following:

  1. The length of the marriage.
  2. The age and physical and emotional health of the parties.
  3. The division of property made in the divorce.
  4.  The educational level of each party at the time of marriage and at the time the action is commenced.
  5. The earning capacity of the party seeking maintenance, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to find appropriate employment.
  6. The feasibility that the party seeking maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and, if so, the length of time necessary to achieve this goal.
  7. The tax consequences to each party.
  8. Any mutual agreement made by the parties before or during the marriage, according to the terms of which one party has made financial or service contributions to the other with the expectation of reciprocation or other compensation in the future, where such repayment has not been made, or any mutual agreement made by the parties before or during the marriage concerning any arrangement for the financial support of the parties.
  9. The contribution by one party to the education, training or increased earning power of the other.
  10.  Such other factors as the court may in each individual case determine to be relevant.

Length of the marriage is one of the main factors used in determining maintenance, so it prompts the question, what happens if you marry the same person more than once? This may seem like a unique circumstance, but in our line of work we see situations like this more often than you would think.

When parties have been married to each other more than once, the court can look at the total years of marriage when determining the maintenance amount granted. The court may look to current conditions in determining maintenance, as it is not legally bound by the terms of the first divorce.

Please note, if an ex who is receiving maintenance payments (“payee”) remarries another person who is not a former spouse, maintenance ends automatically under Wisconsin law if the person obligated to make payments: (1) has proof of remarriage, (2) requests that the court vacate the current maintenance order, and (3) sends a copy of the request to the payee.

If you have any questions regarding maintenance, please contact our office at 414-258-1644 to schedule a free initial office consultation or visit our website for more information.

How Do I Get Child Support Through the Wisconsin Support Collections Trust Fund (WISCTF)?

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When a party is first awarded child support through a Court Order, there are often many questions regarding how and when those payments will be received. The bottom line is that once the process is underway support payments are generally received seamlessly. Frustratingly, however, there can be some delay in receiving the first payment.

If you are under an order to receive child support through the Wisconsin Support Collections Trust Fund (WISCTF), the payor’s employer will be sent an income assignment. The income assignment requires the employer to withhold the appropriate amount of child support as ordered by the Court. This process can take a few weeks to begin. In the meantime, it is the payor’s obligation to send child support payments directly to the WISCTF until child support is withheld by the income assignment from the payor’s wages.

Click here for a link to the Wisconsin Department of Children and Families website provides insight into the anticipated time line for you to expect child support payments to begin through the WISCTF.

In some counties, there is a fee for an income assignment to be generated and sent to the payor’s employer. Please be sure to confirm whether or not you need to pay any fees in order for an income assignment to be processed. Without an income assignment being sent, the payor is still obligated to pay support to the WISCTF, but it will not be withheld from the payor’s income.

Once an income assignment is in effect, the next question is: How do I receive my child support? There are a number of options to receive support which include a direct deposit into your checking or savings account or a Child Support Debit Card in your name.

This link to the Wisconsin Department of Children and Families website provides helpful information to determine what option to receive child support is best for you.

While a little patience is often needed when an order is first made for child support, the process is designed to make sure that child support is paid timely, that accurate records are kept regarding the payment of such support and that you receive child support as ordered by the Court. If you have questions regarding the receipt or payment of Court ordered child support, please contact your attorney or the child support enforcement office in the county in which your child support was ordered.

Same Sex Marriage in Wisconsin

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Recently, the U.S. Supreme Court addressed the issue of same sex marriage in two high profile cases. The results of those cases has changed the laws regarding same sex marriage in many jurisdictions throughout the United States and how our federal government views those marriages.

In Wisconsin, our laws continue to prohibit same sex marriage. The impact, however, of the recent U.S. Supreme Court decisions has made issues involving rights of many married same sex couples in Wisconsin more complicated and confusing when it comes to their federal rights.

In one of the decisions, the U.S. Supreme Court struck down the provision of the Defense of Marriage Act (1996) (“DOMA”) that says that marriage must be between a man and a woman. As a result, the federal government cannot refuse benefits to same sex couples who are legally married and reside in a state that allows the same.

Unfortunately, each federal agency/program has their own rules to grant rights and benefits to married same sex couples who reside in states which do not allow such marriages. As a result, there is a lot of inconsistency as to how federal rights and benefits are awarded to same sex couples who are legally married in one state, but reside in a state that does not recognize such a marriage. The decision to award such federal rights and benefits is then based on whether the agency/program follows the “Place of Domicile” rule or “Place of Celebration” rule. It is important for such couples to know their rights.

Presently, there are 13 states that allow same sex couples the right to marry. It is common, however, for couples to move between states or marry in one state and live in another. As a result, there are many couples whose legal status and right to benefits come into legal question.

While Wisconsin does not allow same sex marriage, if you are married legally in a state that does allow such a marriage and you then move to Wisconsin, it is important to know your federal rights as a spouse. Further, spouses should consider registering with the Wisconsin State Domestic Partnership Registry which currently entitles those spouses to 43 rights within Wisconsin, including for example, the right to spousal privilege in legal proceedings, Family Medical Leave Act benefits, etc.

Married same sex couples in Wisconsin should consult with appropriate legal counsel to address estate planning issues, issues involving common children, and other property related issues.

Should such a marriage deteriorate to the point of divorce, it is also important to consult with a family law attorney knowledgeable in this field to discuss legal options to terminate a marriage even if the State of Wisconsin does not legally recognize that marriage.

Collecting Past Child Support for Adult Children in Wisconsin

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I was recently asked if an adult child could go back after their father for child support even though they are now an adult. Their mother never wanted to but she had died and the adult child (who was 45) wanted to try to make their father pay child support for all of those years. I also had a similar question from a 23 year old who just found out who her biological father was and wanted to know if he could be adjudicated as her father. Both of these adult children wanted to know if they could collect past child support.

In Wisconsin, the law is clear that a paternity action must be commenced prior to a child’s 19th birthday. Child support typically commences from the date of service of a valid legal paternity action or an adjudication of paternity.

Also in Wisconsin, the court cannot order retroactive child support, whether in a paternity or divorce case. The soonest the court can order or modify child support is from the date of service of a valid action or a motion. In other words, under the scenarios above, neither of those adult children could obtain the relief they wanted to under the laws of the State of Wisconsin nor could their father be ordered to pay past support.

If, on the other hand, there had been an order for child support entered while the child was a minor that had never been paid by responsible parent, that order can be enforced and the past due support collected for up to 20 years after the termination date of the child support order. In addition, in the aforementioned situation, the person looking to collect past child support can also convert an arrears (past-due child support) order to a money judgment after the date the child reaches the age of majority to give him or her more options for collecting.

Contempt of Court in Wisconsin

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If a party intentionally and without legal justification disobeys a court order, this is called being in contempt of court and the law provides a remedy through a finding of contempt.

In family or divorce actions, the most common examples of contempt are when one party fails to pay child or spousal support or if one party refuses to honor the custody and placement (visitation).

In Wisconsin, to address or obtain relief from the court for the contempt, the party who is harmed by the violation of the court order must file a Motion with the court describing the contempt in order to have the matter heard. This Motion must be personally served on the violator at least five (5) business days before the date of the hearing.

If the violator is found in contempt, the court has the authority to order the violator to correct the contempt and also to order sanctions or penalties as a result of failing to comply with the court order. This may involve more than one hearing because the court must allow the offender an opportunity to obtain counsel. The court must also set “purge conditions” which is an opportunity to purge or correct his or her contempt by setting tasks to be completed or payments to be made in order for the violator to avoid further punishment. Some of the sanctions available to the judge are payments, wage garnishment, attaching or seizing assets or even jail time.

The court also has broad discretion to come up with other, more creative solutions to force the violator to comply with the terms of the decree. For example, if a party was court ordered to sell the marital residence by a certain date but did not do so, the court may give the violator a certain period of time to sell the home in order to avoid a finding of contempt. If the violator is successful in selling the home in the time ordered by the court, the violator completed the appropriate purge condition and would not be found in contempt.

The harmed party may also ask the court to order that the violator be responsible for paying the harmed party’s attorneys fees and other expenses associated with the Motion. The court will often do so as a way to punish the offender.

It is important to note that if a violator is found not to have an ability to pay or comply with the court order, for whatever reason, then he or she cannot be found in contempt. For example, if someone becomes ill and cannot work, then they are not in contempt for failing to pay support because they do not have the ability to pay. Or, if someone tries to sell a home pursuant to court order but cannot do so, they are not in contempt because they did try to comply with the order.

If you are in a contempt situation, whether you are the party seeking relief or the party who is out of compliance with the court order, it is best to consult with an experienced family law attorney to assist you for the best possible results. For more information or a free initial consultation if you are in our practice area, visit our website at www.nkmfamilylaw.com or contact us at 414-258-1644.

Requirements for Service in Family Law in Wisconsin

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In the law, “service” is a term for providing formal notice of a lawsuit, court hearing or document to another person. Depending on the action that is being filed, there are different methods and very strict time limits by which you must have the other party notified, or served.

Service is critical in all cases, because if you do not serve the other party within the correct time limits and using the correct method, the court cannot hear or come to a decision on your case. There are two types of service: personal service and service by mail.

Personal service can be accomplished by the following methods:

(1) Admission of Service– a form where the other party may admit that they were served once they receive a copy of the forms

(2) Service by the Sheriff’s Department

(3) Service by the Private Process Server

(4) Service by someone who is over 18, a resident of Wisconsin and is not a party to the action.

(5) As a last resort, you can complete service by Publication. You MUST show that you have attempted one of the four methods above before resorting to publication and usually the court must approve this method first.

If you are serving something by mail, you must provide proof by either signing a sworn Affidavit of Mailing in the presence of a Notary Public and giving a copy to the Court OR by some type of mail receipt such as certified mail.

Below are some of the different family court actions that are filed, the type of service required for each action, and the time limits in which the action must be served:

1. Summons and Petition for Divorce/Legal Separation:  Must have personal service and must be served within 90 calendar days from the date the divorce/legal separation was filed

2. Order to Show Cause and Affidavit (i.e. for Temporary Order): Personal service is required and must be served not less than 5 business days before the date of the hearing or as otherwise ordered by the court.

3. Response and Counterclaim:  Can be served by mail and must be filed within 20 calendar days after the date of service.

4. Order to Appear:  Must be personally served and not less than 24 hours if the other party lives within the county the action is filed OR not less than 72 hours if the other party does not live in the county the action is filed, but in the State of Wisconsin.

5. Notice of Motion and Motion:  Contempt motions must be personally served but all other motions can be served by mail.  Service must be not less than 5 business days before the date of the hearing.

6. Petition to Enforce Placement:  Personal service is required not less than 5 business days before the date of the hearing.

If the other party is represented by an attorney, copies of all documents must be sent to the attorney.  If service by mail is required, the document is to be mailed to the attorney, not to the party.

The Effect of Remarriage on Child Support and Maintenance

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If a party gets remarried following a divorce with children, the court will not consider the new spouse’s income when determining child support nor can the court order the new spouse to pay towards child support or maintenance.

Child support is based upon a parents’ income, the time the children spends with each parent, and whether a parent is financially supporting other children. The court may modify child support based upon a substantial change of circumstances sufficient to justify revision of the current child support order.

The court considers the following as a “substantial change of circumstances:”

1. Change in the payer’s income
2. Change in the needs of the child
3. Change in the payer’s earning capacity
4. Any other factor the court determines is relevant.

Based on the above, remarriage is not sufficient to show a substantial change of circumstances warranting a revision of child support.

However, there are limited circumstances in which a court may consider the fact that a party has additional income available to him or her through a remarriage. As cited above, subsection 4 is a “catch-all” provision that allows the court discretion as to the factors it weighs when determining child support. Therefore, for example, if a party claims he cannot afford to pay additional child support, the court may determine his general economic circumstances have been improved due to a remarriage and additional spousal income as a reason to modify child support. Or, if a payee claims that she needs additional support because she cannot meet her budget or the needs of the children, the court may consider the fact that a new spouse contributes to that budget when reviewing same.

Maintenance is entirely different. For maintenance, remarriage is a determining factor that stops maintenance payments to the payee if the payer: (1) has proof of remarriage, (2) requests that the court vacate the current maintenance order, and (3) sends a copy of the request to the payee. Remarriage of the payor does not affect maintenance payments at all and is not grounds for the payee to seek additional monies.

The bottom line: a new spouse has no obligation, either directly or indirectly, to support a child of a former marriage/relationship or to a former spouse.  There is no direct effect of remarriage on a child support or maintenance order.

How To Divide Retirement Accounts in a Divorce

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When divorcing, retirement accounts are often divided between the parties. In all cases where a retirement account needs to be divided, some type of affirmative action after the divorce is required to do so. Unless there are unusual circumstances or the parties agree otherwise, the account holder should NOT be required to cash out or liquidate his or her retirement account, either in whole or in part, to pay the other party what they are entitled to.

Many people make the mistake of assuming that this division will happen automatically, especially if they do not have an attorney. This is absolutely not the case. There are situations where, years later, the account holder retires and the other party wonders why they have not begun receiving payments. In fact, there was a recent case in Minnesota where the Wife lost her rights to the Husband’s pension because she failed to take any action to divide the account after the divorce. (For more information, see article here.)

There are several different types of retirement accounts which are divided in different ways. The most common type of retirement account is a “qualified plan.” The definition of qualified is set forth in federal law. However, these are most commonly the types plans such as 401(k)’s, 403(b)’s, deferred compensation or pensions. In order to divide one of these accounts, there needs to be a special order prepared called a Qualified Domestic Relations Order which is commonly referred to as a “QDRO.”

The processing of a QDRO can be complicated and lengthy. Essentially, a QDRO is prepared by an attorney or an outside firm who is hired for same. In Wisconsin, attorneys rarely prepare QDRO’s and usually hire an outside financial firm to do so. The QDRO is often sent to the plan first for pre-approval. Eventually, either before or after this pre-approval process, the QDRO is sent to the court for signature. Once the court signs the QDRO, a certified copy of this QDRO is required and then sent to the Plan for processing. The cost of the preparation of the QDRO is usually shared equally, at least in Wisconsin.

There are other plans which are non-qualified but which can also be or must also be divided by QDRO or by a different type of Order prepared separately from your judgment of divorce. Most often, for example, this applies to a TSP, FERS or other government retirement account.

Retirement accounts such as IRA’s, Roth IRA’s or annuities can often be divided without a QDRO. Typically, just the judgment of divorce and an internal form signed by the account holder is all that is necessary. The account holder should contact his or her Plan to determine what is required in these cases.

When a retirement plan is divided properly, there are no tax consequences or penalties to either party. Further, the receiving party is not dependent on the plan holder to pay him or her any monies that they are entitled to receive.

If you are divorcing or have divorced, it is imperative that you take all necessary steps to divide any retirement accounts awarded to you. If you don’t have an attorney and don’t know how to do this, it is well worth your time and money to hire an experienced divorce attorney to assist you with the division. If you do have an attorney, make sure that the division is done after the divorce. If not, you need to follow up with your attorney or hire another attorney to do so. Ultimately, it is your responsibility to make sure you that you receive what you are entitled to pursuant to the judgment of divorce.

If you are already divorced, it still may not be too late to divide a retirement account if this has not already been done.  However, the longer you wait, the more likely it is that there will be problems or that you could lose your rights altogether.  Contact an attorney immediately if you find yourself in this situation.

If you have any questions or concerns or need assistance in dividing a retirement account, please contact Nelson, Krueger & Millenbach, LLC (formerly Nelson & Davis, LLC) at 414-258-1644 to schedule a free initial consultation

Can my Child Decide Who to Live With in Wisconsin?

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Many parents want to know if their child can decide who they want to live with in a divorce or in a placement dispute.  Or, they ask at what age a child can decide who they want to live with.  In Wisconsin, the answer to that question is that children can never make the decision as to who they want to live with, at any age.

There are many reasons for this.  Primarily, however, the courts have determined that children are not emotionally mature enough to make such a momentous decision.  Further, parents should not be placing their children in the middle and forcing them to choose between two parents who they love.

Wisconsin statutes do provide that the judge must consider the wishes of the child when making a determination on placement.  However, that does not mean that children get to decide or make that decision.  Ultimately, it is up to the parents or the courts to make a placement decision.

The older the child gets, the more weight their wishes are given.  This is especially true for a child who is mature and/or has valid or legitimate reasons for feeling the way that they do.  However, parents often mistake strong feelings for maturity.  This is not the case.  I have had cases where the court does not listen to very immature teenagers (age 17) who want to live with one parent or the other for invalid reasons (a parent is too strict or a parent is trying to influence them).  I have also had cases where the court does listen to a mature younger child (age 12) who has very valid reasons for wanting to live with one parent over the other (abuse, alcohol, neglect, etc).

More importantly, if a parent is trying to influence their child too much or drag their child into a divorce or placement dispute, this will be construed negatively against them.  Parents want to be very careful about this or it could be used against them in a placement dispute.  Children, especially teens, often have strong feelings about a lot of things but that changes frequently.  Despite what they may say, however, they do not want to be placed in a position of having to choose between their parents.  If there are legitimate concerns about the other parent, such as neglect or abuse, then this should be pursued.  However, if the sole reason to change placement is simply because that is what the child allegedly wants, this is most likely not going to succeed in Wisconsin.

Sometimes, there is a situation where a child simply will not go with the other parent for placement.  The courts usually feel strongly that you are the parent and your children must listen to you and follow a court order.  After all, children do not get to decide whether to go to school, do their homework or a myriad of other tasks that they must do.  Parents must be able to control their children.  If the relationship between the child and the other parent has broken down to the point that the child will not go for placement, then counseling is in order to repair that relationship.  The reasons for this breakdown are important, of course, and the court will take those reasons into consideration.  Ultimately, however, the child does not get to decide whether to follow a court order or not.  Understandably, this often puts the placement parent in a difficult position.

If you have questions or concerns about a placement dispute, please feel free to contact us at 414-258-1644 to schedule an appointment.  We offer free initial consultations and can review the facts of your case to evaluate your placement dispute.

Family Law from the Voices of Students

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I recently spoke to a group of high school seniors during their Government class. The class was studying a unit on courts, attorneys, judges and other legal proceedings, so a friend of mine thought it would be informative for his class to hear from a practicing attorney.

I remember the attention I paid (or lack thereof) when I was in high school to a guest speaker, so I went in with the expectation that I would do forty-five minutes of speaking and maybe interest one student enough that (s)he would ask a question regarding family law. Well, I was wrong.

The students were between the ages of seventeen and eighteen and were surprisingly intrigued by what I do. So much so, that I was asked many questions that I did not have time to answer. I quickly realized as we began our discussions that it is not just people who come in to our office who deal with family law issues on a day-to-day basis. Even though I was speaking to students, family law is a relatable topic to them as well. I found it very interesting as to which topics interested the students.

The most common questions I answered were related to situations regarding “friends” of the students. Below are two of the examples of the questions I answered:

1. My friend got someone pregnant and even though he has a positive paternity test showing he is the father, his ex-girlfriend won’t let him see his kid. What can he do so he can have some time with his kid?

Depending on if the child or mother are receiving aid from the state (for birthing expenses, food stamps, and otherwise), the State may begin a paternity action on its own motion. However, if Paternity has been established through DNA testing and the State is not involved, then the father may file an action with the court to establish paternity. Either way, the father and mother are required to attend an initial paternity hearing where temporary orders would be made regarding placement, custody, child support, past-due child support, birthing expenses, health insurance coverage, tax exemption, and the child’s last name.

A lot can happen at an initial hearing, so I recommended preparing and progressing through these proceedings with the help of an attorney. Many young parents meet with attorneys after an initial paternity hearing, and often times it is as a reaction to receiving a negative ruling in Court. As you may suspect, it is much harder for an attorney to backtrack and modify “negative orders” then it is for someone to get an attorney at the beginning stages, where the attorney can be proactive and prepare a client correctly for the first and all hearings in these types of matters.

2. My friend’s parents got a divorce because my friend’s Mom cheated on her Dad. Her Dad keeps telling her Mom “I’m going to take you to the cleaners, the Judge is going to give me everything because you were unfaithful to me!”

It is very common, as a child of divorce, to experience and be witness to high emotions when your parents marriage is deteriorating due to one parent, or both, having an affair.

Wisconsin is a no-fault state, and therefore the wife’s affair is not something the Court will prioritize, or sometimes even consider, in making decisions on his divorce. In order to get a divorce in Wisconsin the court only needs to find that the marriage is “irretrievably broken,” and that the wife is not currently pregnant.*

The only possible exception to this is when there are children involved and the parents are arguing about placement and custody (legal decision-making) of them. In this instance, a parent may argue that the children are being harmed by a new relationship. Then, a Guardian Ad Litem–an attorney who advocates for the “best interests of the children”–will likely be appointed by the Court. That attorney may take into consideration the wife’s behavior if, for example, it is not in the best interests of the children.

The lesson I learned from my experience is that teens are very interested in family law and that they are as affected as much, if not more, than adults by a divorce or paternity.

 

-Madeleine Thompson-Davies

*Please see our blog on marital presumption in Wisconsin (here) to better understand why the wife must not be pregnant at the time of divorce.

 

Avoiding Financial Mistakes in Divorce

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It is no secret that many couples end their marriages in divorce in the United States. Roughly one in two marriages end in divorce, and separation is much more acceptable that it once was. Even with these realities, actually going through a divorce is never an easy event.

Emotions can cloud one’s judgment and result in an attempt to avoid further conflict. As a result, it may be appealing to rush the process along and hastily agree to a divorce settlement without thoroughly and carefully reviewing it. Unfortunately, rushing a divorce settlement can have a disastrous impact on one’s financial future.

Divorce is not just the end of a romantic relationship; it is also the end of a financial partnership. Those going through a divorce need to keep their financial future in mind and take the time to make sure that their divorce settlement properly reflects their needs.

Tips to financial security during and after divorce

Some steps that can help people going through a divorce to maintain their financial footing include:

  • Keeping appraised of all finances
  • Keeping a copy of important documents
  • Keeping the future in mind

It is important to keep up to date on one’s financial standing. If still in a marriage, try to avoid allowing one spouse to have total control over all finances. If filing for or considering a divorce, take steps to be fully aware of all assets including savings accounts, stocks, business interests and other investments.

It is also helpful to have access to important documents, like tax returns, property deeds and estate plans. If a prenuptial agreement was used, review it and bring a copy with when meeting with a divorce attorney.

In addition, keep the future in mind. Do not attempt to avoid conflict and agree to a divorce settlement without carefully reviewing it. Mistakes can lead to disastrous consequences in the future. If, for example, a divorce settlement includes distribution of a pension, a qualified domestic relations order or QDRO is likely needed. If this document is not included tax penalties may be tied to the distribution of the accounts. Without carefully reviewing the settlement important steps like including a QDRO could be missed.

After the divorce is finalized, confirm that your name is removed from any debts assumed by your ex. If your ex assumed financial responsibility for the family home, make sure your name is off the mortgage.

Navigating through the various laws and considerations required for a fair divorce settlement can be difficult. As a result, if you are considering a divorce or have recently filed divorce paperwork, contact the experienced divorce lawyers at Nelson, Krueger & Millenbach, LLC (formerly Nelson & Davis, LLC) to discuss your situation and better ensure your legal rights are protected.

Can I Stay on My Ex-Spouse’s Insurance After a Divorce or Legal Separation?

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This is a very common question that we often hear in a divorce action.  The simple answer to this question is no.  This has nothing to do with the divorce or legal separation but, rather, the rules and procedures of the insurance provider.  Even if your ex-spouse wanted to keep you on his or her insurance after a divorce, the insurance company will not allow that.

In some cases, the insurance company will allow a legally separated spouse to stay on an insurance plan.  In fact, this is one of the most common reason that spouses would typically legally separate, as opposed to divorce.  However, each plan is different and you have to check with the insurance company.

Pursuant to federal law (COBRA), ex-spouses must be given the choice to stay on the plan for up to 36 months.  COBRA law only applies to employers with more than 20 employees.  If an employer has less than 20 employees, they still sometimes offer continuation coverage at their discretion or some states require same.  If a spouse chooses continuation coverage, it would be at their own cost.  COBRA coverage is often very expensive and you should find out the cost prior to finalizing your action.

Sometimes, your ex-spouse can be ordered to pay the cost of your future health insurance as a form of alimony or maintenance.   However, this would be up to the parties to agree to and/or the court to order.

Health insurance is a very important consideration in a divorce or legal separation.  Make sure you check into all of your options prior to finalizing your action.

To find out all of the consequences of an action for divorce or legal separation in Wisconsin, please contact us at 414-258-1644 or visit our website for more information.

Tips for Protecting Your Privacy After You File For Divorce

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When you file for divorce, there are certain precautionary steps everyone should take to not only begin the process of separating your life with your spouse, but also to help preserve your privacy. Here are some simple tips for protecting your privacy after you file for divorce and what we usually recommend to our own clients.

1.   Change your e-mail password. You should change your password, or get a new e-mail account. Your spouse should no longer be privy to your e-mails. For example, if you hire an attorney, your attorney communication via e-mail is likely something you want to be confidential, so you have to take actions in order to ensure it is. Even if your spouse never had access to your email, the password may be saved somewhere which would allow them to gain access. We have had many situations where we learn later that a spouse has been accessing our clients emails.

2.   Change all online passwords. Don’t stop at just changing your e-mail password or account; change your password on all other online accounts that you shared with your spouse. Again, even if you believe your spouse may not know it, it may be saved or noted somewhere.

3.   Open your own bank account. While your bank accounts are still “joint,” either party listed on the account can withdraw money. Open a new account as soon as you file for divorce so you do not have to worry about your money being withdrawn without your permission.

4.   Get your own credit card. Filing for divorce is the first step in beginning the separation of your life with your spouse. Begin to take steps, such as getting your own credit card, so that you and only you are responsible for your credit going forward. And, by doing so, it prevents your spouse from monitoring your activity or your spending.

5.  Get your own cell phone or transfer your line to your own account. Even though this may cost you money, you will have to do it in the long run anyway. And, if you have your own account, your spouse cannot monitor your usage or check the records of your telephone calls.

6.   “Unfriend” your spouse and your spouse’s family on Facebook. This may seem childish, but it is smart. What you say about your spouse on a public forum, and the pictures that you post of you leading your new “single” life, can be seen by your spouse, your spouses family, and anyone else who you are not careful to “unfriend” or delete.

7.   Backup your important documents, financial information and pictures. Unfortunately, some people react badly to a divorce and lash out to hurt their spouse. We have had situations where files and pictures are deleted or copied. Or, even worse, computers and laptops are intentionally damaged. It is better to be safe than sorry and you should have backups of these items anyway. Save your backups to an online service/cloud drive. Or, save them to a flash drive or external hard drive and keep these somewhere safe.

If you have any other questions or concerns regarding filing a divorce, please contact us at 414-258-1644 to schedule a free initial office consultation.

What If My Spouse Won’t “Give” Me a Divorce?

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“My spouse won’t give me a divorce”.  Whenever I read advice columns in newspapers or magazines, I often run across this question or statement.  I have even heard it in my practice in Wisconsin.

There are two parts to the answer to this question. The first is legal.  In Wisconsin, we have a no fault state.  This means it does not matter if both parties want the divorce or not.  It takes two people to be married so only one person has to testify that the marriage is over and the court will grant a divorce.  This is true in many other states as well.  In fact, some form or the other of a no fault divorce is available in all 50 states at the present time.

Some states require a waiting period in order to obtain a no fault divorce.  In order to avoid the waiting period, those states still require a proof of fault to obtain a divorce.  However, in many of those states, the level of fault necessary is so low or minimal that it is not very difficult to get divorced at all.  The government (courts) simply cannot force people to stay married to one another.

The second part to this answer to this question relates to power and control.  Often, as a threat, a controlling or abusive spouse will say whatever necessary to keep their spouse from leaving.  It is most often in this context that I hear this question.  Again, be assured that if you no longer want to be married, the courts will honor this request.  It is true that your spouse can make the divorce difficult. They can delay and be disagreeable.  They can refuse to cooperate or drag their feet.  There are ways to address these situations.  However, many divorces are difficult for a variety of reasons. That is the nature of the process and the people going through it.

But, if you are asking this question, there are significant problems in your marriage.  Either way you are facing difficulty. At least with a divorce, there is light at the end of the tunnel and an eventual end to this painful situation.

For the best possible result in your divorce, you should always at least consult with an experienced divorce attorney.  Most divorce attorneys offer free initial consultations.  Take advice from and listen to someone who knows the law and the process, rather than listening to your spouse who is simply trying to threaten or control you.

Can a Divorce be Suspended to Attempt Reconciliation in Wisconsin?

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In Wisconsin, parties have the option to suspend their divorce proceedings at any time prior to the judgment of divorce, if BOTH parties want to attempt to reconcile.

It takes only one party to begin a divorce proceeding, but both parties must agree to a suspension of divorce proceedings. To do so, the parties must sign a Stipulation and Order Suspending Proceedings to Effect Reconciliation in order to start the suspension. Once this form is filed with the court, the court will honor this request by giving the parties 90 days to reconcile. This essentially has the effect of putting the case on hold and nothing happens during this time period. Any upcoming court dates are cancelled.

Let’s say that both parties agree to suspend the divorce proceedings, but one party changes his or her mind prior to the 90 days. If this happens, at any time, the party who has changed his or her mind and wants to continue the proceedings has to file a Motion and Order to Revoke Suspension of Proceedings to Effect Reconciliation. Once filed, the divorce proceedings begin again and the court will schedule a status or pre-trial date.

In the alternative, what if both parties decide that they do not need the full 90 days because reconciliation was successful? In this situation, the parties can dismiss their case by filing a Stipulation and Order for Dismissal.

You need to be aware of your time constraints however, because if after the 90 days neither party has filed anything, the divorce proceedings will simply begin again and the court will schedule a status date or pre-trial.

Please note, the above described procedures and forms are used when parties want to suspend a Legal Separation procedure as well.

The Marital Presumption of Paternity in Wisconsin

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In Wisconsin, there is a presumption of paternity based on the fact that the parties are married. Even if the parties have been separated for months, or even years, Wisconsin law presumes that any child “of the marriage” is the child of both parties.

The marital presumption can be overcome by results of genetic testing that show that a man, other than the husband, has a 99% probability of being the father.

In marriages where there is a dispute of this nature, the court will almost always appoint a Guardian ad Litem to investigate the matter. Guardian ad Litem’s are appointed on cases where there is a placement or custody dispute, and their job on the case is to represent the best interests of the child.

The Guardian ad Litem will typically recommend that the court order genetic testing at the first appearance for the mother, the child, and the husband to find out if the child is related to the husband. This is ordered immediately, because the parties must present an Order for Genetic Testing to the Child Services Agency to do genetic testing through the court.

If the genetic testing proves that the child is not the husband’s, the Guardian ad Litem typically advises the mother begin a paternity action against the biological father, so that the child has a legal father in his or her life. A court will not typically overcome the marital presumption unless there is an adjudication of a legal father.

Please note, if the couple is LEGALLY separated (meaning the couple has been granted a legal separation by the court), then there is no presumption that the husband is the father.

If you are concerned about the paternity of your child and are subject to the marital presumption in Wisconsin, it is in your best interest to seek legal counsel to resolve this issue as soon as possible.

I Moved Out Due to Divorce in Wisconsin. Why Can’t I Go Back To the House?

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When one party moves out of the marital residence at the onset of a divorce case, there is often a lot of concern about why the other spouse ‘gets’ the house or why they can’t return to the house after they have moved out. Legally, just because one party moves out, does not mean that he or she is giving up any interest in the house. It just means that he may have given up his right to live there on a temporary basis.

If the Court has made a Temporary Order granting one party (ie husband) the temporary use of the house, the other party (wife) may not enter the house without the permission of the residing spouse. In this scenario, if the wife tries to enter the house without the husband’s permission  the wife could be held in contempt of court and face monetary penalties and even imprisonment.  It’s best to make sure that you have something in writing from your spouse or counsel, if you are entering the marital residence for any reason if your spouse was granted temporary use by the Court.

There are many instances when one party moves out before there is a court order, and then wants to return to the house later. Legally, if there is no court order barring you from returning to the house, you can return. However, you need to carefully decide what the consequences of returning to the house might bring.

For example, if your return to the house results in an argument, your spouse may call the police and you could be charged with disorderly conduct and potentially face being served with a domestic abuse restraining order if your spouse alleges domestic abuse or threats of it.

The court also will consider your actions at a hearing for Temporary Orders or other matters in the case. If you are returning regularly without notice to your spouse, if you are removing furnishings without agreement or if you are causing disturbances at the house, your behavior may be negatively inferred against you in issues involving custody, placement or property division. If you break a window or lock to enter the home, the Court could also hold you responsible for those costs and your spouse may seek a restraining order against you.

If you have moved out of your house and you want access to the house to retrieve personal property or any other reason, your best bet is to work with your attorney to schedule a date and time for you to enter the home and an agreement as to what you can remove. This will minimize conflict between you and your spouse and avoid police involvement and/or domestic abuse allegations against you in your divorce case.

Do remember though, that the restrictions go both ways. Just as you may not go into the marital property if you are restricted from it, your spouse cannot come to your apartment or new place of residence and demand access either. You both have the right to expect privacy and it is common courtesy to refrain from entering your spouse’s residence without permission, whether you own that property or not.  It helps to look at it this way: landlords cannot enter a tenant’s property without notice except in extreme circumstances and, once you move out, you essentially become the equivalent of a landlord to your spouse.