Month: February 2013

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.