Month: August 2013

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.