Year: 2013

I Filed for Divorce in Wisconsin. Who Has to Move Out of Our House?

nelsonda General Divorce , , , , ,

When two people go through a divorce, they also must go through the process of separating themselves from each other. Often we are asked by clients: ‘when will my spouse have to move out?’ The answer to this question is not always easy and usually is very complex.

If there is domestic abuse or a restraining order/injunction between the parties, the law presumes that the parties cannot live together. In those situations, one of the parties (often the aggressor) will be ordered to move out of the marital residence.

At the beginning of a divorce case, parties can request that the Court schedule a hearing to determine Temporary Orders. The purpose of the these Temporary Orders is to establish who lives where, pays what bills, pays what in support, spends time with the kids, etc, etc.

The Court urges parties and attorneys as soon as they begin work on a divorce case to begin discussing the parties’ physical separation. Often one party is willing to move out or prefers to move out, so the answer is easy. Some times, however, neither party is willing to move out, so the Court is forced to make an Order.

The court has a variety of options: neither of you is required to move out, your spouse is required to move out, or worse, you are required to move out! The Court will consider a long list of factors to make this decision. That list might include: Who can afford the house? Who can maintain the house physically? Who will have primary responsibility for the kids? Does someone have another place to move (ie family nearby)? Does one party not have any family or friends in the area with whom they can stay? Does someone work from home and, therefore, need to stay in the house? Clearly, the decision as to who can stay in the house depends on the specific facts of your case.

The Court may not order either party to move out, and, in fact, rarely does unless there is domestic violence. This is especially true if there is a dispute about placement of the kids. The Court may be wary to force one party out and have to make a temporary decision regarding placement, if the parties haven’t been to mediation or there isn’t input from a Guardian ad Litem yet. In those cases, the parties are basically forced to continue to live together until they complete mediation or a GAL makes a temporary recommendation.

Some parties realize that they don’t want to live together, but they can’t afford two homes. In those cases, the parties might try a “nesting arrangement”. This is when the kids stay in the house and the parents rotate in and out. The parents might stay with a friend or family member on their ‘out days.’ Or maybe the parties rent one apartment that they alternately stay in when it is their ‘out day.’ This arrangement requires a lot of cooperation with the parties which might be hard to do in some cases.

The bottom line is an agreement to separate often is best in cases. Working with your attorneys for creative ideas to resolve temporary issues can often help minimize the conflict and cost of deciding where you will live until the divorce is granted.

Non-Marital Children: Overcoming the Marital Presumption in Wisconsin

nelsonda Custody and Placement, General Divorce, Paternity , , ,

In Wisconsin, if a child is born during a marriage, the husband is presumed to be the father. But what happens in situations where, for example, the parties have been separated for several months while your divorce is pending, and the wife becomes pregnant with someone else’s child. Can the presumption be overcome?

The answer is: not automatically. If your divorce has not been finalized, the child is considered “born to the marriage,” and is presumed to be the husband’s.

This is why the wife is asked during divorce proceedings, “are you currently pregnant?” If she is, the court will usually not grant the divorce. The idea behind this is that the child is entitled to a legal father who shall be responsible (financially, if not otherwise) for the child. Therefore, the court is highly reluctant to make a ruling that would leave the child without a legal father.

Husbands who are the legal fathers have notoriously found this presumption to be unfair, with the argument being that the presumption takes away the father’s due process rights. The Supreme Court of the United States addressed this argument over 20 years ago and found that the presumption that the mother’s husband is the child’s father does not, in fact, violate a father’s due process rights.

The presumption may be overcome, however, if another man who is biological father, even though not yet the legal father takes a genetic test, and the results show a statistical probability of that man’s parentage as 99.0% or higher. If this turns out to be the case, the court will likely order the wife to commence a paternity action against the biological father. Once paternity is established, the presumption against the husband can be overcome and the divorce can be granted.

Therefore, in situations where a child is born of the marriage but is not the husband’s biological child, it is wise for the wife, or her attorney, to commence a paternity action against the biological father immediately. In the alternative, if the wife is arguing that the child is, in fact, the husband’s child biologically, the husband or his attorney can ask the court to order genetic testing, if the husband has a doubt.

Please note, in most cases where paternity of the child is at issue in a marriage, the court appoints a Guardian ad Litem for the best interests of the minor child. The Guardian ad Litem will make recommendations for the best interests of the child, such as requiring the husband and alleged biological father to undergo genetic testing that will work towards figuring out who the biological father of the child is, and who will be found to be the legal father of the child.