Year: 2015

How to Stop a Divorce Bully!

nelsonda Divorce Attorneys, Domestic Abuse, General Divorce , , , , ,

Boss Shouting At Businesswoman Through Loudspeaker In OfficeIn the context of family law, especially in a divorce, some individuals may find that their former partner transforms into a divorce bully. A divorce bully is a spouse who exhibits bullying behavior during the process of divorce. This person may not have previously displayed bullying behavior during the marriage. This behavior may not rise to the level of domestic violence, but instead is more subtle. Bullying behavior may include: lying about past incidents in order to make the other partner look bad; threatening to take full custody of the parties’ children or withholding the children from the other party; isolating the other party from friends and family; withholding money or refusing to pay bills; removing the other person from or canceling insurance; cancelling cell phone service; or attempting to intimidate the other partner from hiring a lawyer. While being a victim to a divorce bully adds another dimension of stress to the divorce process, it is not necessarily dangerous or constitutes domestic abuse.  Therefore, it may be difficult to deal with.

Another tactic of a divorce bully that can be especially damaging is to attempt to rush the divorce proceeding. This can often result in an inequitable agreement at the expense of the victim. Most parties to want the divorce to be over as quickly as possible. At the same time, it is also important to take the time to ensure that all marital assets and debts are divided equitably, that maintenance is considered when appropriate, and that custody, placement and child support are determined accurately, and in the best interest of the children.

If you find yourself the victim of divorce bullying, there are some important steps to take to protect yourself and to minimize the damaging consequences. One step may simply be to take care of your own health, both physically and mentally. Seeking counseling is a good way to help you find ways to deal with this type of behavior and get you through your divorce.  Another step may be to set firm boundaries with the divorce bully. For example, inform the bullying partner in person and in writing to refrain from specific abusive behavior, such as showing up uninvited to your home, or involving your children in the details of the divorce. It can also be helpful to document specific incidents of bullying, including when the incident occurred, and the details of what happened.

Hiring an attorney can be the most effective way of stopping a divorce bully.  An attorney can intervene on your behalf – either with your spouse, the opposing attorney or by filing a motion with the court.  Also, an attorney can intervene on your behalf with third parties, if necessary (as in the case of insurance or creditors).  Lastly, an attorney can reassure you as to what may or may not happen (i.e. you will not lose your children!) and give you advice as to how to best deal with this behavior.

Mediation may also be a helpful option in diffusing the situation. Mediators are specially trained to help control tense and emotional situations of divorce without involving litigation. However, if the bullying has existed throughout the marriage, then mediation may be ineffective because of the lack of trust between the parties, and may legitimize an abusive viewpoint of the bullying partner.  Your attorney can discuss various options with you.

The law requires that each party enters into a settlement agreement freely, voluntarily, knowingly, and without threat or coercion. It is ok to slow down the divorce process in order to understand your agreement, seek the advice of an attorney, and to come to a final agreement that you can successfully follow. If you find yourself the victim of a divorce bully, call us at (414) 258-1644 to schedule a free initial office consultation to discuss your case.

Divorce from the Child’s Perspective

nelsonda Custody and Placement, General Comments, General Divorce , , , , ,

Please stop fighting!I recently read an article that discussed divorce from a child’s perspective. Since a significant portion of my caseload is Guardian ad Litem appointments (where I am appointed by the court as the attorney for the child’s best interests), I am frequently tasked with speaking with children whose parents are in the process of divorce or other custody and/or placement disputes. In my work as Guardian ad Litem, I see first-hand what divorce is like from the child’s perspective. As such, it is important as parents going through a divorce, to be mindful of the below requests and thoughts that children wish their parents knew during a divorce:

1. We can love both of you 100%. Just because we love being at dad’s house and love our dad, does not mean that we don’t love you and being at your house mom. This also means that when we miss dad when we are with you, it’s not because we love you any less. Please do not make us feel like we have to choose who we like more or less. Also, please do not make us feel that we cannot share with you that we are enjoying our time with both parents. This is a tough time for us, so please allow us to be happy.

2. We notice when you are civil with one another and appreciate it. We know that you are not getting along well. Otherwise, you would still be together and not going through a divorce. However, the fact that you can still both attend our sporting events and school concerts and be nice to one another for our sakes means a lot to us.

3. We are not informants. Period. When you ask us questions about what happens at mom’s house or about mom’s new boyfriend, we know it is because you want “dirt” on mom. When you put us in a position to be an informant, it will go one of two ways: 1) we will tell you what you want to hear at the expense of being truthful. We are so scared to hurt you that we will say anything to make you feel better about yourself, or 2) we will shut down and not tell you anything because we feel betrayed that you have asked us to be the conduit of information for what happens at mom’s house. Can’t you just respect that it is difficult enough for us to go back-and-forth between two different homes, with two different styles of parenting, much less have to worry that we will be interrogated about the other parent’s house? Either way that we react, our relationship with you becomes less pure when you put us in this investigative position.

4. Do not use us as pawns. We are not chess pieces. Do you really want your children to grow up feeling used, manipulated and duped? This is how we feel when you use us as leverage against the other parent. And if you think we do not know that you do it, you are wrong.

5. Do not overshare. No matter our age, we do not need to know every dirty detail. We may ask you to tell us. In fact, we may beg you to tell us everything and say we want to know why you hate dad and why you filed for divorce. The reality is, however, no matter how awful or hurtful dad’s behavior was to you, you still chose him to be our other parent. So, be careful how much you share with us. If you need to talk to someone, please see a therapist or confide in a close friend. We are children; we are not therapists.

If you are going through a divorce and you have children, it is important that you have an attorney who is sensitive to the needs of your children and encourages you to continually put your children first. If you wish to speak with an attorney at our office, please call us at (414) 258-1644 to schedule a free thirty (30) minute office consultation..

-Attorney Madeleine Olmstead

 

Addressing the Unexpected During a Divorce Proceeding

nelsonda General Comments, General Divorce , , , , , , , ,

Shocking news.The recent events involving Lamar Odom’s hospitalization, which had the unexpected result of Khloe Kardashian and Lamar Odom petitioning the court to dismiss the couples divorce action, highlights how stressful divorce can be for many couples. Kardashian explained that this request to halt the divorce was to make medical decisions on Odom’s behalf after the former NBA player was found unconscious in a brothel in Nevada in October.

There are many reasons a couple may consider either dropping a divorce action, or putting the action on hold. Medical emergencies, such as Lamar Odom’s, may occur and incapacitate a party, their children, or family members. Courts must weigh circumstances that may a delay in the legal proceeding, such as medical emergencies, with an individual’s rights to have his or her legal matter addressed in a timely manner. This can easily affect how the divorce action proceeds, as well as the timeline for conclusion.

On the other hand, a couple may decide that they would like attempt to save their marriage and reconcile. In Wisconsin, that couple can submit to the court a Stipulation and Order to suspend proceedings to effect reconciliation. This document would request that the court allow up to 90 days for the parties to try and save their marriage with the intent end the divorce proceedings. After the 90 days, the parties must then notify the court as to whether or not they wish to proceed with the divorce. Further, a couple can request that the Court dismiss the divorce action at any time before the divorce is finalized.

Lamar Odom’s situation also highlights the importance for any party, at the start of a divorce action, to consider who they want to make financial or medical decisions for them if they were to become incapacitated. This may require a party to amend their powers of attorneys accordingly. If an individual were to suddenly become incapacitated during the pendency of a contentious divorce, they may no longer wish to have their spouse make such important decisions on their behalf.

Any individual who facing similar circumstances during their divorce or family law action, should feel confident that his or her attorney can offer legal solutions throughout the entirety of the legal action, regardless of whatever unique circumstances are involved. If you are facing this difficult situation, call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.

The Domestic Abuse Presumption in Custody Cases

nelsonda Custody and Placement , , , , ,

Drawing shows young girls inner feelings about being abusedUnder Wisconsin law there is a presumption that joint custody is in the best interest of the child. A presumption under the law means that the court will enter that order unless someone shows grounds as to why it should not be ordered. There are typically statutory factors which the court must consider when making that determination. However, the presumption for joint custody does not apply in cases where a court finds the required amount of evidence that a parent has engaged battery or abuse to the other parent.

When a case has a “domestic abuse component,” the law says the court should not award an abusive party joint or sole custody. This presumption may be overcome only if the person found to be the abuser provides evidence of all of the following: 1) evidence of completion of a batterers treatment program, and evidence that he/she is not abusing alcohol or any other drug, and 2) that it is in the best interest of the child for the offending parent to be awarded joint or sole custody taking into account all of the factors that are considered when determining the appropriate custody and physical placement for the child.

In cases where there is evidence that both parties have engaged in domestic abuse, the court will determine who was the “primary physical aggressor.” Whomever is the primary physical aggressor is the parent who will not be awarded joint custody. If the court finds that neither party was the primary physical aggressor, then the domestic abuse presumption does not apply to either parent, and the presumption of joint custody applies again.

If you are the victim of domestic abuse and you are in the middle of family law related legal proceedings, it is imperative that you bring these issues to the court’s attention at your first opportunity. This is particularly important in pre-judgment divorce and pre-judgment paternity proceedings. If you raise the concern at a later date in a post-judgment divorce or post-judgment paternity matter, when an order for joint custody is already in place, and the concern is based on facts that were available to you at the time of the divorce or initial paternity matter, the court may conclude that you have already waived your right to challenge the presumption of joint custody.

To be clear, you may not seek application of the domestic abuse presumption in post-judgment matters based on facts that were available and known to you prior to entering into a joint custody arrangement. However, if new instances of abuse happen after the entry of an order, you may request that the domestic abuse be applied in a future proceeding if the new facts and instances support an application of the domestic abuse presumption and apply the presumption is in the best interest of the children.

If you are accused of domestic abuse or there is a domestic violence injunction has been granted against you, it is important that you immediately take the necessary steps to show the court you are suitable to have joint custody and make parenting decisions for your child. These steps include, but are not limited to, completing a batterers treatment program, refraining from abusing drugs and/or alcohol, and being an appropriate parent in all other aspects.

Complicated as this may seem, the message is clear: make sure that your attorney and the court are aware of any issues of domestic abuse and interspousal battery present in your matter prior to a final order. That way, if you are the victim of the abuse, you may seek timely application of the presumption in your matter and allow the court to make a custodial decision that is in the best interest of your child. Similarly, if you are found to have engaged in acts of domestic violence, it is important that you find an experienced family law attorney who will work with you to best protect your interests.

If you have issues of domestic abuse in your case, it is important that you have an attorney help guide you through your divorce or paternity and help you seek application of the appropriate laws and presumptions. If you wish to discuss your matter with one of our attorneys, please call our office to schedule a free initial office consultation.

Can I Obtain Cell Phone Records or Text Messages in a Divorce in Wisconsin? – Update 2015

nelsonda General Divorce , , , , , ,

woman hand holding the phone with sms chat on screenAs an update to our 2012 blog titled “Can I Obtain Cell Phone Records or Text Messages in a Divorce in Wisconsin?” we reached out to three major cell phone providers to find out the current policy on obtaining text messages and cell phone records.

For cell phone records and text message logs (i.e. name, number, and time the call or text was sent/received), the process to obtain them from the phone carrier is relatively easy, which is similar to what we found in 2012 (please see above link). However, just as in 2012, obtaining the actual text message content remains more complicated.

Two of the three providers indicate that they do not maintain any text message content in their records. The two providers that do not save any of the content indicate that there are other ways for clients to save their text message content on their own. For example, clients can synchronize e-mail accounts to their cell phone number and set up an archive of text messages. Or, they can save their text messages on the cloud if they sign up for a certain type of messaging.  But, if you are trying to obtain the text messages of the other party through these providers, you will not be able to do so.

However, through at least one of the major providers, this information can be obtained through your personal online account at the click of a button. For this provider, that content is available for 3-5 days typically and up to 10 days at maximum. There is an automatic purge of the messages after 10 days. In addition, this company does accept preservation letters (to allow you to preserve past texts of yourself or the other party), but it comes at the cost of $50 for every 5-day increment requested. Further, you cannot request “future” preservation of text messages. That is considered surveillance, if not done through the appropriate legal channels. If you wish to have a more expansive release of text content, a judge would have to sign a subpoena and the company would have to receive consent (in writing) from the user of the phone. Both of these documents have to be received in order to do a continuing preservation of texts. There is no specific form that you must send to request preservation of texts, but it must include the telephone number, dates and specific records being requested, and a return address for the information.

Overall, the message remains the same: if you wish to save the content of text messages you need to be proactive and take action to save them yourself (i.e. take a screen shot and e-mail it to yourself). You should operate under the notion of “once they are gone, they are gone,” unless you have the rare case where you have the proper permissions to obtain them. To find out exactly what your carrier offers in regard to preserving text message content you would have to contact your carrier’s legal department.

Also, as we previously stated in 2012, text messages in Wisconsin would have very little value or relevance in a divorce as Wisconsin is a no fault state. This may be different in other states, however.

If you find yourself in a family law dispute where this issue may be relevant, please contact our office at 414-258-1644 to scheduled your free initial office consultation or visit our website for more information.

U.S. Supreme Court Recognizes the Legal Right to Marriage for Same Sex Couples

nelsonda General Divorce, Same Sex , , ,

Two silver rings resting on a background in colors of a homosexual flag

On June 26, 2015, the United States Supreme Court ruled that the United States Constitution guarantees a right to same sex marriage. All states are now required to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. Now, two consenting adults can be legally married in the state of Wisconsin, and can expect that Wisconsin, and all states, will recognize that marriage as legal.

It also follows that, any married couple should expect the same legal process of divorce in Wisconsin. However, how these laws apply to same sex marriages remains unsettled. For example, one glaring issue is determining the length of the marriage for purposes of maintenance, or alimony. Maintenance is linked to the length of marriage, so how will the courts determine when the marriage started? Will the court use the date of the couple’s actual marriage, or the date in which Wisconsin recognized the legality of their marriage?  It also remains unsettled as to whether children born to same sex married couples will be ‘presumed’ by the State of Wisconsin to be children of both parties.

While the legal system determines these legal nuances, the fact remains that we can move forward from categorizing or defining marriages or divorces. Any individual who is seeking legal counsel for family law issues, including divorce, should feel confident that his or her attorney is prepared to guide her client through the legal process, regardless of whatever unique circumstances are involved. If you are facing this difficult situation, call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.

Issues Remain Unresolved Regarding Same-Sex Divorce in Wisconsin

nelsonda General Comments, General Divorce, Same Sex , , , ,

Businessman stress, ripping up partner word on paperOne year ago this June, federal Judge Barbara Crabb overturned Wisconsin’s ban on same-sex marriage. Along with the advent same-sex marriage in Wisconsin came the inevitable issue of same-sex divorce in Wisconsin. However, because of the laws on divorce in Wisconsin, same-sex divorce presents some very distinct issues.

These issues are addressed in an article by Jim Stingl in the Journal Sentinel, found here: http://www.jsonline.com/news/milwaukee/one-year-later-gay-marriage-also-brings-gay-divorce-b99513974z1-306392381.html

As mentioned in this article, one question looming over same-sex divorce involves the award maintenance, or alimony, which often requires a consideration of the length of a marriage. While there were no same-sex marriages in Wisconsin until June 6, 2014 (when the ban on same-sex marriage was overturned), many other states, as well as Canada, have allowed same-sex marriage for several years. So the questions remains, when will the Court consider a marriage that occurred previous to June 6, 2014, outside the state’s jurisdiction, to have begun? On the date of their actual marriage, or on the date Wisconsin legally recognized that marriage? There certainly appears to be some confusion among judges, which would have a direct effect on a court’s ruling for maintenance.

Another important issue is the marital presumption, and whether the courts will extend the marital presumption to children of same sex couples. Currently, the law states that the husband is presumed to be the father of any child born to the wife during the marriage.  However, it is unsettled as to whether children born to same sex married couples would be ‘presumed’ by the State of Wisconsin to be children of both parties. This may also evoke similar timing questions as to when and if Wisconsin will extend this presumption to same-sex couples married outside the state’s jurisdiction.

The legal community is anticipating that the U.S. Supreme Court’s ruling later this month regarding whether states must allow same-sex marriage and recognize same-sex marriages from other jurisdiction will provide courts with some guidance. Until then, this unique issue remains unsettled with the Wisconsin courts, and open for interpretation. Moreover, because this issues remains unsettled with the courts, it can also leave divorces finalized during this time vulnerable to post-judgment litigation in the future.

These issues regarding custody, placement and support of children, maintenance, and property division, should be at the forefront of any divorce discussion. Any individual seeking a divorce should choose an attorney who understands the unique issues involving same-sex marriage and divorce, and who is prepared to guide her client through the divorce process. If you are facing this difficult situation, call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.

Divorce Summons Served by Facebook Message

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Design thumbs up iconA March 27, 2015, decision by Manhattan Supreme Court Justice Matthew Cooper will allow a woman in Brooklyn, New York to serve her husband with a divorce summons by a Facebook private message. Her husband does not have a permanent address or a place of employment, and has refused to make himself available to be served the divorce papers. He has, however, kept in touch with his wife via phone and Facebook. After exhausting other ways to serve her elusive husband the divorce papers, she filed an application to the Court for service by alternate means – via Facebook. In his decision, Judge Cooper wrote:

“[P]laintiff is granted permission to serve defendant with the divorce summons using a private message through Facebook. Specifically, because litigants are prohibited from serving other litigants, plaintiff’s attorney shall log into plaintiff’s Facebook account and message the defendant by first identifying himself, and then including either a web address of the summons or attaching an image of the summons. This transmittal shall be repeated by plaintiff’s attorney to defendant once a week for three consecutive weeks or until acknowledged by the defendant. Additionally, after the initial transmittal, plaintiff and her attorney are to call and text message defendant to inform him that the summons for divorce has been sent to him via Facebook.”

While this decision currently only effects those filing for divorce in the State of New York, it will be interesting to see if this alternate method of serving initial divorce paperwork will make its way into the Wisconsin court system. Under the right circumstance, this alternate means of service could offer significant relief for a party with an uncooperative spouse.

In Wisconsin, our statutes allow service by publication if the location of a spouse is unknown or, if with reasonable diligence, the party cannot be personally served. Should you find yourself in a circumstance where you do not know your spouse’s location, and cannot personally serve him or her, there are still options for service in Wisconsin. These laws are designed to prevent a spouse who does not want the divorce from holding up the action.

To obtain more information about service of a divorce in Wisconsin, please visit our website or contact us at 414-258-1644.

How To Modify or Change Child Support in Wisconsin

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Child support letters and cashOnce a child support order has been established, in Wisconsin, it can only be changed or modified if there has been a substantial change in circumstances. How do you modify or change child support in Wisconsin? If you can prove there has been a substantial change, then you must file a motion and schedule a hearing before the family court commissioner or the judge.  You can also file a Stipulation with the court if you and the other parent can reach an agreement.  All of these forms are available here:  Wisconsin Family Law Forms.

What does a substantial change in circumstances mean when addressing child support?  That is often up to the court but some common examples are:

1.  A substantial change in the income of either party.  The definition of “substantial” is often based on the facts of the situation but usually this requires a change in gross income of at least $5,000 per year or more.  Keep in mind this is relative, however.  If a $5,000 change in gross income only results in a $50 per month change in child support, that would generally not be considered to be substantial.

2.  The Wisconsin statutes provide that if at least 33 months has passed since the last child support order, a substantial change in circumstances is presumed to have occurred.

3.  A child “ages out” by reaching the age of 18 or graduates from high school.

4.  A change in the placement schedule.

5.  A move by one party or the other resulting in additional transportation costs.

6.  A substantial change in the needs of either parent or the child.  For example, if a child develops special needs, incurs unusual costs or if a parent becomes disabled.

If any of these changes apply to your situation or you believe you may have grounds to modify or change your child support order, you should seek the advice of an experienced family law attorney to determine exactly what your options are and what the likely results will be if you file a request to change your child support order.

The experienced attorneys at Nelson, Krueger & Millenbach, LLC offer free initial office consultations and we frequently deal with this kind of situation.  If you are interested in scheduling an appointment with one of our attorneys, please contact us at 414-258-1644.

Same-Sex Divorce: Layered with Issues

nelsonda General Divorce, Same Sex , , , , , ,

close up of happy male gay couple holding handsSame sex couples have only recently, and only in some states, been given the right to marry.  With the right to marry, unfortunately, often comes the right to divorce.   For those attorneys and parties who have tried to navigate same-sex divorces, many issues arise which include issues not always seen in heterosexual divorces.

The first issue that might arise in a same-sex divorce is: What is the date of marriage?  Since states have granted the right for same-sex couples to marry on different dates, some states might disagree on the determination of a couple’s actual date of marriage depending on where the couple was married.  This issue might also arise if a couple is residing in a state that recognizes common law marriage (note: Wisconsin does not recognize common law marriage).  The date of marriage (i.e. length of marriage) is important when addressing issues regarding support.

On this topic, many same-sex couples are together for years before they were able to get legally married.  These couples considered themselves “married” long before they were legally married, which included  commingling their assets.  Regardless, there is a question as to whether or not such couples should get “credit” for the time spend together in a marriage-like relationship before legally married.  Most courts will only divide assets starting from the time a couple actually got married.  This can create a lot of inequality and unanswered issues for these couples.

A related issue is also whether or not a couple even has a valid marriage and if a court can even grant a Judgment of Divorce.  Since some same-sex couples traveled outside of their home state or U.S. to be married, their marriage may not be valid.  In this case, a Judgment of Divorce might not be appropriate.

If children are involved, a same-sex divorce can becomes even more complicated depending on when the children were born.  Children born during a marriage are considered marital children.  In many same-sex marriages, you might have children born prior to a legal marriage who are considered by their parents to be ‘marital children,’ but not in the eyes of Wisconsin law.  For same-sex couples whose children were not born during a legal marriage, either one or both of the parents are not the biological parent of the child.  This presents several questions for the court.  For example, if the child is not biological, have both of the parents legally adopted the child?   If only one parent is biological, does that parent have all the rights?  These questions are perplexing to the court, to the parents and to the children.

Same-sex couples are also running into issues when they try to get divorced in states other than the state where they were legally married.  States that do not recognize same-sex marriages typically will not grant a same-sex divorce, as the state views the marriage as unlawful from the start.  Therefore, the same-sex couple, or at least one of the spouses, must return to the state where they got married.  Many states, like Wisconsin, require at least a six-month minimum residency requirement for anyone who wants to petition for divorce, so this creates more delay and financial burdens for these couples.

Clearly, same-sex divorce is not a well-defined area of law.  This means that the courts, court officials and attorneys are lacking clear answers on what courts are required to do, or should consider, when making divorce related decisions for these couples.  Therefore, many courts are requiring attorneys to do additional research and file briefs to point the court in the right direction.  Since there is additional work that is often required, not only are delays very common, but same-sex couples might pay more in attorney fees to be divorced.

More issues than the above may arise during a same-sex divorce proceeding, and it is important that you choose an attorney who is willing and able to navigate you through this relatively new and developing area of family law.   If you facing this difficult situation, call us at 414-258-1644 to schedule a free initial consultation to discuss your case.