Year: 2021

Wisconsin Passes New Law Allowing for Contingent Placement Orders

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In the past, the courts in Wisconsin have found that orders based upon contingent events – meaning future events which have not yet occurred – were unenforceable as a matter of public policy.  However, under the newly passed 2021 Wisconsin Act 20, the courts are now allowed to enter, and enforce, placement orders to change based on a contingent, or future, event.  The law states that parties can modify a current placement order by stipulation based on the occurrence of a specified future event that is reasonably certain to occur within two years of entering into the agreement.  Previously, placement could not change in an agreement based upon a future event.

For instance, both parties can be reasonably certain that a four-year-old child will enter kindergarten within two years of coming to a placement agreement.  The parties can now agree that their placement schedule will change when that event occurs.  Parties can stipulate to something like one party having primary placement until the child enters kindergarten.   

Note that the act only applies to contingent events and not behaviors.  Specifically, the act states that parties can’t stipulate to contingent behaviors like a parent entering an anger management course, receiving drug or alcohol treatment or therapy, or incarceration. This means that the parties can’t assume that one parent is going to change their behavior and stipulate to changing their placement order based on successful change.

What does this mean for you?  The Act allows parents and the court to address the foreseeable benchmarks in a child’s life in their stipulation. In turn, this may reduce litigation and may save parents both time and money.  Less litigation may also mean less stress on a child.  However, be wary that this law may be a narrow exception to the general rule against a contingent agreement.  Ultimately, the contingency law permits parties to make great strides in stipulating to anticipated changes in their placement orders.

Do you have any questions about contingent custody and placement?  Contact Nelson, Krueger & Millenbach, LLC at (414) 258-1644 for a free consultation.

How to Obtain a Harassment Restraining Order in Wisconsin

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Wisconsin allows for two different types of restraining orders, or what the court refers to  as an “injunction”: harassment and domestic abuse. An injunction is a court order that orders a party to refrain from committing certain acts or doing certain things. The word restraining order and injunction are essentially interchangeable. This specific blog will help you determine if you have a case to obtain a harassment injunction.

Harassment is defined in the statute as “Striking, shoving, kicking or otherwise subjecting another person to physical contact; engaging in an act that would constitute abuse, sexual assault, or stalking; or attempting or threatening to do the same. Engaging in a course of conduct or repeatedly committing acts which harass or intimidate another person and which serve no legitimate purpose.”

To determine if you have a case for a harassment injunction you should stop and think about 3 key questions: 1) Is my harasser repeatedly contacting me for no legitimate purpose and/or threatening to cause me harm? 2) Does my harasser continue to contact me even if I don’t respond? 3) Most importantly, have I told my harasser to stop contacting me? If you answered “Yes” to any of these questions, you may have a good case to bring forth a harassment injunction. If you answered no to 1 or more of these questions you may still have a case, but it is best if you speak with an attorney who is experienced with restraining orders.

A harassment injunction can be filed by someone who is being threatened, intimidated, continuously contacted, or all the above. Answering no to the question, “Is my harasser threatening to cause me harm?”, is not going to make or break your case.  This question is more so to help determine how long of an injunction should be asked for and to reasonable set expectations regarding your injunction length.  However, you do need to show that your harasser is repeatedly contacting you for no legitimate purpose.

Question 2, “Does my harasser continues to contact me even if I don’t respond?” This question helps determine if the harasser has engaged in a course of conduct or repeatedly committing acts which harass you. An important factor is whether the contact is legitimate? For example, if your “harasser” contacts you about getting their sweatshirt and they contact you several days in a row because you don’t respond is legitimate contact because they are contacting you to get something back that belongs to them. That is not harassment. This is opposed to a situation where your harasser is contacting you about going on a date and you don’t respond and they repeatedly contact you back calling you names or bring up something that is not relevant to you or your conversation. This is not a legitimate purpose in the court’s eyes and could be deemed harassment.

Question 3, “Have I told my harasser to stop contacting me?”, is incredibly important because if you have given notice to your harasser to stop contacting you, this is an essential function of an injunction. If your harasser continues to contact or intimidate you after you have told them to stop, the court will not look kindly on them.

If your harasser has access to firearms and you feel that there is a legitimate threat to your safety, please reach out to an attorney immediately to discuss your legal options for protection. If there are firearms or weapons involved in your case, the court can order for the weapons to be removed from that person.

If you answered yes to any of the questions above or feel like you are being harassed, please contact our firm at (414) 258-1644 for a free consultation.

Should I Opt Out of the Monthly Child Tax Credit Payments?

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Starting July 15, 2021, families will start receiving advance Child Tax Credit (CTC) payments on a monthly basis for the remainder of this year. However, it is important to consider whether your family should opt out of receiving those payments. In fact, families can use the “Child Tax Credit Update Portal” to opt out of these payments, and instead receive the full tax credit after filing their 2021 tax return. In determining what is best for your family, reach out to your tax preparer or seek out the advice of a CPA to help you come to your decision.

For the year 2021, the tax credit for children under 6 is $3,600; and the tax credit for children between 6 and 17 is $3,000. A parent who files taxes with children under the age of 17, will receive the full benefit if his/her income is less than $75,000; and will get a reduced amount if he/she earns between $75,000 and $90,000. Those who file jointly, with children, will get the full credit if their combined income is less than $150,000; and will receive a reduced amount if their combined incomes are between $150,000 and $170,000.

For example, it may be wise to opt out if you typically use your child tax credit to reduce your tax liability, or if you get a significant raise that effects your income eligibility threshold during the 2021 tax year. If a person receives the advance Child Tax Credit payments, but their income goes up during 2021 to where they would not be eligible for the advance payments, they will have to pay back the amount of the credit that was paid to them in advance. This could be significant given the increase in the value of the tax credit.

Parents who are going through a divorce, are divorced or who have paternity support orders also need to be especially careful. It is common that parents who have court orders through a paternity action, or through a divorce action, allocate who can claim the child dependency tax credit each year. The IRS does not know what parents have agreed to, so the structure of these Child Tax Credit payments do not take into consideration these agreements. Instead, the parent who claimed the child on their 2020 or 2019 tax return would be eligible for the advanced payments. However, if you alternate years for the tax credits, and 2021 is not your year to claim your child or children, you will likely have to pay back the advanced Child Tax Credit to the IRS or to the other parent. This can end up being confusing for families in two households. It will be important to review your court orders, and to seek out the advice of a tax preparer or CPA, to determine whether to opt out of these payments to avoid issues with the IRS, or in your family law case.

In order to opt out of these advanced payments go to the IRS website and follow the instructions provided on their website to opt out. That information is available at: https://www.irs.gov/credits-deductions/child-tax-credit-update-portal. We cannot offer tax advice and, therefore, it is always a good option to seek out the advice of a tax preparer or CPA to help determine what is right for your family.

What the American Rescue Plan Means for Families

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President Biden signed the American Rescue Plan on March 11, 2021. This bill, otherwise known as the Covid relief bill should have a positive effect on families. Here are some important points to know for your family:

Stimulus checks

This law provides stimulus payments up to $1,400 per person, including for each minor child. The full amount goes to individuals earning less than $75,000 of adjusted gross income, heads of households, such as single parents, earning less than $112,500 and married couples earning less than $150,000. However, as incomes go up, the stimulus payment phases out more quickly than in previous stimulus payments. Individuals earning $80,000 per year, heads of households earning $120,000 per year, and married couples earning $160,000 will not see a stimulus payment.

Stimulus money for children is assigned based on who claimed a child on the last tax return filed. In a divorce or paternity situation, a child is typically allocated as a deduction in an order or judgment. Therefore, whoever is allowed to deduct that child for that tax year will typically receive the stimulus money. Some attorneys put prospective language in a final agreement or order which specifically states that any tax refund, tax stimulus or rebate should be equally divided. You should check your divorce judgment or paternity order for this kind of language. Lastly, you should discuss with the other parent whether they would be willing to equally divide the stimulus money. If you believe that none of these options end in a fair result to you, then you could file a motion with the court asking that you be awarded one-half of the stimulus money for that child. The courts have been very sympathetic to this argument.

Unemployment Assistance

There will be a $300 federal increase to weekly unemployment payments. The law also makes the first $10,200 of unemployment payments tax-free for households with annual incomes less than $150,000

Nutrition Assistance

The law further extends the 15% increase in food stamp benefits through September 2021. The law also extends the Pandemic-EBT, which will provide families whose children’s schools have closed with funding to replace reduced-price and free meals that children would have received if schools remained open, through this summer.

Housing Aid

This law provides about $20 billion to state and local governments for low-income households to cover back rent, provide rental assistance, and assistance for utility bills. It also provides $10 billion to help homeowners who are struggling to pay their mortgages, property taxes, and utilities.

Tax credits

Tax credits for families was also increased, where the child tax credit was increased to $3,600 for each child under 6 and $3,000 for each child under 18. This increase is available for single parents with annual incomes up to $75,000 and joint filers with annual incomes up to $150,000.

Hopefully the American Rescue Plan assists your family during this difficult and uncertain time. If you have questions, or concerns, regarding how the American Rescue Plan may affect your family during a divorce, or existing orders regarding child support and other financial issues involving your children, please call Nelson, Krueger & Millenbach, LLC at (414) 258-1644 to schedule a free initial consultation to discuss your case.

–Attorney Aislinn Penkwitz

 [MS1]Minors get the 1,400 too?!

What is the Difference Between a Harassment Restraining Order and a Domestic Violence Restraining Order?

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Wisconsin allows for two different types of restraining orders  or injunctions: harassment and domestic abuse. An injunction is a court order that orders a party to refrain from committing certain acts or doing certain things. The word restraining order and injunction are interchangeable except that a restraining order is generally granted for a temporary basis until there is a full hearing by the court to determine if an injunction is needed.  What is the difference between these two types of restraining orders?

The first type of injunction is for Harassment. The statute has several definitions for “harassment.”  First, the statute includes in the definition “striking, shoving, kicking or otherwise subjecting another person to physical contact; engaging in an act that would constitute abuse, sexual assault, or stalking; or attempting or threatening to do the same. This is typically used when the aggressor is not a member of your family.  The definition also includes “engaging in a course of conduct or repeatedly committing acts which harass or intimidate another person and which serve no legitimate purpose.” This can be filed against either a member of your family or someone who is not part of your family.  A harassment injunction can be effective for up to 4 years and can prohibit the harasser from coming to your home and contacting you in any form. Contact can mean via electronic means (social media, text messages, facetime/zoom, etc.), in person, by telephone or e-mail. Please remember that this list is not an exhaustive list for defining contact.  

This type of injunction is typically filed by someone who is being repeatedly contacted or threatened by someone and they have asked that person to stop contacting them. It is important to note that the key difference between a harassment injunction and a domestic violence injunction is who is engaging in the threatening behavior. If the behavior is coming from someone outside of your home and you are not in a relationship or have a familial relationship with them, speak to your attorney about filing a harassment restraining order. If the behavior is coming from someone who lives with you, in a relationship with you, or is a family member, speak to your attorney about filing a domestic abuse restraining order, if appropriate, although a harassment injunction can also be filed against someone in your family or one with whom you have a relationship if they are engaging in harassing behavior only.

For purposes of a domestic abuse injunction, the statute has defined “domestic abuse” as meaning when an adult family member, adult household member, adult caregiver, former or current spouse, former or current dating relationship, an adult with whom the person has a child in common, a sibling or step-parent is intentionally or threatening to inflict physical pain, injury or illness, impair their physical condition, sexually assault, stalk, or damage property. A parent may also file a child abuse restraining order for their child. Please discuss with your attorney your legal options related to filing  a domestic abuse restraining order or a child abuse restraining order.

A domestic abuse restraining order is filed by someone who fears for their physical safety. A domestic abuse injunction can last for up to 4 years and can prohibit the abuser from coming back or moving back into the household and contacting you. Contact can mean via electronic means (social media, text messages, facetime/zoom, etc.), in person, by telephone or e-mail. Again, please remember that this list is not an exhaustive list for defining contact. 

For both types of restraining orders/injunctions, if the harasser or abuser has access to fire arms and you feel that there is a legitimate threat to your safety, please reach out to an attorney immediately to discuss your legal options for protection. If there are fire arms or weapons involved in your case, the court can order for the weapons to be removed from that person.

If you believe that you are being harassed or you are a victim of domestic abuse, please contact our firm at (414) 258-1644 for a free consultation regarding your restraining order.

–Attorney Margaret Spring

Be Careful of What You Post on Social Media During Your Family Law Case

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Woman chatting with her boyfriend via smartphone app. She broken heart sitting and crying. Unhappy depressed girl in flat design.

Going through any family law action is an extremely emotional experience that may make you throw your decision-making skills out the window. Recently, we have seen parties release some of these emotions by posting on Social Media (Facebook, Instagram, Twitter, Snapchat, etc.). While social media is a fun way to share your life with your friends or followers, it should not be used to discuss what is going on with your divorce or paternity case.

You should be very careful of what you post on social media during your family law case. Nothing that you post on social media is private and it may be used against you in the legal process. While you may have your account on “lockdown” or “private” that does not always mean that your account is, in fact, private. Friends, family members, or followers can screenshot your account and send your “private” posts to the other party and their attorney.

Below, I am going to discuss some things to ABSOLUTELY NOT POST on your social media accounts during your pending divorce, paternity or post-judgment proceeding.

  1. Anything to do with your legal case.

Remember this is a highly stressful time and you may not be in the clearest state of mind, so what you post, while it may make perfect sense to you, could be taken out of context and could potentially cause you more problems than you intended. Anything that you post on social media can be used against you in your proceeding, no matter how you intended the post to be conveyed.

2. Bad mouthing the other party, making threats and/or using profanity.

You may think that bad mouthing the other party may embarrass them into “giving in” to your wants, but in reality, the court may deem you as abusive, harassing, unreasonable or uncredible. In fact, if you make threats against or negative statements about the other party during the proceeding, that may be grounds for the other party to file a harassment injunction against you.

Threats to judicial officials (Judges/Commissioners), guardian ad litem and opposing counsel, can be criminal felony charges under Wisconsin Statute Section 940.203. Think twice before posting anything that could be construed as a threat to anyone who is involved in your  court proceeding, especially the other party.

3.  Additional income or side jobs.  

If you are in a child support or divorce proceeding and you claim to be unable to pay the other party and you post a picture of your recent trip to Turks & Caicos, the court may infer that you have funds available to pay support, property division payments, or attorney fee contributions. If you claim that you are unable to seek employment for reasons and are unable to pay the other party, please do not post on Facebook that you have an alternative  income stream such as a cash only business. Not only could the court impute an income to you, but the court will make you verify that income and could lead to possible tax implications.

4. Drugs and/or partying.

Posts of you partying or doing drugs may be used against you during your proceeding to show that you are an unfit parent. For example, do not post pictures of you drinking on days that you are scheduled to have placement of your children. This could ultimately lead to you losing placement time of your children and could potentially have other legal ramifications against you.

It may be best to take a break from social media while your case is pending, or to have a neutral party such as a friend review any posts you want to make.

Overall, it is best to take a step back from social media during your legal proceeding, because the consequences of  one negative or questionable post, may outweigh any gratification from making the post.