COVID-19 and Divorce Mediation in Wisconsin

Deciding to file for divorce is never an easy decision to make. But during these pandemic circumstances, it can be an even more challenging decision. The Wisconsin Supreme Court has restricted in-person court proceedings through at least May 22, 2020, and the courts will likely significantly limit in-person proceedings for the unforeseeable future to follow. It is safe to assume that our access to the courts to schedule hearings in family law matters will be significantly affected and delayed.

How can one file for divorce when we are under a Safer-at-Home Order and our access to the courts is affected? Despite these factors, the pandemic does not mean that you cannot file for divorce or that your case has to remain stagnant. Many people are commenting about how the COVID-19 pandemic has brought on new perspectives and priorities. Maybe now is the time to engage, or re-engage, in mediation of your family law case?

Divorce mediation is a process where a divorcing couple jointly hires a divorce mediator to assist them through the divorce process. A divorce mediator is considered to be neutral and does not take a position for or against either party or give legal advice to either party. As a neutral, a mediator can inform the parties of the law and provide calculations for support, property division, and other divorce related issues.  As a neutral, the mediator works with the couple to help them reach an agreement. With the new Wisconsin mediation rules in family cases, a divorce mediator can also draft and file the legal pleadings with the court making it easier for a divorcing couple to navigate the court procedures. Divorce mediation also allows parties to maintain control over the process of their divorce by working toward agreements outside of court.

Now more than ever, parties and those involved in the legal system, must adapt and use alternative means to achieve legal objectives. Through the divorce mediation process, we can conduct mediation through phone conferences, Zoom meetings, emails, and other forms of contact than do not require in-person meetings. You can continue to work on resolution and bring your case to conclusion despite the challenges we all face due to the COVID-19 pandemic.

Currently, due to the COVID-19 pandemic, some of the courts in Southeastern Wisconsin such as Milwaukee and Waukesha Counties are allowing parties to proceed with a Judgment of Divorce by Affidavit without the need to appear in court for a final hearing. This is only true in cases in which both parties have an attorney or the parties have engaged the services of an attorney acting as a divorce mediator. So, if you are considering divorce and believe that divorce mediation may be a desirable option for you, there is an added benefit in that your Judgment of Divorce can be granted now by Affidavit without you ever having to appear in court. This option is not available in cases where one party does not have an attorney or the parties have not hired a divorce mediator.

At Nelson, Krueger & Millenbach, LLC, we are proud to offer couples the option of divorce mediation with an experienced family law attorney trained in divorce mediation. Prior to the pandemic and now, our experience and success in working with couples who wish to maintain control of their divorce process through divorce mediation has been a benefit to our mediation clients.  Attorney Alison H.S. Krueger at Nelson, Krueger & Millenbach, LLC is a well-respected and trained divorce mediator. Her primary experience is as a practicing divorce attorney, but she also engages in the mediation process where she deems it will be the most helpful. She also charges a reasonable hourly rate given her years of experience in this field. If you are interested in this process, please call us at 414-258-1644 to schedule a free consultation to discuss same.

 

Are the Family Courts in Wisconsin Open under COVID-19 Restrictions?

Courts in Wisconsin, and in particular the family law  and divorce Courts, have been severely affected as a result of the COVID-19 pandemic.  In the beginning of the pandemic and the Wisconsin Safer at Home orders, most courts either cancelled hearings, adjourned them or started doing hearings by alternative means.  Some hearings continued to be held via telephone or Zoom.  However, there are many hearings which were cancelled and still need to be rescheduled, although ,the courts are slowly starting to do that.

Even though the current Safer at Home order in Wisconsin expires on May 26, 2020, it is not certain that the courts will be reopening to pre-COVID-19 operations after that time.  In Milwaukee County, for example, they have indicated they will not doing in person hearings in the near future and likely not until after July, 2020.  All hearings currently on the court’s calendars, if not rescheduled, will be conducted by Zoom or telephone.  Trials or contested hearings, however, will still likely be rescheduled until after in person hearings are being conducted.  Each judge is using his or her own discretion as to how they want to handle certain types of hearings.

In Waukesha County, they have not yet announced what their plans will be.  They are just now starting to reschedule previously cancelled Pretrial Conferences and Status Hearings.  Those hearings will likely be by telephone.  They have not announced plans to reschedule or resume Family Court Commissioner hearings or contested hearings.

In Washington and Ozaukee counties, most hearings have been and are proceeding by Zoom or by telephone.

In all counties, they are continuing to hold hearings on emergency matters such as domestic or child abuse restraining orders and custody/placement enforcement petitions.

If you are a client of our firm, the attorneys and staff at Nelson, Krueger & Millenbach will continue to keep you apprised of the status of your court hearings as soon as we receive that information from the Courts.

Guidelines for Parents Who Are Sharing Custody of Children During the COVID19 Pandemic

The American Academy of Matrimonial Lawyers (AAML) in conjunction with the Association of Family Conciliatory Courts has put out seven guidelines for parents who are sharing placement of their children during the pandemic. Wonderful advice from the top family lawyers and mental health professionals in the nation.

From the leaders of groups that deal with families in crisis:

Susan Myres, President of American Academy of Matrimonial Lawyers (AAML)
Dr. Matt Sullivan, President of Association of Family and Conciliation Courts (AFCC)
Annette Burns, AAML and Former President of AFCC
Yasmine Mehmet, AAML
Kim Bonuomo, AAML
Nancy Kellman, AAML
Dr. Leslie Drozd, AFCC
Dr. Robin Deutsch, AFCC
Jill Peña, Executive Director of AAML
Peter Salem, Executive Director of AFCC

1. BE HEALTHY.

Comply with all CDC and local and state guidelines and model good behavior for your children with intensive hand washing, wiping down surfaces and other objects that are frequently touched, and maintaining social distancing. This also means BE INFORMED. Stay in touch with the most reliable media sources and avoid the rumor mill on social media.

2. BE MINDFUL.

Be honest about the seriousness of the pandemic but maintain a calm attitude and convey to your children your belief that everything will return to normal in time. Avoid making careless comments in front of the children and exposing them to endless media coverage intended for adults. Don’t leave the news on 24/7, for instance. But, at the same time, encourage your children to ask questions and express their concerns and answer them truthfully at a level that is age-appropriate.

3. BE COMPLIANT with court orders and custody agreements.

As much as possible, try to avoid reinventing the wheel despite the unusual circumstances. The custody agreement or court order exists to prevent endless haggling over the details of timesharing. In some jurisdictions there are even standing orders mandating that, if schools are closed, custody agreements should remain in force as though school were still in session.

4. BE CREATIVE.

At the same time, it would be foolish to expect that nothing will change when people are being advised not to fly and vacation attractions such as amusement parks, museums and entertainment venues are closing all over the US and the world. In addition, some parents will have to work extra hours to help deal with the crisis and other parents may be out of work or working reduced hours for a time. Plans will inevitably have to change. Encourage closeness with the parent who is not going to see the child through shared books, movies, games and FaceTime or Skype.

5. BE TRANSPARENT.

Provide honest information to your co-parent about any suspected or confirmed exposure to the virus, and try to agree on what steps each of you will take to protect the child from exposure. Certainly both parents should be informed at once if the child is exhibiting any possible symptoms of the virus.

6. BE GENEROUS.

Try to provide makeup time to the parent who missed out, if at all possible. Family law judges expect reasonable accommodations when they can be made and will take seriously concerns raised in later filings about parents who are inflexible in highly unusual circumstances.

7. BE UNDERSTANDING.

There is no doubt that the pandemic will pose an economic hardship and lead to lost earnings for many, many parents, both those who are paying child support and those who are receiving child support. The parent who is paying should try to provide something, even if it can’t be the full amount. The parent who is receiving payments should try to be accommodating under these challenging and temporary circumstances.

Adversity can become an opportunity for parents to come together and focus on what is best for the child. For many children, the strange days of the pandemic will leave vivid memories. It’s important for every child to know and remember that both parents did everything they could to explain what was happening and to keep their child safe.

 

Wisconsin Family Law and COVID-19

WE ARE HERE FOR YOU!

In response to the Coronavirus or COVID-19, the health and welfare of our clients and our employees are our top priorities. We are closely monitoring the rules and procedures for our state and the courts, and the CDC recommendations which are constantly changing. Therefore, please visit the Nelson, Krueger & Millenbach, LLC COVID-19 page for the most updated information.

As always, please feel free to contact us by telephone or email, as we are working remotely and are available for our potential and existing clients. Stay safe and healthy!

Holiday Placement Tips for Parents

The holidays are here at last and we all have one desire: To celebrate with family and friends. Children and adults alike share this interest; however, it doesn’t always come so easy for those who are caught in the middle of a custody and/or placement dispute. Many parents are subject to custody and placement arrangements with their children but it does not always quell the symptoms of co-parenting disputes. If you or someone you know is faced with a holiday placement dispute, there are several things to remember when trying to keep the peace.

First, always be cognizant of the placement schedule set in your court order. It is important to remember that the normal placement schedule and the holiday schedule operate separate from one another. In the case of a holiday placement dispute, the holiday schedule set forth in the court order will always take precedence over the normal placement schedule (unless the parties agree otherwise). If the parties agree to deviate from the court ordered holiday placement schedule, make sure that this is reduced to writing to avoid any future (s)he said/(s)he said” problems.

Unfortunately, even if a court order sets out a specific schedule for holiday placement, that does not necessarily prevent issues from popping up between the parents. One parent may decide to act contrary to the holiday schedule and keep the child from the other parent. In this case, there are a few different options the other parent may have here. Option one would be for the parent being denied placement to keep a journal highlighting each time a dispute or not agreed upon deviation from the schedule arises. This journal should contain detailed notes about what happened on specific dates. This is helpful to provide to your attorney should you decide to take the issue into court. Option two would be to involve law enforcement. The parent being denied placement will need to provide authorities with a copy of the placement schedule proving that the other parent is withholding placement and the schedule should be followed. In most cases, contacting law enforcement should be a last resort unless there is a legitimate threat to the safety of the child.

In most cases, the court order will feature a specific holiday placement schedule; however, what happens when the original court order does not specify a holiday placement schedule? It is understood that courts typically like to see an alternating placement schedule. For example, if mom were to have placement on Christmas day this year, dad would get Christmas day placement next year and the pattern would continue this way. From the perspective of the Court, Christmas Eve is generally seen as a separate holiday from Christmas day. To allude to the previous example, during a year where mom might have Christmas Day placement, dad would likely have placement on Christmas Eve. It is important for both parents to put equal effort into exercising placement schedules that will be most beneficial for their children.

The most important thing to remember is that the children should always come first. The children are most affected in placement disputes so parents should be mindful to keep a positive atmosphere for the children. That being said, all of us at Nelson, Krueger & Millenbach would like to wish you and your family a safe and happy holiday season.

Divorce Mediation: What is it and is it right for you?

The idea of mediation in a divorce context can be confusing. In a divorce case, there are two types of mediation. The first type of mediation is when parties have exhausted all forms of negotiation and hire a neutral mediator to assist with reaching an agreement to resolve issues in a divorce case. The second type of mediation is when parties hire a mediator to assist them with the entire process of the divorce by being involved from the very beginning including assisting them in filing, negotiating a settlement, and drafting documents to be filed with the court on behalf of both parties.  This is commonly referred to as a “mediated divorce.”

It is important that people understand the difference between the two types of mediation when contemplating divorce and whether or not involving a divorce mediator is appropriate in a given case. For purposes of this article we will focus on the second type of mediation which is mediated divorce.

Recently, many family law firms are trying to capitalize on the 2017 law change which allows attorney mediators to draft and file documents with the courts on behalf of a divorcing couple.  Prior to the law passing in 2017, a mediator could work with couples in a neutral capacity to help them reach an agreement, but a mediator could not draft documents or file documents with the court for them.   Since the law changed, couples can now hire one lawyer to draft necessary pleadings, file them with the court and work with them in a neutral capacity to reach an agreement resolving issues in their divorce case.  The idea of wrapping your divorce up in a neat package where only one attorney is needed sounds immensely appealing.  And, in many cases, a mediated divorce can work for couples.  However, we have seen a substantial upswing in clients who start the process of mediation too early resulting in a failure of that process.  They are uninformed because the mediator failed to require full financial disclosure or failed to draft Financial Disclosure Statements prior to starting the process of trying to reach an agreement.  So, how do you know if divorce mediation is right for you?

Understand what mediation is and what a mediator can and cannot do for you.

A divorce mediator is neutral and does not take a position for or against either party or give legal advice to either party.  As a neutral, a mediator can inform you of the law and provide calculations for support, property division, and other divorce related issues.  A mediator can draft legal pleadings and file those forms with the court.   As a neutral, the mediator works with the couple to help them reach an agreement. With the new mediation rules in family cases, a divorce mediator can also draft and file the legal pleadings with the court making it easier for a divorcing couple to navigate the court procedures.

But what happens if you have questions about whether the settlement agreement is a good agreement for you and your situation?  What if you have questions about how the law applies to you alone and not the couple?

A divorce mediator cannot give you legal advice.  Therefore, all those questions will remain unanswered because if the mediator were to answer them, he or she would be providing legal advice.

What if the agreement is not fair?  How will you know?

Simply speaking, you won’t.  The mediator is not able to advocate for either party.  Therefore, absent having your own attorney, you will never know whether the agreement is fair to you or, quite frankly, could be better.  Any suggestion by the mediator in this regard would be considered advocating and is forbidden.

Consider whether mediation is appropriate for you.

The goal of mediation is to facilitate a resolution of issues and a stipulated agreement, but how do you know if you can reach an agreement before you know what all the potential options are?  Many times we see a client who thinks they have an agreement but as the mediator discusses different aspects of the process (i.e. placement schedules, custodial decisions, child support, tax deduction, maintenance and property divisions), more and more questions arise.  Without the benefit of legal counsel to advise you, it is truly impossible to know if you have a fair and equitable agreement.  If you have any questions, hesitations or concerns, it is imperative to speak to a lawyer before embarking on the mediation process or making any final decision in mediation. Even if you decide to hire a divorce mediator, you are still free to hire your own attorney to review your divorce agreement and discuss settlement ideas. Your divorce mediator should always support a party’s legal right to consult with or hire an attorney.

Research your mediator.

When the law changed in 2017, many law firms saw this as an opportunity to simply generate additional revenue for their firm.  The tag line of an “easy” and “flat rate” divorce or mediation sounds appealing and draws the attention of many savvy consumers.  However, mediators need to be experienced and properly trained.  Simply because a law firm advertises “mediation” does not mean that the attorneys have the experience or training to successfully help you.  The process to become a mediator requires hours of training and years of experience.  Commencing the mediation process with the wrong mediator will all but guarantee that your experience will only be more stressful and expensive.  When interviewing mediators, you should ask if they have taken the requisite 40 hour training program.  Inquire as to the number of mediations they have conducted. Inquire about a mediator’s experience and years in practice.

Beware of motivations.

Very frequently, we hear that one spouse is pushing the other spouse heavily towards mediation.  We have heard clients tell us that their spouse has threatened them that if they don’t do mediation and/or if they do hire attorney, they will not agree to certain things, it will cost them thousands of extra dollars or “it will be war.”  This is typically because that spouse has the most to lose – for example, by having to pay child support or maintenance.  Threats and bullying are never a good start to a divorce, no matter what process you decide to use.  Keep in mind that your soon to be ex-spouse is not looking out for you.  And, a mediator cannot protect you in that situation like an attorney can by giving you sound advice.  At a minimum, you should consult with an experienced divorce attorney prior to entering into the mediation process so you have realistic expectations and knowledge of what you could be entitled to under the law.  This will help you reach the best agreement for you and your children in addition to feeling comfortable when making that final decision.

Mediation with the right mediator can work!

When it comes to mediation to resolve an issue when there is an impasse in a case, mediation as first described above is an excellent option too.

In the right circumstances and for the right reasons, mediation is an effective tool to avoid litigation and ensure that both parties are satisfied with the result.  There are very good attorneys and retired judges who are mediating that are experienced and charge reasonable rates.  In these situations, you will likely be completely comfortable and satisfied with the process and the results.  If you have any reservations, however, make sure you at least consult with an attorney as stated above.

Further, mediation is the preferred method of resolving disputes even when attorneys are involved.  Experienced divorce lawyers will often reach out to mediators to help resolve a case prior to engaging in litigation.  These mediators are either retired judges or attorneys who have been practicing for more than 20 years.  The cost to hiring a mediator too early and without the advice of attorney may result in increased legal fees, but more importantly, can have a long term negative impact on you or,  more importantly,  your children.

Attorney Alison H.S. Krueger at Nelson, Krueger & Millenbach, LLC is a well-respected and trained mediator.  Her primary experience is as a practicing divorce attorney, but she also engages in the mediation process where she deems it will be the most helpful.  She also charges a reasonable hourly rate given her years of experience in this field.  If you are interested in this process, please call us at 414-258-1644 to schedule a free consultation to discuss same.

 

I Hit the Jackpot! Does That Mean My Spouse or Ex-Spouse Did Too?

 

When someone wins the lottery, it can make headlines. When West Allis local Manuel Franco won the $768 million Powerball in April, it was big news for weeks. State lotteries are becoming a growing phenomenon, with the winnings often accruing well past the million-dollar mark. So, if you hit the jackpot, does that mean your spouse or ex-spouse did too?

Let’s talk lottery winnings and divorce. Say you’re in the middle of a contentious divorce, and the stress of it all has you on edge. You’re at the gas station filling up your car on the way home from work, and you feel like you need a win. So, you try your luck and buy a Powerball ticket. Unbeknownst to you at the time, that lottery ticket is going to make you a millionaire. The Wisconsin Lottery does the Powerball drawing, and you find out that your ticket won you the $400 million jackpot.

So, now you’re wondering – how does this big win impact my divorce?

The short answer is, those winnings are now property of the marital estate. Since Wisconsin is a community property state, the court is going to presume that your lottery winnings should be split equally. Although this may seem unfair, it is consistent with how family courts in Wisconsin split other assets (and debts) in a divorce. When considering the marital estate, the lottery winnings will go in the “assets” column of your estate, and your soon-to-be-ex will likely get a chunk.

Although Wisconsin is a community property state, that does not necessarily mean your spouse will necessarily get exactly half of the winnings. The court can unequally divide assets based on a variety of factors.  From an equitable standpoint, the court could decide that it is unfair to equally divide the lottery winnings based on the fact that the ticket was purchased after the divorce action was filed.  However, a recent case in Michigan found that the husband was required to pay the wife nearly one-half of his winnings under the same circumstances, finding that because he had regularly played the lottery during the marriage, the losses he incurred came from the marital estate so the winnings should be equally shared as well.

Further, the court will likely consider the “final” winnings from the lottery –even if you win a $400 million jackpot, there will be taxes and other deductions from that amount. So even though you win $400 million, it doesn’t mean your ex gets $200 million and you’re stuck having to pay the taxes and other deductions out of your share. Those should be split equally.

So, what happens if you aren’t in the middle of a divorce, but you’re paying child support to her pursuant to a court order from a prior divorce, or a paternity case?  Or, you aren’t divorced yet but you still would owe child support or possibly maintenance?

In situations where you are ordered to pay child support, the court generally weighs two factors when they set child support: your placement schedule, and your income. If you’re unsure how child support gets calculated, check our other blog posts for more information on calculating child support. So now you’re asking yourself – are my lottery winnings income? Those winnings aren’t regularly recurring (if you take the lump sum payout option), and you aren’t guaranteed future lottery winnings. How can they call lottery winnings “income”?

Unfortunately for you, the court can consider your lottery winnings as income when they calculate your child support. How they consider the winnings will depend (in part) on how you are being paid your winnings – did you take the lump sum payout option, or are you getting regularly recurring monthly payments of your winnings? If you are getting the regularly recurring monthly payments, then it is more likely the court will consider that “income” because it is regularly recurring and available for child support purposes. If, however, you take the lump sum payout, then it is less clear what the court will do. Child support is intended to “equalize” the households of both parents so that the children have similar experiences (and opportunities) at both parents’ houses. The court doesn’t want one parents house to the be “fun” house with lots of expensive gadgets and fancy food, and the other parents house to be boring. Clearly if one parent wins the lottery, the standard of living at their house is very likely to increase. Whether or not the courts would award the other parent a portion of your lump-sum winnings will likely depend on the facts specific to your case. It will also depend on the amount of winnings – if you win a $10,000 lottery, the court will look at those winnings differently than a $10,000,000 win.

Even though your winnings may be included for child support purposes, they may not be included for maintenance purposes.  The stated goal of maintenance under the law is to maintain your spouse at a standard of living enjoyed during the marriage.  Clearly, a large lottery jackpot is far above any standard of living that was enjoyed during the marriage.  There is a case in Wisconsin where the appellate court found that a post-divorce lottery win should not necessarily be grounds for an increase in maintenance to the other spouse for that reason.

The worst thing you can do, however, is to try to hide your winnings. Any time someone tries to hide assets during a divorce, the court could penalize that person by awarding the entire asset, or an unequal share, to the other party.  After all, one-half of $400 million is still $200 million dollars!

Navigating the family courts, whether its through a divorce of a paternity, can be complex. Introducing something like lottery winnings into the equation is likely to make things even more complicated. If you are going through a divorce of paternity case, contact the experienced attorneys at Nelson, Krueger & Millenbach, LLC at 414-258-1644 or at www.nkmfamilylaw.com for a free consultation to see what we can do for you.