Post Judgment Modifications and Enforcement of Court Orders in Wisconsin

 

Change ahead warning sign over blue sky

In Wisconsin, spousal support (maintenance/alimony), child support, custody and placement (visitation) arrangements may be modified at any time under certain circumstances.  Situations can change which may require the court to modify your order. A change in financial circumstances may warrant a modification of child support or maintenance; whereas a physical or emotional change in your children, a change in schedule or a move may warrant a modification of placement.   There may also be times where you need the court’s assistance in enforcing orders.  If you have concerns regarding a modification or enforcement of a court order, the experienced lawyers at Nelson, Krueger & Millenbach, LLC can assist you in evaluating your case and navigate you through the process. Give the a call for your free office consultation.

What changes can warrant a modification?

 There are many situations which may warrant a modification.  The court will look at requests to modify placement and custody differently depending on how long it has been since the original order was made.   When considering a request to modify or change placement the court will look at;

  • Physical or emotional harm to the child
  • Changes in the child(ren)’s behavior and or grades
  • A substance or physical abuse problem
  • Move to a new city or state

When looking at financial modifications (i.e. child support, maintenance or family support), changes in income, job status, graduation of child or placement change may all be reasons to modify an existing order.

What can I do if the other party is not following court orders?

If your ex-spouse is not following the court order, you have options available to you.  Our attorneys are experienced in litigating contempt issues in Milwaukee, Waukesha and the surrounding areas.  There are remedies available to you.  If you are due child support or a medical bill payment, the court can garnish wages or even order jail time for non-compliance.  If placement is being withheld, the law allows for you to be awarded your attorney fees as well as make up time with your child(ren).  Give the attorneys at Nelson, Krueger & Millenbach, LLC a call at 414-258-1644 to set up a free office consultation to see how we can help you in your post-judgment divorce or family law issue.

Post Judgment Considerations for Child Custody, Physical Placement, and Child Support in Wisconsin

          Multi Ethnic People Holding The Word Change

Given the nature of custody, placement, and child support issues, parents can often find themselves going back to Court to request changes, or modifications, to an initial or previous order in their divorce or paternity matter. These matters are often referenced as “post judgment” matters. In Wisconsin, there are specific rules that apply to post judgment matters that are different than what parties may have encountered previously when they originally addressed these issues. The list below outlines some important rules and considerations for parents who may wish to initiate, or are involved in, a post judgment matter for child custody, placement or child support:

  1. When was your initial order entered by the Court?
    1. If a party is requesting a change to custody and placement within 2 years from the date of the original judgment, that party must provide substantial evidence that the change is necessary because the current conditions are physically or emotionally harmful to the best interest of the child. This rule makes a change to custody or placement much more difficult before the first two (2) years after the court’s initial order. The intended goal is to provide a cooling off period to help encourage parties to work together and avoid over using the Court system to settle their parenting disputes as well as provide stability for the children.
    2. If the initial order was entered over two (2) years ago, the Court can modify the current order if it finds that the request is in the child’s best interest, and that there has been a substantial change of circumstances since the last order.

 

  1. What is a “substantial change in circumstances” to change custody or physical placement?
    1. The term, “substantial change in circumstances” is very broad. It could mean a variety of things, such as, the parties’ inability to communicate, a change in work hours that effects a parents availability, a move, a change in a child’s medical or developmental needs, or a combination of several factors that makes the current custodial, or physical placement order unworkable. However, merely the passage of time or the aging of the children is generally not considered to be a substantial change in circumstances.

 

  1. What is the point of court ordered mediation?
    1. The Court requires parties attempt mediation in an effort to facilitate an agreement between the parties to avoid further litigation. Many parties are able to come to an agreement on some, if not all, issues in mediation. This benefits everyone involved because both the parties, and the Court, will save the time and the money necessary to proceed through the Court system. The only exceptions to mediation are if there have been domestic violence between the parties, child abuse allegations or one of the parties is impaired due to drugs, alcohol or mental illness.

 

  1. Why was a Guardian ad Litem appointed?
    1. If the parties cannot reach an agreement in mediation, the statutes require that the Court appoint a Guardian ad Litem (an attorney) in order to help determine what is in the best interest of the child or children. The Court relies on the Guardian ad Litem to conduct an investigation in order to provide a recommendation as to what solution to the parties’ issues is in the best interest of the children.
    2. In certain circumstances, such as in cases of domestic violence, the Court may decide to bypass mediation, and immediately appoint a Guardian ad Litem.
    3. There is usually a fee associated with the appointment of a Guardian ad Litem that both parties must pay. The Court will also set an hourly pay rate for the Guardian ad Litem as well. The county pay rate varies by county.

 

  1. What if I simply want to change the child support amount?
    1. If there has been a substantial change in circumstances, then a party may file a motion with the court to change child support. Child support will not automatically change simply because one parties’ income has changed. If you want child support to be changed, you must file a motion with the court. It is important to determine first whether there has been a substantial change in circumstances and what any new child support amount should be before you file a motion.
    2. A substantial change of circumstances to change child support is a very broad standard. It can mean that a party may have received a raise, changed jobs, lost their job, etc. It could also mean that the placement arrangement with the child or children has changed, which would also alter the support amount. Or, if one of your children has reached the age of majority and/or graduated from high school.
    3. If you believe that the other party has had an increase in income, you should request that they provide to you paystubs or some form of income documentation so that you can determine if you should ask the court for a change in child support.

Termination of Parental Rights- Frequently Asked Questions

alcoholismWhile our firm does not specifically handle termination of parental rights cases, we frequently are asked questions about this area of law. Therefore, this blog is intended to provide general responses to frequently asked questions regarding what does and does not trigger this type of action in Wisconsin.

It is important to know that in nearly all cases of termination of parental rights in Wisconsin, except in very limited circumstances as discussed below, there must be an accompanying step-parent adoption.  The court does not want to leave a child without two legal parents.  The general philosophy is an indifferent or even bad parent is better than no parent. Your child has inheritance rights and rights to see extended family, even if they seemingly receive no current benefit from their parental relationship.

Here are the answers to some of the specific questions we often receive:

Refusal or failure to pay child support: Frustrated parents who are not receiving child support from the other parent for the benefit of their children will sometimes ask if they can terminate the other parent’s rights to the child. Likewise, parents who are court ordered to pay child support and wish to stop that obligation will ask if they can terminate his/her parental rights to avoid a child support obligation. The answer is no to both of these questions. Refusal or failure to pay child support is not a trigger to this type of action.  The obligation to support your children remains no matter what kind of parent is on the other side.  The court will not allow your child to go without support just because the parent is a bad parent.

Failing to see the child(ren): If one parent is not seeing the child(ren) consistently it may prompt the parent who cares full-time for the child to seek a termination of the other parent’s rights. Generally speaking, however, this cannot happen unless abandonment is proven (failure to see or communicate with the child for longer than six (6) months without good cause) AND there is an accompanying step-parent adoption.  So, the simple fact that a parent is not seeing their child may not be a trigger to this type of action.

“Bad parenting”: The same idea applies here as it does for failing to see the children. Unless there is another parent willing to step in to the child’s life so the child has two legal parents, the court is unwilling to terminate rights due to someone being a “bad parent.” Further, the court does not entertain the idea of terminating a parent’s rights simply because one parent thinks the other parent is not a good parent. If, however, the issue of “bad parenting” is a serious issue (such as the parent committed child abuse) this could be a trigger to a termination of parental rights action.

Some of the grounds that do trigger a termination of parental rights action are mentioned above (i.e. abandonment and abuse). Some other grounds are: failure to assume parental responsibility, incest, sexual assault, homicide or attempted homicide of the other parent and a parent who has a continuing disability.

Like all areas of law, each case has specific and unique facts that may not fall squarely in these general overviews. As such, we suggest that you retain an attorney to help you navigate this most serious of actions.

For additional information about this type of matter, please see our previous blog related to this topic. https://wisconsinfamilylaw.info/2012/10/02/terminating-parental-rights-in-wisconsin/

Tax Considerations in a Divorce

Tax on dollar currency

Filing one’s taxes during or immediately after a divorce can be especially challenging. Before your divorce is finalized, there are a few tax considerations that should be addressed.  Addressing these issues prior to finalizing your divorce will help ease the transition during tax season post-divorce, and may help you avoid any negative tax consequences or an IRS audit. The following points should be considered during the divorce proceeding, and are important to discuss with an attorney or your tax preparer to determine the tax consequences of your divorce agreements:

  • When can you file as single, married filing jointly, married filing separately, or head of household, and which options offer the best possible benefits? Once your divorce is finalized, you are considered unmarried for the entire year of your divorce, this includes if you get divorced on December 31st. If your divorce is not finalized by December 31st, you will have to file your taxes as married filing jointly or married filing separately. There are rare occasions when you can even file head of household even though you are married.  Determining your tax filing status, should be done with the assistance of an experienced tax preparer with the goal of maximizing the best financial result to you and your spouse.  This may require you to work cooperatively with your soon-to-be-ex to determine the best means to file your taxes and to take advantage of the benefits offered by doing so.
  • Which parent can claim the child or children for the dependency exemption and take the applicable tax credits offered to parents? Generally, the parent with primary placement of the child(ren) may claim the child(ren) on their tax return. However, parties can negotiate who can claim the exemption in divorce cases or the court can order the same. It is imperative to include in the Marital Settlement Agreement an award of how each party shall claim the child(ren) on their respective tax returns.
  • What do parents need to claim the child(ren) as a dependent? Parents must complete an IRS Form 8332 “Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent,” to allow the other parent to attach it to his or her tax return if they are claiming the child(ren) Form 8332 is the document that allows a parent to claim a child on his or her taxes even though he or she may not fit the requirements under IRS rules to do so.
  • Do I have to report child support as income? Child support payments are not deductible by the paying parent or taxable to the parent receiving the child support.
  • Can I deduct maintenance payments? Maintenance payments (or alimony) are generally tax deductible by the party making the payment, and must be claimed as income by the recipient. It may be helpful to include a reference to the federal tax code IRC 71 in your divorce decree can ensure that the parties are aware of their responsibilities regarding maintenance payments.
  • Do I have to pay taxes on assets awarded to me in my divorce? A property transfer between divorcing spouses does not create any additional tax liabilities, if it is ordered in the divorce decree.
  • Do I have to pay taxes on retirement assets awarded to me in my divorce? In order to avoid tax consequences when dividing a retirement account incident to a divorce, a Qualified Domestic Relations Order or QDRO, may need to be drafted after the date of divorce to instruct the retirement plan administrator to divide the benefits as ordered by the divorce decree. If the recipient spouse does not liquidate such funds and follows the IRS rules to invest such funds into a qualified plan, there are no tax consequences to such a transfer.
  • Will I be audited post-divorce? You risk being audited if you do one or both of the following: 1. both parents claim the same child on their taxes, 2. The amount of maintenance the recipient lists on line 11 of his or her 1040 does not match the number that the payor lists on line 31a. It is always good practice to speak to your ex-spouse before filing your taxes to make sure that you are claiming the correct child(ren) and that the amount of maintenance listed as received on your tax form matches the amount of maintenance paid.

There are several considerations in determining what options are best for you to maximize your tax benefits and to avoid any additional tax burdens after a divorce. Because each divorce is unique, it may be important to speak with an attorney or a tax professional to best address the tax consequences of your proposed divorce agreement before finalizing your divorce. If you are getting a divorce and have questions regarding the tax consequences of the issues outlined above, call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.

How To Modify or Change Child Support in Wisconsin

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.

Girl Sues Parents for Support

In recent news, Rachel Canning, an eighteen-year-old high school senior from New Jersey, sued her parents for cutting her off financially. Specifically, she is alleging that her parents emotionally abused her to the point that she had to leave the family home and that since leaving the home she is unable to support herself financially.

Ms. Canning is asking the court to order her parents to pay the remaining tuition for her last semester at her private high school, pay her current living and transportation expenses, commit to paying her college tuition and pay her legal fees for having to take legal action.

On the other side, her parents state that there has been no emotional abuse, and that this is simply a case where a teenager did not want to obey the house rules, so she ran away.

Staff from New Jersey’s Division of Child Protection and Permanency (DCPP) investigated this matter and ultimately determined that allegation of emotional abuse was unfounded.

The Judge found no such ground to make a ruling in Ms. Canning’s favor at this stage in this case. The Judge denied the request for the last semester of high school tuition because the school agreed to allow her to continue despite her parents nonpayment. Additionally, the Judge denied the request for immediate financial assistance, as he did not believe this was an emergency situation.

The matter is not over however, and the Judge indicated that he would make further decisions at the next hearing.

In New Jersey, emancipation is the legal act by which a child is released from both the control and support of a parent. In essence, parents have a legal responsibility to support their child until the child has “left the scope of his or her parents’ authority.” See CNN article here.

In Wisconsin, there is no “legal emancipation,” except if the minor is married; however, a minor can take action for support against his/her parents. Parents have a legal responsibility to support their child who is less than 18 years old, or who is less than 19 years old if the child is pursuing an accredited course of instruction leading to the acquisition of a high school diploma or its equivalent.

Despite the states differences on actions that children can take and the remedies available, the New Jersey case highlights an interesting point to all about parenting decisions and minors’ rights to support.

Cases like the New Jersey case, where a child is seeking support or in similar cases where someone is seeking support for a child, are filed in Wisconsin as post-judgment motions to modify child support. If you or someone you know have any questions regarding post-judgment child support related issues, please contact our office at 414-258-1644 to schedule a free initial office consultation or visit our website for more information.

Child Support for High Income Payers in the News in Wisconsin

In recent Wisconsin news, a local resident Michael Eisenga is accused of helping a Wisconsin state legislator (Representative Joel Kleefisch) write a controversial bill that would benefit high income child support payers and, specifically, himself.

As reported in the Milwaukee Journal Sentinel on January 11, 2014 (see article here), the timing of the bill, the drafting contributions from Eisenga, and the financial contribution from Eisenga to the drafter, are drawing the most negative attention from the press. The bill was presented just two months after Eisenga’s most recent attempt to lower his child support payment. According to the above article, Eisenga has attempted several times in the past and been unsuccessful. Additionally, the article listed above states “in a set of drafting documents, Eisenga and his attorney, William A. Smiley, can be seen offering line-by-line instructions in emails, notes and letters to Rep. Joel Kleefisch’s staff on a bill aimed at capping how much high earners pay in child support.” Last, but not least, the article exposes Eisenga as a major contributor to Representative Joel Kleefisch, the Wisconsin state legislator who drafted the bill and to his wife, Lieutenant Governor Rebecca Kleefisch.

Regardless of the motivation of this bill, the impact of a bill like this has drawn a significant amount of attention of family law attorneys and people affected by child support laws.

In Wisconsin, a child support award must be set based on a percentage of the payer’s gross income, except for in certain circumstances when the court may deviate from these percentage standards based on certain factors set forth in the statute. The “normal” child support obligations are as follows for income up to $7,000 per month:

17% for one child
25% for 2 children
29% for 3 children
31% for 4 children
34% for 5 or more children

However, our child support system also allows for a deviation from the standard percentage amount of child support in the event a payer has high income. The higher the income, the more credit a payor may receive in the amount of child support he or she may have to pay. For example, if a payer’s monthly income available for child support is greater than or equal to $7,000 and less than or equal to $12,500, the percentage guidelines for that amount of income change to:

14% for one child
20% for 2 children
23% for 3 children
25% for 4 children
27% for 5 or more children

If payer’s monthly income available for child support is greater than $12,500, the percentage guidelines change to:

10% for one child
15% for 2 children
17% for 3 children
19% for 4 children
20% for 5 or more children

For example, if a payer has 2 children and gross monthly income of $13,000 per month, he or she would owe $1,750 (25% of $7,000 of income), $1,100 (20% of income between $7,000 and $12,500) and $85 (15% of $500 of additional income over $12,500), for a total of $2,935 per month.

The proposed bill Eisenga desired would have capped the income from which a percentage is drawn for child support at $150,000 per year. This would have taken away the discretion of the court in these high-income cases to determine support and also would have given a substantial break to high income earners by capping income available for support.  Making such a modification to the current child support system (which has no cap) would sharply limit the amount of support paid by the highest income earners in Wisconsin.

The bill has since been withdrawn by Representative Joel Kleefisch and therefore the current child support laws remain as is. However, given the press regarding this proposed bill, both positive and negative, it is likely that a bill regarding this issue will surface again in the future.