What Is the Most Popular Time of Year To File a Divorce?

Divorce concept with gavel and wedding rings

When do people most commonly file for divorce? While there can be many reasons why individuals may consider filing for divorce, there are certain times of the year that courts see an increased number of divorce filings. In a recent article published by CNN, with an analysis by FindLaw.com, states that American divorce filings between 2008 and 2011 revealed a surge in divorces in the month of January, with divorce filings increasing and peaking in late March. The article suggests many reasons for this trend, and can be found here:

http://www.cnn.com/2017/01/09/health/january-divorce-month-matrimony/?iid=ob_homepage_deskrecommended_pool

In summary, this article suggests that many people make up their minds about a divorce before the holidays, but hold off until January to avoid appearing heartless to family and friends by ending a marriage during the holidays. Many people may also be motivated by budget issues to wait until after the New Year. The end of the year is generally when many people receive bonuses, which can be helpful when approaching the expense of a divorce. Plus, waiting until the New Year can allow couples to file their taxes jointly for the previous year, which can be beneficial for the parties facing a divorce.

It is suggested by psychiatrist and author of “The Intelligent Divorce” book series, Mark Banschick, that the start of the year, for many people, is an “existential moment,” where people self-assess their lives and determine that life is too short, and that the current version of who they are is unhappy. He notes that the best time for a divorce is when an individual feels centered about who they are and what it is that they need in life.

Surprisingly, another time of year that people commonly file for divorce is in September. Traditionally, summer is the time for family vacations because the children are home from school, and many people do not want to start trouble at this time. Summer is also wedding season, and many people do not wish to attend weddings in the middle of a divorce. So, similarly to the end of a busy holiday season, people tend to feel like the time for togetherness is over, and it is time to get back to real life.

To those of us involved in the area of family law, it is clear that a divorce is a difficult decision for anyone to make at any time. The decision to proceed with a divorce can have a profound effect on the individual’s family, financial well-being, and daily life. If you are facing this difficult decision, call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.

Divorce from the Child’s Perspective

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

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.

Issues Remain Unresolved Regarding Same-Sex Divorce in Wisconsin

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.

Wisconsin Legislators Taking on the Issue of Revenge Porn

Revenge Porn refers to the practice of ex-lovers or ex-spouses sending or posting compromising or romantic photos of their former significant other to a (or multiple) third party in order to humiliate that person. This practice has become alarmingly popular on social media networks and electronic communication.

This is something that family lawyers see all too often in cases. Ex-lovers or ex-spouses sparring with each other over social media, and crossing the line of exposing personal and private moments. Most often we see instances where the photographs were consensual photographs when taken, however when the parties break-up, they are used to harm someone. Obviously, this is without consent of the harmed party. While we vehemently advise clients against engaging in this practice for many reasons, there is no current law that deals with this issue.

Wisconsin lawmakers are looking to change that.

Under current law, anyone who possesses, reproduces or distributes an image of a nude person that was captured without that person’s consent faces a felony charge that carries a maximum sentence of $10,000 in fines and three-and-a-half years in prison. This is seen in family law cases of, for example, stalking and restraining orders.

Under the “Revenge porn bill”, anyone who disseminates a nude picture without the subject’s consent, regardless of whether the subject granted consent to capture the image, would be guilty of a misdemeanor punishable by up to $10,000 in fines and nine months in jail. This bill, if signed into law, would prohibit the specific instance discussed above.

On Tuesday, November 12, 2013, the Wisconsin Assembly passed this proposed law with ease. The state Senate will review the Revenge porn bill next, but not until after the new year.

Prohibited by law or not, we strongly discourage ex-lovers and ex-spouses from using private photos against each other, even if they were consensual photos when taken. Participating in revenge porn, or other harmful social media practices could effect custody and placement determinations by the court. Please see our previous blog for more on related social media issues in family law.

Same Sex Marriage in Wisconsin

Recently, the U.S. Supreme Court addressed the issue of same sex marriage in two high profile cases. The results of those cases has changed the laws regarding same sex marriage in many jurisdictions throughout the United States and how our federal government views those marriages.

In Wisconsin, our laws continue to prohibit same sex marriage. The impact, however, of the recent U.S. Supreme Court decisions has made issues involving rights of many married same sex couples in Wisconsin more complicated and confusing when it comes to their federal rights.

In one of the decisions, the U.S. Supreme Court struck down the provision of the Defense of Marriage Act (1996) (“DOMA”) that says that marriage must be between a man and a woman. As a result, the federal government cannot refuse benefits to same sex couples who are legally married and reside in a state that allows the same.

Unfortunately, each federal agency/program has their own rules to grant rights and benefits to married same sex couples who reside in states which do not allow such marriages. As a result, there is a lot of inconsistency as to how federal rights and benefits are awarded to same sex couples who are legally married in one state, but reside in a state that does not recognize such a marriage. The decision to award such federal rights and benefits is then based on whether the agency/program follows the “Place of Domicile” rule or “Place of Celebration” rule. It is important for such couples to know their rights.

Presently, there are 13 states that allow same sex couples the right to marry. It is common, however, for couples to move between states or marry in one state and live in another. As a result, there are many couples whose legal status and right to benefits come into legal question.

While Wisconsin does not allow same sex marriage, if you are married legally in a state that does allow such a marriage and you then move to Wisconsin, it is important to know your federal rights as a spouse. Further, spouses should consider registering with the Wisconsin State Domestic Partnership Registry which currently entitles those spouses to 43 rights within Wisconsin, including for example, the right to spousal privilege in legal proceedings, Family Medical Leave Act benefits, etc.

Married same sex couples in Wisconsin should consult with appropriate legal counsel to address estate planning issues, issues involving common children, and other property related issues.

Should such a marriage deteriorate to the point of divorce, it is also important to consult with a family law attorney knowledgeable in this field to discuss legal options to terminate a marriage even if the State of Wisconsin does not legally recognize that marriage.

Family Law from the Voices of Students

I recently spoke to a group of high school seniors during their Government class. The class was studying a unit on courts, attorneys, judges and other legal proceedings, so a friend of mine thought it would be informative for his class to hear from a practicing attorney.

I remember the attention I paid (or lack thereof) when I was in high school to a guest speaker, so I went in with the expectation that I would do forty-five minutes of speaking and maybe interest one student enough that (s)he would ask a question regarding family law. Well, I was wrong.

The students were between the ages of seventeen and eighteen and were surprisingly intrigued by what I do. So much so, that I was asked many questions that I did not have time to answer. I quickly realized as we began our discussions that it is not just people who come in to our office who deal with family law issues on a day-to-day basis. Even though I was speaking to students, family law is a relatable topic to them as well. I found it very interesting as to which topics interested the students.

The most common questions I answered were related to situations regarding “friends” of the students. Below are two of the examples of the questions I answered:

1. My friend got someone pregnant and even though he has a positive paternity test showing he is the father, his ex-girlfriend won’t let him see his kid. What can he do so he can have some time with his kid?

Depending on if the child or mother are receiving aid from the state (for birthing expenses, food stamps, and otherwise), the State may begin a paternity action on its own motion. However, if Paternity has been established through DNA testing and the State is not involved, then the father may file an action with the court to establish paternity. Either way, the father and mother are required to attend an initial paternity hearing where temporary orders would be made regarding placement, custody, child support, past-due child support, birthing expenses, health insurance coverage, tax exemption, and the child’s last name.

A lot can happen at an initial hearing, so I recommended preparing and progressing through these proceedings with the help of an attorney. Many young parents meet with attorneys after an initial paternity hearing, and often times it is as a reaction to receiving a negative ruling in Court. As you may suspect, it is much harder for an attorney to backtrack and modify “negative orders” then it is for someone to get an attorney at the beginning stages, where the attorney can be proactive and prepare a client correctly for the first and all hearings in these types of matters.

2. My friend’s parents got a divorce because my friend’s Mom cheated on her Dad. Her Dad keeps telling her Mom “I’m going to take you to the cleaners, the Judge is going to give me everything because you were unfaithful to me!”

It is very common, as a child of divorce, to experience and be witness to high emotions when your parents marriage is deteriorating due to one parent, or both, having an affair.

Wisconsin is a no-fault state, and therefore the wife’s affair is not something the Court will prioritize, or sometimes even consider, in making decisions on his divorce. In order to get a divorce in Wisconsin the court only needs to find that the marriage is “irretrievably broken,” and that the wife is not currently pregnant.*

The only possible exception to this is when there are children involved and the parents are arguing about placement and custody (legal decision-making) of them. In this instance, a parent may argue that the children are being harmed by a new relationship. Then, a Guardian Ad Litem–an attorney who advocates for the “best interests of the children”–will likely be appointed by the Court. That attorney may take into consideration the wife’s behavior if, for example, it is not in the best interests of the children.

The lesson I learned from my experience is that teens are very interested in family law and that they are as affected as much, if not more, than adults by a divorce or paternity.

 

-Madeleine Thompson-Davies

*Please see our blog on marital presumption in Wisconsin (here) to better understand why the wife must not be pregnant at the time of divorce.