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.

 

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

When people suspect that their spouse is cheating, they often ask if we can obtain their cell phone records to prove it.

If you are looking for documentation regarding telephone calls, this is readily available via subpoena but meaningless.  A phone call proves nothing.  However, now we are seeing more requests to obtain copies of text messages.  While it seems like this would be a simple task involving a subpoena and a small fee, the truth is that it is nearly impossible to preserve and obtain text messages directly from the carrier.

You may be able to get a log or history of text messaging details (date, time, number) fairly easily. However, most carriers only save the content of text messages for a period of 48-72 hours.  After this time, the text messages are forever purged from the server or database.  The amount of storage required to save every text message sent from every cell phone user prohibits retention of these messages for more than a short period of time.  In order for the carrier to save messages for more than their specified period, they need to be aware of the requirement to preserve the messages.  Every carrier differs in their expectation, but to save messages it requires that an attorney send a preservation letter to the carrier.  This preservation letter informs the carrier that it is necessary for them to retain the messages for greater than a 48-72 hour period.  Most carriers will only “preserve” the messages for two weeks.  If it is necessary to preserve texts for a longer period of time, numerous preservation letters are required.  Some carriers will honor preservation letters sent from an attorney.  Other carriers require a subpoena issued or signed by a judge or court official.  You would have to contact your carrier’s legal department on their requirements for preserving and certifying text messages.

A subpoena of text messages requires a proactive approach which, depending on your reasons for the text messages, may prove to be cost prohibitive or irrelevant.   The question then becomes, why do you want these records?  In Wisconsin, we have a no fault state.  It is completely irrelevant in a divorce that your spouse was cheating in your case.

If you suspect your spouse is cheating, the appropriate response is to confront your spouse and/or get into counseling, either individual or marital, immediately.  If counseling does not work or is not an option, then you need to consider whether you want to file for divorce.  If you file for divorce, you need to accept that Wisconsin is a no fault state and move on to the issues in your case rather than focus on adultery or alleged adultery which is not going to be relevant in your case.  Focus on making sure you that you and your children are protected in your divorce and that you obtain the best possible result for yourself.  Hire an experienced divorce attorney to assist you in this.

To discuss a divorce in Wisconsin, contact our office at 414-258-1644 to scheduled your free initial office consultation or visit our website for more information.

10 Do’s and Don’ts in a Wisconsin Divorce

  • DO NOT ignore communication from your attorney or the Court.  Although, at times, the frequency of communication may be overwhelming or stressful, it is important that you promptly review email and letters and respond to those and all phone calls.
  • DO know that one attorney cannot represent both parties in a family law matter.  If your spouse has hired an attorney, it is in your best interests to do the same.
  • DO promptly update your attorney’s office with changes in your contact information.  If you move or obtain a new phone number or email address, advise your attorney’s office immediately, so that they can keep in contact with you.
  • DO NOT assume that your attorney is aware of all issues within your case unless you advise them.  In order to minimize your legal costs, your attorney may assume a “no news is good news” approach.  In other words, if your attorney does not hear from you, they will assume that you do not have a legal need.  If you have questions or concerns, contact your attorney at any time.
  • DO NOT be ashamed if you need counseling or psychological help to deal with the stress and pain of a divorce.  Seeking help to ease you through the process may be one of the best decisions that you make in your case!
  • DO keep copies of all updated financial documents regarding your income, assets and debts.  Make sure that you provide your attorney with copies on a regular basis.
  • DO update your Financial Disclosure Statement whenever changes occur! This is especially important if you change jobs during the pendency of the case.
  • DO NOT discuss your divorce case with your children or allow anyone else to do so!  Your children should never be aware of court proceedings or issues in the case.  It is in your children’s best interests to be protected from the details of your divorce.
  • DO support your children’s relationship with their other parent.  Sometimes, this can be emotionally difficult, but all children benefit from a relationship with both parents.
  • DO work with your attorney to ensure the best possible outcome in your divorce case.  As your attorney, it is our job to educate our clients regarding the law to help you set realistic goals supported by law and help you make smart legal decisions.  In order to successfully proceed through your divorce, ask questions, listen to advice from your lawyer, respond to communication, attend all scheduled appointments and hearings, provide all requested information.  If you do this, you will be a prime position to protect your legal rights and survive your divorce case without unnecessary emotion or financial cost.

To schedule a free initial office consultation to discuss your divorce or alternatives, please contact us at 414-258-1644 or visit our website for further information.

-Alison H.S. Krueger

Discussing Your Divorce With Others

A recent Dear Abby column caught my attention (2nd letter):

DEAR ABBY: Please pass along this suggestion to your readers: If you’re separated or getting a divorce, use discretion if you’re tempted to talk about it.  The more you bad-mouth the person you are divorcing, the more people will reject you. It may not seem fair, but it’s true. People will “forget” that you never complained before and say, “I didn’t know she was so vindictive. No wonder he left!”  You will do yourself additional damage by ranting to co-workers. You’re paid to work, not talk. Your co-workers are paid to work, not listen.

. . .

Your pain will linger for months, but the patience of your friends and co-workers will fade. My co-worker managed to bore all of us. She quit therapy to spend the money redecorating her home to “erase him from her life.” Not only did she lose all sympathy in that shortsighted, shallow act, she also lost precious time she should have spent healing and becoming strong and independent.

–TIRED OF LISTENING IN MARYLAND

So, how are you supposed to behave when faced with a divorce?  Are you supposed to discuss your divorce with others?  Of course!  Sometimes, you just need to talk about it.  Sometimes, you are so angry, your feelings spill out.  That is understandable but “Tired” does have a point.

The very first, and most important, thing to remember is to not talk about your feelings or express your anger to or in front of your kids!  I cannot stress enough how much damage you can do to your children by engaging in this type of behavior.  People think that children, especially older children, “have the right to know” what is going on.  Or, they talk to their children instead of friends or family because they are the closest to the situation.  Even if kids ask, they do not need to know the details of your divorce.  They are not mature enough to handle that kind of information, even if you think they are.

I think the point of the Dear Abby letter is not that you shouldn’t talk to your friends or family but that you should be careful of what and how much you share.  If you are having trouble dealing with the situation or of letting go of your anger, you should seek counseling or a support group to help you deal with your divorce.  While friends and family are a good source to “vent to” once in a while, they are not trained professionals and cannot help you move forward with your life.

You should also not share with strangers or in your workplace.  Let’s face it, they really don’t want to know all the gory details.  This creates an uncomfortable situation for them and you may regret it down the road.  Do you really want casual or business acquaintances knowing the intimate details of your life?  Once you calm down, you will realize probably not and will regret the details you have shared.

I have heard stories over the years – people who call their spouse’s boss to share “what they did”.  Or, even worse, telling teachers or daycare professionals the details of the break-up.  You might think that you are trying to get people on your side which will generate sympathy for you but what you are really doing is making everyone uncomfortable and creating possible unforeseen circumstances.  You could, for example, cause your spouse to lose their job which will hurt you and your children in the long run when there is no income to pay support.  Or, you could lose your daycare provider because they don’t want to be put in the middle of you and your spouse.  You could also have difficulty in a custody or placement dispute if you are seen putting your own needs above those of your children. I have seen all of these things happen.

Keep in mind that how you deal with your divorce will create long-term consequences for you and/or your children.  No one blames you for being upset or angry.  But, you do not need share the details of your divorce with everyone around you which could be damaging to you, your career, your relationships and your children.  Think before you speak and if you are having difficulty doing that, seek counseling or support from a professional.

Teri M Nelson

New Protections in Wisconsin for Domestic Violence Victims

Governor Scott Walker signed several new bills into law this week which grant greater protection for domestic violence victims.

One law- called the TraJa Act- was named after Tracy Judd and her daughter Deja who were murdered in a domestic violence incident in Madison in 2009.   This law makes a third domestic violence conviction within 10 years a felony and gives judges the ability to impose harsher penalties on repeat domestic violence offenders.  It also expands the definition of a repeat offender as someone who commits domestic violence within 72 hours of a prior domestic violence arrest.  Another bill which was signed also allows judges to treat committing an act of domestic violence in front of a child as an aggravating factor during sentencing.

Gov. Walker also signed into law a measure which allows victims of domestic violence and stalking to keep a name change confidential.  Current law requires that public notice be published prior to a name change.

For more information about how to obtain restraining orders to protect against domestic violence, please see our website.

Divorce Headlines – Week of April 2, 2012

In researching blog topics this week, I ran across two headline cases.  Both deal with a divorce in a unique way.

The first headline was that Heidi Klum filed for divorce from Seal.  Celebrity divorces are nothing new.  They fascinate us because they are windows into the lifestyles of the rich and famous.  Money can’t buy happiness – whether in life and marriage.  In fact, the stress of a high-profile life seems to make success at marriages even more difficult than that of most people.  This case, in particular, seems to be attracting interest only because the couple seemed happy with no outward signs of trouble.  They still are refusing to release details, for the sake of their children.  Thank goodness some celebrities still have integrity and case about the welfare of their children above all else.

The second headline which I found is controversial in the extreme.  A Maryland court denied the request for a divorce to two lesbians based on their same-sex marriage.  Maryland does not allow same-sex marriage but the couple was married in California during the period when same-sex marriage was legal.

Without commenting on the specifics of this issue, I will only say that the law often does not keep up with social developments or even technological developments, for that matter.  When sweeping changes occur in society or technology, it often takes years for the courts to catch up.  In the interim period, we have a sort of limbo in which individuals get caught up with no way to address specific issues.  Unfortunately, the victims of this can sometimes be children such as when surrogacy or in vitro fertilization was in its infancy.

In Wisconsin, we tend to be more conservative in our laws, especially as they relate to divorce and family law.  As an experienced divorce attorney at Nelson, Krueger & Millenbach, LLC, I would say that the family law courts in Wisconsin in particular tend to be conservative in their rulings.  This avoids these types of ground-breaking legal issues which often take years to resolve.