What is a De Novo Review in Wisconsin?

In Wisconsin, many people may find that their family law matters, or restraining orders, will be heard in front of a court commissioner. This is because the courts are able to delegate this authority in order to more efficiently use the judge’s court calendar. However, if a party believes that a court commissioner gets the decision on their issue or issues incorrect, that party has recourse.

Pursuant to Wisconsin State statutes, any decision of a court commissioner shall be reviewed by the assigned judge, upon a motion of any party.  Essentially this is an appeal of that decision and it is called a “de novo review”, which means the judge will review the issues in a new hearing as though there was never a hearing and ruling by the court commissioner. This motion for a hearing de novo must be made in writing. The judge are supposed to allow both parties to testify again, review all of the evidence, hear witnesses, and then the judge will make a determination on the issues pertaining to the original filing that brought the parties in to court the first time.  However, it is important to note that many judges handle these types of motions much more informally and try to avoid a full second hearing, except for restraining orders, although they are required to do so by law.

There are certain time limits for filing a motion requesting a de novo review, and these limits are set by each county in their local court rules. In general, if your issues are a part of a family court matter (regarding custody, placement, child support, maintenance, contempt, or post judgment issues), the party seeking a de novo review shall usually have about 10 -15 business days, depending on the county in which your case is being heard, from the date the court commissioner signs the order and gives it to the parties at the hearing. If the court commissioner does not give each party and attorney present a written copy of that order, then the party seeking a de novo review may have a different time period from the date of mailing the order.  If you believe that the court commissioner’s order is unfair, it is extremely important to ask at the time of the hearing what the time period for a request for a de novo review is in that county and to file that request as soon as possible following the hearing.

If a party is seeking a de novo review of an order involving the granting or dismissal of an injunction (restraining order), there may be a different deadline.  For example, in Milwaukee County, the party seeking the de novo review from a family court commissioner case in a divorce or paternity shall have fifteen (15) days from the date of a hearing, providing they receive a copy of the order immediately, but shall have thirty (30) days after the court commissioner issued the order or ruling in a restraining order. It should be noted that the thirty day deadline includes weekends and holidays but a deadline less than thirty (30) days does not. These slight variations in deadlines make it important to check with your county’s local court rules to ensure that you do not lose your right to request a de novo review.

It may be the most practical to file for a de novo review hearing immediately after your hearing if you believe that the court commissioner made the wrong decision in your matter. If you believe that you need a de novo hearing, or that a party has filed for a de novo hearing in your matter, call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.

 

Can My Spouse and I Use a Mediator Instead of Lawyers In Our Divorce?

Mediation - dispute resolution process.

Many people ask if they can use a mediator instead of lawyers in a divorce.  Recent changes by the Wisconsin Supreme Court, redefining the role of a mediator in a divorce action, have caused many people to ask this very question.  In order to determine what is right for you, an understanding of the difference between Lawyer-Mediator and Advocate Attorney is needed.

Typically, a mediator’s role has been to help parties find solutions to disputes from a neutral, third party perspective. Mediation is confidential and scheduled outside of court, so it aims to promote open, honest and unreserved discussion between the parties. Mediators can benefit parties in a divorce by helping suggest constructive alternatives to the positions of each of the parties and to help to find a reasonable solution based on the presentation by both parties. Mediators will sometimes prepare a short and neutral-toned memorandum of the agreement between the parties if agreements are reached. Then, the parties are responsible for ensuring that an agreement is drafted and submitted to the court so that it becomes an order of the court.

Recently, however, the Wisconsin Supreme Court has approved the expansion of the role of a lawyer serving as a mediator.  Specifically, “lawyer-mediators”, are now permitted to draft, modify or file documents confirming, memorializing, and/or implementing the parties’ mediated agreement.  In order to do so, the law requires that the lawyer-mediator maintain neutrality throughout the process and also have the written informed consent of the parties.

As this new rule is rolled out (effective date of July 1, 2017), it is important to understand that lawyer-mediators are not interchangeable with advocate counsel.

In fact, as part of the written “informed consent” that the lawyer-mediator must obtain the lawyer-mediator must inform the parties that it is important to seek independent legal advice before executing any documents prepared by the lawyer-mediator. This is done because the lawyer-mediator cannot assume an advocate role. Therefore, a mediator does not necessarily replace the need for an attorney to advocate for your interests.

By nature, mediators must be neutral.   Mediators are hired to help the parties reach an agreement and not advocate a certain theory or provide advice to the parties.  Therefore,  lawyer mediators may only perform these additional duties allowed under the new rule if it can be done without compromising his or her neutrality and so long as they do not assume an attorney-client relationship with either party.  This means that any document drafted by the lawyer-mediator would need to be a “neutral” document; that the lawyer-mediator shall not attempt to advance the interest of one party at the expense of the other party; and that the lawyer-mediator may not give legal advice to either or both parties while acting in that neutral capacity.

This can lead to issues however, because often times one or both parties do not understand all of the consequences of their decisions. An attorney acting as neutral mediator may attempt to explain these consequences to the parties in mediation but only if they can do so without giving legal advice, without acting as counsel for either party and without compromising his/her neutrality. Practically speaking, this is a very difficult task when many issues impact the parties differently in a family law matter. As is often the case in family law matters a question from one party may have an adverse effect on the other party.  How does a lawyer mediator answer questions without giving legal advice or advocating (albeit innocently) for one party or the other? At Nelson, Krueger & Millenbach, LLC, we believe mediation is a valuable tool and resource in many family law matters. As such, we often use the assistance of lawyer-mediators in cases where we need a neutral opinion on unresolved disputes.  However, at all points during the case, and during the mediation, our clients have an advocate who is consistently working to advance your interests and explain the consequences of your decisions.  This is not a benefit afforded to litigants who move forward with mediation without the benefit of advocate counsel.

Lawyer-mediators also cannot act on the behalf of a party in court, cannot assist the parties in court matters such as scheduling or procedure and cannot appear in court with the parties.  Many people are confused and intimidated by the court system.  Advocate counsel can assist you in all aspects related to the court system itself.

So, while lawyer-mediators may assist advocate attorneys greatly in family law matters, they have different roles than advocate attorneys and that should be well understood before the decision is made to use only one or the other.

If you have a family law matter that you wish to discuss with an advocate attorney at our firm, please do not hesitate to call our office at 414-258-1644 to set up a free consultation with one of the attorneys.

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.

Prenuptial Agreements in a Divorce in Wisconsin

Ein Ehevertrag mit zwei goldenen Eheringen

Prenuptial, or Premarital, Agreements are legally binding contracts entered into by couples before they get married to each other. They are also called Marital Reclassification Agreements. The purpose of a Prenuptial Agreement is to opt out of marital property laws in whole or in part. Most prenuptial agreements establish the financial rights of each spouse in the event of a death or divorce. It is important to note, however, that unless a Prenuptial Agreement specifically discusses what happens in the event of a divorce, it does not necessary apply in a divorce.  If all requirements are met, however, prenuptial agreements are generally found to be valid in Wisconsin.

Some common circumstances where prenuptial agreements are entered into are when one spouse is significantly wealthier than the other spouse, when a spouse has children from a different marriage or relationship, when one spouse has a family business he/she wishes to protect from the other spouse in the event of divorce, or when one spouse has significant debt that the other spouse does not want to be responsible for in the event of divorce.

Pursuant to statute, Wisconsin law presumes that all assets shall be divided equally in the event of a divorce. However, a Prenuptial Agreement could overcome that presumption if it specifically addresses what happens in the event of a divorce and if the court determines that it is a valid Prenuptial Agreement that will be upheld in a divorce. Additionally, it is important to know that parts of a Prenuptial Agreement may be upheld by the court, while other parts may not be. The court has the discretion to uphold all, none or only parts of the Prenuptial Agreement.

When deciding whether to uphold a Prenuptial Agreement, the court must insure that certain requirements and standards are met in order for all or part of a Prenuptial Agreement to be enforced and upheld at the time of the divorce. Some of the factors that the court looks at to determine whether a Prenuptial Agreement should apply in a divorce are whether or not the agreements were fair at the time of the signing of the Agreement (i.e. did the parties knowingly and voluntarily enter into the agreement?), whether there was a complete financial disclosure by both parties, whether both parties had adequate legal representation and whether or not a Prenuptial Agreement is fair at the time of the divorce (i.e. has their been a substantial and unforeseeable change in circumstances?).

An example of a situation that may be scrutinized for lack of fairness at the time of entering the agreement is the following: When the husband-to-be is insisting on a Prenuptial Agreement and only presents it to the bride-to-be on the eve of the wedding day (guests have already come to town, non-refundable deposits have been paid). In that circumstance, the bride-to-be may sign the Agreement without sufficiently reviewing the Agreement, without fully understanding the Agreement and her rights under the Agreement and without fully grasping what she is giving up in the future. In the case, the court may decide not to apply a Prenuptial Agreement in a divorce.

If you have questions about a Prenuptial Agreement in a divorce, please call our office at 414-258-1644 to schedule a free half-hour consultation with an attorney.

New Privacy Laws and Your Family Law Case

A law book with a gavel - Privacy law

In July, the Wisconsin Supreme Court approved three new laws that will better protect your privacy during your family court legal proceeding. First, section 801.19 of the Wisconsin Statutes, will specifically protect the following numbers that are commonly found in your court records: social security numbers, employer and tax identification numbers, financial account numbers (i.e.: credit cards and bank accounts), driver licenses, and passport numbers. These numbers are often required for financial disclosure purposes, but this law will help protect the parties’ information by requiring these numbers to be redacted, and allowing this protected information to only be seen by the parties, their counsel, and the judge. This is especially relevant as the courts are moving toward electronic filing of case documents, and case records may be more readily available through online access.

Second, section 801.20 of the Wisconsin Statutes will require the parties to identify certain case types and documents as confidential at the time they are filed. All placement proceedings will be automatically identified as confidential. Plus, documents such as family financial disclosure statements and confidential petition addendum forms will also be automatically identified as confidential.

Finally, section 801.21 of the Wisconsin Statutes, provides parties with a procedure for motions to seal. This will allow parties to identify specific information, not already specified in section 801.20 of the Wisconsin Statutes, and move the court to seal or redact it based upon already existing authority to restrict public access. There are approved forms that may be used to protect the privacy of your information in court documents, and are available at https://www.wicourts.gov/forms1/circuit/index.htm. However, there may also be local forms and procedures necessary to better ensure that your information is protected. If you are unsure as to how to best protect your privacy during your family court case, call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.

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.