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!

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.

 

 

Can the Court Award Custody of a Pet in Wisconsin?

 

When going through a divorce, the process is typically focused on the “big” issues. For most couples, this includes the division of assets and liabilities, support, and the custody/placement of minor children (where applicable). Most attorneys and judges are well versed in these issues because they are foundational to divorces.

A less common issue is what happens to family pets in the divorce. Are they considered “property” to be valued and accounted for in the division of assets and liabilities? Or are they more similar to minor children, and require a placement schedule for each party to spend time with the pet? According to the current applications of Wisconsin state law, pets are generally considered “property” and will be considered in the division of assets and liabilities. Although parties can agree to share the custody and placement of their pets, it is currently an uncommon practice in Wisconsin and courts are unlikely to approve or enforce an order which attempts to address custody of a pet.

While Wisconsin does not have laws pertaining to “animal custody”, a recent national trend in the law regarding pets may change that. A number of states, including Wisconsin, have enacted laws recognizing the need to include companion animals in domestic violence protective orders, with some going as far as ordering that abusers pay financial support for pets in the care of a victim of domestic violence.  Wisconsin Statute § 813.12(4)(a) states, part:

A judge or circuit court commissioner may grant an injunction ordering the respondent to refrain from … removing, hiding, damaging, harming, or mistreating, or disposing of, a household pet, to allow the petitioner or a family member or household member of the petitioner acting on his or her behalf to retrieve a household pet…

Further solidifying this trend in recognizing pets as more than property, Congress signed a law entitled the Pets and Women Safety (PAWS) Act in December 2018. The PAWS Act provides shelter and housing assistance for domestic violence survivors and their pets, service animals, and emotional support animals. This law recognizes that pets are more than simple property to their owners..

Although Wisconsin does not have any laws specifically granting custody rights to pets in a divorce or family law case, the court can still consider the facts unique to your case.  Even though the pet is considered to be property, if there is a dispute as to who receives the pet, some of the factors the court may consider are: who first purchased the pet; was it purchased during the marriage or before; who is primarily responsible for caring for the pet.  These are all factors worth considering, and although Wisconsin law doesn’t require family courts in Wisconsin to consider pets as more than property, legislation like the PAWS Act makes it easier for attorneys to argue that pets deserve special consideration in legal actions.

If you have a divorce or family law matter involving a beloved pet, contact the experienced legal team at Nelson, Krueger & Millenbach, LLC at 414-258-1644 or visit our website at http://www.nkmfamilylaw.com to set up a free consultation.

 

Children as Beneficiaries on a Life Insurance Policy in Divorce

When divorcing parties have minor children, the parents may want to consider what could happen if either parent dies before their children become adults.. While this is a very unsettling topic to consider, it is important and necessary to think about and include specific language in your agreement so as to protect your minor children. It is common for the court to grant an order and/or for parents to agree to require the parents to keep in effect or to obtain a life insurance policy, naming the minor children as the sole beneficiaries. This policy would essentially cover the remainder of the “child support” should a parent pass away and certainly would provide more financial stability for the child’s benefit. The court can also order that if a parent does not follow this order, (for example, changes the beneficiary on the life insurance policy or cancels the life insurance policy altogether), then the policy amount must be paid to the minor children from the deceased parent’s estate.  However, the problem with this remedy for violating such an order of the court has recently been addressed by the Wisconsin Supreme Court.

Recently, the Circuit Court in Waukesha County addressed this issue when a parent passed away shortly after the date of divorce.  The father was to name his children as the beneficiaries on his life insurance policy, with the value of $250,000, pursuant to the Marital Settlement Agreement, but instead he changed the beneficiary to his new spouse. Upon his death, the new spouse received the $250,000 life insurance payout, not his minor children. Based upon the parties’ Marital Settlement Agreement, the court could force the parent’s estate to pay the $250,000, but the parent’s estate only had $5,600 in it. Obviously, this  was a significant shortfall and unfair to the parties’ children.

The Circuit Court acknowledges that this was a “raw deal” for the children, but believed that there was no other option but to seek compensation from the deficient estate because of the language of the Marital Settlement Agreement.  The Court of Appeals, however, determined that the Circuit Court’s decision was in error because family court is a court of equity, and such an outcome unjustly enriched the new spouse to the detriment of the minor children and was in violation of the Marital Settlement Agreement.. The Court of Appeals overturned the Circuit Court, and ordered that the $250,000 be placed in a constructive trust for the minor children.   While this result is what the parties originally agreed to in their Marital Settlement Agreement, it was very costly and time consuming to get to this end result and protect the children in the case.

One way to avoid this issue is to include very specific language in a Marital Settlement Agreement to account for this situation and specifically include language allowing for a constructive trust as a remedy.  It is difficult to discuss topics like death during a divorce. Unfortunately, these considerations are necessary, even during a stressful divorce, in order to best protect your minor children and to avoid an unnecessary court battle in the event that children suffer the loss of a parent.  It is important to retain an experienced family law attorney to assist you through this process and to be aware of the changing law in this field.

If you are in the process of a divorce and wish to protect your children’s future support, please call our office at (414) 258-1644 to schedule a free initial consultation with one of our family law attorneys to discuss your case.

 

What Are The Benefits Of Divorce Mediation?

 

Going through divorce can be a complicated, stressful, and costly process. Some couples, however, choose to work with a third-party neutral to help resolve disputes, alleviate stress, and reduce the expense of court litigation. This process is called divorce mediation. Many couples who choose to resolve their divorce differences through divorce mediation find the process to be empowering. Divorce mediation is an alternative form of dispute resolution that allows divorcing spouses to retain a strong voice in the outcome of their divorce settlement by agreeing in advance to attempt to resolve all issues in their divorce outside of court and with the assistance of a neutral divorce mediator.

Potential issues that may be resolved through divorce mediation are not confined to a specific area. A qualified, certified neutral divorce mediator can guide couples toward resolving complex issues related to:

  • Property division, including real estate, retirement accounts, other assets, and debts
  • Child custody and placement
  • Child support
  • Spousal maintenance
  • All other divorce related topics

The mediator in a divorce acts as a third-party neutral who works to facilitate discussions to resolve disputes involving any aspect of the divorce. Moreover, an experienced family law practitioner who is a certified divorce mediator and serves as a neutral in the case who can provide the parties with knowledgeable education and guidance concerning all of the available options to resolve a particular issue. This educational prong of the mediation process can help the parties to explore personalized solutions that best serve their individual goals and needs, rather than focusing on an all or nothing fight in court. It is important to understand that the mediator does not act as judge, seeking to impose a final decision to resolve disputes, nor can the divorce mediator provide legal advice. The mediator is a neutral in the case who works to facilitate reasoned discussions between the parties to arrive at workable and mutually satisfying solutions to disputes.

As of 2018, under Wisconsin law, your divorce mediator may now draft all of the documents to memorialize the final mediated settlement and the pleadings necessary in your divorce case.  In other words, from start to finish, a divorce mediator can assist you with facilitating your divorce through the court system. While the mediator does not represent either side, in preparing the legal paperwork, your divorce mediator can give you peace of mind that the documents are complete and follow Wisconsin law to reduce the potential for additional disputes down the road.

Avoiding litigation may reduce stress and higher costs of divorce

Mediation provides a range of important benefits that are not achieved through a long battle in court, such as:

  • More control over the outcome of the divorce
  • Reduced costs from the absence of litigation
  • Reduced stress through the elimination of litigation and contested hearings
  • A concurrent positive experience for the children of divorcing parents

Attorney Alison Krueger of Nelson, Krueger & Millenbach, LLC is a Certified Divorce Mediator. She can educate you and your spouse about the options to resolve your divorce disputes and the legal process to be divorced. Moreover, after you and your spouse have reached a settlement through mediation, Attorney Krueger can draft all of the documents to memorialize the final mediated settlement and the necessary legal documents to begin and end your divorce action through the court system. Properly prepared  legal paperwork with the assistance of a certified divorce mediator can give you peace of mind that the documents are complete and follow Wisconsin law to reduce the potential for additional disputes down the road. Moreover, Attorney Krueger can help you and your spouse prepare for court where a judge will finalize your divorce. This education on the process can help you to move forward with knowledge of what to expect, alleviating the stress of the unknown.

 

WHAT TO DO WHEN SOMEONE IS NOT FOLLOWING THE COURT ORDER IN A FAMILY ACTION

When you obtain a court order after months of litigation, sleepless nights and mountains of attorney bills, you expect that this court order will be followed.  However, what happens when your former spouse or the other parent in your matter does not follow the court order?  What are your remedies and what can you expect to happen?

If you are faced with a situation where a party is not following a court order, you may be able to file a motion to have him or her found in “contempt”.  Contempt is a legal term which means that a person is deliberately and intentionally not following a court order.  The remedy for a contempt can range from financial sanctions, jail time and attorney fees.

At the contempt hearing it is important that you have evidence supporting your claim for contempt.  For instance, if you file a contempt motion because the other parent has not reimbursed you for half of the kid’s expenses, the court is going to want to have evidence that 1) the expenses was actually incurred 2) you presented the expense and the receipt and 3) he or she refused to pay.  In this circumstance, if you file a contempt, but do not have evidence that you provided the expenses request (email, certified mail or Our Family Wizard confirmation)  the court will be unable to find that the other parent acted intentionally in not paying you.  Accordingly, he or she will not be found in contempt.    Conversely, if you have documentation of emails, letters or the like requesting reimbursement and the other parent simply refuses it is likely the court will find him or her in contempt.   A person can be found in contempt for failure to follow any court order and the evidence required to support your client will vary.  It is crucial for the success of your claim that you have all the supporting documentation before you file.

If you are successful at a contempt hearing and the court finds the other party in contempt, he or she must be granted a purge.  A purge is a set of conditions that need to be complied with in order to avoid jail time. If a purge is not met, then the other party will have to serve the jail sentence ordered at the contempt hearing.  If the purge is met, then the reason for the contempt has been alleviated and the issue is considered resolved.

Attorney fees may be awarded if you are successful with your motion.  The amount of attorney fees awarded will vary depending on the circumstances of each case, the severity of the contempt and the amount of financial damage the contempt cost you.  It is also possible that you will not receive attorney fees despite the court finding the other party in contempt.  Contempt motions can be very detailed and require evidentiary hearings.  However, it is important that you do not tolerate the non-compliance of a court order.  Meet with an attorney to discuss your options.  At Nelson, Krueger & Millenbach, we will meet with you to discuss your case and help you evaluate your options so you can determine the best course of action.  Call us at 414-258-1644 to schedule a free initial consultation or visit our website at http://www.nkmfamilylaw.com.

Sara’s Law: A Law Intended to Protect Family Law Attorneys in Wisconsin

Family law is a unique area of law, often accompanied by an overabundance of emotions. Strong emotions typically tie in with family matters such as divorce, child custody and placement issues, and maintaining the co-parenting relationship for divorced or separated parents. It is not surprising that there are certain risks inherent with the officers of the court (attorneys, judges, guardian ad litems, etc.) involved in family law matters.

A tragic example is the story of Sara Quirt Sann, a Schofield, Wisconsin family law attorney. Quirt Sann, along with three other individuals (Everest Metro Police Detective Jason Weiland and Marathon Savings Bank employees Dianne Look and Karen Barclay) were killed on March 22, 2017 when Nengmy Vang carried out a violent attack on Quirt Sann’s office. Quirt Sann had been representing Vang’s wife in a divorce.

Quirt Sann’s story prompted the drafting of Wisconsin Act 272, colloquially referred to as “Sara’s Law” in memory of Quirt Sann. Sara’s Law was enacted on April 11, 2018 and makes it a Class H felony in the state of Wisconsin to harm or threaten to harm a current or former guardian ad litem, corporation counsel, attorney, or any of their family. Sara’s Law further specifies that the harm or threat of harm is in response to an action taken during a proceeding or other action that affects the family (i.e. a “family law” proceeding). Until Sara’s Law, threats made against family lawyers were not treated the same as judges, prosecutors, and law enforcement officers.

If a person is convicted under Sara’s Law, it would mean they are guilty of a Class H felony, which could result in the mandatory surrendering of weapons, a $10,000 fine, and up to six years in prison.

Sara’s Law is the first of its kind in the United States, and could prove to be indicative of a trend in American law to recognize and address the intrinsic risks with practicing an area of law so wrought with emotion. The attorneys at Nelson, Krueger & Millenbach, LLC are sensitive to the psychological and emotional tolls of family law, and are skilled in navigating these difficult matters. Should you have any family law related questions, please feel free to contact our office at 414-258-1644 to schedule a free ½ hour consultation with one of our experienced attorneys.  Or, for more information, visit our website at http://www.nkmfamilylaw.com.

 

 

Tax Reform Bill May Have Significant Impact on Divorce Issues

 

The Tax Reform Bill that is currently before Congress includes a provision to eliminate the ability to take a tax deduction for alimony, or maintenance, payments.  If passed, this provision could become effective as early as January 1, 2018. This means that a divorce, legal separation, or modification orders entered into after December 31, 2017, would fall under the new guidelines of the Tax Reform Bill. Currently, the spouse who pays maintenance, or alimony, pursuant to a Court Order, can deduct those payments from his or her income. It is also important to remember that the proposed Tax Reform Bill may be subject to revisions, and must be passed into law, so these changes are not guaranteed at this time.  However, many people are concerned about the effects the new tax reform bill

will have on them, particularly if they are paying or receiving maintenance (alimony) or may in the future.  Therefore, we believe it is important to begin discussions of these possible changes as soon as possible.

The current tax law may allow for more money to be available to the parties for maintenance purposes as the higher income party may not be taxed at a higher income rate because he/she is paying a portion of that income to the lower income party, who will claim that maintenance as income at a lower income bracket. Because the proposed Tax Reform Bill will  no longer allow the higher income party the ability to deduct those maintenance payments on his/her tax return, he/she may be taxed at the higher income rate, and there will be less income available to the parties when calculating support. In effect, the proposed Tax Reform Bill increases the amount of taxes paid by a divorced couple then what they would have paid previously because the tax bracket of the payor does not change.

This tax proposal has a far reaching effect to any case in the U.S., includingWisconsin, that requires one party to pay maintenance to the other party, regardless of when the final divorce order is entered.  While an order to pay maintenance may exist before January 1, 2018, it will still be subject to modification in the future. Therefore, if either party requests that maintenance be modified, it will then be subject to the new provisions of the Tax Reform Bill.  As a result, the paying spouse will then no longer be able to deduct maintenance on his/her income taxes.

There may be other aspects of the proposed Tax Reform Bill that could help off-set the effect of these changes to the tax code for divorce couples, such as the proposed increase of the child and family tax credit, and the proposed change in the tax brackets for all filers. However, it is difficult to say what else may effect parties who are divorcing, or are divorced, as it is not clear what the final bill will include, and how some of those provisions may effect divorcing parties.

These examples show why it is important to consider the proposed tax changes and resulting consequences related to support at the time of divorce, or when considering a modification of support.  If you believe that you will need to address maintenance issues in your matter, whether it is before the date of divorce or in determining a modification of maintenance after divorce, call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.

 

The In’s and Out’s of Electronic Filing in Wisconsin

 

In most counties in Wisconsin, electronic filing (“eFiling”) is now mandatory. So, if you do not know about it yet, it’s time to learn the in’s and out’s of eFiling.

To participate in eFiling, you must set up an account.  This applies whether you are an attorney or self-represented litigant. Once you have an account, you are able to “opt-in” to current cases, or begin an initial filing. To do either of these, you need to enter the case information, upload the documents you wish to file and pay the required fee.  Most files are required to be in PDF format.  Be sure to click through and follow all of the steps, as you will see confirmation of filing if you have done it correctly. If you click out of the screen before you receive confirmation of filing, you likely have not properly filed the document.

Some of the benefits of eFiling are that it saves time, may save money and is available 24 hours a day, 7 days a week. This type of accessibility allows you to view your eFiled case at any time by logging into the eFiling website.  You also receive electronic notice of any document filed in your case by the other party as soon as the Court receives it in.  Proponents of eFiling indicate that it will also “decrease data entry, improve the speed with which information can be retrieved and shared, reduce staff time and storage costs, and improve storage security.”

eFiling also changes public access to a court file. The public can still access public records on computers in the offices of the clerks and registers in the courthouse. As for confidential records, only authorized individuals can request a temporary access code that will allow them to look at files in the courthouse. The clerk or register will print copies on request at the current price per page.

One of the more unattractive effects of eFiling is that the court loses the oversight it previously had for accepting and rejecting filings. While there is still an ability for the clerk to reject a filing once filed, there is no current ability to stop the filing at the onset. Another difficulty is the simple fact that it’s a new system. So, it is not uncommon to encounter errors or delay along the way as the persons tasked with navigating this new system attempt to efficiently guide the eFiling users. While the eFiling system is still a constant work-in-progress at this early stage, the benefits seem to be outweigh the occasional frustration.

If you have additional questions about eFiling, the Wisconsin Court System website has created a “Frequently Asked Questions” page that provides helpful responses for new users. You can access that site here:  https://wicourts.gov/ecourts/efilecircuit/faq.htm.  Many people may be intimidated by this process when trying to file divorce on their own.  However, clerks are generally available at the courthouse to assist you in this process.

If you have other questions related to filing a matter, please feel free to contact our office at 414-258-1644 to schedule a free ½ hour consultation with one of our attorneys.

 

 

 

 

The Importance of Being Honest with Your Family Law Attorney

More often than not, people hire family law attorneys during a difficult time in their lives. Understandably, some of the facts that may lead you to seek counsel may not be easy to discuss with an attorney. However, it is imperative for the attorney who is representing you to know all aspects of your case and for you to be honest with your divorce or family law attorney.

In the early stages of a case, the attorneys in our firm will often ask “What would the other party tell me about you if they were sitting in my office today?” The reason we ask this question is to find out any negative or difficult facts in a case that will likely come up during litigation. Your advocate counsel needs to be informed of all potential issues that you are aware of, so that we can properly advise you of what next steps should be taken to benefit you throughout your case. More importantly, if there is a “bad fact”, your attorney can address it proactively.  We will not judge you or think poorly of you but we do need to know of any issues which may negatively impact you in a divorce so we can assist you in addressing these issues.

An example of this would be if someone came into our office and admitted to being an alcoholic if they have minor children. With that knowledge, we can advise our client to seek treatment, attend meetings and hopefully be in a position to provide proof of a solid period of sobriety by the time this issue would make its way into court. If we are not made aware of this issue and/or if the first time we hear of this issue is in court from the other attorney or party, we will not be in a great position to defend this allegation or to show what steps have been taken to address this concern. In this example, if your attorney knows about your condition, she can be honest with the court about your issues and, more importantly, she can tell the court what you are doing (or have done) about it.  When your attorney knows all facts, good and bad she is able to control how the information gets into the court.

It is also important that you continue to update your attorney throughout your case, even if those updates are difficult to discuss. Using the example of the client who is an alcoholic, it may be the case that the client relapses during the pendency of the action and is too embarrassed to tell his/her counsel. The fact is, not telling your attorney “bad” facts is far worse than sitting through an uncomfortable conversation with your attorney about mistakes you have made. Once the information is disclosed, you and your attorney can brainstorm ways to address the issues. The court is likely to find out about it anyway.  You want your attorney to control how this information is presented to the court.  The only way for that to happen is for you to be 100% honest and open with your attorney.

There also may be situations where you do not want to disclose certain information.  Your conversations with your attorney are 100% protected by client confidentiality rules and your attorney must not reveal any information given to her in confidence.  However, if presented with all of the facts, your attorney can either discuss with you ways to protect this information, explain to you why it must be disclosed (in the instance of financial information) or, again, find the best way to disclose this information in a way that is most beneficial to you and your case.

As attorneys, we cannot protect clients from their actions that may negatively affect their case. If a client continues to take actions that negatively affect his/her case, despite the advice of his/her attorney, it may result in a situation where the attorney no longer believes they can represent that client’s interests. However, if clients are honest with us throughout the process and listen to the advice we give to them, we are in a better position to help advocate for our client’s interests.

If you wish to speak with an attorney about a difficult family matter, please feel free to call our office at 414-258-1644 to schedule a free consultation with one of our skilled attorneys.

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.

The Importance of an Appropriate E-mail Address in Family Law Cases

Envelope and pink email symbol. 3D renderIt has been said that an email is like a “virtual handshake” between two people. It is a way to introduce yourself to someone and it speaks to your professionalism. Therefore, it is important to create an appropriate e-mail address when you begin any legal process if you do not already have one.

In family law cases, your e-mail address is important because it can be used more than just to communicate confidentially to your counsel. You may be ordered to communicate by e-mail to the other party on your case and the e-mails may ultimately be presented in court. This means that the court would have a chance to review the e-mails and your e-mail address.

Below are a few “do not” and “do” tips in regard to e-mail addresses:

DO NOT: set up an e-mail address that insults, incites or patronizes the other party. Creating an e-mail address that does any of the above makes you look foolish, immature and could negatively impact your case. For example, if custody is an issue in your case and your e-mail address insults your ex (the other parent of your child) a Guardian ad Litem or Judge may construe this as the insulting party’s inability to have productive co-parent communication with his/her ex. Also, do not set up an email that negatively reflects upon you such as referring to inappropriate activities.

Examples of inappropriate emails: ihatemyex@emailserver.com
ilovedrinkingandpartying@emailserver.com

DO: set up a personal e-mail address that is your own (i.e. not shared with a new spouse or partner and not your work e-mail address). The easiest way to accomplish this is to make your e-mail address your name, in some form, and to be the only person who uses that account.

If you already have an appropriate email, make sure you change the password at the start of the divorce and there is no way to for your spouse to access same. Email has become the primary form of communication with all parties, including your attorney, in family law cases. It is important to make sure that this form of communication is protected and private.

The takeaway point of this blog is that you understand that your e-mail is likely to be shared and made public during your family law matter. Therefore, it is important to make sure that it is professional and noninflammatory. If you wish to have an attorney help guide you through your family law matter and help you conduct yourself in an appropriate manner throughout your proceedings, please call our office to schedule a free 30 minute initial office consultation to discuss your matter with one of our attorneys.

How to Stop a Divorce Bully!

Boss Shouting At Businesswoman Through Loudspeaker In OfficeIn the context of family law, especially in a divorce, some individuals may find that their former partner transforms into a divorce bully. A divorce bully is a spouse who exhibits bullying behavior during the process of divorce. This person may not have previously displayed bullying behavior during the marriage. This behavior may not rise to the level of domestic violence, but instead is more subtle. Bullying behavior may include: lying about past incidents in order to make the other partner look bad; threatening to take full custody of the parties’ children or withholding the children from the other party; isolating the other party from friends and family; withholding money or refusing to pay bills; removing the other person from or canceling insurance; cancelling cell phone service; or attempting to intimidate the other partner from hiring a lawyer. While being a victim to a divorce bully adds another dimension of stress to the divorce process, it is not necessarily dangerous or constitutes domestic abuse.  Therefore, it may be difficult to deal with.

Another tactic of a divorce bully that can be especially damaging is to attempt to rush the divorce proceeding. This can often result in an inequitable agreement at the expense of the victim. Most parties to want the divorce to be over as quickly as possible. At the same time, it is also important to take the time to ensure that all marital assets and debts are divided equitably, that maintenance is considered when appropriate, and that custody, placement and child support are determined accurately, and in the best interest of the children.

If you find yourself the victim of divorce bullying, there are some important steps to take to protect yourself and to minimize the damaging consequences. One step may simply be to take care of your own health, both physically and mentally. Seeking counseling is a good way to help you find ways to deal with this type of behavior and get you through your divorce.  Another step may be to set firm boundaries with the divorce bully. For example, inform the bullying partner in person and in writing to refrain from specific abusive behavior, such as showing up uninvited to your home, or involving your children in the details of the divorce. It can also be helpful to document specific incidents of bullying, including when the incident occurred, and the details of what happened.

Hiring an attorney can be the most effective way of stopping a divorce bully.  An attorney can intervene on your behalf – either with your spouse, the opposing attorney or by filing a motion with the court.  Also, an attorney can intervene on your behalf with third parties, if necessary (as in the case of insurance or creditors).  Lastly, an attorney can reassure you as to what may or may not happen (i.e. you will not lose your children!) and give you advice as to how to best deal with this behavior.

Mediation may also be a helpful option in diffusing the situation. Mediators are specially trained to help control tense and emotional situations of divorce without involving litigation. However, if the bullying has existed throughout the marriage, then mediation may be ineffective because of the lack of trust between the parties, and may legitimize an abusive viewpoint of the bullying partner.  Your attorney can discuss various options with you.

The law requires that each party enters into a settlement agreement freely, voluntarily, knowingly, and without threat or coercion. It is ok to slow down the divorce process in order to understand your agreement, seek the advice of an attorney, and to come to a final agreement that you can successfully follow. If you find yourself the victim of a divorce bully, call us at (414) 258-1644 to schedule a free initial office consultation to discuss your case.