General Divorce

Issues Remain Unresolved Regarding Same-Sex Divorce in Wisconsin

nelsonda General Comments, General Divorce, Same Sex , , , ,

Businessman stress, ripping up partner word on paperOne year ago this June, federal Judge Barbara Crabb overturned Wisconsin’s ban on same-sex marriage. Along with the advent same-sex marriage in Wisconsin came the inevitable issue of same-sex divorce in Wisconsin. However, because of the laws on divorce in Wisconsin, same-sex divorce presents some very distinct issues.

These issues are addressed in an article by Jim Stingl in the Journal Sentinel, found here: http://www.jsonline.com/news/milwaukee/one-year-later-gay-marriage-also-brings-gay-divorce-b99513974z1-306392381.html

As mentioned in this article, one question looming over same-sex divorce involves the award maintenance, or alimony, which often requires a consideration of the length of a marriage. While there were no same-sex marriages in Wisconsin until June 6, 2014 (when the ban on same-sex marriage was overturned), many other states, as well as Canada, have allowed same-sex marriage for several years. So the questions remains, when will the Court consider a marriage that occurred previous to June 6, 2014, outside the state’s jurisdiction, to have begun? On the date of their actual marriage, or on the date Wisconsin legally recognized that marriage? There certainly appears to be some confusion among judges, which would have a direct effect on a court’s ruling for maintenance.

Another important issue is the marital presumption, and whether the courts will extend the marital presumption to children of same sex couples. Currently, the law states that the husband is presumed to be the father of any child born to the wife during the marriage.  However, it is unsettled as to whether children born to same sex married couples would be ‘presumed’ by the State of Wisconsin to be children of both parties. This may also evoke similar timing questions as to when and if Wisconsin will extend this presumption to same-sex couples married outside the state’s jurisdiction.

The legal community is anticipating that the U.S. Supreme Court’s ruling later this month regarding whether states must allow same-sex marriage and recognize same-sex marriages from other jurisdiction will provide courts with some guidance. Until then, this unique issue remains unsettled with the Wisconsin courts, and open for interpretation. Moreover, because this issues remains unsettled with the courts, it can also leave divorces finalized during this time vulnerable to post-judgment litigation in the future.

These issues regarding custody, placement and support of children, maintenance, and property division, should be at the forefront of any divorce discussion. Any individual seeking a divorce should choose an attorney who understands the unique issues involving same-sex marriage and divorce, and who is prepared to guide her client through the divorce process. If you are facing this difficult situation, call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.

Divorce Summons Served by Facebook Message

nelsonda General Divorce , ,

Design thumbs up iconA March 27, 2015, decision by Manhattan Supreme Court Justice Matthew Cooper will allow a woman in Brooklyn, New York to serve her husband with a divorce summons by a Facebook private message. Her husband does not have a permanent address or a place of employment, and has refused to make himself available to be served the divorce papers. He has, however, kept in touch with his wife via phone and Facebook. After exhausting other ways to serve her elusive husband the divorce papers, she filed an application to the Court for service by alternate means – via Facebook. In his decision, Judge Cooper wrote:

“[P]laintiff is granted permission to serve defendant with the divorce summons using a private message through Facebook. Specifically, because litigants are prohibited from serving other litigants, plaintiff’s attorney shall log into plaintiff’s Facebook account and message the defendant by first identifying himself, and then including either a web address of the summons or attaching an image of the summons. This transmittal shall be repeated by plaintiff’s attorney to defendant once a week for three consecutive weeks or until acknowledged by the defendant. Additionally, after the initial transmittal, plaintiff and her attorney are to call and text message defendant to inform him that the summons for divorce has been sent to him via Facebook.”

While this decision currently only effects those filing for divorce in the State of New York, it will be interesting to see if this alternate method of serving initial divorce paperwork will make its way into the Wisconsin court system. Under the right circumstance, this alternate means of service could offer significant relief for a party with an uncooperative spouse.

In Wisconsin, our statutes allow service by publication if the location of a spouse is unknown or, if with reasonable diligence, the party cannot be personally served. Should you find yourself in a circumstance where you do not know your spouse’s location, and cannot personally serve him or her, there are still options for service in Wisconsin. These laws are designed to prevent a spouse who does not want the divorce from holding up the action.

To obtain more information about service of a divorce in Wisconsin, please visit our website or contact us at 414-258-1644.

Same-Sex Divorce: Layered with Issues

nelsonda General Divorce, Same Sex , , , , , ,

close up of happy male gay couple holding handsSame sex couples have only recently, and only in some states, been given the right to marry.  With the right to marry, unfortunately, often comes the right to divorce.   For those attorneys and parties who have tried to navigate same-sex divorces, many issues arise which include issues not always seen in heterosexual divorces.

The first issue that might arise in a same-sex divorce is: What is the date of marriage?  Since states have granted the right for same-sex couples to marry on different dates, some states might disagree on the determination of a couple’s actual date of marriage depending on where the couple was married.  This issue might also arise if a couple is residing in a state that recognizes common law marriage (note: Wisconsin does not recognize common law marriage).  The date of marriage (i.e. length of marriage) is important when addressing issues regarding support.

On this topic, many same-sex couples are together for years before they were able to get legally married.  These couples considered themselves “married” long before they were legally married, which included  commingling their assets.  Regardless, there is a question as to whether or not such couples should get “credit” for the time spend together in a marriage-like relationship before legally married.  Most courts will only divide assets starting from the time a couple actually got married.  This can create a lot of inequality and unanswered issues for these couples.

A related issue is also whether or not a couple even has a valid marriage and if a court can even grant a Judgment of Divorce.  Since some same-sex couples traveled outside of their home state or U.S. to be married, their marriage may not be valid.  In this case, a Judgment of Divorce might not be appropriate.

If children are involved, a same-sex divorce can becomes even more complicated depending on when the children were born.  Children born during a marriage are considered marital children.  In many same-sex marriages, you might have children born prior to a legal marriage who are considered by their parents to be ‘marital children,’ but not in the eyes of Wisconsin law.  For same-sex couples whose children were not born during a legal marriage, either one or both of the parents are not the biological parent of the child.  This presents several questions for the court.  For example, if the child is not biological, have both of the parents legally adopted the child?   If only one parent is biological, does that parent have all the rights?  These questions are perplexing to the court, to the parents and to the children.

Same-sex couples are also running into issues when they try to get divorced in states other than the state where they were legally married.  States that do not recognize same-sex marriages typically will not grant a same-sex divorce, as the state views the marriage as unlawful from the start.  Therefore, the same-sex couple, or at least one of the spouses, must return to the state where they got married.  Many states, like Wisconsin, require at least a six-month minimum residency requirement for anyone who wants to petition for divorce, so this creates more delay and financial burdens for these couples.

Clearly, same-sex divorce is not a well-defined area of law.  This means that the courts, court officials and attorneys are lacking clear answers on what courts are required to do, or should consider, when making divorce related decisions for these couples.  Therefore, many courts are requiring attorneys to do additional research and file briefs to point the court in the right direction.  Since there is additional work that is often required, not only are delays very common, but same-sex couples might pay more in attorney fees to be divorced.

More issues than the above may arise during a same-sex divorce proceeding, and it is important that you choose an attorney who is willing and able to navigate you through this relatively new and developing area of family law.   If you facing this difficult situation, call us at 414-258-1644 to schedule a free initial consultation to discuss your case.

Legal Separation v. Divorce in Wisconsin

nelsonda General Divorce , , , ,

Separation agreement

When you are married and seeking a separation from your spouse, you can either file for legal separation or for divorce in Wisconsin.

Regardless of which action you decide to file, the same issues are addressed and the same “120-day waiting period” is present in both actions before a judgment can be granted. The issues addressed in both actions are custody of the children (if any), physical placement of the children (if any), child support (if there are any children of the marriage to support), property and debt division, and maintenance.  In order to file for divorce, you must be a resident of the State of Wisconsin for six (6) months.  For a legal separation, the residency requirement is thirty (30) days.

The main difference between the two actions is that a divorce ends a marriage and a legal separation does not end a marriage. When a divorce is granted, the marriage ends and the parties are advised that they cannot remarry anywhere in the world for at least six months. When a legal separation is granted, the parties are cannot marry another person while they are legally separated.

All assets and debts are still divided in either action and that division is considered final.  For all intents and purposes, a legal separation severs the financial relationship between the parties.  Therefore, after a legal separation is granted, the parties cannot create marital property or debt and they are not able to file their taxes as a married couple.

It is important to know, however, that either party may convert the legal separation into a divorce after one year from the date the legal separation was granted or sooner if both parties agree.

For all of the reasons stated above, it is also important, in both a divorce and a legal separation, to be sure that you have fully considered all of the issues and what the effect of either action will be, both financially and as it concerns your children. Finding an experienced family law attorney is the first step in that process.

If you wish to speak with an attorney about filing for legal separation or divorce, please call our office at (414) 258-1644 for a free consultation.

How to Speak with Children About Divorce

nelsonda Custody and Placement, General Divorce , , , ,

When you are going through a divorce, it is easy to become distracted by your own emotions and forget that your children are being effected as well.

Linda Hassan Anderson, Vice President of KinderCare, wrote a blog which highlights what parents should do when talking with children about divorce.  Among her suggestions were the following tips:

  1. Talk to your children together. Approaching your children about your divorce through a united front will show the children that even if you are not able to continue the marriage, you are able to continue co-parenting your children.
  2. Consider the timing and place you tell your children about the divorce.  They will remember the conversation and how they were told, so a private and familiar location is best.
  3. Answer the questions that you can.  You may not have an answer for everything the children are concerned or confused about, but be on the same page with how you will answer questions.  Less is more when it comes to the details of your divorce, however honest simple answers can help the children process what is going on.
  4. Give your children space and time to process, while still checking with them.  The children will also experience many different emotions throughout the divorce process and after, so it is important to acknowledge and assure the children that it is okay for them to have the feelings that they are experiencing.  If your children experience depression or just need someone outside of the family to speak with, counseling or therapy may be a helpful outlet for them.

Following the above tips and assuring your children that you love them, may help ease the pain of the divorce the process and help the children adjust.  For assistance on how, when and what to tell your children regarding your divorce, it is worth considering meeting with a child specialist or co-parent counselor.

Additionally, if you wish to speak with an attorney to help you navigate your divorce, please contact our office at 414-258-1644 to schedule a free initial office consultation or visit our website for more information.

 

Mediation in a Divorce

nelsonda General Divorce , , , , , , , , , , ,

What is mediation?      

Mediation is a non-binding process that allows parties to be more in control of the decisions made during your divorce.  They sit down with a “neutral” person (the mediator) to discuss and, hopefully, resolve any outstanding issues.  If the parties have attorneys, their attorneys are usually involved in this process as well; except in Wisconsin, attorneys are not usually involved in custody and placement mediation.

Since mediation is a non-binding process, decisions cannot be imposed on the parties, as they can and will be by the judge in a court trial.  In mediation, decisions are only made if the parties voluntarily agree to them.

How do you choose a mediator?

The parties can engage in private mediation which is typically conducted by an attorney or former judge who is trained and experienced in the mediation process.  The parties can agree to a mediator or the court can appoint someone.

What does a mediator do?

It is the mediator’s job to facilitate communication, discuss possible proposals with the parties, explain what the court will likely do regarding certain issues, re-focus the parties if they get off track, and ultimately attempt to resolve the outstanding issues.

How does mediation work?

There are two main types of mediation: facilitative mediation and evaluative mediation.  The kind of mediation you choose determines how your mediation will work.

Facilitative mediation is where the mediator encourages and provides a respectful place for communication between the parties.  The mediator works to help each party consider and understand the other party’s position.  The mediator then assists the parties in coming together to reach a compromise and agreement that is acceptable to both of them.

Evaluative mediation is where the mediator reviews each party’s side and position prior to the mediation and provides an assessment of the issues along with possible reasonable compromises to resolve the matter.  This type of mediation is often conducted by a former judge or court commissioner which can be very helpful. Again, since this is a non-binding process, the parties are free to accept or reject the proposed settlement.

The parties and the mediator usually meet at mutually agreed upon or neutral site (the mediator’s office, if they have one, or the office of one of the attorneys).  Mediation can be conducted with all parties in the same room or the parties can split into different rooms and the mediator goes back and forth between them (called caucusing).  This would depend on the requests of the parties or the determination of the mediator as to what would work best given the circumstances in that particular case.

What topics will be covered during mediation?

This depends the issues unresolved in your particular case.  The parties can also decide on which issues to focus on in mediation. The topics covered during mediation include, but are not limited to: distribution of property (assets/liabilities), division of personal property (such as furniture and other household items), child custody and physical placement of the children, child support, maintenance (spousal support).

When can you request mediation during a divorce process?

It is important to know that mediation can be used at any stage of a divorce process.  Parties can use mediation as a first step when the parties have outlined the issues to be discussed. Most often, though, parties engage in mediation towards the end of a case as an alternative to trial to resolve any remaining issues that still exist after negotiation and compromise have failed. At this stage, mediation is frequently ordered by the Court. And, although uncommon, parties can even choose to interrupt litigation to explore the possibility of settlement (if permission is so granted by the presiding judge).

What happens if mediation works?

If mediation works, then the drafting attorney (typically the petitioner’s attorney) will add the agreements into your Marital Settlement Agreement and have the parties sign their approval.  When the outstanding issues in a divorce are all resolved prior to trial, the parties need only appear in court for a “Stipulated Divorce Hearing.”  This is a quick hearing where the Judge finalizes the divorce by asking (his/herself or by the party’s attorney) a series of questions to ensure that the agreement is fair, reasonable, and acceptable to both parties.

What happens if mediation doesn’t work?

Typically mediation is unsuccessful because of one or both parties’ inability and unwillingness to cooperate to try to resolve the outstanding issues.  However, in some cases a party may act in bad faith or not disclose or admit key facts that are crucial to resolving issues which can make mediation appropriately unsuccessful.  If mediation is unsuccessful, the parties will then have to prepare for trial or attempt to resolve the outstanding issues with the help of their attorneys.  It is important to note, the fact that mediation was unsuccessful will be relayed to the Judge at trial, however the details of your mediation will not be exposed.

What are the benefits of mediation?

  1. Confidential: Since mediation is confidential, it promotes open communication between the parties without the fear of it being used against you in court.  Of course, this is not a reason to be disrespectful to the other party (as the mediator will often choose to end hostile mediations); however, it does allow the parties to truly express what they hope to achieve as an ultimate result in their divorce.
  1. Control: The advantage of mediation in a divorce is that it allows you and your soon-to-be ex-spouse more control in the outcome. During mediation, the parties are encouraged to participate and communicate what they hope to accomplish with each other.  The goal is that the parties are able to work together to make the best decision for their family. Whether it is just for a couple and involves only real and personal property, or whether it involves children as well, the parties are the best people to make decisions about their lives.
  1. Cost-effective: While there is a cost associated with mediation, it is almost always more cost effective than a trial on the unresolved issues.  Though there is preparation involved for mediation, it is not typically to the extent of trial.  One example where parties can save costs are in witness preparation and fees.  Even if there are no witnesses to prepare, preparing a client to appear on the stand during a divorce trial takes time and costs the client money.
  1. Time efficient: Mediations are often scheduled well before a trial is scheduled on a matter.  This allows the parties to have finality much sooner than they may have if they waited for a Judge to decide the issues.

What are the downfalls of mediation?

For many of the same reasons that mediation is beneficial, it can also be frustrating.  Bad behavior during mediation cannot be disclosed at the time of trial because of the confidentiality.   As stated above, in cases where the other party is acting in bad faith and being deceitful, mediation is not likely appropriate and not likely to result in resolution.  Also, if mediation is unsuccessful, the parties have then spent additional money they could have used towards trial costs.

As you are going through a divorce it is important to explore all of the options available to you in order to resolve your case, including mediation.  The attorneys at our firm have experience in participating in mediation and are able to determine if and when mediation is appropriate in a specific case.  If you are looking for a divorce attorney who will consider mediation and help navigate you through your divorce, please call Nelson, Krueger & Millenbach, LLC at 414-258-1644 or visit our website at www.nkmfamilylaw.com.

What if I Am Unhappy With My Current Divorce Attorney?

nelsonda Divorce Attorneys, General Divorce , , , , ,

If you are not satisfied or unhappy with your current attorney, you may have the option to hire a new attorney who would “substitute” into a case for your current attorney.

Typically, an unhappy client seeks new counsel while their current attorney is still retained. Clients seek new counsel for a number of reasons. One of the most common is because the client believes there has been a breakdown in the communication or relationship with their current attorney. The client then seeks the advice and counsel of a new attorney and if the client believes the new attorney would provide more suitable counsel, then they can hire this new attorney and the new attorney is “substituted” for the current attorney.

In Wisconsin, there is a formal process that your current attorney and the new attorney must go through in order to complete the substitution. A Substitution of Attorneys agreement is required. This agreement, or stipulation, must be signed by both the client and the former attorney and is typically prepared by the new attorney. If the client wishes, they do not need to communicate with their prior attorney at all. This can be handled strictly by the old and new attorney. However, the client can certainly tell their current attorney directly that they wish to substitute attorneys as well. Once this form is signed, it must be sent to the court and the court must also approve the substitution.

It is important to note that even if a substitution is approved by the client’s current attorney and then ultimately by the court, the client still must resolve all fees and costs associated with their prior attorney. In Wisconsin,  the previous attorney is entitled to a judgment for outstanding fees against client when a substitution occurs and sometimes they demand that this is stated in the Substitution of Attorneys form prior to signing same.

Also, there are instances where the court will not approve a substitution. For example, if there is an upcoming trial date and the new attorney would need an adjournment to give them time to prepare. Or, if there have been too many substitutions in the case already.

It is also important to note that there are drawbacks to substituting attorneys. The drawbacks include that a new attorney has to learn your case, essentially starting over, whereas your current attorney has your complete file and is more familiar with your case history. There are also costs associated with a new attorney: retainer fees, costs for having to have your file copied, and costs for completing the formal process of substituting the attorneys.

Despite the above drawbacks, creating and maintaining a healthy and working client/attorney relationship as you navigate through your case is often superior to the costs and drawbacks.

If you have any questions regarding substitution of attorneys or if you are seeking new counsel, please contact our office at 414-258-1644 to schedule a free initial office consultation or visit our website for more information.

“Til Death Do Us Part?” Long Term Marriages and Divorce in Wisconsin.

nelsonda General Divorce , ,

It is becoming more common that people fifty and older are getting divorced. There are a number of reasons for this, including that people are living longer and the negative image of divorcees’ has diminished. Divorce is no longer “unacceptable,” and “immoral.” Therefore, “til death do us part” seems to no longer be the requirement for many baby boomers who are unhappy in their marriages.

In Wisconsin, it is important to know that no matter your age, you have the option to get divorced. Wisconsin is a no fault state, and therefore, after staying married for your children or grandchildren, if you have decided your marriage is no longer for you, you have options.

When you get divorced after a long-term marriage (typically twenty years or more is considered long-term), finances are typically commingled, so this can complicate the divorce with arguments stemming around marital property/debt and maintenance (“spousal support”). In fact, maintenance is the most common dispute in a divorce with a long term marriage. What can simplify these later aged divorces, however, is that often there are no longer any minor children of the marriage.

Regardless of your age or your situation, it is always wise to seek legal counsel before you file for divorce. If you have any questions regarding divorce, please contact our office at 414-258-1644 to schedule a free initial office consultation or visit our website for more information.

How Do I Get Child Support Through the Wisconsin Support Collections Trust Fund (WISCTF)?

nelsonda General Divorce

When a party is first awarded child support through a Court Order, there are often many questions regarding how and when those payments will be received. The bottom line is that once the process is underway support payments are generally received seamlessly. Frustratingly, however, there can be some delay in receiving the first payment.

If you are under an order to receive child support through the Wisconsin Support Collections Trust Fund (WISCTF), the payor’s employer will be sent an income assignment. The income assignment requires the employer to withhold the appropriate amount of child support as ordered by the Court. This process can take a few weeks to begin. In the meantime, it is the payor’s obligation to send child support payments directly to the WISCTF until child support is withheld by the income assignment from the payor’s wages.

Click here for a link to the Wisconsin Department of Children and Families website provides insight into the anticipated time line for you to expect child support payments to begin through the WISCTF.

In some counties, there is a fee for an income assignment to be generated and sent to the payor’s employer. Please be sure to confirm whether or not you need to pay any fees in order for an income assignment to be processed. Without an income assignment being sent, the payor is still obligated to pay support to the WISCTF, but it will not be withheld from the payor’s income.

Once an income assignment is in effect, the next question is: How do I receive my child support? There are a number of options to receive support which include a direct deposit into your checking or savings account or a Child Support Debit Card in your name.

This link to the Wisconsin Department of Children and Families website provides helpful information to determine what option to receive child support is best for you.

While a little patience is often needed when an order is first made for child support, the process is designed to make sure that child support is paid timely, that accurate records are kept regarding the payment of such support and that you receive child support as ordered by the Court. If you have questions regarding the receipt or payment of Court ordered child support, please contact your attorney or the child support enforcement office in the county in which your child support was ordered.

Contempt of Court in Wisconsin

nelsonda Child Support, Custody and Placement, General Divorce, Maintenance (Alimony) , , , , ,

If a party intentionally and without legal justification disobeys a court order, this is called being in contempt of court and the law provides a remedy through a finding of contempt.

In family or divorce actions, the most common examples of contempt are when one party fails to pay child or spousal support or if one party refuses to honor the custody and placement (visitation).

In Wisconsin, to address or obtain relief from the court for the contempt, the party who is harmed by the violation of the court order must file a Motion with the court describing the contempt in order to have the matter heard. This Motion must be personally served on the violator at least five (5) business days before the date of the hearing.

If the violator is found in contempt, the court has the authority to order the violator to correct the contempt and also to order sanctions or penalties as a result of failing to comply with the court order. This may involve more than one hearing because the court must allow the offender an opportunity to obtain counsel. The court must also set “purge conditions” which is an opportunity to purge or correct his or her contempt by setting tasks to be completed or payments to be made in order for the violator to avoid further punishment. Some of the sanctions available to the judge are payments, wage garnishment, attaching or seizing assets or even jail time.

The court also has broad discretion to come up with other, more creative solutions to force the violator to comply with the terms of the decree. For example, if a party was court ordered to sell the marital residence by a certain date but did not do so, the court may give the violator a certain period of time to sell the home in order to avoid a finding of contempt. If the violator is successful in selling the home in the time ordered by the court, the violator completed the appropriate purge condition and would not be found in contempt.

The harmed party may also ask the court to order that the violator be responsible for paying the harmed party’s attorneys fees and other expenses associated with the Motion. The court will often do so as a way to punish the offender.

It is important to note that if a violator is found not to have an ability to pay or comply with the court order, for whatever reason, then he or she cannot be found in contempt. For example, if someone becomes ill and cannot work, then they are not in contempt for failing to pay support because they do not have the ability to pay. Or, if someone tries to sell a home pursuant to court order but cannot do so, they are not in contempt because they did try to comply with the order.

If you are in a contempt situation, whether you are the party seeking relief or the party who is out of compliance with the court order, it is best to consult with an experienced family law attorney to assist you for the best possible results. For more information or a free initial consultation if you are in our practice area, visit our website at www.nkmfamilylaw.com or contact us at 414-258-1644.

Requirements for Service in Family Law in Wisconsin

nelsonda General Divorce , , , , , , , , ,

In the law, “service” is a term for providing formal notice of a lawsuit, court hearing or document to another person. Depending on the action that is being filed, there are different methods and very strict time limits by which you must have the other party notified, or served.

Service is critical in all cases, because if you do not serve the other party within the correct time limits and using the correct method, the court cannot hear or come to a decision on your case. There are two types of service: personal service and service by mail.

Personal service can be accomplished by the following methods:

(1) Admission of Service– a form where the other party may admit that they were served once they receive a copy of the forms

(2) Service by the Sheriff’s Department

(3) Service by the Private Process Server

(4) Service by someone who is over 18, a resident of Wisconsin and is not a party to the action.

(5) As a last resort, you can complete service by Publication. You MUST show that you have attempted one of the four methods above before resorting to publication and usually the court must approve this method first.

If you are serving something by mail, you must provide proof by either signing a sworn Affidavit of Mailing in the presence of a Notary Public and giving a copy to the Court OR by some type of mail receipt such as certified mail.

Below are some of the different family court actions that are filed, the type of service required for each action, and the time limits in which the action must be served:

1. Summons and Petition for Divorce/Legal Separation:  Must have personal service and must be served within 90 calendar days from the date the divorce/legal separation was filed

2. Order to Show Cause and Affidavit (i.e. for Temporary Order): Personal service is required and must be served not less than 5 business days before the date of the hearing or as otherwise ordered by the court.

3. Response and Counterclaim:  Can be served by mail and must be filed within 20 calendar days after the date of service.

4. Order to Appear:  Must be personally served and not less than 24 hours if the other party lives within the county the action is filed OR not less than 72 hours if the other party does not live in the county the action is filed, but in the State of Wisconsin.

5. Notice of Motion and Motion:  Contempt motions must be personally served but all other motions can be served by mail.  Service must be not less than 5 business days before the date of the hearing.

6. Petition to Enforce Placement:  Personal service is required not less than 5 business days before the date of the hearing.

If the other party is represented by an attorney, copies of all documents must be sent to the attorney.  If service by mail is required, the document is to be mailed to the attorney, not to the party.

How To Divide Retirement Accounts in a Divorce

nelsonda General Divorce, Property Division , , , , ,

When divorcing, retirement accounts are often divided between the parties. In all cases where a retirement account needs to be divided, some type of affirmative action after the divorce is required to do so. Unless there are unusual circumstances or the parties agree otherwise, the account holder should NOT be required to cash out or liquidate his or her retirement account, either in whole or in part, to pay the other party what they are entitled to.

Many people make the mistake of assuming that this division will happen automatically, especially if they do not have an attorney. This is absolutely not the case. There are situations where, years later, the account holder retires and the other party wonders why they have not begun receiving payments. In fact, there was a recent case in Minnesota where the Wife lost her rights to the Husband’s pension because she failed to take any action to divide the account after the divorce. (For more information, see article here.)

There are several different types of retirement accounts which are divided in different ways. The most common type of retirement account is a “qualified plan.” The definition of qualified is set forth in federal law. However, these are most commonly the types plans such as 401(k)’s, 403(b)’s, deferred compensation or pensions. In order to divide one of these accounts, there needs to be a special order prepared called a Qualified Domestic Relations Order which is commonly referred to as a “QDRO.”

The processing of a QDRO can be complicated and lengthy. Essentially, a QDRO is prepared by an attorney or an outside firm who is hired for same. In Wisconsin, attorneys rarely prepare QDRO’s and usually hire an outside financial firm to do so. The QDRO is often sent to the plan first for pre-approval. Eventually, either before or after this pre-approval process, the QDRO is sent to the court for signature. Once the court signs the QDRO, a certified copy of this QDRO is required and then sent to the Plan for processing. The cost of the preparation of the QDRO is usually shared equally, at least in Wisconsin.

There are other plans which are non-qualified but which can also be or must also be divided by QDRO or by a different type of Order prepared separately from your judgment of divorce. Most often, for example, this applies to a TSP, FERS or other government retirement account.

Retirement accounts such as IRA’s, Roth IRA’s or annuities can often be divided without a QDRO. Typically, just the judgment of divorce and an internal form signed by the account holder is all that is necessary. The account holder should contact his or her Plan to determine what is required in these cases.

When a retirement plan is divided properly, there are no tax consequences or penalties to either party. Further, the receiving party is not dependent on the plan holder to pay him or her any monies that they are entitled to receive.

If you are divorcing or have divorced, it is imperative that you take all necessary steps to divide any retirement accounts awarded to you. If you don’t have an attorney and don’t know how to do this, it is well worth your time and money to hire an experienced divorce attorney to assist you with the division. If you do have an attorney, make sure that the division is done after the divorce. If not, you need to follow up with your attorney or hire another attorney to do so. Ultimately, it is your responsibility to make sure you that you receive what you are entitled to pursuant to the judgment of divorce.

If you are already divorced, it still may not be too late to divide a retirement account if this has not already been done.  However, the longer you wait, the more likely it is that there will be problems or that you could lose your rights altogether.  Contact an attorney immediately if you find yourself in this situation.

If you have any questions or concerns or need assistance in dividing a retirement account, please contact Nelson, Krueger & Millenbach, LLC (formerly Nelson & Davis, LLC) at 414-258-1644 to schedule a free initial consultation

Family Law from the Voices of Students

nelsonda General Comments, General Divorce , , , ,

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

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

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

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

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

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

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

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

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

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

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

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

 

-Madeleine Thompson-Davies

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

 

Avoiding Financial Mistakes in Divorce

nelsonda General Divorce , , , , , ,

It is no secret that many couples end their marriages in divorce in the United States. Roughly one in two marriages end in divorce, and separation is much more acceptable that it once was. Even with these realities, actually going through a divorce is never an easy event.

Emotions can cloud one’s judgment and result in an attempt to avoid further conflict. As a result, it may be appealing to rush the process along and hastily agree to a divorce settlement without thoroughly and carefully reviewing it. Unfortunately, rushing a divorce settlement can have a disastrous impact on one’s financial future.

Divorce is not just the end of a romantic relationship; it is also the end of a financial partnership. Those going through a divorce need to keep their financial future in mind and take the time to make sure that their divorce settlement properly reflects their needs.

Tips to financial security during and after divorce

Some steps that can help people going through a divorce to maintain their financial footing include:

  • Keeping appraised of all finances
  • Keeping a copy of important documents
  • Keeping the future in mind

It is important to keep up to date on one’s financial standing. If still in a marriage, try to avoid allowing one spouse to have total control over all finances. If filing for or considering a divorce, take steps to be fully aware of all assets including savings accounts, stocks, business interests and other investments.

It is also helpful to have access to important documents, like tax returns, property deeds and estate plans. If a prenuptial agreement was used, review it and bring a copy with when meeting with a divorce attorney.

In addition, keep the future in mind. Do not attempt to avoid conflict and agree to a divorce settlement without carefully reviewing it. Mistakes can lead to disastrous consequences in the future. If, for example, a divorce settlement includes distribution of a pension, a qualified domestic relations order or QDRO is likely needed. If this document is not included tax penalties may be tied to the distribution of the accounts. Without carefully reviewing the settlement important steps like including a QDRO could be missed.

After the divorce is finalized, confirm that your name is removed from any debts assumed by your ex. If your ex assumed financial responsibility for the family home, make sure your name is off the mortgage.

Navigating through the various laws and considerations required for a fair divorce settlement can be difficult. As a result, if you are considering a divorce or have recently filed divorce paperwork, contact the experienced divorce lawyers at Nelson, Krueger & Millenbach, LLC (formerly Nelson & Davis, LLC) to discuss your situation and better ensure your legal rights are protected.

Can I Stay on My Ex-Spouse’s Insurance After a Divorce or Legal Separation?

nelsonda General Divorce, Maintenance (Alimony) , , , , , , , , ,

This is a very common question that we often hear in a divorce action.  The simple answer to this question is no.  This has nothing to do with the divorce or legal separation but, rather, the rules and procedures of the insurance provider.  Even if your ex-spouse wanted to keep you on his or her insurance after a divorce, the insurance company will not allow that.

In some cases, the insurance company will allow a legally separated spouse to stay on an insurance plan.  In fact, this is one of the most common reason that spouses would typically legally separate, as opposed to divorce.  However, each plan is different and you have to check with the insurance company.

Pursuant to federal law (COBRA), ex-spouses must be given the choice to stay on the plan for up to 36 months.  COBRA law only applies to employers with more than 20 employees.  If an employer has less than 20 employees, they still sometimes offer continuation coverage at their discretion or some states require same.  If a spouse chooses continuation coverage, it would be at their own cost.  COBRA coverage is often very expensive and you should find out the cost prior to finalizing your action.

Sometimes, your ex-spouse can be ordered to pay the cost of your future health insurance as a form of alimony or maintenance.   However, this would be up to the parties to agree to and/or the court to order.

Health insurance is a very important consideration in a divorce or legal separation.  Make sure you check into all of your options prior to finalizing your action.

To find out all of the consequences of an action for divorce or legal separation in Wisconsin, please contact us at 414-258-1644 or visit our website for more information.

Tips for Protecting Your Privacy After You File For Divorce

nelsonda General Divorce , , , , ,

When you file for divorce, there are certain precautionary steps everyone should take to not only begin the process of separating your life with your spouse, but also to help preserve your privacy. Here are some simple tips for protecting your privacy after you file for divorce and what we usually recommend to our own clients.

1.   Change your e-mail password. You should change your password, or get a new e-mail account. Your spouse should no longer be privy to your e-mails. For example, if you hire an attorney, your attorney communication via e-mail is likely something you want to be confidential, so you have to take actions in order to ensure it is. Even if your spouse never had access to your email, the password may be saved somewhere which would allow them to gain access. We have had many situations where we learn later that a spouse has been accessing our clients emails.

2.   Change all online passwords. Don’t stop at just changing your e-mail password or account; change your password on all other online accounts that you shared with your spouse. Again, even if you believe your spouse may not know it, it may be saved or noted somewhere.

3.   Open your own bank account. While your bank accounts are still “joint,” either party listed on the account can withdraw money. Open a new account as soon as you file for divorce so you do not have to worry about your money being withdrawn without your permission.

4.   Get your own credit card. Filing for divorce is the first step in beginning the separation of your life with your spouse. Begin to take steps, such as getting your own credit card, so that you and only you are responsible for your credit going forward. And, by doing so, it prevents your spouse from monitoring your activity or your spending.

5.  Get your own cell phone or transfer your line to your own account. Even though this may cost you money, you will have to do it in the long run anyway. And, if you have your own account, your spouse cannot monitor your usage or check the records of your telephone calls.

6.   “Unfriend” your spouse and your spouse’s family on Facebook. This may seem childish, but it is smart. What you say about your spouse on a public forum, and the pictures that you post of you leading your new “single” life, can be seen by your spouse, your spouses family, and anyone else who you are not careful to “unfriend” or delete.

7.   Backup your important documents, financial information and pictures. Unfortunately, some people react badly to a divorce and lash out to hurt their spouse. We have had situations where files and pictures are deleted or copied. Or, even worse, computers and laptops are intentionally damaged. It is better to be safe than sorry and you should have backups of these items anyway. Save your backups to an online service/cloud drive. Or, save them to a flash drive or external hard drive and keep these somewhere safe.

If you have any other questions or concerns regarding filing a divorce, please contact us at 414-258-1644 to schedule a free initial office consultation.

What If My Spouse Won’t “Give” Me a Divorce?

nelsonda General Divorce , , , , , , ,

“My spouse won’t give me a divorce”.  Whenever I read advice columns in newspapers or magazines, I often run across this question or statement.  I have even heard it in my practice in Wisconsin.

There are two parts to the answer to this question. The first is legal.  In Wisconsin, we have a no fault state.  This means it does not matter if both parties want the divorce or not.  It takes two people to be married so only one person has to testify that the marriage is over and the court will grant a divorce.  This is true in many other states as well.  In fact, some form or the other of a no fault divorce is available in all 50 states at the present time.

Some states require a waiting period in order to obtain a no fault divorce.  In order to avoid the waiting period, those states still require a proof of fault to obtain a divorce.  However, in many of those states, the level of fault necessary is so low or minimal that it is not very difficult to get divorced at all.  The government (courts) simply cannot force people to stay married to one another.

The second part to this answer to this question relates to power and control.  Often, as a threat, a controlling or abusive spouse will say whatever necessary to keep their spouse from leaving.  It is most often in this context that I hear this question.  Again, be assured that if you no longer want to be married, the courts will honor this request.  It is true that your spouse can make the divorce difficult. They can delay and be disagreeable.  They can refuse to cooperate or drag their feet.  There are ways to address these situations.  However, many divorces are difficult for a variety of reasons. That is the nature of the process and the people going through it.

But, if you are asking this question, there are significant problems in your marriage.  Either way you are facing difficulty. At least with a divorce, there is light at the end of the tunnel and an eventual end to this painful situation.

For the best possible result in your divorce, you should always at least consult with an experienced divorce attorney.  Most divorce attorneys offer free initial consultations.  Take advice from and listen to someone who knows the law and the process, rather than listening to your spouse who is simply trying to threaten or control you.

Can a Divorce be Suspended to Attempt Reconciliation in Wisconsin?

nelsonda General Divorce , , , ,

In Wisconsin, parties have the option to suspend their divorce proceedings at any time prior to the judgment of divorce, if BOTH parties want to attempt to reconcile.

It takes only one party to begin a divorce proceeding, but both parties must agree to a suspension of divorce proceedings. To do so, the parties must sign a Stipulation and Order Suspending Proceedings to Effect Reconciliation in order to start the suspension. Once this form is filed with the court, the court will honor this request by giving the parties 90 days to reconcile. This essentially has the effect of putting the case on hold and nothing happens during this time period. Any upcoming court dates are cancelled.

Let’s say that both parties agree to suspend the divorce proceedings, but one party changes his or her mind prior to the 90 days. If this happens, at any time, the party who has changed his or her mind and wants to continue the proceedings has to file a Motion and Order to Revoke Suspension of Proceedings to Effect Reconciliation. Once filed, the divorce proceedings begin again and the court will schedule a status or pre-trial date.

In the alternative, what if both parties decide that they do not need the full 90 days because reconciliation was successful? In this situation, the parties can dismiss their case by filing a Stipulation and Order for Dismissal.

You need to be aware of your time constraints however, because if after the 90 days neither party has filed anything, the divorce proceedings will simply begin again and the court will schedule a status date or pre-trial.

Please note, the above described procedures and forms are used when parties want to suspend a Legal Separation procedure as well.

I Moved Out Due to Divorce in Wisconsin. Why Can’t I Go Back To the House?

nelsonda General Divorce, Property Division , , , ,

When one party moves out of the marital residence at the onset of a divorce case, there is often a lot of concern about why the other spouse ‘gets’ the house or why they can’t return to the house after they have moved out. Legally, just because one party moves out, does not mean that he or she is giving up any interest in the house. It just means that he may have given up his right to live there on a temporary basis.

If the Court has made a Temporary Order granting one party (ie husband) the temporary use of the house, the other party (wife) may not enter the house without the permission of the residing spouse. In this scenario, if the wife tries to enter the house without the husband’s permission  the wife could be held in contempt of court and face monetary penalties and even imprisonment.  It’s best to make sure that you have something in writing from your spouse or counsel, if you are entering the marital residence for any reason if your spouse was granted temporary use by the Court.

There are many instances when one party moves out before there is a court order, and then wants to return to the house later. Legally, if there is no court order barring you from returning to the house, you can return. However, you need to carefully decide what the consequences of returning to the house might bring.

For example, if your return to the house results in an argument, your spouse may call the police and you could be charged with disorderly conduct and potentially face being served with a domestic abuse restraining order if your spouse alleges domestic abuse or threats of it.

The court also will consider your actions at a hearing for Temporary Orders or other matters in the case. If you are returning regularly without notice to your spouse, if you are removing furnishings without agreement or if you are causing disturbances at the house, your behavior may be negatively inferred against you in issues involving custody, placement or property division. If you break a window or lock to enter the home, the Court could also hold you responsible for those costs and your spouse may seek a restraining order against you.

If you have moved out of your house and you want access to the house to retrieve personal property or any other reason, your best bet is to work with your attorney to schedule a date and time for you to enter the home and an agreement as to what you can remove. This will minimize conflict between you and your spouse and avoid police involvement and/or domestic abuse allegations against you in your divorce case.

Do remember though, that the restrictions go both ways. Just as you may not go into the marital property if you are restricted from it, your spouse cannot come to your apartment or new place of residence and demand access either. You both have the right to expect privacy and it is common courtesy to refrain from entering your spouse’s residence without permission, whether you own that property or not.  It helps to look at it this way: landlords cannot enter a tenant’s property without notice except in extreme circumstances and, once you move out, you essentially become the equivalent of a landlord to your spouse.

I Filed for Divorce in Wisconsin. Who Has to Move Out of Our House?

nelsonda General Divorce , , , , ,

When two people go through a divorce, they also must go through the process of separating themselves from each other. Often we are asked by clients: ‘when will my spouse have to move out?’ The answer to this question is not always easy and usually is very complex.

If there is domestic abuse or a restraining order/injunction between the parties, the law presumes that the parties cannot live together. In those situations, one of the parties (often the aggressor) will be ordered to move out of the marital residence.

At the beginning of a divorce case, parties can request that the Court schedule a hearing to determine Temporary Orders. The purpose of the these Temporary Orders is to establish who lives where, pays what bills, pays what in support, spends time with the kids, etc, etc.

The Court urges parties and attorneys as soon as they begin work on a divorce case to begin discussing the parties’ physical separation. Often one party is willing to move out or prefers to move out, so the answer is easy. Some times, however, neither party is willing to move out, so the Court is forced to make an Order.

The court has a variety of options: neither of you is required to move out, your spouse is required to move out, or worse, you are required to move out! The Court will consider a long list of factors to make this decision. That list might include: Who can afford the house? Who can maintain the house physically? Who will have primary responsibility for the kids? Does someone have another place to move (ie family nearby)? Does one party not have any family or friends in the area with whom they can stay? Does someone work from home and, therefore, need to stay in the house? Clearly, the decision as to who can stay in the house depends on the specific facts of your case.

The Court may not order either party to move out, and, in fact, rarely does unless there is domestic violence. This is especially true if there is a dispute about placement of the kids. The Court may be wary to force one party out and have to make a temporary decision regarding placement, if the parties haven’t been to mediation or there isn’t input from a Guardian ad Litem yet. In those cases, the parties are basically forced to continue to live together until they complete mediation or a GAL makes a temporary recommendation.

Some parties realize that they don’t want to live together, but they can’t afford two homes. In those cases, the parties might try a “nesting arrangement”. This is when the kids stay in the house and the parents rotate in and out. The parents might stay with a friend or family member on their ‘out days.’ Or maybe the parties rent one apartment that they alternately stay in when it is their ‘out day.’ This arrangement requires a lot of cooperation with the parties which might be hard to do in some cases.

The bottom line is an agreement to separate often is best in cases. Working with your attorneys for creative ideas to resolve temporary issues can often help minimize the conflict and cost of deciding where you will live until the divorce is granted.