General Divorce

Non-Marital Children: Overcoming the Marital Presumption in Wisconsin

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In Wisconsin, if a child is born during a marriage, the husband is presumed to be the father. But what happens in situations where, for example, the parties have been separated for several months while your divorce is pending, and the wife becomes pregnant with someone else’s child. Can the presumption be overcome?

The answer is: not automatically. If your divorce has not been finalized, the child is considered “born to the marriage,” and is presumed to be the husband’s.

This is why the wife is asked during divorce proceedings, “are you currently pregnant?” If she is, the court will usually not grant the divorce. The idea behind this is that the child is entitled to a legal father who shall be responsible (financially, if not otherwise) for the child. Therefore, the court is highly reluctant to make a ruling that would leave the child without a legal father.

Husbands who are the legal fathers have notoriously found this presumption to be unfair, with the argument being that the presumption takes away the father’s due process rights. The Supreme Court of the United States addressed this argument over 20 years ago and found that the presumption that the mother’s husband is the child’s father does not, in fact, violate a father’s due process rights.

The presumption may be overcome, however, if another man who is biological father, even though not yet the legal father takes a genetic test, and the results show a statistical probability of that man’s parentage as 99.0% or higher. If this turns out to be the case, the court will likely order the wife to commence a paternity action against the biological father. Once paternity is established, the presumption against the husband can be overcome and the divorce can be granted.

Therefore, in situations where a child is born of the marriage but is not the husband’s biological child, it is wise for the wife, or her attorney, to commence a paternity action against the biological father immediately. In the alternative, if the wife is arguing that the child is, in fact, the husband’s child biologically, the husband or his attorney can ask the court to order genetic testing, if the husband has a doubt.

Please note, in most cases where paternity of the child is at issue in a marriage, the court appoints a Guardian ad Litem for the best interests of the minor child. The Guardian ad Litem will make recommendations for the best interests of the child, such as requiring the husband and alleged biological father to undergo genetic testing that will work towards figuring out who the biological father of the child is, and who will be found to be the legal father of the child.

How Facebook and Other Social Media Sites Can Negatively Affect Divorce

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Social media makes it extremely easy to find information about other people’s lives. For example, Facebook allows its members to access other peoples’ photos, daily updates, and favorite hobbies, among other things. This is great when you want to see the pictures that your mother put on Facebook of your grandmother’s 70th birthday party, but be wary; people can also see the pictures from those uninhibited nights out that you do not want anyone to see.

While it is true that Wisconsin is a no-fault divorce state, meaning neither party needs to show wrongdoing to get a divorce, there are still consequences for wrongdoings, if there are children involved in the divorce proceedings.  If custody and placement are at issue, reckless photos and “updates” on these sites can be compelling pieces of evidence for the court.  Updates about expensive new purchases or vacations might add fuel to an argument that one party has the ability to pay more in support.

More and more clients are asking us if we can use inappropriate Facebook or Twitter postings and pictures against the opposing party in court. The answer is yes. For example, if we represent a client who has a picture printed from a social media site that the child’s mother does drugs in her home, this can be used as evidence to help show that court that she is unable to provide a safe environment for your child. Pictures and documentation exposing reckless (and illegal) behavior like this can be used in custody and placement arguments.  Even less egregious posts can show bad decision making by a parent or demonstrate a lack of credibility in Court.

All online posts, emails, tweets, texts, etc. can be used as evidence in Court!

It has been said numerous times before, and will be reiterated here: what you post on the internet and on social media sites is NOT private; no matter how strict your privacy settings are. If you choose to post something to a public forum, you forgo the argument about what you intended.

So when it comes to social media sites, remember what your parents used to tell you: if you cannot say anything nice, don’t say anything at all. And also remember the slightly modified lawyers version: If you cannot say anything nice, do NOT put it in writing, and certainly do not put it on a social media site.

Dividing Personal Property in Divorce

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“What? She gets the cabin AND the big screen TV?!”

 We’ve all heard the stories about nightmarish payouts during celebrity divorces (and Tiger thought that 9 iron to the temple hurt) as well as bitter fights over something as small as silverware. Personal property disputes during a divorce are common. Personal property generally refers to items such as furniture, tools, electronics and other items of value in your home.  Often, people attach much personal sentiment on these types of items of property.   Therefore, it becomes difficult to come to an agreement as to how to divide this property. As you can imagine, the longer the marriage, the more the memories, the tougher this task becomes. So how does it work?  How do you put value on property when the owner’s interpretation is clouded with personal attachment?

 Sometimes divorcing couples can come to an agreement regarding the division of personal property on their own or with some assistance from their respective legal counsel. Oftentimes, however, it becomes necessary to bring in a non-partisan expert who can accurately assess and appraise personal property at the forefront of the dispute. This can be an expensive endeavor (in Wisconsin, most personal property appraisals cost between $500 and $1,500) which yields disappointing results.  The expert who comes in to appraise your personal belongings does not care that the vase on the coffee table is great-grandma’s, nor does the expert care that you spent $8,000 on your home theater system five years ago.  The expert gives a subjective opinion as to the “rummage sale” value to your belongings. Therefore, great-grandma’s vase may only be valued at $20 and your home theatre system may not exceed $250.  Almost always there are values attached to items in a personal property appraisal that you will not agree with. 

 Also, the appraiser will not value every single item in your home.  They do not go through cupboards, drawers or boxes.  They usually will not climb up in your attic or climb over items stuffed into a garage.  They will only appraise visible items of value.  So, to some extent, it is up to you to catch missed items or point out items that you specifically want appraised ahead of time.

 Once the appraiser assigns values to these items, the party who has property of higher value must pay the other one-half of the difference.  However, the court or the other party cannot force you to accept items that you don’t want.  If there are items that neither party wants, the court will simply order that they be sold and the proceeds be divided.  Of course, there are then often issues with who will sell the items, at what price, etc.

 As a result of the above, when it comes to the division of personal property, it is best if the parties can agree how to divide everything.  Only you and your spouse are aware of the sentimental value that is attached to your personal belongings.   Only you and your spouse can reach an agreement that takes everything into consideration and is fair to both of you without going through the hassle, time and expense of an appraisal.

 To speak with an attorney understands all aspects of how personal property is valued or divided, contact us at 414-258-1644 to schedule a free initial office consultation or visit our website for more information.

 

Kids in a Divorce

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The Huffington Post has dedicated an entire section to divorce, which I thought was rather interesting. Huffington Post Divorce.  There are many articles dealing with topics ranging from stories regarding specific divorces to money and relationship advice.  What a great resource for someone going through a divorce!

One of the features was a link to various blogs written on the topic of divorce.  The very first one that jumped out at me was blog written by a 16 year old on the topic of his cheating dad.  (To read blog, click here.)  This is a brutally honest story of how infidelity and an absentee dad has ripped apart this kid’s family.  He says:  “When your parents divorce, all that changes. Especially if infidelity and lies were the foundation of your father leaving. Because how do you make believe everything is fine when the shrapnel is still in your skin?”  Wow!

I have often said that parents don’t give kids enough credit.  Kids are extremely perceptive and they get what is going on.  Often, the parent at fault refuses to acknowledge this and blames the other parent for the anger or estrangement of the child towards them.  You can’t just walk away from your family, especially when infidelity is involved, and expect that everything will be ok.  Kids often hold on to even the smallest grievances.  They certainly aren’t going to ignore and forgive this behavior very easily.

On the other hand, because they are often very aware of what is going on and have their own anger and feelings on the matter, the “wronged” parent does not need to discuss his or her own feelings with their children.  Children have enough to deal with themselves; they don’t need to be burdened with the guilt and anger of their parents too.

If parents would only treat their children as emotionally aware and feeling individuals, I firmly believe a lot of the issues and problems that arise in a divorce with children would be minimized.  Children should know what is going on and why it is happening.  However, you do not need to share your emotional upheaval with your children.  They have enough of their own.  You do not need to enlist them to be on “your side”.  And, you do not need to share with them intimate details or disparge the other parent.  After all, he or she is still their parent and your children love them no matter what.

Kids are people too and the sooner both parents acknowledge that and accept responsibility for their own actions, the less damaging the divorce will be to the children and to their relationship with their parents.

-Teri M Nelson

 

A High School Teacher’s Perspective on Students Surviving a Divorce or Separation

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Nelson & Davis, LLC invited Seth Larson, a high school teacher, as a guest writer on our blog to discuss his experiences with divorce in the classroom.

Divorce is tough. That is obvious. From the heart-wrenching start through the grueling and sometimes ugly process, everybody involved will feel the pain at some point. The only thing worse than going through a divorce, is going through a divorce with children. The effect it can have on your kids education and future can be irrecoverable, but it doesn’t have to be. As a high school teacher and coach of 10 years, I have witnessed students from split families struggle and I have also seen students excel. What it boils down to in the end is finding civility during and after the storm and putting your kids’ best interests ahead of any hostility for your spouse.

Often times we are inundated with stories about the negative affect divorce can have on children, most notably their academic and social well being. Looking back at my many experiences, divorce alone is NOT the reason children struggle. The majority of instances stem from two parents incapable of looking beyond their own personal resentment for one another and depriving their children of the fundamental support they need. I have had meetings with parents where the focus digresses from the student to their own personal issues, sometimes escalating into full-blown arguments. This not only humiliates children, but infuriates them. By focusing on your own agenda, you are trivializing your child’s best interest and pushing them away forcing them to find support in other places. I have also been on the other end of the spectrum where separated or divorced parents enforce consistent guidelines and expectations, giving their children the foundation they need to succeed. Any child who sees consistent structure and support from their parents, divorced or together, are given the opportunity they deserve to excel.

We all know that divorce is sometimes the healthiest and safest option for couples. Too often couples stay together “for the kids” and live in utter misery and resentment, creating an environment more damaging to their children then they realize.   If divorce is the route you are considering, or have already taken, do your kids a favor during this tough time and be adults. They only get one chance at youth, and success, divorce doesn’t take that away…bitterness does.

-Seth Larson, High School Teacher

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

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

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

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

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

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

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

What is Important to Know About Any Divorce Lawyer You Think of Hiring

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Of all the things you have to consider about different divorce lawyers you meet with or are referred to, one of the issues you should definitely weigh is whether or not they have trial experience. Although it might seem as if all divorce proceedings are more or less the same, few things could be further from the truth. In fact, things become very different for a divorce lawyer when it’s no longer a matter of simply negotiating and it’s time to present your case in front of a judge.

Once that step is taken, a number of different things can happen that change the divorce from a legal and practical standpoint:

In court, issues surrounding the divorce can become heated. Often, a divorce only ends up in trial because the parties involved have been unable to negotiate an arrangement that everyone considers to be equitable and reasonable. At that point, face-to-face exchanges and back-and-forth arguments can become more prevalent, making it more difficult to achieve any real progress or find a resolution.

When that happens, a good divorce attorney will help you calm down, manage the situation, and keep working toward the issues you have identified as your biggest priorities.

An experienced divorce attorney will be able to better work with different judges and tactics. Every court case is affected by the different personalities involved, and it’s no different with the legal side of the divorce. Knowing a bit about the judges, other attorneys, and tactics that come up in court – and how they are likely to play out – can be an enormous advantage.

Having a divorce lawyer who is experienced in the courtroom can give you the edge in a situation where the outcome is incredibly important.

Your divorce attorney might suggest that you keep your case out of court. There are some situations where your best course of action is simply to avoid taking your divorce to court altogether and finding other ways to reach an agreement. When you have a divorce attorney who is experienced in a variety of different situations, including trial, they can help you spot the opportunities to protect your interests, as well as the best times to pursue different avenues.

In other words, a great divorce attorney won’t put you into a fight you can’t win, and will advise you well in advance of what your reasonable options are to prevent you from the bigger losses that might come during a trial.

Once divorce proceedings move into court, everything changes and the dynamic of the case becomes entirely different. That can be an opportunity for you to protect your money and interests, or it could mean that things are going in the wrong direction, depending on your situation and the quality of your legal representation. Remember that, and be sure to ask about a divorce attorney’s trial experience before you entrust a big portion of your future with them.

Do you need an experienced divorce attorney to stand up for you in negotiations with your spouse? Contact us at 414-258-1644 or visit our website for further information.

Can I Appeal My Divorce Decision in Wisconsin?

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In Wisconsin, a judge entering orders regarding divorce or other family issues has great discretion.  There are statutory guidelines they must follow but there are very few laws that they cannot deviate from for just cause.  Family court is a court of equity which means that the judge is required to enter orders that are fair and equitable to both parties.  This gives the judge wide latitude when making decisions in family cases in Wisconsin.

You always have the right to appeal a decision, which must be done within a certain time period following the entry of order.  The time period varies based on certain factors but, generally, between 45 to 90 days.  In Wisconsin, cases first are heard by the Court of Appeals which consists of a panel of 3 judges in different districts around the state.  An appeal can take up to a year to complete.

However, due to the discretion granted to family court judges in Wisconsin, it is very difficult to win an family law appeal unless the judge made a mistake or entered an order which was clearly erroneous.  The most common mistake that a judge can make is that he or she fails to make sufficient findings which would support his or her decision.  Or, that the judge misunderstood or misapplied the law.

This is rare and even if you win your appeal, the court of appeals cannot substitute its own orders for the circuit judges.  This means that while the appellate court will provide some guidance or direction based on its interpretation of the law regarding the issues, it will simply remand the case, or send it back, to the circuit court to correct its mistake.  Therefore, even if you “win” your appeal, the case is still not over and the results are not guaranteed.  For example, after getting the case back, the judge could enter the same order(s) but with more specific findings.  If the judge clearly made an error, however, you may end up with a different order or findings.

The time and expense of an appeal is rarely worth it on a family case.  Most family law attorneys are unwilling to even appeal a case.  You should consult with your attorney or another attorney who is experienced in appellate work to determine whether your case is likely to succeed on appeal and, if so, what the cost would be.  Based on that, you could then decide if you wish to pursue an appeal.

What Does “Service” Mean in a Divorce and How Is It Accomplished?

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In a Wisconsin divorce, once the Petition for Divorce is filed, it is necessary to “serve” the respondent with the paperwork.  There are several ways to accomplish service which depends on different circumstances.

  1. If the respondent is unrepresented or uncooperative, service must be accomplished by having a process server (or sheriff) locate the respondent either at home or at work and physically give the papers to the respondent.
  2. If the respondent is represented, your attorney can mail the papers to the other attorney and request that an acknowledgement of service be executed by the respondent.
  3. If you are confident that the respondent will be cooperative, your attorney can send the respondent a letter requesting that he/she come to your attorney’s office, pick up the papers and sign an Admission of Service.
  4. If traditional means of service are exhausted with no avail or if the location of the respondent is unknown, you can serve the respondent by publication.

Proper service is essential.  You may not serve the papers yourself or have a friend or family member serve the respondent.  Improper service will jeopardize your case, so it is vital that service is done timely and correctly.

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

What is the Difference Between a Petition for Divorce and Joint Petition for Divorce?

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In a Wisconsin divorce action, there are two potential options when filing for divorce, one of which being more common than the other.

  1. Petition for divorce: This, being the most common action, is when one party (the petitioner) files an action against the other (the respondent).  The Petitioner is the only one who signs the paperwork.   Once the petitioner has filed for the papers, he/she must serve those papers on the respondent.
  2. Joint Petition for Divorce: In the event both you and your spouse agree that a divorce is the best option you may both file for a joint petition.  By filing a joint petition, both spouse sign the paperwork alleviating the need for service of process.

It cannot be stressed enough the importance of good counsel throughout this process. Make sure to seek qualified and experienced family law practitioners to ensure all your legal needs are met and that no stone has been left unturned. Too often during this process details are lost in the fine print of legal documents, creating a potential for more suffering and even financial loss.

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

Social Security After Divorce

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There are many questions and misconceptions about what happens to social security benefits after a divorce.  Many people think that they are entitled to receive part of their ex-spouse’s social security.  Or, they believe that they may have to pay their spouse part of their social security.  This is not true.

Of course, social security rules can be complicated and difficult to pin down.  You don’t always know what you will receive until you apply.  However, the basic rules are as follows:

–          If you have been married more than 10 years, you or your spouse is entitled to have your social security benefit calculated based upon the highest earning spouse.  This is a method of calculation only.  Nothing is taken away from the highest earning spouse.  So, in theory, you both will receive the same amount of social security when you retire at normal retirement age and that amount will be the highest amount that either one of you is entitled to.

–          If you remarry, the above is no longer true while you are married.   If your ex-spouse is remarried, it has no effect on you.  If you have more than one ex-spouse and you are no longer married, you can choose to apply for benefits under your highest earning ex-spouse.

–          If you apply for social security benefits earlier than your normal retirement date, you will still receive an amount you are entitled to based upon the higher earnings record but your benefits will still be reduced because you chose to apply early.

–          If you are already collecting social security benefits which were calculated on your spouse’s earnings, your benefit will not be affected after a divorce.

–          If your ex-spouse dies, you could get a survivor benefit if your marriage lasted ten years or more. You can start receiving a survivor benefit as young as age 60, or age 50 if you are disabled.  A remarriage does not affect this survivor benefit.

The specific rules are set forth on the SSA website here.

Another important divorce fact: social security benefits can be garnished for child support or maintenance (alimony).

Where Do I File for Divorce in Wisconsin?

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When the frustration, hopelessness, and pain you’re experiencing in your marriage have become too much, and a divorce is unavoidable, it’s time to take the first step and file for divorce.  Before you can do this, however, you need to consider the residential requirements.

In order to file for a divorce in Wisconsin, you must be a resident of your current county for at least thirty (30) days, and a resident of Wisconsin for at least six (6) months.

In the event you have resided in your current county for over thirty (30) days but have not been a resident of Wisconsin for at least six (6) months, you can file a petition of legal separation which only requires 30 days of residency. Since the procedure for divorce takes at least four months, it is likely that you will meet the six (6) month requirement prior to the final hearing.   When you meet six (6) month requirement, you are then eligible to have your legal separation converted to a petition for divorce.

Here are some different scenarios to illustrate the jurisdictional requirements for divorce in Wisconsin:

Example 1:  If you have been living in Wisconsin for more than six months and West Bend for more than thirty days, you are able to file a petition for divorce in the Washington County Courts immediately.

Example 2:  If you moved out of the home you shared with your spouse in Waukesha County and changed to a Dodge County address, you can file for divorce in Washington County immediately. Or, you can wait for thirty days and then file in Dodge County.

Example 3:  If you have moved to Wisconsin from out of state and will be seeking a divorce in the near future, it will take thirty days of residency in order for you to file a petition of legal separation. Once you have been in the state for six months the petition of separation can be changed to a petition for divorce.

If you find yourself in a situation where you have a choice of venue (where you can file), you should consult with an attorney to determine which place will be more beneficial to you.  Counties have different rules, procedures and judges which may make a difference in your case.  The laws in various states are also very different, which you may want to take into consideration.

As if divorce isn’t hard enough, the frustration brought on by the legal “hula-hoops” one has to jump through only makes it worse. By being knowledgeable about where and when the process can begin, you will save you unnecessary headaches.

If you have any questions about where to file for divorce and would like to meet with one of our lawyers for a free initial office consultation, please call us at 414-258-1644.  You can also visit our website for more information.

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

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

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

-Alison H.S. Krueger

Do I Need a Divorce Lawyer?

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Our last post talked about how you can file for divorce by yourself.  The paperwork is easy and readily available at the courthouse or online.  But, that doesn’t mean you don’t need to hire a divorce attorney.  Of course, you are going to think that, as a divorce attorney, I am just trying to drum up business for myself or my colleagues.  However, I can tell you some of the horror stories of people who come to me after their divorce trying to “fix” their mistakes or address issues that they missed.  Sometimes, such as in the case of property division which is final upon divorce, these things simply cannot be corrected later and you will be out of luck and could cost yourself thousands of dollars.

Here are some situations where we absolutely advise you to hire a divorce lawyer.

1.        You don’t have an agreement with your spouse.  There is no getting around this one.  If you don’t have a complete agreement with your soon to be ex-spouse, your only option is negotiation and/or trial.  Without an experienced divorce attorney, you will not be aware of all of the options to be able to come up with a creative solution to settle your case.  We have been doing this a long time and will be able to pose a variety of options for you and to know what is reasonable in terms of settlement.  And, when all else fails, you must try your case to the judge.  There is no way that you can do yourself justice in this regard.  We know the law, the judges and the procedures.  Whatever you pay in attorneys fees, you could cost yourself in the long run in terms of what the court will award you at trial without an attorney.

2.       You have children.  In Wisconsin, there are three different issues related to children: custody, placement and child support, which can include the payment of children’s expenses.  There are many different options when it comes to placement and many factors which must be taken into consideration.  Therefore, by nature, custody, placement and child support can be complicated.  Without a specific divorce agreement, difficulties and problems may arise in the future.  An experienced divorce lawyer has handled enough of these cases to be able to point you in the right direction in terms of a placement order.  Even though we are not child or family therapists, we have some ideas about what works best for kids. We also have experience in the types of issues which can cause disputes between parents in the future and how to address those.

For example, I sometimes have people who don’t want to be away from their children for a long period of time so they come in and tell me they worked out a schedule in which the parents will alternate placement every other day.  This is a terrible schedule for most children!  The transitions are very disruptive to children and they are never able to get settled.  Or, similarly, parents come in and tell me they agreed to an alternating week or two week schedule.  Again, except for teenage children, this is not generally a good schedule.  Young children cannot handle being away from either parent for such a long time.  However, if you have never been divorced before, you may not realize this or you may not be aware of other (better) options for placement. An attorney can help you with this.

Another common issue which causes disputes is the payment of variable expenses or uninsured medical expenses for children.  Under a shared placement schedule in Wisconsin, variable expenses are shared. Medical expenses are always split. But, how does this work?  Not very well, actually.  Experienced attorneys have standard language or options to address the payment of these expenses and put into place a method which minimizes disputes in the future.  If you fail to specify how these expenses get paid, it will be difficult to enforce this order in the future which could cost you thousands of dollars.

Not having an attorney to guide you through these complicated issues can cause you to have disputes and problems down the road.  In the end, you may end up hiring an attorney anyway because you cannot resolve these problems yourself.

3.      You have assets with value.  Even if it is just house, there are numerous options when dealing with property.  Do you know all of the options you have and the bases you have to cover when awarding or selling real estate?  I had a situation once where the parties did their own divorce and simply agreed to sell the house and split the proceeds.  Later, the husband, who was living in the house, was failing to maintain it, refusing to cooperate with the sale process and stopped paying the mortgage.  Unfortunately, because their agreement was silent as to any of the specifics regarding the sale, there was little the Wife could do.  Eventually, the judge did step in at my request and ordered the Husband to vacate the house so it could be sold.  But, because the judgment did not indicate who would pay the mortgage during the sale process, she could not order him to make up those back payments.  A very costly mistake for my client.

If you have a business, investments and/or retirement accounts, there are various considerations which go into a divorce judgment regarding those assets such as value, taxes, capital gains, etc.  Even though an attorney is not an accountant or financial advisor, experienced divorce lawyers can navigate you through these waters.  Did you know there is a special type of order which is needed to divide a retirement account?  Again, if you try to save attorneys fees, you may just cost yourself more money down the road by missing a crucial point or dividing your property in a way that is financially harmful to yourself.

4.         There is abuse or a power imbalance between you and your spouse.  We are seeing more and more cases in which there is an abusive or controlling spouse.  If you are on the wrong end of this relationship, it is very difficult to stand up to this person and make good decisions for yourself.  Often times, even with lawyers, the abused or controlled spouse doesn’t want to fight and just wants to get it over with.  This can have a devastating financial impact on your or your children down the road.  A lawyer is a buffer and someone to stand up for you in these situations.  You are getting divorced to break away from this toxic relationship – don’t let your spouse poison your freedom by bullying you into leaving the marriage in a detrimental financial position just because he or she wears you down and you are not able to stand up to them.  A lawyer is there to protect your interests and fight for what you are entitled to – not what your spouse thinks you deserve.

5.        Your spouse is hiding assets/income or being dishonest.  An experienced divorce attorney will know where to look to uncover hidden assets or income.  They also will know how to conduct discovery in a way which does not rely solely on your spouse.  For example, attorneys can subpoena employers, bank accounts, etc.  A party cannot do that on their own.  For more information on this topic, see our website at Uncovering Hidden Assets in Divorce.

6.        Your spouse has an attorney.  You don’t absolutely need your own attorney but you do need to realize that your spouse’s attorney is only representing his or her interest.  People often try to minimize costs with only one lawyer and that can work if you are cooperating and are able to reach an agreement between yourselves.  However, if that is not the case, then you need your own attorney.  If you are uncomfortable or if you don’t agree to what is being proposed, you also need your own attorney.  Again, regardless of how nice or civil they are being to you, your spouse’s attorney can only represent their interest and cannot give you legal advice.  At your final hearing, the judge will question you extensively about your right to have your own attorney.  If you choose not to and later you determine that the agreement was not in your interest or more beneficial to your spouse, you will not be able to change your mind – especially in the case of property division or a waiver of maintenance.

There are other situations as well where you will be better off with an attorney.  I cannot cover them all in this article.  Just remember – if you are uncomfortable, overwhelmed or feel like you are getting the short end of the stick, consult with an attorney!  You may feel that you cannot afford the attorneys fees or simply don’t want to waste the money.  However, you need to ask yourself – what are you really saving if you cost yourself money with an unfair agreement or if you create a situation where you end up having to go back to court because of a deficient divorce judgment?  I have a saying – “don’t step on dollars to pick up pennies” which certainly applies in this situation.

If you have any questions or would like to meet with one of our lawyers for a free initial office consultation, please call us at 414-258-1644.  You can also visit our website for more information.

-Teri M Nelson

Can I File a Divorce Myself in Wisconsin?

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I am sure a lot of divorce lawyers would be unhappy with me if they read this but the answer is YES!  Now, that doesn’t mean you don’t need a lawyer to represent you in your divorce.  But filing the paperwork is easy and will save you some money off the top.  See our next post for information about whether you need to hire a divorce attorney.

Many counties in Wisconsin have self-help centers or volunteer lawyers or paralegals who come In for limited hours to assist people.  Notably, Waukesha and Milwaukee County have wonderful self-help centers with all of the forms and instructions that you need.

The Wisconsin Court Access system also has an Online Family Law Forms Assistant which will direct you to the correct forms after you answer certain questions (do you have children, etc.).  This will walk you through the process and give you different options such as printing out blank forms or having the forms completed for you after answering certain questions.  There are also tutorials for certain counties which explain exactly what you need to do.

These forms are fill in the blank and check the box. There is nothing complicated about them.  As long you file the correct forms, which basically differentiate between children or no children, and answer the questions correctly, there are not too many mistakes you can make on these forms.  Even if you do, an attorney can always amend them later for you.

There is some time involved.  You need to make several copies and take them to the courthouse which can be intimidating or inconvenient, especially in Milwaukee.  Unless you are filing jointly with your spouse, you also need to arrange for services of the papers on your spouse.  Given that, most people simply would rather have an attorney take care of this for them.  That is perfectly fine and we are happy to do that.

However, if you can navigate through the forms and have some time to take care of this yourself, you certainly can save yourself some attorney fees by doing so.  After filing, simply call or visit us and we can pick up your case from there.

The Wisconsin Coalition Against Domestic Violence created a very helpful flowchart which tells you all of the steps you must take to file for divorce.  Click here for this helpful tool.

Whether you choose to file the papers yourself or have us prepare them for you, please contact us for your free initial office consultation at 414-258-1644 or visit our website for more information.

What To Expect From Your Divorce Consultation

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In researching potential blog topics, I ran across an excellent article written for the State Bar of Michigan: The Initial Consultation with Your Divorce Attorney: What to Expect When You Don’t Know What to Expect .   This article is so well written and so thorough that I really don’t have much to add.  But, I will summarize and comment.  I will also discuss in terms of our office and our procedures at Nelson & Davis, LLC.

The first topic discussed is the article is the initial contact and information you need to provide.  When you call our office, we will ask for some basic information such as what type of action you have or may have, what county you reside in and whether an action has already been started.  This is important because it assists our intake coordinators in determining whether we can help you at all.  We do not practice in certain counties and people sometimes are confused as to what constitutes a “family action”.  Our office only handles divorce and paternity cases.

If we determine that your case is something we can help you with, we will tell you what our retainer is and ask you whether you would like to schedule an office appointment.  We don’t want you to be surprised by our retainer only after you take the time to come to our office and we don’t want to waste your time or ours if you don’t want to, or can’t, pay our fees.  We also will only do in-office appointments and not telephone consultations except in rare cases.  There are some attorneys who will do telephone consultations but we find it works best if we meet potential clients in person.

If you decide you want to schedule an appointment, we then ask your name and the name of your spouse or other party.  This is crucial information and sometimes people do not want to give it to us but we will not schedule an appointment without it.  We keep that information confidential but we must determine if we have a conflict of interest.  The most common conflict is that we have already met with the other party.  In that case, we cannot meet with you.  We do not disclose that fact (nor will we ever disclose that to the other party if he/she contacts us) but simply will tell you that we cannot meet with you because we have a conflict.  However, there may be other conflicts.  One of our attorneys may know you or your spouse/the other party in another way and may feel it would be a conflict to represent you.  Or, we may have represented someone connected to you such as your employer, an employee, a relative or a business associate.  Those individuals are a great source of referrals for us and it usually is not a problem but, depending on the facts, we also may consider it a potential conflict.  Whenever there is a potential ethical issue for us, we try to err on the side of caution.

When you come in for your appointment, we will also ask you to fill out an intake questionnaire.  We will ask you to provide more specific information including your income and assets.  The reason for this is so we can provide you more detailed information about what to expect in your case.  All of this information is kept strictly confidential.  The article does a very good job in describing the type of information you will be asked to provide and why.  Keep in mind, if you are uncomfortable in providing any of this information, simply discuss that with the attorney you are meeting with.

The one difference or problem I have with the article is that it indicates that the attorney will be giving you advice at your initial consultation.  This is not true! Until we are actually retained, we cannot provide you with legal advice.  However, what we will do is review the facts of your case, tell you what the law is, what the process is, what you might expect to happen and what we can do for you.

In our firm, it is our goal to provide you with realistic expectations about your case.  Keep in mind, we may tell you things that you are not going to be happy with.  However, we are going to give you an honest evaluation of your case.  It does not help you if we fill you with unrealistic expectations only for you to lose or be disappointed later.  If you want the kind of attorney who is simply going to do whatever you want, then we are not the firm for you.  Be forewarned though – hiring that kind of attorney is only going to cost you attorneys fees and disappointment later.

We have some other blog posts which you may find helpful which discuss what type of attorney to look for, when to start looking for a divorce attorney and what questions you can ask at you initial consultation (Archives – May, 2012).

If you have any questions or would like to meet with one of our lawyers for a free initial office consultation, please call us at 414-258-1644.  You can also visit our website for more information.

3 Questions to Ask a Divorce Lawyer Before You Hire Them

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Going through a divorce can be a difficult and painful process. It’s made even worse by the fact that most people aren’t emotionally or financially ready to handle what’s ahead – even if they are the ones filing for divorce from their spouse. Nonetheless, finding the right divorce attorney is an absolutely critical decision, and one you don’t want to put off any longer than you have to.

With the right divorce lawyer on your side, you can stand a good chance of achieving a fair resolution and protecting that which you are legally entitled to. With the wrong divorce lawyer, however, you could find yourself in the midst of a long struggle that leaves you dealing with unintended consequences for the rest of your life.

Because this is such an enormous decision, it’s important that you do the right kinds of research. Here are three questions to ask a divorce lawyer before you hire them:

How many clients have you represented as a divorce lawyer in the past?

Although experience isn’t everything, it’s important for your divorce lawyer to have a sense of the way things work, and several past cases to draw lessons and insights from. Additionally, having a divorce lawyer with lots of experience allows you to take a closer look at their previous track record and see what they’ve been able to achieve for other clients in the past.

There isn’t any set amount of experience that’s perfect for a divorce lawyer, but be careful working with anyone who hasn’t been practicing for at least a few years or more. Given that the outcome of the proceedings will affect you, your finances, and your family for a very long time, you probably don’t want to entrust the job to someone without a little history behind them.

Who is your perfect client?

Because divorce is such a personal and multifaceted process, there are divorce attorneys who specialize in different types of cases, situations, and even clients. And so, the chances are very good that you could find a divorce lawyer in your area who has helped lots of other people who were in a situation similar to yours in the past.

Ask about your divorce lawyer’s perfect client, because the answer will tell you what sort of situations they are most familiar with – and the ones where they are most likely to get the results you are hoping for.  Also, ask your attorney how you can help and what types of things you can do to assist in the process.  You should be able to have input and control into your own case.  This will save you attorneys fees and give you greater satisfaction with the end result.  Your attorney should welcome your assistance and your input.  After all, it is your life and you have to live with the results.

How will you handle my case?

Depending on the reputation, schedule, and experience of your divorce lawyer, he or she may maintain a very small staff with a couple of executive assistants, or a very large one with several junior attorneys in the office. Neither of those is necessarily better, but it is good to find out from the outset how much of your case will be handled personally by your divorce lawyer, and how much will be assigned to other members of the team.

You should ask your attorney how they will communicate with you, what you should expect in terms of procedure and how things work in general.  You should also ask how quickly your attorney can respond to your questions and/or what happens if they are in court or you can’t get in touch with them.  Communication is key and you need to know up front how this will be handled.

Lastly, you should find out if your attorney will work cooperatively with the other party or his or her attorney or if they plan on litigating from the beginning.  You should decide the answer to this question – not your attorney.  Everyone has different expectations in their divorce and how they want their case to be handled.  Your attorney is working for you and in your best interest.  Sometimes what you want is not necessarily in your best interests, however, and you should feel comfortable listening to your attorney’s advice on this.

Even the most amicable divorces are rarely easy, from a legal standpoint or an emotional one. For that reason, you need to have the right divorce lawyer on your side.

If you have questions about the divorce process, or just want to meet with a divorce lawyer call us at 414-258-1644 to set up a free initial consultation today.  You can also visit our website for more information.

Can I Remove My Spouse From Insurance Before a Divorce?

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When you file for divorce, you want to begin the process of separation as much as possible.  You open your own bank accounts, cancel joint credit cards, maybe even move out.  A question that often comes up is whether you can remove your spouse from insurance policies before or during a divorce.

The answer is usually no.  There are many types of insurance policies that people own: health, life, auto, homeowners.  In Wisconsin, the court would typically enter an order that all insurance policies, and beneficiaries, remain in effect during the pendency of a divorce.  This is hard to swallow for some people.  However, you also need to consider that until the final judgment is entered, you are technically still married.  And, as a married person, you still carry some responsibility and liability for your spouse.  It is actually in your best interest to maintain insurance up until the date of your final divorce.

For example, if your spouse becomes ill, you are still liable for medical bills as a spouse.  Even though the divorce court might not order that you are responsible for bills incurred after the date of the filing, creditors are not bound by family court orders.  They technically could seek reimbursement from a spouse.  Therefore, having health insurance in place is for your maximum protection for these types of debts.

Or, if your spouse is in a car accident for which they are at fault, you are certainly not liable for their actions.  However, marital assets such as income, bank accounts or your home could be subject to collection actions.  Having automobile insurance in place also reduces your risk in this situation.

Life insurance is the most difficult to justify – after all, if something happens to you, you certainly don’t want your soon-to-be-ex spouse to benefit.  If you have children, though, it will be to your children’s benefit as well.  And, if you have a long-term marriage, life insurance makes sense if you will have a maintenance (alimony) obligation.  In other situations, however, the court may consider releasing you from your obligation to maintain life insurance for your spouse.

You can ask the court to order the other spouse to pay for or contribute to the cost of these insurance policies if appropriate.  However, as indicated, it is really to your own benefit in most cases to maintain insurance for yourself and your spouse even during the pendency of a divorce.

Once a divorce is final, all obligations to carry insurance for your spouse cease.  They may have the right to continue on your health insurance under COBRA at their own cost.  They will be responsible for their own auto and life insurance.  If you have minor children, however, you will most likely be ordered to maintain your life insurance and name them as beneficiaries.

To further discuss issues related to a divorce or legal separation, please contact the experienced divorce attorneys at Nelson, Krueger & Millenbach, LLC at 414-258-1644 or visit our website for more information.

Discussing Your Divorce With Others

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

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

. . .

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

–TIRED OF LISTENING IN MARYLAND

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

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

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

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

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

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

–Teri M Nelson

Are Divorce Records Public in Wisconsin?

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Is a divorce part of the public record in Wisconsin?  Should it be?  After all, are your family issues really anyone else’s business?  I ran across an interesting article from a few years ago written by a California divorce attorney lamenting the fact that divorce records are public and found that I agreed with most of his points. (My Divorce is None of Your Business). The premise of the article is that marriage and family are private and protected in many other areas of the law and society – so should then be divorce.

In Wisconsin, the answer is yes, divorce records are public.  In fact, Wisconsin is one of the few states that give full public access to all court records online, including divorce (see CCAP).  The only exception is paternity or children’s court cases which are confidential.  Your court file is public record with the exception of financial statements, which are sealed.  All family court proceedings, again except paternity cases, are open to the public.

How does this affect you?  In reality, unless you have a really nosy neighbor with way too much time on their hands, people you know are not going to trek to the courthouse and peruse through your divorce file.  But, CCAP does cause all types of issues for the people of Wisconsin.  There has been much debate in Wisconsin about the level of access the public should have to these records.  There have been complaints about discrimination from prospective employers, landlords, etc.  The fact of it is, in Wisconsin, any contact you have had with the legal system is an open book for all to see.

The details of your divorce judgment are not necessarily listed on CCAP.  But, sometimes details peek through in the notes the clerks make in the system with regards to hearings and court findings.  This is dependent on the clerk and the judge.  Occasionally, the judges will seal or restrict what appears on CCAP but a party would need to petition the court for that and there would need to be a compelling reason (a public figure, safety issues, etc.).

As family lawyers, one issue that we have with CCAP is that your divorce filing appears almost instantly.  Therefore, if you don’t want your spouse to know you filed yet, you simply can’t file.  Sometimes, there are reasons to file but to wait to serve the papers.  Often when there is domestic violence, we want to initiate the divorce quickly to obtain a court date but don’t want to serve to allow our clients time to move out or put into place a safety plan.  However, with the advent of CCAP, we can no longer do that.  Pre-divorce planning is crucial in these situations and you should consult with your attorney regarding same.

Conversely, public court records can also be extremely helpful.  It is difficult now to hide bad behavior and conceal legal problems or debts.  Family lawyers can better protect our clients from undisclosed issues.  In virtually every case, we feel an obligation to search CCAP to discover potential issues or problems.  CCAP also allows us to keep track of and monitor our cases.  It is an extremely important tool and resource for those of us working in the legal system.

The bottom line is that divorce can be messy and in Wisconsin, at least, it is public.  Whatever your opinion might be about that, it is the reality that we must live with.

To discuss your case further with an experienced divorce attorney, contact us at 414-258-1644 to schedule a free initial office consultation or visit our website for more information.