What to Expect in Mediation

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You’ve been ordered to attend mediation in a custody or placement dispute – so now what?

Why Mediation:

Wisconsin law states that in any family law action matter where custody and/or physical placement is contested, the parties must attend at least one session with a mediator. The court can’t hold a trial or final hearing on custody or placement until after mediation is completed, absent certain exceptions. Wis. Stats. 767.405(8)(a).

Most custody and placement cases require mediation unless there is an agreement between the parties or there are significant safety concerns for the child. The court wants to ensure that the parties have made a good-faith effort to resolve their legal issues before filing any motions, having a guardian ad litem become involved, or asking the court for a hearing.

Most counties have their own mediators who are employed by the county.  These may be social workers who work for the county or they may be private attorneys or other family law professionals, such as social workers or counselors, who are independent contractors paid by the county.

You and the other parent can also agree to employ a private mediator.  This will also satisfy the statutory requirement and allow you to choose your own mediator.  However, it is often more expensive and will be at your own cost.

How To Request Mediation:

Requesting mediation is simple – all you need to do is go to your court’s website and search for the mediation request form. You need to fill out the form with some basic information and state your reasons for requesting mediation.  You can request mediation at any time if there is a good reason to do so. You must then file this request with the court, and the court will order both parties to attend mediation. Or, you can request mediation during a court hearing and the court commissioner or judge can initiate that process on your behalf.

What Happens Once Mediation Is Ordered:

Once mediation is ordered, a court mediator will reach out to both parties to schedule a time to meet. They will also go over how to pay for mediation if there is a fee required.

Each county handles mediation a bit differently. In Milwaukee, Waukesha, and Ozaukee County, the first mediation session is free. (By statute, each county must offer a free session.  Milwaukee County just uses their “information session” as the free session) Sometimes, such as in Milwaukee County, this first session is an evaluation where the mediator determines if the parties are willing to mediate. If both parties are willing to put in a good faith effort to try mediation, the mediator will schedule a substantive mediation session where you will be able to try and resolve your case with a mediator. Each party then needs to pay ½ of the total mediation fee, or $100, directly to the county prior to that second session. In Washington or Waukesha County, there is no initial evaluation session and the first session is where mediated agreements are made.

It is important to pay any required mediation fees on time. If the fee is not paid, the court will cancel mediation and note the reasons why in its report to the court. You do not want to show the court that you are not taking its orders seriously by not attending mediation or paying the fee on time.  The court will also make a negative inference if you attend the mediation information session in Milwaukee and decide not to mediate. 

What Happens During Mediation:

During mediation, the mediator will walk the parties through various issues surrounding custody and placement. They will go over the ground rules for the session and will explain what everything means. They tend to start generally and work towards a more detailed agreement if the parties are close in their positions. They will talk with both parties about why they are making their requests and see if they can compromise on any issues. The mediator may get as specific as discussing other factors affecting the child such as transportation, communication, vacation time, and a holiday schedule. This county-appointed mediator will never discuss child support and is focused on issues of custody and placement. If the parties can agree on some issues but not all issues, they can enter into a partial mediated agreement. The court will then adopt the agreed-upon terms into a court order.

In Conclusion  

Mediation is the best way to arrive at an agreement with your child’s parent,  even if you think your ex-partner is not going to agree on anything. You’d be surprised at what a good mediator can do for your family. It’s not only a court requirement in most cases, but also a much cheaper alternative to litigating the process in court, and can show a lot of goodwill for co-parenting down the line.

Co-Parenting vs. Parallel Parenting: What’s the Difference?

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If you anticipate separating or have separated from the other parent of your child(ren), you may have been told that, post-separation, the two of you are going to have to co-parent. Co-parenting is a model where both parties equally share parenting responsibilities such as going to child-related events, functions, and appointments. Under this model, parents share similar views regarding child rearing and employ similar parenting techniques across the two homes. For example, the parties may agree that they will both use a gentle parenting approach in each of their homes or even enforce the same bedtime. Consistent and effective communication in person or over the phone is required for this parenting model to work and to limit the amount of stress felt by the child(ren).

For high-conflict cases where parents do not share the same parenting views or are unable to speak to one another, co-parenting may seem like an impossible task. Many parents in this situation use the parallel-parenting model as a way to raise their child(ren). Under the parallel-parenting model, parents raise their child(ren) separate from the other parent.  They may not even attend the same child-related events or appointments. Unlike co-parenting where parents share and exercise the same parenting views, parents who parallel-parent take different approaches to parenting in each of their respective homes. For example, where one parent uses a gentle parenting approach to raising the child(ren), the other parent may use a more authoritative approach. Communication between both parents is still needed to ensure the needs of the child(ren) are met. However, parents using this model can limit communication to solely emails, text messages, or a monitored app such as Our Family Wizard to minimize conflict and maintain boundaries.

Regardless of what parenting model is best for your unique situation, the most important thing is that you and the other party keep the child(ren) removed from any parental conflict and continue to love, support, and do what is in your child(ren)’s best interests.

If you are in the process of a separation or divorce, contact Nelson, Krueger & Millenbach, LLC at (414) 258-1644 to speak with one of our attorneys regarding your specific situation.

What is a Vocational Evaluation and When is it Needed?

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In many family law cases, support is a hotly contested issue. When child support or maintenance (alimony) are at issue, many worry whether their former partner is being truthful about their income or what they can earn. For example, your former partner may have a degree that would allow them to earn $80,000 a year but instead, they are choosing to work a lower-paying job or simply stay at home. In that situation, an accurate idea as to their earning capacity is very important, especially because that is a factor the judge considers when making determinations regarding child support and maintenance. Trying to accurately determine your former partner’s income or income potential is not something you can do on your own. Thankfully, there are individuals known as vocational experts (or evaluators) who do the hard work for you.

Vocational experts conduct interviews with your former partner that assess a variety of factors including age, health, education level, prior work history, job skills, and the job market. The vocational expert may review your former partner’s resume during this interview. The information gathered is then summarized and used to formulate recommendations regarding employment opportunities and salary potential. The results are based on objective criteria, meaning your former spouse cannot escape the reality of what they could, or should, be earning. This objective analysis is incredibly helpful to attorney in negotiating child support or maintenance amounts, and for judges who make the final determination.

Whether or not to use a vocational expert, and who to select as the appropriate vocational expert, can be a decision that a family law attorney can help you make based upon the needs of your case. It is possible that your former partner may also want you to submit to a vocational evaluation as well. Depending on the situation, both you and your former partner may be responsible for any costs associated with the vocational evaluation, or just one of you. Should the party who is supposed to obtain a vocational evaluation refuse to do so, a court may order compliance.

If you are interested in or in the process of negotiating child support or maintenance payments, contact Nelson, Krueger & Millenbach, LLC at (414) 258-1644 to speak with one of our attorneys regarding your specific situation. 

When Can I Retire and Stop Paying Maintenance or Alimony?

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If you are currently paying maintenance or alimony to an ex-spouse, a question that is likely on your mind is “when can I retire?”. This is a very simple question that has a very complex answer. 

If your divorce decree has a set date for the termination of maintenance, whether it is at the expiration of 60 months or after the payment of 120 months of maintenance, then the court will expect, absent some extenuating circumstance, you will work through the date of the termination of maintenance payments.  An extenuating circumstance might be, for example, if you experience a medical condition that requires you to stop working or causes you to work less. In these instances, a court might consider this circumstance in modifying or terminating your maintenance.  If the demands of your job change, where working at the same pace becomes difficult, perhaps the court will consider the new requirements in determining whether to modify or terminate maintenance.  It is important to understand that if you have a set time frame for maintenance, you may have a difficult time terminating maintenance or modifying maintenance prior to the expiration set by the court.

If your maintenance obligation is “non-modifiable”, then the court is prohibited from modifying maintenance under any circumstance.  While you could retire during your maintenance obligation, the court will not modify your maintenance due to that retirement and you will have to pay your maintenance obligation with funds other than your employment income.

If your maintenance obligation has no termination date or is “indefinite”, then the question of when you can retire requires more of an analysis.  First, indefinite maintenance does not mean you will be paying maintenance forever.  Indefinite maintenance requires you to make your payments until there is a “substantial change in circumstances.”  Retirement is considered a substantial change in circumstances; however, that is not the end of the analysis.  Retirement is not an automatic trigger for a modification or termination.  In order for the court to grant you relief from maintenance, either by terminating or modifying maintenance due to your retirement, your decision to retire has to be reasonable under all the circumstances.    In determining what is reasonable, the court is going to analyze both parties’ “needs” as well as what is “equitable”.   As you can imagine, this analysis is going to vary greatly from situation to situation.  The court is going to give consideration to the length of time between the divorce and the decision to retire and consideration will be given to your age and your health.  Further, the court is going to analyze both parties’ current lifestyles as well at the time of divorce.  This analysis is extremely fact-driven and requires an attorney who has in-depth knowledge of the recent case law addressing such situations. 

If you are currently in the process of divorce and negotiating maintenance, consideration should be given to your anticipated retirement date.  Planning in advance can alleviate post-judgment litigation and set some expectations for the termination of maintenance based on retirement.

 If you are currently paying maintenance and are considering retirement or in the process of negotiating a maintenance payment contact Nelson, Krueger & Millenbach, LLC at 414-258-1644 to speak with one of our attorneys regarding your specific situation. 

Avoiding the Divorce DUI!

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Divorce is a stressful time for everyone. You go through many major life changes – you may be moving out of your house, divvying up your possessions, dealing with a slew of emotions, and trying to find time to see your kids while juggling your many obligations in life. We don’t all deal with the stress in the best way. Maybe you have a night off from the kids and you want to let off some steam from this divorce at the local bar. That’s got to be harmless, right?


A common issue in divorce cases that family law attorneys know all too well is the dreaded “divorce DUI.” In Wisconsin, a person can receive a “driving under the influence” (DUI) or “operating while intoxicated” (OWI) charge if they have been found to be driving while using alcohol or other drugs. Sometimes people going through divorce may cope with the process by drinking and find themselves criminally charged with driving under the influence or alcohol or substances, which can have severe consequences on their divorce case.


Importantly, any DUIs or OWIs received by an individual in a divorce case will be brought up during child custody and placement negotiations and litigation. Specifically, two of the factors that a court looks at in determining custody and placement are: (1) whether any of the parties have a criminal record; and (2) whether either party has or had a significant problem with alcohol or drug abuse. A DUI/OWI raises issues with both of these factors.


If you do receive a DUI/OWI during your divorce, that does not necessarily mean you will lose all placement time with your kids. The court will balance a variety of factors and look at the severity of your charge, as well as the actions you have taken to recover from that event. The court or your attorney will likely recommend that you engage in alcohol monitoring or testing, and may even suggest that you complete an AODA assessment or therapy to show that you are actively handling your drinking behavior.


Receiving a DUI/OWI during a divorce can also lead to additional financial stress, such as court penalties, fees, attorney fees, and any damages incurred by the DUI/OWI. You may also deal with the stress of attending additional court hearings, simultaneously handling separate family and criminal cases, and damaging family relationships.


Divorce is a hard time and “divorce DUIs” are far too common. Reach out to family and loved ones for support and remember that you are not alone during this time. Counseling and support groups can help tremendously. An experienced family law attorney can help navigate this occurrence and best help rehabilitate the consequences of a divorce DUI/OWI to protect you during your pending family law matter.


We’re also here to help! Call our offices at (414) 258-1644 to schedule a free consultation with an attorney at Nelson, Krueger & Millenbach LLC.

Be a Vault! Protect Confidential Information In Family Law Cases

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Protecting your confidential information should always be a primary concern in life, but especially so in divorce and family law cases. When you are engaged in a pending divorce or paternity pre- or post-judgment case, you will likely be called upon to provide what will seem like an endless list of financial documents. You will need to provide your attorney, opposing party, opposing attorney and the court with wage stubs, tax returns, bank statements, credit card statements, retirement and investment statements, social security reports, and many, many other documents. You may even need to provide medical records and other personal information. Who would want these documents circulating without protection? The answer is: no one!

Wisconsin Statutes require that certain documents which confidential information must be redacted before filing with the court. This means that identifiable information such as social security numbers, account numbers, etc. must be removed before a document can be filed with the court. If you are going to file such a document with this information, you need to ensure that you, your attorney, and the opposing attorney removes this information before filing or penalties can result.

Not only do you have a duty to protect your own confidential information, but you also have to be careful to protect the other party’s confidential information. In a recent Wisconsin Court of Appeals decision, Heidi Black v. Jeffrey Allen Kelly and MidWest Mgmt., Inc., No. 2021AP1239 (Wis. Ct. App. Sept.1, 2022), the court was called upon to decide a unique situation in which protected financial information was inadvertently made public through an opposing party’s employer’s computer system.

In Black v. Kelly and MidWest Mgmt., Inc., Heidi Black’s Financial Disclosure Statement from her divorce case was made available online through her former spouse’s employer’s computer server. Black’s friend discovered that her Financial Disclosure Statement was available online to the public after completing an internet search of Black’s name. Black sued her former spouse, Jeffrey Allen Kelley, and his employer, Mid-West Management, Inc., for making public her Financial Disclosure Statement from her divorce action.

The court in Black v. Kelly and MidWest Mgmt., Inc. found in Kelley’s and Mid-West Management, Inc.’s favor and dismissed Black’s civil case for damages only because there was no evidence that Black’s Financial Disclosure Statement was viewed by anyone besides Black’s friend, Kelley, and Mid-West Management, Inc. when removing the document from public access. Wisconsin law requires a finding of “publicity” of the protected information which is “the matter is made public by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge” in order to award damages. See Black v. Kelly and MidWest Mgmt., Inc. Publicity was not proven in this case. The court distinguished “publicity” from “publication” which includes an element “in connection with liability for defamation” when evaluating if damages should be awarded. See Black v. Kelly and MidWest Mgmt., Inc. The Defendants-Respondents in this case hired experts to show that Black’s Financial Disclosure Statement was viewed by limited persons and was not made public communication.

The importance of Black v. Kelly and MidWest Mgmt., Inc. suggests that there could, however, be a civil tort basis should a party’s financial, confidential and/or protected information be made public communication. The Black case and the applicable case law does not require a finding of malice or intention in making the information public in order for damages to be awarded it only needs to be proven that the information was made a communication to the public at large.

What does that mean for you? The answer is clear, you need to be a vault! Protect your soon-to-be ex’s information the same way that you protect your own: with the tightest security and highest level of protection.

If you have questions about a family law action and how to best protect yourself, please contact Nelson, Krueger & Millenbach, LLC at (414) 258-1644 to schedule a free initial consultation to discuss your case.

The Benefit of Hiring a Family Law Attorney

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In times of economic downturn, it can appear that hiring an attorney for your divorce or paternity matter is too expensive of an investment. In the Wisconsin, anybody can file a divorce, paternity, or other family law related matter without an attorney. It is an especially attractive idea when the other parent or party in the action appears to agree with all the issues that may arise in family law related matters. However, things can quickly change in family law cases (which includes divorce, initial paternities, requests to change placement, custody or child support, or requests to change maintenance or alimony, etc.). Hiring an attorney can be an extremely helpful investment in the following circumstances:

  • Attorneys who commonly practice in the family law area are familiar with what Court Commissioners and Judges expect to hear in these cases. For example, if you are requesting a change in placement, the Court will need to understand when the last order regarding placement occurred, and the type of change that may have occurred to show why a change may be in a child’s best interest.
  • Attorneys know what paperwork needs to be filed to effectively use your Court time and ensure that your case is heard. For example, some counties require specific documentation to be filed to get a court date in a divorce proceeding.
  • Attorneys know why certain agreements may be very helpful to avoid returning to court, or may have unintended, negative consequences. For example, if parties agree to divide a 401k in a divorce, certain, specific paperwork is needed to divide the 401k without incurring penalties or incurring avoidable tax consequences to either party.
  • In cases involving domestic violence, having an attorney can ensure appropriate communication, or even avoid the need for a victim to communicate with an abusive partner. Family law attorneys can help navigate restraining orders between parties as well.
  • Attorneys can help educate parties as to what goals can reasonably be accomplished in a Court action and help inform parties as to more resources that may be available to families outside of having a trial in front of a judge. For example, parents may benefit from a therapist’s assistance to help parent better communicate and work together for the benefit of the children. The input from a therapist may be more helpful to these parents than what a Judge may order.
  • Attorneys can be helpful in providing possible solutions that will likely be approved by a Court Commissioner or judge. For example, an attorney knows what factors to look for in determining what a child support order should be and may be able to obtain more information regarding the other parent’s income if that parent is uncooperative. The attorney will also understand how information regarding income and placement time is used to determine an appropriate child support order.
  • Some decisions made during an initial action cannot be changed or are difficult to change, so if you do not have an attorney you might make a mistake that cannot be undone!

These are just a few examples of how hiring an attorney can be very helpful and even necessary in navigating a family law matter. As is often the case in legal matters involving the family, these issues can be very emotional for parties. Attorneys who practice family law understand that these cases can feel overwhelming and even scary because these issues are so important to the parties involved. It is an attorney’s job to offer expertise in the legal process and offer rational advice to their clients. Making well informed decisions can help you avoid coming back to Court in the future and can help parties confidently move forward with their lives. If you feel you could benefit from the advice of an attorney in your family law matter, please call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.

Exchanging Finances with My Ex – Do I Have To?

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There is a new statutory language in Wisconsin which automatically requires parties with minor children to exchange certain financial information regarding income on May 1st of each calendar year.  Pursuant to Wis. Stat. § 767.54, in an action where the court has ordered a party to pay child or family support, both parties must annually exchange tax returns, year end paystubs, a recent paystub and any other documentation regarding income from all sources for the 12 month time period preceding the exchange of information.  Even though this is a standard law and provision that is often incorporated into parties’ Marital Settlement Agreements, paternity rulings, and other family law orders, many individuals do not know about this statute or fail to take steps to enforce it. 

When working with individuals wanting to modify a child support order, our first question is always “Is your ex making more money than they were at the time of the original order?”  Most of the time, the answer is either “I don’t know” or “I know they are making more, but I am not sure how much.”  The new statutory language requiring the exchange of income information would assist in answering this question and gives a party the basis for requesting that information.  You absolutely must provide documentation regarding your finances, especially if specifically requested by the other party, or they may have a basis to pursue a contempt motion against you and you may even be responsible for paying their attorneys’ fees for bringing forth that action.

The reason for this is that the award of child support may change if there is a substantial change in circumstances which is based upon any increases or decreases in a party’s income.  Where one party is awarded primary placement, the other party’s income increases will be of higher importance.  Where there is a shared placement schedule, both parties’ changes in income are equally important. 

Why don’t parties follow this rule?  Many times, parties don’t want to go through the hassle of going back to court or doing the math to calculate a new amount every single year.  Others do not feel comfortable directly asking for the other party’s finances or providing their finances to the other party.  However, child support is considered as a payment not for a party, but for the child during that party’s placement time.  As such, it is important for parties to exchange financial information in this manner to ensure that the child is receiving as much support as needed.

Because many parties do not follow or do not know about this rule, the Child Support Agency often revisits prior child support orders after 33 months have lapsed.  The statutes provides that after 33 months, there is a presumption of a substantial change in circumstances upon which a modification of child support may be based. In that case, the Child Support Agency may file a motion to modify child support at that time.  By requesting financial information every year, you can assess whether there needs to be a change in child support and can get a start on filing your motion sooner, since the court cannot retroactively award child support prior to the date of service of any such motion. If you want to change a child support order, the best way to maximize the support is by filing as soon as you learn of a substantial change in income. Or, if your circumstances have changed to the extent that you can no longer pay the support you have been ordered to pay due to a reduction or loss of income, you should file a motion as soon as that occurs.

Deployed Parents and Children’s Custody and Placement Arrangements in Wisconsin

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As of March 11, 2022, a new law in Wisconsin called the “Uniform Deployed Parents Custody and Visitation Act” expands parents’ ability to delegate custody and placement responsibilities for a child when one parent is deployed in military service. The deploying parent must notify the other parent of the upcoming deployment. A documented exchange of plans outlining how each parent plans to fulfill their custody and placement responsibilities during the deployment is required to be made if the parents do not reside in the same household.

Frequently, the deployed parent requests that his or her placement time be awarded to a third party such as a step-parent or a grandparent.  However, in that event, both parties must agree in a signed, written agreement, to give temporary custody and/or placement responsibilities to a nonparent during a parent’s deployment. The individual who accepts temporary custody or placement must also agree to the specific arrangements in writing. The parents’ agreement should include the frequency and method of contact between the deploying parent and the child or children. If more than two individuals are given legal custody rights, a process to resolve any custodial disputes should be included in the written agreement.

In some situations, parents may not agree as to what, if any, temporary custody or placement arrangements should be made when facing a parent’s deployment. In that situation, the law allows either parent to  file a motion to address the issues of temporary custody and placement during a deployment. It does not matter if there is not an existing family case such as divorce or paternity that addresses custody and placement. A new case may be created with the court to make these temporary orders. It is also possible that temporary child support may be set up during the parent’s absence. In addressing these issues, the court must also make clear that the custody and placement arrangement made for the nonparent is only temporary. A process to end this authority, whether by stipulation from all parties, or the end of the deployment, should also be ordered by the Court.

These new legal changes are intended to provide helpful options to families wherein a parent faces deployment. The Court will certainly be taking into consideration the best interest of the children involved, and hopefully minimize any disruption to the relationship between the children and the deployed parent. If you have questions, or concerns, regarding how this new law may affect you in your family law matter, please call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.

Stipulations or Partial Agreements Entered Before Divorce or Legal Separation Judgments in Wisconsin

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In Wisconsin,  2021 Wisconsin Act 204 has been signed into law which changes how the courts may enter initial orders regarding custody, placement, and child support for minor children, maintenance, property division, or other related matters. This new law is now incorporated into the Wisconsin Statutes as §767.333. Starting March 20, 2022, a Court may approve as a final order (referred to as an “initial” order in the statute) a stipulation, or partial agreement, regarding custody, placement, child support, maintenance, property division or other related agreements before the judgment of divorce, legal separation, or annulment.

This is important because these agreements will be considered final even if there has not been a judgment of divorce, legal separation, or annulment yet granted. This means that the court would then apply post-judgment statutory standards regarding modification of final orders if a party is requesting a change in the order, even though the underlying divorce, legal separation, or annulment may not be final. Depending on the issues that are agreed upon in the stipulation, this statute notes the specific legal requirements  to address post-judgment motions to modify these final orders.

Because of the finality associated with these types of stipulations, the statute requires that before the court enters the stipulation as a final order of the court, there must be a hearing before the court, on the record, where the court confirms that the parties understand the terms of the stipulation, and the Court also ensures that the parties intend for the stipulation to be considered final. It is helpful to note that this hearing must be held with both parties present, either physically present, or attending by phone, video, or electronic means, to enter these stipulations as final orders.

This change in the statute is very important in cases involving custody and placement issues for minor children. Often, parties are unaware that their initial agreements, incorporated into the Judgment of Divorce, Legal Separation, or Annulment, cannot be modified within two years of that judgment unless that party requesting the modification can prove, with substantial evidence, that not making that change to custody or placement would be physically or emotionally harmful to the best interest of the child or children. After two years from that initial judgment, a party requesting a modification must show a substantial change of circumstances since the last order affecting placement or custody. Given these requirements, it is much more difficult to change custody and placement within that two-year timeframe.

For example, if it takes an additional six months for the Court to issue a final judgment of divorce because there were issues that had to be determined in a trial, but the Court entered a stipulation regarding custody and placement as final orders in the middle of the case under the new statute, then as of the date of divorce, the parties would already be six months into that two-year timeframe.

This can also mean that Partial Agreements regarding property division or other financial matters become final and cannot be changed after the court approves that Agreement.  This is sometimes disadvantageous if a divorce is not yet finalized because circumstances can change.  You may or may not want to lock in a financial agreement prior to the final divorce judgment.  In either case, it important to be aware of what the consequences of entering into that Partial Agreement.

Given the change in the law, it is important to understand what you are agreeing to before entering a stipulation, or a Partial Marital Settlement Agreement, in your divorce, legal separation, or annulment matter. It is important to know what such stipulations may mean, if they are final, and what finality means if something changes after entering these stipulations. If you have questions, or concerns, regarding how this new law may affect you in your family law matter, please call Nelson, Krueger & Millenbach, LLC at (414) 258-1644 to schedule a free initial consultation to discuss your case.

The Effect of the 2021 Child Tax Credit and Advance Child Tax Credit Payments and Filing Your 2021 Taxes

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Many parents have legal agreements, such as a Marital Settlement Agreement or Paternity Court Orders, which state that they alternate who claims their child or children’s tax credits each year. What might have made things confusing over the last year is the Economic Impact Payments and the Recovery Rebate Credit for 2021. The IRS determined who received the 2021 advance child tax credit payments based on the information provided by taxpayer’s 2020 tax returns, or their 2019 tax return if the IRS had not processed or received the 2020 return. This may have created confusion if parties alternate claiming their children’s tax credits every other year.

The third Economic Impact Payment was, in fact, an advance payment of the 2021 recovery rebate credit. In some situations, though, an eligible parent may not have received this payment for a qualifying dependent child that the parent is legally entitled to claim on their 2021 tax return. The IRS has offered guidance that confirms that the parent can claim the 2021 recovery rebate credit, regardless of any Economic Impact Payment that the other parent received.

 If a parent received the Economic Impact Payment for a dependent child that they are not legally entitled to claim on their 2021 tax return, they may not be required to pay it back. The IRS has issued information to serve as a guideline for whether the parent who received payments, but was not entitled to claim the dependent child in their 2021 tax return, is entitled to repayment protection. A parent whose 2021 tax return shows a modified adjusted gross income of a maximum of: $60,000 if he/she is married and filing a joint return; $50,000 if filing as head of household; and $40,000 as a single filer or married and filing a separate tax return, will qualify for repayment protection.

However, the payment protection amount will decrease based upon how much more the parent’s modified adjusted gross income is than the thresholds for the total repayment protection. (Outlined in the paragraph, above.) The repayment protection will be completely phased out when that parent’s adjusted gross income on his/her 2021 tax return is: $120,000 or more if married and filing a joint return; $100,000 if filing as head of household; or $80,000 as a single filer or are married and filing a separate return. The IRS expects that most parents who need to repay will do so from their 2021 income tax refund.

Finally, a parent who was eligible to receive advance payments for their child or children, but did not receive these payments, can claim the full amount of the child tax credit for their children that they may legally claim. It does not matter if the other parent received advance child tax credit payments.

The IRS has answered many common questions about the 2021 Child Tax Credit and Advance Child Tax Credit Payments on its website. It may also be helpful to utilize the services of a qualified tax preparer to file your taxes this year, given the rules involving the Advance Child Tax Credit Payments. If you have questions, or concerns, regarding how this may affect your family regarding a divorce, or existing orders regarding child support and other financial issues involving your children, please call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.

Can Third Parties Use A Parent’s Placement Time?

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Stepparents, grandparents, aunts, and uncles are third parties who play pivotal roles in children’s lives – but does that mean that they can exercise placement time?  The short answer is no.  Physical placement is defined in Wisconsin as the time period in which a parent has their child with them under their care.  Since third parties are not parents, they cannot exercise placement or be your substitute during that time, even if they are a third party who is near and dear to your child.

But most of the time, third parties can babysit and spend meaningful time with your child.  So where do the courts draw the line?  Courts want to ensure that when a child is left alone with a third party, it is for no longer than a few hours without one of the parents exercising their placement time.  For example, it is generally acceptable to ask a family member to babysit your child for a few hours, or even a day, during your placement time when you are working.  On the other hand, it is generally unacceptable to leave your child with that same family member for a days or weeks or let them “use your placement time” so that you can go on vacation or move to a different state.  Doing so may be grounds for a petition to enforce placement action or even a modification of placement motion.

The courts provide a remedy for times when a parent isn’t fully exercising their placement and is having someone else exercise placement for them.  Wisconsin statutes provide that a court can modify a physical placement order if it finds that a parent has “repeatedly and unreasonably failed to exercise periods of physical placement.”  This is sometimes called the “use it or lose it” statute.  Not exercising your placement time could be grounds for the other parent to modify a placement schedule in their favor.

 If you are in a situation where a third party is exercising placement time of your child, please give us a call Nelson, Krueger & Millenbach at (414) 258-1644 to schedule a free initial consultation.

COVID VACCINE FOR CHILDREN AND DIVORCE

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It’s safe to say that the COVID-19 pandemic has caused significant problems in many ways – but what about in the legal field?   The pandemic has raised a series of questions relating to family law: specifically, custodial decisions.  Parents are facing unique challenges in making the important decisions in their children’s lives such as whether to mask, virtual or in-person schooling, and most importantly, whether to administer the COVID vaccine to their children. This is further complicated if the parents are divorced.

The CDC recommends that everyone who is five years and older receives the COVID-19 vaccine.  However, some parents share different views over the safety, efficacy, and necessity of the vaccine.  What further complicates this issue is that vaccine administration is considered a custodial decision.  Sole legal custody means that one parent has the authority to make major decisions in a child’s life.  Joint legal custody means that both parents are required to make those major decisions together.  Sometimes, two parents may share joint custody but with one parent having final decision-making authority on certain issues, such as medical treatment.  But if the parents share equal medical decision-making authority, both parents have an equal say in whether their child should be vaccinated.

So how can parents resolve this problem?  As always, the ideal is compromise.   Both parents can sit down and understand why the other is for or against vaccinating their child.  Maybe one parent is not comfortable with the vaccine because the child is young, and they can agree that the child receives it when they reach a certain age.  If this doesn’t work, mediation can be a cheaper, timelier, and more efficient avenue for the parties than going to court.  Compromise may also be the most beneficial option for a child’s health, safety, and well-being.

The last case scenario for parents is filing a petition to modify legal custody with the court – however, it is rare for a judge to rule on whether a child should or should not get a vaccination.  In this type of proceeding, a judge may consider factors such as whether the parties have agreed on medical decisions in the past, the child’s pediatrician’s recommendations, whether the parents have allowed their child to receive other vaccinations, and how their schooling would be affected by vaccination.  Ultimately, it’s best for the parents to figure out the decision among themselves and put aside personal beliefs to do what’s best for their child.

Wisconsin Passes New Law Allowing for Contingent Placement Orders

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In the past, the courts in Wisconsin have found that orders based upon contingent events – meaning future events which have not yet occurred – were unenforceable as a matter of public policy.  However, under the newly passed 2021 Wisconsin Act 20, the courts are now allowed to enter, and enforce, placement orders to change based on a contingent, or future, event.  The law states that parties can modify a current placement order by stipulation based on the occurrence of a specified future event that is reasonably certain to occur within two years of entering into the agreement.  Previously, placement could not change in an agreement based upon a future event.

For instance, both parties can be reasonably certain that a four-year-old child will enter kindergarten within two years of coming to a placement agreement.  The parties can now agree that their placement schedule will change when that event occurs.  Parties can stipulate to something like one party having primary placement until the child enters kindergarten.   

Note that the act only applies to contingent events and not behaviors.  Specifically, the act states that parties can’t stipulate to contingent behaviors like a parent entering an anger management course, receiving drug or alcohol treatment or therapy, or incarceration. This means that the parties can’t assume that one parent is going to change their behavior and stipulate to changing their placement order based on successful change.

What does this mean for you?  The Act allows parents and the court to address the foreseeable benchmarks in a child’s life in their stipulation. In turn, this may reduce litigation and may save parents both time and money.  Less litigation may also mean less stress on a child.  However, be wary that this law may be a narrow exception to the general rule against a contingent agreement.  Ultimately, the contingency law permits parties to make great strides in stipulating to anticipated changes in their placement orders.

Do you have any questions about contingent custody and placement?  Contact Nelson, Krueger & Millenbach, LLC at (414) 258-1644 for a free consultation.

How to Obtain a Harassment Restraining Order in Wisconsin

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Wisconsin allows for two different types of restraining orders, or what the court refers to  as an “injunction”: harassment and domestic abuse. An injunction is a court order that orders a party to refrain from committing certain acts or doing certain things. The word restraining order and injunction are essentially interchangeable. This specific blog will help you determine if you have a case to obtain a harassment injunction.

Harassment is defined in the statute as “Striking, shoving, kicking or otherwise subjecting another person to physical contact; engaging in an act that would constitute abuse, sexual assault, or stalking; or attempting or threatening to do the same. Engaging in a course of conduct or repeatedly committing acts which harass or intimidate another person and which serve no legitimate purpose.”

To determine if you have a case for a harassment injunction you should stop and think about 3 key questions: 1) Is my harasser repeatedly contacting me for no legitimate purpose and/or threatening to cause me harm? 2) Does my harasser continue to contact me even if I don’t respond? 3) Most importantly, have I told my harasser to stop contacting me? If you answered “Yes” to any of these questions, you may have a good case to bring forth a harassment injunction. If you answered no to 1 or more of these questions you may still have a case, but it is best if you speak with an attorney who is experienced with restraining orders.

A harassment injunction can be filed by someone who is being threatened, intimidated, continuously contacted, or all the above. Answering no to the question, “Is my harasser threatening to cause me harm?”, is not going to make or break your case.  This question is more so to help determine how long of an injunction should be asked for and to reasonable set expectations regarding your injunction length.  However, you do need to show that your harasser is repeatedly contacting you for no legitimate purpose.

Question 2, “Does my harasser continues to contact me even if I don’t respond?” This question helps determine if the harasser has engaged in a course of conduct or repeatedly committing acts which harass you. An important factor is whether the contact is legitimate? For example, if your “harasser” contacts you about getting their sweatshirt and they contact you several days in a row because you don’t respond is legitimate contact because they are contacting you to get something back that belongs to them. That is not harassment. This is opposed to a situation where your harasser is contacting you about going on a date and you don’t respond and they repeatedly contact you back calling you names or bring up something that is not relevant to you or your conversation. This is not a legitimate purpose in the court’s eyes and could be deemed harassment.

Question 3, “Have I told my harasser to stop contacting me?”, is incredibly important because if you have given notice to your harasser to stop contacting you, this is an essential function of an injunction. If your harasser continues to contact or intimidate you after you have told them to stop, the court will not look kindly on them.

If your harasser has access to firearms and you feel that there is a legitimate threat to your safety, please reach out to an attorney immediately to discuss your legal options for protection. If there are firearms or weapons involved in your case, the court can order for the weapons to be removed from that person.

If you answered yes to any of the questions above or feel like you are being harassed, please contact our firm at (414) 258-1644 for a free consultation.

Should I Opt Out of the Monthly Child Tax Credit Payments?

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Starting July 15, 2021, families will start receiving advance Child Tax Credit (CTC) payments on a monthly basis for the remainder of this year. However, it is important to consider whether your family should opt out of receiving those payments. In fact, families can use the “Child Tax Credit Update Portal” to opt out of these payments, and instead receive the full tax credit after filing their 2021 tax return. In determining what is best for your family, reach out to your tax preparer or seek out the advice of a CPA to help you come to your decision.

For the year 2021, the tax credit for children under 6 is $3,600; and the tax credit for children between 6 and 17 is $3,000. A parent who files taxes with children under the age of 17, will receive the full benefit if his/her income is less than $75,000; and will get a reduced amount if he/she earns between $75,000 and $90,000. Those who file jointly, with children, will get the full credit if their combined income is less than $150,000; and will receive a reduced amount if their combined incomes are between $150,000 and $170,000.

For example, it may be wise to opt out if you typically use your child tax credit to reduce your tax liability, or if you get a significant raise that effects your income eligibility threshold during the 2021 tax year. If a person receives the advance Child Tax Credit payments, but their income goes up during 2021 to where they would not be eligible for the advance payments, they will have to pay back the amount of the credit that was paid to them in advance. This could be significant given the increase in the value of the tax credit.

Parents who are going through a divorce, are divorced or who have paternity support orders also need to be especially careful. It is common that parents who have court orders through a paternity action, or through a divorce action, allocate who can claim the child dependency tax credit each year. The IRS does not know what parents have agreed to, so the structure of these Child Tax Credit payments do not take into consideration these agreements. Instead, the parent who claimed the child on their 2020 or 2019 tax return would be eligible for the advanced payments. However, if you alternate years for the tax credits, and 2021 is not your year to claim your child or children, you will likely have to pay back the advanced Child Tax Credit to the IRS or to the other parent. This can end up being confusing for families in two households. It will be important to review your court orders, and to seek out the advice of a tax preparer or CPA, to determine whether to opt out of these payments to avoid issues with the IRS, or in your family law case.

In order to opt out of these advanced payments go to the IRS website and follow the instructions provided on their website to opt out. That information is available at: https://www.irs.gov/credits-deductions/child-tax-credit-update-portal. We cannot offer tax advice and, therefore, it is always a good option to seek out the advice of a tax preparer or CPA to help determine what is right for your family.

What the American Rescue Plan Means for Families

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President Biden signed the American Rescue Plan on March 11, 2021. This bill, otherwise known as the Covid relief bill should have a positive effect on families. Here are some important points to know for your family:

Stimulus checks

This law provides stimulus payments up to $1,400 per person, including for each minor child. The full amount goes to individuals earning less than $75,000 of adjusted gross income, heads of households, such as single parents, earning less than $112,500 and married couples earning less than $150,000. However, as incomes go up, the stimulus payment phases out more quickly than in previous stimulus payments. Individuals earning $80,000 per year, heads of households earning $120,000 per year, and married couples earning $160,000 will not see a stimulus payment.

Stimulus money for children is assigned based on who claimed a child on the last tax return filed. In a divorce or paternity situation, a child is typically allocated as a deduction in an order or judgment. Therefore, whoever is allowed to deduct that child for that tax year will typically receive the stimulus money. Some attorneys put prospective language in a final agreement or order which specifically states that any tax refund, tax stimulus or rebate should be equally divided. You should check your divorce judgment or paternity order for this kind of language. Lastly, you should discuss with the other parent whether they would be willing to equally divide the stimulus money. If you believe that none of these options end in a fair result to you, then you could file a motion with the court asking that you be awarded one-half of the stimulus money for that child. The courts have been very sympathetic to this argument.

Unemployment Assistance

There will be a $300 federal increase to weekly unemployment payments. The law also makes the first $10,200 of unemployment payments tax-free for households with annual incomes less than $150,000

Nutrition Assistance

The law further extends the 15% increase in food stamp benefits through September 2021. The law also extends the Pandemic-EBT, which will provide families whose children’s schools have closed with funding to replace reduced-price and free meals that children would have received if schools remained open, through this summer.

Housing Aid

This law provides about $20 billion to state and local governments for low-income households to cover back rent, provide rental assistance, and assistance for utility bills. It also provides $10 billion to help homeowners who are struggling to pay their mortgages, property taxes, and utilities.

Tax credits

Tax credits for families was also increased, where the child tax credit was increased to $3,600 for each child under 6 and $3,000 for each child under 18. This increase is available for single parents with annual incomes up to $75,000 and joint filers with annual incomes up to $150,000.

Hopefully the American Rescue Plan assists your family during this difficult and uncertain time. If you have questions, or concerns, regarding how the American Rescue Plan may affect your family during a divorce, or existing orders regarding child support and other financial issues involving your children, please call Nelson, Krueger & Millenbach, LLC at (414) 258-1644 to schedule a free initial consultation to discuss your case.

–Attorney Aislinn Penkwitz

 [MS1]Minors get the 1,400 too?!

What is the Difference Between a Harassment Restraining Order and a Domestic Violence Restraining Order?

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Wisconsin allows for two different types of restraining orders  or injunctions: harassment and domestic abuse. An injunction is a court order that orders a party to refrain from committing certain acts or doing certain things. The word restraining order and injunction are interchangeable except that a restraining order is generally granted for a temporary basis until there is a full hearing by the court to determine if an injunction is needed.  What is the difference between these two types of restraining orders?

The first type of injunction is for Harassment. The statute has several definitions for “harassment.”  First, the statute includes in the definition “striking, shoving, kicking or otherwise subjecting another person to physical contact; engaging in an act that would constitute abuse, sexual assault, or stalking; or attempting or threatening to do the same. This is typically used when the aggressor is not a member of your family.  The definition also includes “engaging in a course of conduct or repeatedly committing acts which harass or intimidate another person and which serve no legitimate purpose.” This can be filed against either a member of your family or someone who is not part of your family.  A harassment injunction can be effective for up to 4 years and can prohibit the harasser from coming to your home and contacting you in any form. Contact can mean via electronic means (social media, text messages, facetime/zoom, etc.), in person, by telephone or e-mail. Please remember that this list is not an exhaustive list for defining contact.  

This type of injunction is typically filed by someone who is being repeatedly contacted or threatened by someone and they have asked that person to stop contacting them. It is important to note that the key difference between a harassment injunction and a domestic violence injunction is who is engaging in the threatening behavior. If the behavior is coming from someone outside of your home and you are not in a relationship or have a familial relationship with them, speak to your attorney about filing a harassment restraining order. If the behavior is coming from someone who lives with you, in a relationship with you, or is a family member, speak to your attorney about filing a domestic abuse restraining order, if appropriate, although a harassment injunction can also be filed against someone in your family or one with whom you have a relationship if they are engaging in harassing behavior only.

For purposes of a domestic abuse injunction, the statute has defined “domestic abuse” as meaning when an adult family member, adult household member, adult caregiver, former or current spouse, former or current dating relationship, an adult with whom the person has a child in common, a sibling or step-parent is intentionally or threatening to inflict physical pain, injury or illness, impair their physical condition, sexually assault, stalk, or damage property. A parent may also file a child abuse restraining order for their child. Please discuss with your attorney your legal options related to filing  a domestic abuse restraining order or a child abuse restraining order.

A domestic abuse restraining order is filed by someone who fears for their physical safety. A domestic abuse injunction can last for up to 4 years and can prohibit the abuser from coming back or moving back into the household and contacting you. Contact can mean via electronic means (social media, text messages, facetime/zoom, etc.), in person, by telephone or e-mail. Again, please remember that this list is not an exhaustive list for defining contact. 

For both types of restraining orders/injunctions, if the harasser or abuser has access to fire arms and you feel that there is a legitimate threat to your safety, please reach out to an attorney immediately to discuss your legal options for protection. If there are fire arms or weapons involved in your case, the court can order for the weapons to be removed from that person.

If you believe that you are being harassed or you are a victim of domestic abuse, please contact our firm at (414) 258-1644 for a free consultation regarding your restraining order.

–Attorney Margaret Spring

Be Careful of What You Post on Social Media During Your Family Law Case

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Woman chatting with her boyfriend via smartphone app. She broken heart sitting and crying. Unhappy depressed girl in flat design.

Going through any family law action is an extremely emotional experience that may make you throw your decision-making skills out the window. Recently, we have seen parties release some of these emotions by posting on Social Media (Facebook, Instagram, Twitter, Snapchat, etc.). While social media is a fun way to share your life with your friends or followers, it should not be used to discuss what is going on with your divorce or paternity case.

You should be very careful of what you post on social media during your family law case. Nothing that you post on social media is private and it may be used against you in the legal process. While you may have your account on “lockdown” or “private” that does not always mean that your account is, in fact, private. Friends, family members, or followers can screenshot your account and send your “private” posts to the other party and their attorney.

Below, I am going to discuss some things to ABSOLUTELY NOT POST on your social media accounts during your pending divorce, paternity or post-judgment proceeding.

  1. Anything to do with your legal case.

Remember this is a highly stressful time and you may not be in the clearest state of mind, so what you post, while it may make perfect sense to you, could be taken out of context and could potentially cause you more problems than you intended. Anything that you post on social media can be used against you in your proceeding, no matter how you intended the post to be conveyed.

2. Bad mouthing the other party, making threats and/or using profanity.

You may think that bad mouthing the other party may embarrass them into “giving in” to your wants, but in reality, the court may deem you as abusive, harassing, unreasonable or uncredible. In fact, if you make threats against or negative statements about the other party during the proceeding, that may be grounds for the other party to file a harassment injunction against you.

Threats to judicial officials (Judges/Commissioners), guardian ad litem and opposing counsel, can be criminal felony charges under Wisconsin Statute Section 940.203. Think twice before posting anything that could be construed as a threat to anyone who is involved in your  court proceeding, especially the other party.

3.  Additional income or side jobs.  

If you are in a child support or divorce proceeding and you claim to be unable to pay the other party and you post a picture of your recent trip to Turks & Caicos, the court may infer that you have funds available to pay support, property division payments, or attorney fee contributions. If you claim that you are unable to seek employment for reasons and are unable to pay the other party, please do not post on Facebook that you have an alternative  income stream such as a cash only business. Not only could the court impute an income to you, but the court will make you verify that income and could lead to possible tax implications.

4. Drugs and/or partying.

Posts of you partying or doing drugs may be used against you during your proceeding to show that you are an unfit parent. For example, do not post pictures of you drinking on days that you are scheduled to have placement of your children. This could ultimately lead to you losing placement time of your children and could potentially have other legal ramifications against you.

It may be best to take a break from social media while your case is pending, or to have a neutral party such as a friend review any posts you want to make.

Overall, it is best to take a step back from social media during your legal proceeding, because the consequences of  one negative or questionable post, may outweigh any gratification from making the post.