Maintenance Disputes in Wisconsin Divorce

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Maintenance (or alimony) is one of the issues we most often disagree about in a divorce.  One of the main reasons for this is that there are no definitive guidelines in Wisconsin about how maintenance is determined.  If there are maintenance disputes in a Wisconsin divorce, how are they resolved?

Maintenance is spousal support which is set as a certain amount per month for a period of time which can range from months to years to indefinite.  Maintenance is taxable to the person who receives it and deductible to the party who pays.  Either the Husband or the Wife can be ordered to pay maintenance in Wisconsin.  And, fault is not a factor the court can consider when awarding maintenance.

In some cases, maintenance can be easy.  When there is a long term marriage and a disparity between the parties’ incomes, maintenance is presumed to be appropriate.  Generally, the longer the marriage, the longer the term of maintenance that is awarded.  The goal of maintenance is often to equalize the parties’ net incomes.  There are several financial calculators and spreadsheets that attorneys and judges use which calculates the net disposable income of a party (after taxes).  Since maintenance is taxable/deductible, we can determine through these programs exactly what is the appropriate amount of maintenance needed to accomplish the goal of equalizing incomes.

So, why do so many people fight over this issue then?  There are many reasons but one of the primary reasons is income.  What income is appropriate to use when calculating net disposable incomes and the amount of maintenance?  We often have situations where a party (generally the Wife) has not been employed for many years.  She may have been a stay-at-home mother or only worked part-time.  Or, sometimes we have a situation where someone lost his or her job and either cannot or will not obtain comparable employment.  Depending on the reason for the job loss and/or the reason for the continued unemployment, this also can create an issue.

The courts generally find that (a) someone must be employed full-time and (b) they must be employed at their highest capacity.  There are always exceptions to this, of course, but the circumstances would be unusual.  Since the term “highest capacity” is very subjective, this creates maintenance disputes.  If an individual is not currently employed at their highest capacity, the court can “impute” them income which it will then use to calculate support and maintenance.

In order to resolve those maintenance disputes, we have a variety of tools available to us as attorneys.  For example, we can research an individual’s earnings history through tax returns or social security earnings statements.  Looking back can provide the court with information as to the highest earnings that individual has had in the past.  If an individual’s income varies, sometimes the court will average his or her income over a period of time.

We can also obtain a vocational evaluation for an individual.  There are vocational experts who will interview a party, look at their earnings history, examine their background, education and experience and then arrive at an opinion as to what that person can or should be earning.  The court will then consider this information when making its determination as to what income a person should be imputed.

Once we calculate or determine income, disputes also arise in maintenance as to how much maintenance should be awarded.  For example, one issue is whether incomes should be equalized or how much disposable income should be allocated to either party.  This depends on a wide variety of factors and, therefore, creates many areas for disagreement.  Primarily, the court will look at available income, budgets/bills, standard of living, property/debt division and child placement/child support in determining how much maintenance to award in a divorce.

The other main area for maintenance disputes is how long maintenance should be awarded or the “term” of maintenance.  The general rule of thumb is half of the length of the marriage.  However, this is not always true and again depends on a wide variety of factors such as the length of the marriage, age, earning capacities of the parties, education and work history of the parties, health problems, standard of living, etc.

Since maintenance is a discretionary decision of the court and based on a wide variety of factors, there are many potential areas of dispute.  The attorneys at Nelson, Krueger & Millenbach, LLC will attempt to resolve your maintenance issue in a way which is most favorable to you.  However, in the event that is not possible, you will benefit from our knowledge of the law and of how the judges typically rule in these types of case and from our experience in litigating these issues.

Modification or Enforcement of a Court Order in a Wisconsin Divorce

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Can you change a court order in a divorce in Wisconsin?  If so, how is this done?  What if someone isn’t following court orders?  How can you enforce an order?

Orders regarding property division are permanent and generally cannot be changed unless you file a Motion to Reopen.  A waiver of maintenance at the time of the divorce judgment is also a final order and cannot be changed except upon extreme or unusual circumstances.

However, spousal support, child support, custody and placement (visitation) arrangements do not have to be permanent. They can be outdated, changed or violated. When this happens, individuals must ask the court to grant a modification or to enforce the decree.  You must do those by filing a Motion with the court.

The court will entertain a request for a modification of an order if, after a required period of time, there has been a substantial change in your life or the life of the other party that justifies altering the decree. Any of the following may qualify as a significant change:

-A substantial change in either spouse’s income or employment status

-A new health problem which impacts the ability to work

-Moving to a new location

-Substance abuse problems or criminal activity

The exception to this rule is for a period of two (2) years after an original custody or placement order, you must show that the current custody or placement arrangement is harmful to the child(ren).

If one party asks for a modification and the other party doesn’t agree, this dispute can be resolved through negotiation or through the courts.  At Nelson, Krueger & Millenbach, LLC, we always try to minimize conflict and are local leaders in using collaborative and cooperative techniques to resolve disputes.  However, we will also vigorously represent you in court whenever necessary.

If one party fails to pay child or spousal support or refuses to honor the custody and placement (visitation) order, the law provides a remedy through a finding of contempt.  Again, a Motion must be filed with the court. If the violation involves child or spousal support, the court can garnish wages or force the violator to pay in other ways.  Sometimes, the violator is sentenced to a jail term as well. The court also has broad discretion to come up with other, more creative solutions to force the violator to comply with the terms of the decree.

If a placement order is not being followed, you can file a Petition to Enforce Placement to force the other party to comply with the court order.  The court again has broad discretion to enforce a placement schedule, including awarding make-up time, changing the schedule or awarding attorneys fees and costs.

Returning to court is not an ideal option for anyone. However, there are remedies available to you in the event you need to modify or enforce a court order.  The attorneys at Nelson, Krueger & Millenbach, LLC can assist you with any of these options and advise you as to the likely or possible results so you can make an informed decision as to whether you want to return to court through a post-judgment action.  At Nelson, Krueger & Millenbach, LLC, we handle modifications, disputes and enforcement cases with compassion and diligence. Our lawyers are prompt, detail-oriented and persistent. For a free initial office consultation, contact us at (414) 258-1644.

Property Division in a Divorce in Wisconsin

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Wisconsin Property Division FAQ’s

HOW WILL OUR PROPERTY AND DEBTS BE DIVIDED?

The presumption in the State of Wisconsin is that all property and/or debts of the parties will be divided equally. This presumption can be overcome based on the following factors:

(a) The length of the marriage

(b) The property brought to the marriage by each party

(c) Whether one of the parties has substantial assets not subject to division by the court.

(d) The contribution of each party to the marriage, giving appropriate economic value to each party’s contribution in homemaking and child care services (e) The age and physical and emotional health of the parties

(f) The contribution by one party to the education, training or increased earning power of the other

(g) The earning capacity of each party

(h) The desirability of awarding the family home or the right to live therein for a reasonable period to the party having physical placement for the greater period of time.

(i) Maintenance and/or family support orders

(j) Other economic circumstances of each party

(k) The tax consequences to each party

(l) The previous written agreement of the parties

(m) Other relevant factors

The attorneys at Nelson, Krueger & Millenbach LLC will be able to evaluate the facts of your case and advise you as your assets and debts will likely be divided in your divorce action.

WHAT IF MY SPOUSE HAS EVERYTHING IN HIS/HER NAME?

Wisconsin is a marital property state which means that each spouse has a one-half interest in all property and/or debts acquired during the marriage. There are only a few exceptions such as inherited or gifted property. As a result, title, or in whose name an asset or debt is held, is largely irrelevant in the State of Wisconsin.

WHAT IF I HAVE RECEIVED GIFTED OR INHERITED PROPERTY DURING THE MARRIAGE?

Generally, property that is inherited or gifted is not subject to division in a divorce but there are exceptions. How gifted or inherited property is divided depends on what was done with that property after it was received. For example, if you inherit a sum of money and keep it separate from marital property, you will most likely be able to keep that inheritance. However, if you take your inheritance and use it for a down payment on a marital home, the court will most likely consider that marital property and divide it. Sometimes, though, the court will give a party credit for assets brought to the marriage, including inherited or gifted money.

WHAT IF THERE IS A DISPUTE ABOUT THE VALUE OF CERTAIN PROPERTY?

Often times it is necessary to have property appraised to determine a value. The court usually appoints an appraiser or valuator as an expert in those cases and orders that the parties split the cost for that expert. Each party is also entitled to hire their own independent appraiser or valuator as well.

HOW ARE PENSIONS OR RETIREMENT ACCOUNTS DIVIDED?

Again, the presumption in Wisconsin is that all property, including retirement accounts, will be divided equally. For most 401(k)’s, pension plans, retirement accounts or IRA’s, it is necessary to file with the Court a special order called a Qualified Domestic Relations Order (called a “QDRO”) which effectuates a division of those accounts. For some retirement accounts, such as military, state or county pension plans, QDRO’s do not apply and other special orders are required. If these type of retirement benefits exist, a lawyer or accountant is the most qualified person to assist with the division of the same.

Experts can also be hired to value retirement assets such as pensions. The court usually appoints an appraiser or valuator as an expert in those cases and orders that the parties split the cost for that expert. Each party is also entitled to hire their own independent appraiser or valuator as well.

WHAT IF I OWNED PROPERTY BEFORE I WAS MARRIED? CAN MY SPOUSE GET HALF OF THAT?

In Wisconsin, there is no exemption allowed for pre-marital property. All property (and debts) owned by either party becomes marital property at the time of the marriage. Therefore, all property is equally divisible at the time of divorce, except for gifts or inheritances as stated above. However, the court does have discretion to deviate from an equal division of the property based on the factors listed above, one of which is “contributions to the marriage.” This deviation is more likely in short term marriages or where one party brought significant assets into a marriage, but the court must consider all of the circumstances when making this decision.

WILL THE COURT ENFORCE OUR PRE-NUPTIAL AGREEMENT?

Wisconsin law states that a pre-nuptial agreement is binding on the court unless the terms of the agreement are inequitable as to either party and do not follow Wisconsin law. It is important that parties seeking a pre-nuptial agreement seek the assistance of a knowledgeable attorney prior to signing such an agreement.

WHAT IF MY SPOUSE ACCUMULATED A LARGE AMOUNT OF DEBT WITHOUT MY KNOWLEDGE? AM I RESPONSIBLE FOR HALF OF THE DEBT?

Because Wisconsin is a marital property state and the presumption is for an equal division of property and debt, the answer would be yes. Again, there are exceptions. For example, if the debt accumulation was due to a spouse’s addiction, such as gambling, drugs or alcohol (marital waste), the court usually relieves the other party from those liabilities. There are other situations where you may not be responsible for debt acquired solely by the other party. Your attorney at Nelson, Krueger & Millenbach, LLC can review the facts of your situation and advise you as what they believe to be the likely result in your case.

WHAT IF MY SPOUSE DOESN’T PAY DEBT THAT HE/SHE AGREES TO PAY OR THAT THE COURT ORDERS HE/SHE TO PAY?

Unfortunately, creditors are not bound by family court orders. As a result, they may seek payment from you on a debt that your spouse was ordered to pay. The only recourse you would have would be to file a contempt motion with the family court for your spouse’s failure to pay. Most often, the court will order remedies which may include an income assignment to you for any amounts your spouse failed to pay.

WHAT IF MY SPOUSE (EX-SPOUSE) FILES BANKRUPTCY?

If your spouse files bankruptcy, you would be responsible for the entire amount of any debt he/she is discharged from. Typically, however, this only applies to joint debts. If a debt is in one party’s name alone, the creditor doesn’t often seek repayment from a non-debtor spouse although it does happen on occasion. Again, your remedy would be to file a contempt motion in the family court as stated above. A debtor cannot discharge support obligations but may be able to discharge a property settlement payment in certain situations.

WHAT IF I DECIDE AFTER MY DIVORCE THAT THE PROPERTY/DEBT DIVISION WAS UNFAIR AND I WANT TO CHANGE IT?

The court does not have the authority to change a property division order after the date of the final divorce unless a party files a Motion to Reopen and the court grants that motion. The court will only reopen a judgment for very limited reasons such as mistake, fraud, inexcusable neglect, new information or other equitable grounds. A Motion to Reopen must be filed with a one year from the date a discovery is made of a mistake, fraud, inexcusable neglect that occurred in the final divorce. However, please be aware that it is very difficult to reopen a final judgment and such a Motion is very rarely granted.

How Can Money Problems in a Marriage Lead to Divorce

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With the current economy, more couples than ever are having money problems in their marriage.  Unemployment is rampant, costs are high and credit card interest rates are exorbitant.  There just is not enough money to go around.  What are the common money problems in relationships and how do you fix them?  How do these same money problems lead to a divorce?

1.  Different views on money.  This is one of the most common money problems in marriage.  Some people are spenders and some people are savers.  Neither spouse is necessarily right or wrong.  However, maintaining a balance which is comfortable for both is essential.  Compromise and negotiation is the key from keeping this particular problem from getting out of control.

2.  Secrets.  I heard a topic on the radio the other day – “Are you cheating on your spouse with money?”  This seemed an appropriate title.  Money secrets can be about two different things – either a secret bank account or secret credit cards.  I have seen both but, usually, it is credit cards.  This ties in with the above topic.  If someone is a spender and the other person is a saver, sometimes the only way the spender can spend is through credit cards.  Spending is also a common symptom of depression.  And, because it is difficult to siphon off enough money from the joint checking account to pay the credit card bills, they quickly can get out of control.  The person incurring them then starts to take cash advances to pay the credit card bills, which only compounds the problem.

Obviously, the way to resolve this problem is to stop spending.  But, this is not easy.  Eventually, you have to come clean with your spouse.  He or she will be angry and feel lied to and betrayed.  But, if you don’t, you will eventually have a situation which has no resolution.  Divorce or bankruptcy may follow.  You need to figure out how you got into this situation and address not only the immediate problem of paying the debt (together), but the underlying issue which cause the problem in the first place.

3.  Loss or lack of employment.  Unfortunately, this is now a common problem.  We see a loss of employment over and over in our cases.  The issue is not necessarily about the financial stress of a job loss, it is about the efforts and willingness to find a new job.  Depression often follows a job loss which interferes with efforts to find new employment.  Or, spouses have different opinions about whether one of them should continue to stay home with the children – especially when the children get older.  We have seen many situations where a stay-at-home mother does not want to return to work even when the children are in high school or college.  The financial stresses this situation can create a one-sided partnership to the detriment of the marriage.  The way to resolve this situation is to figure out what is causing the non-working spouse to drag their feet getting back into the job market – is it depression or fear of the unknown?  Is it an unwillingness to change, which many people experience?  Individual or vocational counseling can assist in resolving this problem.

In a divorce, this situation can lead to arguments about how much money someone can or should be earning.  This can affect support issues, particularly maintenance (alimony).

4.  Financial stress in general.  The majority of people, much less married couples, do not have enough money to go around.  Budgets are always tight and people live paycheck to paycheck.  Stress of any kind can be hard on a relationship but money problems are especially rough because there is not always an easy solution.   The key is to work on the solution together.  Maybe it is a second job or maybe it is putting off that vacation.  Whatever you decide, you both can feel good about the process and working together can cement your relationship as you both work towards a common goal.

The way to deal with money problems in marriage is to remember that you are in this together.  Marriage is a partnership and you need to work together to solve your problems.  If you both are on the same page and are open with one another about financial issues, you are on the right path to avoiding one of the most common, and serious, problems in relationships.

If you don’t resolve these issues, they can lead to divorce and are only amplified in that process.  It is very common to have issues in a divorce relating to unknown credit cards, bad spending habits, underemployment and arguing about earning capacities for purposes of support and maintenance.  For further information about how these issues are handled or addressed in divorce, please see our other blog topics, our website at Nelson, Krueger & Millenbach, LLC  or contact us at 414-258-1644 to schedule a free initial consultation.

Maintenance (Alimony) in Wisconsin

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Wisconsin Maintenance (Alimony) FAQ’s

WHO IS ENTITLED TO MAINTENANCE AND HOW DOES THE COURT DECIDE THIS ISSUE?

Maintenance, or what used to be called alimony, is ordered by the Court based on certain factors in the Wisconsin Statutes. There is no definitive test or guidelines in Wisconsin for when and how much maintenance should be ordered. The decision to award maintenance to one party is a discretionary decision of the Court. In other words, the Court has a lot of leeway when deciding the issue of maintenance. The Court must consider a list of factors stated in the Wisconsin Statutes and any other factors that the Court deems relevant. Some of those factors are:

(A) The length of the marriage;

(B) The age and the physical and emotional health of the parties;

(C) The division of property;

(D) The educational level of each party at the time of marriage and time of divorce;

(E) The earning capacity of each party;

(F) The feasibility that the party seeking maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage and the length of time necessary to achieve that goal;

(G) The tax consequences to each party;

(H) The contribution by one party to the education, training or increased earning power of the other;

(I) An agreements between the parties where one party has made financial contributions to the other with the idea that the other will reciprocate in the future; and

(J) An ability to pay by the party from whom the maintenance is being sought.

The attorneys at Nelson, Krueger & Millenbach, LLC will be able to evaluate the facts of your case and advise you as to the likely result of a maintenance request.

MY SPOUSE AND I HAVE ONLY BEEN MARRIED A SHORT TIME, WILL I GET MAINTENANCE?  HOW LONG DO I HAVE TO BE MARRIED TO GET MAINTENANCE?

Unless there is a large disparity between the income levels of the parties or the party requesting maintenance has health problems, a maintenance award in a short term marriage would be unusual. The longer the term of the marriage, the more likely a maintenance award is.  Once a marriage exceeds 20 years, maintenance is almost a certainty in a case where there is a disparity in income.

IS THERE A SPECIFIC GUIDELINE WHEN DETERMINING MAINTENANCE?

There are no specific guidelines in Wisconsin when determining maintenance. However, when there is a fairly long term marriage where one party has the ability to pay and there is a disparity in incomes between the parties, the court would generally award maintenance. In that situation, the goal of the Court is usually to either:

(A) Equalize the net disposable incomes of the parties, or

(B) Meet the budget of the payee spouse, assuming its reasonable, in an effort to maintain a standard of living equal to or similar to what he/she enjoyed during the marriage.

In these cases, the Court generally considers what are the needs of the party seeking maintenance based on her/his budget and what is the ability to pay of the other party. When analyzing support issues, taxes and other budgetary factors also must be considered.

HOW LONG DOES MAINTENANCE LAST?

The Court usually sets a definite term for maintenance except in certain cases such as an extremely long term marriage, if the parties are older or where the person requesting maintenance has an inability to work. If maintenance is ordered for a set period of time and the party receiving maintenance feels it should continue, he or she can file a motion requesting an extension. This must be done, however, before the term of maintenance expires.

CAN MAINTENANCE BE MODIFIED OR TERMINATED?

If a party dies or the receiving party remarries, maintenance would terminate. If the person receiving maintenance begins living in a marriage-like relationship, maintenance can be modified or terminated. However, unless the parties agree otherwise, maintenance is always modifiable based on a substantial change in the circumstances of either party. This change in circumstances could be a change in income, a change in earning ability or a change in living circumstances. When one party believes that there has been a substantial change of circumstances in either parties situation, that party may petition the Court to change the amount or duration of maintenance.

WHAT ARE THE TAX CONSEQUENCES OF MAINTENANCE?

The party receiving maintenance must declare the support received as income on his or her income tax return and that maintenance will be taxable to him or her. The party paying maintenance will be able to deduct those payments on his or her income tax returns. The tax factors of maintenance must be considered when originally determining the award of maintenance at the time of divorce or any modification of maintenance.

You can also usually deduct any attorneys fees paid directly attributable to you receiving maintenance. Discuss this further with your Certified Public Accountant or income tax preparer.

WHAT IF MY EX-SPOUSE RETIRES? WILL MY MAINTENANCE END?

The retirement of a paying spouse may justify modifying or terminating maintenance in certain circumstances. For example, if a paying spouse retires and has no other source of income except his or her retirement benefits, of which you received one-half at the time of divorce, maintenance most likely would be terminated. However, this would also depend on why the party retired, the age he or she retired, if he or she has other sources of income, the ability to pay maintenance after retirement and your ability to provide for yourself.

WHAT IF MY SPOUSE SEEKS MAINTENANCE FROM ME AND I DONT FEEL THAT MY SPOUSE IS EARNING TO HIS OR HER FULL POTENTIAL?

In cases when one spouse does not believe that the other spouse is maximizing his or her earning potential, the Court can impute an income to that party. This income could be a prior income that the party is no longer earning for whatever reason. Or, in some cases, a vocational evaluator can be hired to provide expert testimony to establish what the non- or under-earning spouse could make if working full-time and/or to maximum ability. The expert will review the education, work and earning history and consider market factors and statistical information related to incomes to determine an income for the under-earning spouse. The Court will then impute or assume that the under-earning spouse is earning that amount when deciding the issue of maintenance.

WHAT IF MY SPOUSE IS SELF-EMPLOYED OR EARNS CASH? HOW CAN INCOME BE DETERMINED TO CALCULATE MAINTENANCE?

In cases when one spouse is self-employed or receives cash payments for income, financial records and documents can be obtained or subpoenaed to determine income. Similar to the response in #8, the Court can impute an income to that party based on financial records and/or testimony of financial experts, such as a Certified Public Accountant, based on a review of financial documents, such as tax returns, bank statements, investment accounts, etc.

The Court will consider the testimony of financial experts and evidence in the form of financial documents when determining what income is available for support from all sources.

Should I File for Divorce?

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Whether to file for divorce is one of the most difficult decisions you could ever face. There are no easy answers. If you are asking yourself this question, your marriage is probably already in serious trouble. You should give careful consideration to all of the consequences a divorce could have for you and your family. Here are some thoughts that may help you to decide.

The most important part of this question has to do with why you are thinking about a divorce. There are some serious problems that simply cannot be solved such as physical abuse, child abuse, mental illness, criminal activity, fraud, etc. If you find yourself in one of these situations, there is very little you can do to resolve them especially if your partner is the one who has the problem. For your safety or your child’s safety, you may not have a choice but to seek a divorce to get protection from the legal system.

There are other reasons you may be thinking about a divorce that are not so clear cut but still very serious. For example, drug or alcohol abuse or another addiction could be the issue. Of course, your spouse can seek treatment and if he or she does, this could save your marriage. Unfortunately, many of these people will not seek treatment unless they truly want to and/or until they “hit rock bottom”. Sometimes, the “rock bottom” doesn’t happen until they are charged or convicted of a crime or being in a serious accident. However, sometimes the impetus for change is a divorce – the loss of their marriage or family. In that case, filing for divorce could actually help the person get their life back on track and seek treatment. In either case, if the situation becomes dangerous or unbearable for you or your family, you may need to file for divorce.

Money issues sometimes trigger this question. If you have a spouse who gambles, for instance, or, if your spouse simply cannot manage money or stop spending, you may need to seek some financial orders from the court to protect your assets. If your spouse is making poor financial decisions such as bad business decisions, refusal to pay debts or disposing of assets, then you also may need to file for divorce to prevent a waste of marital money. We are now seeing a lot of cases which involve the loss of a job where the spouse either cannot or will not get a job. They become depressed and sit home doing nothing. This may not arise to the level of having to file for divorce but perhaps talking about it will motivate them to get off the couch.

Infidelity or cheating is a common cause for the question of whether you should get a divorce. The answer varies extremely based upon the individual – can you move past this issue or do you want to? Some people can forgive and move on. To some people, this is an unforgivable offense. Before you make the decision, however, you may want to attempt counseling. Divorce is not an easy answer to marital problems. Cheating is usually a symptom of problems in an individual or a marriage – not necessarily the cause of the problems. If you can resolve the underlying problems, perhaps your marriage can be saved.

There are a variety of other reasons for divorce – growing apart, changes in personality, changes in life views and goals, incompatibility, control issues, verbal abuse and emotional abuse are all common themes. The real question you have to ask yourself is whether these problems can be resolved and, if not, whether you can live with them. As to whether they can be resolved, this is a two-way street. If your spouse is willing to try to resolve them, you should obtain professional help to assist the two of you in working through these issues. If your partner refuses to acknowledge or work on them, then they cannot be fixed. At that point, you need to decide how you want to live the rest of your life.

Divorce is a deeply personal and difficult decision and not something you should rush into. Absent safety issues or financial emergencies, there are not necessarily any legal reasons why you would need to file. You should seek the advice of an attorney so that you are aware of all of the consequences of a divorce to you and your family. Most attorneys offer free initial consultations. If you do decide to file for divorce, make sure you have all of the information you need and are as prepared as possible. Often, a little pre-divorce planning goes a long way in saving you time, money and stress.

Child Custody and Placement in Wisconsin

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WISCONSIN CUSTODY AND PLACEMENT FAQ’s

  1. WHAT IS THE DIFFERENCE BETWEEN CUSTODY AND PLACEMENT OF MY CHILDREN?Legal custody in Wisconsin simply means the right of a parent to make major decisions, such as school, medical and religion, for the minor children. In Wisconsin, the presumption is that there will be joint legal custody. This means that both parents have an equal say in what happens to the children regarding major decisions. Major decisions cover such matters as non-emergency health care and choice of school and religion. Others include parental consent to marry, obtain a driver’s license, or join the military. The court can only award sole custody to one party if it finds that one party is incapable of cooperating or exercising custodial duties, conditions exist which would prevent the exercise of joint custody or there has been domestic or child abuse.

    Placement means physical placement or visitation. In other words, who the child spends time with and for what amount of time. The primary consideration in making this determination is what is in the best interest of the children. There are numerous factors that the court must take into account when determining the placement schedule. These factors are then applied to the specific facts of your case.

    The attorneys at Nelson & Davis, LLC will be able to evaluate the facts of your case and advise you as to the best course of action or the likely result of a placement dispute.

  2. DOES THE COURT ALWAYS AWARD EQUAL, SHARED PLACEMENT?There is a misconception that certain types of placements schedules are mandated or presumed. Just as there is no preference as to the mother or the father for placement, there is no presumption or requirement for equal placement. The court must make a decision based on the criteria and factors referenced above. The law in Wisconsin is simply that the court shall set a schedule in which there are regular and meaningful periods of placement that maximizes the amount time the child spends with each parent. The court is also prohibited from considering one parent over the other based on sex or race. However, it may be determined that it is in the best interests of the child to be primarily placed with one parent or that there should be some form of a shared placement schedule.
  3. IS THERE A NORMAL OR STANDARD PLACEMENT SCHEDULE?As stated above, there is no presumption as to specific kind of schedule. There are many factors that this decision is based upon including work schedules, schedules of the children in terms of school and activities, proximity of the residences of the parents, the child’s adjustment or ability to adjust to transitions, etc.

    The starting point to many schedules is usually alternating weekends which are from Friday until either Sunday evening or Monday morning. If one parent does have the majority of the time, it is also fairly common for the other parent to have at least one evening or overnight period of placement during the week. A placement schedule is considered to be shared if one parent has 25% of the overnight placement time or more. Shared placement schedules are usually discussed in two week blocks of time.

    There are many options when scheduling placement. Schedules can vary based on the unique needs of your family. Placement orders can be very general and flexible or very specific. The attorneys at Nelson & Davis, LLC will be able to discuss scheduling options and suggest a variety of placement schedules to fit your goals in your case.

  4. WHAT HAPPENS IF WE CANNOT AGREE ON PLACEMENT?There is a specific procedure that parents must follow in a custody or placement dispute. Clearly, it is better for both you and your children to resolve matters outside of this procedure which is time consuming and costly. However, that is not always possible.

    First, except in unusual situations, both parties must attend mediation. Mediation is a process in which the parties meet with a neutral, third-party who is trained in dispute resolution. Discussions and statements made in mediation are confidential and cannot be used against in you in your divorce or paternity case. You have the option of attending mediation through the county of your residence which is often available at no or very low cost. Or, you can hire a private mediator. There are very good mediators available in southeast Wisconsin and many people are able to resolve their custody and placement disputes through this process. Sometimes, mediation is deemed not to be appropriate. This usually only happens when there is domestic or child abuse or one party refuses, or is unable, to participate. If a party refuses to attend mediation, the court would generally consider that a factor which would negatively impact upon his/her custody or placement position.

    Second, if mediation fails, a Guardian ad Litem must be appointed. A guardian ad litem, commonly referred to as a G.A.L., is an attorney who is appointed to represent the best interests of your child. The G.A.L. does not represent either you or your child but, instead, is charged by the court with conducting an investigation and making a recommendation as to what he or she thinks is in your child’s best interests. They will usually meet with the parties, talk with the children and talk with other potential witnesses or resources such as friends, relatives, teachers, therapists, etc. The court does not always follow the recommendation of a G.A.L., but usually does strongly consider it. Both parties are required to pay the G.A.L. fees, which includes a deposit as well as his or her hourly fees.

    Third, in some counties such as Waukesha and Washington, a custody/placement study may also be required. During a custody/placement study, the court will appoint a social worker from the county social services department to conduct an investigation which is separate from the investigation done by the G.A.L. The difference between a custody/placement study and a G.A.L. investigation is that the social worker may testify at a trial or hearing while the G.A.L. is an advocate for your child’s interests and, therefore, may not testify. The social worker also makes recommendations based upon their investigation which may include a referral for services such as counseling, psychiatric or alcohol/drug evaluations, anger management counseling or parenting classes. Both parties also are usually required to pay one-half of this cost which varies depending on the county.

    Many people are able to resolve their placement disputes with the assistance of a G.A.L. or the custody/placement study social worker. However, in the event the parties are unable to do so, a trial or hearing is conducted and the court decides what the placement schedule and custody will be. The attorneys at Nelson, Krueger & Millenbach, LLC will advise you as to what the likely result and cost will be for a trial.

About Divorce in Wisconsin

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WISCONSIN DIVORCE FAQ’S

HOW DO I BEGIN DIVORCE PROCEEDINGS?

To begin a divorce, you must file with the Court a Summons and Petition for Divorce (generally referred to as the divorce pleadings). Your spouse must then be served with this Summons and Petition for Divorce within 90 days after filing. You can file a motion with the Court asking that this 90-day deadline be extended; however, it would be up to the Judge assigned to your case to decide whether or not to extend this deadline. There are two ways you can serve the Summons and Petition for Divorce on your spouse: (1) your spouse can sign an Admission of Service at our office or his/her attorney’s office, or (2) our process server or a sheriff’s deputy can personally serve the pleadings upon your spouse.

WHAT DO I DO IF I AM SERVED WITH DIVORCE PAPERS?

After you are served with divorce pleadings, call Nelson, Krueger & Millenbach, LLC to schedule a complimentary consultation. Once you retain our legal services, we will review the pleadings with you and prepare a Response and Counterclaim on your behalf for filing with the Court. You must file a written Response and Counterclaim within 20 days from the date you are served with the Summons and Petition for Divorce. This must be sent to the Court with a copy sent to your spouse or his/her attorney. If you do not file a written Response, the Court could enter a default judgment against you in the future.

If you also want the divorce, you should also file a Counterclaim for Divorce. This means that if your spouse changes his/her mind in the future and asks that the divorce be dismissed, the Court could deny that request and grant you a judgment of divorce instead based on your counterclaim.

WHAT IF I DON’T WANT A DIVORCE?

Wisconsin is a “no fault” divorce state. The only basis for a divorce in Wisconsin is that the Court finds that your marriage is irretrievably broken and that there is no likely possibility of reconciliation. Because it takes two willing people to have a marriage, the Court will most likely grant a judgment of divorce even if only one party wants the divorce as long as one party testifies that he or she feels that the marriage is irretrievably broken and that the marriage cannot be repaired.

HOW LONG DOES A DIVORCE TAKE?

There is a mandatory 120-day waiting period in Wisconsin during which your divorce cannot be finalized. Most divorce cases take between six months to one year to finalize. The time period can vary based on the County in which your divorce is filed and the issues involved in your case. The specific facts of your case will determine the timetable for the completion of your case. However, our goal is to complete your divorce as quickly as possible. We understand that you need to move on with your life and that you do not need a long and protracted court action.

HOW DO I SUPPORT MYSELF OR SEE MY CHILDREN WHILE THE DIVORCE IS PENDING?

In most cases, Temporary Orders are needed to determine where each party will live, when each party will see the children, and how each party will be financially supported and pay bills. These Temporary Orders are Court Orders and can be determined by the Court’s decision or upon an agreement (called a Stipulation) between the parties. These Temporary Orders remain in effect during the time it takes to complete your divorce case.

Temporary Orders could cover the issues of temporary custody, placement, support, maintenance, temporary use of personal property and/or bank accounts, temporary use of the marital residence, and temporary allocation of debts. While these orders are temporary and should have no bearing on the final outcome of your divorce, in reality, many courts continue temporary orders as permanent orders if they are appropriate in your case, especially orders regarding custody and placement of your children.

HOW DO I OBTAIN THESE TEMPORARY ORDERS?

To request Temporary Orders, you must file an Order to Show Cause for Temporary Orders and an Affidavit for Temporary Orders. These documents compel your spouse’s appearance at a first or temporary hearing which is almost always scheduled before a court commissioner rather than a judge. This temporary hearing is usually scheduled within three to six weeks of the date you request a hearing depending on the County in which your case in pending.

Prior to the hearing, you and your spouse can negotiate terms of a Temporary Stipulation. These stipulated orders are done without the need for you to appear in Court and, when filed with the Court, carry the same legal protection as if you personally appeared in Court.

WHAT IF I DON’T LIKE THE COURT COMMISSIONER’S DECISION?

If you do not agree with the court commissioner’s Orders at this first or temporary hearing or any other hearing before a court commissioner, you may request a Hearing De Novo before the judge assigned to your case. A Hearing De Novo is a hearing where the judge hears the matter as if it had not been heard before and is not supposed to give any deference to the court commissioner’s decision. A Hearing De Novo must be scheduled promptly after the hearing before the court commissioner’s (7 – 15 days in most counties).

WHAT IF MY SPOUSE LEAVES ME FOR SOMEONE ELSE OR IS LIVING WITH SOMEONE ELSE?

Because Wisconsin is a “no-fault” divorce state, one party’s infidelity is irrelevant in most cases. The court cannot consider this fact in dividing property, awarding maintenance, setting support or other financial matters. It can impact on custody and placement issues, however, if the significant other has a negative or harmful impact on the minor children.

HOW ARE PROPERTY AND DEBT DIVISION, SUPPORT, CUSTODY AND PLACEMENT DETERMINED AT THE END OF MY DIVORCE CASE?

Please see our other FAQ’s for additional information on these issues. Your attorney at Nelson, Krueger & Millenbach, LLC will work with you throughout your case to provide educated and experienced guidance to assist you in making good legal decisions for yourself in your divorce action.

WHAT OPTIONS ARE AVAILABLE TO AVOID A TRIAL IN MY DIVORCE CASE?

Your attorney at Nelson, Krueger & Millenbach, LLC will suggest options to the successful resolution of the issues in your divorce without the need for a court trial. For example, settlement negotiations at a parties-and-counsel meeting, mediation and arbitration are all alternative measures that are common in divorce cases to help resolve conflicts.

Although most cases are resolved without the need for a trial, at Nelson, Krueger & Millenbach, LLC, our experience litigating cases provides our clients the best possible legal representation. We will make every effort to minimize the emotional and financial cost of a trial, yet we are prepared to litigate your case in court if a settlement cannot be reached.