Do’s and Don’ts of Court Hearings by Zoom

nelsonda General Divorce , , , ,

Due to the COVID-19 pandemic, many court systems have changed to an online video conferencing format using Zoom. Because of this, your home, office, car or any place with a reliable internet or wi-fi connection becomes an extension of the courtroom. Detailed below is how the court expects you to act during a Zoom call and how to log into Zoom.

How to log into your Zoom Hearing:

  1. On your device please use the link https://Zoom.us/ and click join a meeting in the upper righthand corner.
  2. This will take you to a page that reads Join a Meeting. Your attorney or their assistant will send you the Meeting ID and Password information before your hearing. This may be contained in a formal Notice of Hearing. The information in that e-mail will contain your Meeting ID and Password.
  3. After you enter the Meeting ID and click “Join,” a new page will appear that will ask you to enter your Password. If you do not already have a Zoom account, this page will ask you to enter your “username.” Please enter your full first and last name into the username box. Then enter the Password your attorney sent you.
  4. If you already have a Zoom account, please double check that your username is your full first and last name in your account profile.
  5. You may be taken to a waiting room or pulled directly into the hearing. If you are put into a waiting room, there is no need to panic.  You will be pulled into the hearing when the court is ready for you. Please be aware that the court system sometimes does not run on time and you may be waiting for a while.
  6. When you are pulled into the hearing, the Judge or Commissioner may or may not mute you. We ask that you mute yourself during the hearing. The mute button is in the bottom left hand of the screen and looks like a microphone If you need to contact your attorney during the hearing, please e-mail them as they will have their e-mail open during the hearing.
  7. If you have any concerns during this process, please call our office and someone will be more than happy to assist you.

Zoom Do’s:

  1. Do log into Zoom at least 10 minutes early to your hearing to make sure your username is your first and last name and to test your audio and visual connection.
  2. Do ask someone from our office to do a practice run of your hearing If you are unsure on how to use Zoom.
  3. Do make sure the device that is connected to Zoom is fully charged or you have access to a charger during your hearing.
  4. Do dress like you would if you were going to the courthouse.  Please note – this includes pants! Would you wear sweat pants or a tank-top to court? No.
  5. Remember, where you log-in to the hearing becomes part of the court room.  Therefore, do situate yourself in a quiet place with no distractions and with no one else in the room. If you have a child(ren) and are unable to find child care, please do your best to make sure they are quiet and not in the room with you. Remember, court proceedings are for adults, not children. The Judge or Commissioner does not want children to hear what is going on during the Zoom hearing. This also goes for household pets. Please make sure they are not in the room with you or in a place where barking or other behavior will interfere with the hearing.
  6. Do have your e-mail open as your attorney may e-mail you during the hearing.
  7. Do mute yourself during the hearing unless you are asked to unmute yourself by your attorney or by the judge. The mute button is in the bottom left hand corner of screen when you are in the hearing.
  8. Do make sure your video is on.  The court wants to make sure it is actually you who is participating in the hearing and no one else is inappropriately present in the hearing (i.e. children).  Your video button is a video camera icon on the bottom left of your screen.

Zoom Don’ts:

  1. Don’t eat food on the Zoom. You may drink water on the Zoom.  If you do please do not use a cup or mug with logos or inappropriate sayings/pictures.
  2. Don’t speak during the Zoom unless your attorney or the judge asks you a question directly.
  3.  Don’t use the chat function on the Zoom application. This chat can be read by anyone in the Zoom, even if you think you are direct messaging someone.
  4. Don’t Zoom and drive. If you are doing the hearing from your car, please have the car in park so your full attention is on the hearing.
  5. Don’t record the hearing. It is illegal.

We hope this list of Zoom Do’s and Don’ts explains how the court expects you to act during your hearing. If you have any questions regarding this list or how to log into your Zoom hearing, please ask your attorney directly.

BEWARE OF GIMMICKS AND FLAT FEES WHEN HIRING A DIVORCE ATTORNEY!

nelsonda divorce attorney, Divorce Attorneys, General Divorce , , , , ,

In this digital age, there is much competition among any business but, in particular, among lawyers.  Most lawyers practice in one particular area or niche such as personal injury, drunk driving, bankruptcy or divorce.  We have all seen the commercials which can be tacky, harsh or, frankly, even embarrassing!

In some areas of the law, many lawyers ascribe to the quantity over quality philosophy.  Their goal is to get as many clients in the door as possible and they often succeed.  However, that does not mean they are good attorneys or provide quality representation to their clients.  It simply means they are good at advertising.

In the area of divorce or family law, it is even more important to stay away from this gimmicky type of advertising.  Your entire future, and the future of your children, could depend on your attorney.  You need to have experienced and caring representation to guide you through what can be the most difficult time in your life.  So, what can you do to ensure you pick the right divorce attorney?

Most people start with an internet search.  Searching for terms such as experienced divorce attorney/lawyer or best divorce attorney/lawyer in your specific city or county is typically a good place to start.  This will bring up a list of attorneys either in the Google Business Pages (in the directory with the map) or the organic search engine results.  Most search engines have an algorithm which takes into account a variety of factors.  However, the attorneys at the top of these search results are typically (a) the attorneys who have the most and highest reviews and (b) attorneys who have the most long- standing websites. Therefore, these attorneys are typically the ones who are the most experienced and highly rated attorneys in your area.  But, buyer beware, some attorneys listed high in either results may also just be the ones who pay the most to advertise.  Make close note if the word “ad” appears next to or within the listing.  This means that the attorney has paid to appear high on the page or high on the Google Business listing results.

Once you choose an attorney or law firm to look at from these results, you need to investigate further.  First, go to their website and check it out.  Who are their attorneys?  Look at their profiles and what is their experience?  How long have they been attorneys? Do they have any awards or specific recognitions identified?  What are their practice areas?  What is their philosophy about the area of law they are practicing in?  Having the most attorneys or a high number of attorneys doesn’t mean much in the area of divorce law. 

Next, look at the details of the firm itself.  Where are they located?  Is this a convenient location for you?  In what areas or counties do they practice?  If they limit their practice areas, that means they are familiar with and are well known in those particular counties.  This will help you and your case.  Has the firm received any awards or recognitions?   Do they offer free consultations, or do they charge for their consultations?  Do they discuss fees on their website?

When discussing fees, beware of gimmicks! If it is too good to be true, it probably is! Many lawyers are advertising flat rate fees now.  However, the economics of a divorce and a law firm are not very conducive to flat rates.  For example, if a firm has numerous lawyers, they have to be paid somehow.  If they have numerous locations, the rent and expenses need to be paid in all of those locations.  So, either the flat rate is often very high from the start or there will be a “catch.”  It will say “starting at” or the flat amount will only cover a certain part of the divorce.  A recent case with one of these law firms had one party paying a $7,000 flat rate but, because it was a simple divorce, the other party whose lawyer charged hourly only paid about $3,500 in total fees.  While it is predictable at the start, a flat rate is NOT always a good deal. And what happens when the simple divorce becomes not so simple? Will the firm demand more money to continue on the case?  What if your case demands attention, such as the issuance of subpoenas or depositions, but your flat fee does not cover that?   If you are contemplating hiring one of these attorneys, read the contract very carefully and make sure you understand ALL of the terms.

What is also crucial when selecting an attorney is to know who will be with you throughout your case. Will your file remain with the attorney who you hire, or will you be shuffled around the firm? Having consistency in your representation is so very important. Without this, you are telling your story over and over and lacking continuity of representation.

You should also check the reviews for the attorney and law firm.  The reviews should be from an independent, neutral source like Google or Yelp, not the reviews which are posted on the attorney’s website. Reviews that are posted on the firms website are controlled by the firm. They can post the positive but leave out the critical.    In the area of family law, it is important to note that not all negative reviews are accurate since sometimes the opposing party is angry when a lawyer obtains a good result for their client so you should read those carefully. For more information on attorney reviews, please see our blog here:  Lawyer Reviews – Reader Beware!

Of course, a personal referral is also important when retaining a divorce attorney. Having a recommendation from a family member or friend can be the most valuable resources when considering attorneys.

Once you choose a lawyer or two who you feel will best meet our goals and objectives,  contact their office via email or telephone to schedule a consultation.  How does their staff treat you?  How do they handle appointments?  Do they answer your questions, especially about fees?  If a lawyer gets on the phone right away, that is not necessarily a good thing! That usually means that their lawyers are not busy.  Most well-respected attorneys have a healthy caseload and an appointment is required, just as if you were to call a doctor or any other professional to schedule an appointment.  On the other hand, if you can’t get an appointment for weeks, that is also not a good thing!  That means the attorney may not have time for you or your case. 

When meeting with the attorney, judge their demeanor.  Do they seem interested in you and your case?  Do they seem knowledgeable about the issues you may face?  Are they willing to answer your questions?  Keep in mind that lawyers cannot give you legal advice unless you are client, but experienced and caring lawyers can at least give you an idea as to what you may expect from your case.  Are they willing to explain their billing and office practices?

So, when hiring a divorce or family law attorney, shop around.  Ask questions.  Meet with more than one attorney.  As exhausting as that sounds, it is in your best interests to do so.  Go with your instincts and who you feel the most comfortable with.  Make sure the lawyer provides detailed, monthly billing and a detailed written fee agreement which clearly sets forth what you are being charged for and how the billing at that firm works.  Also make sure that the lawyer sets forth clearly the expectations for both you and your case.  A lawyer should be able to advise you how the process works, what you might expect and possible outcomes given the facts of your case. 

Any lawyer who can tell you what your divorce will cost or what results you will receive is not being truthful with you. There is no way to tell how the case will proceed.   Therefore, it is impossible to classify a divorce as “contested” or “uncontested” before it even begins. Those are factors that cannot be pre-determined or predicted and fees should not be decided up front based on unrealistic expectations or predictions about a case.  This is just a gimmick and should be treated with healthy skepticism.  It is more important that you find a divorce attorney with  reasonable fees, a reasonable retainer, and transparent billing practices, who is also experienced and caring.

What documents Should You Collect Before Divorce?

nelsonda General Divorce , , , , ,

When a married couple decides to end their marriage, they may be initially too wrapped up in the emotional side of divorce to begin preparing for the process. This is completely understandable. Divorce is a big change, and it can be one that comes unexpectedly for many spouses.

It may take you a bit of time to get your bearings. However, it can be advantageous to begin preparing for divorce sooner rather than later.
Which documents are important to collect?

Collecting documents may be one of the first steps you want to take to prepare for divorce. During divorce, both you and your spouse will need your own copies of all your family’s important documents. By acting early, you can reduce the chance that some of those important documents disappear or become unavailable to you.

Some of your family’s documents you may want to collect, include:
• Tax returns from the last five years
• W-2s
• Pay stubs
• Bank statements, including investment accounts
• Employment contracts
• Benefits statements
• Retirement account statements
• Mortgage statements
• Loan applications
• Deeds to all properties
• Utility bills
• Vehicle registrations
• Estate planning documents
• Monthly budget documents

This list can appear overwhelming, especially if it will take some hunting to find some of these documents. However, going through your family’s paperwork and getting yourself organized can be cathartic. It can help you get an idea of some of the details that will need to be hashed out during your divorce, and it can help you envision what your post-divorce future may look like.

What should you do with the documents after collecting them?
When you have collected all the documents that you need, you may begin to think about where you might store them. Remember that you and your spouse will both need copies of these documents. However, you will want to make sure your copies are kept in a secure place where they won’t easily be tampered with.

You also may want to consider how you will organize these documents. You are not obligated to keep the organizational system that you used in your marital home. The system you use only needs to make sense to you.
You went to all the trouble of finding the documents once. It can reduce your stress during your divorce if you have similar documents grouped together in a way that allows you to find a particular document as soon as you need it.

Divorce can certainly be an emotional process, but it is also business. If your marriage is ending in divorce, it may be reasonable for you to take the necessary steps to protect your interests. Collecting the right documents early in the process can be one step that helps you achieve more of the divorce outcomes that matter most to you.

 

How to Establish Paternity in Wisconsin (Update)

nelsonda Custody and Placement, Paternity , , , ,

What is paternity and why is it important? It allows you to be legally involved in the child’s life. It also allows you to be named on the child’s birth certificate. Establishing paternity/parentage allows the parent to gain rights to the child and also gives the parent responsibilities related to the child. Determining parentage gives the parent the right to ask the court for custody (the ability to make decisions for your child, for example, where the child goes to school and where the child can attend church) and to have physical placement such as overnight visits with your child. Along with these rights, the child can receive child support, be added to your health insurance, can receive your social security benefits if you become disabled or die, and can inherit from you.

Wisconsin has two ways to establish paternity: 1) voluntary paternity acknowledgment; and 2) court order.

Voluntary Paternity Acknowledgement

The easiest way to establish paternity, when you are not married, is with the Voluntary Paternity Acknowledgement form. This form can be signed if both the mother and the father are over the age of 18 and both agree that the man is the father. All hospitals in Wisconsin have this form and will notarize it at the hospital. Be aware, this form cannot be used if the child was conceived while the mother was married to another man. This form has to be filed with the State and, if it is not rescinded, there can be significant legal ramifications. We would strongly recommend that you do not sign the Voluntary Paternity Acknowledgement unless you are absolutely sure you are the father! If you are not 100% sure, you should seek legal advice before signing the Acknowledgement.

Court Order

If you are named the possible father of a child and you do not agree, a court hearing will be scheduled. During this hearing, your rights and responsibilities will be explained to you. If you would like genetic testing to determine if you are the parent, this would be the time to ask for it. The child support agency pays for the genetic tests until paternity is established. You may be ordered to pay for the tests if the tests show that you are the parent. If you are not determined to be the parent, you will not be charged for the tests. You have the right to object to the test results in court although the current tests are extremely accurate so this would be difficult to do. Under Wisconsin law, the genetic test must show a 99% or greater probability of paternity in order to be presumed the father.

If the mother is married at the time the child is born, the husband is presumed to be the father.  In order to overcome that presumption and adjudicate another man, there are a wide variety of legal steps and  ramifications which are not easily addressed in a blog.  We would encourage you to seek counsel in this situation.

If you are concerned about the paternity of your child or are listed as a possible father in a paternity action, please contact Nelson, Krueger and Millenbach, LLC, for a free consultation to discuss your case with an experienced family law attorney.

COVID-19 and Divorce Mediation in Wisconsin

nelsonda divorce mediation , , , ,

Deciding to file for divorce is never an easy decision to make. But during these pandemic circumstances, it can be an even more challenging decision. The Wisconsin Supreme Court has restricted in-person court proceedings through at least May 22, 2020, and the courts will likely significantly limit in-person proceedings for the unforeseeable future to follow. It is safe to assume that our access to the courts to schedule hearings in family law matters will be significantly affected and delayed.

How can one file for divorce when we are under a Safer-at-Home Order and our access to the courts is affected? Despite these factors, the pandemic does not mean that you cannot file for divorce or that your case has to remain stagnant. Many people are commenting about how the COVID-19 pandemic has brought on new perspectives and priorities. Maybe now is the time to engage, or re-engage, in mediation of your family law case?

Divorce mediation is a process where a divorcing couple jointly hires a divorce mediator to assist them through the divorce process. A divorce mediator is considered to be neutral and does not take a position for or against either party or give legal advice to either party. As a neutral, a mediator can inform the parties of the law and provide calculations for support, property division, and other divorce related issues.  As a neutral, the mediator works with the couple to help them reach an agreement. With the new Wisconsin mediation rules in family cases, a divorce mediator can also draft and file the legal pleadings with the court making it easier for a divorcing couple to navigate the court procedures. Divorce mediation also allows parties to maintain control over the process of their divorce by working toward agreements outside of court.

Now more than ever, parties and those involved in the legal system, must adapt and use alternative means to achieve legal objectives. Through the divorce mediation process, we can conduct mediation through phone conferences, Zoom meetings, emails, and other forms of contact than do not require in-person meetings. You can continue to work on resolution and bring your case to conclusion despite the challenges we all face due to the COVID-19 pandemic.

Currently, due to the COVID-19 pandemic, some of the courts in Southeastern Wisconsin such as Milwaukee and Waukesha Counties are allowing parties to proceed with a Judgment of Divorce by Affidavit without the need to appear in court for a final hearing. This is only true in cases in which both parties have an attorney or the parties have engaged the services of an attorney acting as a divorce mediator. So, if you are considering divorce and believe that divorce mediation may be a desirable option for you, there is an added benefit in that your Judgment of Divorce can be granted now by Affidavit without you ever having to appear in court. This option is not available in cases where one party does not have an attorney or the parties have not hired a divorce mediator.

At Nelson, Krueger & Millenbach, LLC, we are proud to offer couples the option of divorce mediation with an experienced family law attorney trained in divorce mediation. Prior to the pandemic and now, our experience and success in working with couples who wish to maintain control of their divorce process through divorce mediation has been a benefit to our mediation clients.  Attorney Alison H.S. Krueger at Nelson, Krueger & Millenbach, LLC is a well-respected and trained divorce mediator. Her primary experience is as a practicing divorce attorney, but she also engages in the mediation process where she deems it will be the most helpful. She also charges a reasonable hourly rate given her years of experience in this field. If you are interested in this process, please call us at 414-258-1644 to schedule a free consultation to discuss same.

 

Are the Family Courts in Wisconsin Open under COVID-19 Restrictions?

nelsonda COVID-19, General Comments , , ,

Courts in Wisconsin, and in particular the family law  and divorce Courts, have been severely affected as a result of the COVID-19 pandemic.  In the beginning of the pandemic and the Wisconsin Safer at Home orders, most courts either cancelled hearings, adjourned them or started doing hearings by alternative means.  Some hearings continued to be held via telephone or Zoom.  However, there are many hearings which were cancelled and still need to be rescheduled, although ,the courts are slowly starting to do that.

Even though the current Safer at Home order in Wisconsin expires on May 26, 2020, it is not certain that the courts will be reopening to pre-COVID-19 operations after that time.  In Milwaukee County, for example, they have indicated they will not doing in person hearings in the near future and likely not until after July, 2020.  All hearings currently on the court’s calendars, if not rescheduled, will be conducted by Zoom or telephone.  Trials or contested hearings, however, will still likely be rescheduled until after in person hearings are being conducted.  Each judge is using his or her own discretion as to how they want to handle certain types of hearings.

In Waukesha County, they have not yet announced what their plans will be.  They are just now starting to reschedule previously cancelled Pretrial Conferences and Status Hearings.  Those hearings will likely be by telephone.  They have not announced plans to reschedule or resume Family Court Commissioner hearings or contested hearings.

In Washington and Ozaukee counties, most hearings have been and are proceeding by Zoom or by telephone.

In all counties, they are continuing to hold hearings on emergency matters such as domestic or child abuse restraining orders and custody/placement enforcement petitions.

If you are a client of our firm, the attorneys and staff at Nelson, Krueger & Millenbach will continue to keep you apprised of the status of your court hearings as soon as we receive that information from the Courts.

Guidelines for Parents Who Are Sharing Custody of Children During the COVID19 Pandemic

nelsonda COVID-19, Custody and Placement, General Divorce , , , , ,

The American Academy of Matrimonial Lawyers (AAML) in conjunction with the Association of Family Conciliatory Courts has put out seven guidelines for parents who are sharing placement of their children during the pandemic. Wonderful advice from the top family lawyers and mental health professionals in the nation.

From the leaders of groups that deal with families in crisis:

Susan Myres, President of American Academy of Matrimonial Lawyers (AAML)
Dr. Matt Sullivan, President of Association of Family and Conciliation Courts (AFCC)
Annette Burns, AAML and Former President of AFCC
Yasmine Mehmet, AAML
Kim Bonuomo, AAML
Nancy Kellman, AAML
Dr. Leslie Drozd, AFCC
Dr. Robin Deutsch, AFCC
Jill Peña, Executive Director of AAML
Peter Salem, Executive Director of AFCC

1. BE HEALTHY.

Comply with all CDC and local and state guidelines and model good behavior for your children with intensive hand washing, wiping down surfaces and other objects that are frequently touched, and maintaining social distancing. This also means BE INFORMED. Stay in touch with the most reliable media sources and avoid the rumor mill on social media.

2. BE MINDFUL.

Be honest about the seriousness of the pandemic but maintain a calm attitude and convey to your children your belief that everything will return to normal in time. Avoid making careless comments in front of the children and exposing them to endless media coverage intended for adults. Don’t leave the news on 24/7, for instance. But, at the same time, encourage your children to ask questions and express their concerns and answer them truthfully at a level that is age-appropriate.

3. BE COMPLIANT with court orders and custody agreements.

As much as possible, try to avoid reinventing the wheel despite the unusual circumstances. The custody agreement or court order exists to prevent endless haggling over the details of timesharing. In some jurisdictions there are even standing orders mandating that, if schools are closed, custody agreements should remain in force as though school were still in session.

4. BE CREATIVE.

At the same time, it would be foolish to expect that nothing will change when people are being advised not to fly and vacation attractions such as amusement parks, museums and entertainment venues are closing all over the US and the world. In addition, some parents will have to work extra hours to help deal with the crisis and other parents may be out of work or working reduced hours for a time. Plans will inevitably have to change. Encourage closeness with the parent who is not going to see the child through shared books, movies, games and FaceTime or Skype.

5. BE TRANSPARENT.

Provide honest information to your co-parent about any suspected or confirmed exposure to the virus, and try to agree on what steps each of you will take to protect the child from exposure. Certainly both parents should be informed at once if the child is exhibiting any possible symptoms of the virus.

6. BE GENEROUS.

Try to provide makeup time to the parent who missed out, if at all possible. Family law judges expect reasonable accommodations when they can be made and will take seriously concerns raised in later filings about parents who are inflexible in highly unusual circumstances.

7. BE UNDERSTANDING.

There is no doubt that the pandemic will pose an economic hardship and lead to lost earnings for many, many parents, both those who are paying child support and those who are receiving child support. The parent who is paying should try to provide something, even if it can’t be the full amount. The parent who is receiving payments should try to be accommodating under these challenging and temporary circumstances.

Adversity can become an opportunity for parents to come together and focus on what is best for the child. For many children, the strange days of the pandemic will leave vivid memories. It’s important for every child to know and remember that both parents did everything they could to explain what was happening and to keep their child safe.

 

Wisconsin Family Law and COVID-19

nelsonda COVID-19, General Divorce , , ,

WE ARE HERE FOR YOU!

In response to the Coronavirus or COVID-19, the health and welfare of our clients and our employees are our top priorities. We are closely monitoring the rules and procedures for our state and the courts, and the CDC recommendations which are constantly changing. Therefore, please visit the Nelson, Krueger & Millenbach, LLC COVID-19 page for the most updated information.

As always, please feel free to contact us by telephone or email, as we are working remotely and are available for our potential and existing clients. Stay safe and healthy!

Holiday Placement Tips for Parents

nelsonda Custody and Placement , , , , ,

The holidays are here at last and we all have one desire: To celebrate with family and friends. Children and adults alike share this interest; however, it doesn’t always come so easy for those who are caught in the middle of a custody and/or placement dispute. Many parents are subject to custody and placement arrangements with their children but it does not always quell the symptoms of co-parenting disputes. If you or someone you know is faced with a holiday placement dispute, there are several things to remember when trying to keep the peace.

First, always be cognizant of the placement schedule set in your court order. It is important to remember that the normal placement schedule and the holiday schedule operate separate from one another. In the case of a holiday placement dispute, the holiday schedule set forth in the court order will always take precedence over the normal placement schedule (unless the parties agree otherwise). If the parties agree to deviate from the court ordered holiday placement schedule, make sure that this is reduced to writing to avoid any future (s)he said/(s)he said” problems.

Unfortunately, even if a court order sets out a specific schedule for holiday placement, that does not necessarily prevent issues from popping up between the parents. One parent may decide to act contrary to the holiday schedule and keep the child from the other parent. In this case, there are a few different options the other parent may have here. Option one would be for the parent being denied placement to keep a journal highlighting each time a dispute or not agreed upon deviation from the schedule arises. This journal should contain detailed notes about what happened on specific dates. This is helpful to provide to your attorney should you decide to take the issue into court. Option two would be to involve law enforcement. The parent being denied placement will need to provide authorities with a copy of the placement schedule proving that the other parent is withholding placement and the schedule should be followed. In most cases, contacting law enforcement should be a last resort unless there is a legitimate threat to the safety of the child.

In most cases, the court order will feature a specific holiday placement schedule; however, what happens when the original court order does not specify a holiday placement schedule? It is understood that courts typically like to see an alternating placement schedule. For example, if mom were to have placement on Christmas day this year, dad would get Christmas day placement next year and the pattern would continue this way. From the perspective of the Court, Christmas Eve is generally seen as a separate holiday from Christmas day. To allude to the previous example, during a year where mom might have Christmas Day placement, dad would likely have placement on Christmas Eve. It is important for both parents to put equal effort into exercising placement schedules that will be most beneficial for their children.

The most important thing to remember is that the children should always come first. The children are most affected in placement disputes so parents should be mindful to keep a positive atmosphere for the children. That being said, all of us at Nelson, Krueger & Millenbach would like to wish you and your family a safe and happy holiday season.

Divorce Mediation: What is it and is it right for you?

nelsonda Divorce Attorneys, divorce mediation , , , , , , , ,

The idea of mediation in a divorce context can be confusing. In a divorce case, there are two types of mediation. The first type of mediation is when parties have exhausted all forms of negotiation and hire a neutral mediator to assist with reaching an agreement to resolve issues in a divorce case. The second type of mediation is when parties hire a mediator to assist them with the entire process of the divorce by being involved from the very beginning including assisting them in filing, negotiating a settlement, and drafting documents to be filed with the court on behalf of both parties.  This is commonly referred to as a “mediated divorce.”

It is important that people understand the difference between the two types of mediation when contemplating divorce and whether or not involving a divorce mediator is appropriate in a given case. For purposes of this article we will focus on the second type of mediation which is mediated divorce.

Recently, many family law firms are trying to capitalize on the 2017 law change which allows attorney mediators to draft and file documents with the courts on behalf of a divorcing couple.  Prior to the law passing in 2017, a mediator could work with couples in a neutral capacity to help them reach an agreement, but a mediator could not draft documents or file documents with the court for them.   Since the law changed, couples can now hire one lawyer to draft necessary pleadings, file them with the court and work with them in a neutral capacity to reach an agreement resolving issues in their divorce case.  The idea of wrapping your divorce up in a neat package where only one attorney is needed sounds immensely appealing.  And, in many cases, a mediated divorce can work for couples.  However, we have seen a substantial upswing in clients who start the process of mediation too early resulting in a failure of that process.  They are uninformed because the mediator failed to require full financial disclosure or failed to draft Financial Disclosure Statements prior to starting the process of trying to reach an agreement.  So, how do you know if divorce mediation is right for you?

Understand what mediation is and what a mediator can and cannot do for you.

A divorce mediator is neutral and does not take a position for or against either party or give legal advice to either party.  As a neutral, a mediator can inform you of the law and provide calculations for support, property division, and other divorce related issues.  A mediator can draft legal pleadings and file those forms with the court.   As a neutral, the mediator works with the couple to help them reach an agreement. With the new mediation rules in family cases, a divorce mediator can also draft and file the legal pleadings with the court making it easier for a divorcing couple to navigate the court procedures.

But what happens if you have questions about whether the settlement agreement is a good agreement for you and your situation?  What if you have questions about how the law applies to you alone and not the couple?

A divorce mediator cannot give you legal advice.  Therefore, all those questions will remain unanswered because if the mediator were to answer them, he or she would be providing legal advice.

What if the agreement is not fair?  How will you know?

Simply speaking, you won’t.  The mediator is not able to advocate for either party.  Therefore, absent having your own attorney, you will never know whether the agreement is fair to you or, quite frankly, could be better.  Any suggestion by the mediator in this regard would be considered advocating and is forbidden.

Consider whether mediation is appropriate for you.

The goal of mediation is to facilitate a resolution of issues and a stipulated agreement, but how do you know if you can reach an agreement before you know what all the potential options are?  Many times we see a client who thinks they have an agreement but as the mediator discusses different aspects of the process (i.e. placement schedules, custodial decisions, child support, tax deduction, maintenance and property divisions), more and more questions arise.  Without the benefit of legal counsel to advise you, it is truly impossible to know if you have a fair and equitable agreement.  If you have any questions, hesitations or concerns, it is imperative to speak to a lawyer before embarking on the mediation process or making any final decision in mediation. Even if you decide to hire a divorce mediator, you are still free to hire your own attorney to review your divorce agreement and discuss settlement ideas. Your divorce mediator should always support a party’s legal right to consult with or hire an attorney.

Research your mediator.

When the law changed in 2017, many law firms saw this as an opportunity to simply generate additional revenue for their firm.  The tag line of an “easy” and “flat rate” divorce or mediation sounds appealing and draws the attention of many savvy consumers.  However, mediators need to be experienced and properly trained.  Simply because a law firm advertises “mediation” does not mean that the attorneys have the experience or training to successfully help you.  The process to become a mediator requires hours of training and years of experience.  Commencing the mediation process with the wrong mediator will all but guarantee that your experience will only be more stressful and expensive.  When interviewing mediators, you should ask if they have taken the requisite 40 hour training program.  Inquire as to the number of mediations they have conducted. Inquire about a mediator’s experience and years in practice.

Beware of motivations.

Very frequently, we hear that one spouse is pushing the other spouse heavily towards mediation.  We have heard clients tell us that their spouse has threatened them that if they don’t do mediation and/or if they do hire attorney, they will not agree to certain things, it will cost them thousands of extra dollars or “it will be war.”  This is typically because that spouse has the most to lose – for example, by having to pay child support or maintenance.  Threats and bullying are never a good start to a divorce, no matter what process you decide to use.  Keep in mind that your soon to be ex-spouse is not looking out for you.  And, a mediator cannot protect you in that situation like an attorney can by giving you sound advice.  At a minimum, you should consult with an experienced divorce attorney prior to entering into the mediation process so you have realistic expectations and knowledge of what you could be entitled to under the law.  This will help you reach the best agreement for you and your children in addition to feeling comfortable when making that final decision.

Mediation with the right mediator can work!

When it comes to mediation to resolve an issue when there is an impasse in a case, mediation as first described above is an excellent option too.

In the right circumstances and for the right reasons, mediation is an effective tool to avoid litigation and ensure that both parties are satisfied with the result.  There are very good attorneys and retired judges who are mediating that are experienced and charge reasonable rates.  In these situations, you will likely be completely comfortable and satisfied with the process and the results.  If you have any reservations, however, make sure you at least consult with an attorney as stated above.

Further, mediation is the preferred method of resolving disputes even when attorneys are involved.  Experienced divorce lawyers will often reach out to mediators to help resolve a case prior to engaging in litigation.  These mediators are either retired judges or attorneys who have been practicing for more than 20 years.  The cost to hiring a mediator too early and without the advice of attorney may result in increased legal fees, but more importantly, can have a long term negative impact on you or,  more importantly,  your children.

Attorney Alison H.S. Krueger at Nelson, Krueger & Millenbach, LLC is a well-respected and trained mediator.  Her primary experience is as a practicing divorce attorney, but she also engages in the mediation process where she deems it will be the most helpful.  She also charges a reasonable hourly rate given her years of experience in this field.  If you are interested in this process, please call us at 414-258-1644 to schedule a free consultation to discuss same.

 

I Hit the Jackpot! Does That Mean My Spouse or Ex-Spouse Did Too?

nelsonda Child Support, General Divorce, Maintenance (Alimony), Property Division , , , , , , , ,

 

When someone wins the lottery, it can make headlines. When West Allis local Manuel Franco won the $768 million Powerball in April, it was big news for weeks. State lotteries are becoming a growing phenomenon, with the winnings often accruing well past the million-dollar mark. So, if you hit the jackpot, does that mean your spouse or ex-spouse did too?

Let’s talk lottery winnings and divorce. Say you’re in the middle of a contentious divorce, and the stress of it all has you on edge. You’re at the gas station filling up your car on the way home from work, and you feel like you need a win. So, you try your luck and buy a Powerball ticket. Unbeknownst to you at the time, that lottery ticket is going to make you a millionaire. The Wisconsin Lottery does the Powerball drawing, and you find out that your ticket won you the $400 million jackpot.

So, now you’re wondering – how does this big win impact my divorce?

The short answer is, those winnings are now property of the marital estate. Since Wisconsin is a community property state, the court is going to presume that your lottery winnings should be split equally. Although this may seem unfair, it is consistent with how family courts in Wisconsin split other assets (and debts) in a divorce. When considering the marital estate, the lottery winnings will go in the “assets” column of your estate, and your soon-to-be-ex will likely get a chunk.

Although Wisconsin is a community property state, that does not necessarily mean your spouse will necessarily get exactly half of the winnings. The court can unequally divide assets based on a variety of factors.  From an equitable standpoint, the court could decide that it is unfair to equally divide the lottery winnings based on the fact that the ticket was purchased after the divorce action was filed.  However, a recent case in Michigan found that the husband was required to pay the wife nearly one-half of his winnings under the same circumstances, finding that because he had regularly played the lottery during the marriage, the losses he incurred came from the marital estate so the winnings should be equally shared as well.

Further, the court will likely consider the “final” winnings from the lottery –even if you win a $400 million jackpot, there will be taxes and other deductions from that amount. So even though you win $400 million, it doesn’t mean your ex gets $200 million and you’re stuck having to pay the taxes and other deductions out of your share. Those should be split equally.

So, what happens if you aren’t in the middle of a divorce, but you’re paying child support to her pursuant to a court order from a prior divorce, or a paternity case?  Or, you aren’t divorced yet but you still would owe child support or possibly maintenance?

In situations where you are ordered to pay child support, the court generally weighs two factors when they set child support: your placement schedule, and your income. If you’re unsure how child support gets calculated, check our other blog posts for more information on calculating child support. So now you’re asking yourself – are my lottery winnings income? Those winnings aren’t regularly recurring (if you take the lump sum payout option), and you aren’t guaranteed future lottery winnings. How can they call lottery winnings “income”?

Unfortunately for you, the court can consider your lottery winnings as income when they calculate your child support. How they consider the winnings will depend (in part) on how you are being paid your winnings – did you take the lump sum payout option, or are you getting regularly recurring monthly payments of your winnings? If you are getting the regularly recurring monthly payments, then it is more likely the court will consider that “income” because it is regularly recurring and available for child support purposes. If, however, you take the lump sum payout, then it is less clear what the court will do. Child support is intended to “equalize” the households of both parents so that the children have similar experiences (and opportunities) at both parents’ houses. The court doesn’t want one parents house to the be “fun” house with lots of expensive gadgets and fancy food, and the other parents house to be boring. Clearly if one parent wins the lottery, the standard of living at their house is very likely to increase. Whether or not the courts would award the other parent a portion of your lump-sum winnings will likely depend on the facts specific to your case. It will also depend on the amount of winnings – if you win a $10,000 lottery, the court will look at those winnings differently than a $10,000,000 win.

Even though your winnings may be included for child support purposes, they may not be included for maintenance purposes.  The stated goal of maintenance under the law is to maintain your spouse at a standard of living enjoyed during the marriage.  Clearly, a large lottery jackpot is far above any standard of living that was enjoyed during the marriage.  There is a case in Wisconsin where the appellate court found that a post-divorce lottery win should not necessarily be grounds for an increase in maintenance to the other spouse for that reason.

The worst thing you can do, however, is to try to hide your winnings. Any time someone tries to hide assets during a divorce, the court could penalize that person by awarding the entire asset, or an unequal share, to the other party.  After all, one-half of $400 million is still $200 million dollars!

Navigating the family courts, whether its through a divorce of a paternity, can be complex. Introducing something like lottery winnings into the equation is likely to make things even more complicated. If you are going through a divorce of paternity case, contact the experienced attorneys at Nelson, Krueger & Millenbach, LLC at 414-258-1644 or at www.nkmfamilylaw.com for a free consultation to see what we can do for you.

 

 

New Grandparent’s Rights Rule in Wisconsin

nelsonda Custody and Placement, Grandparent Rights , , , , ,

This spring, in the highly anticipated case, Michels v. Lyons, the Wisconsin Supreme Court changed how the circuit court interprets the Wisconsin grandparent’s rights law. The Wisconsin grandparent’s rights law allows for the circuit court to award visitation to grandparents under certain conditions. This law has been somewhat controversial as the courts must balance the interests of parent’s deemed to be fit making decisions for their children, and the importance of the relationship between grandparents and children. This law applies to paternity and divorce cases where the parents are not married.

In the Michels v. Lyons case, the Wisconsin Supreme Court determined that the Grandparent’s Visitation Statute, Wis. Stat. 767.43, is constitutional which means that grandparents continue to have the right to ask the court to order visitation with their grandchildren. However, in order for the circuit court to award visitation to a grandparent, the grandparent must overcome the court’s presumption that the parent’s visitation decision is in the child’s best interest and prove, with clear and convincing evidence, that the parent’s decision regarding visitation with the grandparents was not in the child’s best interest.

In other words, it is the grandparent’s responsibility to prove to the court, at the highest level of proof required in a civil case, that the parent’s decision (usually to reduce or stop visitation between their child and the child’s grandparent) is not in the child’s best interest. The Court made it more difficult for the courts to substitute what their judgment, or a grandparent’s opinion, of what is in the child’s best interest for visitation for that of a fit parent’s judgment. This can be an uphill battle for a grandparent seeking court ordered visitation.

However, it does not mean that a grandparent cannot succeed in a motion to set grandparent visitation. There has always been an assumption that fit parent’s decisions as to visitation between a child and a grandparent is what is in the child’s best interest. The change is that in a motion for grandparent visitation it is the grandparent’s responsibility to prove that the parent’s decision is not in the child’s best interest. This is a more difficult thing to prove.

There are many fact scenarios where the Court could see that grandparents could be successful. For example, if the minor child has resided with the grandparent for a period of time, or provided care to the minor child on a consistent basis. If a parent decides to cut off all contact between a minor child and a grandparent, especially in such a situation where there is an established relationship in the examples above, it may be appropriate for the circuit court to order visitation in that situation. Grandparents visitation cases may be more common when a parent decides to reside with a grandparent to get back on their feet after the end of a relationship, or during and after a divorce. Depending upon several factors, it may be more likely to see the relationship between a grandparent and grandchild reach a level envisioned by the Court to meet the burden of proof necessary to award court ordered visitation.

This new standard in the grandparent visitation cases places a greater emphasis on fit parents’ decisions regarding visitation between a grandparent and their minor child. However, it still contemplates many situations where there should be visitation ordered by the circuit court when this parental decision can be proven by clear and convincing evidence to not be in the child’s best interest. The Court acknowledges the importance of preserving a relationship between a grandparent and a grandchild.  However, these relationships must be balanced with a fit parent’s decision. If you are involved in a situation regarding grandparent’s visitation, whether you are a grandparent, or a parent, call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.

Can the Court Award Custody of a Pet in Wisconsin?

nelsonda General Divorce, Property Division , , , , , , , , , , , , , , ,

 

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

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

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

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

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

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

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

 

Children as Beneficiaries on a Life Insurance Policy in Divorce

nelsonda Child Support, General Divorce , , , ,

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

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

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

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

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

 

Child Custody and Moving with a Child (UCCJEA)

nelsonda Custody and Placement , , , , , , , ,

 

Due to the high mobility of our society, it is relatively easy for people to move from from one place to another. Sometimes, this move requires a relocation to another state. An important consideration for those contemplating a move is, how might this affect your family law case? If you have a case involving custody or placement/visitation, it is important to consider how moving with a child may impact which jurisdiction is appropriate for modifying and enforcing custody and placement/visitation. Far too often, parents living in different states will attempt to modify or enforce a child custody order without considering that only one court can have jurisdiction to issue a decision. If mom lives in Florida, and dad lives in Washington, which court has the right to render a decision? What if the original order was issued in Wisconsin, but nobody lives there any longer?

To provide clarity with how all 50 states should determine jurisdiction in child custody cases, the National Conference of Commissioners on Uniform State Laws implemented the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Although not all states have adopted the UCCJEA, more than 30 states have enacted their own versions of the UCCJEA. In effect, the UCCJEA specifies which court should decide a child custody case when there is a dispute between two or more jurisdictions.

Before launching into a hypothetical to dissect the UCCJEA a bit further, wewill explain some terms frequently referred to in the UCCJEA which you may not be familiar with. First and foremost is the term “jurisdiction”. What is jurisdiction? In essence, jurisdiction is the power and authority for an entity to make legal decisions and judgments. In the context of the UCCJEA, we are discussing which court has jurisdiction over a child custody matter. Next is the term “home state”. A home state is the state where the child lived with a parent or person acting as a parent for at least 6 months immediately before the custody action was filed. The home state is important, because the UCCJEA directs courts to heavily prioritize home state jurisdiction above other jurisdictional considerations.

When analyzing the UCCJEA and applying it to your case, you may need to ask yourself – what is it I’m trying to do? Are you trying to modify the current orders, or are you trying to enforce them? It may be that you don’t even have the initial orders yet, which means there is nothing to modify or enforce. If this is the case, then you should consult with a family law attorney to determine how, when, and where the initial orders should be decided.

Since most individuals trying to tackle UCCJEA-related issues already have the initial orders,we will focus a hypothetical on modification and enforcement. For those unfamiliar with those terms, “modification” refers to an attempt to change the current orders. “Enforcement” refers to an attempt to enforce, or carry out the current orders without necessarily changing them.

For our hypothetical, let’s say that we have two parents, Harry and Susan, who were divorced in Wisconsin. Harry and Susan had a daughter, and through the divorce the Wisconsin court granted them joint custody and a 50/50 shared equal placement schedule. Two years after the divorce, Susan moves from Wisconsin to New York for a new job, leaving their daughter with Harry. Since Susan lives in New York, and Harry lives in Wisconsin, it is not feasible for them to observe their 50/50 shared equal placement schedule due to the distance. Shortly after she moves, Susan and Harry   begin arguing over where their daughter should live. Eight months after moving to New York, Susan files a modification with a New York court, trying to modify their prior placement order so that she gets 70% of the placement and Harry gets 30%. Harry, not agreeing with Susan’s proposed modification, files his own modification in Wisconsin requesting that he get 70% of the placement and Susan gets 30%. The question is – which court has the authority to make the modification, New York or Wisconsin?

To answer this question, we have to consider several factors. Amongst these factors are (1) who still lives in Wisconsin, (2) where were the most recent orders issued, (3) does the childstill have a “significant” connection with Wisconsin, (4) where is the relevant evidence in the case available, and (5) has there been a waiver of jurisdiction by any courts?

(1) Who still lives in Wisconsin? In our hypothetical, Harry and their daughter still live in Wisconsin. This is the first and possibly the most crucial component to determining which state has jurisdiction under the UCCJEA.

Alternatively, if nobody lived in Wisconsin when Susan filed her modification in New York, it is likely that Wisconsin has lost its exclusive, continuing jurisdiction to modify the order and it’s possible that New York may be the correct jurisdiction for litigating the modification. Or, it would be just as possible that another state has jurisdiction, depending on where the child has been residing.

(2) Where were the most recent orders issued? In our hypothetical, the most recent order was issued in Wisconsin through the divorce. This increases the likelihood that Wisconsin is the correct jurisdiction, because a Wisconsin court issued the last order.

Alternatively, if a Wisconsin court is not the most recent to issue an order, whether or not it is the correct jurisdiction for Harry and Susan’s modification depends on why they were not the most recent court to issue an order.

(3) Does the child still have a “significant” connection with Wisconsin? Since Harry and their daughter still live in Wisconsin, it is presumed that they have a significant connection with Wisconsin through their residency. As such, Wisconsin is likely the proper jurisdiction to hear the modification.

(4) Where is the relevant evidence in the case available? Often, evidence is a crucial factor in determining the outcome. In the family law context, relevant evidence for a modification of placement may include testimony from the child’s doctors, teachers, coaches, childcare providers, or other family members. Although this is not the most important factor in determining the correct jurisdiction, it is a consideration. In our hypothetical, Harry and Susan’s daughter has never lived in any state other than Wisconsin. It is highly likely that relevant evidence will be more readily available in Wisconsin than in New York. These facts support the idea that Wisconsin is the appropriate jurisdiction.

(5) Has there been a waiver of jurisdiction by any courts? Sometimes, a court may determine that it no longer has jurisdiction to hear a matter. Often, this is because none of the parties live in that jurisdiction any longer, and thus their connection with the jurisdiction has been severed. In our hypothetical, the Wisconsin court has not yet waived its jurisdiction. As such, Wisconsin is the proper jurisdiction to hear Harry’s modification.

Due to the facts of the hypothetical, it is likely that Wisconsin retains jurisdiction over the matter, and Harry’s modification filed in Wisconsin will proceed in front of a Wisconsin court. Susan’s modification filed in New York would then be denied for a lack of jurisdiction. Despite this result, it is possible that the New York court may still want to hold one or more hearings on Susan’s modification while jurisdiction is being determined.

Cases where parents live in separate states are complicated for various reasons, and UCCJEA related issues are highly complex and fact specific. If you or a loved one are experiencing legal issues related to the UCCJEA, contact our experienced legal team here at Nelson, Krueger & Millenbach, LLC at (414) 258-1644 for a free consultation.

 

What Are The Benefits Of Divorce Mediation?

nelsonda divorce mediation, General Divorce , , , , , , ,

 

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

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

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

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

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

Avoiding litigation may reduce stress and higher costs of divorce

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

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

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

 

Lawyer Reviews – Reader Beware!

nelsonda Divorce Attorneys, General Comments , , , , , ,

“The first thing we do, let’s kill all the lawyers!”  Clearly, William Shakespeare was not in the midst of an ugly divorce or custody battle when he wrote those immortal words.  Had Will actually needed a divorce or custody lawyer, instead of killing them, he would have done an internet search on family lawyers and carefully read all of the reviews before considering which lawyer was represent his rights in court.

Everyone hopes that they can share the opinions of William Shakespeare and never need the assistance and guidance of a family lawyer.  What do you do however, when the unexpected happens and you are in need of someone who is going to fight for you and more importantly your children?  The decision to hire a lawyer can be one of the most impactful decisions of your life.  It is imperative that you find the best fit for you.   A savvy consumer will research websites, consider experience and read reviews.  When you read the reviews, however, you need to consider if you are reading an actual client review of an attorney or if you are reading a story of defeat, retaliation or just plain vengeance. Some clients will turn to the internet to share their opinions of the legal process and their respective attorneys.  However, many times, reviews that are written, are written by opposing parties who left the process scorn and need to seek vengeance on the attorney that made the legal process so unpleasant.

When you read a negative review, consider the author.  Is the author actually a client of the attorney?  If, in reading the negative review, it is obvious that the author is the opposing party then consider why the opposing party took the time and energy to write a negative review of the other attorney.  Sometimes the best compliment of an attorney doing his or her job comes from the other side leaving the courtroom upset.

If the negative review is written by a client, read and consider the other reviews.  Does the negative review conform to what others are saying or is the negative a review a stand alone?  There are times when a client wants a lawyer to take a position contrary her advice.  When that happens, an ethical lawyer will withdraw from the case, likely leaving the client upset.  Is the negative review written by a client who is upset that the attorney did not do what he wanted her to do?  Or, perhaps the client is upset at the amount of fees which were charged.  However, that could have been due to circumstances beyond the lawyer’s control such as a difficult client or difficult opposing counsel.  Some clients are upset at the situation itself but the lawyer is the handy target to blame.

Most people do not realize that ethical rule prohibit lawyers from responding in detail to a negative review.  Always keep in mind the old adage, there are two sides to every story.  There have been times when an attorney reads a negative review and literally screams at her computer screen, “that is not what happened at all!”  The reader of that negative review will never know the “other side” because the ethical lawyer is prohibited from sharing any details that could even remotely violate the attorney client privilege.   A savvy reader of lawyer reviews will consider the fact that there is an explanation (or even correction) to the negative review, that that explanation will never be known by the reader.

Make sure that you read all the reviews from all sources.  A client may review an attorney on AVVO, but not on Google.  Make sure that you research several review platforms (Google, Yahoo, AVVO, Yelp, Yellow Pages, etc.) to obtain a full picture of what clients are saying about your potential lawyer.  While reviews are pivotally important, you must also consider experience.  The more experienced the lawyer, the more likely he is to have a negative review or two.  It is simply the law of averages.  Do not let a negative review deter you from scheduling a consultation.   If reading a negative review gives you pause, ask the lawyer about it in your consultation.  For instance, if a negative review indicates that the lawyer was unresponsive, ask the lawyer, “what is your policy for returning phone calls and emails?”  If after reading a review, you have concerns about a lawyer being unnecessarily litigious, ask the lawyer what her policy is on settlement.

In summary, it is imperative to read attorney reviews prior to selecting an attorney.  However, it is just as important to be smart about what you read and consider the author.  Finally, never let a review stop you from consulting with a lawyer that you feel will be a good fit.  You can judge for yourself after that meeting whether you are comfortable with the lawyer after listening to what he or she has to say.

 

 

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

nelsonda General Divorce , , , , , , ,

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

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

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

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

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

Handling The Holidays When Parents Have Family Law Issues

nelsonda Custody and Placement , , , , , , , , ,

We have addressed this topic in our blog several times before. However, as the holidays are approaching again, we believe that it is an extremely relevant and important topic which deserves additional attention.

Managing holiday schedules can be cumbersome for any parent. When parents of minor children are facing family law issues or divorce, scheduling family gatherings during the holidays is often more complicated. In divorce, courts focus on the best interests of the children to determine child custody and placement matters. It may be difficult for parents who are at odds with each other to apply that standard in the way that courts do during a contentious divorce. Focusing on the children, however, in making holiday arrangements, instead of focusing on parental disputes, may provide a positive framework for easing strains in scheduling holiday events. Here are some tips parents may use to help keep the peace during the holidays:

Plan ahead – with communication

It is important to make arrangements well in advance of the holidays, while communicating the details with the other parent. Leaving sufficient time to work out disputes, possibly with the help of a lawyer, can help to avoid unwanted consequences. Realize that your attorney may have his or her own family obligations during the holidays. Waiting to the last minute to discuss arrangements with the other parent is likely to produce conflict which cannot be easily resolved.

Follow any court ordered parenting time schedules

While circumstances may change as the holidays approach, any court ordered placement plan should be followed in absence of an alternative agreement. If disputes or deviations from the plan unexpectedly arise, makes notes about what happened to have a record to accurately explain the facts to your lawyer when the holidays are over.

Avoid badmouthing the other parent

Badmouthing the other parent, or allowing the children to speak poorly about the other parent, should always be avoided. Be mindful of the fact that your child will have a continuing relationship with  the other parent. Moreover, your child should not be placed in the middle of your dispute with the other parent. It is important to understand that your child may miss the other parent, and other extended family members, when separated during a holiday. You should support your child during a difficult time. Allowing the child time to connect with the other parent over the phone or through other electronic means can ease tensions.

Keeping positive sends a strong message to children

Spend your parenting time positively with your child to foster a loving environment. Focusing on your child and remaining positive during the holidays can help you to create new memories that your children will cherish.

If you are considering filing for divorce, or expect your spouse to file after the holidays are over, it may be prudent to seek guidance. If you have any questions regarding your family law matter, please contact our office at 414-258-1644 to schedule a free initial office consultation.

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

nelsonda Divorce Attorneys, Domestic Abuse, General Divorce , , , , , ,

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

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

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

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

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