What Is the Most Popular Time of Year To File a Divorce?

nelsonda General Comments, General Divorce , , , ,

Divorce concept with gavel and wedding rings

When do people most commonly file for divorce? While there can be many reasons why individuals may consider filing for divorce, there are certain times of the year that courts see an increased number of divorce filings. In a recent article published by CNN, with an analysis by FindLaw.com, states that American divorce filings between 2008 and 2011 revealed a surge in divorces in the month of January, with divorce filings increasing and peaking in late March. The article suggests many reasons for this trend, and can be found here:

http://www.cnn.com/2017/01/09/health/january-divorce-month-matrimony/?iid=ob_homepage_deskrecommended_pool

In summary, this article suggests that many people make up their minds about a divorce before the holidays, but hold off until January to avoid appearing heartless to family and friends by ending a marriage during the holidays. Many people may also be motivated by budget issues to wait until after the New Year. The end of the year is generally when many people receive bonuses, which can be helpful when approaching the expense of a divorce. Plus, waiting until the New Year can allow couples to file their taxes jointly for the previous year, which can be beneficial for the parties facing a divorce.

It is suggested by psychiatrist and author of “The Intelligent Divorce” book series, Mark Banschick, that the start of the year, for many people, is an “existential moment,” where people self-assess their lives and determine that life is too short, and that the current version of who they are is unhappy. He notes that the best time for a divorce is when an individual feels centered about who they are and what it is that they need in life.

Surprisingly, another time of year that people commonly file for divorce is in September. Traditionally, summer is the time for family vacations because the children are home from school, and many people do not want to start trouble at this time. Summer is also wedding season, and many people do not wish to attend weddings in the middle of a divorce. So, similarly to the end of a busy holiday season, people tend to feel like the time for togetherness is over, and it is time to get back to real life.

To those of us involved in the area of family law, it is clear that a divorce is a difficult decision for anyone to make at any time. The decision to proceed with a divorce can have a profound effect on the individual’s family, financial well-being, and daily life. If you are facing this difficult decision, call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.

Post Judgment Modifications and Enforcement of Court Orders in Wisconsin

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

 

Change ahead warning sign over blue sky

In Wisconsin, spousal support (maintenance/alimony), child support, custody and placement (visitation) arrangements may be modified at any time under certain circumstances.  Situations can change which may require the court to modify your order. A change in financial circumstances may warrant a modification of child support or maintenance; whereas a physical or emotional change in your children, a change in schedule or a move may warrant a modification of placement.   There may also be times where you need the court’s assistance in enforcing orders.  If you have concerns regarding a modification or enforcement of a court order, the experienced lawyers at Nelson, Krueger & Millenbach, LLC can assist you in evaluating your case and navigate you through the process. Give the a call for your free office consultation.

What changes can warrant a modification?

 There are many situations which may warrant a modification.  The court will look at requests to modify placement and custody differently depending on how long it has been since the original order was made.   When considering a request to modify or change placement the court will look at;

  • Physical or emotional harm to the child
  • Changes in the child(ren)’s behavior and or grades
  • A substance or physical abuse problem
  • Move to a new city or state

When looking at financial modifications (i.e. child support, maintenance or family support), changes in income, job status, graduation of child or placement change may all be reasons to modify an existing order.

What can I do if the other party is not following court orders?

If your ex-spouse is not following the court order, you have options available to you.  Our attorneys are experienced in litigating contempt issues in Milwaukee, Waukesha and the surrounding areas.  There are remedies available to you.  If you are due child support or a medical bill payment, the court can garnish wages or even order jail time for non-compliance.  If placement is being withheld, the law allows for you to be awarded your attorney fees as well as make up time with your child(ren).  Give the attorneys at Nelson, Krueger & Millenbach, LLC a call at 414-258-1644 to set up a free office consultation to see how we can help you in your post-judgment divorce or family law issue.

Prenuptial Agreements in a Divorce in Wisconsin

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Ein Ehevertrag mit zwei goldenen Eheringen

Prenuptial, or Premarital, Agreements are legally binding contracts entered into by couples before they get married to each other. They are also called Marital Reclassification Agreements. The purpose of a Prenuptial Agreement is to opt out of marital property laws in whole or in part. Most prenuptial agreements establish the financial rights of each spouse in the event of a death or divorce. It is important to note, however, that unless a Prenuptial Agreement specifically discusses what happens in the event of a divorce, it does not necessary apply in a divorce.  If all requirements are met, however, prenuptial agreements are generally found to be valid in Wisconsin.

Some common circumstances where prenuptial agreements are entered into are when one spouse is significantly wealthier than the other spouse, when a spouse has children from a different marriage or relationship, when one spouse has a family business he/she wishes to protect from the other spouse in the event of divorce, or when one spouse has significant debt that the other spouse does not want to be responsible for in the event of divorce.

Pursuant to statute, Wisconsin law presumes that all assets shall be divided equally in the event of a divorce. However, a Prenuptial Agreement could overcome that presumption if it specifically addresses what happens in the event of a divorce and if the court determines that it is a valid Prenuptial Agreement that will be upheld in a divorce. Additionally, it is important to know that parts of a Prenuptial Agreement may be upheld by the court, while other parts may not be. The court has the discretion to uphold all, none or only parts of the Prenuptial Agreement.

When deciding whether to uphold a Prenuptial Agreement, the court must insure that certain requirements and standards are met in order for all or part of a Prenuptial Agreement to be enforced and upheld at the time of the divorce. Some of the factors that the court looks at to determine whether a Prenuptial Agreement should apply in a divorce are whether or not the agreements were fair at the time of the signing of the Agreement (i.e. did the parties knowingly and voluntarily enter into the agreement?), whether there was a complete financial disclosure by both parties, whether both parties had adequate legal representation and whether or not a Prenuptial Agreement is fair at the time of the divorce (i.e. has their been a substantial and unforeseeable change in circumstances?).

An example of a situation that may be scrutinized for lack of fairness at the time of entering the agreement is the following: When the husband-to-be is insisting on a Prenuptial Agreement and only presents it to the bride-to-be on the eve of the wedding day (guests have already come to town, non-refundable deposits have been paid). In that circumstance, the bride-to-be may sign the Agreement without sufficiently reviewing the Agreement, without fully understanding the Agreement and her rights under the Agreement and without fully grasping what she is giving up in the future. In the case, the court may decide not to apply a Prenuptial Agreement in a divorce.

If you have questions about a Prenuptial Agreement in a divorce, please call our office at 414-258-1644 to schedule a free half-hour consultation with an attorney.

Post Judgment Considerations for Child Custody, Physical Placement, and Child Support in Wisconsin

nelsonda Child Support, Custody and Placement , , , ,

          Multi Ethnic People Holding The Word Change

Given the nature of custody, placement, and child support issues, parents can often find themselves going back to Court to request changes, or modifications, to an initial or previous order in their divorce or paternity matter. These matters are often referenced as “post judgment” matters. In Wisconsin, there are specific rules that apply to post judgment matters that are different than what parties may have encountered previously when they originally addressed these issues. The list below outlines some important rules and considerations for parents who may wish to initiate, or are involved in, a post judgment matter for child custody, placement or child support:

  1. When was your initial order entered by the Court?
    1. If a party is requesting a change to custody and placement within 2 years from the date of the original judgment, that party must provide substantial evidence that the change is necessary because the current conditions are physically or emotionally harmful to the best interest of the child. This rule makes a change to custody or placement much more difficult before the first two (2) years after the court’s initial order. The intended goal is to provide a cooling off period to help encourage parties to work together and avoid over using the Court system to settle their parenting disputes as well as provide stability for the children.
    2. If the initial order was entered over two (2) years ago, the Court can modify the current order if it finds that the request is in the child’s best interest, and that there has been a substantial change of circumstances since the last order.

 

  1. What is a “substantial change in circumstances” to change custody or physical placement?
    1. The term, “substantial change in circumstances” is very broad. It could mean a variety of things, such as, the parties’ inability to communicate, a change in work hours that effects a parents availability, a move, a change in a child’s medical or developmental needs, or a combination of several factors that makes the current custodial, or physical placement order unworkable. However, merely the passage of time or the aging of the children is generally not considered to be a substantial change in circumstances.

 

  1. What is the point of court ordered mediation?
    1. The Court requires parties attempt mediation in an effort to facilitate an agreement between the parties to avoid further litigation. Many parties are able to come to an agreement on some, if not all, issues in mediation. This benefits everyone involved because both the parties, and the Court, will save the time and the money necessary to proceed through the Court system. The only exceptions to mediation are if there have been domestic violence between the parties, child abuse allegations or one of the parties is impaired due to drugs, alcohol or mental illness.

 

  1. Why was a Guardian ad Litem appointed?
    1. If the parties cannot reach an agreement in mediation, the statutes require that the Court appoint a Guardian ad Litem (an attorney) in order to help determine what is in the best interest of the child or children. The Court relies on the Guardian ad Litem to conduct an investigation in order to provide a recommendation as to what solution to the parties’ issues is in the best interest of the children.
    2. In certain circumstances, such as in cases of domestic violence, the Court may decide to bypass mediation, and immediately appoint a Guardian ad Litem.
    3. There is usually a fee associated with the appointment of a Guardian ad Litem that both parties must pay. The Court will also set an hourly pay rate for the Guardian ad Litem as well. The county pay rate varies by county.

 

  1. What if I simply want to change the child support amount?
    1. If there has been a substantial change in circumstances, then a party may file a motion with the court to change child support. Child support will not automatically change simply because one parties’ income has changed. If you want child support to be changed, you must file a motion with the court. It is important to determine first whether there has been a substantial change in circumstances and what any new child support amount should be before you file a motion.
    2. A substantial change of circumstances to change child support is a very broad standard. It can mean that a party may have received a raise, changed jobs, lost their job, etc. It could also mean that the placement arrangement with the child or children has changed, which would also alter the support amount. Or, if one of your children has reached the age of majority and/or graduated from high school.
    3. If you believe that the other party has had an increase in income, you should request that they provide to you paystubs or some form of income documentation so that you can determine if you should ask the court for a change in child support.

What to Expect at your First Hearing on a Paternity Case in Wisconsin

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Rear view of couple with judge writing at desk in court

When parents come in to speak with us about paternity matters, they are often unclear about what orders the court will and will not make at that first hearing in regard to their child. They don’t know what to expect at a first hearing on a paternity hearing in Wisconsin.  So long as there has been a determination of who the legal father is of the child, the below list are the items that parents should be prepared to address and present their positions on at a first paternity hearing:

  1. Physical Placement. The court will determine where and with whom the child actually resides if the parents have not made agreements on their own.
  1. Legal Custody. The court will determine if one parent or both parents are capable of making major decisions for the child (such as where the child will go to school, what religion the child will practice, etc.).
  1. Child Support. The court will determine what, if any, financial support will be paid by one parent to the other to help support the child. There is a statutory formula which is used to calculate child support using the parents’ gross incomes and the number of overnights the child spends with each parent.  You should bring proof of your income to this hearing.
  1. Child’s Last Name. The court can order that the child’s last name be hyphenated to include both parents last names if both parents wish for the child to have their last names.
  1. Tax Exemption. The court can authorize who has the right to claim the child tax exemption for a certain tax year so both parent’s do not claim the child tax exemption.
  1. Medical expenses/Insurance. The court is required to allocate the responsibility to provide health insurance to one of the parents pursuant to certain statutory requirements.  If neither party meets those statutory requirements, there will be discussions regarding alternate sources of insurance.  Also, the court can, and usually will, order responsibility for uninsured medical expenses, including those related to the birth of the child.

Please be aware that if the court has not made a determination of who the legal father is, the first hearing may not include any or all of the above issues as there may be additional steps necessary, such as genetic testing, that have to happen before the court can determine who the father is. The court typically will not make orders on the above-listed issues until there is a legal determination of who the father of the child is.

Additionally, if the State of Wisconsin brings the action, or is part of the action, the hearing may involve more issues, such as a repayment for birthing expenses.

If your case is in one of our practice areas, please visit our website at www.nkmfamilylaw.com or contact us at 414-258-1644 to schedule a free initial consultation.

New Privacy Laws and Your Family Law Case

nelsonda General Divorce , , ,

A law book with a gavel - Privacy law

In July, the Wisconsin Supreme Court approved three new laws that will better protect your privacy during your family court legal proceeding. First, section 801.19 of the Wisconsin Statutes, will specifically protect the following numbers that are commonly found in your court records: social security numbers, employer and tax identification numbers, financial account numbers (i.e.: credit cards and bank accounts), driver licenses, and passport numbers. These numbers are often required for financial disclosure purposes, but this law will help protect the parties’ information by requiring these numbers to be redacted, and allowing this protected information to only be seen by the parties, their counsel, and the judge. This is especially relevant as the courts are moving toward electronic filing of case documents, and case records may be more readily available through online access.

Second, section 801.20 of the Wisconsin Statutes will require the parties to identify certain case types and documents as confidential at the time they are filed. All placement proceedings will be automatically identified as confidential. Plus, documents such as family financial disclosure statements and confidential petition addendum forms will also be automatically identified as confidential.

Finally, section 801.21 of the Wisconsin Statutes, provides parties with a procedure for motions to seal. This will allow parties to identify specific information, not already specified in section 801.20 of the Wisconsin Statutes, and move the court to seal or redact it based upon already existing authority to restrict public access. There are approved forms that may be used to protect the privacy of your information in court documents, and are available at https://www.wicourts.gov/forms1/circuit/index.htm. However, there may also be local forms and procedures necessary to better ensure that your information is protected. If you are unsure as to how to best protect your privacy during your family court case, call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.

Common School Related Issues in Divorce and Paternity Cases

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

Multiethnic Group of Children with Back to School ConceptCustody related school issues: When one parent has sole custody of a child, they do not need the other parent’s permission when making major legal decisions for that child, including school related decisions. However, when parents have joint custody of a child and do not agree on, for example, where a child will go to school, there is now a “school issue” in the case.

The court considers a number of factors when making a decision regarding where a child will go to school if the parents cannot agree on a school, such as: where the child primarily resides, how old the child is, how “rooted” the child is in the current school district, what grade the child is in (will there be a natural break in the child’s schooling anyways that would require a change? i.e. Middle school to high school), the child’s involvement in the school, the child’s social life and how it would be affected, the proposed school placement parent’s ability to care for the child before and after school, and the reason the parent is requesting the school choice change (personal or for the child’s benefit).  The court can also consider the proposed school districts and schools themselves as to how they compare to one another.  While the above is not an exhaustive list of what the court can and will consider, this list includes some of the common considerations. Further, this decision is almost always made with the help of a Guardian ad Litem’s recommendation.

To read more on the factors Guardian ad Litem’s and the court considers when making custodial decisions, such as school choice, please see our blog titled “Custodial Issues Regarding School in Wisconsin” at  https://wisconsinfamilylaw.info/2014/07/24/custodial-issues-regarding-school-in-wisconsin/ .

Money related school issues: Another common set of school issues arise when parents are confused or disagree on how much each parent must contribute to school related costs and fees and what exactly qualifies as a “school related cost and fee.”

School related costs and fees are typically considered “variable expenses,” which are expenses that are above and beyond daily expenses and are, therefore, not covered by guideline child support amounts. Determining the percentage of variable expenses that each parent pays is typically determined by the amount of placement that each parent has.  For example, if you have 50% of the placement of your child each year, you likely will pay 50% of the variable expenses for your child; if you have 35% placement of your child, you will likely pay 35% of the variable expenses for your child, and so on. Of course, there are exceptions to this, but this is the general relationship that variable expenses have with placement.

Tuition, registration fees, graduation fees and school supply costs are some examples of what typically qualifies as a “school related cost and fee.” However, when parties do not define exactly what does and does not qualify, parties may disagree about what specific fees and costs require contribution from the other parent.

Often times, an issue comes up where the parties had previously agreed to send their children to private school during the marriage, but one parent no longer agree to same.  If one parent objects to private school on the basis that he or she cannot afford the tuition costs, the court will usually find in that parent’s favor and not force them to pay expensive tuition that they can no longer afford after a divorce.

It is important to include in your divorce agreement detailed language on what percentage of variable expenses, including school fees and costs, that each parent will pay, and what exactly qualifies as a “school fee and cost” to avoid disagreements related to these school issues in the future.

If you have a school issue in your pre- or post-judgment divorce or paternity matter, it is important that you have an attorney help navigate you through these issues. If you wish to meet with one of the attorneys at our office, please call 414-258-1644 to schedule a free half-hour consultation.

 

Termination of Parental Rights- Frequently Asked Questions

nelsonda Child Support, Custody and Placement, General Divorce , , , ,

alcoholismWhile our firm does not specifically handle termination of parental rights cases, we frequently are asked questions about this area of law. Therefore, this blog is intended to provide general responses to frequently asked questions regarding what does and does not trigger this type of action in Wisconsin.

It is important to know that in nearly all cases of termination of parental rights in Wisconsin, except in very limited circumstances as discussed below, there must be an accompanying step-parent adoption.  The court does not want to leave a child without two legal parents.  The general philosophy is an indifferent or even bad parent is better than no parent. Your child has inheritance rights and rights to see extended family, even if they seemingly receive no current benefit from their parental relationship.

Here are the answers to some of the specific questions we often receive:

Refusal or failure to pay child support: Frustrated parents who are not receiving child support from the other parent for the benefit of their children will sometimes ask if they can terminate the other parent’s rights to the child. Likewise, parents who are court ordered to pay child support and wish to stop that obligation will ask if they can terminate his/her parental rights to avoid a child support obligation. The answer is no to both of these questions. Refusal or failure to pay child support is not a trigger to this type of action.  The obligation to support your children remains no matter what kind of parent is on the other side.  The court will not allow your child to go without support just because the parent is a bad parent.

Failing to see the child(ren): If one parent is not seeing the child(ren) consistently it may prompt the parent who cares full-time for the child to seek a termination of the other parent’s rights. Generally speaking, however, this cannot happen unless abandonment is proven (failure to see or communicate with the child for longer than six (6) months without good cause) AND there is an accompanying step-parent adoption.  So, the simple fact that a parent is not seeing their child may not be a trigger to this type of action.

“Bad parenting”: The same idea applies here as it does for failing to see the children. Unless there is another parent willing to step in to the child’s life so the child has two legal parents, the court is unwilling to terminate rights due to someone being a “bad parent.” Further, the court does not entertain the idea of terminating a parent’s rights simply because one parent thinks the other parent is not a good parent. If, however, the issue of “bad parenting” is a serious issue (such as the parent committed child abuse) this could be a trigger to a termination of parental rights action.

Some of the grounds that do trigger a termination of parental rights action are mentioned above (i.e. abandonment and abuse). Some other grounds are: failure to assume parental responsibility, incest, sexual assault, homicide or attempted homicide of the other parent and a parent who has a continuing disability.

Like all areas of law, each case has specific and unique facts that may not fall squarely in these general overviews. As such, we suggest that you retain an attorney to help you navigate this most serious of actions.

For additional information about this type of matter, please see our previous blog related to this topic. https://wisconsinfamilylaw.info/2012/10/02/terminating-parental-rights-in-wisconsin/

Domestic Violence and the Family Pet

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Puppy blocking its ears and looking up

Recently, Governor Walker signed into law 2015 Wisconsin Act 253, which allows court commissioners and judges presiding over restraining orders and injunctions to include protections for victims’ pets. This law allows the court to order abusers in domestic violence situations not to remove, hide, mistreat, or dispose of a family pet and also allows the court to order that a  victim, or an individual acting on behalf of the victim, be able to retrieve a pet. This legislation can help further protect victims, families, and pets to break free from the cycle of violence and allow the protection of pet to be addressed in legal proceedings such as Temporary Restraining Orders and Domestic Abuse or Harassment Injunctions.

It was recently reported in the Milwaukee Journal Sentinel that abusers use a variety of tactics to control their victims, and a remarkably common way to control victims is to harm or threaten to harm their pets. According to American Humane Society statistics, “71% of pet owners who seek safety at domestic abuse shelters report that their batterer had threatened, injured, maimed or killed family pets as a form of revenge or psychological torture.” The article also notes that “abuse victims cite concerns about the safety of their pets as the reason they stay in an abusive relationship.”

In allowing for the provision regarding family pets in the Temporary Restraining Orders and Injunctions, the goal is protect the pets, as well as to further encourage victims to seek help. The article goes on to state, in situations where domestic violence extends to family pets, “the message is maybe not implicit but it’s clear: My control over you extends over this animal. If I’ve abused you and battered you to the point that that’s no longer controlling you, I’ll abuse the animal you care about.” Hopefully this will remove that power of control from the abuser.

This article can be found at http://www.jsonline.com/news/wisconsin/pets-could-be-included-in-restraining-orders-under-new-legislation-b99671717z1-369603971.html.

While most pet owners consider their pets to be like family members or children, it is important to note that the legal system treats pets like property, subject to equal division in a divorce case. Because of parties’ emotional ties to their pets, and the legal treatment of pets, it is difficult for Courts to resolve these matters. In a family law setting without the factor of domestic violence, this can often be addressed in mediation, where parties can work together to craft creative solutions regarding their pets. However, in matters involving domestic violence, where mediation is not appropriate, if a perpetrator is looking for a way of hurting the victim, using the family pet to do so has become increasingly common. If you are looking to protect your family pet in a domestic violence situation outlined above, or protect yourself without concern for your pet, call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.

Wisconsin Supreme Court Resolves Issues Regarding Grandparents and Stepparents Rights

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

Grandparents And Granddaughter Walking On Winter BeachUntil recently, Wisconsin case law supported an interpretation of Wis. Stat. § 767.43(1) that required a grandparent, great-grandparent, or stepparent to prove “a parent-like relationship” with the child in order to secure visitation rights. However, the Supreme Court of Wisconsin’s ruling in the recently decided Meister* case made it clear that only a person other than a grandparent, or stepparent filing a motion for visitation must prove “a parent-like relationship.”

The Court, through this decision, eliminated an additional and unintended barrier for grandparents and stepparents who are seeking visitation rights. This change in the interpretation of the law will open the door to more grandparents, great-grandparents and stepparents who wish to seek visitation rights. Regardless of this barrier being eliminated, it does not guarantee that the grandparents or stepparents will prevail. The Court must “consider the constitutional rights of the parents” and “decide, in its sound discretion, whether the facts and circumstances of the case warrant granting, modifying, or denying a visitation petition in the best interest of the child.”

It is important to note that the above applies to children born to married parents. For children of unmarried (and subsequently never married) parents, the visitation statute still requires that a grandparent or stepparent show they have “maintained a relationship with the child or have attempted to maintain a relationship with the child but have been prevented from doing so by a parent who has legal custody of the child.” Again, however, this type of relationship does not have to be “parent-like” in nature.

If you are a grandparent, great-grandparent or stepparent seeking visitation rights of a child, it is important that you have an attorney navigate you through this evolving area of the law. If you wish to speak with an attorney at our office, please call 414-258-1644 for a free ½ hour office consultation.
* In re the Marriage of Meister, Nancy and Jay. 2016 WI 22.

Tax Considerations in a Divorce

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

Tax on dollar currency

Filing one’s taxes during or immediately after a divorce can be especially challenging. Before your divorce is finalized, there are a few tax considerations that should be addressed.  Addressing these issues prior to finalizing your divorce will help ease the transition during tax season post-divorce, and may help you avoid any negative tax consequences or an IRS audit. The following points should be considered during the divorce proceeding, and are important to discuss with an attorney or your tax preparer to determine the tax consequences of your divorce agreements:

  • When can you file as single, married filing jointly, married filing separately, or head of household, and which options offer the best possible benefits? Once your divorce is finalized, you are considered unmarried for the entire year of your divorce, this includes if you get divorced on December 31st. If your divorce is not finalized by December 31st, you will have to file your taxes as married filing jointly or married filing separately. There are rare occasions when you can even file head of household even though you are married.  Determining your tax filing status, should be done with the assistance of an experienced tax preparer with the goal of maximizing the best financial result to you and your spouse.  This may require you to work cooperatively with your soon-to-be-ex to determine the best means to file your taxes and to take advantage of the benefits offered by doing so.
  • Which parent can claim the child or children for the dependency exemption and take the applicable tax credits offered to parents? Generally, the parent with primary placement of the child(ren) may claim the child(ren) on their tax return. However, parties can negotiate who can claim the exemption in divorce cases or the court can order the same. It is imperative to include in the Marital Settlement Agreement an award of how each party shall claim the child(ren) on their respective tax returns.
  • What do parents need to claim the child(ren) as a dependent? Parents must complete an IRS Form 8332 “Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent,” to allow the other parent to attach it to his or her tax return if they are claiming the child(ren) Form 8332 is the document that allows a parent to claim a child on his or her taxes even though he or she may not fit the requirements under IRS rules to do so.
  • Do I have to report child support as income? Child support payments are not deductible by the paying parent or taxable to the parent receiving the child support.
  • Can I deduct maintenance payments? Maintenance payments (or alimony) are generally tax deductible by the party making the payment, and must be claimed as income by the recipient. It may be helpful to include a reference to the federal tax code IRC 71 in your divorce decree can ensure that the parties are aware of their responsibilities regarding maintenance payments.
  • Do I have to pay taxes on assets awarded to me in my divorce? A property transfer between divorcing spouses does not create any additional tax liabilities, if it is ordered in the divorce decree.
  • Do I have to pay taxes on retirement assets awarded to me in my divorce? In order to avoid tax consequences when dividing a retirement account incident to a divorce, a Qualified Domestic Relations Order or QDRO, may need to be drafted after the date of divorce to instruct the retirement plan administrator to divide the benefits as ordered by the divorce decree. If the recipient spouse does not liquidate such funds and follows the IRS rules to invest such funds into a qualified plan, there are no tax consequences to such a transfer.
  • Will I be audited post-divorce? You risk being audited if you do one or both of the following: 1. both parents claim the same child on their taxes, 2. The amount of maintenance the recipient lists on line 11 of his or her 1040 does not match the number that the payor lists on line 31a. It is always good practice to speak to your ex-spouse before filing your taxes to make sure that you are claiming the correct child(ren) and that the amount of maintenance listed as received on your tax form matches the amount of maintenance paid.

There are several considerations in determining what options are best for you to maximize your tax benefits and to avoid any additional tax burdens after a divorce. Because each divorce is unique, it may be important to speak with an attorney or a tax professional to best address the tax consequences of your proposed divorce agreement before finalizing your divorce. If you are getting a divorce and have questions regarding the tax consequences of the issues outlined above, call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.

Children Testifying in Custody and Placement Proceedings

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Child Custody BattleIn the family court setting, parents often find themselves disagreeing as to their children’s physical placement going forward. In Wisconsin, the court is required to consider a variety of factors, outlined in the statutes, in order to determine what is in the best interest of the child as part of a custody and placement determination.  One of these factors includes the requirement that the court must consider the wishes of the parties’ children. Most often, those wishes are incorporated in the Guardian ad Litem’s recommendation to the Court. As a result, this often leads to the question of whether the children have a voice, or a choice, in the proceedings, and whether they can meet with the Judge.

There are many concerns with revealing a child’s wishes for placement. It is important to remember that children are not small adults, or always able to know what is in their best interests, regardless of their level of maturity. This is why the Court will appoint a Guardian ad Litem: to determine what is in the best interest of the child. It can be very harmful to children to pressure them into making such a decision, and forcing them to choose between their parents. This also leaves the child vulnerable to retribution or pressure from an unhappy parent. For these reasons, it is extremely unlikely that the Judge will meet with the child, let alone have a child testify in court as to their wishes in a custody and placement proceeding.  In fact, in the combined experience of our firm, we cannot recall the last time this was done in any of our cases, if ever.

Further, it is important to note that children do NOT get to decide where they are going to live or how much time they spend with each parent in Wisconsin.  The court is required to at least hear what their wishes are but there are numerous other statutory factors that the court must consider as well.  Therefore, as a whole, the wishes of a child usually play a minor role, if any, in the decision of the court.   As a result, except in unusual situations, any testimony by a child in a custody or placement proceeding would likely have limited value.  This is why it is almost unheard of to have a child testify in court in these matters.

In Wisconsin, the Court appoints the Guardian ad Litem to conduct an investigation as to what is in the child’s best interest because the Judge does not have the resources to conduct that investigation. The Court also trusts that the Guardian ad Litem will protect the child from being placed in the middle of the parent’s placement and custody dispute. If you find yourself in a contentious custody and placement dispute that you fear your child may be placed in the middle of or if you feel your child’s best interest will not be sufficiently represented in court, call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.

Therapy and Counseling For Children In a Divorce

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Concept for consultation with psychologistIt is very common during, or even after, a divorce that parents and children alike need someone to talk to about their feelings and emotions. As family law attorneys, we understand that a portion of our job will deal with helping clients manage their emotions, however, we are not trained as therapists or counselors. Therefore, we often suggest that families seek outside counseling to handle the emotions of a divorce. Specifically, if children are involved, we urge clients to tend to their children’s emotional needs during the divorce. If meeting the children’s emotional needs in a divorce includes involving them in therapy or counseling (whether by the wishes of one or both parents, by recommendation of the Guardian ad Litem or by order of the court), we offer the following tips:

  1. Present a united front for the children regarding therapy. Often times children are resistant to therapy and see it as a form of “discipline” or that they are being sent because something is “wrong” with them. Therefore, it is important to explain to your children that therapy is not a choice; therapy is a requirement. Like any ailment that requires medical attention or treatment, depression, sadness and anger require the same attention. So, therapy is being required for the children’s health and happiness. Your words as the parents and adults, not the children’s, are the final say on this issue.
  1. That is not to say that you, as parents, should not be compassionate if your children are resistant to therapy. It is important to be understanding, yet consistent with the expectation of attending therapy. One way to do so is to present to the children the positives about therapy (i.e. it is a safe place to discuss feelings) and talk through the negative feelings they have towards therapy.
  1. Do not “grill” the children on what is discussed in therapy. Therapy is intended to be a “safe” forum for children to discuss and work through their feelings about the divorce. They need this therapy to be a safe place and know that what they tell the therapist is confidential.
  1. Do not threaten to “tell” the therapist on the children if they are misbehaving or acting inappropriately. Rather, talk to the children about their behaviors and indicate that it may be helpful to involve the therapist in a productive way to help both the parents and the children look at ways to cohabit better.
  1. Do not blame one parent or the other for the reason the child is in therapy. The children are in therapy to help cope with the emotions that they feel as they go through the divorce process. Remember, this was not their choice to have their parents divorce. So, it is important that the children feel supported by both parents in their therapy.

If one parent objects to the children attending therapy and the court needs to decide this issue, it is almost certain that the court will order the therapy.  Children going through a divorce or contested family law situation can almost always benefit from counseling.  The courts typically err on the side of caution and allow an expert to become involved.  Counselors are generally very honest and will tell the parents when and if counseling is appropriate.  Therefore, objections are generally futile and only portray the objecting parent in a bad light – as someone who does not care about the welfare and well-being of their child.

Just as a therapist is there to help manage counseling needs, an attorney is there to guide you through the legal process. It’s important to direct the right question to the appropriate expert.  When you do have family law-related legal needs, please do not hesitate to call our office at 414-258-1644 to meet with one of our attorneys for a free half-hour consultation.

The Importance of an Appropriate E-mail Address in Family Law Cases

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Envelope and pink email symbol. 3D renderIt has been said that an email is like a “virtual handshake” between two people. It is a way to introduce yourself to someone and it speaks to your professionalism. Therefore, it is important to create an appropriate e-mail address when you begin any legal process if you do not already have one.

In family law cases, your e-mail address is important because it can be used more than just to communicate confidentially to your counsel. You may be ordered to communicate by e-mail to the other party on your case and the e-mails may ultimately be presented in court. This means that the court would have a chance to review the e-mails and your e-mail address.

Below are a few “do not” and “do” tips in regard to e-mail addresses:

DO NOT: set up an e-mail address that insults, incites or patronizes the other party. Creating an e-mail address that does any of the above makes you look foolish, immature and could negatively impact your case. For example, if custody is an issue in your case and your e-mail address insults your ex (the other parent of your child) a Guardian ad Litem or Judge may construe this as the insulting party’s inability to have productive co-parent communication with his/her ex. Also, do not set up an email that negatively reflects upon you such as referring to inappropriate activities.

Examples of inappropriate emails: ihatemyex@emailserver.com
ilovedrinkingandpartying@emailserver.com

DO: set up a personal e-mail address that is your own (i.e. not shared with a new spouse or partner and not your work e-mail address). The easiest way to accomplish this is to make your e-mail address your name, in some form, and to be the only person who uses that account.

If you already have an appropriate email, make sure you change the password at the start of the divorce and there is no way to for your spouse to access same. Email has become the primary form of communication with all parties, including your attorney, in family law cases. It is important to make sure that this form of communication is protected and private.

The takeaway point of this blog is that you understand that your e-mail is likely to be shared and made public during your family law matter. Therefore, it is important to make sure that it is professional and noninflammatory. If you wish to have an attorney help guide you through your family law matter and help you conduct yourself in an appropriate manner throughout your proceedings, please call our office to schedule a free 30 minute initial office consultation to discuss your matter with one of our attorneys.

How to Stop a Divorce Bully!

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Boss Shouting At Businesswoman Through Loudspeaker In OfficeIn the context of family law, especially in a divorce, some individuals may find that their former partner transforms into a divorce bully. A divorce bully is a spouse who exhibits bullying behavior during the process of divorce. This person may not have previously displayed bullying behavior during the marriage. This behavior may not rise to the level of domestic violence, but instead is more subtle. Bullying behavior may include: lying about past incidents in order to make the other partner look bad; threatening to take full custody of the parties’ children or withholding the children from the other party; isolating the other party from friends and family; withholding money or refusing to pay bills; removing the other person from or canceling insurance; cancelling cell phone service; or attempting to intimidate the other partner from hiring a lawyer. While being a victim to a divorce bully adds another dimension of stress to the divorce process, it is not necessarily dangerous or constitutes domestic abuse.  Therefore, it may be difficult to deal with.

Another tactic of a divorce bully that can be especially damaging is to attempt to rush the divorce proceeding. This can often result in an inequitable agreement at the expense of the victim. Most parties to want the divorce to be over as quickly as possible. At the same time, it is also important to take the time to ensure that all marital assets and debts are divided equitably, that maintenance is considered when appropriate, and that custody, placement and child support are determined accurately, and in the best interest of the children.

If you find yourself the victim of divorce bullying, there are some important steps to take to protect yourself and to minimize the damaging consequences. One step may simply be to take care of your own health, both physically and mentally. Seeking counseling is a good way to help you find ways to deal with this type of behavior and get you through your divorce.  Another step may be to set firm boundaries with the divorce bully. For example, inform the bullying partner in person and in writing to refrain from specific abusive behavior, such as showing up uninvited to your home, or involving your children in the details of the divorce. It can also be helpful to document specific incidents of bullying, including when the incident occurred, and the details of what happened.

Hiring an attorney can be the most effective way of stopping a divorce bully.  An attorney can intervene on your behalf – either with your spouse, the opposing attorney or by filing a motion with the court.  Also, an attorney can intervene on your behalf with third parties, if necessary (as in the case of insurance or creditors).  Lastly, an attorney can reassure you as to what may or may not happen (i.e. you will not lose your children!) and give you advice as to how to best deal with this behavior.

Mediation may also be a helpful option in diffusing the situation. Mediators are specially trained to help control tense and emotional situations of divorce without involving litigation. However, if the bullying has existed throughout the marriage, then mediation may be ineffective because of the lack of trust between the parties, and may legitimize an abusive viewpoint of the bullying partner.  Your attorney can discuss various options with you.

The law requires that each party enters into a settlement agreement freely, voluntarily, knowingly, and without threat or coercion. It is ok to slow down the divorce process in order to understand your agreement, seek the advice of an attorney, and to come to a final agreement that you can successfully follow. If you find yourself the victim of a divorce bully, call us at (414) 258-1644 to schedule a free initial office consultation to discuss your case.

Divorce from the Child’s Perspective

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Please stop fighting!I recently read an article that discussed divorce from a child’s perspective. Since a significant portion of my caseload is Guardian ad Litem appointments (where I am appointed by the court as the attorney for the child’s best interests), I am frequently tasked with speaking with children whose parents are in the process of divorce or other custody and/or placement disputes. In my work as Guardian ad Litem, I see first-hand what divorce is like from the child’s perspective. As such, it is important as parents going through a divorce, to be mindful of the below requests and thoughts that children wish their parents knew during a divorce:

1. We can love both of you 100%. Just because we love being at dad’s house and love our dad, does not mean that we don’t love you and being at your house mom. This also means that when we miss dad when we are with you, it’s not because we love you any less. Please do not make us feel like we have to choose who we like more or less. Also, please do not make us feel that we cannot share with you that we are enjoying our time with both parents. This is a tough time for us, so please allow us to be happy.

2. We notice when you are civil with one another and appreciate it. We know that you are not getting along well. Otherwise, you would still be together and not going through a divorce. However, the fact that you can still both attend our sporting events and school concerts and be nice to one another for our sakes means a lot to us.

3. We are not informants. Period. When you ask us questions about what happens at mom’s house or about mom’s new boyfriend, we know it is because you want “dirt” on mom. When you put us in a position to be an informant, it will go one of two ways: 1) we will tell you what you want to hear at the expense of being truthful. We are so scared to hurt you that we will say anything to make you feel better about yourself, or 2) we will shut down and not tell you anything because we feel betrayed that you have asked us to be the conduit of information for what happens at mom’s house. Can’t you just respect that it is difficult enough for us to go back-and-forth between two different homes, with two different styles of parenting, much less have to worry that we will be interrogated about the other parent’s house? Either way that we react, our relationship with you becomes less pure when you put us in this investigative position.

4. Do not use us as pawns. We are not chess pieces. Do you really want your children to grow up feeling used, manipulated and duped? This is how we feel when you use us as leverage against the other parent. And if you think we do not know that you do it, you are wrong.

5. Do not overshare. No matter our age, we do not need to know every dirty detail. We may ask you to tell us. In fact, we may beg you to tell us everything and say we want to know why you hate dad and why you filed for divorce. The reality is, however, no matter how awful or hurtful dad’s behavior was to you, you still chose him to be our other parent. So, be careful how much you share with us. If you need to talk to someone, please see a therapist or confide in a close friend. We are children; we are not therapists.

If you are going through a divorce and you have children, it is important that you have an attorney who is sensitive to the needs of your children and encourages you to continually put your children first. If you wish to speak with an attorney at our office, please call us at (414) 258-1644 to schedule a free thirty (30) minute office consultation..

-Attorney Madeleine Olmstead

 

Addressing the Unexpected During a Divorce Proceeding

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Shocking news.The recent events involving Lamar Odom’s hospitalization, which had the unexpected result of Khloe Kardashian and Lamar Odom petitioning the court to dismiss the couples divorce action, highlights how stressful divorce can be for many couples. Kardashian explained that this request to halt the divorce was to make medical decisions on Odom’s behalf after the former NBA player was found unconscious in a brothel in Nevada in October.

There are many reasons a couple may consider either dropping a divorce action, or putting the action on hold. Medical emergencies, such as Lamar Odom’s, may occur and incapacitate a party, their children, or family members. Courts must weigh circumstances that may a delay in the legal proceeding, such as medical emergencies, with an individual’s rights to have his or her legal matter addressed in a timely manner. This can easily affect how the divorce action proceeds, as well as the timeline for conclusion.

On the other hand, a couple may decide that they would like attempt to save their marriage and reconcile. In Wisconsin, that couple can submit to the court a Stipulation and Order to suspend proceedings to effect reconciliation. This document would request that the court allow up to 90 days for the parties to try and save their marriage with the intent end the divorce proceedings. After the 90 days, the parties must then notify the court as to whether or not they wish to proceed with the divorce. Further, a couple can request that the Court dismiss the divorce action at any time before the divorce is finalized.

Lamar Odom’s situation also highlights the importance for any party, at the start of a divorce action, to consider who they want to make financial or medical decisions for them if they were to become incapacitated. This may require a party to amend their powers of attorneys accordingly. If an individual were to suddenly become incapacitated during the pendency of a contentious divorce, they may no longer wish to have their spouse make such important decisions on their behalf.

Any individual who facing similar circumstances during their divorce or family law action, should feel confident that his or her attorney can offer legal solutions throughout the entirety of the legal action, regardless of whatever unique circumstances are involved. If you are facing this difficult situation, call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.

The Domestic Abuse Presumption in Custody Cases

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Drawing shows young girls inner feelings about being abusedUnder Wisconsin law there is a presumption that joint custody is in the best interest of the child. A presumption under the law means that the court will enter that order unless someone shows grounds as to why it should not be ordered. There are typically statutory factors which the court must consider when making that determination. However, the presumption for joint custody does not apply in cases where a court finds the required amount of evidence that a parent has engaged battery or abuse to the other parent.

When a case has a “domestic abuse component,” the law says the court should not award an abusive party joint or sole custody. This presumption may be overcome only if the person found to be the abuser provides evidence of all of the following: 1) evidence of completion of a batterers treatment program, and evidence that he/she is not abusing alcohol or any other drug, and 2) that it is in the best interest of the child for the offending parent to be awarded joint or sole custody taking into account all of the factors that are considered when determining the appropriate custody and physical placement for the child.

In cases where there is evidence that both parties have engaged in domestic abuse, the court will determine who was the “primary physical aggressor.” Whomever is the primary physical aggressor is the parent who will not be awarded joint custody. If the court finds that neither party was the primary physical aggressor, then the domestic abuse presumption does not apply to either parent, and the presumption of joint custody applies again.

If you are the victim of domestic abuse and you are in the middle of family law related legal proceedings, it is imperative that you bring these issues to the court’s attention at your first opportunity. This is particularly important in pre-judgment divorce and pre-judgment paternity proceedings. If you raise the concern at a later date in a post-judgment divorce or post-judgment paternity matter, when an order for joint custody is already in place, and the concern is based on facts that were available to you at the time of the divorce or initial paternity matter, the court may conclude that you have already waived your right to challenge the presumption of joint custody.

To be clear, you may not seek application of the domestic abuse presumption in post-judgment matters based on facts that were available and known to you prior to entering into a joint custody arrangement. However, if new instances of abuse happen after the entry of an order, you may request that the domestic abuse be applied in a future proceeding if the new facts and instances support an application of the domestic abuse presumption and apply the presumption is in the best interest of the children.

If you are accused of domestic abuse or there is a domestic violence injunction has been granted against you, it is important that you immediately take the necessary steps to show the court you are suitable to have joint custody and make parenting decisions for your child. These steps include, but are not limited to, completing a batterers treatment program, refraining from abusing drugs and/or alcohol, and being an appropriate parent in all other aspects.

Complicated as this may seem, the message is clear: make sure that your attorney and the court are aware of any issues of domestic abuse and interspousal battery present in your matter prior to a final order. That way, if you are the victim of the abuse, you may seek timely application of the presumption in your matter and allow the court to make a custodial decision that is in the best interest of your child. Similarly, if you are found to have engaged in acts of domestic violence, it is important that you find an experienced family law attorney who will work with you to best protect your interests.

If you have issues of domestic abuse in your case, it is important that you have an attorney help guide you through your divorce or paternity and help you seek application of the appropriate laws and presumptions. If you wish to discuss your matter with one of our attorneys, please call our office to schedule a free initial office consultation.

Can I Obtain Cell Phone Records or Text Messages in a Divorce in Wisconsin? – Update 2015

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woman hand holding the phone with sms chat on screenAs an update to our 2012 blog titled “Can I Obtain Cell Phone Records or Text Messages in a Divorce in Wisconsin?” we reached out to three major cell phone providers to find out the current policy on obtaining text messages and cell phone records.

For cell phone records and text message logs (i.e. name, number, and time the call or text was sent/received), the process to obtain them from the phone carrier is relatively easy, which is similar to what we found in 2012 (please see above link). However, just as in 2012, obtaining the actual text message content remains more complicated.

Two of the three providers indicate that they do not maintain any text message content in their records. The two providers that do not save any of the content indicate that there are other ways for clients to save their text message content on their own. For example, clients can synchronize e-mail accounts to their cell phone number and set up an archive of text messages. Or, they can save their text messages on the cloud if they sign up for a certain type of messaging.  But, if you are trying to obtain the text messages of the other party through these providers, you will not be able to do so.

However, through at least one of the major providers, this information can be obtained through your personal online account at the click of a button. For this provider, that content is available for 3-5 days typically and up to 10 days at maximum. There is an automatic purge of the messages after 10 days. In addition, this company does accept preservation letters (to allow you to preserve past texts of yourself or the other party), but it comes at the cost of $50 for every 5-day increment requested. Further, you cannot request “future” preservation of text messages. That is considered surveillance, if not done through the appropriate legal channels. If you wish to have a more expansive release of text content, a judge would have to sign a subpoena and the company would have to receive consent (in writing) from the user of the phone. Both of these documents have to be received in order to do a continuing preservation of texts. There is no specific form that you must send to request preservation of texts, but it must include the telephone number, dates and specific records being requested, and a return address for the information.

Overall, the message remains the same: if you wish to save the content of text messages you need to be proactive and take action to save them yourself (i.e. take a screen shot and e-mail it to yourself). You should operate under the notion of “once they are gone, they are gone,” unless you have the rare case where you have the proper permissions to obtain them. To find out exactly what your carrier offers in regard to preserving text message content you would have to contact your carrier’s legal department.

Also, as we previously stated in 2012, text messages in Wisconsin would have very little value or relevance in a divorce as Wisconsin is a no fault state. This may be different in other states, however.

If you find yourself in a family law dispute where this issue may be relevant, please contact our office at 414-258-1644 to scheduled your free initial office consultation or visit our website for more information.

U.S. Supreme Court Recognizes the Legal Right to Marriage for Same Sex Couples

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Two silver rings resting on a background in colors of a homosexual flag

On June 26, 2015, the United States Supreme Court ruled that the United States Constitution guarantees a right to same sex marriage. All states are now required to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. Now, two consenting adults can be legally married in the state of Wisconsin, and can expect that Wisconsin, and all states, will recognize that marriage as legal.

It also follows that, any married couple should expect the same legal process of divorce in Wisconsin. However, how these laws apply to same sex marriages remains unsettled. For example, one glaring issue is determining the length of the marriage for purposes of maintenance, or alimony. Maintenance is linked to the length of marriage, so how will the courts determine when the marriage started? Will the court use the date of the couple’s actual marriage, or the date in which Wisconsin recognized the legality of their marriage?  It also remains unsettled as to whether children born to same sex married couples will be ‘presumed’ by the State of Wisconsin to be children of both parties.

While the legal system determines these legal nuances, the fact remains that we can move forward from categorizing or defining marriages or divorces. Any individual who is seeking legal counsel for family law issues, including divorce, should feel confident that his or her attorney is prepared to guide her client through the legal process, regardless of whatever unique circumstances are involved. If you are facing this difficult situation, call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.