Issues Remain Unresolved Regarding Same-Sex Divorce in Wisconsin

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Businessman stress, ripping up partner word on paperOne year ago this June, federal Judge Barbara Crabb overturned Wisconsin’s ban on same-sex marriage. Along with the advent same-sex marriage in Wisconsin came the inevitable issue of same-sex divorce in Wisconsin. However, because of the laws on divorce in Wisconsin, same-sex divorce presents some very distinct issues.

These issues are addressed in an article by Jim Stingl in the Journal Sentinel, found here: http://www.jsonline.com/news/milwaukee/one-year-later-gay-marriage-also-brings-gay-divorce-b99513974z1-306392381.html

As mentioned in this article, one question looming over same-sex divorce involves the award maintenance, or alimony, which often requires a consideration of the length of a marriage. While there were no same-sex marriages in Wisconsin until June 6, 2014 (when the ban on same-sex marriage was overturned), many other states, as well as Canada, have allowed same-sex marriage for several years. So the questions remains, when will the Court consider a marriage that occurred previous to June 6, 2014, outside the state’s jurisdiction, to have begun? On the date of their actual marriage, or on the date Wisconsin legally recognized that marriage? There certainly appears to be some confusion among judges, which would have a direct effect on a court’s ruling for maintenance.

Another important issue is the marital presumption, and whether the courts will extend the marital presumption to children of same sex couples. Currently, the law states that the husband is presumed to be the father of any child born to the wife during the marriage.  However, it is unsettled as to whether children born to same sex married couples would be ‘presumed’ by the State of Wisconsin to be children of both parties. This may also evoke similar timing questions as to when and if Wisconsin will extend this presumption to same-sex couples married outside the state’s jurisdiction.

The legal community is anticipating that the U.S. Supreme Court’s ruling later this month regarding whether states must allow same-sex marriage and recognize same-sex marriages from other jurisdiction will provide courts with some guidance. Until then, this unique issue remains unsettled with the Wisconsin courts, and open for interpretation. Moreover, because this issues remains unsettled with the courts, it can also leave divorces finalized during this time vulnerable to post-judgment litigation in the future.

These issues regarding custody, placement and support of children, maintenance, and property division, should be at the forefront of any divorce discussion. Any individual seeking a divorce should choose an attorney who understands the unique issues involving same-sex marriage and divorce, and who is prepared to guide her client through the divorce process. If you are facing this difficult situation, call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.

Divorce Summons Served by Facebook Message

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Design thumbs up iconA March 27, 2015, decision by Manhattan Supreme Court Justice Matthew Cooper will allow a woman in Brooklyn, New York to serve her husband with a divorce summons by a Facebook private message. Her husband does not have a permanent address or a place of employment, and has refused to make himself available to be served the divorce papers. He has, however, kept in touch with his wife via phone and Facebook. After exhausting other ways to serve her elusive husband the divorce papers, she filed an application to the Court for service by alternate means – via Facebook. In his decision, Judge Cooper wrote:

“[P]laintiff is granted permission to serve defendant with the divorce summons using a private message through Facebook. Specifically, because litigants are prohibited from serving other litigants, plaintiff’s attorney shall log into plaintiff’s Facebook account and message the defendant by first identifying himself, and then including either a web address of the summons or attaching an image of the summons. This transmittal shall be repeated by plaintiff’s attorney to defendant once a week for three consecutive weeks or until acknowledged by the defendant. Additionally, after the initial transmittal, plaintiff and her attorney are to call and text message defendant to inform him that the summons for divorce has been sent to him via Facebook.”

While this decision currently only effects those filing for divorce in the State of New York, it will be interesting to see if this alternate method of serving initial divorce paperwork will make its way into the Wisconsin court system. Under the right circumstance, this alternate means of service could offer significant relief for a party with an uncooperative spouse.

In Wisconsin, our statutes allow service by publication if the location of a spouse is unknown or, if with reasonable diligence, the party cannot be personally served. Should you find yourself in a circumstance where you do not know your spouse’s location, and cannot personally serve him or her, there are still options for service in Wisconsin. These laws are designed to prevent a spouse who does not want the divorce from holding up the action.

To obtain more information about service of a divorce in Wisconsin, please visit our website or contact us at 414-258-1644.

How To Modify or Change Child Support in Wisconsin

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Child support letters and cashOnce a child support order has been established, in Wisconsin, it can only be changed or modified if there has been a substantial change in circumstances. How do you modify or change child support in Wisconsin? If you can prove there has been a substantial change, then you must file a motion and schedule a hearing before the family court commissioner or the judge.  You can also file a Stipulation with the court if you and the other parent can reach an agreement.  All of these forms are available here:  Wisconsin Family Law Forms.

What does a substantial change in circumstances mean when addressing child support?  That is often up to the court but some common examples are:

1.  A substantial change in the income of either party.  The definition of “substantial” is often based on the facts of the situation but usually this requires a change in gross income of at least $5,000 per year or more.  Keep in mind this is relative, however.  If a $5,000 change in gross income only results in a $50 per month change in child support, that would generally not be considered to be substantial.

2.  The Wisconsin statutes provide that if at least 33 months has passed since the last child support order, a substantial change in circumstances is presumed to have occurred.

3.  A child “ages out” by reaching the age of 18 or graduates from high school.

4.  A change in the placement schedule.

5.  A move by one party or the other resulting in additional transportation costs.

6.  A substantial change in the needs of either parent or the child.  For example, if a child develops special needs, incurs unusual costs or if a parent becomes disabled.

If any of these changes apply to your situation or you believe you may have grounds to modify or change your child support order, you should seek the advice of an experienced family law attorney to determine exactly what your options are and what the likely results will be if you file a request to change your child support order.

The experienced attorneys at Nelson, Krueger & Millenbach, LLC offer free initial office consultations and we frequently deal with this kind of situation.  If you are interested in scheduling an appointment with one of our attorneys, please contact us at 414-258-1644.

Same-Sex Divorce: Layered with Issues

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close up of happy male gay couple holding handsSame sex couples have only recently, and only in some states, been given the right to marry.  With the right to marry, unfortunately, often comes the right to divorce.   For those attorneys and parties who have tried to navigate same-sex divorces, many issues arise which include issues not always seen in heterosexual divorces.

The first issue that might arise in a same-sex divorce is: What is the date of marriage?  Since states have granted the right for same-sex couples to marry on different dates, some states might disagree on the determination of a couple’s actual date of marriage depending on where the couple was married.  This issue might also arise if a couple is residing in a state that recognizes common law marriage (note: Wisconsin does not recognize common law marriage).  The date of marriage (i.e. length of marriage) is important when addressing issues regarding support.

On this topic, many same-sex couples are together for years before they were able to get legally married.  These couples considered themselves “married” long before they were legally married, which included  commingling their assets.  Regardless, there is a question as to whether or not such couples should get “credit” for the time spend together in a marriage-like relationship before legally married.  Most courts will only divide assets starting from the time a couple actually got married.  This can create a lot of inequality and unanswered issues for these couples.

A related issue is also whether or not a couple even has a valid marriage and if a court can even grant a Judgment of Divorce.  Since some same-sex couples traveled outside of their home state or U.S. to be married, their marriage may not be valid.  In this case, a Judgment of Divorce might not be appropriate.

If children are involved, a same-sex divorce can becomes even more complicated depending on when the children were born.  Children born during a marriage are considered marital children.  In many same-sex marriages, you might have children born prior to a legal marriage who are considered by their parents to be ‘marital children,’ but not in the eyes of Wisconsin law.  For same-sex couples whose children were not born during a legal marriage, either one or both of the parents are not the biological parent of the child.  This presents several questions for the court.  For example, if the child is not biological, have both of the parents legally adopted the child?   If only one parent is biological, does that parent have all the rights?  These questions are perplexing to the court, to the parents and to the children.

Same-sex couples are also running into issues when they try to get divorced in states other than the state where they were legally married.  States that do not recognize same-sex marriages typically will not grant a same-sex divorce, as the state views the marriage as unlawful from the start.  Therefore, the same-sex couple, or at least one of the spouses, must return to the state where they got married.  Many states, like Wisconsin, require at least a six-month minimum residency requirement for anyone who wants to petition for divorce, so this creates more delay and financial burdens for these couples.

Clearly, same-sex divorce is not a well-defined area of law.  This means that the courts, court officials and attorneys are lacking clear answers on what courts are required to do, or should consider, when making divorce related decisions for these couples.  Therefore, many courts are requiring attorneys to do additional research and file briefs to point the court in the right direction.  Since there is additional work that is often required, not only are delays very common, but same-sex couples might pay more in attorney fees to be divorced.

More issues than the above may arise during a same-sex divorce proceeding, and it is important that you choose an attorney who is willing and able to navigate you through this relatively new and developing area of family law.   If you facing this difficult situation, call us at 414-258-1644 to schedule a free initial consultation to discuss your case.

Grandparent Rights in Wisconsin: Can I File an Action?

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Sad senior couple in parkIn Wisconsin, grandparents may be afforded the legal right to have visitation with their grandchildren. The process to obtain these rights may be difficult, therefore it is helpful to have an attorney navigate you through this process.

When the parents have been married, and have subsequently divorced, grandparents may request “reasonable visitation rights” in the existing family law action. In order to be successful in this type of action, the grandparent must successfully demonstrate three factors: (1) he/she has maintained a parent-child relationship with a child, (2) the child’s wishes to have a relationship with the grandparent, and (3) the visitation with the grandparent is found to be in the child’s best interest.

When the parents are unmarried, the grandparent may file an independent suit or petition if they have maintained a relationship with the child or have attempted to do so, but were prevented from having a relationship with the child by the child’s custodial parent. In these cases, there must be a determination of who is the father of the child (a paternity determination). If the requirements are met, then the court will consider other factors, such as the best interest of the child, the wishes of the child, and whether the grandparent will abide by decisions made by the child’s parents concerning the child’s “physical, emotional, educational or spiritual welfare,” if that grandparent is afforded visitation rights.

There are also other actions available to grandparents seeking visitation when one or both parents are deceased or when the biological grandchild has been adopted. Nelson, Krueger and Millenbach, LLC does not handle guardianship cases or adoption cases, so if this is your situation, you should seek advice from an attorney experienced in these areas of the law.

If you wish to speak with an attorney regarding grandparents rights in a divorce action or in a paternity matter, please contact Nelson, Krueger and Millenbach, LLC, at 414-258-1644 to schedule a free half-hour consultation.

Legal Separation v. Divorce in Wisconsin

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Separation agreement

When you are married and seeking a separation from your spouse, you can either file for legal separation or for divorce in Wisconsin.

Regardless of which action you decide to file, the same issues are addressed and the same “120-day waiting period” is present in both actions before a judgment can be granted. The issues addressed in both actions are custody of the children (if any), physical placement of the children (if any), child support (if there are any children of the marriage to support), property and debt division, and maintenance.  In order to file for divorce, you must be a resident of the State of Wisconsin for six (6) months.  For a legal separation, the residency requirement is thirty (30) days.

The main difference between the two actions is that a divorce ends a marriage and a legal separation does not end a marriage. When a divorce is granted, the marriage ends and the parties are advised that they cannot remarry anywhere in the world for at least six months. When a legal separation is granted, the parties are cannot marry another person while they are legally separated.

All assets and debts are still divided in either action and that division is considered final.  For all intents and purposes, a legal separation severs the financial relationship between the parties.  Therefore, after a legal separation is granted, the parties cannot create marital property or debt and they are not able to file their taxes as a married couple.

It is important to know, however, that either party may convert the legal separation into a divorce after one year from the date the legal separation was granted or sooner if both parties agree.

For all of the reasons stated above, it is also important, in both a divorce and a legal separation, to be sure that you have fully considered all of the issues and what the effect of either action will be, both financially and as it concerns your children. Finding an experienced family law attorney is the first step in that process.

If you wish to speak with an attorney about filing for legal separation or divorce, please call our office at (414) 258-1644 for a free consultation.

How Does Bankruptcy Affect an Ex-Spouse After Divorce?

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Finance series

Once your divorce is complete you expect that any financial ties you and your ex-spouse once shared are severed forever.  However, what happens when your ex-spouse defaults on a debt or files for bankruptcy and seeks to discharge debts that belonged to both of you during the marriage?  In marital property states such as Wisconsin, when a debt is incurred during the marriage, it does not matter if the debt is in one spouses name or the other.  Any debt incurred during the marriage is deemed to be a joint debt under marital property laws.   A judgment of divorce separates the debts as to the spouses, but not  as to the creditors.  If a spouse who was assigned a debt under the judgment of divorce defaults on said debt or files for bankruptcy, it is possible that the creditor will seek payment from the other spouse.   Creditors are not part of the divorce process and are not required to follow the terms laid out in the agreement.   So what do you do when a creditor comes after you for a debt that was assigned to your ex-spouse?

If you hired a proactive divorce lawyer, the answer to the problem is clearly laid out in your Judgment of Divorce.  A well thought out Marital Settlement Agreement will have language dealing with this type of situation.   Should a spouse default on a debt, then the Judgment of Divorce should have language which will allow you to seek remedies from your ex-spouse in family court.   Understand, this does not sever the responsibility you have to the creditor, but it will require your ex-spouse to pay you so you can pay the creditor.   Therefore, if a debt is discharged in bankruptcy and the creditor starts collection efforts against the non-bankrupt spouse, the non-bankrupt spouse can go back to family court to obtain an order for the bankrupt spouse to pay the discharged debt.   In Wisconsin, the court will often order maintenance or “spousal support” to assist you in re-paying the debt which was the responsibility of your ex-spouse.  If your divorce decree is silent with regard to this situation, you can file a contempt action against your ex-spouse in hopes of recovering the money you have to pay the creditor.

To further protect ex-spouses, the Bankruptcy Code was modified in 2005 which changed the type of debt that can be discharged.  Under the new law, if your ex-spouse filed a Chapter 7, a debt owed to a spouse that resulted from a Judgment of Divorce or any subsequent court order may not be discharged (i.e. property division, spousal support, child support arrears, payment towards children’s medical bills).

If a Chapter 13 is filed and completed, the rules are different and you must consult with a bankruptcy attorney to determine how your debt is affected.    If you find yourself in this situation where your ex-spouse files for bankruptcy, you may want to consult with a bankruptcy lawyer to confirm the whether your particular debt is dischargeable.

There are also times where as a result of a post-judgment motion the court orders your ex-spouse to pay you an amount of money as a result of a motion for clarification, contempt or reconsideration of the orders.  For instance, a court may order your ex-spouse to reimburse you for expenses related to the sale of a home or other asset, reimbursement for variable costs or even attorney fees.  Your ex-spouse will not be able to discharge these debts in Chapter 7 bankruptcy (the rules may be different for Chapter 13) and he or she will still owe you the debt after the bankruptcy.  It may be necessary to file a motion in family court to ensure your ex-spouse is specifically aware that his or her responsibility still exists.

Should you find yourself in a situation where a creditor is attempting collections from you and the debt is your ex-spouses responsibility under the Judgment of Divorce, contact Nelson, Krueger & Millenbach at 414-258-1644 to schedule a free initial office consultation to discuss your situation and options.

How to Speak with Children About Divorce

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When you are going through a divorce, it is easy to become distracted by your own emotions and forget that your children are being effected as well.

Linda Hassan Anderson, Vice President of KinderCare, wrote a blog which highlights what parents should do when talking with children about divorce.  Among her suggestions were the following tips:

  1. Talk to your children together. Approaching your children about your divorce through a united front will show the children that even if you are not able to continue the marriage, you are able to continue co-parenting your children.
  2. Consider the timing and place you tell your children about the divorce.  They will remember the conversation and how they were told, so a private and familiar location is best.
  3. Answer the questions that you can.  You may not have an answer for everything the children are concerned or confused about, but be on the same page with how you will answer questions.  Less is more when it comes to the details of your divorce, however honest simple answers can help the children process what is going on.
  4. Give your children space and time to process, while still checking with them.  The children will also experience many different emotions throughout the divorce process and after, so it is important to acknowledge and assure the children that it is okay for them to have the feelings that they are experiencing.  If your children experience depression or just need someone outside of the family to speak with, counseling or therapy may be a helpful outlet for them.

Following the above tips and assuring your children that you love them, may help ease the pain of the divorce the process and help the children adjust.  For assistance on how, when and what to tell your children regarding your divorce, it is worth considering meeting with a child specialist or co-parent counselor.

Additionally, if you wish to speak with an attorney to help you navigate your divorce, please contact our office at 414-258-1644 to schedule a free initial office consultation or visit our website for more information.

 

Custodial Issues Regarding School in Wisconsin

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Legal custody can be granted to one parent or both parents.  The court may award joint legal custody to both parents or sole custody to one parent.

The presumption in Wisconsin is that joint legal custody is in the best interests of the child.  Joint legal custody provides both parents an equal opportunity and responsibility to make decisions for the child.  For parents who have joint legal custody, no one parent’s decision is superior to the other parent.  In cases where there is domestic abuse, severe drug or alcohol abuse, mental health issues, or other serious situations where the parties cannot communicate, one parent may be awarded sole legal custody.  The court is very hesitant to grant sole custody unless there is compelling evidence presented that shows eliminating decision-making rights for one parent is in the best interest for the child.

In some cases, the court may award joint legal custody with one parent having final decision making for all or some of the custodial decisions. This is sometimes referred to as “veiled sole custody,” and therefore is not popular with the court unless good reason is given for the request.

Major decisions include, but are not limited to, consent to marry, consent to enter military service, consent to obtain a driver’s licenses, authorization for non-emergency health care, and choice of school or religion.

One of the most controversial custodial decisions is school choice.  When parents no longer reside together, or never did reside together, there are often geographical issues that naturally arise that affect school choice.  For example, one parent may reside in the marital home and in the district where the children have been going to school for a number of years, while the other parent has moved to another county where they believe the children would receive a better education or be afforded better opportunities.  When the parents cannot agree on where the child should go to school, it is likely the court will appoint a Guardian ad Litem to address this issue.  The Guardian ad Litem’s job is to make a recommendation to the court of what he/she believes is in the best interest of the child.

Taking one example, if one parent is exercising primary placement of the child and has been the school placement parent since the parents split up, the court is likely to find it is in the best interest of the child to continue the current placement schedule.  However, if the school placement parent’s work hours change and that parent can no longer take the children to and from school and be there for the children after school, there may be reason for the court to find that a school change would be appropriate and in the best interests of the child.

The court is required to consider a number of factors when deciding the appropriate custodial arrangement for a family.  The extensive list of the required factors is the following:  the wishes of the child’s parents, the wishes of the child, the interaction and relationship with all members of the child’s family, the amount and quality of time that each parent has spent with the child in the past, any necessary changes to the parents’ custodial roles and any reasonable life-style changes that a parent proposes to make to be able to spend time with the child in the future, the child’s adjustment to the home, school, religion and community, the age of the child and the child’s developmental and educational needs at different ages, whether the mental or physical health of a party, minor child, or other person living in a proposed custodial household negatively affects the child’s intellectual, physical, or emotional well-being, the need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child, the availability of public or private child care services, the cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party, Whether each party can support the other party’s relationship with the child, including encouraging and facilitating frequent and continuing contact with the child, or whether one party is likely to unreasonably interfere with the child’s continuing relationship with the other party, whether there is evidence that a party engaged in abuse, whether a parent’s significant other, or person residing with them has a criminal record, has engaged in abuse of the child or any other child or neglected the child or any other child, has engaged in interspousal battery, has a significant problem with alcohol or drug abuse, the reports of appropriate professionals if admitted into evidence and such other factors as the court may in each individual case determine to be relevant.

When the court is consider making a school choice decision, there are usually a number of other considerations included in a court’s ultimate determination.  For example, 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 aforementioned is not an exhaustive list of what the court can and will consider, but includes some common considerations.

Please note, while many parties focus on school ratings, the court does not typically focus on same.  The reason being, the evidence brought forward regarding school ratings (unless very drastic) is often being used by the parents to further a different underlying motivation for the school change.

Please be advised, if the school you wish to have your child attend would require you to move more than 150 miles for more than 90 days, then you have to notify the other party and wait to see if the other party objects to same.  For more information on this specific topic, please see our blog about  moving with a child at https://wisconsinfamilylaw.info/category/custody-and-placement/.

Same-sex Marriage in Wisconsin

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On June 6, 2014, Federal Judge Barbara Crabb found that the Wisconsin Constitutional Amendment prohibiting same sex marriage is unconstitutional under the US Constitution.  The question then arose: Did Wisconsin join the sixteen other states in the US legalizing gay marriage?  The answer to that question is now unclear.

Immediately following Judge Crabb’s decision, many same sex couples in some Wisconsin counties flooded the courthouse, obtained marriage licenses and married.  The status of those marriages are now in question based on the subsequent court decisions that followed.

One week after Judge Crabb’s initial decision was made, however, while she affirmed her ruling, she stayed the decision pending appeals. This means that the judge essentially put her order regarding the unconstitutionality of the Wisconsin prohibition on same sex marriages “on hold” while the party who does not agree with the order appeals to the higher court.

The political and personal controversy has sparked interest in many Wisconsin residents, however, it is the legal effects of this decision that has piqued the interest of family lawyers around the state.

Statistics say that over 550 same-sex Wisconsin couples wed during the week that the same-sex marriage ban was lifted and not yet “put on hold” by the Judge who made the ruling. Now that the order is stayed, many are concerned about the legal limbo regarding the status of these couples’ marriages.  The courts have yet to decide whether or not the marriages that occurred during that one week are, in fact, valid.

Some of the major issues that these couples will face while this appeal is pending is how to file state and federal income taxes, how to deal with pensions, if same-sex couples can provide for each other on their health insurance policies, can they adopt children together and if they are able to file for divorce or an annulment.

Without having a decision on whether their marriages are valid, these couples may be uncertain of their rights and obligations under the law. In turn, family law attorneys may also be uncertain on the best way to advise these parties when legal issues arise in any of these 550+ same-sex marriages, especially, if any of these couples decide to separate.

While it is exciting to see law-in-action, it may be stressful for the couples and families involved.  Eventually, we will have a final decision to all of these questions.  In the meantime, we all must wait to follow the law as it develops.

Mediation in a Divorce

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What is mediation?      

Mediation is a non-binding process that allows parties to be more in control of the decisions made during your divorce.  They sit down with a “neutral” person (the mediator) to discuss and, hopefully, resolve any outstanding issues.  If the parties have attorneys, their attorneys are usually involved in this process as well; except in Wisconsin, attorneys are not usually involved in custody and placement mediation.

Since mediation is a non-binding process, decisions cannot be imposed on the parties, as they can and will be by the judge in a court trial.  In mediation, decisions are only made if the parties voluntarily agree to them.

How do you choose a mediator?

The parties can engage in private mediation which is typically conducted by an attorney or former judge who is trained and experienced in the mediation process.  The parties can agree to a mediator or the court can appoint someone.

What does a mediator do?

It is the mediator’s job to facilitate communication, discuss possible proposals with the parties, explain what the court will likely do regarding certain issues, re-focus the parties if they get off track, and ultimately attempt to resolve the outstanding issues.

How does mediation work?

There are two main types of mediation: facilitative mediation and evaluative mediation.  The kind of mediation you choose determines how your mediation will work.

Facilitative mediation is where the mediator encourages and provides a respectful place for communication between the parties.  The mediator works to help each party consider and understand the other party’s position.  The mediator then assists the parties in coming together to reach a compromise and agreement that is acceptable to both of them.

Evaluative mediation is where the mediator reviews each party’s side and position prior to the mediation and provides an assessment of the issues along with possible reasonable compromises to resolve the matter.  This type of mediation is often conducted by a former judge or court commissioner which can be very helpful. Again, since this is a non-binding process, the parties are free to accept or reject the proposed settlement.

The parties and the mediator usually meet at mutually agreed upon or neutral site (the mediator’s office, if they have one, or the office of one of the attorneys).  Mediation can be conducted with all parties in the same room or the parties can split into different rooms and the mediator goes back and forth between them (called caucusing).  This would depend on the requests of the parties or the determination of the mediator as to what would work best given the circumstances in that particular case.

What topics will be covered during mediation?

This depends the issues unresolved in your particular case.  The parties can also decide on which issues to focus on in mediation. The topics covered during mediation include, but are not limited to: distribution of property (assets/liabilities), division of personal property (such as furniture and other household items), child custody and physical placement of the children, child support, maintenance (spousal support).

When can you request mediation during a divorce process?

It is important to know that mediation can be used at any stage of a divorce process.  Parties can use mediation as a first step when the parties have outlined the issues to be discussed. Most often, though, parties engage in mediation towards the end of a case as an alternative to trial to resolve any remaining issues that still exist after negotiation and compromise have failed. At this stage, mediation is frequently ordered by the Court. And, although uncommon, parties can even choose to interrupt litigation to explore the possibility of settlement (if permission is so granted by the presiding judge).

What happens if mediation works?

If mediation works, then the drafting attorney (typically the petitioner’s attorney) will add the agreements into your Marital Settlement Agreement and have the parties sign their approval.  When the outstanding issues in a divorce are all resolved prior to trial, the parties need only appear in court for a “Stipulated Divorce Hearing.”  This is a quick hearing where the Judge finalizes the divorce by asking (his/herself or by the party’s attorney) a series of questions to ensure that the agreement is fair, reasonable, and acceptable to both parties.

What happens if mediation doesn’t work?

Typically mediation is unsuccessful because of one or both parties’ inability and unwillingness to cooperate to try to resolve the outstanding issues.  However, in some cases a party may act in bad faith or not disclose or admit key facts that are crucial to resolving issues which can make mediation appropriately unsuccessful.  If mediation is unsuccessful, the parties will then have to prepare for trial or attempt to resolve the outstanding issues with the help of their attorneys.  It is important to note, the fact that mediation was unsuccessful will be relayed to the Judge at trial, however the details of your mediation will not be exposed.

What are the benefits of mediation?

  1. Confidential: Since mediation is confidential, it promotes open communication between the parties without the fear of it being used against you in court.  Of course, this is not a reason to be disrespectful to the other party (as the mediator will often choose to end hostile mediations); however, it does allow the parties to truly express what they hope to achieve as an ultimate result in their divorce.
  1. Control: The advantage of mediation in a divorce is that it allows you and your soon-to-be ex-spouse more control in the outcome. During mediation, the parties are encouraged to participate and communicate what they hope to accomplish with each other.  The goal is that the parties are able to work together to make the best decision for their family. Whether it is just for a couple and involves only real and personal property, or whether it involves children as well, the parties are the best people to make decisions about their lives.
  1. Cost-effective: While there is a cost associated with mediation, it is almost always more cost effective than a trial on the unresolved issues.  Though there is preparation involved for mediation, it is not typically to the extent of trial.  One example where parties can save costs are in witness preparation and fees.  Even if there are no witnesses to prepare, preparing a client to appear on the stand during a divorce trial takes time and costs the client money.
  1. Time efficient: Mediations are often scheduled well before a trial is scheduled on a matter.  This allows the parties to have finality much sooner than they may have if they waited for a Judge to decide the issues.

What are the downfalls of mediation?

For many of the same reasons that mediation is beneficial, it can also be frustrating.  Bad behavior during mediation cannot be disclosed at the time of trial because of the confidentiality.   As stated above, in cases where the other party is acting in bad faith and being deceitful, mediation is not likely appropriate and not likely to result in resolution.  Also, if mediation is unsuccessful, the parties have then spent additional money they could have used towards trial costs.

As you are going through a divorce it is important to explore all of the options available to you in order to resolve your case, including mediation.  The attorneys at our firm have experience in participating in mediation and are able to determine if and when mediation is appropriate in a specific case.  If you are looking for a divorce attorney who will consider mediation and help navigate you through your divorce, please call Nelson, Krueger & Millenbach, LLC at 414-258-1644 or visit our website at www.nkmfamilylaw.com.

Can I Move Out of State With My Child in Wisconsin?

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***NOTE:  THE LAW IN WISCONSIN HAS CHANGED. PLEASE SEE OUR UPDATED BLOG POST ON THIS TOPIC:  New Wisconsin Statute Changes Procedure s to Move a Child’s Residence

The law in Wisconsin is that you cannot move with your child(ren) more than 150 miles from your residence or out of state without providing notice to the other parent, with a divorce or paternity case pending.  The exception to this is if the other parent does NOT have visitation or placement rights which, of course, is rare.

You must provide sixty (60) days advance written notice to the other parent explaining when and where you intend to move and the reasons for said move.  Make sure you have some proof of notice such as a certified mail receipt.  If the other parent objects, he or she can file an objection with the court but must do so within fifteen (15) days of receiving your notice. It is wise to make no definite plans to move until you learn whether or not the other parent will object.

If there is an objection, the court can prevent the child(ren) from moving. The law in Wisconsin is somewhat complicated but states that the court can either prevent the move or modify the custody and placement provisions if the court finds all of the following:

∙ The modification is in the best interest of the child.
∙ The move or removal will result in a substantial change of circumstances since the entry of the last order affecting legal custody or the last order substantially affecting physical placement.

This means that the court could award placement/custody to the other party if you move. It would depend on what type of relationship the other parent has with your children and how much he/she sees the children but the court could transfer custody and/or placement to him or her if the court believes it would be in the best interests of the children.

The court arrives at this decision by considering the following factors:
∙ Whether the purpose of the proposed action is reasonable.
∙ The nature and extent of the child’s relationship with the other parent and the disruption to that relationship which the proposed action may cause.
∙ The availability of alternative arrangements to foster and continue the child’s relationship with and access to the other parent.

If you wish to move less than 150 miles away, your current placement schedule may still be affected. For example, the current placement schedule may not be workable due to the distance and either party may ask the court to modify the placement schedule based on a substantial change in circumstances. However, the court could still determine that it is not in the best interests of the children to move and/or change schools. Therefore, if the other parent’s residency permits, the court could still award placement to the other parent so that the children could remain in their current school district. Again, it is best to wait to make definite plans until you can be sure the other parent agrees or the court will agree that the children may move and change schools.

To be clear, YOU can always move. The question of whether you can move with your child, however, is one that must be decided by the court after following the steps described above.

If there is no divorce or paternity case pending or a judgment previously entered, there are no restrictions on a move.  However, you should note that (a) you cannot conceal the whereabouts of a child from the other parent and (b) the other parent could always file an action and then request that the child be returned to the State of Wisconsin.  If you are concerned about this type of situation, it would best to speak to an experienced family law attorney about the facts of your case.

If you have any questions regarding moving with your child(ren), please contact our office at 414-258-1644 to schedule a free initial office consultation or visit our website for more information.

What if I Am Unhappy With My Current Divorce Attorney?

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If you are not satisfied or unhappy with your current attorney, you may have the option to hire a new attorney who would “substitute” into a case for your current attorney.

Typically, an unhappy client seeks new counsel while their current attorney is still retained. Clients seek new counsel for a number of reasons. One of the most common is because the client believes there has been a breakdown in the communication or relationship with their current attorney. The client then seeks the advice and counsel of a new attorney and if the client believes the new attorney would provide more suitable counsel, then they can hire this new attorney and the new attorney is “substituted” for the current attorney.

In Wisconsin, there is a formal process that your current attorney and the new attorney must go through in order to complete the substitution. A Substitution of Attorneys agreement is required. This agreement, or stipulation, must be signed by both the client and the former attorney and is typically prepared by the new attorney. If the client wishes, they do not need to communicate with their prior attorney at all. This can be handled strictly by the old and new attorney. However, the client can certainly tell their current attorney directly that they wish to substitute attorneys as well. Once this form is signed, it must be sent to the court and the court must also approve the substitution.

It is important to note that even if a substitution is approved by the client’s current attorney and then ultimately by the court, the client still must resolve all fees and costs associated with their prior attorney. In Wisconsin,  the previous attorney is entitled to a judgment for outstanding fees against client when a substitution occurs and sometimes they demand that this is stated in the Substitution of Attorneys form prior to signing same.

Also, there are instances where the court will not approve a substitution. For example, if there is an upcoming trial date and the new attorney would need an adjournment to give them time to prepare. Or, if there have been too many substitutions in the case already.

It is also important to note that there are drawbacks to substituting attorneys. The drawbacks include that a new attorney has to learn your case, essentially starting over, whereas your current attorney has your complete file and is more familiar with your case history. There are also costs associated with a new attorney: retainer fees, costs for having to have your file copied, and costs for completing the formal process of substituting the attorneys.

Despite the above drawbacks, creating and maintaining a healthy and working client/attorney relationship as you navigate through your case is often superior to the costs and drawbacks.

If you have any questions regarding substitution of attorneys or if you are seeking new counsel, please contact our office at 414-258-1644 to schedule a free initial office consultation or visit our website for more information.

Girl Sues Parents for Support

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In recent news, Rachel Canning, an eighteen-year-old high school senior from New Jersey, sued her parents for cutting her off financially. Specifically, she is alleging that her parents emotionally abused her to the point that she had to leave the family home and that since leaving the home she is unable to support herself financially.

Ms. Canning is asking the court to order her parents to pay the remaining tuition for her last semester at her private high school, pay her current living and transportation expenses, commit to paying her college tuition and pay her legal fees for having to take legal action.

On the other side, her parents state that there has been no emotional abuse, and that this is simply a case where a teenager did not want to obey the house rules, so she ran away.

Staff from New Jersey’s Division of Child Protection and Permanency (DCPP) investigated this matter and ultimately determined that allegation of emotional abuse was unfounded.

The Judge found no such ground to make a ruling in Ms. Canning’s favor at this stage in this case. The Judge denied the request for the last semester of high school tuition because the school agreed to allow her to continue despite her parents nonpayment. Additionally, the Judge denied the request for immediate financial assistance, as he did not believe this was an emergency situation.

The matter is not over however, and the Judge indicated that he would make further decisions at the next hearing.

In New Jersey, emancipation is the legal act by which a child is released from both the control and support of a parent. In essence, parents have a legal responsibility to support their child until the child has “left the scope of his or her parents’ authority.” See CNN article here.

In Wisconsin, there is no “legal emancipation,” except if the minor is married; however, a minor can take action for support against his/her parents. Parents have a legal responsibility to support their child who is less than 18 years old, or who is less than 19 years old if the child is pursuing an accredited course of instruction leading to the acquisition of a high school diploma or its equivalent.

Despite the states differences on actions that children can take and the remedies available, the New Jersey case highlights an interesting point to all about parenting decisions and minors’ rights to support.

Cases like the New Jersey case, where a child is seeking support or in similar cases where someone is seeking support for a child, are filed in Wisconsin as post-judgment motions to modify child support. If you or someone you know have any questions regarding post-judgment child support related issues, please contact our office at 414-258-1644 to schedule a free initial office consultation or visit our website for more information.

Child Support for High Income Payers in the News in Wisconsin

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In recent Wisconsin news, a local resident Michael Eisenga is accused of helping a Wisconsin state legislator (Representative Joel Kleefisch) write a controversial bill that would benefit high income child support payers and, specifically, himself.

As reported in the Milwaukee Journal Sentinel on January 11, 2014 (see article here), the timing of the bill, the drafting contributions from Eisenga, and the financial contribution from Eisenga to the drafter, are drawing the most negative attention from the press. The bill was presented just two months after Eisenga’s most recent attempt to lower his child support payment. According to the above article, Eisenga has attempted several times in the past and been unsuccessful. Additionally, the article listed above states “in a set of drafting documents, Eisenga and his attorney, William A. Smiley, can be seen offering line-by-line instructions in emails, notes and letters to Rep. Joel Kleefisch’s staff on a bill aimed at capping how much high earners pay in child support.” Last, but not least, the article exposes Eisenga as a major contributor to Representative Joel Kleefisch, the Wisconsin state legislator who drafted the bill and to his wife, Lieutenant Governor Rebecca Kleefisch.

Regardless of the motivation of this bill, the impact of a bill like this has drawn a significant amount of attention of family law attorneys and people affected by child support laws.

In Wisconsin, a child support award must be set based on a percentage of the payer’s gross income, except for in certain circumstances when the court may deviate from these percentage standards based on certain factors set forth in the statute. The “normal” child support obligations are as follows for income up to $7,000 per month:

17% for one child
25% for 2 children
29% for 3 children
31% for 4 children
34% for 5 or more children

However, our child support system also allows for a deviation from the standard percentage amount of child support in the event a payer has high income. The higher the income, the more credit a payor may receive in the amount of child support he or she may have to pay. For example, if a payer’s monthly income available for child support is greater than or equal to $7,000 and less than or equal to $12,500, the percentage guidelines for that amount of income change to:

14% for one child
20% for 2 children
23% for 3 children
25% for 4 children
27% for 5 or more children

If payer’s monthly income available for child support is greater than $12,500, the percentage guidelines change to:

10% for one child
15% for 2 children
17% for 3 children
19% for 4 children
20% for 5 or more children

For example, if a payer has 2 children and gross monthly income of $13,000 per month, he or she would owe $1,750 (25% of $7,000 of income), $1,100 (20% of income between $7,000 and $12,500) and $85 (15% of $500 of additional income over $12,500), for a total of $2,935 per month.

The proposed bill Eisenga desired would have capped the income from which a percentage is drawn for child support at $150,000 per year. This would have taken away the discretion of the court in these high-income cases to determine support and also would have given a substantial break to high income earners by capping income available for support.  Making such a modification to the current child support system (which has no cap) would sharply limit the amount of support paid by the highest income earners in Wisconsin.

The bill has since been withdrawn by Representative Joel Kleefisch and therefore the current child support laws remain as is. However, given the press regarding this proposed bill, both positive and negative, it is likely that a bill regarding this issue will surface again in the future.

“Til Death Do Us Part?” Long Term Marriages and Divorce in Wisconsin.

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It is becoming more common that people fifty and older are getting divorced. There are a number of reasons for this, including that people are living longer and the negative image of divorcees’ has diminished. Divorce is no longer “unacceptable,” and “immoral.” Therefore, “til death do us part” seems to no longer be the requirement for many baby boomers who are unhappy in their marriages.

In Wisconsin, it is important to know that no matter your age, you have the option to get divorced. Wisconsin is a no fault state, and therefore, after staying married for your children or grandchildren, if you have decided your marriage is no longer for you, you have options.

When you get divorced after a long-term marriage (typically twenty years or more is considered long-term), finances are typically commingled, so this can complicate the divorce with arguments stemming around marital property/debt and maintenance (“spousal support”). In fact, maintenance is the most common dispute in a divorce with a long term marriage. What can simplify these later aged divorces, however, is that often there are no longer any minor children of the marriage.

Regardless of your age or your situation, it is always wise to seek legal counsel before you file for divorce. If you have any questions regarding divorce, please contact our office at 414-258-1644 to schedule a free initial office consultation or visit our website for more information.

Holiday Placement with Children

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With the holiday season upon us, we often see placement disputes.  It is important to follow your judgment of divorce or paternity when it comes to holiday placement.  The holiday schedule set forth in the court order takes precedence over regularly scheduled placement and should be followed except upon mutual agreement.

If you do not have a specific holiday schedule, the courts typically find that holidays should alternate which means whoever had the last holiday has the next upcoming holiday.  Christmas Eve and Christmas Day are separate holidays and each parent should see the children on one of those days.  The same is true with New Year’s Eve and New Year’s Day.  However, if the family of one parent has a typical tradition (i.e. always Christmas Eve), then that parent should receive that holiday assuming the other parent also doesn’t have family traditions on that day.

Please keep in mind that in disputes, the children are the ones who suffer.  They have the right to spend holidays with both parents and to see and spend time with both sides of their families.

Happy holidays to you.

Wisconsin Legislators Taking on the Issue of Revenge Porn

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Revenge Porn refers to the practice of ex-lovers or ex-spouses sending or posting compromising or romantic photos of their former significant other to a (or multiple) third party in order to humiliate that person. This practice has become alarmingly popular on social media networks and electronic communication.

This is something that family lawyers see all too often in cases. Ex-lovers or ex-spouses sparring with each other over social media, and crossing the line of exposing personal and private moments. Most often we see instances where the photographs were consensual photographs when taken, however when the parties break-up, they are used to harm someone. Obviously, this is without consent of the harmed party. While we vehemently advise clients against engaging in this practice for many reasons, there is no current law that deals with this issue.

Wisconsin lawmakers are looking to change that.

Under current law, anyone who possesses, reproduces or distributes an image of a nude person that was captured without that person’s consent faces a felony charge that carries a maximum sentence of $10,000 in fines and three-and-a-half years in prison. This is seen in family law cases of, for example, stalking and restraining orders.

Under the “Revenge porn bill”, anyone who disseminates a nude picture without the subject’s consent, regardless of whether the subject granted consent to capture the image, would be guilty of a misdemeanor punishable by up to $10,000 in fines and nine months in jail. This bill, if signed into law, would prohibit the specific instance discussed above.

On Tuesday, November 12, 2013, the Wisconsin Assembly passed this proposed law with ease. The state Senate will review the Revenge porn bill next, but not until after the new year.

Prohibited by law or not, we strongly discourage ex-lovers and ex-spouses from using private photos against each other, even if they were consensual photos when taken. Participating in revenge porn, or other harmful social media practices could effect custody and placement determinations by the court. Please see our previous blog for more on related social media issues in family law.

How Do You Modify Custody or Placement in Your Divorce or Paternity Judgment?

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Often times the circumstances surrounding the agreements made at the time of your divorce do not remain the same indefinitely. This is especially the case when children are involved.

There are specific time limits that must be followed in order to modify your Divorce or Paternity Judgment accurately. A final judgment may be modified for different reasons at different times. A “final judgment,” for the purposes of requesting a modification, in a divorce proceeding includes the Findings of Fact, Conclusions of Law and Judgment of Divorce and a Marital Settlement Agreement. For a paternity case, it includes the Findings of Fact, Conclusions of Law and Judgment of Paternity.

If you want to modify custody (decision-making rights) and physical placement for your child and it is within two years of the final judgment on your paternity or divorce case, you will need to file a Motion to Modify with the court, and it is your burden to show by substantial evidence that the current custody and physical placement is harmful to the physically or emotionally harmful to the best interest of the child.

After two years has passed from the final judgment, you can file a Motion to Modify with the court if there has been a substantial change of circumstances since the entry of the last order affecting legal custody or the last order substantially affecting physical placement , and modifying the current order is in the best interest of the child.

A “substantial change of circumstance” can include, but is not limited to: a considerable change in either spouse’s income or employment status, a new health problem which impacts the ability to work, moving to a new location, and substance abuse problems or criminal activity.

If your final judgment is no longer current and new circumstances warrant a modification, please contact Nelson, Krueger and Millenbach, LLC, to discuss your case with an experienced family law attorney.

What if I Married my Spouse Twice? How Does that Affect Maintenance in Wisconsin?

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Maintenance, or spousal support, is most often ordered by the court from one spouse to another when one spouse was financially dependent on the other during the marriage.

Typically, maintenance is intended to be “rehabilitative” and used to help the financially dependent spouse work towards a place where he/she can support his/herself.

Factors that the court considers when determining the appropriate maintenance amount are the following:

  1. The length of the marriage.
  2. The age and physical and emotional health of the parties.
  3. The division of property made in the divorce.
  4.  The educational level of each party at the time of marriage and at the time the action is commenced.
  5. The earning capacity of the party seeking maintenance, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to find appropriate employment.
  6. The feasibility that the party seeking maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and, if so, the length of time necessary to achieve this goal.
  7. The tax consequences to each party.
  8. Any mutual agreement made by the parties before or during the marriage, according to the terms of which one party has made financial or service contributions to the other with the expectation of reciprocation or other compensation in the future, where such repayment has not been made, or any mutual agreement made by the parties before or during the marriage concerning any arrangement for the financial support of the parties.
  9. The contribution by one party to the education, training or increased earning power of the other.
  10.  Such other factors as the court may in each individual case determine to be relevant.

Length of the marriage is one of the main factors used in determining maintenance, so it prompts the question, what happens if you marry the same person more than once? This may seem like a unique circumstance, but in our line of work we see situations like this more often than you would think.

When parties have been married to each other more than once, the court can look at the total years of marriage when determining the maintenance amount granted. The court may look to current conditions in determining maintenance, as it is not legally bound by the terms of the first divorce.

Please note, if an ex who is receiving maintenance payments (“payee”) remarries another person who is not a former spouse, maintenance ends automatically under Wisconsin law if the person obligated to make payments: (1) has proof of remarriage, (2) requests that the court vacate the current maintenance order, and (3) sends a copy of the request to the payee.

If you have any questions regarding maintenance, please contact our office at 414-258-1644 to schedule a free initial office consultation or visit our website for more information.