Gray Divorce – What Is It and Why Is It Making Headlines?

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I ran across several articles recently discussing “gray divorces”.  Apparently, the Wall Street Journal published a recent article discussing the increasing rate of divorces among couples 50+: “Though overall national divorce rates have declined since spiking in the 1980s, ‘gray divorce’ has risen to its highest level on record….In 1990, only one in 10 people who got divorced was 50 or older; by 2009, the number was roughly one in four. More than 600,000 people ages 50 and older got divorced in 2009,” the paper reported.  (See article here).

The article also cites a 2004 national survey conducted by AARP which found that women are the ones initiating most of these breakups. Among divorces by people ages 40-69, the survey found that women reported seeking the split 66% of the time.  The article speculates that this trend reflect the boomer generation’s desire for self-fulfillment.   “With the children out of the house and the realization one may have twenty five or more years of life, women often decide they want to strike out on their own and find greater personal satisfaction. “

While this may all be true, the reasons anyone seeks a divorce, including older people, are complicated and numerous.  Also, we find that women are in the majority of those filing for divorce, regardless of age and regardless of the reasons.  Even if the men are the instigators of the divorce, through infidelity or other issues, women tend to be the filing party because they are concerned about protecting the children, assets, or making sure they have enough to live on.  Therefore, it is not so easy to pinpoint the causes of divorce in any type of situation.

With that said, we do find that the largest group of people seeking divorce tend to be those married twenty (20) years or more.   Because the marriage is longer, this opens the door to many issues such as maintenance (alimony), more assets, more debts, etc.  These divorces tend to be among the most complicated.  If you are seeking a divorce, you should contact an experienced divorce attorney to determine what issues you may face and the potential outcomes to assist you in making this very important decision.

To discuss a potential divorce and what it may mean for you, call our office at 414-258-1644 to schedule a free initial office consultation or visit our website for more information.

–Teri M Nelson

What is the Difference Between Sole Legal Custody and Joint Legal Custody of My Children?

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In Wisconsin, legal custody means the ability or authority to make all major decisions making concerning a minor child.  For example, the consent to marry, consent to enter military service, consent to obtain a motor vehicle operator’s license, authorization for non-emergency health care and choice of school and religion).  The emphasis is on “major” and parties usually face these types of decisions over where the children will attend school or daycare and major medical decisions such as medication and elective surgery.

The presumption in Wisconsin is for joint legal custody.  This means most of the time, the court will order joint custody over the minor children.  If the parties have joint legal custody of a child, both parties must jointly agree on all major decisions.   However, with respect to the right to make routine daily decisions regarding the child’s care, the party who has physical placement of the child at the time the decision is to be made.

Parents often argue or disagree about such things as haircuts, clothing, whether to give children over-the-counter medications, bed times, homework, non-physical discipline or punishments, etc.  Unfortunately, these are not considered to be major decisions and, therefore, there is no easy way to resolve those types of disputes.  Each parent has the right to make decisions regarding those “minor” issues when the children are in his or her placement.

If a party is awarded sole (full) legal custody of a minor child, they do not have to obtain permission from the other parent.  However, it is not very common for a party to be awarded sole custody.  The only time this occurs is if a parent is unwilling or unable to performing parental duties, if there is a compelling reason not to award joint custody or if the parties are unable to cooperate in the future.  Common examples of some reasons a court would order sole custody include drug or alcohol addiction, incarceration, abuse of the child or other parent, mental illness or simply being absent such as parents who are uninvolved or live out of the state.

To discuss your case and your custody questions, contact us at 414-258-1644 to schedule a free initial office consultation or visit our website at Nelson, Krueger & Millenbach, LLC for more information.

Why All Divorce Lawyers Aren’t the Same… and Why it Matters to You

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If you are just starting the process of a divorce, you might be feeling a bit overwhelmed and frustrated. Your first impulse might be to find a great divorce lawyer with reasonable fees who can help you through the process and just get started right away.

That’s understandable, but it can also lead to big problems later.

Navigating the legal framework of a divorce is a lot more complicated than filling out forms, and there are many different ways to approach the process. Even the best divorce lawyers can have very different strategies and methods. More than that, working with one or the other can entail big differences in costs, stress, and even damage to your future relationships with your ex-spouse and children.

To put it another way, not all divorce lawyers are the same, and the differences are important to understand. Here are a few things to keep in mind:

Divorce attorneys can have very different strategies

Some divorce lawyers are great at protecting assets, while others are experts in securing things like child custody and placement. To find the right match for your situation, consider what your biggest priorities are, and then try to find divorce attorneys who have matching experience. Once you meet with them, get a sense of what their legal strategy is like, and how that might affect your divorce proceedings.

It’s important to agree with your divorce lawyer’s negotiation style

Although there will undoubtedly be attorneys acting as middlemen, your divorce lawyer is essentially helping you to negotiate against your former spouse. That can be an emotionally draining process, and one that leads to poor decisions if it isn’t handled properly. For that reason, it’s important that your divorce lawyer have a negotiation style (no matter how aggressive or consolatory) that you agree with and support.

You may want a divorce lawyer with trial experience

Once things go to a courtroom, the entire dynamic of a divorce proceeding can change, and you’ll want a divorce attorney who’s comfortable in that environment. A divorce lawyer with trial experience will know how to manage emotions, make a favorable impression of the judge, and generally ensure that your best case is being put forward.

You don’t want to have a personality conflict with your divorce lawyer

You don’t have to like your divorce lawyer, but it is a good idea to choose one who doesn’t have a personality that clashes with your own, or one who doesn’t seem sympathetic to your situation. Whatever the outcome of your divorce proceedings are, it’s likely that they’ll continue to affect you for a very long time to come, so don’t partner up with a divorce attorney who doesn’t seem like a good match for your personality.

New clients are often surprised at the big differences that can exist between different divorce lawyers and the types of cases they handle. It might seem like a lot to take in at a particularly difficult and stressful time, but finding the right attorney for you is the first step toward a fast, efficient, and favorable divorce proceeding.

Are you looking for a great divorce lawyer to represent you? Call our office at 414-258-1644 to arrange a consultation today.  For more information, see Nelson, Krueger & Millenbach, LLC.

When Is It Time To Look For a Divorce Lawyer?

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Often, the need to find a good divorce lawyer is obvious: Your spouse has served you with papers, you’ve been legally separated for a while, or you just know in your heart that “it’s over.” In some situations, however, things might not be that clear. Perhaps you are concerned that your marriage might be ending, or are worried that your spouse might file for divorce in the future.

When that happens, how do you know when it’s time to look for a good divorce lawyer?

Although there might not be any one unmistakable sign, our advice would be to remember that earlier is almost always better. That is, the moment you think you might need a divorce lawyer, you should probably start discreetly looking for one.

Here are a few good reasons why:

A good divorce lawyer can help explain what you’re getting into

There is not only the legal process of filing for divorce itself, but also all of the steps that are bound to come after, including a review of your assets and financial position, custodial agreements, and negotiating with your spouse’s divorce attorney. By starting a bit earlier, you can make better long-term decisions that could turn out to be incredibly important for the rest of your life.

Finding a divorce lawyer early means you won’t have to rush to find one later

The last thing you want, if you suddenly find that you are being sued for divorce, is to have to find a divorce lawyer without having adequate time to find a lawyer you are comfortable with and ask the questions that matter to you most. As with the divorce itself, choosing a divorce lawyer isn’t a step to take lightly, so don’t procrastinate on your search if you think it might be necessary.

A good divorce lawyer can help you take steps to protect yourself

If you know, or even suspect, that a divorce is imminent, then now is the perfect time to take a look at your financial situation, living arrangements, and other details that could suddenly become very important during the divorce proceedings. There are numerous things you can do right now to protect your future (or your children’s futures) by planning ahead with your divorce attorney.

Your decision isn’t final until you file for divorce

Scheduling a meeting with a divorce attorney doesn’t necessarily mean you will ultimately have to file for divorce. It could be the case that you decide it’s not the right avenue for you, that you want to give your marriage more time, or that there are other issues to be resolved first. In any of those situations, having the facts beforehand and preparing yourself can turn out to be invaluable later – even if it’s just for your own peace of mind.

It’s understandable that lots of people don’t want to be in a rush to meet with a divorce attorney, especially if they aren’t sure about the future of their marriage. If you have reason to suspect you might need a divorce lawyer in the future, however, follow our advice and start making some preliminary plans today. If you do end up needing a good attorney, you’ll be very glad you thought ahead and got one working for you.

To schedule a free initial office consultation to discuss a possible divorce, please contact us at 414-258-1644 or visit our website for further information.

What If I Need to Hire an Expert in My Wisconsin Divorce Case?

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In a divorce case, there can often be a need to hire experts to assist with specific issues.  Those experts might help with valuing assets (real estate, a business, personal property, pension, etc.) or provide testimony regarding one party’s earning capacity or ability to parent.

In Wisconsin, the Court may appoint an expert to accomplish this or a party may hire an independent expert.  If the Court appoints an expert, the Court will determine the responsibility for the expert’s fees which is generally an equal division.  The fees for an expert hired independently by one party will be that party’s sole responsibility.

An experienced family law attorney will assist you with finding the right expert for your needs.  There are often lists of experts regularly appointed by the Court in a given county.  These lists can be made available to family law attorneys and are very helpful in us finding the best match for your expert testimony needs.

To schedule a free initial office consultation to discuss hiring an expert your divorce, please contact us at 414-258-1644 or visit us at Nelson, Krueger & Millenbach, LLC  for further information.

How Is a Business Valued in a Wisconsin Divorce Case?

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When a divorce action involves ownership of a business, the Court must determine what will happen with the business.   The first step is to determine the value of that business.   An experienced family law attorney will help you hire the appropriate expert with the necessary qualifications to value the business.   In a Wisconsin divorce case, the parties can agree on an expert o r the Court can name one expert to value the business.  A party may also hire an independent expert to value the business.  If the Court names the expert or if the parties agree to one, the parties then typically share the cost of the valuation.

The expert will provide a list of necessary documents, such as tax returns and profit/loss statements, which are needed in order to determine the business’ value.   The owner or operator of the business will be required to turn over all of those documents.  If there are assets of the business, like equipment, inventory, or vehicles, a separate expert or appraisal may be needed to determine the value of those assets.

Once the expert has determined a value of a business, the parties can use that information when dividing all of the assets in a divorce.  If a party does not agree with the value, they are free to hire their own expert to conduct an evaluation.  However, the Court ordered expert is usually given more deference at trial in terms of his or her opinion.

To schedule a free initial office consultation to discuss the valuation of a business in your divorce, please contact us at 414-258-1644 or visit us at Nelson, Krueger & Millenbach, LLC for further information.

-Alison H.S. Davis

Types of Family Actions of Wisconsin – Divorce and Alternatives

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In Wisconsin, there are three actions that affect a marriage: divorce, legal separation and annulment.  All three actions serve to end or separate a marriage.

The legal basis for a divorce is that one or both of the parties must testify that the marriage is “irretrievably broken.”  Once a 120 day waiting period passes, a Judgment of Divorce can be granted that terminates the marriage.  After six months, the divorced parties are free to remarry.  In a divorce case, property and debt is divided, maintenance (alimony) is determined, and if there are minor children, custody, placement and child support is decided.

A legal separation is similar to a divorce, except that the legal basis is that there is a “substantial breakdown of the marital relationship.  Parties must also wait 120 days before a Judgment of Legal Separation can be granted.  Like a divorce case, property and debt is divided, maintenance (alimony) is determined, and if there are minor children, custody, placement and child support is decided.  The significant difference is that a legally separated couple cannot ever remarry, unless the Judgment of Divorce is granted at a later date.

An annulment may be granted if the Court determines that the marriage was prohibited from the start (due to age of a party, incompetence, influence of drugs/alcohol, one party was already married) or that there was a “fraud to the essentials of the marriage.”  An annulment means that the marriage never occurred.

To schedule a free initial office consultation to discuss your divorce or alternatives, please contact us at 414-258-1644 or visit us at Nelson, Krueger & Millenbach, LLC for further information.

–Alison H.S. Davis

Does It Matter Who Files For Divorce in Wisconsin?

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Wisconsin is a no fault state.  This means that the only ground for divorce is irretrievable breakdown and all fault issues are largely irrelevant as to the divorce itself.  Therefore, it does not matter who files or initiates the divorce action in Wisconsin.

Further, there is really no advantage as to who files a divorce action.  There are consequences, however.  For example, the person who files the action, known as the Petitioner, has to pay the court filing fee which is close to $200.00.  Furthermore, the Petitioner is typically responsible for the preparation of the majority of the paperwork throughout the action which could possibly result in additional attorneys fees.

However, sometimes there is no choice but to file.  If a spouse is disposing of assets, refusing to pay bills, being verbally or physically abusive or engaging in other harmful activities, it is time to consult an attorney to discuss filing for divorce.

To schedule a free initial office consultation to discuss filing for divorce, please contact us at 414-258-1644 or visit us at Nelson, Krueger & Millenbach, LLC  for further information.

 

What If I Do Not Agree With the Guardian ad Litem’s (GAL) Recommendation in Wisconsin?

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When a Guardian ad Litem (GAL) makes his or her recommendation one parent is not going to be happy with the outcome.  If you are have received a less than favorable recommendation, don’t panic.  The GAL is not your judge and accordingly, will not be rendering decisions in your case.    You need to remember that the recommendation of the GAL becomes his or her “client” and therefore he or she needs to present evidence to support it.  Just like your lawyer needs to present exhibits and witnesses to support your position, the GAL needs to present evidence and witnesses to support his or her recommendation.  While judges do give GAL recommendations great weight, it is against public policy to simply rubber stamp the recommendation without a full hearing. 

The GAL should expect that a parent will respectfully challenge him or her by asking the basis for the recommendation.   The litigants have a right to see the documents and talk to the people who were the reason for the recommendation.   You also have to remember that your attorney will be afforded the opportunity to cross examine the GAL’s witnesses at trial. Therefore, if you feel that a GAL’s witness made an error your attorney can rectify that error at trial, if not before. 

It is also important to remember that a GAL should not make a final recommendation until the completion of trial.  Therefore, any recommendation made prior to trial is a “preliminary’ recommendation.   You have the ability to change the GAL’s recommendation by heeding his or her advice prior to the start of trial.  

–Rebecca K. Millenbach

What is a Guardian ad Litem in Wisconsin?

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When parents cannot reach an agreement regarding custody and placement of their children in family cases in Wisconsin, the Judge will appoint a Guardian ad Litem (or GAL. for short) to represent the best interests of the children.  The GAL is a neutral attorney selected by the Judge in a divorce, paternity or post-judgment case to advocate for the best interests of the children.  The Judge will make orders regarding the payment of GAL fees which is generally an equal division.  GAL’s bill for the time spent working on a case based on hourly rate determined by the Judge.

A GAL will review evidence and interview witnesses, including the parents, children themselves, medical professionals, teachers, etc., to form a recommendation regarding the custody and placement of the children.  This recommendation is based on what the GAL determines to be in the best interest of the children.  The recommendation is shared with the parents and the Court.  Often, this recommendation is helpful to the parents in reaching an agreement settling custody and placement issues prior to a Trial.

If the parents are unable to reach an agreement after receiving the GAL’s recommendation, the Court will schedule a Trial during which the Judge makes an ultimate decision regarding custody and placement of the children.  The GAL participates in the trial as an advocate for the best interests for the minor children.

For further details, please see us at Nelson, Krueger & Millenbach, LLC  or contact us for a free initial office consultation.

–Alison H.S. Davis

Hiring an “Aggressive” Attorney

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Whether you have finally decided to file for divorce or your spouse has just had you served with papers, the next step is to select your lawyer. You are scorned and upset and you want an attorney that will fight to the bitter end for every penny, no matter what the cost. Whether it is your assets or your kids, you want an attorney that will be aggressive, unrelenting and strong. An attorney that will fight for what you want and not stop no matter what the financial or emotional cost. You have to ask yourself, though, is this really what you want?

There are many attorneys that will fit into this mold and take advantage of your vulnerable situation. When selecting an attorney you need to make sure you have an attorney who is not only a tough advocate but also an attorney who will advise and counsel you. Too often the aggressive “pitbull” attorney will fight without knowing what exactly he or she is fighting for. In a tenuous situation, such as a divorce, parties need to stay focused on the final goal and make sure that goal is realistic. A fight just to fight may result in additional trauma to you, your kids and your pocketbook.

When searching for the right attorney you need to find an attorney who understands the law and will not lead you astray with unrealistic expectations. Attorneys who are willing to zealously advocate for your position, but are strong enough to advise you when your position will not provide you with the result for which you seek. Too often litigants and their attorneys who take too strong arm approach to divorce negotiations which only ends up backfiring. The cost may be more than you can afford.

A good attorney is going to understand your goals, guide your expectations and help facilitate a settlement. A good attorney is going to understand when a settlement is not possible and it is time to prepare for litigation. So when looking for that “aggressive attorney” make sure that the aggressiveness does not come at the expense of placement with your kids or their college education fund.

-Rebecca K. Millenbach

Can I Take Back My Maiden Name in a Divorce in Wisconsin?

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Yes!  You can take back your maiden name in a divorce in Wisconsin.  Upon your request, the court can restore you to any former surname.  At the time of the final judgment of divorce, you will be asked if this is your request.  If so, the judgment of divorce will state that you are restored to your former name.  This is completely your choice – your ex-spouse has no input into this decision.

Sometimes, women want to hyphenate their maiden name with their current name.  Some judges will allow this but some will not.  It will really be up to the court in your particular case.

However, please be aware that you have to do all of the work if you change your name.  The judgment will simply award you the use of your former name.  It will be up to you to change your name on everything including your driver’s license, bank accounts, social security, etc.  You will need your actual divorce judgment (Findings of Fact, Conclusions of Law and Judgment of Divorce) to effectuate the change in most cases.

–Teri M Nelson

Can I Keep My Inheritance in a Divorce in Wisconsin?

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This is a question we often hear in a divorce action.  Inherited and gifted monies are exempt from division in a divorce in Wisconsin.  If you have kept these funds separate, in your own name, there is a high probability that you will be able to keep any gifts or inheritances in a divorce.  Sometimes, the court can divide these funds in unusual circumstances for “equitable reasons” but that is a fairly rare occurrence.

However, disputes arise when inherited or gifted funds have been “co-mingled” into a marital asset.  For example, if the funds were deposited into a joint account or were used to purchase a marital home.  In these situations, the nature of the funds have been transmuted into a marital asset.  Often, the individual receiving the inheritance or gift wants those funds back at the time of the divorce.  The current state of the law on this topic is that there must be “donative intent” on the part of the spouse who received the inheritance.  In other words, is there sufficient evidence that the spouse intended to give his or her inheritance to the marriage or to the other spouse?

This inquiry is very fact specific.  The court would look at the details of the marriage and the actions of both parties to make this determination.  In reality, however, family court is a court of equity and strives to arrive at a result that is fair and equitable to both parties.  Depending on when the inheritance was received and where the funds were spent or deposited, the court will sometimes give credit for co-mingled inherited or gifted funds.

For further details, please see our website at Nelson, Krueger & Millenbach, LLC or contact us for a free initial office consultation.

–Teri M Nelson

New Protections in Wisconsin for Domestic Violence Victims

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Governor Scott Walker signed several new bills into law this week which grant greater protection for domestic violence victims.

One law- called the TraJa Act- was named after Tracy Judd and her daughter Deja who were murdered in a domestic violence incident in Madison in 2009.   This law makes a third domestic violence conviction within 10 years a felony and gives judges the ability to impose harsher penalties on repeat domestic violence offenders.  It also expands the definition of a repeat offender as someone who commits domestic violence within 72 hours of a prior domestic violence arrest.  Another bill which was signed also allows judges to treat committing an act of domestic violence in front of a child as an aggravating factor during sentencing.

Gov. Walker also signed into law a measure which allows victims of domestic violence and stalking to keep a name change confidential.  Current law requires that public notice be published prior to a name change.

For more information about how to obtain restraining orders to protect against domestic violence, please see our website.

How to Prepare for a Divorce

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We tell our clients that a little pre-divorce planning goes a long way.  Here are some of the steps you can take to prepare for a divorce and possibly save yourself time, stress, money and attorneys fees.

  1.  Gather all of the relevant financial documentation that you can.  Documents tend to disappear or become inaccessible after a divorce is filed.  After all, your spouse will need these too.  If you can obtain copies and keep them in a safe location or give them to your attorney right away, you will be steps ahead in your divorce.  Supporting documentation for all of your and your spouse’s income, expenses, assets and debts are the most important.  For example, recent paystubs, W-2’s, tax returns, credit card statements, retirement account statements and bank statements are most helpful.  Copies of the titles to your real estate, mortgage statements and real estate tax bills are also necessary.  Also collection statements, whether recent or not, regarding any other asset or debt.
  2. If you do not have access to these documents or your spouse has not told you where they are, do a little digging.  Anything you can find is helpful.  You are entitled to all of this information whether your name is on the asset or debt or not.  Do not feel like you are doing something wrong by accessing this information.  If you have to attempt to “chase” your spouse for this information either directly or through his or her attorney, it is only going to cost you attorneys fees in the end.
  3. Go see an attorney!  Most attorneys will offer free initial consultations.  Don’t pay for a consultation. There are plenty of experienced attorneys who will see you for free.  You should also meet with more than one attorney.  As with anything, it pays to shop around.  You need to feel comfortable with that person and with taking their advice.  Therefore, you need to hire the right attorney for you.
  4. Change your passwords!  All passwords, whether for email, bank accounts or Facebook, should be changed even if you do not think your spouse knows what it is.  We have had many situations where damage has been done simply because the other spouse knows your password or it somehow is retained on your computer.
  5. Get a copy of your credit report.  Again, you are entitled to this information and you know all of the debts that need to be addressed.  Many times you will find debts of which you were not aware.  This is extremely important information to have.
  6. Protect your assets!  Discuss with your attorney whether you should close accounts or withdraw funds from an account.  Contact your bank or financial institution to find out if you can freeze an account pending a divorce.
  7. Close out joint credit cards, if possible, and/or obtain your own credit cards.
  8. Open your own bank accounts.  Change your direct payroll deposit to your own account.
  9. Discuss with your attorney whether you should or need to change your withholdings from your paycheck and whether you should stop/reduce your 401(k) contributions.  Your spouse will still receive one-half of your contributions that you make during your divorce and you may need the extra disposable income until the divorce becomes final.
  10. Take pictures or make a videotape of all of your personal belongings, furniture, etc.  Take an inventory, especially of items of value, and gather receipts or appraisals for those items if available.  This way if items are disposed of or taken, you have proof of what existed prior to the divorce being filed.
  11. Keep a log or journal of all important events, especially if related to children.  It is difficult to remember details, especially in times of stress, and those details may be important to your case later on.
  12. Consider counseling.  You are seeking to end a troubled marriage and are making a major life change.  Divorce is not an easy process and you may need assistance on a variety of different levels.

For further details, please see us at Nelson, Krueger & Millenbach, LLC or contact us for a free initial office consultation.

–Teri M Nelson

Divorce Headlines – Week of April 2, 2012

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In researching blog topics this week, I ran across two headline cases.  Both deal with a divorce in a unique way.

The first headline was that Heidi Klum filed for divorce from Seal.  Celebrity divorces are nothing new.  They fascinate us because they are windows into the lifestyles of the rich and famous.  Money can’t buy happiness – whether in life and marriage.  In fact, the stress of a high-profile life seems to make success at marriages even more difficult than that of most people.  This case, in particular, seems to be attracting interest only because the couple seemed happy with no outward signs of trouble.  They still are refusing to release details, for the sake of their children.  Thank goodness some celebrities still have integrity and case about the welfare of their children above all else.

The second headline which I found is controversial in the extreme.  A Maryland court denied the request for a divorce to two lesbians based on their same-sex marriage.  Maryland does not allow same-sex marriage but the couple was married in California during the period when same-sex marriage was legal.

Without commenting on the specifics of this issue, I will only say that the law often does not keep up with social developments or even technological developments, for that matter.  When sweeping changes occur in society or technology, it often takes years for the courts to catch up.  In the interim period, we have a sort of limbo in which individuals get caught up with no way to address specific issues.  Unfortunately, the victims of this can sometimes be children such as when surrogacy or in vitro fertilization was in its infancy.

In Wisconsin, we tend to be more conservative in our laws, especially as they relate to divorce and family law.  As an experienced divorce attorney at Nelson, Krueger & Millenbach, LLC, I would say that the family law courts in Wisconsin in particular tend to be conservative in their rulings.  This avoids these types of ground-breaking legal issues which often take years to resolve.

Do I Have to Pay My Spouse’s Credit Cards in Wisconsin?

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Wisconsin is a marital property state.  Therefore, all debts of the marriage are the equal responsibility of both parties.  Any creditor can seek reimbursement from either spouse either through a garnishment or attaching marital assets.  One way you can protect yourself from the debts of your spouse is to file for divorce or legal separation.  The court in Wisconsin will then divide and allocate responsibility for the debt which exists at the time of the judgment. After a divorce or legal separation is granted, you are no longer responsible for the other party’s debts.

In the context of a divorce or legal separation, all property and debt is presumed to be equally divided at the time of the judgment in Wisconsin.  But, what if one spouse is responsible for incurring more of the debt, such as credit card bills?  What if you didn’t even know about those credit cards?  Many people ask in that situation, do I have to pay my spouse’s credit cards in a divorce in Wisconsin?

We often see a situation where there is a large amount of credit card debt or business debt of which one spouse was unaware.  However, there are different explanations for this.  Sometimes, a person is irresponsible or has a spending addiction.  On the other hand, there are situations where one spouse controls the money and refuses to give the other spouse money which leads to having to use credit cards just to buy the basic necessities.

The court will look at the details of your case when deciding whether the presumption of an equal division of debt should apply.  If the debt is generally for “marital purposes” such as clothing, food, gas, etc., then the court will still generally order that credit card debt to be equally divided.  On this issue, Wisconsin courts have ruled that a marriage is a partnership.  In many marriages, spouses often disagree about certain issues.  Spending is one of them.  Some people are savers and some are spenders.  Even though you may not have always agreed during your marriage that your spouse should have been using the credit cards or charged more than you thought was appropriate, does not mean that you are not responsible for that debt upon divorce.

However, if the credit card debt resulted from what is called “marital waste”, then the court may deviate from that equal presumption.  Marital waste is defined as dissipation of marital assets for a non-marital purpose.  This could be spending related to gambling, drugs and alcohol or even related to an affair.  In these situations, the non-incurring spouse will most likely not be held responsible for that debt.

There are situations which do not fall neatly into one of these two categories (marital waste v. non-marital waste).  In those cases, the court will have to take a close look at all of the facts and circumstances when making a decision as it is required to consider a result which is fair and equitable to both parties.

For more information, please see our website at Nelson, Krueger & Millenbach, LLC.

–Teri M Nelson

How is Paternity of a Child Established in Wisconsin?

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A paternity case is when the parents of a child were never married.  The purpose of a paternity case is to establish parental rights over a child and to set custody, placement and child support orders.

What rights does an alleged father have during the pregnancy of the mother?

Until paternity can be established either by a DNA test or an acknowledgment of paternity, an alleged father has no rights to the child.

What does “adjudication” mean and how does an alleged father become adjudicated?

Adjudication is the formal recognition of an alleged father as the legal father of a child born to unmarried parents.  Prior to an adjudication, an alleged father has no rights to a child.

Adjudication can occur one of two ways:

  1. If both the mother and alleged father are certain of the paternity of the child, then a Voluntary Acknowledgment of Paternity may be signed. This document is presented at the hospital after the birth of the child.  If the alleged father is not present at the birth, the document can be obtained by contacting Wisconsin Vital Records. http://dcf.wisconsin.gov/bcs/path.htm
  2. If one or both of the parties are unsure of the paternity of the child, then a DNA test should be conducted to confirm or exclude the alleged father as the legal father of the child.

How does an alleged father obtain placement and custody rights to a child?

Once a man is adjudicated as the legal father of a child, the Court will order “terms” relating to the custody, placement and support of the child.  Simply being adjudicated does not give a father any rights to custody or placement, nor does adjudication mandate the payment of child support. The process of establishing custody, placement and support can be resolved by the agreement of the parties or a paternity action having been filed with the Court.  A judgment of paternity must be entered and approved by the court before a father has enforceable rights for custody and placement.

What factors will the court consider when ordering custody?

There is a presumption in Wisconsin statutes that parties should share joint legal custody of a child.  Legal Custody is the right to make legal decisions regarding a child.  The Court may order sole legal custody to one parent in cases of domestic abuse or if the Court determines that joint legal custody is not in a child’s best interest.

What factors will the court consider in determining placement?

There are a number of factors that the Court will consider when determining placement.  The age of the child, distance the parents live from each other, work schedules, parents’ ability to communicate, and best interest of the child are only some examples of what the Court will consider when determining placement.  A Court will not automatically award primary placement to the mother simply because she is the mother.  The statute requires that the Court maximize the amount of meaningful time each parent has with the child.  This provision does not necessarily, however, require that the court order equal time.   Please see our Custody and Placement FAQ’s for additional information.

What if I disagree with the placement schedule ordered by the court?

At the first hearing, if the parents cannot agree on a placement schedule, they will be ordered to participate in mediation.  If mediation is unsuccessful, either a custody study and/or a guardian ad litem will be appointed.  The Guardian ad Litem will complete an investigation and make a recommendation to the Court as to what he/she believes to be in the best interest of the child.

Will child support be ordered?

Yes.   Once a father is adjudicated, the obligation to support the child will be addressed by the court.

How much child support will I have to pay?

Please see our Blog Post on Child Support or visit us at our website by clicking here.

How is Child Support Calculated in Wisconsin?

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Below are the answers to the most common questions about how child support is determined and calculated in Wisconsin.

How much child support will I have to pay?

The amount of child support ordered by the court will depend on the amount of placement that you have with your child(ren).  If you have less than 25% placement with your child(ren) (based on number of overnights over the course of a year)  then your child support will be based on the following percentages of your gross income:

17% for one child

25% for 2 children

29% for 3 children

31% for 4 children

34% for 5 or more children.

If you have more than 25% placement with your child(ren) (based on number of overnights over the course of a year) then the court will order support based on both parents’ incomes and the amount of placement that each parent has with the child(ren).  While this formula reduces the amount of actual child support paid, it obligates both parties to share variable expenses proportionate to their percent of placement.

The exact formula used to calculate child support for a shared placement schedule is complicated and can be found at http://dcf.wisconsin.gov/bcs/order/guidelines_tools.htm

or you can use the following spreadsheet/calculator:

Will the court order child support on my overtime and or second job?

Child support is based upon your gross income from all sources.  This would include part time jobs, overtime and bonuses.

Are there any exceptions to the percentages listed above?

Yes.  If you make $84,000 per year or more, there is a separate “high income payor” formula used by the court.   The first link above will take you to the calculator for that formula or the above spreadsheet also takes into account that formula when calculating child support for shared placement.

If you have more than one child support order, you are considered a “serial payor” and are entitled to credit for any prior orders.

Additionally the court may deviate upward or downward from the percentage guidelines based on a number of factors such as contribution toward health cost premiums, travel expenses or extraordinary expenses.  Each case can present unique circumstances which may warrant a deviation.  The court has wide discretion on whether to deviate.

I pay my child support, do I have to pay extra for activities, daycare and medical expenses?

Regardless of whether you are paying child support according to the shared placement formula or the primary placement formula, both parties are obligated to share equally in any unreimbursed medical expenses.  The court can also allocate the responsibility, and cost, for carrying health insurance for the child(ren).

Variable expenses such as school activities and day care only require a contribution if it is separately ordered by the court or if you are paying support under the shared placement formula.  If you are under a shared placement formula then you are responsible for variable expenses in proportion to the amount of placement time you have.  For instance, if you have your child(ren) 35% of the time, then you are obligated to pay 35% of the variable expenses under the child support guidelines.  The court, however, can also order a party to contribute to variable expenses even if they do not have shared placement after considering certain factors which are set forth in the statutes.

Do I have to provide my spouse or ex-spouse copies of my W-2 and/or paycheck?

If you are paying or receiving support, then yes, you must provide documentation of your current income or risk being found in contempt of Court.

Questions about Post-Judgment Issues in a Divorce in Wisconsin

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Here are the answers to some of the most common questions we get about post-judgment issues in a divorce or paternity.

1. How do I change my placement and or custody arrangement?

a. If your original judgment was entered less than two years ago, you must have substantial evidence that the current custody order and/or placement order is either physically or emotionally harmful to the child(ren). If you have evidence supporting such harm, a Motion must be filed with the Court. The Court will then determine if the requested change is in the child(ren)’s best interest. This “two year rule” only applies to original custody and placement judgments.

b. If the original judgment was entered more than two years ago, you may seek a modification of custody and placement if there is evidence that there has been a substantial change of circumstances since entry of the last order (not necessarily the original order) and that you must show that modifying the judgment is in the child(ren)’s best interest. A Motion must be filed with the Court to address the proposed change.

c. Parents can agree at any time to modify custody and/or placement without having to return to Court. A Stipulation can be filed with the Court to make the agreed upon change part of the Court’s Orders.

2. What is the process for modifying a judgment regarding custody and/or placement?

A motion must be filed with the Court in the county of the original action. There will be an initial hearing in which the Court will determine if there is enough evidence to proceed. If it is determined that the motion should proceed, you and the other party will be ordered to participate in mediation. Mediation is almost always mandatory, except in cases of domestic violence. If you are able to reach an agreement in mediation, a Stipulation must be filed with the Court outlining the terms of the agreement.

In the event an agreement is not reached, the Court may order that a Guardian ad Litem be appointed to represent the best interests of the child(ren) and/or custody study be commenced, depending on the county of your case, to investigate the claims and make a recommendation regarding the proposed modification. A Guardian ad Litem is an attorney who is appointed to represent the best interest of the child(ren). He or she conducts an investigation and then makes a recommendation to the court.

3. How long will it take to resolve my motion for modification?

The answer to this question depends on whether the parties reach a Stipulation or must proceed to a trial or hearing. If the parties proceed to a trial, the process can likely take up to 10 months to a year, or even longer, depending on the unique facts or your case and the county in which your case is filed.

4. How do I lower/raise my child support or family support?

Child support and family support may be modified if there is a substantial change in financial circumstances. If you, as the payor, were to lose your job or have your wages substantially reduced, this may be considered a change in circumstances justifying a reduction in support. However, if the payor receives an increase in wages or obtained a higher paying job, then a motion may be filed by the other party requesting an increase in support. Please note that the Court can only modify support back to the date the other party received notice of the Motion to modify support, not the date of the change in income.

5. Do I have to provide my ex-spouse copies of my W-2 and or paycheck?

If you are paying or receiving support, then yes, you must provide documentation of your current income or risk being found in contempt of Court.

6. What do I do if I no longer feel that my divorce settlement is fair?

Once a divorce is finalized the only modifications that can be made are maintenance, child support, family support, placement and custody. The property division cannot be modified after the divorce is final. An exception to this rule would be if it is discovered that your spouse hid an asset which was not included in the settlement. Should that be the case, then the Court would consider reopening the Judgment of Divorce to address the division of the non-disclosed asset.

7. What should I do when the other party is violating the orders?

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

If you are being denied placement, you can file a Petition to Enforce Placement to force the other party to comply with the court order. The court again has broad discretion to enforce a placement schedule, including awarding make-up time, changing the schedule or awarding attorneys fees and costs.

The attorneys at Nelson, Krueger & Millenbach, LLC can assist you with any of these problems and can further answer any questions you might have.