exchanging financial information in divorce in wisconsin

Be a Vault! Protect Confidential Information In Family Law Cases

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Protecting your confidential information should always be a primary concern in life, but especially so in divorce and family law cases. When you are engaged in a pending divorce or paternity pre- or post-judgment case, you will likely be called upon to provide what will seem like an endless list of financial documents. You will need to provide your attorney, opposing party, opposing attorney and the court with wage stubs, tax returns, bank statements, credit card statements, retirement and investment statements, social security reports, and many, many other documents. You may even need to provide medical records and other personal information. Who would want these documents circulating without protection? The answer is: no one!

Wisconsin Statutes require that certain documents which confidential information must be redacted before filing with the court. This means that identifiable information such as social security numbers, account numbers, etc. must be removed before a document can be filed with the court. If you are going to file such a document with this information, you need to ensure that you, your attorney, and the opposing attorney removes this information before filing or penalties can result.

Not only do you have a duty to protect your own confidential information, but you also have to be careful to protect the other party’s confidential information. In a recent Wisconsin Court of Appeals decision, Heidi Black v. Jeffrey Allen Kelly and MidWest Mgmt., Inc., No. 2021AP1239 (Wis. Ct. App. Sept.1, 2022), the court was called upon to decide a unique situation in which protected financial information was inadvertently made public through an opposing party’s employer’s computer system.

In Black v. Kelly and MidWest Mgmt., Inc., Heidi Black’s Financial Disclosure Statement from her divorce case was made available online through her former spouse’s employer’s computer server. Black’s friend discovered that her Financial Disclosure Statement was available online to the public after completing an internet search of Black’s name. Black sued her former spouse, Jeffrey Allen Kelley, and his employer, Mid-West Management, Inc., for making public her Financial Disclosure Statement from her divorce action.

The court in Black v. Kelly and MidWest Mgmt., Inc. found in Kelley’s and Mid-West Management, Inc.’s favor and dismissed Black’s civil case for damages only because there was no evidence that Black’s Financial Disclosure Statement was viewed by anyone besides Black’s friend, Kelley, and Mid-West Management, Inc. when removing the document from public access. Wisconsin law requires a finding of “publicity” of the protected information which is “the matter is made public by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge” in order to award damages. See Black v. Kelly and MidWest Mgmt., Inc. Publicity was not proven in this case. The court distinguished “publicity” from “publication” which includes an element “in connection with liability for defamation” when evaluating if damages should be awarded. See Black v. Kelly and MidWest Mgmt., Inc. The Defendants-Respondents in this case hired experts to show that Black’s Financial Disclosure Statement was viewed by limited persons and was not made public communication.

The importance of Black v. Kelly and MidWest Mgmt., Inc. suggests that there could, however, be a civil tort basis should a party’s financial, confidential and/or protected information be made public communication. The Black case and the applicable case law does not require a finding of malice or intention in making the information public in order for damages to be awarded it only needs to be proven that the information was made a communication to the public at large.

What does that mean for you? The answer is clear, you need to be a vault! Protect your soon-to-be ex’s information the same way that you protect your own: with the tightest security and highest level of protection.

If you have questions about a family law action and how to best protect yourself, please contact Nelson, Krueger & Millenbach, LLC at (414) 258-1644 to schedule a free initial consultation to discuss your case.

Exchanging Finances with My Ex – Do I Have To?

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There is a new statutory language in Wisconsin which automatically requires parties with minor children to exchange certain financial information regarding income on May 1st of each calendar year.  Pursuant to Wis. Stat. § 767.54, in an action where the court has ordered a party to pay child or family support, both parties must annually exchange tax returns, year end paystubs, a recent paystub and any other documentation regarding income from all sources for the 12 month time period preceding the exchange of information.  Even though this is a standard law and provision that is often incorporated into parties’ Marital Settlement Agreements, paternity rulings, and other family law orders, many individuals do not know about this statute or fail to take steps to enforce it. 

When working with individuals wanting to modify a child support order, our first question is always “Is your ex making more money than they were at the time of the original order?”  Most of the time, the answer is either “I don’t know” or “I know they are making more, but I am not sure how much.”  The new statutory language requiring the exchange of income information would assist in answering this question and gives a party the basis for requesting that information.  You absolutely must provide documentation regarding your finances, especially if specifically requested by the other party, or they may have a basis to pursue a contempt motion against you and you may even be responsible for paying their attorneys’ fees for bringing forth that action.

The reason for this is that the award of child support may change if there is a substantial change in circumstances which is based upon any increases or decreases in a party’s income.  Where one party is awarded primary placement, the other party’s income increases will be of higher importance.  Where there is a shared placement schedule, both parties’ changes in income are equally important. 

Why don’t parties follow this rule?  Many times, parties don’t want to go through the hassle of going back to court or doing the math to calculate a new amount every single year.  Others do not feel comfortable directly asking for the other party’s finances or providing their finances to the other party.  However, child support is considered as a payment not for a party, but for the child during that party’s placement time.  As such, it is important for parties to exchange financial information in this manner to ensure that the child is receiving as much support as needed.

Because many parties do not follow or do not know about this rule, the Child Support Agency often revisits prior child support orders after 33 months have lapsed.  The statutes provides that after 33 months, there is a presumption of a substantial change in circumstances upon which a modification of child support may be based. In that case, the Child Support Agency may file a motion to modify child support at that time.  By requesting financial information every year, you can assess whether there needs to be a change in child support and can get a start on filing your motion sooner, since the court cannot retroactively award child support prior to the date of service of any such motion. If you want to change a child support order, the best way to maximize the support is by filing as soon as you learn of a substantial change in income. Or, if your circumstances have changed to the extent that you can no longer pay the support you have been ordered to pay due to a reduction or loss of income, you should file a motion as soon as that occurs.