wisconsin divorce

Avoiding Financial Mistakes in Divorce

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It is no secret that many couples end their marriages in divorce in the United States. Roughly one in two marriages end in divorce, and separation is much more acceptable that it once was. Even with these realities, actually going through a divorce is never an easy event.

Emotions can cloud one’s judgment and result in an attempt to avoid further conflict. As a result, it may be appealing to rush the process along and hastily agree to a divorce settlement without thoroughly and carefully reviewing it. Unfortunately, rushing a divorce settlement can have a disastrous impact on one’s financial future.

Divorce is not just the end of a romantic relationship; it is also the end of a financial partnership. Those going through a divorce need to keep their financial future in mind and take the time to make sure that their divorce settlement properly reflects their needs.

Tips to financial security during and after divorce

Some steps that can help people going through a divorce to maintain their financial footing include:

  • Keeping appraised of all finances
  • Keeping a copy of important documents
  • Keeping the future in mind

It is important to keep up to date on one’s financial standing. If still in a marriage, try to avoid allowing one spouse to have total control over all finances. If filing for or considering a divorce, take steps to be fully aware of all assets including savings accounts, stocks, business interests and other investments.

It is also helpful to have access to important documents, like tax returns, property deeds and estate plans. If a prenuptial agreement was used, review it and bring a copy with when meeting with a divorce attorney.

In addition, keep the future in mind. Do not attempt to avoid conflict and agree to a divorce settlement without carefully reviewing it. Mistakes can lead to disastrous consequences in the future. If, for example, a divorce settlement includes distribution of a pension, a qualified domestic relations order or QDRO is likely needed. If this document is not included tax penalties may be tied to the distribution of the accounts. Without carefully reviewing the settlement important steps like including a QDRO could be missed.

After the divorce is finalized, confirm that your name is removed from any debts assumed by your ex. If your ex assumed financial responsibility for the family home, make sure your name is off the mortgage.

Navigating through the various laws and considerations required for a fair divorce settlement can be difficult. As a result, if you are considering a divorce or have recently filed divorce paperwork, contact the experienced divorce lawyers at Nelson, Krueger & Millenbach, LLC (formerly Nelson & Davis, LLC) to discuss your situation and better ensure your legal rights are protected.

What Does “Service” Mean in a Divorce and How Is It Accomplished?

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In a Wisconsin divorce, once the Petition for Divorce is filed, it is necessary to “serve” the respondent with the paperwork.  There are several ways to accomplish service which depends on different circumstances.

  1. If the respondent is unrepresented or uncooperative, service must be accomplished by having a process server (or sheriff) locate the respondent either at home or at work and physically give the papers to the respondent.
  2. If the respondent is represented, your attorney can mail the papers to the other attorney and request that an acknowledgement of service be executed by the respondent.
  3. If you are confident that the respondent will be cooperative, your attorney can send the respondent a letter requesting that he/she come to your attorney’s office, pick up the papers and sign an Admission of Service.
  4. If traditional means of service are exhausted with no avail or if the location of the respondent is unknown, you can serve the respondent by publication.

Proper service is essential.  You may not serve the papers yourself or have a friend or family member serve the respondent.  Improper service will jeopardize your case, so it is vital that service is done timely and correctly.

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

10 Do’s and Don’ts in a Wisconsin Divorce

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  • DO NOT ignore communication from your attorney or the Court.  Although, at times, the frequency of communication may be overwhelming or stressful, it is important that you promptly review email and letters and respond to those and all phone calls.
  • DO know that one attorney cannot represent both parties in a family law matter.  If your spouse has hired an attorney, it is in your best interests to do the same.
  • DO promptly update your attorney’s office with changes in your contact information.  If you move or obtain a new phone number or email address, advise your attorney’s office immediately, so that they can keep in contact with you.
  • DO NOT assume that your attorney is aware of all issues within your case unless you advise them.  In order to minimize your legal costs, your attorney may assume a “no news is good news” approach.  In other words, if your attorney does not hear from you, they will assume that you do not have a legal need.  If you have questions or concerns, contact your attorney at any time.
  • DO NOT be ashamed if you need counseling or psychological help to deal with the stress and pain of a divorce.  Seeking help to ease you through the process may be one of the best decisions that you make in your case!
  • DO keep copies of all updated financial documents regarding your income, assets and debts.  Make sure that you provide your attorney with copies on a regular basis.
  • DO update your Financial Disclosure Statement whenever changes occur! This is especially important if you change jobs during the pendency of the case.
  • DO NOT discuss your divorce case with your children or allow anyone else to do so!  Your children should never be aware of court proceedings or issues in the case.  It is in your children’s best interests to be protected from the details of your divorce.
  • DO support your children’s relationship with their other parent.  Sometimes, this can be emotionally difficult, but all children benefit from a relationship with both parents.
  • DO work with your attorney to ensure the best possible outcome in your divorce case.  As your attorney, it is our job to educate our clients regarding the law to help you set realistic goals supported by law and help you make smart legal decisions.  In order to successfully proceed through your divorce, ask questions, listen to advice from your lawyer, respond to communication, attend all scheduled appointments and hearings, provide all requested information.  If you do this, you will be a prime position to protect your legal rights and survive your divorce case without unnecessary emotion or financial cost.

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

-Alison H.S. Krueger

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

Property Division in a Divorce in Wisconsin

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Wisconsin Property Division FAQ’s

HOW WILL OUR PROPERTY AND DEBTS BE DIVIDED?

The presumption in the State of Wisconsin is that all property and/or debts of the parties will be divided equally. This presumption can be overcome based on the following factors:

(a) The length of the marriage

(b) The property brought to the marriage by each party

(c) Whether one of the parties has substantial assets not subject to division by the court.

(d) The contribution of each party to the marriage, giving appropriate economic value to each party’s contribution in homemaking and child care services (e) The age and physical and emotional health of the parties

(f) The contribution by one party to the education, training or increased earning power of the other

(g) The earning capacity of each party

(h) The desirability of awarding the family home or the right to live therein for a reasonable period to the party having physical placement for the greater period of time.

(i) Maintenance and/or family support orders

(j) Other economic circumstances of each party

(k) The tax consequences to each party

(l) The previous written agreement of the parties

(m) Other relevant factors

The attorneys at Nelson, Krueger & Millenbach LLC will be able to evaluate the facts of your case and advise you as your assets and debts will likely be divided in your divorce action.

WHAT IF MY SPOUSE HAS EVERYTHING IN HIS/HER NAME?

Wisconsin is a marital property state which means that each spouse has a one-half interest in all property and/or debts acquired during the marriage. There are only a few exceptions such as inherited or gifted property. As a result, title, or in whose name an asset or debt is held, is largely irrelevant in the State of Wisconsin.

WHAT IF I HAVE RECEIVED GIFTED OR INHERITED PROPERTY DURING THE MARRIAGE?

Generally, property that is inherited or gifted is not subject to division in a divorce but there are exceptions. How gifted or inherited property is divided depends on what was done with that property after it was received. For example, if you inherit a sum of money and keep it separate from marital property, you will most likely be able to keep that inheritance. However, if you take your inheritance and use it for a down payment on a marital home, the court will most likely consider that marital property and divide it. Sometimes, though, the court will give a party credit for assets brought to the marriage, including inherited or gifted money.

WHAT IF THERE IS A DISPUTE ABOUT THE VALUE OF CERTAIN PROPERTY?

Often times it is necessary to have property appraised to determine a value. The court usually appoints an appraiser or valuator as an expert in those cases and orders that the parties split the cost for that expert. Each party is also entitled to hire their own independent appraiser or valuator as well.

HOW ARE PENSIONS OR RETIREMENT ACCOUNTS DIVIDED?

Again, the presumption in Wisconsin is that all property, including retirement accounts, will be divided equally. For most 401(k)’s, pension plans, retirement accounts or IRA’s, it is necessary to file with the Court a special order called a Qualified Domestic Relations Order (called a “QDRO”) which effectuates a division of those accounts. For some retirement accounts, such as military, state or county pension plans, QDRO’s do not apply and other special orders are required. If these type of retirement benefits exist, a lawyer or accountant is the most qualified person to assist with the division of the same.

Experts can also be hired to value retirement assets such as pensions. The court usually appoints an appraiser or valuator as an expert in those cases and orders that the parties split the cost for that expert. Each party is also entitled to hire their own independent appraiser or valuator as well.

WHAT IF I OWNED PROPERTY BEFORE I WAS MARRIED? CAN MY SPOUSE GET HALF OF THAT?

In Wisconsin, there is no exemption allowed for pre-marital property. All property (and debts) owned by either party becomes marital property at the time of the marriage. Therefore, all property is equally divisible at the time of divorce, except for gifts or inheritances as stated above. However, the court does have discretion to deviate from an equal division of the property based on the factors listed above, one of which is “contributions to the marriage.” This deviation is more likely in short term marriages or where one party brought significant assets into a marriage, but the court must consider all of the circumstances when making this decision.

WILL THE COURT ENFORCE OUR PRE-NUPTIAL AGREEMENT?

Wisconsin law states that a pre-nuptial agreement is binding on the court unless the terms of the agreement are inequitable as to either party and do not follow Wisconsin law. It is important that parties seeking a pre-nuptial agreement seek the assistance of a knowledgeable attorney prior to signing such an agreement.

WHAT IF MY SPOUSE ACCUMULATED A LARGE AMOUNT OF DEBT WITHOUT MY KNOWLEDGE? AM I RESPONSIBLE FOR HALF OF THE DEBT?

Because Wisconsin is a marital property state and the presumption is for an equal division of property and debt, the answer would be yes. Again, there are exceptions. For example, if the debt accumulation was due to a spouse’s addiction, such as gambling, drugs or alcohol (marital waste), the court usually relieves the other party from those liabilities. There are other situations where you may not be responsible for debt acquired solely by the other party. Your attorney at Nelson, Krueger & Millenbach, LLC can review the facts of your situation and advise you as what they believe to be the likely result in your case.

WHAT IF MY SPOUSE DOESN’T PAY DEBT THAT HE/SHE AGREES TO PAY OR THAT THE COURT ORDERS HE/SHE TO PAY?

Unfortunately, creditors are not bound by family court orders. As a result, they may seek payment from you on a debt that your spouse was ordered to pay. The only recourse you would have would be to file a contempt motion with the family court for your spouse’s failure to pay. Most often, the court will order remedies which may include an income assignment to you for any amounts your spouse failed to pay.

WHAT IF MY SPOUSE (EX-SPOUSE) FILES BANKRUPTCY?

If your spouse files bankruptcy, you would be responsible for the entire amount of any debt he/she is discharged from. Typically, however, this only applies to joint debts. If a debt is in one party’s name alone, the creditor doesn’t often seek repayment from a non-debtor spouse although it does happen on occasion. Again, your remedy would be to file a contempt motion in the family court as stated above. A debtor cannot discharge support obligations but may be able to discharge a property settlement payment in certain situations.

WHAT IF I DECIDE AFTER MY DIVORCE THAT THE PROPERTY/DEBT DIVISION WAS UNFAIR AND I WANT TO CHANGE IT?

The court does not have the authority to change a property division order after the date of the final divorce unless a party files a Motion to Reopen and the court grants that motion. The court will only reopen a judgment for very limited reasons such as mistake, fraud, inexcusable neglect, new information or other equitable grounds. A Motion to Reopen must be filed with a one year from the date a discovery is made of a mistake, fraud, inexcusable neglect that occurred in the final divorce. However, please be aware that it is very difficult to reopen a final judgment and such a Motion is very rarely granted.

Should I File for Divorce?

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Whether to file for divorce is one of the most difficult decisions you could ever face. There are no easy answers. If you are asking yourself this question, your marriage is probably already in serious trouble. You should give careful consideration to all of the consequences a divorce could have for you and your family. Here are some thoughts that may help you to decide.

The most important part of this question has to do with why you are thinking about a divorce. There are some serious problems that simply cannot be solved such as physical abuse, child abuse, mental illness, criminal activity, fraud, etc. If you find yourself in one of these situations, there is very little you can do to resolve them especially if your partner is the one who has the problem. For your safety or your child’s safety, you may not have a choice but to seek a divorce to get protection from the legal system.

There are other reasons you may be thinking about a divorce that are not so clear cut but still very serious. For example, drug or alcohol abuse or another addiction could be the issue. Of course, your spouse can seek treatment and if he or she does, this could save your marriage. Unfortunately, many of these people will not seek treatment unless they truly want to and/or until they “hit rock bottom”. Sometimes, the “rock bottom” doesn’t happen until they are charged or convicted of a crime or being in a serious accident. However, sometimes the impetus for change is a divorce – the loss of their marriage or family. In that case, filing for divorce could actually help the person get their life back on track and seek treatment. In either case, if the situation becomes dangerous or unbearable for you or your family, you may need to file for divorce.

Money issues sometimes trigger this question. If you have a spouse who gambles, for instance, or, if your spouse simply cannot manage money or stop spending, you may need to seek some financial orders from the court to protect your assets. If your spouse is making poor financial decisions such as bad business decisions, refusal to pay debts or disposing of assets, then you also may need to file for divorce to prevent a waste of marital money. We are now seeing a lot of cases which involve the loss of a job where the spouse either cannot or will not get a job. They become depressed and sit home doing nothing. This may not arise to the level of having to file for divorce but perhaps talking about it will motivate them to get off the couch.

Infidelity or cheating is a common cause for the question of whether you should get a divorce. The answer varies extremely based upon the individual – can you move past this issue or do you want to? Some people can forgive and move on. To some people, this is an unforgivable offense. Before you make the decision, however, you may want to attempt counseling. Divorce is not an easy answer to marital problems. Cheating is usually a symptom of problems in an individual or a marriage – not necessarily the cause of the problems. If you can resolve the underlying problems, perhaps your marriage can be saved.

There are a variety of other reasons for divorce – growing apart, changes in personality, changes in life views and goals, incompatibility, control issues, verbal abuse and emotional abuse are all common themes. The real question you have to ask yourself is whether these problems can be resolved and, if not, whether you can live with them. As to whether they can be resolved, this is a two-way street. If your spouse is willing to try to resolve them, you should obtain professional help to assist the two of you in working through these issues. If your partner refuses to acknowledge or work on them, then they cannot be fixed. At that point, you need to decide how you want to live the rest of your life.

Divorce is a deeply personal and difficult decision and not something you should rush into. Absent safety issues or financial emergencies, there are not necessarily any legal reasons why you would need to file. You should seek the advice of an attorney so that you are aware of all of the consequences of a divorce to you and your family. Most attorneys offer free initial consultations. If you do decide to file for divorce, make sure you have all of the information you need and are as prepared as possible. Often, a little pre-divorce planning goes a long way in saving you time, money and stress.

About Divorce in Wisconsin

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WISCONSIN DIVORCE FAQ’S

HOW DO I BEGIN DIVORCE PROCEEDINGS?

To begin a divorce, you must file with the Court a Summons and Petition for Divorce (generally referred to as the divorce pleadings). Your spouse must then be served with this Summons and Petition for Divorce within 90 days after filing. You can file a motion with the Court asking that this 90-day deadline be extended; however, it would be up to the Judge assigned to your case to decide whether or not to extend this deadline. There are two ways you can serve the Summons and Petition for Divorce on your spouse: (1) your spouse can sign an Admission of Service at our office or his/her attorney’s office, or (2) our process server or a sheriff’s deputy can personally serve the pleadings upon your spouse.

WHAT DO I DO IF I AM SERVED WITH DIVORCE PAPERS?

After you are served with divorce pleadings, call Nelson, Krueger & Millenbach, LLC to schedule a complimentary consultation. Once you retain our legal services, we will review the pleadings with you and prepare a Response and Counterclaim on your behalf for filing with the Court. You must file a written Response and Counterclaim within 20 days from the date you are served with the Summons and Petition for Divorce. This must be sent to the Court with a copy sent to your spouse or his/her attorney. If you do not file a written Response, the Court could enter a default judgment against you in the future.

If you also want the divorce, you should also file a Counterclaim for Divorce. This means that if your spouse changes his/her mind in the future and asks that the divorce be dismissed, the Court could deny that request and grant you a judgment of divorce instead based on your counterclaim.

WHAT IF I DON’T WANT A DIVORCE?

Wisconsin is a “no fault” divorce state. The only basis for a divorce in Wisconsin is that the Court finds that your marriage is irretrievably broken and that there is no likely possibility of reconciliation. Because it takes two willing people to have a marriage, the Court will most likely grant a judgment of divorce even if only one party wants the divorce as long as one party testifies that he or she feels that the marriage is irretrievably broken and that the marriage cannot be repaired.

HOW LONG DOES A DIVORCE TAKE?

There is a mandatory 120-day waiting period in Wisconsin during which your divorce cannot be finalized. Most divorce cases take between six months to one year to finalize. The time period can vary based on the County in which your divorce is filed and the issues involved in your case. The specific facts of your case will determine the timetable for the completion of your case. However, our goal is to complete your divorce as quickly as possible. We understand that you need to move on with your life and that you do not need a long and protracted court action.

HOW DO I SUPPORT MYSELF OR SEE MY CHILDREN WHILE THE DIVORCE IS PENDING?

In most cases, Temporary Orders are needed to determine where each party will live, when each party will see the children, and how each party will be financially supported and pay bills. These Temporary Orders are Court Orders and can be determined by the Court’s decision or upon an agreement (called a Stipulation) between the parties. These Temporary Orders remain in effect during the time it takes to complete your divorce case.

Temporary Orders could cover the issues of temporary custody, placement, support, maintenance, temporary use of personal property and/or bank accounts, temporary use of the marital residence, and temporary allocation of debts. While these orders are temporary and should have no bearing on the final outcome of your divorce, in reality, many courts continue temporary orders as permanent orders if they are appropriate in your case, especially orders regarding custody and placement of your children.

HOW DO I OBTAIN THESE TEMPORARY ORDERS?

To request Temporary Orders, you must file an Order to Show Cause for Temporary Orders and an Affidavit for Temporary Orders. These documents compel your spouse’s appearance at a first or temporary hearing which is almost always scheduled before a court commissioner rather than a judge. This temporary hearing is usually scheduled within three to six weeks of the date you request a hearing depending on the County in which your case in pending.

Prior to the hearing, you and your spouse can negotiate terms of a Temporary Stipulation. These stipulated orders are done without the need for you to appear in Court and, when filed with the Court, carry the same legal protection as if you personally appeared in Court.

WHAT IF I DON’T LIKE THE COURT COMMISSIONER’S DECISION?

If you do not agree with the court commissioner’s Orders at this first or temporary hearing or any other hearing before a court commissioner, you may request a Hearing De Novo before the judge assigned to your case. A Hearing De Novo is a hearing where the judge hears the matter as if it had not been heard before and is not supposed to give any deference to the court commissioner’s decision. A Hearing De Novo must be scheduled promptly after the hearing before the court commissioner’s (7 – 15 days in most counties).

WHAT IF MY SPOUSE LEAVES ME FOR SOMEONE ELSE OR IS LIVING WITH SOMEONE ELSE?

Because Wisconsin is a “no-fault” divorce state, one party’s infidelity is irrelevant in most cases. The court cannot consider this fact in dividing property, awarding maintenance, setting support or other financial matters. It can impact on custody and placement issues, however, if the significant other has a negative or harmful impact on the minor children.

HOW ARE PROPERTY AND DEBT DIVISION, SUPPORT, CUSTODY AND PLACEMENT DETERMINED AT THE END OF MY DIVORCE CASE?

Please see our other FAQ’s for additional information on these issues. Your attorney at Nelson, Krueger & Millenbach, LLC will work with you throughout your case to provide educated and experienced guidance to assist you in making good legal decisions for yourself in your divorce action.

WHAT OPTIONS ARE AVAILABLE TO AVOID A TRIAL IN MY DIVORCE CASE?

Your attorney at Nelson, Krueger & Millenbach, LLC will suggest options to the successful resolution of the issues in your divorce without the need for a court trial. For example, settlement negotiations at a parties-and-counsel meeting, mediation and arbitration are all alternative measures that are common in divorce cases to help resolve conflicts.

Although most cases are resolved without the need for a trial, at Nelson, Krueger & Millenbach, LLC, our experience litigating cases provides our clients the best possible legal representation. We will make every effort to minimize the emotional and financial cost of a trial, yet we are prepared to litigate your case in court if a settlement cannot be reached.