P.O. Box 7 • 215 North Lake Avenue
Phillips, WI 54555
Phone: 715-339-2196
Fax: 715-339-4664
P.O. Box 151 • 170 North 4th Avenue
Park Falls, WI 54552
Phone: 715-762-3258
Fax: 715-762-3289
Family Law & Divorce
Family law is the term used to describe the area of law
relating to many different family relationships. Divorce is
an area of family law.
Divorce is the legal process to terminate a marriage.
Divorce can bring about many issues, such as disputes
about division of the property and debts, child custody
and placement, child support, and maintenance (among
other things). Because the implications of a divorce are
very long lasting, it is important that you have a divorce
lawyer who can explain the processes to you, as well as
assist you in accomplishing your goals.
Wisconsin has “no fault” divorce, which means that a
divorce can be granted as long as the marriage is
“irretrievably broken.” Either party may file for divorce,
or the parties may decide to do so jointly. One of the
parties must have lived in the county where the divorce
action is filed for a minimum of 30 days and have resided
in the state of Wisconsin for a minimum period of 6
months.
Once a summons and petition for divorce are filed, there
is a 120 day waiting period before the court will grant a
final divorce. It may be possible for a lawyer to reduce
the 120 day waiting period. In some cases, it may be
beneficial for the court to enter a temporary order that
will guide the actions of the parties between the time
when the divorce paperwork is initially filed and when
the divorce is finalized. A temporary order hearing is
usually held before a family court commissioner, who is
an officer of the court.
Wisconsin is a community property state, which means
that property of the married couple belongs to both of
the parties unless it is specifically exempted by statute
(such as an inheritance) or a marital property agreement
(such as a prenuptial agreement). The court begins with
the presumption that property should be divided equally,
but it will stray from that depending on what would be
fair in each particular case. The statutes provide factors
for the court to follow to help determine what is fair in
each individual case.
Custody
Custody is the legal term for the right to make legal
decisions regarding the children. Examples of legal
decisions affected by custody include which school
the child will attend, the child’s religion, the child’s
medical care, etc. Joint legal custody, or custody
shared equally between the parents, is the most
common custody. The judge will start with the
presumption that joint legal custody will be granted
unless there is a very good reason for sole custody
to be granted, such as abuse. When custody is
joint, the parties must work together to make major
decisions regarding the child.
Physical Placement
Physical placement of the children refers to where
the children will be living. Physical placement can
be primary, meaning that one parent gets placement
of the child more than 75% of the time, or shared,
meaning neither parent has placement more than
75% of the time. Shared primary physical
placement is a good option as long as both parents
live in the same geographical area. Different
families make different placement arrangements,
each unique to the family’s schedules.
Most parties set up a physical placement schedule
which clearly lays out which days the child is with
which parents. Some parties set up physical
placement “as agreed between the parties,”
meaning that the parents work out which days they
will have placement amongst themselves as the year
progresses. Where the children will spend different
holidays should also be considered.
If there are disputes about custody or physical
placement, the parties will be ordered to attend
mediation to see if they can work out an agreement.
A mediator is a neutral third party who meets with
the parties to try to get them to work out a mutual
agreement. If an agreement cannot be worked out
between the parties, a guardian ad litem is
appointed. A guardian ad litem is an attorney
appointed to represent the best interests of the
child. The guardian ad litem gives their
recommendations for custody and physical
placement to the judge who will make the final
decision.
The final decision on custody is always up to the
judge and is to be based on what is in the child’s
best interest. There are various factors set forth in
the Wisconsin Statutes that the judge is to consider.
The court will normally approve stipulations made
by the parties. The court also normally pays a lot of
attention to the recommendation of the guardian ad
litem. In Wisconsin the decision on physical
placement is never left to the child to decide. The
court will pay more attention to the child’s wishes,
which are normally communicated through the
guardian ad litem, depending on the age and
maturity level of the child.
Changes in Physical Placement
If the parties agree that a change to the physical
placement of the children should be made, the
parents may enter into a stipulation which puts that
agreement into writing. The agreement must be
approved by the court.
Sometimes after physical placement has already
been established by court order, the parties still
disagree over physical placement. The legislature
has made it very difficult to change the first court
order regarding physical placement within the first 2
years, making the parent wishing to change the
order show substantial harm to the child. Two years
after the first order has been entered, the current
order may be changed if the party asking for the
change can show there has been a substantial
change of circumstances. There is a presumption
that the existing order is in the best interest of the
child.
Enforcement
If you have a court order that says you should have
placement of your child, but the other parent is
refusing, you can file pleadings with the court for
enforcement or contempt of court. The party not
obeying the order would then be forced to appear
before the judge and potentially face sanctions,
including fines and jail time.
Removal
If you have placement of your children for 50% of
the time or more and you wish to move over 150
miles away with the child, you must go through a
court process called a removal. If the other parent
objects to your move, the parties will go to
mediation. If the parties do not resolve the issue
during mediation, a guardian ad litem, or attorney
who represents the best interests of the child, will
be appointed. The guardian ad litem will present his
or her recommendations to the judge, who will
make the ultimate decision about whether or not the
move with the child will be allowed.
Maintenance / Alimony
Maintenance was formerly called “alimony,” and is
the legal term for the payments made from one
spouse to help support the other spouse after a
divorce. There is no statutory formula to determine
how much maintenance is due. A classic example of
a maintenance case would be when a stay-at-home
mom helped her husband establish his lucrative
career, but after 30 years of marriage, the couple
divorced. The husband would then possibly pay the
wife maintenance. The purpose of maintenance is
to put the parties on equal footing when both have
invested in each other (such as investing in the
other party getting an education or advancing their
career), but one of the parties would unjustly
benefit from the investment if the divorce were
granted and the other party was not repaid. There
are a number of statutory factors the court will
consider to determine if maintenance should be
granted.
Maintenance can be either for a specific length of
time or it can be for life. Maintenance is normally
reviewable by the court in the future if
circumstances change. One exception to that is if
the parties reach an agreement that calls for
maintenance for a set term and includes the
provision that it cannot be modified. Normally
maintenance would terminate upon remarriage of
the person receiving maintenance or upon death.
Here again there are exceptions. When dealing with
issues related to maintenance it is very important to
consult with an attorney and potentially with a tax
expert to make sure a person understands the
consequences of any agreement that is entered into.
Child Support
Child support is a monetary payment from one
parent to another to aid that parent to cover the
costs of raising the child. Child support is designed
to provide for more than just the bare necessities
children need—it is designed to give the children the
same standard of living that both of their parents
have. The State provides child support guidelines
which are formulas to determine what the State
recommends child support should be. The
guidelines consider the physical placement schedule,
the number of children, and the income of the
parties.
If a parent has placement of the child less than 25%
of the overnights, the child support is the standard
amount. If there is one child, the parent with less
physical placement pays 17% of their gross income.
If there are two children, the parent pays 25%, and
the percentage grows a little bit more with each
additional child.
If a parent has placement of their child more than
25% of the overnights, then the child support
guidelines provide a shared placement calculation
that takes into account the number of overnights
each parent has the child.
All child support payments should be paid through
the Wisconsin Support Collections Trust Fund to
ensure that they are counted. Usually the person
making the payments gets a wage assignment put
in place with their employer so that the payments
automatically come out of their paycheck. The
Wisconsin Support Collections Trust Fund then
distributes the payments to the other parent.
Child support normally continues until the child turns
18. If a child is pursuing a high school education
then child support typically continues while the child
is pursuing an education but ends with graduation
or at age 19. There is no provision in the law for
continuation of child support past age 19.
Child support is modified from time to time to reflect
changes in the parties’ incomes. It can also be
modified earlier if there is a material change in
circumstances, such as the party who makes the
payment getting a big raise. Child support can
never be changed retroactively, which means that if
you are the party paying support and you cannot
afford your payments, the time to ask for a
reduction is right away.
Grandparent / Stepparent Visitation
Grandparents, stepparents, and others with a
special relationship with a child have special rights
to spend time with that child. The legislature has
provided for a special grandparent and stepparent
visitation statute that allows these people to bring a
court action to enforce these rights. A classic
example of when this type of family law action
would be necessary is when a parent passes away
and the remaining parent cuts the parents of the
deceased out of the grandchildren’s lives. A person
who feels they have the right to spend time with a
child may file a petition in family court asking the
court to order visitation. The judge will consider
what is in the best interests of the children when
determining whether visitation should be ordered.
Adoption
Adoption is the life-changing process where a
person agrees to take a child into their home and
accept all the legal responsibilities that come with
that.
There are two main types of adoption: stepparent
adoption and independent adoption. Stepparent
adoption takes place when a stepparent adopts their
spouse’s child, while independent adoption takes
place when two new parents adopt a child. Each
child may legally only have two parents, no more.
Therefore, a person cannot adopt a child who
already has two parents. For an adoption to occur,
the birth parent(s) must terminate their parental
rights to the child or pass away.
A termination of parental rights completely severs
the legal relationship between the parent and the
child, such as the parent’s obligation to pay child
support. A court usually will not terminate parental
rights until there is another person ready to take
over the responsibility. A termination of parental
rights, or TPR, proceeding is a separate proceeding.
A TPR can either be voluntary, meaning that the
birth parent consents to their parental rights being
eliminated, or involuntary, meaning that the birth
parent does not wish for their rights to be
terminated and there will be a contested hearing on
the matter. Once a parent’s rights are terminated,
they are terminated forever. That parent is no
longer required to pay any financial obligations to
the child. A parent’s rights can only be terminated
involuntarily for specific statutory reasons.
Once a child is eligible for adoption due to their
parents being deceased or their rights being
terminated, a petition is filed for adoption, a home
study is done of the potential adopted home (usually
by Human Services), and a hearing is held to
determine if the adoption is in the best interests of
the child.
Adoptions and TPRs can become complex because
there are various overlapping timelines provided for
by statute. An attorney can help you sort out these
requirements and get your adoption finalized.
Paternity
A paternity action starts when an unmarried couple
has a child. If there is not a voluntary
acknowledgment of paternity form signed by the
father at the hospital (or shortly thereafter), a
paternity action is started to determine who the
biological father of the child is. A paternity action
may be initiated by a birth father, a birth mother, or
the State. The State may choose to start a paternity
action because they have a financial interest in the
outcome, such as if the State paid the birthing
expenses for the child and wishes to recover those
expenses from the birth father. Once a paternity
action is started, the court usually orders the parties
and the baby to be genetically tested. Genetic
testing results are then used to show who the father
of the baby is.
Whether paternity is established by acknowledgment
or adjudication, after paternity is established, an
order establishing child support is entered (including
back-child support from the time the child was born
to the time of the hearing). If the birthing
expenses were covered by Badgercare, the order
will probably also establish a payment plan for those
costs. This order is entered either by virtue of the
parents coming to an agreement (stipulation) or as
a result of a contested hearing.
A judge may also enter an order regarding custody,
placement, the child’s medical coverage, how the
parents will split the income tax exemption, etc.
Until an order is entered regarding paternity, the
mother of the child has sole legal custody and sole
physical placement of the child.
A post-paternity action may arise when parties who
already have a court order regarding their child
believe that their order is no longer workable. A
parent may file a motion to modify the previous
order in the same manner a divorced couple would
revise their court order.
Guardianship
A guardian is legally in charge of another’s person
and/or assets (of the ward). There are
guardianships of the person and of the estate. A
guardianship of the person means that the guardian
has control over that person, such as where the
ward lives, what activities they can engage in, etc.
A guardianship of the estate gives the guardian
control over that person’s financial affairs. A
guardian is vested with certain powers to assist
them in caring for the ward. These powers are
specifically granted by the court. Any powers not
granted to the guardian still belong to the ward.
There are guardianships for minors and for adults. A
guardianship of a minor could occur under one of
two different sections of the statute. First, a
guardianship may be initiated by the county if a
child is in need of protection and services. Second,
a guardianship may be initiated by any interested
person if they feel there are grounds to show the
guardianship is necessary. The second type of
guardianship might occur, for instance, if both of a
child’s parents are deceased. A guardian would
need to be appointed so that an adult would have
the legal authority to take care of the minor child,
such as to sign authorizations allowing the child to
receive medical care.
A guardianship of an adult could occur if the adult is
incompetent and/or is unable to take care of
themselves or their finances. These guardianships
can be initiated by a family member of the adult or
by the county, if the county is worried about the
health and well-being of the individual.
Protective Placements
A protective placement is the legal means by which
a court may order a person to live in a certain
facility for that person’s own protection. A
protective placement may be ordered by the court in
the event that an individual is under a guardianship,
that individual is incompetent, and without the
protective placement, the individual will incur a
substantial risk of physical harm to themselves or to
others. Just because a person is under a
guardianship does not mean they are under a
protective placement, but to be under a protective
placement, that person must be under a
guardianship first. A protective placement might be
ordered if an elderly person with a degenerative
condition is placed in a nursing home by their
guardian but due to their dementia, keeps trying to
leave the facility.
Once a protective placement is ordered, annual
reviews are conducted to ensure that the individual
in the facility is safe and content.
Slaby Deda Law Offices have attorneys experienced in
family law in Northern Wisconsin. Call 1-800-543-6440
to schedule an appointment.