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.