Wisconsin Family Law
BORNS LAW OFFICE, LLC has compiled this information on Wisconsin Family law. We have also provided a summary of basic statutory and case law concepts.
It is important for you to understand that this is only general information. It is not and should not be considered to be legal advice. While general concepts of Wisconsin divorce law are discussed, the application of these concepts from case to case may vary, dependent on the facts of each case and other factors. Your case may also present issues that are not discussed herein. Laws also change or are interpreted in varying ways by different courts and judges. This is not intended to be a complete summary of all applicable laws, rules, regulations and cases, but is only intended as a general guide. Remember, the results in your case are dependent both on the facts in your case and the application of the law to these facts.
The emphasis of this information is on divorce. There are many other aspects of family law that will not be discussed. The attorney that you select will be able to guide you and advise you as to the application of these general principles to your case.
THE USE OF AN ATTORNEY FOR FAMILY LAW MATTERS
We strongly recommend the use of an attorney if you are involved in a family law matter. There are many issues which need to be addressed. In most circumstances it is far easier to resolve issues at the time of the final divorce than after the divorce has been granted.
We charge our fee on a divorce matter on an hourly basis. Make sure you understand what the attorney’s hourly fees are and whether or not he/she has a legal assistant that can perform some of the work on the case under the attorney’s supervision at a lower rate. Our paralegal has over 20 years of experience and charges at a lower hourly rate than the attorneys. She works under the supervision of the attorneys in preparing documents.
Understand what your attorney’s role in your case is. The attorney is not a counselor and his/her bill will be significantly higher if you feel you have to call the attorney every day for a discussion of issues which are really non-legal. Make sure that you understand the theory of your case, that you understand what the attorney expects of you, and that you understand when he/she needs the information that he/she is requesting from you. Make sure you understand whether your attorney wants you to attempt to negotiate any part of the case with your spouse. For example, it may be sensible, in certain situations, to have husband and wife attempt to make a division of the personal property, to avoid the expense of an appraisal or attorney intervention to obtain a division of the household items. On the other hand, it may not be reasonable or appropriate to attempt to have you resolve complex issues of custody and placement with your spouse. If you understand what your role is in the case, you will have an easier time and very possibly a better result with lower legal costs. Remember that your attorney represents you. If your spouse has an attorney, that attorney is representing your spouse and not you. Do not assume that your interests will be protected by the attorney for your spouse. Moreover, a very poor source of information on Wisconsin divorce is the advice given to you by your friends and relatives, based on what happened in their divorces. Remember that all cases are different because the facts in each case are different. Your attorney will be able to analyze your facts and be able to explain to you how Wisconsin law should apply to those facts.
HOW DO YOU ESTABLISH THE RIGHT TO A DIVORCE?
Some years ago, the Wisconsin legislature approved “no fault” divorce. This means that you can now get a divorce in Wisconsin if you can testify under oath in court that your marriage is irretrievably broken and there is no reasonable hope or chance for a reconciliation. If you meet this burden and all other procedural requirements have been met, you will be able to obtain a divorce in Wisconsin.
This works both ways. If your spouse wants a divorce, he/she will be able to get a divorce if he/she testifies that the marriage is irretrievably broken and there is no reasonable hope or chance for reconciliation. The court will ultimately grant the divorce if your spouse maintains this position, even if you testify that the marriage is on a sound basis and you believe that the problems in the marriage can be rectified.
If only one of you states that the marriage is irretrievably broken, then the court has to decide if there is a reasonable prospect for reconciliation. If the court finds that there is no reasonable prospect of reconciliation, it normally finds that the marriage is irretrievably broken. If the court finds that there is a reasonable prospect of reconciliation, it can continue the case for further hearing and may suggest to the parties that they seek counseling. At a continued hearing, if either party states that the marriage is irretrievably broken, the court must make a finding on this issue. While you may be able to delay a divorce by illustrating to the Court that counseling in your opinion may achieve a reconciliation, ultimately your spouse will be able to obtain a divorce if he/she testifies that the marriage is irretrievably broken.
Sometimes clients want to go beyond “irretrievable break down” testimony and feel they should testify about the reprehensible conduct of their spouse. While it is important for you to discuss all aspects of your case with your attorney, we advise you to trust his/her judgment as to whether detailed testimony on the conduct of your spouse is necessary, relevant, helpful or advisable. Marital misconduct is generally (but not always) irrelevant to property division. We can discuss the intricacies of the law with you regarding marital waste and unequal contribution to the marriage.
IS THERE A COUNSELING REQUIREMENT?
Formerly, there was a counseling requirement so that a couple had to attend at least one counseling session before the court could grant a divorce. This requirement has been eliminated, and there is no longer a counseling requirement to comply with. In disputes over children, there is a requirement for a parent education seminar if your case is in Dane County.
SHOULD I ATTEND COUNSELING?
If you are involved in a divorce action, it is/will be one of the most difficult periods of your life. It is very important for you to be able to express your feelings with a professional who can counsel with you. This individual should not be your attorney, who normally is not trained in counseling, but a marriage counselor or other trained professional. Also, we find that many clients are not sure that they want a divorce and are unsure as to whether the marriage can be saved. Counseling will help on this issues. We find that many clients rely on the opinions of their friends as to the future of the marriage, and while advice from friends may be helpful, it is normally no substitute for the advice and assistance of a trained counselor.
If there are problems in your marriage, and you are uncertain as to whether it is in your best interest to continue the marriage, we strongly urge you to attend counseling, even if your spouse is unwilling to attend. Even if you have to go by yourself, you will have a better understanding of the pressures in your marriage and whether the continuation of the marriage is in your best interest. Counseling with a skilled counselor will help you make a decision about whether your marriage can be saved or whether divorce is the only realistic alternative. If you do not know the name of a counselor, you should be able to get a referral from your attorney, your doctor or your pastor. If you have a health insurance plan, the plan may have a list of approved counselors.
WHO DECIDES MY DIVORCE CASE?
In Wisconsin, the judge assigned to your case decides your divorce case. Neither you nor your spouse have the right to a jury trial in a divorce case. However, if you and your spouse reach an agreement, the judge will almost always approve your agreement.
HOW IS THE JUDGE SELECTED FOR MY DIVORCE CASE?
When the divorce action is filed, the Clerk of Court assigns the divorce case to a particular judge. This is a random selection. If you are dissatisfied with the judge assigned to your case, you have the right to request the assignment of a new judge. You only have this right one time, and it must be done soon after the filing and before any hearings are held. Your spouse has the same rights. Your attorney should be able to give you information on the judge assigned to your case and give you advice as to whether you should request another judge.
HOW LONG WILL MY CASE TAKE?
Under Wisconsin law, there is a 120-day “cooling off” period after the action has been filed. This means that you cannot have your divorce hearing before the judge earlier than 120 days from the date that the summons and petition have been filed with the clerk of circuit court. The reason for this is to give the parties an opportunity to reflect on the state of their marriage and to determine whether divorce is an appropriate solution. Without a “cooling off” period it might be possible to get a divorce completed within a very should time. The cooling off period was enacted to give the parties an opportunity to make a reasonable decision with respect to the state of their marriage at a time when they are not as emotional as when the action was commenced.
It is possible under certain circumstances to complete a divorce in Dane County, start to finish, within four or five months after the action has commenced. However, the only way that can realistically happen is if all the issues between husband and wife are resolved so that the matter can proceed as a stipulated divorce. If there is an agreement between husband and wife on all issues, the agreement is normally reduced to writing, signed by both parties, approved by counsel and submitted to the judge for approval. The judge will review the marital settlement agreement, and will normally accept the agreement if he/she finds it fair and reasonable under all of the circumstances, and in compliance with applicable law. We have found that most judges are very cooperative in scheduling stipulated divorce hearings promptly.
If all the issues between husband and wife cannot be resolved, a trial will likely be necessary. If there are issues involving children that have to be tried, it is not unusual for a case to take the better part of 12 months, or even longer. This is because a custody study and a report to the court by the guardian ad litem (an attorney appointed by the court to represent the interest of the children) will almost certainly be necessary. If only property division and maintenance issues are involved, a more likely estimate of the time required would be approximately 10 months, start to finish. Keep in mind that these time intervals are estimates only, and the actual time that will be involved from commencement to completion of a case depends on extraneous factors such as the delay in the particular court because of the number of other cases with priority, the ability to schedule a reasonable amount of time for the trial at a pretrial conference so that there does not have to be a continued trial date, and the ability and willingness of the parties to move the case along on a timely basis. Some of these factors are not in the control of either party.
WHAT IS THE PROCEDURE USED IN WISCONSIN DIVORCE?
The action is started by the filing and service of a summons and petition for divorce. This pleading is normally filed with the clerk of the circuit court in the county in which you live or in the county in which your spouse lives, and these pleadings must be served on your spouse within 60 days from the date that the pleadings have been filed with the clerk. Your spouse may admit service within the 60 day period by signing a form and therefore avoiding the need for a process server. If your spouse and you both want a divorce, you have the right to file a joint petition for divorce. You do not have to serve a joint petition on your spouse. You cannot serve your spouse yourself; service must be performed by a third party. If you cannot find your spouse for service, it may be possible to effect service through newspaper publication of the summons in the manner prescribed in the Wisconsin statutes. Your spouse has the right to file an answer to the petition for divorce within 20 days of the date of service of him/her. The answer or responsive pleading must be filed with the clerk of circuit court in the county in which the case is pending, and copy must be served on you.
WHAT IF MY SPOUSE IS ABUSING OR HARASSING ME?
There may be substantial physical or verbal abuse from one spouse to the other or between spouses, which leads to the commencement of the divorce action. Domestic abuse is taken seriously by the court. Alternatively, once the divorce action is commenced your spouse may be physically or verbally abusive to you. Physical or verbal abuse is a serious matter and can lead to the injury or even death of the victim or other family members. If you are an abused spouse, you can and should take action to protect yourself and other family members. In the last several years, we have been involved in a number of cases when our clients have been injured by their spouse. Some of the incidents could have been avoided had the police been called at the first sign of trouble.
If you feel that your spouse is abusing you in any way, call the police as quickly as you can. This is what the police are for. Determine which police agency has jurisdiction over your location before there is an emergency.
In order to get a restraining order against your spouse, you must allege at least one of the following:
- Intentional infliction of physical pain, physical injury or illness;
- Intentional impairment of physical condition;
- Sexual contact or sexual intercourse without your consent (WS.940.225(1)(2) or (3));
- A threat of any of the above directed toward you.
A Court Commissioner will review the Affidavit that you submit. The affidavit must be completely truthful. If the Court Commissioner feels that there is probable cause that your rights are being violated, or have been violated in the past, a restraining order will be entered against your spouse without a hearing for a short period. You can arrange to have your spouse served with a copy of the order by the county sheriff’s department. If a “no-contact” order is entered, the law enforcement official will serve your spouse and will stand by while your spouse collects, from your household, a limited number of personal possessions. Your spouse is then escorted from the household and is advised that he or she can no longer be near you or the household.
The temporary restraining order against your spouse is reviewed at a hearing before a judge. The purpose of the hearing is to decide whether a permanent restraining order should be granted. It is very important that the Affidavit you complete is truthful and accurate because it is submitted under oath and because your spouse has the right to cross examine you concerning the contents of the Affidavit and the general facts and circumstances surrounding your need for a hearing. If you are not present at the hearing, the restraining or “no-contact” order will be dismissed. If the judge believes that your spouse has, is, or may physically abuse you, the restraining order may be continued for a period of up to 48 months in the form of an injunction.
In addition to filing a domestic abuse retraining order, you may also be able to seek a restraining order against a named individual who can be ordered to cease or avoid harassment of you. If you are being “harassed,” which means striking, showing, kicking or otherwise subjecting you to physical contact or threatening to do the same, or if another person is engaged in a course of conduct or repeatedly commits acts which harass or intimidate you and which serve no legitimate purpose, you may be able to get a harassment restraining order. Please review this material carefully. If you feel your rights are being violated and you are entitled to a harassment restraining order or a domestic abuse restraining order, we recommend that you contact your attorney so that the facts can be reviewed immediately.
Remember, you are always free to contact any law enforcement official for help if you are being threatened or abused-wether or not you have filed for a domestic abuse or harassment restraining order. Call the police or sheriff’s department. Do not feel that you have to put up with abuse.
Furthermore, several private agencies are available to assist you as a victim of domestic abuse or harassment. Often, they can provide or direct you to shelter, educate you on domestic abuse law, or assist you in obtaining and completing the forms for a domestic abuse retraining order. No one deserves to be abused.
Meanwhile, you can take steps to prepare for an attack:
- Keep important emergency phone numbers handy, such as those for police, friends or a private agency;
- Plan an escape route;
- Gather important documents such as bank account numbers, medical records, etc.;
- Make an extra set of car keys;
- Know the location of the weapons in your house that an abuser may use, including kitchen knives, guns, baseball bats, etc.;
- Tell neighbors, friends or family that you may be needing their help;
- See the assistance of a counselor or support group.
LEGAL ISSUES IN A DIVORCE
In our experience, certain issues in divorce cases in Wisconsin tend to be repetitive. This is not to say that all cases are the same or that the results do not vary, because results do vary substantially based on the facts and circumstances in each case. Therefore, the following summary involving issues should be read carefully because, while the law may appear to be clear, the application of the law to the facts of a particular case is at best a subjective determination, and you will be better prepared if you understand the issues that may have to be decided by the Court on your case.
Probably the most significant issue in any case involving children is where they will live and who is eligible to make decisions for the children. In many cases, both husband and wife are so upset and frustrated about the divorce that they attempt to gain custody/placement of this children in order to hold onto the only remnants of the marriage or to spite their spouse. What is most important to the Court on its decision on the custody and placement of children is what is in the best interest of the children and not what is in the best interest of either parent. Many parents will not accept this, and spend thousands of dollars in attempting to obtain custody/placement of children, not necessarily to promote the best interest of the children, but either to promote their perception of their own best interest, to limit their liability for child support or to make an example of their spouse. Study after study shows that most children adapt well to a divorce. However, those same studies show that when parents continue to fight with one another after the divorce is concluded, children do not do well.
Another critical issue is support. Most families today are two income families. If two residences have to be established because of the divorce, normally overall family expenses increase while family income does not increase. The expenses for the spouse who does not have placement of the children increase both because he/she has to find his own place to live and he/she has to pay support. This may mean that other bills do not get paid.
A related issue is maintenance. Ideally, each spouse should be entitled to live after the divorce at the level that he/she lived before the divorce, or at least at the level enjoyed by the other spouse after the divorce. Under specific circumstances, the Court may award maintenance (formerly known as alimony or spousal support) to a spouse in order to permit him/her a reasonable standard of living. For example, a spouse who has become a homemaker and has given up a career may need maintenance in order to obtain additional training or schooling so that he/she can enter the workforce. An award of maintenance can be for a fixed term, such as a number of years, or it may be indefinite, i.e. continuing until further order from the Court. It can be in the form of a contract, i.e. a Section 71 payment, that in most circumstances cannot be varied irrespective of circumstances. We find that maintenance is one of the most difficult areas of the law, and we are hopeful that our review will help you understand the issues involved. If you feel you need maintenance or are being asked to pay maintenance or family support, we recommend that you see an attorney.
Property division is also important. Are you entitled to an interest in the property your spouse brought into the marriage? Under what circumstances are you entitled to a share of the property that your spouse was gifted or inherited? A husband and wife may spend 20 or 30 years building an estate, only to have to divide it if a divorce is granted. Should any weight be given to the fact that one spouse makes all of the money while the other spouse stays home and takes care of the children and keeps house? Have the parties executed (signed) a written agreement either before or during their marriage setting out who gets what in the event of a divorce? A division of debts is part of a property division. Are you responsible in whole or in part for the debts that your spouse has run up in a shopping spree immediately before the action is commenced? Is it the property at the date of divorce or the value at the date of filing that is important? Your attorney will be able to help you with detailed answers to these questions.
A. Custody and Physical Placement
In most cases, husband and wife ultimately agree on the concept of “legal custody” and the concepts of “physical placement.” If you are the legal custodian for your children, this means that you have the legal right to make major decisions concerning the children. If you are the legal custodian, you have the right to give or withhold consent for your children to marry or to enter the armed forces while they are minors. You have the right to obtain medical, dental, educational and other care for your children. You can select the religion in which your children will be raised. You may be able to select the school(s) your children will attend.
If you have joint legal custody, you share custodial rights and responsibilities for the children with your spouse, and your rights are neither superior or inferior, unless the Court order contains a limitation. Both parties will share in the decision making for the children. Joint custody does not determine where the children live. It means the right to make certain decisions for the children. On the other hand, if the parents cannot agree on anything, it may be better for the children to have only one parent as legal custodian. Alternatively, the Court can give each parent authority to make custodial decisions in certain areas. This works well if the respective areas of responsibility are defined. Remember that the Court will maintain continuing jurisdiction over the children before they become emancipated, and that it is possible, given certain limited circumstances, to effect changes in custody (or physical placement) after the divorce has been granted.
“Physical Placement” means where the children live. In many ways, the concept of placement may be more important than legal custody, since the primary placement parent generally makes the daily decisions involving the children. Both parents are entitled to periods of placement with their children unless this is not in the best interest of the children. If you are behind on your child support, your spouse cannot deprive you of placement for this reason alone.
In our experience, the court will approve almost any placement schedule that is realistic, is in the best interests of the children and which is approved by both parents. Your attorney or Family Court Counseling Service should be able to give you current advice on the current range of placement options which have been used successfully in the courts in the county in which the case is pending.
If you cannot make an agreement with your spouse concerning custody, placement and other issues involving your children, mediation is appropriate. If that doesn’t work, a custody study may be necessary. These matters can be referred to Family Court Counseling Service by the court. There, the parents first attend an orientation session (parent education) so that the Family Court Counseling procedure is explained to them, and then the case is assigned to a mediator. In our experience, the counselors/mediators in Family Court Counseling Service in Dane County are uniformly excellent. The mediator is neutral, and will attempt to resolve issues of legal custody and placement with both parents. The success rate for effective resolution of custody placement disputes through the use of this mediation service is very high. Most cases are resolved successfully by mediation. While there is a charge made by Family Court Counseling Service for its services, the charge is nominal compared to the significant amount of cost and expense that is avoided when custody and placement issues are resolved in this fashion. The mediator will normally draft a “settlement” agreement with respect to the agreement reached by the parties concerning custody and placement. This agreement is then sent to the parties, their attorneys and to the court and it becomes a part of the final settlement agreement in the case. If a portion of the case remains to be tried, i.e. such as maintenance or property division issues, at least the custody and physical placement issues do not have to be tried, which means that there is a significant saving in time and expense by resolving this aspect of the case. It also helps take the children out of the middle of the fight.
Please attend all scheduled Family Court Counseling Service sessions. If you can resolve the custody/placement dispute through mediation, as opposed to trial, everyone, including the children, benefits. If mediation fails, a custody/placement study may be necessary. A counselor from Family Court Counseling Service is assigned to the matter, who must be a counselor other than the counselor who attempted to mediate the dispute. A guardian ad litem may also be appointed. A guardian ad litem is normally an attorney in private practice who has the responsibility of representing the best interest of the children, whose interests may be different from the interest of the parents. If a custody/placement study is involved, Family Court Counseling as well as the guardian ad litem make an exhaustive study and ultimately reach a conclusion and make a recommendation as to where it is in the best interest of the children to live. Parents are interviewed, friends and neighbors are consulted, teachers and other school officials are consulted, other individuals with relevant information are interviewed and the children are also interviewed, dependent on their ages and maturity level. While the opinions of children may be important, they are weighed along with all of the other aspects of the case and become a part of the final decision making process. On this issue, it is important for you to understand that the children should not be pressured or lobbied by either parent to live with them. This puts an enormous amount of pressure on children, who are not the cause of, but frequently become the victims of divorce. Do not ask your children if they will agree to live with you. This puts children in an impossible situation, because most children love both parents. Talk to Family Court Counseling Service or your counselor about how to approach these issues with your children. If the custody study indicates that you are putting pressure on your children, we believe that this will work against you on the ultimate decision by the court on custody/placement.
Most courts give substantial weight to the recommendations of Family Court Counseling Service and the guardian ad litem with respect to the custody/placement issues. It is important for parents to understand that, in normal circumstances, they will share, generally equally, the cost of the custody study through Family Court Counseling Service and the fees of the guardian ad litem. The amount of the guardian ad litem’s fees will vary dependent on his/her hourly rate and the amount of time spent on the case. As is the case with your own attorney, make sure you understand the guardian ad litem’s hourly fees and what your responsibility toward payment of these fees is. Make sure you make an appointment to meet a guardian ad litem appointed to represent your children as quickly as possible after the appointment is made so that you can understand the procedure that the guardian ad litem is going to use in your case and what information he/she wants from you.
Our system in Dane County is a good system and is designed to minimize, to the maximum extent possible, the necessity of trying custody/physical placement issues. The mediators in Family Court Counseling Service are excellent and, together with the attorneys appointed to represent the children in a divorce, are able to resolve most of these cases in a way that is in the best interest of the children and in a way which is also equitable to the parents.
These issues are among the most difficult issues in a divorce case. It is important for you to understand that while you have rights, your children also have rights, and the Court will be most concerned with protecting the rights of the children on issues involving placement and custody. The children of a marriage have the following rights, irrespective of the difficulty that their parents are having in the marriage or the divorce:
- The right to be treated as important human beings, with unique feelings, ideas and desires and not as a source of argument between parents.
- The right to a continuing relationship with both parents and the freedom to receive love from and express love for both.
- The right to express love and affection for each parent without having to stifle that love because of fear of disapproval by the other parent.
- The right to know that their parents’ decision to separate is not their responsibility and that they will have contact with both parents.
- The right to continuing care and guidance from both parents.
- The right to have answers to questions about the changing family relationships (without having too much knowledge that is properly for the adults only).
- The right to know and appreciate what is good in each parent without one parent degrading the other.
- The right to have a relaxed, secure relationship with both parents without being placed in a position to manipulate one parent against the other.
- The right not to be the source of argument between the parents or to be threatened with not seeing the other parent.
- The right to be able to experience regular and consistent contact with both parents and to know the reason for cancellation of time or change of plans.
If your spouse and you can follow these principles when dealing with your children, we guarantee that your children will benefit.
The Wisconsin Statutes provide a series of issues that the court should consider when deciding custody/physical placement issues, as follows:
- The wishes of the parents;
- The wishes of the children as communicated through the guardian ad litem or court counselor;
- The relationship between the children and the parents and other siblings;
- The children’s adjustment to home, school, religion and community;
- The mental and physical health of the parties, the children and other persons living with the parent;
- The availability of child care services;
- Whether one party is likely to unreasonably interfere with the children’s continuing relationship with the other party;
- Whether there is evidence that a party engaged in child abuse;
- Whether there is evidence of interspousal battery or domestic abuse;
- Whether either party has or had a significant problem with alcohol or drug abuse;
- Such other factors in each individual case as the court may in case determine to be relevant.
We are frequently asked questions about what happens if things change, i.e. what happens if the wife is given physical placement of the children, and after several years, is unable to handle the children and it is not in the best interest of the children that the children stay with their mother. Can an action be brought in court if circumstances change?
The answer to this is a qualified “yes.” The court maintains continuing jurisdiction over minors who are not emancipated, and if at any time the circumstances require a change of custody or placement, access to the court is available. However, implicit in the law is the realization that children should not be bounced between mother and father with a constantly changing schedule. Wisconsin law recognizes this by making it more difficult to change placement during a period of two years after the divorce is granted. As a practical matter, unless the spouse with placement is not doing a good job with the children, it is also difficult to change placement after that period. Therefore, the time to consider the issues of legal custody and physical placement is at the time the case is commenced and before the Temporary Order hearing. If you agree that your spouse can have temporary placement and custody of the children at a Temporary Order hearing, it may be very difficult or impossible to convince anyone that the arrangement should be changed at the divorce trial or later. It is, therefore, critical that you review these issues with your attorney as soon as possible after the commencement of the case.
Another repetitive issue that should be recognized is how matters are handled if the spouse with primary placement of the children wants to move from his/her location at the time of the divorce. For example, if your spouse is given placement of your children, and your spouse wants to move out of state, are you realistically able to petition the court to keep the children in Wisconsin?
This is a highly technical area, and you should review it with your attorney. In any situation in which the court has granted periods of physical placement to both parents, neither parent is permitted to move the children out of state or more than 150 miles within the state from the location of the other parent without the consent of the other parent or a court order. The court’s authority to prohibit such a move was expanded by a new law that was passed in 1995, and whether your reasons for the move meet the standards required to allow the more is an issue to review carefully with your attorney. If you are aware that you want to move with the children, either during the pendency of the divorce or immediately after it is finalized, disclose that fact to your attorney so that the issue can be properly dealt with as a part of the divorce resolution. Any move, even within 150 miles, which interferes with the placement schedule, may (or may not) be allowed.
B. Child Support
1. Child Support — General Rules
Wisconsin has recognized that there should be a mechanism by which support awards can be made on a consistent basis, without the necessity of litigating the amount of every support award. In general, the law requires that the court follow specified guidelines concerning setting child support, except in certain limited circumstances. See: http://dcf.wisconsin.gov/publications/dwsc_824_p.htm
Simply stated, “gross income” is defined as all income that is derived from any source and realized in any form. The percentage standards that are applied to gross income are:
17% for one child 25% for two children 29% for three children 31% for four children 34% for five or more children
The child support obligation as set forth in the DCF guidelines is based on earning capacity. In certain instances the court, upon request of a party, may modify the amount of child support payments. The Court may deviate from the percentage guidelines only if it finds that the application of said guidelines is unfair to the child or any of the parties.
The standard support obligation may be reduced based on a “shared time payer” status. See “Special Circumstances” below.
It is important for you to analyze your situation and your real reason for arguing that the child support standards should not apply, if you are the payor and not the primary placement parent. If the best interests of the children require that they be with your spouse rather than you, then child support is probably going to have to be paid at guideline levels. We encourage you to review these matters very carefully with your attorney, since the child support obligation normally lasts for many years.
In addition to the child support guidelines, some courts also award to the parent with primary placement a percentage of child care expense if very young children are involved and the amount of child support ordered is relatively low. Although the theory that the courts use for this may vary somewhat, what we have encountered consistently is that if a parent who does have primary placement is expected to work, he/she should not have to use all of his/her income simply to pay child care expenses, and the other parent should contribute to the child care expenses.
The issue as to whether there should be an additional payment for child care expenses does vary from judge to judge in the same county, and if this appears to be an issue in your case, you should consult with your attorney on how best to handle it.
Children must be adequately cared for. Courts will normally ensure that support at the requisite DCF level is paid irrespective of whether there is enough money left to pay other expenses and obligations of the payor. It is not a good idea to terminate your position or find a position that pays less to avoid an obligation for support. There are many cases in Wisconsin involving “shirking,” i.e., factual situations where a payor deliberately cuts down his/her income in an attempt to lower a child support obligation. This is a technical and complex area of the law, and we urge you to consult with your attorney to get proper advice on this issue before you attempt to avoid a support obligation by becoming under employed.
2. Child Support — Special Circumstances
a. Serial Payer: The court applies a special formula to determine the child support obligation of a “Serial Family Payer.” A “serial family payer” means a payer with an existing legal obligation for child support who incurs as additional legal obligation for child support in a subsequent family as a result of a court order.
b. Time Shared Between Parents: A “Shared Time Payer” is a payer who provides care for a minimum of twenty-five percent (25%) of the overnights (or equivalent time as determined by the court). An individual having placement beyond this threshold has assume added financial responsibilities for having extended physical placement with the minor child. Accordingly, the amount of child support that this individual is required to pay under the standard percentages may be reduced. The more time the shared time payer spends with the minor child, the greater the percentage reduction in payer’s child support obligation.
c. Maintenance: Maintenance used to be called “alimony” or “spousal support.” It can be part of a Temporary Order and/or it can be part of the final order by the judge. The designation of payments to a spouse as “maintenance” generally means that the payments are tax deductible by the individual making the payments and reportable as income by the recipient of the payments. Maintenance payments can be for a fixed term, i.e., a period of two years, at a rate of $500.00 per month, or can be for an indefinite term, i.e., at a rate of $500.00 per month until further order of the court. Maintenance is subject to revision if a request for revision is made in accordance with state law. A request to adjust maintenance must be made during the time that maintenance is being paid and not after the termination of maintenance payments ordered by the court. So-called “Section 71” payments can also be ordered by the court, if agreed to by the parties. A Section 71 payment is effectively a contract between the parties which permits the payment of funds which are equivalent to maintenance for a particular calendar period. The essential difference between Section 71 payments and maintenance payments is that Section 71 payments are normally not adjusted by the court under any circumstances. A payor who may make substantial additional income over the period after the divorce may want to make Section 71 payments, because if his/her income goes down, he/she may not be able to adjust the amount of the payment to reflect his/her lower income.
Maintenance claims are frequently made in a situation which involves a husband who has been the breadwinner, with the wife not employed outside of the home, whose primary responsibility is maintaining the household and raising the children. If there is a divorce, and if the marriage has lasted an extended period of time so that the wife does not have any vocational skills, should she be given a period of maintenance to permit her to develop the skills necessary to reenter the market place? Should she be given a period of maintenance to permit her to live at a standard of living roughly comparable to that of her spouse, since the support she is receiving really is for the benefit of the children? How long should the period of maintenance last? Should it be relatively short term, so that the recipient has to reenter or enter the market place? Does the recipient have a duty to develop income or does he/she have the right to continue to be supported by the spouse?
The court will consider the following factors in determining maintenance issues:
- The length of the marriage;
- The age and physical and emotional health of the parties;
- The division of property;
- The educational level of each party, both at the time of the marriage and the time of the divorce;
- The earning capacity of the party seeking maintenance, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibility for the children, and the time and expense necessary to acquire sufficient education or training to enable the party to find appropriate employment;
- The feasibility that the party seeking maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and, if so, the length of time necessary to achieve this goal;
- The tax consequences to each party;
- Any mutual agreement made by the parties before or during the marriage concerning this issue;
- The contribution by one party to the education, training or increased earning power of the other;
- Such other factors as the court may, in an individual case, determine to be relevant.
Your eligibility to pay or receive maintenance may be determined by the facts of your case. We urge you to consult with an attorney if you feel you need maintenance or if your spouse is requesting maintenance from you. The concept of maintenance can present complicated issues. If you waive maintenance at the hearing in your divorce before the judge, you waive the right to maintenance forever, and you cannot change your mind at a later date and receive maintenance. If you are paying your spouse maintenance and he/she remarries, you can terminate your maintenance payments upon application to the court. If you feel you need more maintenance, you may have the right to request an increase if your request is timely. A request to increase the length or amount of maintenance must be made to the court prior to the time that the maintenance ends.
Sometimes the term “family support” is used. The common meaning of this term is that if is a payment from a payor to a recipient that has elements of both maintenance and child support. If properly structured, it can be deductible to the individual paying and reportable as income by the person receiving the payment. (Child support is not taxable to the recipient nor tax deductible by the payor.)
d. Property Division: In Wisconsin, the presumption is that all property is to be divided equally between the parties at the time of the Judgment of Divorce. The exception is gifted or inherited property, which may be exempt from property division under specified circumstances. Wisconsin courts do have the right to make an unequal property division dependent on the following factors:
- The length of the marriage.
- The property brought to the marriage by each party.
- Whether one of the parties has substantial assets not subject to division by the court. (gifted and inherited property)
- The contribution of each party to the marriage, giving appropriate economic value to each party’s contribution in homemaking and child care services.
- The age and physical and emotional health of the parties.
- The contribution by one party to the education, training or increased earning capacity power of the other.
- The earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the mob market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to come self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage.
- 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.
- The amount and duration of an order under §767.26 granting maintenance payments to either party under §767.261 and whether the property division is in lieu of such payments.
- Other economic circumstances of each party, including pension benefits, vested or unvested and future interests.
- The tax consequences to each party.
- Any written agreement made by the parties before or during the marriage concerning any arrangement for property distribution; such agreements shall be binding upon the court except that no such agreement shall be binding where the terms of the agreement are inequitable as to either party. The court shall presume any such agreement to be equitable as to both parties.
- Such other factors as the court may in each individual case determine to be relevant.
Legitimate questions that can be asked about a property division would include the following:
- If I inherit money and use that as a down payment on a house that I title in the name of my spouse and I, is the exempt nature of the inheritance lost?
- How do I value my pension plan?
- Is my spouse entitled to an interest in my pension plan?
- Can I deduct from my pension plan valuation the amount in the plan as of the date of my marriage?
- Can my spouse exclude from the property division household furniture and furnishings which was given to him/her as a gift but which was used by both of us during our marriage?
- How do I value items of personal apparel or clothing or is it even necessary to value a lot of the personal property if my spouse and I can come to an agreement on division?
- If I have primary placement of the children and want to keep the house, will I have some time to pay my spouse his/her share of the equity in the house?
- Do I have to pay my spouse interest if I cannot pay the cash equalization payment to him/her immediately?
- If our marriage agreement is that I stay home with the children and my spouse works, should I be penalized in the property division because I did not make as much money as he/she did?
- How do we divide up the cars and personal property if we cannot agree?
Some of the above questions may apply to your case or you may have other questions for which you do not know the answers to. Poor sources of information are comments by friends as to what happened on their divorces, or comments from friends as to what their attorneys advised them. Most people who have been divorced consider themselves instant experts; or they will tell you what they think you want to hear. Do not take chances. If you have questions, consult with your own attorney and get your questions answered promptly.
THE TEMPORARY ORDER HEARING OR “IS IT REALLY TEMPORARY”?
After a Wisconsin divorce action is commenced, it is customary to have a “temporary order” entered so that during the time that the case is pending both parties understand who has custody of the children, who has primary placement of the children, what the visitation schedule is, how much support is to be paid and when, who pays what bills, who gets the use of the home or apartment, and who gets the use of which car and other personal property, and who is responsible for other costs and expenses.
If your spouse and you can agree to the terms of a temporary order, a written stipulation can be prepared and submitted to the Family Court Commissioner for approval. If the Family Court Commissioner approves the written stipulation, normally no temporary order hearing is necessary. If your spouse and you cannot agree on the terms of a temporary order, then it is normal to have a hearing so that the rights and responsibilities of each party during the pendency of the action can be allocated.
We view the temporary order as a critical part of the case. Although temporary orders are not supposed to have precedential impact, they do seem to “drive” the final result. Custody and placement orders as made the Family Court Commissioner frequently end up as part of the final order on your case.
You should obtain legal advice concerning your rights and responsibilities in a divorce action as soon as you have any idea that a divorce action may be commenced. The reason for this is that courts, in their final decisions, will frequently continue the “status quo” because the “status quo” appears to be working. Many times a party to a divorce action will agree to a temporary order because he/she wants to cooperate, does not want another fight, does not want to deal with the issues, or feels that the order is only temporary and can easily be changed by the judge. Eighteen months later, when the case is finally in trial, he/she finds out that the judge does not want to change the status quo as reflected in the Temporary Order. The case is therefore decided on the basis of the original Temporary Order. Let us give a specific example of what we mean.
If you believe you do or will want placement of your children, and your spouse wants you to leave the premises and live someplace else so that he/she has a chance to “think things over,” we recommend that you not leave until such time as you have had an opportunity to review the ramifications of your action with your attorney. If you leave your home voluntarily and leave your children in the care of your spouse before the temporary order hearing, is this an admission against your interest that your spouse is an adequate caretaker and that it is in the best interests of your children to be placed primarily with your spouse? If you leave your home before the temporary order hearing, is it likely that the Family Court Commissioner will permit you to return to the house or have primary placement at the hearing? If your spouse obtains a temporary order giving him/her primary placement of the children, is it likely that the court is going to change this determination and thereby uproot the children some eighteen months later at the completion of the case? Decisions concerning placement and custody made at or before the commencement of the case often govern the final result. If you have children and are concerned about issues involving custody and placement, make sure you obtain the advice of an attorney to protect your interests.
HOW IS A TEMPORARY ORDER HEARING CONDUCTED?
Unless an agreement is reached beforehand you should be at the Temporary Order hearing. If you are not there, you will likely be unhappy with the Order because the Family Court Commissioner did not hear your side of the case. Most of the time a hearing goes like this:
- If the parties have not exchanged preliminary financial statements, these documents are exchanged at the commencement of the Temporary Order hearing. Both sides then review, as carefully as time permits, the financial disclosure statement of the other. Make sure sufficient copies are prepared for your spouse, his/her attorney, the Family Court Commissioner and your attorney. Please remember to bring the necessary wage stubs if you have been ordered to bring them. This is normally for the 12 week period prior to the hearing. You must also bring your last 2 years of tax returns.
- The Family Court Commissioner generally wants to know what the parties can agree to and what issues he/she has to decide.
- Some Family Court Commissioners really do not take evidence but simply listen to arguments by both parties on the issues, determine what the facts are and make a decision. In other cases, the Family Court commissioner will want testimony taken. If testimony is taken, your attorney will ask you questions. The attorney for your spouse and/or your spouse, if he /she does not have an attorney, will be able to cross examine you on your testimony. Based on the evidence presented, after argument, the Family Court Commissioner issues his/her decision.
You have the right to have the decision of the Family Court Commissioner reviewed by the judge assigned to your case if a timely “de novo” request is filed within 15 days (in Dane County). The judge will hold a new hearing and make his/her decision based on what is presented at the hearing. You may have to wait for several weeks (or even longer) before the judge can schedule the hearing. The original order remains in effect until changed by the judge.
PREPARATION FOR THE TEMPORARY ORDER HEARING
It is important to prepare properly for the Temporary Order hearing. At a minimum, the preliminary financial disclosure statement, which is signed under oath, must be properly prepared. Normally, earning statements for the last 12 weeks should be submitted with the financial disclosure statement.
Other preparation is as follows:
- If you desire placement and/or custody of the children, given consideration to reducing to writing your proposal as to custody and placement and the reasons therefore. This will force you to organize your thoughts. It may also save everybody time if you have a “punch list” available that might be used as an exhibit as to setting out valid reasons, under Wisconsin law, as to why your children should be placed with you on a temporary basis. Moreover, you will normally make a better presentation if you are organized. Our best advice is to make a decision, if at all possible, as to whether you want to contest for placement of the children before you get to the Temporary Order hearing and before you move out of the house. If you want to contest for the placement of the children, make sure you do so at the Temporary Order hearing. To effectively do so, we believe you need the assistance of an attorney.
- Before the Temporary Order hearing, you should prepare a listing of the personal property that you desire to make use of during the time that the case is pending in court. Personal property can be such things as beds, television sets, and kitchenware. Or it could involve such things as savings and checking accounts. If you force yourself to think, in advance of the Temporary Order hearing, what personal property you desire to use during the time that the case is pending in court, you will be better prepared to make this argument and you will not forget anything.
- Debt division is also very important. If there is a divorce, the living expenses of the family unit tend to increase dramatically because normally two households have to be maintained, and income does not go up proportionately. Therefore it is very important to analyze the debts of the marriage, and to divide these debts, on a temporary order basis, in a reasonable way. The only effective way to do this is to have a listing of all of the debts of your spouse and you, including the monthly debt service required to maintain the account without it going into default. Debts will normally be considered part of the property division in your case. Should the total amount of debt be divided equally, be attached to the asset (i.e., if you receive the car, should you pay the car loan?) Or be prorated based on income or be divided in some other way? Your attorney will be able to help with the answers to these questions.
- Under normal circumstances, all insurance should continue in full force and effect during the pendency of the case. This means that you should not change your life insurance beneficiary designation from your spouse just because your spouse wants a divorce. Similarly, health insurance should be left as is. If you carry your spouse on your health insurance policy, under normal circumstances the court will order you to continue that coverage during the time that the case is pending. Uninsured expenses on health insurance for husband and wife and minor children should also be assigned in the Temporary Order. Frequently, each pays his/her uninsured medical, and the uninsured medical expenses for the children are divided equally. It will pay you to compare your health insurance policy to the health insurance policy of your spouse, so that an intelligent decision can be made as to whether the children should be carried on your policy or on the policy of your spouse, if he/she has an available policy.
- It will also be important for you to think through what type of placement you want or what type of placement you want your spouse to have. Be prepared to state which you prefer and the reasons why. Please make a note of reasons why you feel your proposed placement schedule is in the best interests of the children. If your spouse is an alcoholic or drug abuser, or there are other reasons why he/she should not be permitted to have the children in an unsupervised capacity, make sure that you provide evidence why supervised visitation is in the best interests of your children. Any history of domestic abuse must be considered by the court.
- Remember that the hearing before the Family Court Commissioner is like a hearing in court, although it may appear to you to be more informal because the hearing is normally handled in an office and not a courtroom. Remember that the Family Court Commissioner before whom you appear may have five or six cases, similar to yours, that day and is not generally interested in listening to shouting matches, cursing or arguments and accusations between your spouse and you. The Temporary Order hearing is normally scheduled within 2-3 weeks after the divorce action has been started, and is held at a time when emotions are still very high between your spouse and you. You will hurt yourself if you cannot maintain control of your emotions. If you have an attorney, your attorney will maintain control of your portion of the hearing. Listen to your attorney. Let your attorney make your presentation and argument. Do not interrupt. If your spouse says something that you do not agree with, give your attorney a note as to your position. Do not cut your spouse off. Let him/her give his/her position without interruption from you. You will hurt yourself if you cannot maintain control of your emotions. It is very important for your position to be stated convincingly, reasonably and professionally. Your attorney will be of inestimable value in accomplishing this goal. Listen to your attorney and respond to his/her questions. Your attorney will know what facts are relevant and what facts are not relevant. Although it may be difficult for you, do not lose control of your emotions. If you do, it will only hurt you.
WHAT HAPPENS AFTER THE TEMPORARY ORDER HAS BEEN ENTERED?
If you are not satisfied with the temporary order entered by the Family Court Commissioner, you have the right to a hearing before the judge who is assigned to your case. After the temporary order has become final, it normally remains in effect until the final decision of the judge. However, either party has the right to attempt to change or modify the provisions of the temporary order, once final, either through agreement or through another hearing before the Family Court Commissioner, during the time that the case is pending. Normally, a substantial change of circumstances should be shown before a temporary order is modified by the Family Court Commissioner.
After a pretrial conference before the Family Court Commissioner is held, a certificate of readiness is issued, and the case is sent to the judge. The judge assigned to the case will also, either on his/her own motion, but more normally at the request of one of the parties, schedule the matter for a pretrial conference. Again, the purpose of the pretrial conference is to continue to move the case toward trial. At the pretrial conference before the judge, a trial date is frequently established. The judge will want to know what the issues are. He/she will want to know how much time is necessary for trial and will want to enter an order concerning discovery deadline, naming of experts and other issues. Most judges adhere to the discovery deadlines in the pretrial order, and it is very important that you understand these deadline and be prepared to observe them. Some judges are also willing to give a preliminary view on what they may do on certain issues. If a judge will tell the parties, for purposes of illustration, what his/her normal position is on issues such as debt division, varying the presumption involving an equal property division, or what he/she looks for when he/she considers the viability of a pre-marital agreement, many divorce cases can be resolved. Some judges will not make any comments on what they may or may not do before they hear all the evidence at trial. However, some judges will want to talk through the issues and are willing to give a preliminary view. The parties will likely be referred to financial mediation before a trial is held.
BORNS LAW OFFICE is hopeful that this summary of issues and general legal principles is of some help to you in understanding what is involved in a Wisconsin divorce. The areas of law that we summarize are the areas that seem to be most troublesome to our clients. Please remember that we have only touched upon very basic principles. The facts in your case will likely be different from any other cases. You may have issues in your case that are not covered here. Do not let anybody ever tell you that Wisconsin divorce is a simple subject. Decisions that a party makes at the onset of a case, when that party is highly emotional or under severe mental strain, may be difficult to change at a later date. We believe that an attorney’s advice, prior to, at the commencement of and during the case is critical. You cannot be expected to know what position you should take on every issue presented in your divorce, or even, necessarily what the issues are, without a full understanding of the law and without a full understanding of how the courts handle these cases. Also, emotions get in the way of common sense. This is why having your own attorney, who will be familiar with your case and is experienced in this area of the law, should be very important to you.
We are hopeful that the information contained in this web site will be of benefit to you in a difficult period in your life.