Civil
Divorce, Paternity, Termination of Parental Rights, Guardianship and Protective Placement, Guardian ad Litem, Grandparent Rights
Life can be complicated.
Almost everything we do is affected by the law in some way – from getting married to helping our aging parents and, at times, maybe even helping our kids if they need it. Clearly, people don’t need a lawyer for their everyday interactions as some issues are not really legal in nature, but many issues do have a legal aspect and an attorney’s assistance can help you navigate through those issues with a greater degree of ease.
Divorce.
No one gets married with the intention of ever having to endure a divorce, one of life’s most traumatic experiences. Unfortunately, some marriages deteriorate beyond repair. If you’re facing a divorce, you need to know what lies ahead in the legal process. Our attorneys understand that family matters require patience, compassion, discretion and support.
Ensure your rights are fully protected
No one ever wants to face a divorce. It is one of life’s most traumatic experiences. Have you and your spouse found there is no way to work out your differences? If only one spouse wants a divorce, a judge will usually find a marriage irretrievable broke.
What is the difference between a divorce and a legal separation?
A divorce will end a marriage. A legal separation involves the same procedures as divorce but the separated spouses can’t marry others. Legal separation is an alternative for those who wish to avoid a divorce.
If one spouse wants to seek having a legal separation converted into a divorce without the other spouse’s consent, they can do so after one year. If spouses reconcile, they may apply to have the separation revoked.
What is an annulment?
An annulment will dissolve a marriage that was invalid from the beginning. A marriage may be invalid because one spouse may have been too young, unable to have sexual intercourse, incapable of consenting to the marriage or they were induced to marry by fraud or force.
How long must I live in Wisconsin before filing for divorce?
You must be a resident of Wisconsin for at least 6 months before filing for divorce. You must also live in the county where you file for at least 30 days.
How long does it take to get a divorce?
Four months (120 days) must pass between serving of the initial papers and the final divorce hearing. Most divorces take longer than four months.
Several factors may affect the length of the divorce process:
• Complexity of the case
• Ability of the spouses to agree on the issues
• Amount of other business before the trial court
A divorce will not be effective until the final hearing. Once a divorce is final, both parties must wait at least six months before getting married to another person.
Can my rights be protected between the start of a divorce action and the final hearing?
Yes, your rights can be protected throughout all aspects of a divorce action.
There are additional responsibilities for parents who have minor children together.
The judge or family court commissioner may issue temporary orders to protect your rights during the divorce process.
How does the court determine child support payments?
If a parent has physical placement with their child for less than 25% of the time, the court will usually base child support on a percentage of that parent’s gross (pre-tax) income.
The standard child support percentages are:
• 17 percent for one child
• 25 percent for two children
• 29 percent for three children
• 31 percent for four children
• 34 percent for five or more children
There is a separate child support formula for shared placement.
What is maintenance?
Formerly known as alimony, maintenance is money one spouse pays to the other during or after a divorce. Child support is not tax deductible, maintenance payments are.
How does the court decide whether to award maintenance?
A husband and wife can make an agreement on whether maintenance is appropriate and what the amount and duration will be. If there is no agreement, the judge will decide these issues.
What is a wage assignment?
A wage assignment is a court order that directs an employer to deduct child support or maintenance payments from an employee’s pay.
How does the court divide property?
Most of a couple’s property, including assets such as retirement accounts and personal property, can be divided in a divorce. One exception to this division is property that has been received either as a gift from a third party or an inheritance. There are some circumstances in which even gifts or inheritances may be divided.
If the couple cannot agree on how to divide their property, the court will make the decision.
What is a default divorce?
A default divorce is one in which the spouses do not have any contested issues for the court to decide.
A “default divorce” should not be confused with a “no-fault” divorce. A no-fault divorce means that the petitioner does not need to prove wrongdoing on the part of the other spouse in order to file for divorce. Wisconsin is a no-fault divorce state. The only legal basis for divorce in this state is that the marriage is “irretrievably broken”.
What if my spouse and I can’t reach an agreement?
If you and your spouse cannot reach a final agreement, the case will go to trial. The trial date will depend upon the length of time needed for the hearing and the court’s other business. Contested divorce trials are generally costly and involved. The court will enforce rules of evidence which can contain pitfalls for the unwary. The best way to avoid protracted litigation is to hire an attorney.
Can spouses use the same attorney?
Will the court order my spouse to pay for my attorney?
Ethical rules prohibit an attorney from representing both spouses in a divorce proceeding.
Occasionally, an attorney will represent one spouse while the other spouse chooses to represent himself or herself.
Representing yourself during the divorce process can have hidden consequences which you probably will not realize until your divorce is final and it is too late to change the judgment.
Generally, each party pays for his or her own lawyer.
May a woman use her former name after a divorce?
If a woman wants to resume using her maiden name or a former legal name after a divorce, the court can restore it as part of the divorce action. She may also continue to use her married name if she so wishes.
What can I do if I am dissatisfied with the final divorce judgment?
You may appeal to the Wisconsin Court of Appeals. There are strict time limits that exist for filing an appeal (usually 45 days). An appeal is expensive.
Can the final divorce judgment be changed in the future?
The trial court is able to modify certain orders, such as a child support and physical placement order, in the future. You must show that a substantial change in circumstances has occurred since the current orders have gone into effect before the trial court can revise the judgment. Once the property division order has been approved by the court, in most cases, it cannot be changed.
Can I move to a new location after the divorce?
You may face limitations on where you can move after a divorce just as you do during a pending divorce if you have children.
If my spouse fails to pay bills as ordered by the court, can the creditors sue both of us?
Yes, creditors may sue both of you for failure to pay bills.
What is mediation?
Through mediation, parties may be able to resolve their disputes faster, with less bitterness, at less cost than a battle in court. A mediator takes no one’s side. Their role is to help parties communicate and arrive at mutual agreements.
What are cooperative and collaborative divorce?
The focus of these processes is settlement of issues. Experienced family lawyers are essential to this process.
What should I look for in a divorce attorney?
Good divorce lawyers don’t push their clients into a full-scale war, contrary to what many people believe about divorce lawyers. This can only leave behind emotional and financial damage and resentment that can linger for years.
The best outcome in a divorce is that both parties are allowed to begin to heal and get on with their lives. Experienced divorce attorneys will help their clients settle their divorce, if at all possible, rather than go to trial.
As you ask family and friends for recommendations, you should seek the services of a divorce lawyer who will:
• Act as a problem-solver
• Be courageous enough to tell you things you may not want to hear
• Be courteous and cooperative in working with your spouse’s attorney
Guardian ad Litem.
What is a guardian ad litem?
A GAL is an attorney who is licensed to practice law in Wisconsin. The role of the GAL is to represent the best interests of the children as determined through an investigation.
The GAL will:
• Investigate the facts
• Participate in negotiations
• Take a position in court on legal custody and placement
The GAL does not have any rights and duties that a parent or general guardian have. The GAL may be incorrectly referred to as the children’s attorney but, in fact, their role is to advocate for the best interests of the children. This may not be the same as advocating for what the children may want.
What determines whether a GAL becomes involved in a case?
The court must appoint a GAL when the parents cannot come to an agreement on custody and placement. Unless the court waives the requirement, the parents must first try mediation to reach an agreement. If they cannot reach an agreement, the court will appoint a GAL to assist the court in deciding the issues of custody and placement. The court may also appoint a GAL if it has a special concern for the welfare of a minor child. When the best interests of the children are at issue, the court may appoint a GAL at any time in the proceeding. An exception is in a proceeding for modification if the proposed modification would not substantially alter the placement times. The court may find that a GAL would not provide assistance in making its orders.
How is a GAL appointed?
A GAL is appointed by a family court commissioner or judge, usually upon the request of one of the parents. The procedure may vary by county. Some counties have lists of attorneys who take GAL appointments while other counties have contract with specific attorneys for GAL appointments.
What is the GAL’s role?
In representing the best interests of the children, the GAL may:
• Negotiate settlements
• Conduct formal and informal discovery
• Hire experts
• Interview witnesses
• Investigate whether there has been violence or abuse between parents
• Comment on proposed parenting plans or any stipulation or mediation agreement reached by the parties
• Participate in all court proceedings
Either party may request the court hold a status hearing on the actions taken or work performed by the GAL any time after 120 days from the GAL’s appointment.
Will the GAL meet with my children and me?
The GAL usually meets with both parents separately in the GAL’s office. Generally, the GAL will meet with your child. The GAL will make the decision when and where to meet with your child. This could be in the GAL’s office, each parent’s home or at another location.
What happens when the GAL completes the investigation?
The GAL will generally give the parents and / or attorneys a preliminary summary of what they present to the judge. The input may change depending on any additional evidence or facts they uncover. The parent’s attorney will then discuss the GAL’s preliminary recommendations with their clients. Many times, there are settlement proposals exchanged and the case is resolved by agreement. If the parents cannot come to an agreement, the case is prepared for trial before the judge who will consider the evidence presented and make the final decision.
Who pays the GAL?
The judge will decide who pays for the GAL’s services. The requirements for payment vary from county to county. Generally, the parents are each responsible for one-half of the GAL’s total costs which include the GAL’s legal fees and investigation costs such as tests and experts. The court may require the parents to pay an initial deposit with periodic payments to the GAL during the case. Ultimately, the parents are responsible for the GAL fees, and generally the county will require the parents to reimburse the county for the GAL bill.
Child Custody
Custody and placement of children
Your role as a parent does not end when your marriage does – neither does your former spouse’s. You both love and want what’s best for your children.
Once the divorce process has begun, you must decide on child custody and placement arrangements. The way you and your spouse handle these arrangements will have an enormous impact on how your child copes and their emotion well-being during and after your divorce is final.
The main assumption of child custody and placement laws is that the children will be the happiest and healthiest when they have good relationships with both parents. During the divorce process, the law requires the court to make provisions in the final judgment for parental decision-making and allocate periods of physical placement with each parent. In many cases, the parents will reach an agreement which the court approves.
There are legal processes and terminology in play throughout the process of creating a custody and placement agreement.
Legal custody gives you the legal right to make major decisions about your children. These decisions can include non-emergency health care, choice of school and religion. Other decisions can include parental consent to marry, obtain a driver’s licenses or join the military. There are additional matters that could also be major decisions, if the court determines so.
Legal custody could be sole or joint and differs from physical placement.
What is legal custody?
Joint legal custody is where both parents have equal rights to make major decisions about their children. Sole legal custody is where only one parent has the right to make major decisions about the children. The court may also order that one parent or the other have the sole right to make certain types of major decisions such as health care. The court will presume joint legal custody unless there is an agreement or a specific reason for the court to grant sole custody as in the case of domestic violence.
How do joint legal custody and sole legal custody differ?
The court will consider the best interests of the children in determining custody and placement.
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What is physical placement?
Physical placement is the time your children are in each parent’s care. During physical placement, you will have the right to make routine daily decisions about your children’s care.
Most court orders will provide for a physical placement schedule of the times the children are to be with each parent.
It is true that the law give parents equal placement?
No, the law does not give the parents equal placement. The law does provide that the children should have a schedule that allows them to have regularly occurring and meaningful periods of placement with each parent.
What decisions are considered routine daily decisions?
Routine daily decisions include bedtime, study time, diet, extracurricular activities, social activities and discipline. During placement time, the right to make routine daily decisions belongs to the parent when the children are with them. Any routine daily decisions made must be consistent with the major decisions provided in the legal custody provisions and must not break any laws about safety.
Children do best when their parents agree to similar rules and routines in both households, whatever the parents’ legal rights are. There are many daily decisions, such as extracurricular activities, that may overlap periods of placement and will require parental communication and coordination.
It will be helpful for everyone involved if you respect each other’s right to know about your children. Both parents have the right to know the children are safe and well cared for. The children benefit when their parents work well together.
How do custody and placement issues get resolved?
If the parents cannot come to an agreement on their own, they must meet at least once with a mediator.
If you cannot reach an agreement through mediation, you must ask the court to make the decision. The court will appoint an attorney (called a guardian ad litem) to investigate and represent the best interests of your children.
What are my rights to information about my children?
Every parent has the right to their children’s school, medical and dental records (including report cards, notices of parent / teacher conferences, health notices, prescription information, and so on).
Can I move with the children?
The decision to move with the children may have a major impact on your children and their relationship with each parent as well as on other aspects of the children’s lives such as school, extended family, and friends. Ittion before proceeding.
How do I change an existing order?
The procedures for resolving any issues about changing orders is the same procedure as for resolving original orders.