A practical approach to divorce, custody and placement.
When faced with an initial divorce or paternity case or post-divorce changes to child custody, child placement, or child support, you want an attorney that not only understands the law but understands your goals throughout the legal process. You may have an amicable relationship with your ex-partner, or maybe you can’t be in the same room together. Perhaps you are working through a contentious custody and placement issue or need assistance on a low drama divorce. Maybe you have a small business to protect, have concerns that a divorce could disrupt its success, and need an attorney that understands both business law and divorce law and procedures. Whatever the size of your estate or value of assets, KEW can assist clients with nearly any type of divorce, paternity, or post-divorce action. For more information on the specific ways KEW can help you keep reading below.
A marital property agreement is the name given to a document that dictates how marital property should be divided between the couple upon divorce, and how that property should be treated at death. This is commonly referred to as a “prenup” or prenuptial agreement, and it can have somewhat of a negative connotation. However, the benefits of a marital property agreement generally outweigh the poor reputation of the prenup. The concept of a marital property agreement allows spouses to reach an understanding about how the property should be split at the beginning of the relationship while everyone is agreeable and before Spouse A starts leaving the coffee mug on the counter instead of putting in the dishwasher every morning and before Spouse B forgets where the laundry basket is located. A marital property agreement can be drafted before marriage or while the parties are married. But, in order for marital property agreements to be valid in the eyes of a court, they must meet certain legal technicalities, so having an experienced attorney draft a marital property agreement is strongly encouraged.
Wisconsin is a no fault divorce state which means obtaining a divorce doesn’t require that one party prove the other party did anything wrong. In order to obtain a divorce, one party must assert that marriage is irretrievably broken. Additionally, to get divorced in Wisconsin at least one spouse must have lived in Wisconsin for the six months prior to filing the divorce and lived in the county where the divorce is filed at least 30 days prior to the filing of the divorce.
Either one party can file a petition for divorce or, if the parties agree to seek a divorce, then the spouses can file a joint petition. If only one spouse filed the petition then the petition needs to served on the other spouse. If a joint petition is filed, then neither spouse needs to be served. After filing the divorce, there is a mandatory 120-day waiting period that cannot be waived. However, if the parties agree to a division of marital assets and debts, child custody and placement, child support, and spousal maintenance (alimony), put that agreement in writing, and submit it to the court before the expiration of the 120-day waiting period, then the divorce can be granted shortly after the waiting period ends. If the parties do not agree on anything, then divorce can be a process that can last twelve to eighteen months, but even longer depending on the complexity of the marital estate and how contentious issues like child custody and placement may be. With a contested divorce, much of the case is treated similarly to other types of litigation – although divorce and post-divorce disputes do have some unique characteristics as well. For more information on litigation in general, visit KEW’s Litigation page.
If the parties do not agree on anything at the outset of the divorce, then the court will typically hold a temporary order hearing to determine how certain aspects of the parties relationship will be governed while the divorce is pending a final hearing. Temporary Orders are not determinative of a final outcome and can be amended until a final decision is issued by the court. More often than not, temporary orders will outline a legal custody and physical placement schedule with regards to minor children, set initial child support orders, and dictate which party has the right to possess and use certain property (such as vehicles and the residence) until a final split of property can be made. Temporary Orders will also require the parties to preserve all assets during the pendency of the divorce.
With every divorce comes the question of division of property. Wisconsin is a marital property state which means that, absent a marital property agreement, all property brought to the marriage and obtained during the marriage belongs equally to both spouses, with certain limited exceptions. As such, the court will start off with the presumption that each spouse is entitled to 50% of the total marital estate. If there is a dispute over the value of certain property, then that property will likely need to be appraised to determine its value. This includes one or both spouses’ interest in any business they may hold.
Often one of the more contentious aspects of a divorce is whether one spouse is entitled to spousal support, or maintenance, from the other. The determination of spousal support depends on several factors, including the respective earning capacities of each spouse, the length of the marriage, whether one parent sacrificed his or her earning capacity to stay at home with the children, or whether one party significantly contributed to the other’s education or training which resulted in an increase in earning capacity. After hearing all the evidence related to maintenance, a court may order limited term maintenance (maintenance which expires after a certain amount of time), indefinite maintenance which only terminates at the death of one party or the remarriage of the receiving party, or no maintenance at all.
Whenever a divorce involves children born to or adopted by the parties, the issues of legal custody and physical placement will need to be determined. Legal custody means the ability for the parent(s) to make legal decisions on behalf of the children – such as where to go to school, non-emergency health care decisions, choice of religion, getting a driver’s license, and other major decisions. Legal custody can either by held jointly or solely by one party, but it is almost always presumed to be joint custody unless there is evidence of domestic abuse or that one parent is negligent in one way or another.
Physical placement refers to the amount of time a parent has with each child and is often confused with the term “custody.” Regardless of the legal custody determination, a physical placement schedule can vary. One parent may have primary placement, meaning they have placement more than 75% of the time (as counted by the number of overnights one parent has in a given calendar year), or the parties may have shared placement, meaning the parties either have roughly equal placement (50/50) or one parent has less than 75% and the other more than 25%. Determining legal custody and physical placement disputes is based on the wishes of the parties, the wishes of the children, the children’s age and development, parental cooperation and communication, whether each parent supports the other’s relationship with the children, mental and physical health of the parties and children, the children’s relationship with each parent, and other factors.
If there is a dispute over legal custody and/or physical placement, the law requires the parties to attend mediation with family court services to see if an agreement can be reach. If mediation fails, the court will very likely appoint a Guardian ad Litem (GAL) to help the Court make its custody and placement determinations. The GAL is a licensed attorney who has completed the necessary requirements to serve as the GAL. A GAL’s duty is to represent the best interests of the children. To help determine the best interests of the children, the GAL will interview and evaluate the parents, the children, and perhaps the children’s medical providers and school teachers, and other individuals relevant to the children.
In Wisconsin, a parent has a duty to support their child until the child turns eighteen, or no later than nineteen if the child is still in high school or pursuing a high school equivalent. Child support in Wisconsin is determined based on each parent’s income, the number of children, and the amount of time each parent spends with the children. The party ordered to pay child support will have their wages garnished to pay the child support obligation. Failure to pay child support is serious and, if the failure continues for a long time and arrears get too much, the parent can be charged with a felony and go to prison.
Issues related to property division in a divorce are final and nearly impossible to change one year after the final judgment of divorce, unless it is proven that assets were hidden during the divorce. However, maintenance, legal custody, physical placement, and child support orders can all be amended after the divorce is final. In order to do this, the party seeking modification of the judgment of divorce would need to file a motion with the court outlining the requested modification and the justification for it. Generally, changes to legal custody and physical placement require that the party seeking modification show that there has been a substantial change in circumstances since the last order was entered – although there is a higher standard within the first two years of the initial custody and placement determination. Similarly, changes to maintenance or child support require a substantial change in financial circumstances of the parties since the last order was given by the court. Whether a substantial change in circumstances (financial or otherwise) exists is heavily dependent on the facts of each case.
Paternity determinations sometimes require the involvement of the court if there is a dispute over the father of a child born outside of marriage. If paternity is disputed, then the court will have to hear evidence, including potential DNA evidence, and make a determination on paternity in court. If paternity is not disputed but the parents are no lot living together, then one parent will likely want to seek the court’s help in determining legal custody, physical placement, and child support.
Regardless of your situation, kids or no kids, contested or uncontested, having an experienced family law attorney in your corner is always advisable. Attorney Nicholas C. Watt handles family law matters at KEW. Contact KEW to obtain more information regarding whether KEW can assist you with your family law issue.