WISCONSIN DIVORCE LAW: Making it simple and doing it smart. Wisconsin's "no-fault" divorce law and current practice enable divorcing spouses who are able to communicate, cooperate and negotiate an equitable settlement to obtain a divorce quickly and inexpensively. With the filing of a written stipulation or Marital Settlement Agreement, a final divorce can be granted within 120-days of the start of the divorce action by the filing and service of the summons and petition. However, not all divorcing spouses communicate and cooperate, and each may have very different ideas about what constitutes an equitable settlement, or quite directly clash over issues of custody, child support or maintenance. Then, while the divorce remains "no-fault", meaning the petitioner need not prove specific fault or allegations against the spouse in order to obtain a divorce, and alleged marital misconduct is not a factor in the terms of judgment, we have a contested rather than a non-contested proceeding, meaning that instead of the parties' presenting their agreement to the Court for approval, they will each ask the Court for different relief and the Court will have to make a decision or judgment on the issues. In either type of proceeding, in order to "divorce smart" a party must understand the law, be informed regarding procedures and participate actively in securing information and documentation necessary for presentation of their case to Court or for use in negotiations for settlement. To the extent possible, issues are best resolved by agreement because agreements are, by definition, compromises acceptable to both parties while a Court decision may be unacceptable to both, and because agreement reduces legal costs, saves time and alleviates stress during the proceedings. However, when necessary, your rights and claims must be defended and pursued vigorously at trial to protect your interests and your children's interests. ____________________________________________________________ DIVORCE ALA CARTE: UNBUNDLED FAMILY LAW SERVICES. Getting divorced is never easy, but, increasingly, many couples seeking amicable, cooperative dissolutions attempt "do-it-yourself" or "pro se" proceedings because they fear that lawyers may increase the potential for conflict and stress or unduly complicate matters. Unfortunately, many "do-it-yourselfers" often find themselves frustrated and confused as they work through the process of documenting the marital estate, determing the correct amount of support, tax issues, dealing with insurance and retirement accounts, arriving at a fair and comprehensive settlement and preparing and filing the necessary documents required by the Court. Worse, some "do-it-yourselfers" discover too late that the final results of their divorce are unfair, that certain important issues were neglected or misunderstood and then seek assistance at reparing the damages. Sometimes it is simply too late and nothing can be done, sometimes: when it's final, it is final. To accommodate this need, unbundled or "ala carte" divorce or family law services are available. Rather than retaining a lawyer to represent you and handle all aspects of the case, you can hire an attorney: to review documents you have prepared to ensure they are complete and competently drafted; to draft some or all of the documents; to advise you and/or your spouse on certain aspects or all the relevant issues in your divorce, etc. Perhaps, after working with a lawyer in this limited role, you will decide to enter into a full representation mode, particularly if, as sometimes happens, the early, tentative agreement between you and your spouse doesn't stick, and there are contested issues which must be resolved by the Judge in a hearing before the Court. Regardless, working with an attorney as an experienced advisor and drafter of documents can make the entire process easier and more efficient, reducing your stress during one of life's most stressful experiences. And, of course, retaining a lawyer on a limited basis can well be less expensive, provided you are willing to do more of the work yourself. It's something to consider. Ask us about it.	Getting Divorced? Remember, your life and case is unique. Your divorce will affect every aspect of your life. It's not simple, and it's very important. Your divorce should not be handled as routine. You should avoid the "pro se" divorce and recognize the importance of getting qualified advice and representation to help you get through the divorce experience and achieve practical, equitable results: results you can live with - after the divorce. Get qualified counsel. Work with them - to "divorce smart". View online Divorce Videos on our Updates/Links page: - "Moving On: A Guide to Pro Se Divorce" - "Moving On: Your Divorce Trial"
MARITAL AGREEMENTS and POST-JUDGMENT PROCEEDINGS: Before you marry, or during an intact marriage, a marital agreement can be an excellent investment providing a binding contract defining your relationship, classifying your assets, debts and income for purposes of management and control, for taxation, for inheritance, or in the event of divorce. A prenuptial agreement can protect the assets you bring into your first or subsequent marriage, and may prevent marital discord by clearly establishing both spouse's claims, rights and expectations both during the marriage or upon divorce. Unfortunately, many individuals find that conflict with their former spouse doesn't necessarily end with entry of the judgment and divorce post-judgment relief is sought. Conflict or changes in circumstances may require a review and revision of the divorce judgment regarding the issues of child custody or placement, child support, dependency deductions, maintenance or enforcement of other provisions of judgment with which your ex-spouse has failed to comply. Enforcement proceedings may be brought as motions for contempt and remedial sanctions including imposition of costs and attorney's fees, or even jail time may be involved. Changes in custody, placement, support, allocation of dependency deductions or maintenance may be made by stipulation or through contested proceedings.	COMMON D-I-V-O-R-C-E QUESTIONS: Q. How do I get divorced? A. A divorce is commenced by filing of a summons and petition with the Court, which is then served upon your spouse to give them notice of the proceedings. Each case is unique, and there are many paths from start to finish in the process, but typically the initial pleadings (summons, petition) are accompanied by an Order To Show Cause For Temporary Orders and Supporting Affidavit which requires your spouse to appear before the Family Court Commissioner for a preliminary hearing soon after the divorce is filed. At this hearing a Temporary Order is entered providing "rules to live by" during the pendency of the proceedings; under Wisconsin law, a final judgment of divorce cannot be entered until 120-days have elapsed following the commencement of the action. The temporary order is intended to define the respective rights and responsibilities of both the husband and wife regarding the following issues: 1) legal custody and physical placement of minor children; 2) child support; 3) life and health insurance protection and payment of non-insured health care costs and automobile and other insurance coverage; 4) maintenance or alimony; 5)occupancy and use of residence(s); use and possession and of personal property including automobiles and household personalty, control and use of checking, savings, investments, life insurance policies, retirement accounts and 6) payment of existing marital debts and obligations. The temporary order will also contain restraining orders for the protection of both parties and the minor children from any harassment or abuse and from any interference with personal liberty, enjoining both parties from coming upon the premises occupied by the other as a dwelling without the express prior consent of the party in occupancy, and the parties' property from sale, encumbrance, damage, destruction, concealment or removal from the jurisdiction of the Court. This temporary order is based upon information quickly gathered and presented and is based upon an immediate assessment of needs; accordingly, it is subject to review and revision during the pendency of the divorce action if it fails to meet those needs or unfairly burdens one party. During the 120-day statutory "waiting period" financial information is compiled and documented and settlement negotiations pursued. If negotiations are successful, then a Marital Settlement Agreement is reduced to writing, executed by both parties and their attorneys, and presented to the Court for it's approval and incorporation as the terms, conditions and provisions of the Judgment of Divorce. If negotiations are unsuccessful, the unresolved issues must be presented to the Court at trial and the assigned Judge will make the determinations and decisions on these issues in the form of the Findings of Fact, Conclusions of Law and Judgment of Divorce. While 120 days is the minimum waiting period to obtain a final divorce, a contested divorce will take considerably longer and, depending upon the complexity of your case, the number of unresolved issues and the calendar of the Court, your trial date may well be scheduled 6, 9, 12 or even 18 months after the date the petition was filed. Q. What about final property division? A. All marital property is subject to division by the Court and marital property is defined as all property of the parties except for property inherited or gifted to just one spouse by a third party, but even non-marital property can be divided by the Court if it is deemed necessary to effect an equitable judgment. Property includes real estate, motor vehicles, boats, business assets, retirement, pension, profit-sharing, ESOP, 401(k), investment, checking and savings accounts, life insurance policies, annuities, household goods and other personalty, in fact tangible or intangible property of whatever type, nature or description. Property is to be divided "equitably" which means fairly, and that is not necessarily 50:50 although that's then normal starting point for consideration; however, there are numerous other factors which the Court considers including the length of the marriage, among them whether the marriage is a first or subsequent marriage, how many children or other dependents are involved, the age, occupation, education and training of both parties and their present earnings and earning capacity. Q. Who decides custody and placement? A. Preferably, these issues are resolved by agreement of both parties or parents on the basis of what is in the best interests of the children in the "Parenting Plan". Joint legal custody gives both parents equal rights in the major decisions affecting the children while sole legal custody vests those rights in one parent. Both parents have rights to continue their parental relationship and a determination must be made as to which parent is awarded primary placement, that is, with which parent will the children usually live, and secondary placement or what used to be called visitation rights to the other parent. Secondary placement should include sharing of major holidays, extended placement during the summer school vacation period, etc., and regular and extensive scheduled placement throughout the year. If the parties cannot agree on custody and placement, the Court will order them to participate in a process called mediation with Family Court Services. Mediation is an attempt through negotiations to establish a mutually acceptable formula and schedule for shared physical placement and an agreement for joint legal custody. If mediation fails, then a custody/placement assessment is made by a team appointed by the Court and consisting of a guardian ad litem, an attorney who represents "the best interests of the child(ren)", a social worker and a psychologist. The team interviews the parties, the children (if they are of an appropriate age), relatives, teachers, clergy, etc. to determine, on a comparative basis, which of the parties would be the better choice for primary placement and reports its findings to the Court. These issues are finally determined at trial and the party who disagrees with the team recommendation may employ its own experts and provide contrary evidence at trial. Q. How much is paid for child support? A. Child support is based upon the number of eligible children and the income of the payor. While, ultimately, the level of support is based upon the need to receive support and the payor's ability to pay, under Wisconsin law the Court must order support consistent with the statutory child support standards, or explain in detail why it deviated from those standards based upon certain specified factors. The child support standards are: 17.0% for one child, 25.0% for two children, 29.0% for three children and 31.0% for four or more children based upon the payor's total gross income from all sources. Children eligible for support are those 18 years old or younger, or those over 18 and still enrolled in high school until age 19. There is also a formula for deviating from the child support standards based upon "shared placement" and a credit available for "serial payors" (parents who have a pre-existing child support obligation). In most circumstances, child support must be paid through an order withholding income, that is, by payroll deduction. Support orders may, however, be modified to limit the amount paid to a basic 40-hour work week, to exclude bonus, incentive or vacation pay, and otherwise depending upon the particular factors of the case. A related issue of importance to be determined is which party is awarded the right to claim the children as dependency deductions for income tax purposes. Q. What about alimony: is it still awarded? A. Alimony, now called maintenance, is awarded on a limited or permanent basis depending upon the length of the marriage, the comparative earnings of the parties and the overall financial picture including the existence of a child support obligation. In a long-term marriage where there is a large disparity in earnings, maintenance is likely to be awarded to the lower-income party. Maintenance payments are taxable income to the recipient and tax-deductible for the payor.
CASPER LAW OFFICE 6 North Main Street Fond du Lac, Wisconsin 54935 920-922-3355	Consultation, retainer and intake procedure: We offer an excellent video prepared by the State Bar of Wisconsin, "Understanding Divorce" for viewing in our office or at your home; please call to make arrangements to see it if you wish to learn some basic information about the substantive law of divorce and the procedure, as well as the emotional elements involved. We also have a useful brochure, "Divorce Smart: A Step-By-Step Guide". We invite you to stop in and pick one up, or call to request that we mail one to you. That's step one. The next step is to schedule an office conference to discuss the particulars of your case, the retainer agreement, costs and fees, and to open your file. As a client, you will be provided with additional information and assistance to get you through the divorce process successfully, economically and without undue delay, to "divorce smart". With more than 25 years experience, we can help.