Wisconsin Divorce Law A Client's Guide to the Language and Procedure BAKKE NORMAN L A W O F F I C E S

Transcription

1 Wisconsin Divorce Law A Client's Guide to the Language and Procedure BAKKE NORMAN L A W O F F I C E S

2 Welcome Thank you for considering Bakke Norman, S.C. to represent your interests. This booklet will give you a basic overview of divorce law in Wisconsin, and it has been written to give you general information about how we handle cases such as yours. We hope it will help you. Your satisfaction is very important to us and forms the basis for our formal quality pledge: To provide the highest quality legal service to the clients we serve To develop and maintain the highest personal and professional standards and reputation To provide a quality professional work opportunity for attorneys and staff We welcome your feedback at all times. BAKKE NORMAN LAW OFFICES

3 Divorce Attorneys: Who are they? What do they do? How much will they charge? At Bakke Norman, S.C., we have attorneys experienced in handling divorce and family law matters. We employ skilled legal assistants and paralegals to help you and your attorney with your file and to assure you of the best professional representation. You are encouraged to contact the legal assistant or paralegal regarding any questions about your case if the attorney is not available. A legal assistant or paralegal is not an attorney and is not permitted to give legal advice. However, the legal assistant or paralegal can answer many questions regarding your case. The legal assistant or paralegal will refer questions calling for legal advice to your attorney. What Do Divorce Attorneys Do? Your attorney will advise you about the law and help you prepare and present your case, which will sometimes involve hiring or consulting with expert witnesses, such as appraisers, accountants or psychologists. We will keep you advised on court procedures, give you our advice regarding options or decisions you have, and answer your questions. We will help identify and value assets and will work to obtain a fair division for you. If issues arise concerning the value of real estate, business interests, retirement plans or personal property, we will handle the valuation process. If child support or maintenance (alimony) is a problem, we will analyze available income, consider unrealized earning capacity and evaluate budgets to try to obtain a fair and reasonable result for you. We will advise you about custody and placement issues and work with counselors or other experts to protect your rights and those of your children.

4 Can We Represent Both Husband and Wife? No. An inherent conflict of interest prevents an attorney from representing both parties to a divorce. If both husband and wife want to file a joint petition for divorce, we can prepare and file it, but we will represent only one party. Occasionally, divorcing parties have agreed completely on all issues before a legal action is started. In that event, one party can possibly proceed without legal counsel, but risks are involved in doing so. The rights and responsibilities determined in a divorce are so important that we strongly recommend that each side have separate legal counsel. What Does It Cost? It is extremely difficult to predict accurately a family law case s cost and estimates are frequently inaccurate. The amount of work required of the attorneys and staff depends on what you and your spouse can agree to and what is disputed. Thus, the attitude of your spouse and the tactics used by the opposing attorney influence the cost substantially. Typically, it is reasonable to assume that the cost will be at least $5,000. Divorce clients of Bakke Norman, S.C., are charged for legal services based on the time spent on the file, the money involved, the experience and expertise of the attorney working on your file, the complexity of business, tax or custody issues presented, and so forth. Time records are maintained for all work on your file, including telephone calls and s. We normally require an advanced fee to begin work on your case. During our representation, we might advance certain fees and costs for you, including such items as fees for filing legal papers, court reporters, depositions, witness subpoenas, appraisals, experts and process servers, as well as telephone charges, photocopies and travel expenses. These costs can be quite substantial. You will always be billed for the costs we advance for your case besides the attorneys fees. It is essential that we have an agreement with you regarding fees and costs before any work is started. If, for any reason, you do not completely understand and agree to the fees to be paid, please discuss this with your attorney immediately.

5 If there is a disparity in assets or income, the court has the authority to require one spouse to contribute toward the attorneys fees of the other spouse. Violation of such an order can be punished by contempt-of-court proceedings. We will assist in enforcing any such order. However, our client is still responsible for any part of the legal fees charged that are not paid by the other party. Telephone Calls and s We welcome your telephone calls and messages with questions about your case or with new information we need. When your attorney is in court or meeting with another client, your call might be referred to the legal assistant or paralegal assisting on your file. We will make every effort to respond to your inquiries promptly. Settlement At various stages of the proceedings, we might explore the possibility of settlement. We might do this by informal contact with the other attorney or a formal settlement conference or mediation. Although we will initiate and participate in settlement discussions, you are the only one who can agree on a settlement. Frequently, settlement is impossible or inadvisable until all facts have been uncovered through the discovery process. When we have all the facts, we will offer you our professional advice and recommendations for settlement based on the law and our view of your case, but only you can agree to settle. We firmly believe that a fair settlement is frequently preferable to a trial. However, until a settlement is reached, we will continue to gather facts and prepare for trial. Facts about Divorce Divorce, Legal Separation or Annulment? There are three separate legal remedies in family law: a divorce legally terminates a marriage; an annulment declares that the marriage was not valid from the start; and a legal separation is essentially identical to divorce, with two exceptions. The residency requirement is shorter for a legal separation, and following a decree of legal separation, neither party can remarry. The law discourages legal separations and will sometimes grant a divorce even though a legal separation is requested. The party requesting a legal separation rather than a divorce must show some good reason why a legal separation should be granted (religious convictions making divorce unacceptable, and so on).

6 But I Don't Want A Divorce! Wisconsin s divorce law is a no fault procedure, meaning that a divorce will be granted without proof of fault or cause. If one spouse testifies that the marriage is irretrievably broken and that there is no chance for reconciliation, a divorce will be granted. If divorce is to be prevented, it will have to be through counseling and personal reconciliation attempts. Reconciliation The divorce law and procedure are designed to allow the parties to attempt to reconcile their differences before the divorce becomes final. The divorce procedure, established by the Wisconsin Legislature, requires a minimum of 120 days from start to finish. Normally, a divorce will take longer. Both parties can use this waiting period to explore the possibility of reconciliation. In addition, there are provisions for the court to "stay" a divorce proceeding to allow the parties to attempt reconciliation. As attorneys, we are not professional counselors, but we can assist in finding competent personal or marriage counseling if requested. If counseling to reconcile the marriage is unfeasible, we still frequently urge our clients to seek personal counseling. A divorce action creates a very stressful situation for everyone involved. A good counselor can help ease that stress and ensure that it does not affect your relationship with your children, your employer, or other important people. Remarriage Neither party can remarry until six months after judgment of divorce is granted. How Is a Divorce Started? The Paperwork The party requesting the divorce is called the petitioner. The petitioner s attorney prepares a Summons and a Petition. These two documents are filed with the Clerk of Courts, and an exact, authenticated copy is personally delivered, or served, on the other party, called the respondent. The date on which the respondent is served is the formal start of the divorce. Once a divorce is started, there is a mandatory minimum 120-day waiting period before it can be finalized. Temporary Hearing During the time between the start and finish of your case, it might be necessary to have a temporary order governing potential disputed issues while the case is pending. Such an order is obtained by having a hearing before the Family Court Commissioner or upon

7 agreement of the parties. Often, the petitioner will request a temporary hearing at the same time the divorce is filed. At this hearing, the Family Court Commissioner might issue temporary orders covering legal custody and physical placement of minor children, child support, spousal maintenance (alimony), payment of debts, and use (not ownership) of property. Final Hearing At the final hearing, the judge redetermines the same issues from the temporary hearing. But, at the final hearing, future ownership of property is decided, not just its temporary use. Explanation of Legal Documents Courts require specific documents be filed for specific purposes. Some of the most frequently encountered documents are discussed here. Summons and Petition The Summons and Petition are used to begin the divorce. The Summons contains technical information to alert the respondent to the lawsuit. The Petition contains the facts of your case. These documents are prepared by the petitioner s attorney and then must be personally served on the respondent. Affidavit An affidavit is a statement of facts verified by one party and submitted to the court for a motion or an order. Motion A motion is a written request to the court for an order. A hearing will be held to determine whether the motion should be granted. It is most often used shortly after the divorce action is commenced for obtaining a Temporary Order regarding custody, visitation, support, and so on. It might also be used to obtain a change in a previous court order or judgment or to commence contempt proceedings for failure to abide by a previous order. Temporary Order This is a court order (normally issued and signed by the Family Court Commissioner) setting the rules effective prior to the final hearing on the divorce. It usually covers such items as custody, visitation, support, temporary attorneys fees, temporary use of the home

8 and other property of the parties, payment of bills and mortgages, and so on. Response The respondent files a Response to deny allegations in the Petition. Normally, this must be done within 20 days after the respondent is served. Counterclaim The respondent might claim that he or she is entitled to a divorce from the petitioner. The counterclaim is identical to the Petition except that the respondent files it against the petitioner. Subpoena A subpoena is a document authorized by the court requiring a witness to appear and testify at a deposition, hearing or trial. Marital Settlement Agreement (Stipulation) A marital settlement agreement, or stipulation, is a formal written agreement between the parties and their attorneys. It can cover any subject. If there is a stipulation or agreement regarding terms of the final judgment, the divorce is considered a default divorce. Default divorces are less complicated and less costly, and they are scheduled more quickly than contested divorces. Findings of Fact, Conclusions of Law, and Judgment A judgment is the final document in a divorce case, usually coming in a composite document that also recites the court s Findings of Fact and Conclusions of Law. This is a formal written document, usually prepared by the petitioner s attorney and signed by the judge, in which the court formalizes its decision. The judgment is the legal document granting a divorce, property division, support and alimony, or such other legal relief as the court orders at the final hearing. How Will We Prepare Your Case? We'll need your help. Divorce laws are complex and detailed. Your attorney will study and explain the law and its application to your case. For us to represent and assist you properly, we need you to cooperate fully with us and give us all the facts, even those you think are not helpful. Throughout the case, we will seek information from you that we believe is important. Please respond promptly to all such requests.

9 We will need detailed information about your income, expenses, budget, property and debts. Your attorney and legal assistant can help you obtain information, but the more accurate the details you furnish, the better the advice we can provide. Collecting Information In addition to the information we get from you, we will probably use several other methods. We might employ expert witnesses such as appraisers or accountants. The law allows each side an opportunity to get information from the other side through a process called discovery. The rules of discovery give us four basic tools to obtain information. Interrogatories Interrogatories are written questions directed to the other party regarding finances or other relevant information. They are used to obtain information in preparation for trial and must be answered under oath by the party to whom they are directed. Depositions Depositions are opportunities for an attorney to ask opposing parties oral questions and get oral answers. The witness being deposed is under oath, and a court reporter records the questions and answers. A printed transcript of the questions and answers, which the attorneys can use at trial or in settlement negotiations, is prepared. If your deposition is taken, it is important that you confer with your attorney about your preparation for the deposition. Your attorney will want you to view a videotape about depositions and will want to discuss with you your case s facts so you are prepared to answer questions under oath completely and honestly. Request for Documents A request to produce documents is a legal request requiring a party to a lawsuit to produce documents. Such documents might include income tax returns, wage statements, insurance policies, automobile and property value estimates. Request for Admission A request for admission, which the party answering it must admit or deny for the truth of a matter relevant to your case, might be used to narrow the issues for trial. For example, you might be asked to admit that an asset s market value is a certain amount, thus eliminating the need to have an expert witness testify at the trial.

10 Your Involvement The other side of a case has a right to use discovery as well. It is likely that you will also be asked to answer questions or produce documents for the other side. Your attorney and legal assistant will assist you in complying with these discovery requests. What Court? What Judge? Court A divorce action must be brought in the county in which either the husband or wife has resided for at least 30 days. In addition, one party must have resided in the state of Wisconsin for at least six months immediately prior to the commencement of the divorce action (30 days for legal separation). Judge A judge without a jury tries all divorce cases. In counties with only one circuit judge, all cases are automatically assigned to him or her. In counties with more than one judge, the Clerk of Courts assigns the case to a specific judge. The attorney does not select a judge. Occasionally, if one litigant believes that the judge cannot be fair and impartial, that judge can be disqualified. This procedure can be used only once, and a specific time limit is on the procedure. Once a judge has heard any part of the case, even a preliminary issue, it is too late to request a substitution. Although each judge, like any human, has his or her own personality and preferences, Wisconsin generally has excellent judges. Custody and Placement of Children Children have a special place in Wisconsin law. You can expect that all judges and attorneys will put the children's best interest before the parents' rights. In determining matters relating to minor children, the court is mandated to consider the best interests of the children. Each parent s wishes and desires are considered but only as one element in determining what is best for the children. Unfortunately, custody and placement questions cause more controversy than any other area in divorce matters. Some of these disputes are understandable and probably unavoidable, but many could be eliminated if both husband and wife primarily emphasize the best interest of the children as the law requires the courts to do.

11 There are two important concepts to keep in mind when minor children are involved: legal custody and physical placement. Legal Custody Legal custody is defined as the right to make major decisions for a minor child (consent to marry, sponsor driver s license, authorize nonemergency medical care, and so on.). The court may award legal custody solely to one parent or to both parents jointly. The legal presumption is joint legal custody. Physical Placement Physical placement relates to the place the child lives or visits. The law clearly provides that it is the child's right to have periods of physical placement with both parents. The only exception is when one parent poses a danger to the child s physical, mental or emotional health. If there is no agreement by the parties, the court will determine periods of physical placement (the time the child will spend with each parent). The court may also make special provisions regarding which school the child will attend, medical care or other specific areas of dispute. Mediation Guardian Ad Litem If there is a dispute about legal custody or visitation, the law requires that the parties attempt to resolve their differences with a mediator's help before the case will be handled in the court system. Attorneys are not directly involved in mediation with their clients, but legal counsel should review any tentative agreements reached in mediation before the parties sign them. If mediation is unsuccessful at producing an agreement, the court must appoint a guardian ad litem to represent all minor children's legal interests. The guardian ad litem will be an attorney, and both parents will be expected to cooperate with the guardian ad litem. The court normally requires the parents to pay the guardian ad litem's fees and expenses. Custody, visitation and support matters are never final. These issues relating to minor children are always subject to change by the court when circumstances change. Financial Issues

12 Child Support Child support is a monthly set amount, based on a percentage of the paying spouse s gross income: 17% for one child; 25% for two; 29% for three; 31% for four and 35% for five or more. Special rules apply to situations of split placement (each parent has primary placement of at least one child), shared placement (each parent spends more than overnights per year with the child) or serial families (a parent has other minor children not from this marriage). Support must be expressed in a court order or judgment as a fixed dollar amount, and it may incorporate an amount for the child/children s variable costs (which include, but are not limited to, the cost of childcare, tuition, special needs and other activities involving substantial cost). The court must follow these child support guidelines unless the judge is convinced that they are unfair as they apply to your individual case. If the guidelines are not applied, the court will determine appropriate support by considering a number of elements set forth in the Wisconsin statutes. The primary elements in the court s decision will be the financial need of the child and the parent s income and ability to pay. Child support will be paid until the child is 18 years old and will continue after that if the child still pursues a high school diploma, but not past the age of 19. Child support orders are always modifiable if circumstances substantially change. Orders and judgments for support always provide that the support must be paid to the Wisconsin Support Collections Trust Fund rather than directly to the person having primary placement of the minor children. It is important for the payor that such an order be followed. Normally, the employer will withhold child support from the payor s wages and send it directly to the Wisconsin Support Collections Trust Fund. This is known as a wage assignment. Maintenance Payments Maintenance payments (formerly called alimony) are a financial adjustment between the parties. They refer to monthly or other periodic payments by one party to the other. Whether the court awards maintenance payments depends primarily on the parties' relative earning capacity, but it is influenced by many other elements, including the percentage of property awarded in the property division, the health of the parties, length of marriage, and so forth. If maintenance is an important concern in your case, you should discuss the advantages and disadvantages of a substitute Section 71 payment with your attorney.

13 Property Division Wisconsin is a marital property state. The parties' net worth (assets minus liabilities) is divided between the parties by the court. There is no exact formula for making this division, but the starting point divides the net worth equally. The court may then adjust from this starting point after considering a long list of elements. General guidelines provided by the courts will permit your attorney to advise you of a probable result in your case. The elements the courts consider in deciding a property division are set forth in the Wisconsin statutes and case law. You should discuss them with your attorney. Two property categories merit special mention here. Property owned by one party individually before the marriage is divisible in a divorce, but that it was owned prior to the marriage might influence the percentage distribution. On the other hand, property acquired by gift or inheritance, if the person receiving it holds it separately, is not subject to a divorce property division unless the court determines that failure to divide such property would cause a hardship. Typically, property division disputes center on the fair market value of specific assets, rather than the overall percentage of the net worth divided between the parties. Tax Consequences Child support payments are non-taxable income to the person receiving them and are not deductible by the person paying them. IRS rules give the dependency deduction to the parent with primary physical placement, but the parties can agree on (or the court can order) a different allocation. Maintenance payments (alimony) are deductible by the person paying them and are taxable income to the person receiving them. Section 71 payments, sometimes used as a substitute for maintenance, are also deductible and taxable like maintenance. Similarly, family support, unlike child support, carries the same tax consequences as maintenance. Property transferred in a property division is neither income nor deductible for either party. However, tax consequences can result from the sale or disposition of a capital asset at a value greater or less than that asset s cost or basis. Because of the Wisconsin Marital Property Act, filing a federal and state income tax return for the year of divorce can be unusually complex. You will not be entitled to file a joint return with your former spouse if you are not still married on the last day of the year. We will

14 advise you about the requirements, and you should select a tax preparer familiar with these special Wisconsin technical rules. Related Items Wills, Trusts and Life Insurance Divorce can significantly affect your estate plan. Therefore, we should discuss your need to change your will, your life insurance beneficiaries, or the beneficiaries of any trusts or retirement plans. Medical Insurance A divorce terminates a party's right to be insured by the former spouse's medical insurance. Alternate plans should be explored and made well before the final divorce. We can advise you regarding your right to a conversion (COBRA) policy if you need assistance. Copyright ~ 2011 Bakke Norman, S. C. R0211

15 BAKKE NORMAN Local Lawyers~Statewide Reputation Business Planning & Development Business Succession Estate Planning/Probate/Trust Administration Tax Planning Debtor/Creditor Relations Employment Law Real Estate (Commercial & Residential) Municipal Law Business Litigation Divorce & Family Relations Criminal/Operating While Intoxicated (O.W.I.) Personal Injury Mediation/Arbitration (Alternative Dispute Resolution) 990 Main Street P.O. Box 54 Baldwin, WI Phone: (715) Fax: (815) Schneider Avenue P.O. Box 280 Menomonie, WI Phone: (715) Fax: (815) Heritage Drive P.O. Box 308 New Richmond, WI Phone: (715) Fax: (815)