Property/Debt Division in Divorce or Legal Separation

Generally, in Wisconsin, in divorce and legal separation actions, the Court initially presumes that all property is to be divided equally between spouses.

This general rule may not apply to property acquired by gift or inheritance that is not subsequently commingled.  Also different rules apply if a pre-marital (pre-nuptial) or post-marital (post-nuptial) agreement, is in place.

The equal division presumption basically means that all assets and debts are placed into a “marital pot” and the court determines a way to equally divide the assets and debts, including those assets and debts brought to the marriage.  In Wisconsin, the Court shall not alter an equal division of property because of marital misconduct.

However, the Court can deviate from an equal division, for any reason the Court deems relevant, including: a) length of marriage; b) property brought to the marriage; c) if either party has substantial assets not subject to division (gifted or inherited); d) contribution of each spouse to the marriage, including homemaking; e) age of each party; f) physical & mental condition of each spouse; g) contribution of one to the education, training or increased earning power of the other; h) the earning capacity and skills of each party; i) the desirability of the person caring for the children having a suitable home; j) amount and duration of any maintenance/spousal support award; k) economic circumstances of each spouse, including interests in pension & retirement plans; and l) tax consequences.

** Entries posted on this Blog shall not be deemed legal advice.  For individual attention to your particular legal situation, consult an attorney.**  Attorneys Dan Murray and Barb Miller.  Lawyers helping individuals with divorce, custody, placement, and family-law matters in Minnesota and Western Wisconsin. www.millerandmurray.com

Long-Term Separation/Estrangement – Enough to Grant Divorce?

I received an inquiry from someone that has been separated from her husband for 10+ years and was wondering her marriage is still valid.  The answer, at least in Wisconsin, is “yes”.  In Wisconsin, this couple would still have to follow the same procedures for obtaining a divorce as if the couple split up yesterday.  However, for couples that have voluntarily lived apart for 12 months or more prior to filing for divorce, the court would find the marriage irretrievably broken without either spouse having to testify to that fact.  For couples that have not voluntarily resided apart for 12 months, for a court in WI to be able to grant the divorce, either: 1) both spouses must testify that the marriage is irretrievably broken; or 2) one spouse must testify that the marriage is irretrievably broken and the Court must find that there is “no reasonable prospect of reconciliation”.  Wis. Stat. §767.315.

** Entries posted on this Blog shall not be deemed legal advice.  For individual attention to your particular legal situation, consult an attorney.**  Attorneys Dan Murray and Barb Miller.  Lawyers helping individuals with divorce, custody, placement, and family-law matters in Minnesota and Western Wisconsin. www.millerandmurray.com

Divorce: You are not Alone

The “health” of marriages in the United States fell last year to a score of 60.3 compared with an index score of 76.2 in 1970.  The “health” of marriage index was developed by David Blankenhorn, president of the Institute for American Values, and incorporates five statistics related to marriage and children.

Also reported was that in 1970 almost 90% of kids were born to married parents versus last year when the percentage dropped to 60%.  Also, the percentage of intact first marriages was 77.4% in 1970 versus 61.2% in 2008.

Source: The Washington Post

Should States make it more difficult to get married?  Should States make it more difficult to get divorced?  Or should States just leave us alone and let individuals work it out?

Attorneys Dan Murray and Barb Miller.  Lawyers helping individuals with divorce, custody, placement, and family-law matters in Minnesota and Western Wisconsin. www.millerandmurray.com

Saint Paul Saints Game

On Thursday June 24th, several lawyers from the Saint Croix Valley Bar Association made it to Midway Stadium to take in a little baseball & fun.  The Saints prevailed over the Sioux Falls Canaries 4-1.  For updates as to what the St. Croix County Attorneys are up to see: http://stcroixvalleybar.org/

Annulment of Marriage in Wisconsin

Can I get my marriage annulled?  In Wisconsin, the grounds to annul a marriage are limited.  You must show there was no capacity to consent to the marriage because of age, mental incapacity, impairment due to drugs or alcohol, or a party was forced into the marriage, or fraud was perpetrated regarding the essentials of marriage.  Also, if a party lacks the capacity to consummate the marriage by sexual intercourse and that was not known prior to the marriage.  Also, a lawsuit for annulment must be commenced within a year of obtaining knowledge of the condition or incapacity.  Lastly, if the marriage is illegal under Wisconsin law, for example in the instance of bigamy, an action for annulment generally needs to be commenced within 10 years of the marriage.  See also Wisconsin Statute §767.313.

Attorneys Dan Murray and Barb Miller.  Lawyers helping individuals with divorce and family-law matters in Minnesota and Western Wisconsin. www.millerandmurray.com

Child Support in Wisconsin: Shared Placement of Child

To figure out child support in Wisconsin in a shared placement situation (each parent has the child/children for at least 25% of the total number of overnights during the year), the court looks at the gross income of each parent and the number of overnights each child spends each parent.

A child support calculator for shared placement cases can be found on the Wisconsin Department of Children and Families site at http://dcf.wisconsin.gov/bcs/Sh_Place_calc.xlt

Some scenarios utilizing the child support calculator:

Example #1: 2 kids, dad makes $4,300/mo, mom makes $3,500/mo, kids spend the same amount of overnights with each parent, child support =  $150/mo from dad to mom;

Example #2: 3 kids, dad makes $4,300/mo, mom makes $5,000/mo, kids spend overnights with dad every other weekend Fri, Sat & Sun, and spend 12 weeks in summer with Dad for a total of 124 days for the year with dad, child support = $496/mo from dad to mom;

Example #3: 1 kid, dad makes $2,500/mo, mom makes $6,200/mo, kid spends the same amount of overnights with each parent, child support = $472/mo from mom to dad;

Please remember that the Court, if a good reason exists, can depart from the guidelines or not use the child support calculators.  However, in most cases, the court will simply plug the numbers into the child support calculator. 

Attorneys Dan Murray and Barb Miller.  Lawyers helping individuals with divorce and family-law matters in Minnesota and Western Wisconsin. www.millerandmurray.com

Child Support in Wisconsin: Placement with One Parent

In Wisconsin, when one parent has primary placement (generally 75% of the overnights in a year or more) of the child or children, child support is awarded to the parent with primary placement.  The amount of child support in the “basic” case is determined by multiplying the gross income of the parent with the child support obligation by a certain percentage :

17 % of Gross Income for 1 child  

25 % of Gross Income for 2 children

29 % of Gross Income for 3 children

31 % of Gross Income for 4 children

34 % of Gross Income for 5 or more children

For further explanation see DWD 40 of the Wisconsin Administrative Code or http://dcf.wisconsin.gov/publications/dwsc_824_p.htm

Attorneys Dan Murray and Barb Miller.  Lawyers helping individuals with divorce and family-law matters in Minnesota and Western Wisconsin. www.millerandmurray.com

Can I handle divorce proceedings without a lawyer?

Can I file for divorce and handle divorce without a lawyer?  The short answer is “yes”.  The correct answer is “probably not”.  An experienced divorce attorney has handled hundreds of divorces, knows the law, and often knows the tendencies and philosophies of each Judge.  The experienced divorce practitioner brings this experience to the table and can consult, advise, and guide you to the best possible result.

The attorney can also save you money by negotiating the best possible settlement and also advise you of your rights and options regarding pre-marital property, marital property, inheritances, gifts, debts, retirement plans, etc.  Remember, any debt and property division agreed to at the final hearing is virtually impossible to redo as property and debt division are not modifiable after the final hearing except in very, very limited circumstances.

Also, and often most important to those with minor children that are going through a divorce, an experienced divorce attorney with a proven track record will help you reach the best possible outcome for you & your children.  The attorney will help “calm the waters” and provide a buffer in negotiating a deal with the other parent.  If a settlement agreement is not reached, the experienced practitioner will also know the law and know how to best present the case and know what evidence should be presented in order to secure a favorable result.

Bottom line, consult with an experienced divorce attorney with a proven track record to decide if they can help you with your case.  Most attorneys will provide free or low-cost initial consultations.

Lawyers helping individuals with divorce and family law matters in Minnesota and Western Wisconsin: www.millerandmurray.com

Can children speak to the Judge and tell him/her what they want?

Can a child tell the Judge his/her wishes about the placement schedule the child desires?  Yes, through the Guardian ad Litem (GAL).  One of the GAL’s principle roles is to speak with each child in a non-intimidating setting, and report to the Judge what the child said, including the child’s “wishes”.  In a vast majority of cases and with most all Judges, the only way for a child to convey his/her wishes is by speaking with the Guardian ad Litem. 

Most Judge’s prohibit either parent from testifying in Court about what the child said.  Any testimony or evidence surrounding statements made by the child must be conveyed to the Court by the GAL, and not the child, either parent, or any other person.  There are some limited exceptions to this in terms of counselors, doctors, mental health professional, etc., testifying.  Another limited exception is that there are still a couple of Judges around the state (very few) that will speak directly to the children in chambers. 

Lawyers helping individuals with Family Law matters in Western Wisconsin: www.millerandmurray.com

Can a child decide who to live with?

In Wisconsin, a minor child does not get “the say” until he or she reaches the age of majority, age 18.  Generally, the Judges do take the child’s “wishes” into account, but the child’s wishes sometimes do not match with what is ultimately best for the child.  For instance, does the child prefer parent #1 over parent #2 because parent #1 doesn’t make the child do his/her homework and allows the child stay up late on school nights?  Well, in that case, the child’s “wishes” will be given little or no weight and will probably make parent #1’s request for legal custody and/or placement more difficult.  

Over the years, many people have told me “[I] thought at age 14 they got to decide.”  This is not true in a typical divorce/child placement case.  This is true in a guardianship action, for instance if both parents died in an auto accident and left no will.  In this tragic circumstance, if the minor child is 14 years of age or older, the child can determine who he or she wants to live with, whether that be a particular grandparent, or a certain aunt or uncle, etc.  Having a valid basic Will spelling out your wishes regarding a guardian/custodian for your children is a must to avoid a family “fight” and alleviate placing additional pressure/stress on your children in a very difficult time.   

Lawyers helping individuals in Western Wisconsin with Family Law matters.  www.millerandmurray.com