Divorce and Family Law Weblog: Western Wisconsin

Barb Miller appointed to Editorial Board for the Wisconsin System Book for Family Law

miller&murray — Thu, 11 Nov 2010 18:10:44 +0000

Family-law attorney Barb Miller, Hudson, has been appointed to Editorial Board for the State Bar of Wisconsin’s System Book for Family Law. This is a two-volume legal resource that provides guidance for nearly every family-law lawyer in the state of Wisconsin. The book is primarily geared toward helping attorneys with every aspect of a divorce matter in Wisconsin. The Chapter Topics in the System Book include:

Quick Reference Guide to the Law
Divorce Procedure Outline
Representation and Fee Agreements
Initial Interview and Fact Gathering
Starting the Action
Temporary Hearing
Discovery and Trial Preparation
Agreements/Stipulations
Trial
Findings of Fact, Conclusions of Law, and Judgment
File Closing
Appeals
Postjudgment Actions and Support Enforcement
Tax Consequences
Retirement Benefits
Health Insurance Continuation and Conversion
Domestic Abuse, Harassment, and Child Abuse
Valuation of Business Interests
Mediation
Marital Agreements
Ancillary Marital Property Actions
Impact of Bankruptcy on Divorce
Reconciliation Attempt

The Executive Editors for the State Bar of Wisconsin’s System Book for Family Law are attorney Sharon Drew and attorney Gregg Herman, both from Milwaukee. Other attorneys joining Barb Miller on the Editorial Board are: Robert Loomis, Appleton; Thomas Sleik, LaCrosse; Howard Healy, Neenah; Susan Perry, Racine; Thomas Walsh, De Pere; Steven Bach, Madison; Stephen Beilke, Madison; Jeffrey Hertz, Wausau; Lynn Galbraith-Wilson, Janesville; John Bermingham, Oshkosh; Lee Kummer, Manitowoc; Thomas Geyer, Platteville; Rebecca Oettinger, Baraboo.

** 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, high-income and complex-property matters, and other family-law matters throughout Western Wisconsin and the Twin Cities eastern metro. www.millerandmurray.com

Solo and Small Firm Conference – Wisconsin Dells

miller&murray — Fri, 05 Nov 2010 02:02:34 +0000

Last week, Barb & I attended the Wisconsin Solo and Small Firm Conference in the Wisconsin Dells. This three-day conference offered a wide-range of presentations in the following areas: 1) substantive law; 2) technology; 3) practice management; and 4) quality of life/ethics. Although the conference does not traditionally offer much in the way of substantive divorce/family law insight, this conference always reenergizes my focus on our practice and on the clients we serve.

Presentations such as “Dealing with the Rambo Litigator” and “Dealing with Difficult Clients” were thought provoking but unfortunately tailored more towards new attorneys rather than experienced practitioners. However, the technology sessions were excellent and the practice-management presentations reminding all of us, new lawyers and experienced lawyers alike, of the continued importance to treat each client like your one and only client, were invaluable. In a busy practice it is always crucial to keep focused on the needs of each and every client rather than on the workload.

I have attended this solo and small-firm conference two of the past three years and plan on returning next year. Regarding upcoming substantive family law/divorce seminars, I am scheduled next week to attend a presentation on”Determining Business Income and Valuation at Trial”. No matter how many times you have dealt with a certain practice area in your everyday law practice, it is always beneficial to check out new or different insights into specialized family law areas. It is extremely important to stay current on developing trends in family law to best serve your clients now and into the future.

Attorney Dan Murray

In Divorce: who gets the crops in the field?

miller&murray — Wed, 20 Oct 2010 02:28:42 +0000

In the recent (10-13-10) unpublished case of Emerson v. Emerson, 2009AP84, one of the questions the Wisconsin Court of Appeals, Dist. III, had to consider was “are the crops in the field a marital asset subject to division?” The Court of Appeals first reiterated the fundamental legal rule that the determination of property division and any spousal maintenance award rests with the sound discretion of the trial judge. LeMere v. LeMere, 262 Wis. 2d 426, 663 N.W.2d 789 (2003).

In Emerson, Judge John A. Damon, Trempeleau County Circuit Judge, first determined that child support and spousal maintenance was appropriate given the wife’s income of $30,000/yr and husband’s income of $125,400/yr (including $83,400/yr of income available from the farm corporation). The wife was also requesting that the crops that were planted but not yet harvested should be included in the property division. In Emerson, Trempeleau County Judge Damon did not consider the crops as a marital property subject to division. Judge Damon reasoned: 1) the yield and price of un-harvested crops was speculative; 2) it was not proper to double count the crops in the field as an asset and also as anticipated income; and 3) since husband’s income was almost solely due to the sale of crops that if he took this away, the husband “wouldn’t have this income next year to pay both child support and maintenance.”

The Court of Appeals found that Judge Damon’s decision was not “clearly erroneous” (the standard needed to overturn the circuit court’s determination of property division or spousal maintenance). The appellate court further held that a trial court may choose to exclude accounts receivable from the marital estate if there is a link between the salaries and receivables and if dividing the receivables would adversely affect the ability to pay child support or spousal maintenance.” Sharon v. Sharon, 178 Wis. 2d 481, 504 N.W.2d 415 (Ct. App. 1993).

Amount of Spousal Maintenance Determined by Trial Court

miller&murray — Tue, 12 Oct 2010 20:50:21 +0000

Determining the amount and duration of spousal maintenance is left to the sound discretion of the trial court. Wikel v. Wikel, 168 Wis. 2d 278, 483 N.W.2d 292 (Ct. App. 1992). In Wisconsin, the purpose of spousal support is to: a) support the recipient according to the parties’ needs and earning capacities; and b) ensure a fair and equitable financial arrangement. LaRocque v. LaRocque, 139 Wis. 2d 23, 406 N.W.2d 736 (1987). The starting point for a spousal maintenance evaluation of a long-term marriage is to consider an equal division of total income. Schmitt v. Schmitt, 201 WI App. 78, 242 Wis. 2d 565, 626 N.W.2d 14.

The recent unpublished case of Pascual, involved the trial court evaluating a thirty-two marriage with the wife making $73,000/yr and the husband earning $22,000/yr and having an earning capacity of $35,000/yr. The husband also operated a Comic Book Store and the amount of his income from the store was unclear. The Court determined the fact of the long-term marriage favored a 50/50 division of the total yearly income of $95,000, and awarded the husband $125/week until he obtained full-time employment (met his earning capacity) after which husband would receive $100/week.

In Wisconsin, since there are no hard-and-fast rules to determine spousal maintenance, it is a good idea to consult with an experienced family law attorney in evaluating (and advocating on your behalf) if, how much, and for how long maintenance should be expected in each individual case.

** 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 throughout Western Wisconsin and the Twin Cities eastern metro. www.millerandmurray.com

8 Pieces of Advice to Consider Regarding Your Divorce

miller&murray — Thu, 01 Jul 2010 21:50:59 +0000

I recently came across this short article by Attorney Laurie Giles that provides some good basic reminders concerning your contemplated or filed divorce action. An experienced-helpful divorce attorney will keep reminding you of these practical divorce tenets throughout your case:

8 Divorce Mistakes That Could Cost You a Fortune
(provided by Laurie Giles, Esq., Connecticut Divorce Education)

Financial and emotional challenges of divorce are frequently difficult. Making avoidable mistakes may well result in emotional and financial destruction.

Here are mistakes many people going through divorce often make— mistakes that can cost you a fortune.

Mistake #1 Making decisions in the heat of the moment. Making decisions when are upset or depressed, can and probably will, result in making the wrong decision. Take time to mull over issues before making decisions.

Mistake #2 Getting divorce advice from friends and family. Undoubtedly you will receive lots of advice from many different people. Some solicited, most unsolicited. Everyone will have a story to tell, or know exactly what you should do to “win”. Heeding this advice can be a big mistake. Hear and listen first to the advice of the professionals you have hired. Then and most importantly follow you heart and gut.

Mistake #3 Using your divorce to punish your former spouse. Not only will this cost you, but will also hurt you and ultimately your children as well.

Mistake #4 Failing to develop a strategic plan. Approaching divorce in a piecemeal fashion without a clearly defined plan is like running a race without a clue as to where the finish line is. Plan before you act.

Mistake # 5 Fighting over the small stuff. Decide what is worth fighting over and leave the rest out. Fighting over salt and pepper shakers is not only a colossal waste of time but financially imprudent.

Mistake #6 Making unreasonable demands. Unless the circumstance of your divorce are so egregious as to send an experienced judge into shock, you have a better chance of hitting the lottery every year for the next 10 years than of being awarded 100% of the marital asset free and clear. Be reasonable.

Mistake # 7 Comparing your situation to others. Just as no two families are identical no two divorce cases are the same.

Mistake # 8 Failing to obtain security for support payment. If your former spouse dies, what will you do without the child support payments, or alimony? Get appropriate life insurance to protect these payments.

Information provided by
Laurie Giles, Esq., Connecticut Divorce Education

** Entries posted on this Blog shall not be deemed legal advice. For individual attention to your particular legal situation, consult a qualified attorney.** Information in this Blog provided by Minnesota and Wisconsin Family Law attorney Dan Murray and Wisconsin Family Law attorney Barb Miller — Lawyers helping individuals with divorce, legal custody, physical placement, physical custody, high income and complex property division matters, and other family-law cases throughout Western Wisconsin and the Twin Cities eastern metro. www.millerandmurray.com

Upcoming CLE’s

miller&murray — Fri, 25 Jun 2010 17:21:44 +0000

It is important for Minnesota and Wisconsin Family Law lawyers to stay on top of substantive Family Law developments. It is also important for Minnesota and Wisconsin Family Law lawyers to keep current on new trends/developments of legal practice generally.

On June 23, 2010. Attorneys Barb Miller and Dan Murray attended the Wisconsin State Bar’s presentation on Ethics and Technology.

Attorney Miller and Attorney Murray are also scheduled to attend the 3-day Solo and Small Firm Conference in the Wisconsin Dells, October 28-30, 2010. The break-out sessions will cover advancements and new legal developments covering the following areas: substantive law, practice management, technology, and quality of life/ethics.

Property Division in Wisconsin

miller&murray — Fri, 28 May 2010 13:19:59 +0000

There is often confusion as to how property is divided in a divorce or legal separation in the State of Wisconsin. Reading what the Wisconsin Statute says is the best place to start to get guidance on how things may be decided in your individual case.

Section 767.61 Property division (2005), reads:

767.61(1)
(1) Division required. Upon every judgment of annulment, divorce, or legal separation, or in rendering a judgment in an action under s. 767.001 (1) (h), the court shall divide the property of the parties.

767.61(2)
(2) Property subject to division.

767.61(2)(a)
(a) Except as provided in par. (b), any property shown to have been acquired by either party prior to or during the course of the marriage in any of the following ways shall remain the property of that party and is not subject to a property division under this section:

767.61(2)(a)1.
1. As a gift from a person other than the other party.

767.61(2)(a)2.
2. By reason of the death of another, including, but not limited to, life insurance proceeds; payments made under a deferred employment benefit plan, as defined in s. 766.01 (4) (a), or an individual retirement account; and property acquired by right of survivorship, by a trust distribution, by bequest or inheritance or by a payable on death or a transfer on death arrangement under ch. 705.

767.61(2)(a)3.
3. With funds acquired in a manner provided in subd. 1. or 2.

767.61(2)(b)
(b) Paragraph (a) does not apply if the court finds that refusal to divide the property will create a hardship on the other party or on the children of the marriage. If the court makes such a finding, the court may divest the party of the property in a fair and equitable manner.

767.61(3)
(3) Presumption of equal division. The court shall presume that all property not described in sub. (2) (a) is to be divided equally between the parties, but may alter this distribution without regard to marital misconduct after considering all of the following:

767.61(3)(a)
(a) The length of the marriage.

767.61(3)(b)
(b) The property brought to the marriage by each party.

767.61(3)(c)
(c) Whether one of the parties has substantial assets not subject to division by the court.

767.61(3)(d)
(d) The contribution of each party to the marriage, giving appropriate economic value to each party’s contribution in homemaking and child care services.

767.61(3)(e)
(e) The age and physical and emotional health of the parties.

767.61(3)(f)
(f) The contribution by one party to the education, training or increased earning power of the other.

767.61(3)(g)
(g) The earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage.

767.61(3)(h)
(h) The desirability of awarding the family home or the right to live therein for a reasonable period to the party having physical placement for the greater period of time.

767.61(3)(i)
(i) The amount and duration of an order under s. 767.56 granting maintenance payments to either party, any order for periodic family support payments under s. 767.531 and whether the property division is in lieu of such payments.

767.61(3)(j)
(j) Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests.

767.61(3)(k)
(k) The tax consequences to each party.

767.61(3)(L)
(L) Any written agreement made by the parties before or during the marriage concerning any arrangement for property distribution; such agreements shall be binding upon the court except that no such agreement shall be binding where the terms of the agreement are inequitable as to either party. The court shall presume any such agreement to be equitable as to both parties.

767.61(3)(m)
(m) Such other factors as the court may in each individual case determine to be relevant.

767.61(4)
(4) Separate fund or trust option. In dividing the property of the parties under this section, the court may protect and promote the best interests of a child of the parties described under s. 767.511 (4) by setting aside a portion of the property in a separate fund or trust for the support, maintenance, education, and general welfare of the child.

767.61(5)
(5) Related provisions of judgment. In a judgment described under sub. (1), the court shall do all of the following:

767.61(5)(a)
(a) Direct that title to the property of the parties be transferred as necessary, in accordance with the division of property set forth in the judgment.

767.61(5)(b)
(b) Include all of the following in the judgment:

767.61(5)(b)1.
1. Notification that it may be necessary for the parties to take additional actions in order to transfer interests in their property in accordance with the division of property set forth in the judgment, including such interests as interests in real property, interests in retirement benefits, and contractual interests.

767.61(5)(b)2.
2. Notification that the judgment does not necessarily affect the ability of a creditor to proceed against a party or against that party’s property even though the party is not responsible for the debt under the terms of the judgment.

767.61(5)(b)3.
3. Notification that an instrument executed by a party before the judgment naming the other party as a beneficiary is not necessarily affected by the judgment and it may be necessary to revise the instrument if a change in beneficiary is desired.

767.61(6)
(6) Recording judgment affecting real property sufficient. A certified copy of the portion of the judgment affecting title to real property, or a deed consistent with the judgment, shall be recorded in the office of the register of deeds of the county in which the real property is located.

** 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 throughout Western Wisconsin and the Twin Cities eastern metro. www.millerandmurray.com

Maintenance/Spousal Support/Alimony – What is Fair?

miller&murray — Tue, 25 May 2010 22:10:57 +0000

In Wisconsin, spousal support/alimony is termed spousal “maintenance”. There are no hard-and-fast rules in setting the duration of maintenance; rather, each individual case is determined on the facts specific to that case. Kennedy v. Kennedy, 145 Wis. 2d 219, 426 N.W.2d 85 (Ct. App 1988).

The recent divorce case of Ladwig involved a medical-doctor husband making $900,000 a year, an account-manager wife making $21,840 a year, and a 13-year marriage. The trial judge initially divided the property by awarding the husband assets worth 1.42M, awarding the wife assets worth 1.5M, and awarding the wife maintenance of $3,000/mo for 18 months, and $1,500/mo for another 18 months, for a total of three years of maintenance. In an unpublished opinion, the appellate court reversed the initial trial court determination because the judge’s ruling did not further the two primary objectives of maintenance — a) to support the recipient spouse in accordance with the needs and earning capacity of the parties; and b) to ensure a fair and equitable financial arrangement between the parties.

The appellate court also pointed out that the wife should not have to dip into her property award to meet her monthly needs. Wisconsin Law prohibits a maintenance award that forces one spouse to invade the property division to live while the other does not. Dowd v. Dowd, 167 Wis. 2d 409, 481 N.W.2d 504 (Ct. App. 1992).

Accordingly, in Ladwig, the case was sent back down for the trial judge to reevaluate several issues, including maintenance. The second time around, the successor judge, determined the wife should receive spousal maintenance of $4,700/mo for 15 years which was tied to the projected retirement date of both parties. This second award was upheld by the appellate court as meeting the objectives of maintenance.

** 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 throughout Western Wisconsin and the Twin Cities eastern metro. www.millerandmurray.com

Child Support – Deviating From the Percentage Standard

miller&murray — Tue, 25 May 2010 21:41:06 +0000

In Wisconsin, the trial Judge and the Court of Appeals presume that determining child support by using the percentage standard in WIS. ADMIN. CODE §DCF 150 (2010) is fair. Abitz v. Abitz, 155 Wis. 2d 161, 455 N.W.2d 609 (1990). In deciding child support, the trial judge may deviate from the percentage standard if it finds by the greater weight of credible evidence that the use of the standard would be unfair to the child or the party or the party requesting deviation. Mary L.O. v. Tommy R.B., 199 Wis. 2d 186, 544 N.W.2d 417 (1996).

** 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 throughout Western Wisconsin and the Twin Cities eastern metro. www.millerandmurray.com

Judge Wing Retires

miller&murray — Sun, 25 Apr 2010 22:40:25 +0000

Pierce County Wisconsin Judge, Robert W. Wing retires at the end of the month. A very nice and well-attended celebration was held on April 21st at the River Falls Golf Club. Emcee for the night was Attorney Keith Rodli out of River Falls. Local attorneys that spoke included Del Skow, New Richmond and Steve Goff, River Falls. Judges in attendance included Howard Cameron, Eric Lundell, Scott Needham, and Edward Vlack, St. Croix County; Judge Rasmussen, Polk County; Judge Damon, Trempealeau County; and Judge Stewart, Dunn County.

As with every Judge you appear in front of, you don’t agree with each and every decision they make. However, with Judge Wing, I could never say that he wasn’t prepared or that his decision wasn’t well thought out. He was a very dedicated, prepared, impartial, and well-reasoned jurist that admirably served the citizens of Pierce County for 25 years. Judge-elect Joe Boles will take over and based upon my past dealings with him, I believe he will turn into a very fine jurist as well. Pierce County has been very lucky to have Judges with unquestioned integrity.

** 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 throughout Western Wisconsin and the Twin Cities eastern metro. www.millerandmurray.com