Wisconsin Family Lawyer Blog

Finally, the Wisconsin Supreme Court has clarified an important issue in the law concerning visitation rights of grandparents and other non-parents under Wisconsin law. The case, Marriage of Meister, relates to Section 767.43 of the Wisconsin Statutes, titled “visitation rights of certain persons.”

Generally, a child’s parents have sole authority to determine who the child does and does not spend time with. Grandparents, other relatives, stepparents, family friends, have no right to spend time with the child if the parents object. Section 767.43 provides an exception to that principle, setting out specific circumstances in which these third parties may ask a court to grant them visitation with a child over the objections of the parents.

The problematic language arises in subsection (1) of the statute: Under certain circumstances a court may grant reasonable visitation rights “upon petition by a grandparent, great grandparent, stepparent or person who has maintained a relationship similar to a parent-child relationship with the child.” The issue is one of statutory interpretation: under this language, does anyone who wants visitation under this statute have to have maintained a “relationship similar to a parent-child relationship” with the child? Or is it only a person other than a “grandparent, great grandparent, or stepparent” who has to have maintained a parent-like relationship with the child in order to request visitation?

Today we step away from Wisconsin family law topics and into the realm of the personal. Attorneys take temporary leaves from the practice of law for many reasons, some voluntary, some not. My involuntary “vacation” from practicing law came in 2015, when I received a new kidney.

My family has a genetic disease – polycystic kidney disease – that progressively damages the kidneys. As my kidney functioning worsened and I became more ill and fatigued, the time I was able to devote to the practice of law decreased. Then, of course, I was completely unavailable professionally for months for surgery, hospitalizations, and recovery. My transplant was an unqualified success; I am back at the practice of law, and enjoying life more than I have in years. I am fortunate in having the best partners and staff in the world; they have been nothing but supportive and patient.

You probably guessed that a plug for organ donation was coming. Right this minute more than 100,000 people are on the kidney transplant waiting list in the United States alone; the average wait time is more than three years. Please consider letting your family and friends know that you would like your organs donated at your death. If you know someone in need, you could also consider living donation. My new kidney came from a friend with two healthy kidneys; she tells me she is feeling great and would do it again tomorrow if she could. If you are so inclined, you can even be a living donor to a stranger in need.

As many people know, the law arises primarily from two sources. First is the statutes, ordinances, and regulations promulgated by federal, state, and local governments and governmental bodies. The second source is caselaw – written decisions (opinions) from appellate courts that provide precedent for subsequent cases. Lawyers routinely use both kinds of law as we represent our clients in settlement negotiations, at trial, and on appeal.

Wisconsin caselaw consists of the written decisions of the Wisconsin Supreme Court and the  Wisconsin Court of Appeals. While all Wisconsin Supreme Court opinions are published, the Court of Appeals determines in each case whether the decision should be “published” or “unpublished.” Wisconsin statutes set forth criteria for whether a decision should be published. Wis. Stats. § 809.23. Generally, a decision should be published if it addresses significant issues, creates a new rule or clarifies an old one, or resolves a conflict between previous decisions. Relatively few Court of Appeals cases are published. For example, according to the Court of Appeals Annual Report, only ten percent of 2015 Court of Appeals cases were published.

Why do we care whether a decision is published? For many years, in Wisconsin and many other jurisdictions, only published decisions could be used as precedent in subsequent cases. This rule caused much frustration for attorneys and limited the resources we could use in the zealous representation of our clients. Countless times we have found the perfect case, one that establishes beyond doubt that our client will prevail, only to realize that the case is unpublished and therefore of no use.

A Michigan divorce case has garnered a great deal of press in recent weeks. A family court judge, utterly frustrated by the children’s refusal to spend time with their father, ordered the children to spend their summer – and perhaps longer – in a juvenile detention center. The judge found the children in contempt of court for refusing to obey an order, and terminated the mother’s contact with the children for the summer. We are not privy to the details of the case, so we can’t make an informed comment on the judge’s remedy, other than to observe that it is extremely unusual and probably inappropriate, possibly counter-productive.

In our experience, it is sadly not unusual for one parent to work to alienate the children from the other parent, encouraging them subtly or openly to refuse to spend the court-ordered placement time with the other parent. It is not difficult to imagine the pain, frustration, and helplessness of the alienated parent. Of course, sometimes the children’s refusal has nothing to do with alienation by a parent, and everything to do with mistreatment or abuse in the other home. In this situation, however, the court must be presented with evidence of the mistreatment; otherwise there is no legal basis for a court to permit the children to refuse placement.

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Venue and motions to change venue in Wisconsin courts are governed by the statutes found at Wis. Stats. § 801.50 through § 801.64. Those statutes apply to family law cases through §767.201 and the related residency requirements of § 767.301.

Family law cases, however, are unique in their continuing nature. While most types of cases are finalized after entry of judgment (except, of course, for appeal remands and sometimes enforcement issues), family law cases frequently require the court’s continuing action after entry of judgment for modification of placement or custody, modification or termination of child support, maintenance issues, placement enforcement, etc. As families move around the state in our mobile society, venue issues often arise: which county is most convenient for the parties, where is most of the relevant information located, etc.

The family code, § 767.281, provides a simple way to change venue for post-judgment modification and enforcement motions, petitions, and orders to show cause. With the title, “Filing procedures and orders for enforcement or modification of judgments or orders,” one might not expect this statute to provide a useful mechanism for transferring a post-judgment family case to a more convenient or appropriate county, which perhaps explains why the statute and procedure are little used or understood. But in an appropriate case, this statute can simplify and streamline procedures as families move around the state.

Last year, in the context of divorce, we blogged about enforcement of and challenges to the property division provisions of a marital property agreement, or prenup. Under Wisconsin law, courts must presume that these provisions are valid and enforceable unless the prenup is shown to be inequitable. Caselaw, beginning with Button v. Button, has interpreted the meaning of “inequitable” under these circumstances.

But the analysis is different for prenup provisions regarding maintenance (alimony) at divorce. While property division provisions are governed by Wis. Stat. § 767.61, maintenance provisions are governed by Wis. Stat. § 767.56(1c)(h). That statute provides that an agreement “concerning any arrangement for the financial support of the parties” is a factor the trial court must consider in making a maintenance decision. A prenup thus is just one factor regarding maintenance to be considered by the trial court, along with other factors such as the length of the marriage, the parties’ earning capacity, etc. The factors are listed at Wis. Stat. § 767.56(1c), along with the catch-all “such other factors as the court may in each individual case determine to be relevant.”

The difference is significant. Regarding property division, the burden is on the spouse who is challenging the prenup to show that it is inequitable; if the spouse cannot make such a showing, the inquiry ends and the terms of the prenup are enforced. Regarding maintenance, there is no presumption, no shifting of the burden between spouses; rather, the trial court weighs the evidence and exercises its discretion in determining maintenance. The focus is not on the prenup itself, but on the prenup in the context of the statutory maintenance factors and the twin maintenance objectives, support and fairness. See, e.g., Hefty v. Hefty.

A friend of the family died recently at age 54. He and his wife had lived apart for several years; they were planning to divorce, perhaps had already started a divorce action. As with most divorces, a variety of problems plagued the marriage, but a big one was his wife’s excessive spending.

My friend had started to move on with his life. Like most people in those circumstances, his time and attention were focused on establishing housing, working out continuing financial obligations, dealing with his emotions, navigating co-parenting, building new relationships. Changing his estate planning documents was not among his priorities. It may have occurred to him, but it was buried under the mound of other tasks demanding his attention. And of course he did not expect to die at 54.

My friend did not change his life insurance beneficiary designation; his life insurance proceeds were paid to his wife. He did not change his retirement account beneficiary designation; those proceeds too were paid to his wife. He did not change his will, which left everything to his wife, including the substantial investment accounts he had recently inherited from his parents. His children are at the mercy of his spend-thrift wife; no one expects that there will be much left for them as they reach adulthood.

In Wisconsin, parents have an obligation to support their child financially until the child is 18 years old. This support obligation can extend to age 19 if the child is in high school (“pursuing an accredited course of instruction leading to the acquisition of a high school diploma or its equivalent”). Wis Stats. § 767.511(4). Termination of child support when the child “ages out,” however, does not happen automatically. Sometimes the county Child Support Agency contacts the parents and then moves to terminate child support. But ultimately, the burden is on the parents to make sure child support terminates at the appropriate time. If the Child Support Agency does not act on your behalf, you may need to file a motion and obtain a court order terminating child support.

If you pay child support and your child is nearing the age when your obligation to pay child support ends, pay attention to your case. Contact your attorney or your county Child Support Agency to ensure that your child support does not continue to accrue after your obligation to pay support has ended. If you miss the termination date and over-pay child support, you may be able to recoup the overpayment by filing a motion and asking the circuit court to order repayment. But this is a time-consuming and potentially expensive remedy that is best avoided by ensuring that your child support terminates when it should.

If you have more than one child, it may be in your interest to seek modification of child support as each child approaches age 18/high school graduation. Before you do so, though, calculate your prospective child support obligation based upon the parties’ current financial circumstances to be sure the amount of child support you pay will decrease. For example, if your income has increased significantly since entry of the previous child support order, a recalculation of child support may actually increase your support obligation, even though you will be paying support for fewer children.

Maybe you entered a marital property agreement (prenup) prior to your marriage, and now that you are contemplating divorce, you assume there is no point in discussing division of property because the prenup’s provisions will control. Or maybe you are considering signing a prenup as an iron-clad guarantee that if you ever divorce, property will be divided as you wish.

In either case, think again. Yes, in Wisconsin, prenup provisions concerning division of property are presumed to be valid and enforceable pursuant to the divorce statutes. Still, there are many possible grounds for challenging a prenup and having it thrown out.

Challenges to the property division provisions of a prenup are analyzed under Button v. Button, 131 Wis.2d 84 (1986), and cases applying Button. In summary, Button provides that a prenup may be vulnerable to challenge if the parties did not make full financial disclosure to each other before signing the prenup and entering the marriage. It may be vulnerable to challenge if one spouse did not have a meaningful choice whether to enter the agreement, considering factors such as adequate time to evaluate the agreement, advice of independent counsel, and comprehension of the agreement. It may be vulnerable to challenge if it was unfair to one of the parties based upon their circumstances at the time it was signed, or if it is unfair to one of the parties at the time of divorce due to unforeseeable changed circumstances. Under Button, a prenup will be thrown out if a court finds that it fails on any one of these points.