March 1, 2011

DIVORCE OR LEGAL SEPARATION?

Attorneys are often asked to explain the difference between divorce and legal separation. From the client's perspective, the only substantial difference will likely be that a divorce will terminate the marital relation, that is, after a divorce the parties are no longer married. However, after a legal separation the parties remain married. In either action, the court will enter a judgment with provisions for legal custody and physical placement of minor children, child support, maintenance, and property division.

In our experience, most parties choose to pursue divorce rather than legal separation. Furthermore, if one party asks for a legal separation and the other asks for a divorce, the court will generally grant the judgment of divorce. The reasons why a party will choose to pursue a legal separation are varied. Some health insurance policies still allow a spouse to remain on his or her spouse's policy if the parties are legally separated rather than divorced. This often proves to be a compelling reason to pursue a legal separation rather than a divorce. Others believe that there may be a reasonable likelihood for a reconciliation and opt for a legal separation rather than a divorce. Still others pursue a legal separation for religious reasons.

Once a judgment of legal separation has been entered it can be converted to a judgment of divorce. During the first year following entry, a judgment of legal separation may be converted to a judgment of divorce by stipulation of the parties. Once the parties so stipulate the court has no discretion but to convert the judgment of legal separation to a judgment of divorce. Once a year has passed since entry of the judgment of legal separation, either party acting alone may petition the court to convert the judgment of legal separation to a judgment of divorce and, again, the court has no discretion but to convert the judgment.

Parties who separate and are truly undecided as to whether a divorce is appropriate under the circumstances may be well advised to obtain a judgment of legal separation. In this way, they can obtain a set of rules that are enforceable by the court that will provide some certainty and order in areas relating to the custody and physical placement of their children, as well as their financial affairs.

January 31, 2011

CHILD SUPPORT ISSUE HEADED TO WISCONSIN SUPREME COURT

The Wisconsin Court of Appeals recently certified a child support issue to the Wisconsin Supreme Court in an appeal pursued by Wessel, Lehker & Fumelle.

One glaring disparity in Wisconsin law is its treatment of child support agreements. Parents are free to agree to a minimum amount of child support, but agreements to a maximum amount of child support are unenforceable because they violate public policy. The reasoning goes something like this: It's good for children to share in their parents' increased earnings, and good for children to have a minimum amount of child support despite a parent's decreased earnings.

This analysis may have been defensible back in the days when kids spent most of their time in one home - usually mom's - and had brief visits in the other home. Now that physical placement (sometimes called custody) is usually shared, it makes no sense to allow child support to increase as the payer's income increases, but not allow child support to decrease as the payer's income decreases.

Wessel, Lehker & Fumelle raised this issue in a case argued at the trial court by Attorney Keith Wessel and briefed on appeal by Attorneys Kris Lehker and Keith Wessel. We argued that a child support payer who suffered an involuntary income decrease should be allowed to seek a corresponding child support modification despite a prior agreement.

On January 6, 2011, the Court of Appeals certified the case to the Wisconsin Supreme Court. This means that the Court of Appeals declined to decide the case, and instead asked the Wisconsin Supreme Court to make the decision. While the Supreme Court has not yet indicated that it will take this case, it does accept most of the cases it receives by certification. In its certification in this case, the Court of Appeals stated, "The issue we certify is whether, or under what circumstances, stipulations imposing a 'floor' [on child support] are unenforceable because they are against public policy."

Stay tuned.

January 4, 2011

Wisconsin Child Support and Termination of Parental Rights

A Michigan child support case has made headlines across the nation recently. Just last month the Michigan Supreme Court ruled in Department of Human Services v. Lawrence Michael Beck that even though the father's parental rights had been terminated, his obligation to pay child support could continue. The court based its decision largely on the Michigan legislature's "clear distinction between parental rights and the parental obligation to support a minor child."

In Wisconsin, the legislature has done just the opposite. The Wisconsin Children's Code provides, "An order terminating parental rights permanently severs all legal rights and duties between the parent whose parental rights are terminated and the child. . . ." Wisconsin Statutes Section 48.43(2). Thus in Wisconsin, termination of parental rights ends all legal rights, including the parent's right to spend time with the child, and all legal obligations, including the parent's obligation to provide financial support.

December 10, 2010

WISCONSIN CHILD CUSTODY, PHYSICAL PLACEMENT, VISITATION: WHAT'S THE DIFFERENCE?

People often use the terms physical placement, visitation rights, and child custody interchangeably in the context of divorce, legal separation, paternity, and related matters. Under Wisconsin law, however, each of these terms has a distinct, specific meaning.

Parents frequently use the term child custody to describe how a child's time is divided between the parents, or which parent the child will live with for the majority of the time. The law, however, gives this term a different and very specific meaning. Legal custody is the right to make certain important decisions for a child. The Wisconsin Family Code defines "legal custody" as "the right and responsibility to make major decisions concerning the child," and defines "major decisions" as including "consent to marry, consent to enter military service, consent to obtain a motor vehicle operator's license, authorization for non-emergency health care, and choice of school and religion." Thus custody has nothing to do with where the child lives or spends time.

Often the most important issue for separating parents is where the children will spend their time. Wisconsin law calls this physical placement. If your court order allows you to have your children with you every Tuesday and every other weekend, for example, then those are your periods of physical placement with your children. If you have physical placement periods, then you also have the right to make routine, day-to-day decisions concerning your children during those placement periods. The right to make major decisions, however, is the separate issue of legal custody, as described above.

Finally, the term visitation also has a specific and narrow definition. Sometimes, under limited circumstances, a non-parent - usually a relative or a step-parent - is given the right to spend time with a child. Wisconsin law calls this visitation rights.

November 5, 2010

Wisconsin Property Division: What About Property Brought to the Marriage?

A common mis-perception about Wisconsin divorce law is the belief that the property, cash, and debts you owned before your marriage remain your separate property when you divorce, or are automatically awarded to you in the divorce. In fact, the property division section of the Wisconsin divorce laws, Wisconsin Statutes Section 767.61, states that all property acquired by either spouse before or during the marriage goes into the pot to be divided between the parties, either by the judge or by the parties' agreement, at their divorce.

The statute does provide for two exceptions to this rule. (1) Any gifts of property or money you received either before or during your marriage remain your separate property, not subject to division in the divorce. This gift exception does not apply, however, to gifts you received from your spouse, which are included as property to be divided at divorce. (2) Any funds or property you received "by reason of the death of another" person remains your separate property, not subject to division in the divorce. This exception includes life insurance proceeds, inheritances, retirement benefits, etc. Under a "hardship" provision of the Wisconsin divorce laws, if the court finds that allowing you to keep your gifts and inheritances will create a hardship for your spouse or your children, the court will include your gifts and inheritances as property subject to division.

While these provisions are relatively straightforward, complications can arise. What if you inherited property, but then converted it to stocks held in your name alone? What if you received a gift of cash, and then used it as a down-payment on a home jointly titled with your spouse? What if your spouse inherited a cottage, and then you contributed materials and labor to fix it up? What constitutes a "hardship?" These sorts of issues have few clear-cut answers and often lead to litigation.

Generally, then, the property, cash, and debts you brought to your marriage will be divided between you and your spouse at divorce. The court can, however, consider the fact that you brought property (or debts) to the marriage as it determines how much property, and what specific property, each spouse should receive at the time of divorce. The court can also consider gifts and inheritances in making this decision. These related issues will be addressed in a future post to this blog.

October 29, 2010

Considering the Wishes of A Child in Physical Placement Disputes in Wisconsin

Perhaps the most common question I have been asked as a Wisconsin family law attorney is "at what age may a child decide with whom he or she will reside." My answer has always been the same: One may choose where and with whom he or she will live at age 18.

There seems to be a strong rumor running through the public that at a certain age, most commonly alleged to be 14 years, a child may actually decide which parent he wants to reside with. In reality, nothing could be further from the truth. When parents dispute the physical placement of a child, ultimately the court may be called upon to decide where and with whom that child will live and what periods of placement the child will spend with the other parent. The court does not make this decision in a vacuum. Rather, Sec. 767.41, Wis. Stats., governs decisions concerning custody and physical placement of children. Specifically, Sec. 767.41(5) requires the court to consider "all facts relevant to the best interests of the child." Moreover, that statute requires the court to consider a list of specific factors stated in Sec. 767.41(5).

Among the specific factors the court must consider is "the wishes of the child." However, this factor is not given any greater weight than the other factors; nor is it the controlling factor. In reality, it is one among 16 factors that the court must consider.

In practice we find that the wishes of the child are not seriously considered when the child is of a tender age. Furthermore, as important, if not more important than the age of the child, is the maturity level of a child. A 14 year old child may have reached a greater maturity level than a 16 year old child in some instances. Furthermore, the court will consider the circumstances and the reasons that a child may prefer to live with one parent over the other. It is not uncommon for a child to prefer to reside with a parent who practices a more relaxed disciplinary routine than the parent who insists upon a stricter regimen. Also, we find many cases where a child will prefer to live with the parent who has the X-Box, wide screen TV, and all the other "bells and whistles" that the other parent does not have. As one can see, it is both simplistic and inaccurate to state that a child may simply choose which parent he or she will live with.

October 29, 2010

Child Custody in Wisconsin During the Holidays

Wisconsin Family law attorneys often see a spike in business in November and December as parents confront problems during the holidays. Shared placement, holiday travel, increased child care expenses, traditions with extended family - many issues can arise at this emotionally charged time of year. The holidays are right around the corner; make sure now, before problems arise, that your legal documents are in order and you are fully prepared for shared parenting during the holidays.

Many of the problems that arise this time of year can be anticipated and prevented. Closely read what your legal documents have to say about the holidays; parents often don't have a clear recollection of these provisions. If your legal documents are not completely clear regarding child placement arrangements during the holidays - or if you have no legal documents - start the discussions with your parenting partner well in advance of the holidays. Expect that both parents will need to compromise. If your holiday plans include travel, provide your parenting partner with a detailed itinerary. For steps to minimize conflict and set a positive example for your children during the holidays, see New York University Child Study Center's article, "Divorce and the Holidays: Split Decison or Family Friendly Compromise?" Psychology Today's "Managing Divorce and Children During the Holidays" offers holiday suggestions in the broader context of the co-parenting relationship. If you are worried about whether the holidays will run smoothly, this is a good time to schedule an appointment with your family law attorney.

If holidays frequently present problems in your family and you find yourself paying an annual December visit to a Wisconsin circuit court, you and your parenting partner may want to consider using a Parenting Coordinator. A Parenting Coordinator is a neutral "on-call" decision-maker who can help parents evaluate options and work on conflict resolution, and if necessary can make decisions for the parents. You can find more information on Parenting Coordinators at Wessel, Lehker & Fumelle.

October 13, 2010

Long Distance Child Placement - A Guide for Children Traveling Alone

The New York Times recently reported that over the past year several airlines in Europe and Asia have stopped seating unaccompanied children next to adults following a number of incidents of alleged sexual abuse. However, some have countered that the incidents of alleged abuse are uncommon and seating these children apart from an adult leaves them susceptible to injury in the event of an onboard emergency. Although no domestic airline appears to have changed its seating policies the issues surrounding unaccompanied children travelers is important given estimates that around 20 million children fly unaccompanied every year. This is especially crucial to parents who live far from each other and share physical placement of their children.

The scenario is quite common. For example, dad resides in Wisconsin and mom in New York. Their two children are placed with dad during the school year and with mom during part of winter break and for part of the summer. Round trip air fare for two children and a parent may be cost prohibitive so the parents agree that the children will travel alone. For many parents, placing a child alone on a flight is a worrisome experience. But with proper planning and follow through parents can make it work.

AirSafe.com has published general airline rules for parents planning to place their children on a flight unaccompanied. Policies for unaccompanied children vary by airline so it is essential that a parent confirm an airline's policy before purchasing a ticket. The parent must ascertain the specific airline's requirements as well as what it will and will not allow. For example, some airlines may allow unaccompanied children on non-stop flights only; require earlier check-in; require a higher minimum age if the child needs to change planes; or may charge an increased fare for an unaccompanied child. Most airlines require that a child be at least five years old and no more than twelve to qualify for unaccompanied child service. Teenagers typically fly on their own. The bottom line is that the parent must verify an airline's policy before booking the flight.

AirSafe has also published the following Top 10 safety tips for parents planning to allow their children to fly unaccompanied. :

1.Consider the maturity of the child.
2.Coordinate with whoever is picking up your child.
3.Tell your child what to expect during the flight.
4.Discuss appropriate behavior with your child. (This includes the behavior of other passengers).
5. Request appropriate seating for your child.
6.Review the airline's policies.
7. Take extra precautions for connecting flights.
8. Plan to spend extra time at the airport.
9. Identify the lead flight attendant.
10. Escort the child to the seat.

October 12, 2010

Enforceable Wisconsin Child Custody Agreements - Just Ask Mel Gibson

The Mel Gibson - Oksana Grigorieva custody dispute made headlines again this week with the release of a custody agreement between Mel and Oksana. The agreement spelled out a detailed placement schedule, culminating in equal placement when the child reaches the age of three.

There was just one problem: The agreement apparently was never signed by a judge and entered as a court order. When Oksana changed her mind and disavowed the agreement, it became worthless.

In our Wisconsin family law practice at Wessel, Lehker, & Fumelle, we strongly encourage parents to work together to try to reach agreements regarding placement and custody of their children. Studies (and common sense) show that it is better for everyone concerned - and especially for the children - if parents can resolve these difficult issues themselves, rather than leaving them to a judge to decide.

In Wisconsin, however, parental agreements are unenforceable unless they are reduced to writing and signed by a judge. Thus, even in the most amicable of family dissolutions, parenting agreements should be converted to court orders. This important step is not the first shot in a litigation war, but rather a continuation of the process of the parents working together for the protection of both parents and the children. A custody and placement order protects everyone; a custody and placement agreement protects no one.