Recently in Child Support Category

January 17, 2014

Termination of Child Support in Wisconsin When a Child Reaches 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.

September 19, 2012

CONCEALING INCOME

About once a year here at Wessel, Lehker & Fumelle we encounter an opposing party who is intent on hiding income. A party's income, of course, is highly relevant information for purposes of setting maintenance (alimony), establishing child support, or changing the amount of maintenance or child support. Some support payers are working on perfecting the art of hiding or disguising income or assets, treating the support recipient much like they probably treat the IRS.

The signs are often fairly obvious. A party may report an income that barely covers expenses, yet take lavish vacations or acquire expensive toys. Or a party, often self-employed, may report an income that is substantially lower than it was before the parties split. Sometimes a party reports the former partner's penchant for half-truths and misrepresentation. A party's exhaustive or creative opposition to reasonable financial disclosure may signal interesting records.

Fortunately, the statutes authorizing access to information are broad in Wisconsin. Wisconsin Statutes Chapter 804 authorizes discovery of all "relevant" information, whether or not it is actually admissible at trial. And courts have little tolerance for parties who play loose with the facts. Once we can show some manipulation or lack of candor, courts are often willing to authorize a deeper investigation or impute income. We have also found that when the opposing party realizes that we are not simply going to accept the represented income as the whole truth, a reasonable settlement suddenly becomes more attractive.

Conversely, we sometimes have clients or potential clients who try to enlist us in their efforts to hide income or assets. We always push for full, accurate disclosure - not only because it's the right thing to do, but also because any other course exposes a party to significant risk. In Marriage of Lellman, for example, the trial court estimated Lellman's net income at $100,000, rather than the $11,000 Lellman claimed. The court of appeals affirmed: "Because Lellman did not produce the necessary financial records and because he intentionally misrepresented both his income and expenses, the trial court was left to determine a reasonable figure attributable to Lellman as a net annual income. . . . [N]ot only may Lellman's conduct be punishable as contempt or perjury, but [] it was Lellman's misconduct that placed the court in the position of being required to make reasonable approximations. Lellman cannot be heard to complain that this approximation was excessive when the precise information available to make that determination was in his exclusive control." Lellman also was ordered to pay his former wife's attorney fees.

If necessary, we will withdraw from a case rather than ignore a client's unethical behavior.

June 1, 2012

Child Support in Wisconsin: May v. May

On April 3, 2012, the Wisconsin Supreme Court issued its decision in May v. May. The attorneys at Wessel, Lehker & Fumelle represented Michael May in this post-judgment child support dispute, and have blogged about the case previously. The issue presented in May was whether agreements between parents to set a floor on child support are unenforceable because they are against public policy, just has agreements to set a ceiling on child support have been held unenforceable because they are against public policy. See previous posts in this blog for further explanation of the issue.

In an opinion that has further muddied these already murky waters, the Supreme Court affirmed the trial court's decision to enforce the child support agreement. The Court held that the Mays' agreement did not violate public policy because "the circuit court retains its equitable power to consider circumstances in existence when the stipulation was challenged that were unforeseen by the parties when they entered into the agreement if those circumstances adversely affect the best interests of the children." The Court flatly ignored a central issue: That in a shared-placement case, the financial resources in both homes affects the children's best interests.

As Justice Bradley noted in her concurrence, the majority opinion "creates confusion rather than clarity." It is small consolation that Justice Abrahamson's dissent shows a clear understanding of the issues. Abrahamson states that the parties should not have "the ability to stipulate to a truly unmodifiable child support floor. This result is necessary because freedom of contract cannot take precedence over the best interests of the child.[fn2] While it is more frequently the case that raising the amount of child support would be in the child's best interests, situations could arise in which lowering the amount would be in the child's best interests because of fluctuations in the parents' income levels."

April 23, 2012

Registering Orders for Enforcement in Wisconsin

If you're looking for a Wisconsin court's assistance with enforcing an order from another state, one trap to be wary of is the differing registration provisions for enforcement of support orders vs. enforcement of custody and placement orders.

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) sets forth at Wis. Stat. § 822.35 the procedure for registering an order for placement and custody. The Uniform Interstate Family Support Act (UIFSA) sets forth at Wis. Stat. § 769.601 - 608 the procedure for registering an order for support. Both statutes specify the registration procedures, the steps that the registering court must take to provide notice, and the procedures and standards for contesting registration. While the basic procedures are similar, there are differences, and registering an order for purposes of one of the statutes will not suffice for registering an order for purposes of the other.

Contact the attorneys at Wessel, Lehker & Fumelle for assistance with these complex statutes.

September 14, 2011

Child Support Oral Argument in Wisconsin Supreme Court Scheduled for October 6

In January we blogged about a child support issue that's headed to the Wisconsin Supreme Court. That case has now been scheduled for oral argument. Attorney Keith Wessel of Wessel, Lehker & Fumelle will argue the case before the full Wisconsin Supreme Court on Thursday, October 6, at 1:30 pm.

Under current Wisconsin child support law, parents may not agree to a maximum amount of child support. Such agreements are held to violate public policy because children should share in their parents' increased earnings. Yet the courts have imposed few restrictions on parents' agreements on a minimum amount of child support. In the case before the court, the child support payer's income decreased - a common scenario in today's economy - yet the payer was precluded from seeking a reduction in his child support payments. We argue that child support should be modifiable as the parents' financial circumstances change, whether the modification is an increase in child support or a decrease in child support.

With the current composition of the Wisconsin Supreme Court, the October 6 argument should be lively and interesting. Oral arguments in the Wisconsin Supreme Court are open to the public. Come hear a thought-provoking argument and, whatever your opinion, demonstrate by your presence that the public cares about this issue.

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.