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November 15, 2013

ENFORCEMENT OF PRENUPTIAL AGREEMENTS IN WISCONSIN: PROVISIONS REGARDING DIVISION OF PROPERTY UPON DIVORCE

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.

Marital property agreements (also known as premarital property agreements) can be a valuable tool under many circumstances. But keep in mind that they are not always invulnerable.

October 12, 2012

COOPERATION/COMMUNICATION WITH YOUR ATTORNEY

Throughout your legal representation, it is imperative that you respond to your attorney in a timely manner when information is requested. Most often a hearing date is coming up and we must adhere to court deadlines to exchange documentation and provide it to the opposing party. By responding on time to your attorney and providing the necessary documentation, you will save money. Repeated efforts to track clients down or get the information needed from other sources probably will show up on your bill one way or another.

But most importantly, it will help your case. When attorneys do not get timely information from clients, they simply cannot be the efficient, effective advocates they strive to be. They may not be able to present your case in the best light. They may alienate counsel or the court. They may have to delay things to your detriment. They may not be able to file the appropriate documents with the court because they do not have all the necessary information.

When you receive mail or email from your attorney, please open and read the mail immediately. You often will be requested to take some action such as gather documents, schedule appointments, sign papers, or pay court fees. It is crucial that you read all incoming mail and respond to the action requested. Advise your attorney of the best way to provide you with written materials, i.e. either by mail or email.

You may be required to provide "discovery" to the other side, which is most often paperwork. In many family matters, and particularly in divorce, you will be required to provide copies of any financial documents the other party requests. You may have a desire to hold back documents and use them for surprise purposes at trial. We have seen parties punished severely by the court for taking that approach. It is in your best interest to cooperate with requests for information in a timely manner.

There may be several orders issued by the court while your case is pending. You should keep a separate folder for copies of your orders. You should also carefully read and understand the content of every order. If you have any question about the meaning of an order, please discuss it with your attorney. It is crucial that you comply with all of the orders in your case. Failure to do so may lead to you being found in contempt of court, and may tarnish your image with the court. It is sometimes possible to modify an order while your case is pending. You should discuss that possibility with your attorney.

In summary, providing the required information to your attorney in a timely manner will not only make the legal process easier, it will save you time and money and keep your legal action moving forward without delays.

May 14, 2012

Child Placement and Custody in Wisconsin: What About the Child's Wishes?

Last week I attended the thirty-sixth annual conference of the Wisconsin Inter-Professional Committee on Divorce. One full day was devoted to the topic of the voice of the child in custody and placement disputes. Wisconsin Statutes provide that the "wishes of the child" is a specific factor for the court to consider. See Wis. Stats. Sec. 767.41(5).

But what does that mean in practice? How much weight should the child's wishes be given? And how can the child's wishes be accurately ascertained in the fraught environment of a pending court action?

A pending Wisconsin Court of Appeals case explores these issues in the context of a post-judgment placement modification motion. Wessel, Lehker & Fumelle argued in that appeal that it was error for the trial court to base its placement decision exclusively on the child's preference. Read our briefs here. Watch this blog for updates.

Kris Lehker

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.

March 25, 2012

Divorce Rate for Americans Over Age 50 is Increasing in Wisconsin, Nationwide

958839_woman_walking sxchu website.jpgAlthough divorce rates have declined across the nation, divorce is becoming increasingly common for Americans age 50 and over. In fact, the divorce rate for the age group has reached an all-time high. In 1990, about 10 percent of individuals divorcing were over the age of 50. By 2009, that number was approximately 25 percent and more than 600,000 people in the United States over 50 chose to end their marriage. By 2030, more than 800,000 people over the age of 50 are expected to divorce each year.

A survey conducted by the AARP in 2004 reportedly found that women between the ages of 40 and 69 were more likely to initiate a divorce than men. Men initiated a split in only 34 percent of divorce cases within the age group. Additionally, infidelity played a factor in only about one fourth of divorces for older Americans. 53 percent of the time, it was not the first divorce for at least one of the spouses. In fact, Americans aged 50 to 64 who are previously divorced are reportedly twice as likely to become divorced again. For those over 65, the likelihood quadruples.

Experts believe many members of the so-called baby boomer generation are seeking additional fulfillment as they reach the empty nest stage of life. They are purportedly looking ahead and seeking to make the most of their remaining healthy years. Divorcing during a recession can be complicated, however. A spouse who is awarded an underwater home may be burdened with additional debt.

Despite the rising baby boomer divorce rate, the AARP survey found that being alone was the top fear among both women and men between the ages of 40 and 79. Perhaps as a result of the divorce trend, dating websites geared to the 50 and up crowd are becoming increasingly common. In 2011, the number of dating website users over the age of 50 reportedly grew twice as fast as any other age group.

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March 15, 2012

Wisconsin State Senator Introduces Bill That Would Associate Single Parenthood With Child Abuse

1152328_kids_at_play sxchu.jpgWisconsin Senator Glenn Grothman has sponsored a bill in the state legislature that would make single parenthood a recognized contributing factor to child abuse and neglect. Senate Bill 507 would require the Wisconsin Child Abuse and Neglect Prevention Board to teach that children are less likely to be abused or neglected in a so-called traditional household consisting of both of a child's parents. The bill was co-sponsored by State Representative Donald Pridemore.

Critics of Senate Bill 507 believe its wording will create a slippery slope for single parents in the state. Senator Lena Taylor, a single parent herself, has expressed outrage over the bill. She believes Senate Bill 507 is blatantly hostile towards women. According to Nicole Angresano of the Milwaukee United Way, the language is non-inclusive and unnecessarily divisive. Angresano believes Grothman has unfairly placed all single parents into the same category.

According to Grothman, the intent of the proposed law is being misunderstood by the public. He said the bill is aimed at promoting public awareness regarding child abuse and neglect. Grothman stated he is not trying to make state law call single parents child abusers. Grothman claims children are 20 times more likely to experience abuse in households where they are not raised by both natural parents. He believes the Child Abuse and Neglect Prevention Board should be teaching that a traditional family is a superior way of raising children.

In 2009, more than one-fourth of children under 21 in the United States lived with a single parent. Single mothers also reportedly outnumbered single fathers by a ratio of 5 to 1. In Wisconsin, approximately one-third of all parents are single. Senate Bill 507 would not establish criminal or civil penalties for single parents, but would affect what the state-funded the Child Abuse and Neglect Prevention Board teaches. The board currently has an annual budget of $3 million.

Family law is an emotional subject due to its very nature. Every year, many Wisconsin residents find themselves in the midst of an unexpected divorce. The host of emotions associated with the end of a marriage can be understandably overwhelming and the financial damage can oftentimes feel devastating. One of the best ways to deal with divorce is to prepare yourself and your children for the possible emotional roller coaster. If you are contemplating divorce, a qualified family law attorney can help you protect your interests.

Continue reading "Wisconsin State Senator Introduces Bill That Would Associate Single Parenthood With Child Abuse" »

April 5, 2011

IMPACT OF 2011 WISCONSIN ACT 10 ON FAMILY LAW CASES IN WISCONSIN

Much confusion has surrounded the recent enactment of 2011 Wisconsin Act 10, the so-called "budget repair bill" here in Wisconsin. This has proved problematic for public employees and family law attorneys alike in planning budgets looking into the future.

Until Thursday, March 31, this writer had been preparing budgets for state employees as if the Act were in effect and preparing budgets for other public employees, such as local, municipal, and school district employees, without taking the Act into account. This was due to the fact that the state government had taken the position that the Act was in effect as of March 26, while most other public entities had taken the opposite approach.

With Dane County Circuit Court Judge Maryann Sumi's March 31 ruling that the Act is not in effect, we are now safe, at least for the foreseeable future, in preparing our divorce clients' budgets without factoring in the impact of the Act and will continue to do so until further judicial ruling.

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.