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.

Late last year we blogged about our continuing efforts to uncover accurate income information for former spouses/partners despite their efforts to conceal their income or assets. The February 2013 Newsletter from Tracy Coenen and Sequence Forensic Accounting contains a timely discussion of this topic, titled Divorce Financial Analysis: Disappearing Income and Asset Values. Ms. Coenen provides an accounting perspective on approaches and techniques for developing an accurate financial picture despite a spouse/partner’s lack of cooperation or active efforts to obstruct or hide assets or income. Read her article at:

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.

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.

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.”

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.

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.

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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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.
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Can a putative father obtain an injunction in a Wisconsin paternity case before he has been adjudicated the father? The answer – at least in one court – appears to be “yes.”

Mom filed a paternity action regarding her unborn child. Alleged dad learned that mom was planning to subject the baby to an elective medical procedure shortly after the baby’s birth. Specifically, mom was planning to have the baby circumcised.

Alleged Dad objected to the circumcision on health and cultural grounds. Dad moved for a temporary order enjoining the parties from consenting to non-emergency medical procedures pending further order.