Digital assets present a unique set of challenges to family law proceedings. For decades, courts have recognized the value in digital assets like photos and animations. But recent years have seen an explosion in the types and values of digital assets, from cryptocurrencies like Bitcoin and Ethereum to nonfungible tokens (NFTs). As of 2021, it is estimated that 20 million Americans hold cryptocurrencies, a market worth $2 trillion.

Although neither Wisconsin appellate courts nor Wisconsin statutes have expressly considered the unique challenges that digital assets pose to legal proceedings, it is inevitable that the law will have to contend with these novel issues as more people come to recognize and own digital assets. Until the state establishes statutes that specifically address the particularities of digital assets in legal proceedings, attorneys and courts will need to adapt existing practices to this new frontier.

Wis. Stat. §767.127(1) requires parties to furnish full disclosure of all assets in all actions affecting the family. This disclosure must include all financial interests including cryptocurrency, and failure to provide complete disclosure constitutes perjury. A subsequent section, §767.61, addresses the division of property in annulments, divorces, and legal separations. All property–including intangible property like Bitcoin–acquired prior to and during the marriage must be divided.

In general, any revision of a child support order is prospective from the time that notice of one’s motion to revise child support is provided to the other party. In other words, retroactive revisions of child support are generally not allowed. However, since the Wisconsin Supreme Court’s decision in Frisch v. Henrichs, 2007 WI 102, child support payees have found a way to effectively receive a retroactive child support revision, albeit in the context of a contempt motion.

Child support orders generally require the payer to notify the Child Support Agency and the payee, in writing, within ten days, of any change of employment or substantial change in income. In Frisch v. Henrichs, a provision of the parties’ divorce judgment contained this requirement. The respondent in Frisch failed to notify either the Child Support Agency or the payee of a substantial change in income as required. The payee moved to have the payer held in contempt of court for his intentional failure to notify the payee of his substantial change in income. The Circuit Court found the payer in contempt of court and specifically found that the payer’s failure to produce the information in a timely manner, as required, permitted him to evade exposure to the possibility of a modification of his child support obligations and thereby deprive the payee and the children of their traditional remedies under statutory law. The court further found that it was not enough for the payer to provide the information at a late date prior to the contempt hearing. Rather, an essential element of the court’s order was that the payer provide the financial information in a timely manner. In Frisch, the Circuit Court found the payer in contempt and ordered as a purge condition that he pay $100,000 to the payee. On appeal, the Wisconsin Supreme Court affirmed the Circuit Court’s decision. Therefore, even though the statute disallows a retroactive revision of child support, Frisch allows the court in certain circumstances to compensate a child support payee for all or a portion of child support that the payer should have paid by means of a contempt of court motion.

Recently, our firm was involved in a similar case. In December 2001, the court made findings regarding a child support payer’s income and set the appropriate level of child support. The court order also required the payer to notify the Child Support Agency, in writing, within ten days, of any change of employment and of any substantial change of income affecting the ability to pay support. The payer did not disclose to payee any change of earnings until 2015, when the parties’ child was about to graduate from high school. Furthermore, the payer failed to notify the Child Support Agency of any change of income. In the meantime, the payee learned that the payer had experienced a substantial change in income since the time of the child support order. The court found the payer in contempt of court and ordered as an alternative purge condition that he pay $100,000 within 90 days, which he did. In addition, the payer was ordered to contribute a significant amount to payee’s attorney’s fees.

As discussed elsewhere in this blog and in our website, legal custody is the right to make major decisions for your minor child, such as whether to allow your child to marry, enter the military, or change schools. Under Wisconsin law, there is a strong presumption that joint legal custody is in the child’s best interest.

That presumption flips, however, in families where domestic violence is present. See Wisconsin Statutes Section 767.41(2)(d). If the court finds that a party has “engaged in a pattern or serious incident of interspousal battery” or “domestic abuse,” the court must presume that awarding that party custody – sole or joint – would not be in the child’s interest. The party that engaged in domestic violence can rebut the “domestic violence presumption” and obtain custody of the child, but only under conditions specified in the statute. The party must show the court: (1) that they have completed a domestic abuse treatment program; (2) that they are not abusing alcohol or other drugs; and (3) that awarding custody to that party is in the child’s best interest.

A confusing, convoluted section of the statute addresses families in which both parties have committed acts of domestic violence. Under these circumstances, the court must consider specified factors to determine which party was “the primary physical aggressor.”  If the court finds that neither party was the primary physical aggressor, then the joint custody presumption, rather than the domestic violence presumption, applies.

One of the major issues couples face when they are ending their marriage is continuation of health insurance coverage.  People who receive coverage through their spouse’s employer worry that they will lose that coverage when the marriage ends. While the federal Affordable Care Act has improved access, insurance purchased privately remains expensive.

Wisconsin law and practice on this issue have changed in recent years; as a result, misconceptions abound.

Years ago, most employer-provided health insurance policies provided for termination of a spouse’s coverage upon divorce, but made no mention of legal separation. Since legal separation is identical in most relevant respects to divorce (see Divorce and Legal Separation), many couples retained health insurance for both spouses by opting for legal separation instead of divorce.

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.

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