The term “family law” encompasses many aspects of law pertaining to issues revolving around one’s relationship with a loved one, partner or spouse. People who are contemplating marriage frequently want to develop a premarital agreement, particularly if they wish to give some of their assets to children from a prior relationship.
Similarly, people who are unmarried but who wish to live together, or raise a family together, may want to set out their agreements as to how they will manage their finances or parent their child/ren. People who are married and wish to remain so may need to negotiate a marital property agreement if they are having issues or disputes regarding the management of their income, assets or debts. People who are married but thinking about separating may need help working out the division of their estate, or their parenting agreement. People who have been divorced but who now face issues regarding their financial arrangements or children may need assistance in resolving those issues.
Given the sensitive, personal nature of family law issues, it is important that the process used to resolve the issues does not cause or contribute to a breakdown in the couple’s relationship. Karen D. Julian is deeply committed to helping her family law clients resolve their issues effectively, creatively, and in a mutually respectful manner, using the principles of both mediation and the collaborative model.
Summary of Karen's Family Law Practice
Wisconsin is a "marital property" state, and our statutes governing marital property and individual property and debts are very complicated. Under Wisconsin law, property acquired by the earnings of either party before and during the marriage, even though titled in one spouse's name, is considered property of the marriage, and each spouse has an undivided one half interest in each item of marital property. Gifts and inheritances are considered individual property, and not marital property, unless they become "mixed" with other marital property. Under Wisconsin law, a couple may use a formal marital agreement, made either before or after their marriage, to reclassify gifts, inheritances, and property owned prior to the marriage as marital property, or to classify assets acquired before and during their marriage as individual, and not marital property.
One of the first questions a couple should address is: What are our main objectives in entering into a marital agreement? Do we wish an agreement for use during our marriage, for protection of either of us upon the death of the other, for protection of any child or children, or for use in the event of a divorce?
A couple should also discuss the following issues:
- Support for a Minor Child.
Nothing in a marital agreement can adversely affect the right of a minor child to support. This includes any child by a previous marriage, as well as any children born during a marriage. Anything contained in a marital agreement which adversely affects a child's right to support will be deemed void by the courts.
- Property Rights and Obligations.
The rights and obligations each party may have regarding property owned by either party, regardless of when or how it is acquired, may be set out in a marital property agreement.
- Management and Control.
Parties may reach agreements regarding who may manage and control their individual as well as their marital property.
- Incapacitation, Divorce or Death.
Parties may set out how they wish their property divided in the event of the incapacity of either of them, the death of either, or a divorce.
- Support for a Spouse.
Parties should discuss their wishes regarding support by one for the other during their marriage as well as upon any separation, divorce, or incapacity.
- Other Documents.
Parties may discuss making a will, trust, or other arrangement to carry out the terms of their marital agreement.
- Avoiding Probate.
Parties may discuss what they wish done with their assets at the time of either party's death. These agreements may be included in the marital agreement so that the property may pass without probate.
Parties may decide which state's laws they wish to govern their agreement, in the event they move to another state during their marriage.
- Other Decisions.
Parties may make any other decision regarding their property that they wish, so long as that decision is not in violation of a public policy or a statute imposing a criminal penalty.
A formal marital property agreement can only be amended or revoked by another marital property agreement signed at a later time by both parties. Parties may enter into a marital property agreement prior to their marriage, but it will take effect only upon their marriage.
A marital property agreement will not be enforceable if either spouse proves any of the following:
- The agreement was unconscionable, or totally unfair or unjust to one party, at the time it was signed.
- A party did not enter into the marital property agreement voluntarily.
- Prior to the agreement, one party did not receive a fair and reasonable disclosure of the other party's property or financial obligations, or did not voluntarily waive, in writing, the right to such a disclosure; and he or she did not have notice of the other party's property or financial obligations.
Given the requirement for "fair and reasonable" financial disclosure in order to enter into an enforceable marital property agreement, each party should fully disclose his or her assets, debts, income and ongoing obligations or budget to the other before the couple begins serious negotiations about the terms of a marital agreement. When the parties discuss the terms of their marital agreement after full financial disclosure, each then does so with full knowledge of the other's financial status.
Because of the complex, sensitive nature of a marital agreement, and the rights involved for both parties, it is preferable for each party to have an attorney to help him or her understand and negotiate the terms of the agreement. Parties may use mediation or the collaborative model to help them negotiate their marital agreement. Parties should remember, however, that this process takes time, and it is best to get any premarital agreement drafted and signed well before the wedding.
A divorce action is begun with the filing of a summons and petition, or if the parties file together, a joint petition is used and a summons is not needed. The person who files for divorce is called the petitioner, and the other party is called the respondent. If both parties file together, they are called joint petitioners. A divorce will be granted if one of the parties believes the marriage is irretrievably broken. Generally, a divorce will not be granted until at least 120 days have passed from the date the respondent has been served with the summons and petition, or from the date a joint petition is filed with the court.
To file for divorce in Wisconsin, at least one of the parties has to live in this state for at least six months, and in the county for at least 30 days, before the petition may be filed.
In many divorce actions, particularly if the parties have children, they will secure a Temporary Order to set their temporary financial arrangements and temporary custody and placement terms for their children. A Temporary Order can be entered by agreement of the parties or, if they are unable to agree, after a hearing in front of a Circuit Court Commissioner. If there are disputes between parents regarding the custody and placement of their children, they may either hire a private mediator, or they will be referred to the county Family Court Counseling Service for mediation and/or a custody study. In addition, the judge may appoint an attorney, called a guardian ad litem, to represent the best interests of their child/ren. In general, the parents will be expected to share the fees charged by the guardian ad litem.
If parties are able to reach agreement on all issues between them, the agreement must be reduced to writing, and the judge will then schedule a final hearing. When there is an agreement resolving all issues, the final hearing takes only 15 to 20 minutes, after which the judge grants the divorce and approves the parties’ agreement. Parties are single the date of their final hearing, but they may not remarry for six months after that date.
If parties are unable to reach agreement on all issues, they must inform the court what issues they have unresolved, after which the judge will set the matter for a contested hearing. At the hearing, both parties and their attorneys present evidence and make argument to the judge regarding the unresolved issues, after which the judge makes the final decision.
As part of a divorce action, parties must divide their property and debts. In general, gifted or inherited property is excluded from division in a divorce, if it has been kept separate from other marital assets. Wisconsin statutes require a court to presume that all other property owned by the parties is part of their marital estate, and is to be divided equally. However, there are numerous factors in the statutes that a court must consider in determining a property division, and based on those factors, parties or the court may decide on an unequal property division. In dividing their estate, parties must determine the value of their assets, the current balances on their debts, and they must then allocate those assets and debts between them, or determine that certain assets will be sold. If the parties are unable to make these decisions, the judge will do so.
The property division is generally considered final as of the date of the parties’ final hearing, and it is difficult to change the property division after that date. If the property division determination is made by the judge, after a contested hearing, then it may require further motions and hearings with that judge, or a successful appeal, to change it. If the property division is based on the parties’ agreement, Wisconsin statutes allow a court to later change the terms of that agreement under very limited circumstances. Therefore, to change the terms of the property division based on the parties’ agreement would require a further agreement by the parties, or a motion and hearing with the judge.
Legal Custody and Physical Placement
If parties have a child or children, they will need to work out the legal custody and physical placement arrangements. Legal custody refers to the right and responsibility to make major decisions for a child. In Wisconsin, “major decisions” include consent for health care, choice of school or religion, consent to marry, consent to join the military, and consent to obtain a motor vehicle license. In Wisconsin, both parties may be awarded joint legal custody, or one party may be awarded sole legal custody. In Wisconsin, even if parties have joint legal custody, they may agree, or a court may order, that one parent has final decision-making authority in one or more of the major decision areas.
Physical placement refers to the schedule the parties’ child or children will follow between their respective homes. Typically, parents or the court must set the children’s routine time-sharing schedule, which is the schedule they follow for times other than holidays or vacations, as well as a specific schedule for future holidays and vacations.
Child support is set depending on a number of factors, including the number of children, their placement schedule, the parents’ respective incomes, and the parents’ sharing of the children’s costs. In general, in Wisconsin, child support is set based upon guidelines, unless the court determines or the parties agree to do otherwise. Child support payments are generally not taxable income for the recipient or deductible for the payer, although a well-drafted agreement can provide for deductible family support payments, which may reduce the total taxes paid by the two parties. In addition to regular child support payments, parents and the court need to determine how the parties will pay their children’s future variable costs, including childcare costs, uninsured health care costs and expenses for the children’s activities, and they need to determine how the dependency exemption(s) will be allocated.
Maintenance is the word Wisconsin courts use for alimony, or support for from one spouse for the other. Maintenance is typically taxable income to the recipient and deductible for the payer, and it ends at the death of either party, the remarriage of the recipient, or on a date as agreed by the parties or ordered by the judge. Wisconsin statutes set out several factors the court must consider in deciding whether or not maintenance should be awarded, and if so, the amount of the payments and how long they must be paid. In general, the court must consider the need of a dependent spouse for support, the ability of the other party to pay the support, the contributions of each party to the other party’s education or earning power, or to their marriage, and the fairness of the overall settlement, including the property division. If maintenance is ordered as part of the parties’ final judgment of divorce, the court usually retains the power to make changes in the maintenance order after the divorce is done, if there is a substantial changes in the parties’ financial circumstances. On the other hand, if parties waive, or give up, maintenance as part of their final settlement or judgment, then they can never ask the court for maintenance in the future.
Financial Documents Needed
Each party in a divorce action is required to provide full disclosure of any assets in which he or she has any interest, regardless of where the assets are located, using a standard financial disclosure form provided by the court system or the party’s attorney. Assets a party must disclose include real estate, checking and savings accounts, stocks and bonds, mortgages or promissory notes (showing money owed to the party), life insurance, business interests, personal property, and retirement plans. Each party must also disclose his/her income from employment or any other source, as well as all debts and financial liabilities of either or both parties. The standard disclosure form required by the court system contains a signature line for the party and the statement that complete disclosure of assets and debts is required by law, and deliberate failure to provide complete disclosure constitutes perjury. If the parties have any minor children, they must also furnish information to the court regarding what health insurance coverage is available for the children through each party’s employment or other organization.
By statute, each party is to file his or her financial disclosure statement with the court within 90 days of the date the joint petition is filed, or the respondent is served with the Summons and Petition. Each party is required to update his or her financial information at the time of final hearing. Also by statute, each party’s financial information is sealed after final hearing, and it may not be made available to anyone, other than for further litigation, appeal, modification or enforcement of the parties’ judgment. If a party fails to provide a financial disclosure statement, as required by the statutes, the court may accept the other party’s information as accurate.
In order to put together a complete financial disclosure statement, you should gather the following financial documents:
- The last two years of state and federal income tax returns and W-2's;
- The last 12 weeks of pay stubs from your employer, or other documentation of your income, from all sources;
- Titles to any vehicles;
- The latest statement from any pension or profit sharing plan, showing its value;
- A Summary Description of any health plan available to you through your employment or other organization, if you have minor children;
- The latest statements from any investment accounts;
- The latest statements from any credit card accounts or other debts; and
If you own real estate, you will need to gather
- Warranty deed;
- Latest tax bill;
- Any appraisal or assessment of the property; and
- The current balance of any mortgage or other lien against the property.
How an Attorney Can Help
If you question whether or not your estate should be divided equally, of if gifted or inherited assets should be excluded from your marital estate, you may wish to consult with an attorney. An attorney can also help you determine how your assets should be valued, and what factors you should consider in dividing your estate and debts. An attorney can help you determine whether or not maintenance for you or your former spouse should be part of your final judgment of divorce, and if so, how much and for how long. If you have already completed your divorce action, but you are unhappy with the terms of your final settlement or judgment, you may wish to consult with an attorney to see whether or not you have a basis to appeal or change your judgment.
If you have a child or children to raise, you may want the assistance of an attorney to write your final agreement as to your children’s future custody, placement with your former spouse and you, and support. A well-drafted custody, placement and support agreement can help you avoid future conflict or litigation with your former spouse.
Divorce does not have to be a destructive parting. An attorney who is knowledgeable and sensitive to the reality of divorce can assist you in dividing your estate and planning for your own and your children’s future in a way that is positive and beneficial for all of you.