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Complex Property Division FAQs

West Bend Family Law Attorney

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Serving Beaver Dam, Oshkosh, West Bend & Wisconsin

At Derr & Villarreal, our family law attorneys bring more than 50 years of combined experience to your case. We are proven trial lawyers who are also family law mediators. Whenever possible, we are dedicated to helping our clients retain the power to make decisions and to keep the peace by going through the mediation process. We have found that this is the healthy, economical way to solve your family law and divorce issues. We are ready with the personal attention and service to help you move forward to a positive future.

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What are the grounds for divorce in Wisconsin?

The only legal reason for divorce in Wisconsin is that the marriage is irretrievably broken. This means there is no chance for reconciliation. A judge will find a marriage irretrievably broken even if only one of the spouses wants a divorce.

What is the difference between a divorce and a legal separation?

Divorce ends a marriage. A legal separation involves the same procedures as a divorce, but the spouses can’t remarry. Legal separation is an alternative for people who don’t wish to divorce for religious or other reasons. However, a legal separation can be converted to a divorce by either party after one year. Sometimes an employer will continue to provide health insurance to the spouse if they are legally separated. Every employer is unique so people must check their plan in advance. A legal separation is granted on the grounds that the marriage relationship is broken. As in a divorce, the property is divided, custody is determined, and maintenance and child support payments may be ordered. Spouses who reconcile after a legal separation may apply to have the separation revoked at any time.

What is an annulment?

An annulment dissolves a marriage that was not valid from the beginning. For instance, one party may have been too young, unable to have sexual intercourse, incapable of consenting to the marriage or induced to marry by fraud or force.

How long must you live in Wisconsin before you can file for divorce?

Before you can file for divorce, one spouse must have been a resident of Wisconsin for at least six months and either spouse must have been a resident of the county where the action is started for at least 30 days.

How is a divorce action started?

Divorce usually begins with the service of four legal documents: the Summons, the filing of which starts the “legal” action; the Petition for Divorce, which gives the legal and factual history of the marriage and states the desired outcome; the Affidavit for Temporary Relief, which requests temporary provisions for child custody, visitation or support and any other provisions needed; and the Order to Show Cause, which contains the time and date of the hearing before the family court commissioner who will establish the temporary order.

How long does it take to get a divorce?

Though the court can make exceptions for certain emergencies, there usually has to be at least four months between the serving of the initial papers and the final hearing. But most divorces take more than four months. The complexity of your case, the ability of you and your spouse to agree on property division, support and other issues, plus the amount of other business before the trial court all affect how long the action takes.A divorce isn’t effective until the final hearing although neither spouse may remarry for at least six months.

Can your rights be protected between the time a divorce action is started and the final hearing?

Yes. Unless the court orders otherwise, both parties are prohibited from harassing, intimidating, physically abusing or imposing any restraints on the personal liberty of the other party or a minor child of either party. In addition, both parties are prohibited from encumbering, concealing, destroying, damaging, transferring or otherwise disposing of property owned by either or both of the parties, without the consent of the other party or prior order of the court or family court commissioner, except in the usual course of business, in order to secure necessities or to pay reasonable costs and expenses of the action, including attorney’s fees.

Both parties also are prohibited from establishing a residence with a minor child of the parties outside Wisconsin or more than 150 miles from the other parent within the state, removing a minor child of the parties from Wisconsin for more than 90 consecutive days or concealing a minor child of the parties from the other party without the consent of the other party or an order of the court or family court commissioner.

These restraining orders apply until the action is dismissed or a final judgment is entered, unless the court orders otherwise. Violation of these restraining orders may be punishable as a contempt of court. Parties may agree or a family court commissioner may issue temporary orders that protect your rights. For example, temporary orders may cover: custody; physical placement; use of the home; maintenance; payment of debts and counseling costs; prohibiting either party from removing the children from the state; disposing of assets; and/or interfering with each other’s personal liberty.

A person disobeying a temporary order can be fined, jailed or both. Some law enforcement agencies, though, are reluctant to arrest a spouse for violation of a divorce temporary restraining order. In that case, one spouse may seek to restrain the other by filing a domestic abuse injunction. Law enforcement agencies are more willing to take immediate action for violation of an injunction.

How does the court decide who gets custody and physical placement of a child?

Often a husband and wife agree on custody and placement. If not, the judge determines custody and placement in light of the “best interests” of the child(ren). In making this decision, the judge considers testimony and other evidence presented in a trial. Important considerations include: reports of appropriate professionals; the wishes of the child and the parents; the interrelationships of the child with parents, siblings and others who may affect the child’s best interest; the child’s adjustment to the home, school, religion and community; the parties’ mental and physical health; availability of child care services; whether one party is likely to unreasonably interfere with the child’s continuing relationship with the other party; and any other factor the judge deems relevant.

What is joint legal custody?

Joint custody means that both parties maintain parental control and have the right to participate in decisions regarding medical care, religious training, choice of schools the child(ren) will attend, and so forth. Joint custody does not necessarily mean equal physical placement.The court can order joint legal custody if it seems in the child(ren)’s best interest and if either of the following applies: both parties agree to joint legal custody; or the parties don’t agree to joint legal custody, but one party requests it and the court specifically finds that both parents can meet parental duties and responsibilities and want an active role in raising the child(ren); there are no conditions that would interfere with the exercise of joint legal custody; and the parties will be able to cooperate in decisions regarding the child(ren). However, if the court finds that either party has engaged in a pattern or serious incident of inter-spousal battery or domestic abuse, there is a presumption that it is detrimental to the child to award sole or joint custody to that parent.

Can you move to a new residence after the divorce?

If you have children, there may be some limits on where you can move after a divorce with the children. There are important rules regarding: removing a child from the state for longer than 90 days (in some cases, for longer than 14 days); and establishing residence outside the state, or even 150 miles or more away from the other parent.If you want to move out of the state or more than 150 miles away and you provide notice by certified mail of your intent to do so, the other party may file an objection with the court. This must be done within 15 days of receiving the notice. The court will then refer you and your former spouse for mediation or other court services. It may appoint a guardian ad litem.

What is a guardian ad litem?

A guardian ad litem is an attorney appointed to represent the best interest of the child(ren) when- ever the courts are asked to make decisions that involve them. The guardian ad litem may fully participate in any hearing before the court and may make recommendations regarding custody, visitation and child support. His or her sole interest is to do “what is best for the child(ren)” and to represent those interests to the court and the parents.

How does the court decide the issue of child support?

Child support is usually set by applying percentage standards to the gross income of the parent who has placement less than 25 percent of the time (91 days) placement: 17 percent for one child; 25 percent for two children; 29 percent for three children; 31 percent for four children; and 34 percent for five or more children.

The court will use a shared-time payer formula if both parents have at least 91 days. You can determine child support as a shared-time payer by using a spreadsheet created by the family law section at dcf150sheets.com.

However, the court does not have to apply these standards if it determines they would be unfair in a particular case. If physical placement of the child or children is substantially equal, the child support will usually be reduced to reflect the additional placement time. If a payer has an existing obligation to pay support due to a prior divorce or paternity judgment, the gross income available for child support may be reduced by the previous order be- fore the percentage standards are applied to the payer’s income. Also, if the court believes that the current earnings are not accurate, the court can base the child support order on the payer’s earning capacity rather than the payer’s actual earnings. Violation of physical placement (visitation) rights by the parent with custody does not allow the non-custodial parent to stop child support payments

What is a wage assignment?

A wage assignment is an order to an employer to deduct child support or maintenance payments from an employee’s check.Each time the court makes a support or maintenance order, the order includes a wage assignment order for the payor’s employer. However, if an order for wage assignment would cause the payor irreparable harm, the court may allow payment directly to the clerk of courts.

What is maintenance?

Maintenance, formerly called alimony, is payment of money from one spouse to the other during or after a divorce. Maintenance differs from child support in its tax implications. A parent paying child support can’t deduct it and a parent who receives it doesn’t report it as income. Maintenance, on the other hand, can be deducted by the person who pays it and it must be reported as income by the recipient.

How does the court decide whether to award maintenance?

A husband and wife may agree on whether, and how much maintenance is appropriate. If they don’t, the judge decides whether to award maintenance payments and for how long. The court will consider: the length of the marriage; the age, physical and emotional health of the parties; the division of property; the educational level of each party; the earning capacity of each party; the likelihood that the party seeking maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage and how long it would take to achieve this goal; tax consequences; any agreement of the parties; the contribution by one party to the education, training or increased earning power of the other; and any other factor the court determines to be relevant.

Will the court order my spouse to pay for my attorney?

Usually not. Under certain limited circumstances, however, the court may order a contribution from the other party.

How does the court divide the property of the parties?

Most of a couple’s property, including assets such as pension plans, is subject to division. The only exception is property received either as a gift from a third party or an inheritance. Even gifts and bequests may be divided in some circumstances. If the couple can’t agree on how to divide the property, the court will usually divide equally the total of the divisible property. It may alter this division, however, by considering: the length of the marriage; the property brought into the marriage by either party; whether one of the parties has substantial assets not subject to division by the court; each party’s contribution to the marriage; .the age and physical and emotional health of the parties; the contribution by one of the parties to the increased earning power of the other; the earning capacity of each party; the desirability of awarding the family home or the right to live there to the party with more physical placement of the minor child(ren); tax consequences; agreements of the parties; and any other factor the court deems relevant.

May a woman use her former name after a divorce?

If a woman wants to resume using her maiden name or a former legal name, the court will restore it. If she wishes to continue to use her married name, she may do so.

Can the parties getting divorced use the same lawyer?

Ethical rules generally prohibit an attorney from representing both parties in a divorce. Occasionally an attorney will represent one spouse, and the other will choose to represent himself or herself. Divorces in which neither party uses an attorney also occur, particularly when there are no children and/ or little or no property. In mediation, the mediator is neutral and assists both parties in coming to an agreement. You should use extreme caution if you go through a divorce without a lawyer. Divorce is a lawsuit and it can have a number of hidden consequences. If you have little or no income, you may qualify for free help from a legal services agency.

What can you do if you aren't satisfied with the final divorce judgment?

If you aren’t satisfied, you can ask the court to reconsider its decision. You also can appeal to the Wisconsin Court of Appeals. There are very strict time limits for filing an appeal (usually 45 days). Certain issues can be reviewed by the trial court at any time. You will usually have to show a substantial change of circumstances before a trial court will revise a judgment. Very few cases succeed on appeal. It is important to make informed decisions before the final judgement. If you are dissatisfied with a decision about maintenance, however, you should be aware of certain limits. A judgment that waives maintenance cannot be revised. If you want the court to reconsider an award of limited-term maintenance, you must file a motion before the maintenance period ends.

Will the court order my spouse to pay for my attorney?

Usually not. Under certain limited circumstances, however, the court may order a contribution from the other party.

What is a default divorce?

A default divorce is one in which you and your spouse have no contested issues to be decided by the court. The date of a default hearing is usually soon after you file a Final Marital Settlement Agreement, which spells out all your arrangements for support, maintenance, and asset and liability distribution, as long as the 120-day statutory waiting period has expired. At the hearing, upon approval of your agreement, the court will grant an absolute judgment of divorce.If a spouse fails to respond to the petition for divorce, the case is legally considered a default action. For practical purposes, however, the absence of an agreement between the parties makes the matter a contested case.

What if you and your spouse can't reach an agreement?

If you can’t reach a final agreement after the fact- gathering process, your case must be scheduled for trial. The date is determined by the length of time needed for the hearing and the court’s other business. Contested trials are costly and involved. The rules of evidence will be enforced and contain many pitfalls for the unwary.

Is it possible to get divorced when you don't know where your spouse lives?

Yes. However, you’ll have to show the court that you’ve tried everything possible to locate your spouse. You’ll have to publish a notice in the local paper in an attempt to inform your spouse the divorce proceedings have been initiated.If it’s at all possible to find an address, then you must attempt to serve notice of the divorce action upon your spouse. The court has no power to order child support or maintenance unless your spouse personally is served.What action may be taken against a spouse who disobeys a court order regarding custody, visitation, debt payments or payments of support or maintenance? You must petition the court to enforce its order. This is known as a “contempt motion.” After receiving the court papers, your spouse must appear to explain whether he or she has followed the court’s orders. If not, the court will want to know why. After hearing the facts, the court decides whether your spouse willfully disobeyed. He or she may be found in contempt of court and given an opportunity to “purge” or correct the contempt. If he or she does not purge, then the court can impose punishment with a jail term of up to six months. The court may issue other orders as necessary to remedy the contempt.

If your spouse fails to pay bills as ordered by the court, can the creditor sue both of you?

Yes. The court’s order does not change the parties’ relationships with creditors. They may sue either spouse and may repossess any property in your possession that was pledged as security .If only one of you is sued, that spouse may bring the other into the lawsuit.

What is a mediation?

Mediation is a process to help parties resolve their issues. It is one of the family court’s counseling services that is intended to help you settle issues of child custody, physical placement or visitation. Mediation attempts to help you resolve such issues faster and at less cost.The family court commissioner or the court itself must refer you to the family court counseling services for mediation of custody, placement or visitation disputes. The same is true if one of you wishes to revise a final judgment and legal custody or physical placement is one of the contested issues. Property settlements, maintenance or child support usually aren’t addressed unless they relate directly to legal custody or physical placement. They may also be discussed if you both agree in writing to do so.When you are referred for mediation, both of you must attend at least one session. The court can make an exception to this rule if it determines that attending will cause undue hardship or endanger the health or safety of the other party. Your attorneys usually don’t attend.Mediation can continue if all parties (including the mediator) agree that further sessions may be useful. The court may delay your final hearing on legal custody or physical placement until mediation is completed or terminated.In all discussions, the mediator is guided by what’s best for your child(ren). If you reach an agreement, it’s made part of the final judgment. If you don’t, the court will appoint a guardian ad litem to help determine the child(ren)’s best interest.

Contact Our Beaver Dam Mediation Lawyers

If you live in Wisconsin and need help with your divorce or other family law matters, call 920-885-5549 or email our team below.