Legal Separation or Divorce?

A physical separation of spouses is not a “legal separation” regardless of how long it has been since the parties have lived together. A “legal separation” occurs through a court proceeding that is almost identical to a divorce proceeding. There are two main differences between a legal separation and a divorce.

1)    Residency requirements: To file an action for legal separation, you only need to be a resident of the state of Wisconsin (and of the county you file in) for 30 days. To bring an action for divorce, you must be a resident of the county you file in for at least 30 days AND a resident of the state of Wisconsin for at least 6 months.

2)    A legal separation does not dissolve or terminate the marriage, and therefore, neither party can remarry if their previous marriage ended only with a Judgment of Legal Separation and not a Judgment of Divorce. However, the parties can agree to convert the legal separation to a divorce after the Judgment of Legal Separation is entered, and either party to the legal separation can bring a Motion to convert the Judgment of Legal Separation to a Judgment of Divorce if more than one year has passed since the Judgment of Legal Separation was entered.

How Job Loss Can Affect Child Support

Child support is calculated based on a percentage of the payor’s income (generally 17% for one child, 25% for two children, 29% for three children, and up). After the calculation is established, a fixed dollar amount is determined based on the payor’s average gross monthly income at the time the support order is entered. In other words, the obligation does not automatically change from week to week or month to month based on a payor’s actual earnings where those earnings either fluctuate or the payor experiences a significant and sudden change in his or her income.

Wisconsin law allows a party to ask the court to modify the payor’s child support obligation if there is a substantial change in circumstances that warrants the modification. Generally speaking, a loss of employment and/or a significant reduction in a payor’s income would result in a reduction in the payor’s support obligation if the issue is properly brought before the court.

The court cannot retroactively back date a modification of a child support obligation to a date any earlier than the day in which the motion to modify the support obligation is filed and served on the other parent. Because of this, it is critical that a parent with a support obligation act quickly to bring an appropriate motion before the court for modification of his or her child support when the payor has a loss of employment or a sudden decrease in his or her income. If the payor finds new employment between the time that the motion was filed and served and the day that the motion is scheduled to be heard in court, the payor can always withdraw the motion. Failure to bring a motion in a timely manner could result in the payor accumulating significant arrears plus interest for unpaid child support and, in some cases, could result in the payor being found in contempt of court for his or her failure to pay.

If you have experienced a sudden loss of employment or a significant decrease in your earnings and believe you have a legal basis to modify your child support, we recommend that you speak to an experienced attorney who specializes in family law and encourage you to contact our firm with any questions that you may have.

Joint Tenancy Outside of Marriage

What happens when you make your significant other a joint tenant in your home and your relationship subsequently dissolves?

We have been receiving an increase in the number of calls from potential clients who tell us that they own a home as a joint tenant with their significant other and that the relationship is ending. They want to know how to go about removing their partner from the deed to their home.

If the breakup is amicable and the parties agree who should keep the home and how much compensation, if any, the other party should receive for signing a Quit Claim Deed, this process is relatively simple. More often than not, however, neither party wants to sign title in the property over to the other, nor do the parties agree on the value that the party receiving the property should pay to the other. When this deadlock occurs, the legal remedy is often costly litigation through a partition action.

A partition action between two joint tenants of a house frequently results in the Court ordering the house to be sold at a sheriff’s sale. At a sheriff’s sale, the house is sold at auction to the highest bidder. Frequently, sheriff’s sales do not result in the house being sold at fair market value. While some judges have suggested that marketing the house before the sale can increase the number of bidders and therefore, the likelihood that a house will be sold close to its fair market value, the frequent outcome of the sale is that a house is sold below its fair market value. Further, when selling a house subject to a mortgage at a sheriff’s sale, the lender will be paid first. Proceeds from the sale, if any, are then equally divided between the two joint tenants. Proceeds are divided equally regardless of whether both parties’ names are on the mortgage and without consideration to any comparative contributions that each party made in purchasing the home, paying the mortgage, property taxes, maintenance, etc.

Under Wisconsin law, Courts have found that when an individual homeowner adds another person to the home’s title by creating a joint tenancy, the homeowner gifts a one-half interest in the property to the other person. The courts have held that simply by creating a joint tenancy, each automatically owns a one-half interest in the property. When the parties are unmarried, the Courts do not consider how long the original homeowner owned the home prior to adding his or her partner, nor does the court consider whether both parties are on the mortgage or have made financial contributions to household expenses such as mortgage payments, real estate taxes, insurance payments, utilities, and other routine household expenses.

This can result in some seemingly unfair results where a party that has owned a home for years, unconditionally creates a joint tenancy with his or her partner without adding the partner to the mortgage, and then weeks later the relationship dissolves, and the original homeowner’s partner is unwilling to vacate the premises or sign a Quit Claim Deed granting his or her ownership interest back to the original homeowner.

We encourage you to contact an attorney to review your situation before you create a joint tenancy in your home with your significant other so that you fully understand the consequences of your decision should your relationship with your partner dissolve.

Parental Liability for Unmarried Parents of a Young Driver

In Wisconsin, all drivers under the age of 18 are required to have a sponsor before they can be issued a driving instruction permit or a driver’s license. When a sponsor (usually a parent) signs a minor’s driver license application, the sponsor accepts complete liability for any damages caused by the minor while driving.

Pursuant to Wisconsin Statutes, “any negligence or willful misconduct of a person under the age of 18 years when operating a motor vehicle upon the highways is imputed to the parents where both have custody and either parent signed as a sponsor, otherwise, it is imputed to the adult sponsor who signed the application for such person’s license. The parents or the adult sponsor is jointly and severally liable with such operator for any damages caused by such negligent or willful misconduct.” Wis. Stat., § 343.15(2)(b).

At first glance, one would assume that the above-cited statute means that when a minor’s parents are not married, and the parents share joint legal custody of the minor, both parents are liable for damages caused by the minor while driving – but this is not the case. Wis. Stat., § 343.15(2)(a) states that “in this subsection, ‘custody’ does not mean joint legal custody as defined in s. 767.001(1s).” In 2002, the Wisconsin Court of Appeals dismissed all claims against a child’s mother for injuries and damages caused by her daughter’s driving and found that only the minor child’s father was legally responsible for damages caused by the child’s driving because the parents were divorced, and only the child’s father signed the sponsorship for his daughter to obtain a driver’s license. This finding was made by the court despite the fact the child’s mother had actual physical placement of the minor child pursuant to the terms of the court-ordered physical placement schedule at the time of the automobile accident that resulted in the lawsuit. All In Wisconsin, all drivers under the age of 18 are required to have a sponsor before they can be issued a driving instruction permit or a driver’s license. When a sponsor (usually a parent) signs a minor’s driver license application, the sponsor accepts complete liability for any damages caused by the minor while driving.

Pursuant to Wisconsin Statutes, “any negligence or willful misconduct of a person under the age of 18 years when operating a motor vehicle upon the highways is imputed to the parents where both have custody and either parent signed as a sponsor, otherwise, it is imputed to the adult sponsor who signed the application for such person’s license. The parents or the adult sponsor is jointly and severally liable with such operator for any damages caused by such negligent or willful misconduct.” Wis. Stat., § 343.15(2)(b).

At first glance, one would assume that the above-cited statute means that when a minor’s parents are not married, and the parents share joint legal custody of the minor, both parents are liable for damages caused by the minor while driving – but this is not the case. Wis. Stat., § 343.15(2)(a) states that “in this subsection, ‘custody’ does not mean joint legal custody as defined in s. 767.001(1s).” In 2002, the Wisconsin Court of Appeals dismissed all claims against a child’s mother for injuries and damages caused by her daughter’s driving and found that only the minor child’s father was legally responsible for damages caused by the child’s driving because the parents were divorced, and only the child’s father signed the sponsorship for his daughter to obtain a driver’s license. This finding was made by the court despite the fact the child’s mother had actual physical placement of the minor child pursuant to the terms of the court-ordered physical placement schedule at the time of the automobile accident that resulted in the lawsuit.

All unmarried parents of minor drivers should be aware that if they sign the adult sponsorship form for their minor child’s driver license application, they are assuming complete liability for any injuries or damages caused by the minor child while driving, even if the child is not actually placed with that parent or under the sponsoring parent’s actual custody and control when the child is involved in an accident caused by the child’s negligence or willful misconduct. If you have any questions about what you can do to protect yourself while still sponsoring your minor child on their driver license application, you may contact our office at 715-344-0890.

When Can My Child Decide Whom To Live With?

One of the most frequent questions posed by my clients involved in physical placement disputes is “At what age can my child decide which parent he/she wants to live with?” My short answer is usually “When he/she is 18.” Although “the wishes of the child” is one of approximately fifteen statutory factors that the court is required to consider in deciding what type of physical placement schedule to order, what the child “wants” is not always what is in the child’s best interest. In addition, the courts generally believe children (even older children) are not emotionally mature enough to make such an important decision and do not want to create a situation where children are placed in the middle of their parents’ legal disputes or where they feel forced to choose one parent or the other. In the end, it is the parents’ responsibility to make decisions about placement schedules, and when parents cannot agree, then the court has to decide what type of placement schedule is in a child’s best interest.

Even so, there are times when a child chooses to speak up about what he or she wants in terms of a placement schedule with each of his or her parents. Generally speaking, the older a child is, the more weight his or her wishes will be given. The court will also consider if the child is generally mature and if they articulate reasonable and rational reasons for their choice. For example, a 17 year old who struggles making good choices in school and in the community, and who wants to live with a parent who provides minimal supervision rather than a parent who holds them accountable, is less likely to sway the courts than a 14 year old child who does well in school and who expresses concerns about being with one parent because of that parent’s lack of involvement or interest in the child’s school work and extra-curricular interests.

Physical placement disputes are some of the most emotionally-wrought and adversarial disputes that can occur in a divorce and unfortunately, the ones who suffer the most from this acrimony are the children. The most ideal resolution is for the parents to work cooperatively to determine together what type of placement arrangement is in their child’s best interest. When that is not possible, then parents should proceed very cautiously so as to not purposefully or inadvertently put their child in the middle of the dispute, make their child feel like they need to “choose” a parent, or unduly influence the child in any way. When a parent sincerely believes that granting him or her primary placement of their child is in the child’s best interest, it may be best for them to work with an attorney to determine how best to litigate those sensitive issues without putting their child in the middle.

If you have questions or concerns about any of the information above and how it might apply to your situation, you may contact our office at 715-344-0890.

News Icon

Subscribe To Our Newsletter

Join our mailing list to receive the latest news and updates from our team.

You have Successfully Subscribed!

Pin It on Pinterest