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.
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.
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.