Legal Separation V. Divorce

Legal Separation V. Divorce

by | Apr 9, 2025 | 2025, Article, Family Law

Clients often ask what the difference is between a legal separation and a divorce. While the court process for both is similar, the legal consequences of each are significantly different. Below are some of the differences between these two judgments:

  1. Legal Definition and Consequences of Divorce: Divorce is defined as the dissolution of the marriage relationship. Once a judgment of divorce is entered, parties are free to remarry another individual after six months.
  1. Legal Definition and Consequences of Legal Separation: Legal separation does not terminate a marriage. Legally separated couples may reconcile without having to remarry.
  1. Grounds for Divorce and Legal Separation: The grounds for legal separation are that the marriage is “broken.”  Both parties must state that the marriage is broken for a court to grant legal separation. For a divorce, the court must find that the marriage is “irretrievably broken.”
  1. Property Division: Upon judgment of annulment, divorce, or legal separation, the court shall divide the parties’ property and transfer the title accordingly. Property acquired by a spouse by gift remains the separate property of that spouse and is usually not subject to division upon divorce.
  1. Jurisdictional Requirements: For legal separation, a court has personal jurisdiction over an individual after that person has been a resident for at least 30 days in the Wisconsin county in which the action is brought. For divorce, the court must have personal jurisdiction over one spouse, who must have lived in Wisconsin for six months and in the county of filing for 30 days.

There are several reasons why someone might choose to remain legally married, even if they are separated.

  • The marriage may remain intact to continue to receive health insurance benefits from the other spouse. However, some policies may make exceptions for separated couples.
  • The parties may choose to stay married for tax or citizenship reasons.
  • Religious beliefs may prohibit spouses from seeking a divorce, but not a legal separation.
  • Spouses may hope that there is a chance that they will be able to reconcile their marriage and get back together.
  • A legal separation severs the financial relationship between the parties, where they can no longer create marital debt or create marital property.

There are also reasons why a party may proceed with a divorce instead of a separation.

  • They would like to marry someone else and end their current marriage.
  • The chance of reconciliation is very low, and it may be more appealing to eliminate the stress and uncertainty by obtaining a final divorce.
  • If there are other complicating factors involved such as substance abuse or violence, it may be in the party’s best interest to file for a divorce to end the marriage.

Even if the parties are legally separated, they may convert that legal separation into a divorce by filing a motion with the court. Choosing which path to take requires some thoughtful analysis and a determination of what goals each spouse has, and whether or not they are truly interested in ending their marriage at this point, or keeping the door open for possible reconciliation.

If you have any questions on these topics our  skilled family law attorneys would be happy to meet with you.

How Adverse Possession May Impact Your Property Rights

How Adverse Possession May Impact Your Property Rights

by | Oct 29, 2024 | 2024, Article, General

Adverse possession is a legal doctrine that allows a person who occupies another person’s property for a specified period of time may gain title to that property. The law of adverse possession is based on a combination of statutes and Wisconsin Court decisions.

For example, if someone owns a farm or recreational property and a fence was initially placed in the wrong location decades ago, the adjacent property owner may end up owning a strip of land up to the fence line that really is not theirs based on the legal description in the deed. Another example would be if someone places a shed or a structure over the property line, and the adjacent property owner does not complain about it. The person who put the shed on the property may gain title to that portion of land containing the shed.

These issues typically come to light when one of the parties wants to sell their land and has a survey conducted. It is discovered that the boundaries set forth in the legal description of the deed do not match with how the parties have been utilizing the property over an extended period of time.

The most common way that adverse possession is obtained is through actual use of someone else’s property for a continuous 20 year period. To claim adverse possession, the following criteria must be met:

  1. Actual possession: The court will look at how the property is actually utilized. If the property is protected by a substantial enclosure such as a fence, for example, where the property has been usually cultivated or improved, that will constitute actual physical possession of the land that is in dispute.
  2. Hostile Use: The use of the disputed land must be inconsistent with the rights of the true owner of the land.
  3. Open and Notorious Use: The use of the land must be open and visible.
  4. Continuous Use: The use must be continuous for a 20 year period. It should be noted that this 20 year period can be calculated by using the activities of prior owners of the property as well as the current owners.
  5. Exclusive Use: There must be exclusive use of the disputed property by the party claiming that they own the disputed property based on adverse possession.

There are statutory provisions which permit you to interrupt somebody’s adverse possession of your property by filing an affidavit of interruption. There are two other statutory ways that someone could obtain adverse possession based upon a conveyance of title. Those have a ten year statute of limitations, and a seven year statute of limitations respectively. There can be a lot of complexities involved in an adverse possession case.

Adverse possession cases can be complex, very fact intensive, and require witnesses from many years ago to establish how the properties have been utilized. They can be very expensive to pursue in court. It is important to be diligent and to inspect your property to make sure that neighbors are not encroaching on your boundary. Otherwise, you may end up losing a portion of your land through adverse possession.

If you have any questions on these issues please meet with one of our experienced litigation attorneys. They will help you protect your property and your rights.

Large Claims v. Small Claims In Civil Lawsuits

Large Claims v. Small Claims In Civil Lawsuits

by | Oct 16, 2023 | 2023, Article, General

Most people have heard of small claims court and large claims court, but how do the differences between these two impact the claim that you may have?  Generally speaking, large claims civil lawsuits involve civil claims where the damages are more than $10,000.00, or more than $5,000.00 for a tort claim (such as personal injury or property damage). If you have a claim such as a breach of contract, business dispute, real estate dispute, employment dispute where the damages sought exceed $10,000.00, then this claim must be filed in large claims court. If someone has a personal injury claim such as tort claim and property damage claim in which damages exceed $5,000.00, those claims also must be filed in large claims court.

The process in large claims cases is more involved and more expensive than in small claims court. The filing fee in a large claims is several hundred dollars just to start the case. The litigants must draft their own legal documents to file and to serve in the case (there are no standard court forms for starting a large claims action). In addition litigants in large claims cases must abide by a scheduling order imposed by the court. A large claims case usually involves a lengthy process where parties are required to name witnesses, engage in written discovery and depositions by certain times; there are deadlines for filing motions; the parties are typically ordered to attend a mediation to see if they can settle their dispute. Then, after all of the above are completed, the parties may finally have their chance for a trial in front of a jury or a judge. Because of this more complex procedure involved in large claims cases, most litigants typically retain attorneys to assist in representing them throughout this process. It can take at least 18 months or more from the start of the lawsuit until a trial finally takes place in large claims court.

By contrast, a small claims case can be handled much more quickly and efficiently, and many people handle these cases by themselves in order to save on costs. Small claims court, however, may be used only for certain types of cases, such as the following:

  • Claim for money damages where the amounts do not exceed $10,000.00
  • Claim for property damage or personal injury (tort actions) if the damages sought are less than $5,000.00
  • Eviction actions, regardless of the amount of rent claimed
  • Repossessions of property (replevins) when it is a:

    • – Non consumer credit action or the value of the property does not exceed $10,000.00
    – Consumer credit transaction (personal property that was the subject of a lease or credit from a dealer) where the financed amount is $25,000.00 or less.

  • Evictions due to foreclosure
  • Return of earnest money for purchase of real property, regardless of the amount
  • Actions on an arbitration award for the purchase of real property, regardless of the amount.

Even if someone files a claim in small claims court where the damages exceed $10,000.00, the small claims court cannot award any more than $10,000.00 maximum, plus costs.

Unlike large claims cases, there are sample forms that individuals can fill out to initiate a small claims action. The filing fee is also much less than a large claims case. One of the most significant distinctions between large and small claims court is how fast the case goes through the court system. The entire case can be filed and tried to the Court in only a few months in some instances in small claims court, as opposed to a couple of years in large claims court.

It is important for individuals to be aware of the differences when selecting which court to file in. Seeking the advice of an attorney can be helpful in making this assessment as well as assisting with navigating the legal process.

Litigation and the Risks of Social Media

Litigation and the Risks of Social Media

by | Mar 27, 2023 | Article, General

Today social media use is an integral part of everyday life for many.  There are numerous platforms people use for communication, such as Facebook, Instagram, Twitter, Snapchat, TikTok, emails, texts, etc.  Electronic communications and interactions on social media can be easily done with the use of smartphones.  Statistics show there are currently an estimated 6.8 billion smartphone users in the world.

While technology has made life more convenient and has offered new innovative ways to communicate, those communications can pose significant risks if anyone finds themselves in a lawsuit or a potential legal claim.

Social media activities are sometimes posted in a public setting where everyone can see them, sometimes these activities are intended to be private, only for a select few.  However, information contained within social media accounts, whether public or private, can be discoverable in lawsuits, and can be used against individuals in court.  A few examples of how social media activities can impact or undermine claims in litigation include the following:

  • Personal Injury: In a personal injury claim, an insurance company or defense attorney could discover the claimant posting pictures or videos showing them on vacation doing aggressive physical activities, such as skiing, kayaking, mountain climbing, while at the same time the claimant states that they are seriously injured and unable to perform basic activities of daily living.  Even if the claimant attempts to explain that they are just trying to go on with their life and are in significant pain when doing these activities, these social medial posts can undermine their entire claim.
  • Business Litigation: Texts and emails can undermine a party’s argument that they did not communicate with the other side, or that they did not have a contract or an agreement.  Texts and emails can be severely damaging in any type of lawsuit because the parties who are writing those communications do not intend or expect them to be shown in court or used against them.
  • Family Law. Texts, emails and social media posts can be very damaging in divorce cases showing the activities of the parties for example, the negative or hostile interactions they have with each other, and/or with their children and whether they have engaged in inappropriate behavior.
  • Defamation. Posting defamatory content online about a business or another individual may expose the person who posted that content to a lawsuit for defamation.
  • Employment. Making comments about one’s employer or job online may get someone fired or prevent that person from being hired by prospective employers.  Social medial posts, texts and emails may also be used in any dispute between an employer and employee regarding any claims, including those based on wrongful termination and/or discrimination.  Social media posts by individuals showing photographs or videos of them doing activities that some may seem inappropriate, may also have a negative impact on the individual as far as their current or future employment.
  • Criminal Cases. Social media posts, videos or pictures can be used to support the prosecution of crimes.  Additionally, information from smartphones and apps can also be used to track someone’s location which could potentially impact the investigation of various crimes as well.

If someone deletes their social media posts and regularly deletes their emails and texts, will that help protect them from having this information used against them?  The answer is: “It depends.”  If someone keeps their posts, emails and texts private for the most part and routinely deletes them, that will be helpful in maintaining privacy.  However, what typically happens in a lawsuit is that when a party files a lawsuit based upon a potential claim that they have against someone else, it is only after the filing of the lawsuit that they engage in what’s known as “discovery,” and it is at that time that they are able to uncover the treasure trove of texts, emails and any social media posts that the opposing party has.  Even if the opposing party has deleted any potentially incriminating evidence prior to the lawsuit, today’s technology will allow vendors who have expertise to be able to retrieve deleted information that can be used against that party.  Additionally, it may be possible to subpoena someone’s search history on Google or other platforms even if it is deleted from their smart device.

It is noteworthy that once a lawsuit begins, if a party intentionally deletes social media posts, emails or texts, that party can potentially be accused of destroying evidence which will negatively impact their position in the lawsuit.  Therefore, deleting social media posts, emails or texts comes with a risk, and may be contrary to that jurisdiction’s laws if there is a potential claim or lawsuit pending.

In conclusion, one needs to be extremely careful of what they post, how they post it, and what they text and email and to whom, as there may be a risk of creating a permanent electronic trail of one’s activities which can have significant ramifications in the context of a lawsuit or other aspects of that person’s life. If you are ever in a situation where your social media posts or electronic communications may be used against you in court please contact one of our experienced attorneys.

 

WI Supreme Court Rules Against Bars and Restaurants on COVID-19 Pandemic Financial Losses

WI Supreme Court Rules Against Bars and Restaurants on COVID-19 Pandemic Financial Losses

by | Jul 18, 2022 | Article, Business

This article is a follow up to one I wrote on August 10, 2020 relating to potential insurance coverage for business losses due to the government shutdowns and restrictions for in-person dining during the COVID-19 pandemic. The first lawsuit on this issue was filed nearly two years ago.

One case finally made its way to the Wisconsin Supreme Court, and on June 1, 2022, the Court unanimously held that Society Insurance Company did not have to provide coverage for business interruption losses claimed by restaurants and bars due to government shutdowns and restrictions imposed on in-person dining. This case is Colectivo Coffee Roasters, Inc. v. Society Insurance, 2021AP463 (June 1, 2022).

In this lawsuit, the plaintiff and other bars and restaurants experienced substantial losses as a result of the COVID-19 pandemic and related government restrictions on in-person dining. The Supreme Court addressed the specific issue of whether those losses are covered by a property insurance policy issued by Society Insurance. Specifically, the questions are: (1) Whether a bar or restaurant’s inability to use its dining space for in-person dining because of the pandemic and related government restrictions constitutes a direct physical loss of or damage to its property under Society’s policy; and (2) Whether the presence of COVID-19 on a bar or restaurant’s property caused the bar or restaurant to suspend its operations, thereby entitling it to coverage under the policy’s contamination provision. The Supreme Court concluded that the answer to both questions is no, and ruled against the bars and restaurants.

The Wisconsin Supreme Court followed the majority of courts nationwide in holding that the presence of COVID-19 does not constitute a physical loss of or damage to property because it does not “alter the appearance, shape, color, structure, or other material dimensions of the property.”  The Court held that although the restaurants could not use their dining room for in-person dining for a period of time, “the dining room was still there, unharmed and it was not physically lost or damaged. Without such a harm, the policy’s business income and extra expense provisions do not apply.”

With respect to the civil authority provisions of the insurance policy, which the restaurant argued should apply based upon the government’s imposed shutdown, the Court ruled that the restaurant did not identify any physical loss or damage to its property or surrounding property such that the business income or extra expense coverage should apply.

Finally, the Court affirmed the ruling of no coverage under the contamination provision of the policy for three reasons. (1) The restaurant did not suspend its operations due to the presence of COVID-19, but did so based upon the Governor’s orders. (2) The Governor’s orders did not prohibit access to the restaurant’s property – they restricted how the property could be used. (3) The Governor’s orders did not prohibit the restaurant from producing its products – they prevented it only from serving its products for in-person dining.

This ruling by the Wisconsin Supreme Court marks a trend among state Supreme Courts in finding no business interruption coverage for alleged COVID-19 related losses, and also follows the well-established nationwide trend in the federal courts denying insurance coverage for these claims.