What is a Guardian Ad Litem?

What is a Guardian Ad Litem?

A Guardian ad litem (GAL) is an attorney who is appointed by the Court to represent the best interests of a minor child. If the parties are represented by counsel, the attorneys often give their recommendation to the Court about who they think would be a good fit as GAL. The GAL is required to have had specific training and/or extensive experience in order to qualify. The Wisconsin State Bar has regular basic trainings for GALs with other more advanced trainings for things such as investigating domestic violence. Some Wisconsin counties keep attorneys on contract throughout the year to serve as GALs in cases.

An important distinction to make is that the GAL does not represent the minor child. Only the minor
child’s “best interests.” The main difference here is that a GAL is not bound to do what the minor child
asks them to do. By contract, an advocate attorney is more bound to do what their client asks them to. See Wis. Stat. § 767.407(4) for more information on this. Instead, the wishes of the minor child are one of the factors that a GAL takes into account when making their recommendation to the Court.

When a GAL is appointed, the parties may be ordered to pay a deposit toward the GAL’s fees. It is
typical for both parties to be responsible for paying one-half of the fees. Different counties
require different down payments and allow GALs to charge different rates.Once the GAL is appointed and any required deposits are paid, they will begin theirinvestigation. They mostly focus on custody and placement issues. They will likely want tospeak with any lawyers on the case, both parties individually, the minor child and other people who have relevant information (i.e., teachers, day care providers, relatives, medical and other treatmentproviders, or child welfare agencies). The GAL may see a need for further professionals to get involvedand conduct investigations such as custody studies or psychological evaluations. Additionally, GALs arerequired by law to investigate and report to the Court if there is any evidence of domestic abuse.

The GAL will prepare an official report to the Court which outlines their recommendation, taking
into consideration any and all evidence of the issues that they believe would be used at a potential trial.

They will include a proposed placement schedule that is in the best interests of the child. The GAL may participate in any depositions or contested hearings which involve custody and placement. They can cross-examine the parties’ witnesses and even call their own witnesses to introduce evidence to the Court.

If a GAL has been appointed to your case, you will want to cooperate with their investigation. If you have an attorney, you will want your attorney to communicate regularly with the GAL to make sure they have everything they need to determine what is in the best interest of the minor child.

May I Go to Another State to Get a Speedy Divorce?

May I Go to Another State to Get a Speedy Divorce?

In Wisconsin, there is a 120-day waiting period for divorces. After the summons and complaint are served on you or your spouse, the earliest you could be divorced is roughly four months later. However, for most people, settling divorce issues takes significantly longer than 120 days.

Are you thinking that sounds like too long and you are wondering if you can get around that rule? There are drive-through marriage chapels in Las Vegas, are there drive-through divorce chapels? I won’t leave you in suspense on that one. No. There are no drive-through divorce locations in the U.S.

Each state has different rules when it comes to divorce procedures. A simple internet search “Where can I get divorced the fastest” will bring up an article that shows that Alaska requires a 30-day waiting period, which means theoretically you could get divorced four times faster in Alaska.

However, every state also has rules about who can get divorced in that state. In Wisconsin, to get divorced one of the spouses must have been a resident of Wisconsin for six months and a resident of the county where the divorce was filed for 30 days prior to filing for divorce. As the counter example, Alaska requires the couple to have lived in Alaska for at least six consecutive months within the six years before filing for divorce. As you can see, moving yourself to Alaska to get divorced faster is not a very good option.

If you get divorced in a different state in the U.S., your divorce is given “full faith and credit” here in Wisconsin unless there is an issue with how one of the parties was served. If you got divorced in Alaska and followed all the rules there, you are still divorced in Wisconsin. But what if your divorce happened in another country?

The rule in Wisconsin is that courts may recognize a divorce from another country under the legal concept of “comity.” There are two important things to note from this: First, the “may” recognize does not mean that courts have to recognize the foreign divorce. It would be hard to say with certainty if your divorce would “count” in Wisconsin. Second, the legal concept of “comity” is not an entirely clear area of the law, it basically means that courts should give credit to foreign courts unless it goes against the law, morals, or public policy of Wisconsin.

In the past, Wisconsin courts have looked at the circumstances of the divorce in a foreign country and decided if it undermines the states legal system. The classic example of this is a case where two Wisconsin residents traveled to Mexico for a divorce. They followed the Mexican laws and were able to get a very fast totally legal divorce in Mexico. However, because the Wisconsin court found that the Mexico divorce was done with the specific purpose of trying to circumvent Wisconsin laws, it was decided that the divorce should not be given full faith and credit.

If you were living overseas and got divorced according to the laws of that country, without doing it just to circumvent the laws of Wisconsin, it is likely that a Wisconsin Court would give your divorce full faith and credit. If you got divorced internationally but now live in Wisconsin, a Wisconsin court should have the ability to modify the judgement as long as the circumstances would allow for modification the same as if you had been divorced in Wisconsin.

If you are trying to figure out how to get divorced the fastest way possible, it’s likely that traveling to another state or country to get a quicky-divorce will not work.. At best it will leave you in a place of uncertainty as to whether or not you are actually divorced. In Wisconsin, getting divorced in the county that you have been a resident of for at least the last 30 days is the fastest and safest way to get divorced.

If you are ready to discuss the divorce process please reach out to one of our experienced family law attorneys. They have the experience and compassion to help you navigate this process.


Family Court is a Court of Equity

Family Court is a Court of Equity

Often when trying to define what “equity” means in the legal context, people use words like “fair” or “equal” but neither of those really encompass what it means for the Court to be a “court of equity.” So, I am going to try and explain what it means without using ‘legalese’ or using the word in the definition. Even though this article will be mostly referencing family law or family court, this can apply to non-family law cases also.

Below is the Cornell Law School Legal Information Institute’s definition.

Equity: In law, the term “equity” refers to a particular set of remedies and associated procedures involved with civil law. These equitable doctrines and procedures are distinguished from “legal” ones. While legal remedies typically involve monetary damages, equitable relief typically refers to injunctions, specific performance, or vacatur. A court will typically award equitable remedies when a legal remedy is insufficient or inadequate. For example, courts will typically award equitable relief for a claim which involves a particular or unique piece of real estate, or if the plaintiff requests specific performance.[1]

This definition provides an interesting dividing line worth noting. Family Court is a court of equity and not a “court of law”, which means that there are not always hard and fast rules that the judge uses to make a ruling. In Family law there generally are not statements such as, “Well, Spouse A, because you did ‘X’ that means you get primary placement of the child.” Instead the court has a number of factors to consider when making most decisions.[2] Compare this to a court of law that says, “You were going one mile an hour over the speed limit, that’s illegal, here’s your fine.”

While there may be discretion as to whether to enforce the law, there are typically few factors that a court reviews to determine if someone actually broke the law. As a practical matter, most Family Law cases are difficult to appeal because the Family Court judge has discretion in making most decisions and two different judges might come to different decisions when looking at all the factors. On appeal, the court of appeals is only allowed to determine if the Family Court judge abused that discretion, which is rare.

Wisconsin courts have used a variety of phrases to describe the Court of Equity. “”A court of equity has inherent power to fashion a remedy to the particular facts.”[3] Other cases say that the court of equity has “wide latitude”[4] to provide both sides the relief they need. This means that a court could try to find a way to give both parties all, or a portion of, what the parties want, even if there is not a specific law that says that particular outcome is required. Courts get to “adapt,”[5] or “shap[e] [their ruling] . . . to fit the changing circumstances of every case and the complex relations of all the parties.”[6]

This type of court ruling is incredibly different from the “justice is blind” statue that we have heard about the court system. Courts of equity are not blind. Courts of equity have their eyes wide open, looking at all the circumstances they are allowed to look at. They try to mold and craft a ruling to the contours of the case.

You may be thinking, it seems that all courts should be like this. The issue is, this type of court ruling or procedure, where each case is treated as unique, becomes near impossible to predict. Different judges might look at the same facts and consider the same factors but come to different conclusions or rulings. We rely on our courts to interpret laws consistently so that there is predictability in our society. People want to know what the consequences of their actions will be. But, there are settings, like family law, where we realize that no two cases or families are similar enough that a one size fits all approach would work.

In Summary, the best way to describe the court of equity, is to say “it’s like a court of law and rules, but it is allowed to be more creative in finding a solution that is right for the specific case at hand and the court of equity can be less concerned about if that same ruling would work for the next case.”

[1] https://www.law.cornell.edu/wex/equity

[2] Wis. Stat. § 767.41(5)

[3] Town of Fond du Lac v. City of Fond du Lac, 22 Wis. 2d 525, 531-32, 126 N.W.2d 206 (1964).

[4] Beidel v. Sideline Software, Inc., 2013 WI 56.

[5] Am. Med. Servs., Inc. v. Mut. Fed. Sav. & Loan Ass’n, 52 Wis. 2d 198, 205, 188 N.W.2d 529 (1971).

[6] Ash Park, LLC v. Alexander & Bishop, Ltd., 2010 WI 44.

How Long Will My Divorce Take?

How Long Will My Divorce Take?

Everyone who is going through a divorce wants the process to be over as soon as possible through either the granting of a final divorce decree or, in certain cases, reconciliation of the spouses. The uncertainty and emotional toll that accompanies almost all divorces results in people wanting the divorce done sooner rather than later. Unfortunately, the family court system rarely moves at a speed that will satisfy its participants.

Even if spouses have an agreement on all issues and timely file all the required paperwork, Wisconsin law dictates that a final divorce date cannot be scheduled for at least 120 days after the filing the of the initial divorce petition. Beyond this requirement, the length of a divorce proceeding largely depends on the issues being contested. For example, if divorcing parents do not agree on issues concerning custody and placement of the children, the court will appoint a Guardian ad Litem to complete an investigation and provide a recommendation to the court on behalf of the children’s best interests. Such investigations can take anywhere from a couple months to over a year to complete. Even when there are no issues concerning custody and placement, if spouses disagree on issues pertaining to the division of marital property or spousal support, many months may be spent requesting and exchanging financial documents, taking depositions and finding professionals to appraise assets and evaluate spouses’ earning potentials. The most contentious divorces can take multiple years to reach a final divorce hearing date.

Those going through a divorce can take some steps to avoid unnecessary delays. Promptly collecting financial records, responding to discovery requests and filing the appropriate documents with court is recommended to keep the process moving forward. Additionally, spouses who are willing to make reasonable compromises are more likely to reach a marital settlement agreement, which allows the spouses to secure a final divorce hearing date with the court. An experienced family law attorney can help divorcing spouses understand what is and is not reasonable under Wisconsin law in order to work towards such an agreement. Whether by agreement or contested hearing, an attorney can help spouses complete a divorce in a timely manner while furthering the interests of their clients.


Common Divorce Myths Debunked

Common Divorce Myths Debunked

Many people have heard a number of myths concerning divorce. This can lead to misaligned expectations to the reality of divorce proceedings. The following are five common myths debunked with an explanation to the reality of the situation.

  1. Divorces are always messy.

While divorce is one of the most difficult and stressful periods during an individual’s life, it does not have to be fraught with accusation and conflict.  In fact, the majority of divorce cases end in a settlement; meaning that both parties came to an agreement on all issues.  Most divorcing couples prefer to reach a resolution as quickly and efficiently as possible.  A related myth is that attorneys increase the level of conflict in any given divorce.  In reality, most attorneys set reasonable expectations for their clients and discourage clients from engaging in acrimonious behavior.

  1. Children decide who they live with.

If the divorcing parents are in agreement, arrangements for the custody and placement of the minor children is completely up to their discretion.  When parents do not agree on custody and placement issues, the Court will appoint another attorney as a Guardian ad Litem to represent the children’s best interests.  After investigating the case, the Guardian ad Litem will make a recommendation to the parties and the Court.  While the Court is not obligated to adopt the recommendation, the Guardian ad Litem’s position is often given significant weight by the Court.

Although the Guardian ad Litem is required to inform the Court of the children’s wishes, when the children want their wishes to be communicated to the Court, the Guardian ad Litem’s recommendation does not have to align with the children’s wishes.  It is commonly expressed that “children have a voice; not a choice.”  This is a consequence of the fact that the Guardian ad Litem represents the children’s best interest, not the children themselves.

  1. Visitation can be denied to a parent who fails to pay child support.

The failure of one parent to pay child support is never a reason for the other parent to withhold the child from the nonpaying parent.  Withholding a child is only appropriate in the most extreme circumstances when the child’s safety is legitimately at risk.  In fact, it can be a felony for a parent to withhold a child from the other parent.  However, when one parent fails to pay child support when so ordered, the other parent is not without recourse.  He or she can file a motion with the Court, asking it to enforce the child support order.  At this point, the Court can award fees and costs to the parent bringing the motion and may find the nonpaying parent in contempt of Court if he or she still fails to make payments.

  1. The Court can consider infidelity when deciding a case.

Wisconsin is a no-fault divorce state.  This means that Wisconsin courts will not hear evidence relating to the cause or causes of a divorce.  Accordingly, accusations of infidelity, no matter how well-founded, are usually irrelevant to a divorce proceeding.  With that said, evidence related to an affair may be relevant when a spouse makes a claim of marital waste.  A claim for marital waste can be made when one spouse “wasted” marital funds or assets during the marriage on things like gambling, illicit drugs or funding an affair.  A successful marital waste claim will result in the Court crediting a spouse with the value of the “wasted” marital funds or assets during the Court’s property division determination.  Accordingly, if a spouse uses marital funds to finance an affair, such evidence may be relevant to a marital waste claim.

  1. Divorces are either “won” or “lost.”

Family courts are courts of equity, meaning that they endeavor to resolve divorces as fair and just as possible.  A divorce is simply the process of separating spouses’ financial and parenting lives.  While spouses may win or lose on certain contested issues in a divorce proceeding, the overall outcome is usually fair to everyone involved.  Looking at a divorce in terms of winning and losing can have negative consequences.  Taking such an approach will almost always result in a longer more expensive divorce.  In addition, if the spouses have minor children together, it can make post-divorce co-parenting more difficult than it would be otherwise.


Yours, Mine and Ours – How Property is Divided at Divorce

Yours, Mine and Ours – How Property is Divided at Divorce

In Wisconsin, property is presumed to be equally divided between the parties in a divorce action. Almost all property owned by the parties is subject to equal division. This includes property that is titled solely in one spouse’s name and property acquired by a spouse prior to the marriage. Only property acquired by way of gift or inheritance made to an individual is excluded from the division of marital property.

While it is presumed that all property not acquired by gift or inheritance is to be divided equally, the courts can consider a litany of factors when a party requests an unequal property distribution. It is not uncommon for parties in a divorce action to ask the court to credit them for premarital assets. Similarly, courts are also allowed to consider the contribution of each party to the marriage, giving appropriate economic value to each party’s contribution in homemaking and child care services. Courts may be more likely to entertain such requests in cases of shorter-term marriages. However, the chances of success of arguments to alter the presumed equal division of property decrease when parties were married for a longer period of time. Ultimately, whether a court will deviate from the presumption of equal division is dependent on the unique facts of any given case.

Clients often ask how property is “equally” divided. It does not mean that both parties get a one-half ownership interest in each marital asset. Rather, each asset is given a value and entered into a spreadsheet under one of the parties’ columns. After all of the marital assets and debts are entered into the spreadsheet, each party is left with a net value of assets in their column. If a party’s net assets have a higher value than the other party’s net assets, it is common for the party with a higher value of net assets to pay an equalization payment to the other party to ensure an equal division of property.

Determination of who gets what asset and what value should be assigned to each asset may be mutually agreed to by the parties but is often litigated in contested divorces. If you have questions about property division in your divorce, contact our office to consult with one of our family law attorneys.