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.

 

How Can I Help My Children Through the Stress of Parent Separation, Divorce and School?

How Can I Help My Children Through the Stress of Parent Separation, Divorce and School?

It’s that time of year again, back to school!  For many families, the new school year is full of excitement and anticipation of new opportunities.  For others, it brings sadness and anxiety as relaxed summer schedules are replaced with earlier bedtimes, routine, homework and more structure.  For children of divorced and separated families, the stress and anxiety can be even greater, but it doesn’t have to be.  Here’s how you can help your children with a smooth transition into and throughout the school year.

Parents who still live together but have decided to separate can take the following actions to help reduce the stress and anxiety children may have.

  • Discuss ahead of time what you will tell your children and tell them together that one of their parents will be moving out.
  • Reassure your children that the divorce or separation is not their fault and that both parents love them very much.
  • Share with them what they need to know: Where will each parent be living?  When and how often will they see each parent?  Discuss plans for school (especially if a change in school will occur), extra-curricular activities, and how you plan to help them maintain friendships.
  • Don’t share with them what they should not know: Don’t blame the other parent for the divorce or separation.  Don’t talk badly about the other parent.  Don’t discuss court, financial issues or points of parent conflict.

 In addition to the points above, parents who are already divorced or separated can take the following steps to help their children through this period.

  • If both parents have placement on school nights, work together to develop a school night routine that you can both agree to. This may require compromise, but the more consistent both parents can be with homework, evening activities, bedtime, expectations, discipline, etc., the easier it will be on your children.
  • Encourage positive communication between your child and the non-placement parent. Don’t make your child feel guilty for wanting to talk to the other parent.  On the other hand, if you are the non-placement parent, don’t demand that your children speak to you on your terms.  Children should never be made to feel torn between two parents.  They should be made to know that they can love both parents without hurting the feelings of the other.
  • Don’t obsess about “who’s day it is.” Ideally, both parents should be able to attend your child’s school and extra-curricular activities regardless of who has placement and the child should know it’s alright to interact with both parents.

The tips above may seem idealistic in many cases, and I recognize that these recommendations require respectful and meaningful communication and cooperation between parents.  This may not be possible if one or both parents are high conflict, controlling, angry, etc., but to the extent you can follow these tips and remind your children, again and again, that the separation is not their fault and that both parents love them very much, your children will benefit tremendously.

 

Grandparent Visitation Rights Awaiting Wisconsin Supreme Court Decision

Grandparent Visitation Rights Awaiting Wisconsin Supreme Court Decision

In 2000, the United States Supreme Court found in Troxel v. Granville that parents have a constitutionally protected interest in the care, custody, and control of their children. The Supreme Court concluded that a trial court must give some special weight or consideration to a parent’s decision regarding who their child spends time with. The Court did not go so far, however, to decide whether or not the constitutional right required non-parent visitation statutes to require a showing of harm or potential harm to a child before the Court could award third parties, such as grandparents, visitation rights over the objection of the child’s parents.

Since the U.S. Supreme Court case was entered, most states have required that a Court find harm to a child before it can interfere with a fit parent’s decision regarding grandparent visitation. To date, Wisconsin has not applied that same standard and has adopted a less restrictive standard of proof. The question of whether or not grandparents should have to show harm to a child when a fit parent decides that their child should not spend time with them is currently before the Wisconsin Supreme Court in a case entitled Michels v. Lyons. Also, at issue in this case is to determine whether or not the presumption that a fit parent acts in their child’s best interest when deciding who should spend time with their children must be overcome by clear and convincing evidence or a lower standard.

In certifying the issue to the Wisconsin Supreme Court, the Wisconsin Court of Appeals District III concluded that “we anticipate numerous cases involving grandparent visitation rights. We believe Circuit Courts, parents, and grandparents would greatly benefit from the Wisconsin Supreme Court’s definitive clarification of the standard of proof on this issue involving a fundamental right.”

I could not agree more with the Court of Appeals about the necessity for the Supreme Court to offer clarification on these issues. As an attorney who has represented both grandparents seeking visitation with their grandchild, as well parents opposing grandparent visitation petitions, clarity on these issues is critical. Whatever decision the Wisconsin Supreme Court reaches, it will certainly impact the rights of grandparents and parents in this type of litigation, and it will provide a framework for consistent application of the law across the state by various family courts.

At this time, the Michels v. Lyons case has been argued and briefed before the Wisconsin Supreme Court and is waiting a decision by the Court. An update to this article will be provided after the Supreme Court issues its decision. In the meantime, if you are considering petitioning the Court as a non-parent seeking visitation rights with a child, or if you are a parent who has been sued for third-party visitation, the law firm encourages you to speak with a family law attorney who has experience in the area of grandparent or other third-party visitation.

 

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