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.

 

Social Media and Family Law #askingfortrouble

Social Media and Family Law #askingfortrouble

Social media sites such as Facebook, Twitter, Instagram, and Snapchat provide an abundance of opportunities to undermine your family law case. For many, social media has become a type of semi-public journal of their day-to-day life. Whether your relationship is in a rocky state, or you are already involved in family law litigation, your social media sites can be a gold mine of information that your significant other and/or their attorney can use against you in court.

Through your social media posts, one can track your daily activities, uncover the negative views you have of your significant other, and discover issues or characteristics that may reflect negatively on your parenting—all of which can be used as ammunition against you in a family law proceeding. Posting on social media every time you are out at a bar is not going to make you seem like a responsible parent when negotiating child custody and placement. Likewise, social media posts may impact your family law proceeding with respect to financial issues, such as property division, child support, and spousal support.

The following is a list of recommendations we encourage everyone to follow whether or not they are in the midst of, or think they may be heading toward, legal proceedings in a family law matter.

1. Do not post about every weekend outing, vacation, luxurious meal, concert, etc. that you take, eat, or attend without your partner.

2. Do not update your relationship status to publicize a new relationship while you are still going through legal proceedings in family court.

3. Do not post pictures of you with a new significant other.

4. Do not disparage your partner on social media.

5. Do not post statements or pictures about consuming too much alcohol or using illegal substances.

6. Do not brag about excessive spending or luxury purchases.

7. If you are not already social media “friends” with your children, do not “friend” them now.

8. Make sure your privacy settings are set as you want them.

9. Do not complain online about the judge, the family law court process, or anyone involved in the judicial system.

10. Do not write and post statements made while you are angry, hurt, or after you have consumed too much alcohol.

It can be tempting to vent to friends and family, or on a social media support group site. You may think that your privacy settings prohibit your information from being discovered by your significant other or their attorney, but you can never be certain that your trusted social media “friends” will not share information they obtained from your social media posts with the adverse party in your case. It is important to follow these recommendations to be careful about what you post on social media even when you think it is safe to do so because there is always a chance that it can be used against you in a legal manner.

 

Legal Separation or Divorce?

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.

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