In an action for divorce or legal separation, the parties’ assets need to be valued and divided in a manner that is fair and considers the needs of both parties. The net worth of the parties (assets minus liabilities) is presumed to be equally divided between the parties by the court. However, other factors may alter an equal division. There are general guidelines provided by the courts that will permit your attorney to advise you of a probable result in your case.
Divorce & Family Law
Attorneys Nadine I. Davy and Donna L. Ginzl
Family Law disputes, such as divorce, often evoke many emotions because they involve complicated relationships. Even so, important decisions must be made that will affect both spouses and their children for the rest of their lives. Our family law attorneys are sensitive to the stress and emotions inherent in this unique area of law and have the experience, skill, and steadiness to navigate the sometimes tumultuous waters in your family law matter.
We are a full service law firm, with several attorneys who specialize in a variety of areas of law, such as tax, business, bankruptcy, and estate planning. This allows us to help you preserve a family farm or business, minimize the tax consequences of divorce decrees, and help protect you from future adverse financial consequences that might arise from your divorce judgment.
Our family law attorneys and their experienced staff understand that family law disputes are not just legal disputes; they are personal disputes that are often deeply emotional. They not only have the legal expertise to be a zealous advocate for your legal interests, they have the compassion to represent you with sensitivity.
Our family law services include:
Divorce and Legal Separation
Divorce and legal separation are essentially identical proceedings with the exception that the residence requirement is shorter for a legal separation. Further, following a decree of legal separation neither party can remarry. The ground for divorce and legal separation is irretrievable breakdown of the marriage.
Paternity refers to a legal action to establish a man as the father of a child. Establishing paternity can be an important first step in addressing issues of custody and physical placement and child support. Once paternity has been established, the same factors are taken into consideration in determining custody, physical placement and child support in a paternity action as are considered in an action for divorce or legal separation.
Adoption is a legal proceeding that transfers all rights and responsibilities of a natural parent to an adoptive parent. The adoption process is usually preceded by a termination of parental rights of the natural parent. The termination may be consented to by the natural parent or the court may order that the natural parent’s rights be terminated, i.e., an involuntary termination. The procedures for terminating parental rights and adoption of a child are intended to protect the best interests of the child and the rights of parents or guardians. Our firm is experienced in adoptions by relatives including step-parents, domestic adoptions and adoption of foreign children.
Child Custody and Physical Placement
In determining matters of custody and physical placement, i.e. the time a child is placed with each parent, the court will consider the best interests of the children. The wishes and desires of each parent and the children are considered, but only as one of the factors in determining what is best for the children. Unfortunately, the issues of custody and physical placement cause more controversy than any other issue in a family action.
Alimony/Spousal Maintenance/Spousal Support
Maintenance payments are a financial adjustment between the parties. It refers to a monthly or other periodic payment by one party to the other. Whether or not the court awards maintenance payments depends on many factors including, but not limited to age and health of the parties, the respective incomes of the parties and length of the marriage. Wisconsin law provides that the starting point with regard to a determination of maintenance for long-term marriages is 50% of the gross earnings of the parties. However, there is no set formula for determining if maintenance is appropriate or, if appropriate, the amount which should be awarded.
Annulment is a different procedure and is based on the theory that the marriage was not a valid marriage at the time it was contracted (for example, one party was legally married to another or one party was not mentally competent to enter into a marriage contract).
Wisconsin law requires that when a court enters a judgment of divorce, legal separation, or paternity, and the parties have minor children, the judge or court commissioner must enter an Order relating to the parties’ obligation to pay a reasonable and necessary amount to meet the support needs of the minor child(ren). Even though there are relatively strict guidelines that the court must use, calculating child support can still be complex, especially if one or both parents are self-employed or if a parent’s income has significant fluctuations from month to month due to overtime pay, commissions, or bonuses. In addition, child support is always modifiable upon a showing of a substantial change in circumstances in the income of either party, or in the event of a significant modification to the physical placement schedule. Because the court maintains jurisdiction to modify child support, the parties are required to exchange financial information (such as tax returns and W-2s) every year so long there is a support obligation.
Financial and Business Matters in Divorce
Financial matters in a divorce action can be especially complicated when either or both parties own a business. There are general prohibitions against either party selling or transferring property without the consent of the other party, except in limited circumstances, including those that are in the usual course of business. Determining what type of business transactions are “in the usual course of business” and tracking the same can be vitally important during a divorce action. In addition, valuing businesses and determining an equitable division of a business in a divorce action, while still allowing the party who owns the business to maintain said business after the divorce or legal separation, can be complicated. Having an experienced divorce attorney on your side can make all the difference in allowing your business to continue and thrive post-divorce.
Protection Orders and Restraining Orders
Upon the filing and service of an action for divorce or legal separation, there are general statutory prohibitions which prevent either party from “harassing, intimidating, physically abusing or imposing any restraint on the personal liberty of the other party or a minor child of either of the parties. ” Wis. Stats. Sec. 767.117(1)(a). In addition, when these general prohibitions are insufficient to protect a party from harassment or abuse, he or she may want to explore the merits of requesting a harassment injunction or domestic abuse restraining order.
Post-Judgment Disputes and Modifications
For the most part, a Judgment of Divorce or Legal Separation is a permanent and final Order as it relates to property division. In contrast, child custody and physical placement, child support, and revisions to maintenance (so long as maintenance was not waived at the final hearing) are modifiable upon a substantial change of circumstances. There can also be post-judgment motions to enforce court orders for placement, or contempt motions for one party failing to comply with the terms of a Judgment. Oftentimes post-judgment disputes can be more contentious and complicated than the original court case, and an experienced family law attorney can be invaluable in knowing when and how to prosecute post-judgment motions.
Domestic Partnerships and Non-Traditional Families
Domestic partnerships for same sex couples have been recognized in Wisconsin since 2009 and remain available to same sex couples today. There are a number of issues which can make same sex divorce and legal separation complex issues in Wisconsin that relate to arguments about when same sex marriages became lawful in Wisconsin, where and when a same sex couple married, etc. The family law attorneys at Anderson, O’Brien have the expertise to address the complications that surround this developing area of the law in Wisconsin.
A guardian is someone who makes decisions for a child and takes care of a child’s needs. This typically includes such things as food, health care, residence and education. Guardians also usually manage the finances of the child. The court may appoint a Guardian ad Litem to represent minor children during court proceedings. In divorce disputes, it is common for the court to appoint a Guardian ad Litem for a minor child.
Termination of Parental Rights
Termination of Parental Rights (TPR) is a court process which permanently ends all legal parental rights of a birthparent to a child. Your parental rights include being responsible for your child’s emotional and physical well being. However, your rights can be terminated, either voluntarily by you, or involuntarily on your behalf by a court or judge. Generally, children have a right to a parental relationship, as well as the right to receive financial support and care from both parents.
There are three different chapters in the Wisconsin Statutes that address grandparent visitation rights, and each provision is unique depending on the nature of the parents’ relationship (such as whether or not they were ever married), the nature of the grandparents’ relationship with the children, etc. There are also statutes which permit the visitation rights of third parties other than grandparents. This is a very specialized area of family law, and the attorneys at Anderson, O’Brien have significant experience both prosecuting and defending against third-party visitation actions.
Issues relating to changing a minor child’s name in a paternity action have some strict time constraints and limit the options available to the Court in renaming a child.
Wisconsin law has strict notice requirements before a parent can remove a child from the State or more than 150 miles away from another parent who has custody and placement rights. Whether you are the parent who wants to relocate, or you’re the parent contesting the request of the other parent to move, the experienced attorneys at Anderson, O’Brien can assist you navigate this legally and emotionally complex situation.
Speak to one of our family law attorneys today.