Family Law

Divorce

A divorce occurs when either one or both parties decide to end their marriage.  A marriage is regarded as a legal partnership, so it must be dissolved legally, through the court system.

Wisconsin is a no-fault divorce state, which means it is not necessary to determine the circumstances of why one or both parties want a divorce. In fact, information regarding the reasons behind the divorce cannot be considered by the court. As long as one person is willing to testify at a hearing that they believe their marriage is irretrievably broken and that they are not willing to reconcile with the other person, they are entitled to obtain a divorce, whether the other party to the marriage wants the divorce or not.

Wisconsin is one of the few states in the country that is a community property state. Under a basic theory of community property, both parties are entitled to one-half of all the assets, as well as one-half of all the debts that either party has at the time of the final divorce, regardless of who acquired the asset or who acquired the debt. Assets include such things as equity in a marital residence, other real estate or business ventures, retirement and investment accounts, stocks, bonds, personal property, vehicles and bank accounts. Debts may include mortgages, personal loans, credit cards and medical bills. In a community property state, each party is entitled to an equal amount of asset and an equal amount of debt from the marital estate at the time of the divorce. There are exceptions to this basic theory of community property law that can be explained in detail to you by your attorney.

Wisconsin law requires a divorce to be pending for a minimum of 120 days from the date the divorce action is filed. The filing of a divorce action occurs when one or both parties have filed legal documents with the court and paid a filing fee to the Clerk of Courts. The filing fee for a divorce in Wisconsin differs based upon whether or not you have minor children or are seeking maintenance from the other party. Filing fees vary between $185-$195. This filing fee is required by the court regardless of whether or not you have hired an attorney. While the minimum time period for a divorce is 120 days, most divorces take an average of eight months to complete. The length of your divorce is largely determined by the issues that exist in your divorce. As an example, in Wisconsin if you have children, you cannot get legally divorced until you have either resolved the issues of custody and support, or have had a trial before a judge on those issues. Most times, a delay in obtaining a divorce comes from the need to litigate, also known as trial. If you are unable to resolve certain issues in your divorce by agreement and it is necessary for a judge to hear these issues and render a decision, it can take months to get time on a judge’s calendar to have your divorce heard by the court.

In most divorce cases, the parties have temporary terms put into place while the divorce is pending. These temporary terms enable the parties to begin to separate their lives while the divorce is pending. Temporary terms usually address issues pertaining to the minor children, child custody and support, maintenance, who will be living in the martial residence, division of personal property, use of vehicles, maintenance of insurance and tax issues. Temporary terms can be reached by agreement of the parties or by having a hearing before a Court Commissioner. Temporary terms may be modified at the request of either party during the pendency of the divorce, and are not an indication of how the divorce will be resolved on a final basis.

On a final basis, your divorce may be resolved by reaching a written agreement with the other party as to all relevant terms, or by a trial before a judge. The vast majority of divorces are resolved by agreement, and often involve compromise on the part of both parties. A final hearing for a divorce may be a very short hearing where the written agreement of the parties is put on the record and the court approves it, or can ultimately end in a trial, whereby the judge makes a decision that is binding upon both parties as to the issues the parties could not agree to. At the time of a final divorce, the wife may elect to resume her maiden name, or she may elect to keep her married name. This decision is up to the sole discretion of the wife.

For more information or to schedule a consultation please call us at 920 231-5050 or click here.

Prenuptial Agreements

As is explained under the divorce sub-heading of this site, Wisconsin is a community property state. Under a basic theory of community property, both parties are entitled to one-half of all the assets, as well as one-half of all the debts that either party has at the time of the final divorce, regardless of who acquired the asset or who acquired the debt. Assets include such things as equity in a marital residence or business venture, retirement and investment accounts, stocks, bonds, personal property, vehicles and bank accounts. Debts may include mortgages, personal loans, credit cards and medical bills. In a community property state, each party is entitled to an equal amount of asset and an equal amount of debt from the marital estate at the time of the divorce.

Many people do not want to be bound to the community property laws of the state of Wisconsin upon entering into a marriage.  Some of the reasons can include the fact that they are entering into a second or subsequent marriage, that they have children from a previous marriage, that they have acquired substantial assets or wealth prior to their marriage, that they own a business or that the person whom they are marrying is carrying significant financial debt. Whatever the reasons are, a person may choose to enter into a prenuptial agreement, which is a binding legal contract that specifies that in the event of a divorce, legal separation or annulment, the parties will not be obligated to follow the community property laws of the state of Wisconsin, and instead will divide their property and debts in accordance with the agreement they have created.

A prenuptial agreement is a complicated legal document, which must be drafted carefully and tailor-made to fit the requirements of the parties. It requires the full disclosure of each party’s assets and debts and must be executed by both parties with the advice of counsel to insure full understanding of all the legal ramifications of entering into the said contract. Family attorneys help guide the process of composing a prenuptial agreement.

For more information or to schedule a consultation please call us at 920 231-5050 or click here.

Paternity

Family attorneys also handle Paternity cases. When two people have a child together and are not married, in accordance with the laws of the state of Wisconsin, a biological father has no legal rights or obligations towards the child unless paternity is established legally. Paternity actions may be commenced by the state, or they may be initiated by either the mother or father of the child. The state may commence an action for paternity against the biological father if the mother received state assistance to pay for her pre-natal and birthing costs, as the state requires the biological father to re-pay this expense to the state. Often times, a woman will elect to commence a paternity action in order to obtain child support from the biological father. In some instances, the father will elect to commence a paternity action to establish custodial and visitation rights with the child.

The paternity process involves two primary steps. The first involves the establishment that the alleged father is indeed the biological father of the child. This may be accomplished simply by the admission of the alleged father, or may be established through scientific testing, specifically DNA testing, which the state can require and which can determine by 99.9 percent accuracy whether the child is genetically that of the purported father. Once the genetics are determined, the court  may then address issues pertaining to child support, custody, visitation and the last name of the child.

For more information or to schedule a consultation please call us at 920 231-5050 or click here.

Child Support

Child support is the payment of a financial obligation by one parent to the other towards the support of the parties’ minor child(ren). Child support is based upon the number of minor children the parties have, as well as the amount of time each parent spends with the minor child(ren).

If one parent has primary placement, child support is established for one child at 17 percent of the gross income of the parent who does not have primary placement, 25 percent for two children, 28 percent for three children and 31 percent for four or more children. If the parties are sharing placement of the children, which means one parent has the children for 92 or more overnights in any given year, a different formula (the shared payer formula) for child support is utilized. In these instances,  the incomes of both parties are measured against the number of children and the percentage of time each parent enjoys with the child(ren). When using a shared formula, the parties are both responsible for variable expenses for the minor children.  Variable expenses include things such as day care, school expenses and extracurricular activities. A parent may request a deviation in child support, which may be granted under certain circumstances. Additionally, the amount of income that is assessed to a party may be a factor that varies. These issues should be examined by an attorney. Child support is always modifiable, as long as the parties continue to have a minor child. Failure to pay child support properly can result in arrears, which causes an extremely high interest rate to accrue through the state. Failure to pay child support can also result in serious criminal charges.

For more information or to schedule a consultation please call us at 920 231-5050 or click here.

Post-Divorce/Paternity Matters

In some instances, even after a divorce action is concluded or a paternity judgment is entered, parties may find themselves in need of further legal assistance. In most instances, this occurs because one or the other party fails to follow the terms of the judgment entered by the court, or because one party wishes to have child support, maintenance, custody or placement changed. An attorney can explain the proper ways to navigate through this process. Many courts have different rules which require compliance with various out-of-court remedies, such as mediation, before a matter can be brought back before the court. Your attorney can explain the rights, remedies and legal standards which are required to bring post-divorce or paternity motions before the court.

For more information or to schedule a consultation please call us at 920 231-5050 or click here.

Custody and Placement

Custody and placement are two different issues that pertain to parties’ minor child(ren) in the event of a divorce, legal separation or paternity action.

Custody addresses a parent’s right to be involved in the decision-making of their child. It has nothing to do with where the child will live. The decisions that fall under custody are primarily those of medical and academic decision-making, as well as issues pertaining to juvenile delinquency and underage rights of the child. In the state of Wisconsin, there is a legal presumption, or starting point, which assumes that there will be joint, or equal, custody of any minor child(ren) from a marriage. If one parent is objecting to joint legal custody and is instead requesting sole legal custody, it is their burden to prove that joint legal custody is not in the best interests of the child(ren) or that the parents will be unable to co-parent on important decisions. The burden to overcome a finding of joint legal custody is a high one and can be addressed with your counsel.

Placement addresses where the child(ren) will reside upon the parties’ divorce. Until several years ago, when a dispute over placement would occur, the court would determine who had been more involved in the parenting and care-taking of the children and would place the children with that parent.  However, several years ago, the legislature changed the laws and established new guidelines for the court to follow in the event of placement disputes. Now the court states that in the event of a dispute on the issue of placement, the courts shall try to maximize both parents’ time with the child(ren). This means we have moved away from the conventional ideal that mothers, who historically had been more likely to be stay-at-home parents, should be awarded primary placement with the child(ren), and instead we start with the theory that the divorcing parents should be following a shared placement arrangement. Shared placement arrangements can be done as simply as alternating placement weekly or equally, or a schedule may be constructed so that one parent has placement of the child(ren) one overnight per week and every other weekend. There are many different schedules that can be established to accommodate the parents’ respective work schedules, the children’s schedules, and the needs of the children.

In the event the parties cannot reach a resolution on the issue of placement, very often it is necessary for the court to appoint a Guardian ad Litem to make recommendations to the court as to what is in the best interests of the child(ren) in terms of placement. A Guardian ad Litem is an attorney who has specialized training and certification in the area of child development and placement disputes. In fact, every partner in the firm of Basiliere, Thompson, Bissett, Castonia & Swardenski, LLP is certified as a Guardian ad Litem and all the family attorneys at this firm are frequently appointed by the court to act in this capacity. Normally, the Guardian ad Litem will make an initial recommendation to the court regarding placement on a temporary basis, while the divorce is pending. In some courts, after the Guardian ad Litem makes an initial recommendation, the parties are required to attend a parenting class and/or mediation, which is counseling that occurs out-of-court between certified mediators and the parties, in an attempt to resolve the placement issue on a final basis. If this is unsuccessful, in most instances, at this point, a custody study is ordered. Custody study teams and local rules on custody studies vary between counties but are normally extremely expensive and time consuming. An average custody study takes approximately six months. Your attorney can address these issues in greater detail when she meets with you. 

For more information or to schedule a consultation please call us at 920 231-5050 or click here.

Maintenance

Maintenance, which used to be known as alimony, occurs when one party to the marriage requests the other spouse to contribute money to them on a regular basis to assist them financially both during and after the divorce, much like child support. Maintenance is unlike child support in that there is no set formula for maintenance. Rather, maintenance is discretionary to the judge and is a balancing act concerning a variety of factors. The most fundamental factors in a maintenance determination are the length of the parties’ marriage and the disparity in the income of the parties. Unless there are extenuating circumstances, the parties must first establish that they are in a long-term marriage for one party to request maintenance successfully. In general, and absent certain circumstances, a marriage really only begins to be considered “long term” if it is over 10-15 years in length. Other factors which must be present to make a successful maintenance claim are a disparity between the incomes of the parties, the ages of the parties, whether there are minor children, the health of the parties, the earning capacity of the parties and the financial obligations of each party. Your attorney will conduct an analysis of your marital and financial history and can discuss whether maintenance is an option for you. 

For more information or to schedule a consultation please call us at 920 231-5050 or click here.

Adoption and Termination of Parental Rights

The law office of Basiliere, Thompson, Bissett, Castonia & Swardenski, LLP, handles many private adoptions. Most, but not all, of these adoptions involve stepparents who wish to adopt their stepchildren. What most people do not realize is that an adoption proceeding is really two cases, which are heard at the same time. In order for the court to grant an adoption, they must first terminate the legal rights of one of the biological parents to the child. This is called a Termination of Parental Rights case and it occurs simultaneously with the adoption action. A termination of the legal rights of a biological parent may be done on either a voluntary or involuntary basis. One of our family attorneys will explain to you what grounds exist for termination of the biological parents’ rights if the biological parent is refusing to terminate his or her rights voluntarily. Many people also believe they can simply terminate their rights to a child if they so desire, and that this will free them from the obligation to support the child. This is incorrect, as the state will only allow a person to terminate their rights if another appropriate party is available to adopt the child. In most instances, the state requires this to be a stepparent or other appropriate party.

For more information or to schedule a consultation please call us at 920 231-5050 or click here.

Restraining Orders

On occasion, it is necessary for a client to obtain a restraining order against another party in Family Court. The most common type of restraining orders are domestic abuse restraining orders, and frequently involve women seeking restraining orders against their spouse or significant other. A temporary restraining order is initially granted based upon the filing of a petition by the victim of domestic abuse, who alleges in the petition that he/she has been the victim of domestic abuse in the past, and believes he/she is in imminent danger of harm by the perpetrator. The Court Commissioner must then hold a hearing on the matter within 14 days of the issuance of the temporary restraining order. If the victim is successful at this hearing, he/she is eligible to maintain the restraining order against his/her perpetrator for up to four years.

Another type of restraining order that is frequently sought is that of a harassment restraining order. A victim seeks this type of order when someone is stalking, calling repeatedly, or engaging in a course of conduct that serves no legitimate purpose.

Once a restraining order is issued, it becomes illegal for the perpetrator of the restraining order to possess any firearms. Further, if a perpetrator violates the terms of the restraining order, they may be arrested and criminally charged with violation of a restraining order.

For more information or to schedule a consultation please call us at 920 231-5050 or click here.

Attorney Fees In Family Law Matters

When working with an attorney in a family law matter, you are normally quoted an advanced fee, or a deposit, which was formerly known as a retainer. This is a deposit that the attorney requires in order to commence working with you on your family law case. When working with an attorney, what you are essentially paying them for is their time and experience. Attorneys bill on an hourly basis to every three minutes of their time. At the law firm of Basiliere, Thompson, Bissett, Castonia & Swardenski, LLP, most clients are provided with monthly statements in their family law matters, which show the date the work was done, the nature of the work done, how much time the attorney expended on that work, and how much is left in the initial deposit after work for that month was completed. Your attorney will advise you of their hourly rate when they meet with you. An attorney will quote you their advance fee rate after a consultation with you so that they may assess how complicated your matter may be and how much time the attorney anticipates expending on your case. If you determine you wish to be represented by one of our family attorneys, you will then enter into a fee agreement, which will outline the terms of representation and the rate of pay.

For more information or to schedule a consultation please call us at 920 231-5050 or click here.