What is a Legal Separation?

In Wisconsin, married spouses have the ability to legal separate from each other. The process is nearly the same as the process for obtaining a divorce. See earlier posts regarding the divorce process. The main difference is that at the end of the process couples are still married. Both husband and wife have to agree to be legally separated. If one parties decides he or she would rather be divorced before the legal separation is granted, the action is changed from a legal separation to a divorce. The seemingly good part about a legal separation is that after one year of being legally separated, a spouse can send in a standard form stating that he or she wants a divorce and neither party has to return to Court for the divorce to be granted.

If you would like more information about legal separation, contact an attorney. As always, this and any blog posting are no substitute for legal advice.

Hiring a Divorce Attorney

Hiring an attorney can be a daunting task, especially when you are going to court over your children and everything you own. Below are some things to keep in mind when hiring an attorney. This is not an exhaustive list, but merely a started point.

• Take advantage of free consultations.
• Meet the attorney. Make sure it is someone that you can imagine talking to frequently for the next four-to-nine months, perhaps even longer.
• Bring a list of questions to make the most of your free consultation time.
• If your divorce, support or placement dispute case has already been started in court, bring copies of all of the relevant documents to your consultation so that the attorney can review them.
• Inquire about fees and ask for a fee agreement to review.
• Ask what percentage of the attorney’s practice is devoted to family law.
• Ask questions aimed at getting a sense of the attorney’s general approach – are you looking for someone to make your spouse miserable, or are you looking for someone with a more cooperative approach?

Nesting Arrangement

I tell people that the only limits on how to create a placement schedule for your children is your own imagination. That might seem like an odd statement, but what works for your children might not work for the family down the street. Children at different ages need different schedules. Often, it is easiest to start a separation by implementing a nesting arrangement. Instead of having your children bounce between households, you as the parents move in and out. For example, some teenagers can go a week without seeing one parent (or even noticing one parent is missing), so mom takes week one and dad takes week two. On Sunday at noon mom leaves for her parents for the week and dad moves in for the week. Next Sunday, mom and dad switch. When parents live it first, they can under the impact living in two households has on their children. (i.e. How aggravating it is leaving items behind on accident, like homework or a tooth brush. Parents also get the benefit of test driving a schedule to see if it works for the children before a divorce is final. But, nesting arrangements are not, repeat not, for everyone. If you are going to fight over who buys what for the house, who mows the lawn, who cleans, . . . its not for you. The children will be negatively impacted by the bickering and annoyed with having to call mom on dad's week to ask if they can drink mom's orange juice in the frig.

While this posting is not full of legal terms or theories, I still have to remind readers that this is no substitute for legal advice from an attorney who knows your particular family situation.

What is the difference between custody and placement?

Quite often, parents are confused by the terms "custody" and "placement" when they start legal proceedings involving their children in Wisconsin. I always start my explanation of placement by telling people that placement is where the children are physically during the week. For example, Mom has placement of the children on Mondays and Tuesdays, Dad has placement of the children on Wednesdays and Thursdays, and the children alternate weekends between Mom and Dad's homes.

Custody is not as straight forward. Custody is defined as "... the right and responsibility to make major decisions concerning the child, except with respect to specified decisions as set forth by the court or the parties in the final judgment or order." Wisconsin Statute 767.001 (2). So what is a major decision? The statute goes on to say that a major decision "includes, but is not limited to, decisions regarding consent to marry, consent to enter military service, consent to obtain a motor vehicle operator’s license, authorization for nonemergency health care and choice of school and religion."

Obviously, we are not talking about what cereal the kids eat for breakfast. But, what if that nonemergency health care involves braces? I want my child to have braces, but my former spouse says no? The best way to avoid being back in court after a divorce or paternity case is to raise these issues in the beginning. Sure, some people can't agree the sky is blue when they are in the midst of a divorce; however, if you know that you and your spouse or child's parent have different views on when your child can drive or what school they should attend, raise the issue now.

As always, this blog posting is not a substitute for legal advice from an attorney that knows your specific circumstances. No attorney-client relationship is formed by the reading of this website. Use the information on this blog at your own risk.

What is an Annulment?

People often ask the difference between an annulment and a divorce. A divorce ends a marriage. An annulment erases the marriage as though it never occurred. Wisconsin statute 767.313 gives circumstances when grounds (valid reasons) for annulment exist. Unfortunately, grounds must exist. People don't get to choose whether they want to be divorced or have their marriage annulled.

Annulments were once popular for religious reasons. Today, annulments are more commonly seen when one party was still married to another person or 6 months had not passed since his/her divorce when he/she got married again. Other reasons can be that one party married solely to use the other party for health insurance or a paycheck.

In Wisconsin, the process for obtaining an annulment can be slightly different than for a divorce. Even if both spouses wanted an annulment, the judge would still need to have a hearing to determine if grounds for annulment existed. In a divorce, no spouse needs to prove that grounds exist to get a divorce. Also, the idea of dividing property 50/50 and maintenance can be out the window in an annulment. I stress "can be," because another hearing or trial would likely need to occur to argue over how finances should be divided when the parties disagree.

Annulments are fact specific. If you are thinking about pursuing an annulment, you should discuss it with a family law attorney.

Do I need a Prenup?

Whether a person needs a prenup is a question best discussed with a family law attorney. Having dealt with the question myself, I know it is not an easy one. In some ways, you learn more than you ever wanted to about your soon-to-be spouse simply because a prenup, commonly known in Wisconsin as a Marital Agreement, focuses on what happens to your assets in the event of divorce or death. It can also cover debts. It is recommended that the bride and groom each have a lawyer to draft and review the agreement. Prenups should be signed well in advance of the wedding day. If you are a couple weeks away from the big day, there is no need to panic. A postnup, which is also a Marital Agreement, can be signed after the wedding and have the same effect as a prenup (assuming your then hubby will sign it).

What happens after divorce?

Once the judge tells a couple that they are official divorced, there is still clean up work to be done in Wisconsin. Listed below are items that may need to be cleaned up after a divorce. It is in no way an exhaustive list and is no replacement for legal advice. You should contact an attorney if you have questions about what steps need to be taken after the divorce.

Debts/Credit Report
Divorced individuals should contact any companies that have issued a line of credit, such as a credit card companies or vehicle notes, and inform them of the divorce. If your former spouse is still a joint account holder or authorized user on a debt awarded to you, you should make sure they are removed. If the debt was awarded to your former spouse and you find that you are still an authorized user or joint account holder, you should ask to be removed. If the creditor will not remove you, you will need to talk to your former spouse about how to handle the debt. Ideally, you are aware of how the debts are titled and what it takes to title the debts in your name individually before the divorce is finalized. The second part of this clean up process is to pull your credit report 3 months or more after the divorce is final to make sure it is accurate and that you closed all joint accounts and authorized user accounts. If your credit report is not accurate, you can challenge errors through the credit bureaus, assuming that they are actually errors. One copy of each of the three credit bureaus' credit reports are available for free at http://www.annualcreditreport.com/.

Estate Plans
Now that you are single, your former spouse can no longer make your medical decisions if you are incapacitated. Single individuals need a health care power of attorney and living will. If you have an old health care power of attorney and/or living will on file with a doctor or hospital that lists someone that you no longer want to act as your agent to make your medical decisions, you should inform the doctor or hospital when you execute a new health care power of attorney and/or living will. Once divorced, individuals also need to update the rest of their estate plan, i.e. will, durable power of attorney, possibly a trust, even if a person has not had an estate plan before. Just as important is to update your beneficiary designations on accounts, such as life insurance policies, retirement accounts, bank accounts, etc.

Changing Your Name
If you had your name changed as part of your divorce, you still need to change your name with the Wisconsin Department of Transportation and the Social Security Office. Check their websites for information. Once complete, you will need to notify your employer, bank, creditors, etc. of your name change.

Division of Retirement Accounts
If a retirement account is divided between the parties in a divorce, a Qualified Domestic Relations Order (also known as a QDRO) may need to be drafted. This is something that should be discussed with an attorney.

Division of Real Estate
Houses, just like vehicles, that are jointly titled need to be retitled if they are awarded to one person in a divorce. If a mortgage exists against the property, refinancing is almost always necessary. As with the division of retirement accounts, this issue should be discussed with attorney before a divorce is finalized. The point here is that to retitle a house, a quit claim deed and transfer return are needed. The Findings of Fact and Conclusions of Law and Judgment of Divorce coupled with a Marital Settlement Agreement are not a substitute for executing a quit claim deed and transfer return.

School Contact Information
When a parent moves before, during, or after a divorce, that parent should update their contact information with the children's school. It is not uncommon for parents to be left off the school newsletter mailing list because the school does not know that your information has changed. Updating your information is your responsibility; it is not a responsibility typically assigned to one parent.

The Divorce in Wisconsin Blog is not a substitute for legal advice. No attorney/client relationship is formed by the reading of this website. Use the information on this blog at your own risk.

What is mediation?

In Wisconsin, parents are encouraged to participate in mediation to resolve disputes regarding custody and placement of their children. A mediator is a neutral person that sits down with both parents and helps the two of you work through your disagreement. Mediators have obtained specialized training in mediation. They may or may not be attorneys. While the goal of mediation is to reach an agreement, a mediator will not force parents to agree or tell parents that they are wrong for having specific feelings or concerns. In Wisconsin, mediation can be ordered by the court when a dispute regarding the children arises and before a guardian ad litem is appointed, if mediation is appropriate. Unless both parties agree to attend mediation with a private mediator, parties usually attend mediation orientation and attend mediation with a court-appointed mediator. Private mediators can also be used to resolve other types of disputes, such as property division in divorce, civil law suits, etc.