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.
Tuesday, June 30, 2009
Friday, June 19, 2009
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).
Thursday, June 11, 2009
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.
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.
Wednesday, June 10, 2009
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.
Friday, December 26, 2008
I know I need to get Divorce, but How?
Before Filing the Initial Paperwork
Before filing the divorce action, you need to decide if you want an attorney to represent you or if you feel comfortable representing yourself, also called going "pro se." There is no magic formula to know when it is okay to represent yourself. The State of Wisconsin has provided all the basic forms you need for a divorce on http://wicourts.gov/ under "Forms." There is also a link for "Self-Representation (pro-se)."
If you do decide to represent yourself and find it is too much, you can hire an attorney later on. However, it is never a good idea to wait until a week before a hearing or a deadline to retain an attorney. The attorney you want may be booked weeks in advance and unable to assist you.
Filing the Initial Paperwork
In Wisconsin, the first step in a divorce action is to file a Summons, Petition, and Confidential Addendum in the county you and your spouse live in. If you do not know where your spouse lives, if they are alive, or you and your spouse live in different counties, it is best to ask an attorney or call the Clerk of Courts in the county you live in. Many county courthouses have self-help clinics that are open a few hours a week to help with these types of questions.
You may also need to file an Order to Show Cause for a Temporary Hearing, if you and your spouse do not agree on who lives where, who sees the kids when, or who's paying what during the divorce. If you think you may need a Temporary Hearing, you may want to consult with an attorney. Just because you want something, doesn't mean that you are legally entitled to it. An attorney cannot guarantee an outcome, but they can give you a general idea of how things such as child support, mortgage contributions, and maintenance are calculated based on your income.
Service of Process
If you and your spouse file as joint petitioners, you do not need to have your spouse served with the Summons, Petition, Confidential Addendum, and any other paperwork that the Clerk of Courts gives you to have served. Filing a Joint Petition signals that you and your spouse are going pro se and agree to the filing of the divorce. It doesn't necessarily mean that the two of you will come to an agreement in the end.
Typically, one party is the Petitioner and the other party is the Respondent. When you file a Divorce Petition that is not joint, you need to serve your spouse. Ask the Clerk of Courts for the Sheriff's Department information or for process servers in the area your spouse lives or works. If you do not have your spouse served properly within the time limits, your divorce can be dismissed.
Mandatory Waiting Period
Once your spouse is served, the time clock starts. There is a mandatory 120-day waiting period before your divorce can be finalized. There are exceptions for members of the active military.
Temporary Hearing
A temporary hearing is also called a first hearing in some counties. Usually, it is your first appearance in court. People often say it is the worst day of the divorce emotionally, because you do not know what to expect. Typically, a commissioner holds the Temporary Hearing and does not rule on only one issue. For example, you may only want child support started. However, the Court will determine, placement, custody, payment of debts, how taxes will be filed, etc. while the divorce is pending. By putting these temporary orders in place, the Court prevents you from having to come back for another Temporary Hearing next month when a new issue arises.
Pretrial or Scheduling Conference
Some counties call it a pretrial, others a scheduling conference, both often refer to your first opportunity to get in front of a judge and get divorce. The pretrial/scheduling conference will be held after the 120-days waiting period has passed. How you get a pretrial or scheduling conference depends upon your county.
If you have a completed Marital Settlement Agreement and the judge approves, you can finalize your divorce that day. Many counties encourage people to file their Marital Settlement Agreement in advance of the pretrial/scheduling conference. By doing so, you may get a hearing date sooner in front of a commissioner, or the judge can read the agreement before the hearing to make your appearance in court quicker.
If you do not have a completed and signed Marital Settlement Agreement, the judge will want to know what issues you and your spouse disagree about. If you do not have an agreement, the judge will direct the next step in your divorce. The next step may be an appraisal of a home, mediation of children's issues, or the appointment of a guardian ad litem. Assuming no agreement is reached, the judge will order a trial. Very few cases go to trial and divorces are not tried in front of a jury. It is highly recommended that you retain an attorney before the judge chooses the trial date, because of the amount of time and effort that goes into preparing for a divorce trial.
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.
If you need assistance with your divorce or family action, feel free to contact me to discuss your situation.
Attorney Katie E. Babe
Lakeland Law Firm, LLC
N27 W23957 Paul Road
Suite 206
Pewaukee, Wisconsin 53072
(262) 347-2000
kbabe@lakelandlawfirm.net
http://lakelandlawfirm.net/
Before filing the divorce action, you need to decide if you want an attorney to represent you or if you feel comfortable representing yourself, also called going "pro se." There is no magic formula to know when it is okay to represent yourself. The State of Wisconsin has provided all the basic forms you need for a divorce on http://wicourts.gov/ under "Forms." There is also a link for "Self-Representation (pro-se)."
If you do decide to represent yourself and find it is too much, you can hire an attorney later on. However, it is never a good idea to wait until a week before a hearing or a deadline to retain an attorney. The attorney you want may be booked weeks in advance and unable to assist you.
Filing the Initial Paperwork
In Wisconsin, the first step in a divorce action is to file a Summons, Petition, and Confidential Addendum in the county you and your spouse live in. If you do not know where your spouse lives, if they are alive, or you and your spouse live in different counties, it is best to ask an attorney or call the Clerk of Courts in the county you live in. Many county courthouses have self-help clinics that are open a few hours a week to help with these types of questions.
You may also need to file an Order to Show Cause for a Temporary Hearing, if you and your spouse do not agree on who lives where, who sees the kids when, or who's paying what during the divorce. If you think you may need a Temporary Hearing, you may want to consult with an attorney. Just because you want something, doesn't mean that you are legally entitled to it. An attorney cannot guarantee an outcome, but they can give you a general idea of how things such as child support, mortgage contributions, and maintenance are calculated based on your income.
Service of Process
If you and your spouse file as joint petitioners, you do not need to have your spouse served with the Summons, Petition, Confidential Addendum, and any other paperwork that the Clerk of Courts gives you to have served. Filing a Joint Petition signals that you and your spouse are going pro se and agree to the filing of the divorce. It doesn't necessarily mean that the two of you will come to an agreement in the end.
Typically, one party is the Petitioner and the other party is the Respondent. When you file a Divorce Petition that is not joint, you need to serve your spouse. Ask the Clerk of Courts for the Sheriff's Department information or for process servers in the area your spouse lives or works. If you do not have your spouse served properly within the time limits, your divorce can be dismissed.
Mandatory Waiting Period
Once your spouse is served, the time clock starts. There is a mandatory 120-day waiting period before your divorce can be finalized. There are exceptions for members of the active military.
Temporary Hearing
A temporary hearing is also called a first hearing in some counties. Usually, it is your first appearance in court. People often say it is the worst day of the divorce emotionally, because you do not know what to expect. Typically, a commissioner holds the Temporary Hearing and does not rule on only one issue. For example, you may only want child support started. However, the Court will determine, placement, custody, payment of debts, how taxes will be filed, etc. while the divorce is pending. By putting these temporary orders in place, the Court prevents you from having to come back for another Temporary Hearing next month when a new issue arises.
Pretrial or Scheduling Conference
Some counties call it a pretrial, others a scheduling conference, both often refer to your first opportunity to get in front of a judge and get divorce. The pretrial/scheduling conference will be held after the 120-days waiting period has passed. How you get a pretrial or scheduling conference depends upon your county.
If you have a completed Marital Settlement Agreement and the judge approves, you can finalize your divorce that day. Many counties encourage people to file their Marital Settlement Agreement in advance of the pretrial/scheduling conference. By doing so, you may get a hearing date sooner in front of a commissioner, or the judge can read the agreement before the hearing to make your appearance in court quicker.
If you do not have a completed and signed Marital Settlement Agreement, the judge will want to know what issues you and your spouse disagree about. If you do not have an agreement, the judge will direct the next step in your divorce. The next step may be an appraisal of a home, mediation of children's issues, or the appointment of a guardian ad litem. Assuming no agreement is reached, the judge will order a trial. Very few cases go to trial and divorces are not tried in front of a jury. It is highly recommended that you retain an attorney before the judge chooses the trial date, because of the amount of time and effort that goes into preparing for a divorce trial.
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.
If you need assistance with your divorce or family action, feel free to contact me to discuss your situation.
Attorney Katie E. Babe
Lakeland Law Firm, LLC
N27 W23957 Paul Road
Suite 206
Pewaukee, Wisconsin 53072
(262) 347-2000
kbabe@lakelandlawfirm.net
http://lakelandlawfirm.net/
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