Recommended Read

For anyone looking for information about the impact divorce or legal separation on children of various ages, I recommend a book by Marc J. Ackerman titled Does Wednesday Mean Mom's House or Dad's? (ISBN 978-0-470-12753-7). Less than 250 pages, this book is intended to be an easy read for a stressed, worried parent. The author is a well respected expert on child custody and is from Wisconsin.

Non-Divorce

With this recession has come a variety of articles about the non-divorce or roommate living arrangement between spouses. Whatever you call it, staying together because you cannot afford to live in two households can work. However, there are pitfalls to be sure. If you are trying to make the decision between staying together and filing for divorce, legal separation, or annulment, there are some commonsense objectives to keep in mind. First, do you both agree that it is over? If it is over for one and not the other, there is bound to be arguing, stress, and disappointment. What will be the impact on the children from watching this constant struggle play out each day? If both of you agree it is over, you need to set boundaries and ground rules to save your sanity and that of your children. When do you want to separate? A deadline gives you light at the end of the tunnel. Who is paying what? Is it time to separate checking accounts? Who is doing what chores around the house? Who is paying which bills? I know you are thinking, if we could agree on these things we would not need to separate. But, this is really about how much money is coming and how much is going out each month - simple budgeting, not about fair or equal.

Giving the children the opportunity to spend time with one parent while the other parent takes a day or weekend off is something that seems to work for some people. It is similar to a nesting arrangement (see prior post), but it is an informal arrangement without lawyers, court orders, or a legal action. Aside from giving each of you a break, it has the added benefit of getting used to being without the children while the other has placement.

Most importantly, talk to a therapist about how to make it work. Talking to others who have separated often gets you a long story about the worst of their situation. People only tend to remember the worst.

If you want the strength of a legal document, instead of relying on your spouse to honor your verbal agreement, you should call an attorney who drafts marital agreements, also referred to as post-nups or post-nuptial. These agreements lay out what happens in the event of divorce or legal separation, and death. For example, it can spell out the children's placement schedule when a divorce is filed or who is responsible for certain debts.

None of this will work if you are in a domestic violence situation. No post-nup should be worth the paper it is written on if it is the result of threats or coercion. Criminal cases resulting from domestic disputes and/or violence seem to be on the rise. Staying together to save money when your relationship that is verbally or physically abusive can come at the cost of medical bills, loss of reputation, criminal defense attorney fees, court fines and costs, even jail or prison. It is the opinion of this writer, that it is never worth the costs. Both spouses need the help of a therapist regardless of whether they stay together or separate.

Keep in mind this blog is for Wisconsin residents only. As always, this is no substitute for legal advice from an attorney that knows your particular circumstances. No attorney-client relationship is formed between the reader and Lakeland Law Firm, LLC from reading this blog.

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.