One of the most difficult and emotional areas of law is Family Law. There are many different aspects of Family Law where an attorney is needed. It is very common for an attorney to work with individuals during a Divorce, Annulment, or Legal Separation. I can also help with Child Custody and Placement issues, Modification Motion involving Custody, Placement and Financial Matters, Mediation, and Pre-Nuptial Agreements. It’s important to have an attorney you feel comfortable with to help guide you through the legal issues involved. I offer a free initial consultation so you can get to know me and decide the direction you would like to proceed.
If you are considering a divorce, annulment, or separation, you probably have lots of questions. The best thing is to sit down with me and discuss your personal situation and your options. I’ve assembled a list of basic questions to help you prepare for our meeting.
1. How should I prepare for my initial free consultation?
An initial consultation is a great way for the client and attorney to meet each other, discuss the issues and make sure that they are a good fit. The relationship between an attorney and client is extremely important and to be an effective “team” it is necessary to make sure that we are on the same page in the manner in which we will be approaching your case. At our initial consultation, I will be asking a lot of questions about your finances. Specifically, I will want to know about your income, your assets and your liabilities. Tax returns are a good source of information so if you have your most recent return, that is a helpful tool for our meeting. You will be asked about the value of your home, mortgage balances, and retirement plans.
2. How does a divorce get started?
If you decide to hire me, the divorce will be started with a Summons and Petition for Divorce. Wisconsin is a “no fault” state. This means that the grounds for divorce are that the marriage is “irretrievably broken.” When dividing marital property, the law does not punish a spouse who leaves the marital home or finds another relationship. The Summons and Petition are filed with the Clerk of Court and served on the Family Court Commissioner. Once the divorce is filed, your spouse needs to be served with these pleadings. I usually suggest that your spouse make arrangements to pick up the papers at my office or that we send them to an attorney that your spouse decides to hire. Serving through the Sheriff or a private process server is also possible if you have an uncooperative spouse.
3. How long does a divorce take?
There is a mandatory 120 day waiting period before you can get the final divorce. The 120 day time limit runs from the date your spouse receives the divorce pleadings—not from the date they are filed. However, a final divorce in four months is not very common and will depend on the issues in your case. Every case is different so this is a question that can be best answered once the divorce is started and we know what all the issues are. Further, Wisconsin law requires that parties with children attend a parenting class. There are many organizations that hold these classes, which last a couple of hours. You will obtain a certificate from the class that you have completed this mandatory requirement.
4. What if my spouse is not being cooperative and we are fighting about where the children will live and paying bills once the divorce is started?
At the time the initial divorce documents are filed, we will discuss whether you may need a hearing before a Family Court Commissioner to make temporary orders regarding custody, placement and finances until your divorce is final. This is called a Temporary Hearing and may occur anytime in the divorce process if it is needed.
5. What is Joint Legal Custody?
Joint Legal Custody is the right of the parents to share in decision making about their children. These decisions include, but are not limited to, decisions regarding non-emergency medical, dental, psychological care and treatment and choice of schooling and religious upbringing. Legal custodians for their children are responsible to sign consent forms for school and medical needs as well as sponsoring a driver’s license. The Court presumes that both parents are appropriate and fit persons to make these decisions, and, consequently, Joint Legal Custody is presumed unless the parties are unable to make these decisions together. Often people confuse Joint Legal Custody and Joint Physical Placement.
6. What is Joint Physical Placement?
Joint Physical Placement is a form of sharing time with children in which children spend time at each parent’s home. An equal shared placement schedule would have each parent spending approximately 50% of the time with their children under a variety of different schedules depending on the parties’ work schedules and the children’s ages, needs and preferences. Parents can have a form of Joint Physical Placement, for example, where the children would live with one parent 70% of the time and the other parent 30% of the time.
7. What is Primary Physical Placement?
Primary Physical Placement is when one parent has the children placed with them the majority of the week. Under this type of schedule, the other parent might have placement of the children one day a week or possibly alternating weekends.
8. How is child support determined?
Child support, determined by DCF 150, is based upon a calculation of the parent’s gross income and is impacted by the amount of time the children live with each parent and the number of children. If the parents have a shared placement schedule, child support is determined using both parents’ gross incomes in a more complex calculation. Child support tools can be found at http://dcf.wisconsin.gov/bcs/order/guidelines_tools.htm.
There are many other factors that are considered in the setting of child support that your attorney can help you navigate. These are variable expense sharing, cost of medical insurance coverage, inclusion of overtime income, imputed income to the supporting parent, and high income and low income considerations.
9. What if my spouse and I can’t agree on where the children will live?
The first requirement will be to go to mediation. Every county has different procedures for requesting mediation and different costs for their mediation program. Milwaukee County, for example, currently charges $200 for mediation services, usually $100 per party. The mediation program staff is composed of private attorneys and health care professionals. If you and your spouse or former partner can’t resolve your issues in mediation, the Circuit Court will appoint an attorney to represent the best interests of your child or children. This person is called a Guardian ad Litem. Generally, both parents are responsible to pay for the cost of the Guardian ad Litem.
10. Do I have to go to Court to get divorced?
The State of Wisconsin requires the parties to appear in court to get divorced. If the parties have been able to resolve all their issues during the pendency of the divorce, it is possible that they may just have one court appearance and that will be their only court date. If the parties continue to have issues, they can have many court appearances and may ultimately have a trial before the Judge, who will decide their issues.
11. How does the Court divide my assets at the time of divorce?
Every divorce case is different. Wisconsin Statutes Chapter 767 (http://docs.legis.wisconsin.gov/statutes/statutes/767) provides how property is divided at divorce. However, there are often many issues that come up during the course of divorce that require an experienced attorney to help you understand how the statute and case law applies to your particular set of facts in your case.