Maintenance

June 24, 2015

VENUE IN WISCONSIN: POST-JUDGMENT MOTIONS REGARDING CHILD CUSTODY AND PLACEMENT, CHILD SUPPORT, AND MAINTENANCE

Venue and motions to change venue in Wisconsin courts are governed by the statutes found at Wis. Stats. § 801.50 through § 801.64. Those statutes apply to family law cases through §767.201 and the related residency requirements of § 767.301.

Family law cases, however, are unique in their continuing nature. While most types of cases are finalized after entry of judgment (except, of course, for appeal remands and sometimes enforcement issues), family law cases frequently require the court’s continuing action after entry of judgment for modification of placement or custody, modification or termination of child support, maintenance issues, placement enforcement, etc. As families move around the state in our mobile society, venue issues often arise: which county is most convenient for the parties, where is most of the relevant information located, etc.

The family code, § 767.281, provides a simple way to change venue for post-judgment modification and enforcement motions, petitions, and orders to show cause. With the title, “Filing procedures and orders for enforcement or modification of judgments or orders,” one might not expect this statute to provide a useful mechanism for transferring a post-judgment family case to a more convenient or appropriate county, which perhaps explains why the statute and procedure are little used or understood. But in an appropriate case, this statute can simplify and streamline procedures as families move around the state.

May 21, 2015

WISCONSIN PRENUPTIAL AGREEMENTS: PROVISIONS REGARDING SPOUSAL SUPPORT (MAINTENANCE, ALIMONY) AT DIVORCE.

Wessel, Lehker & Fumelle Inc.

Last year, in the context of divorce, we blogged about enforcement of and challenges to the property division provisions of a marital property agreement, or prenup. Under Wisconsin law, courts must presume that these provisions are valid and enforceable unless the prenup is shown to be inequitable. Caselaw, beginning with Button v. Button, has interpreted the meaning of “inequitable” under these circumstances.

But the analysis is different for prenup provisions regarding maintenance (alimony) at divorce. While property division provisions are governed by Wis. Stat. § 767.61, maintenance provisions are governed by Wis. Stat. § 767.56(1c)(h). That statute provides that an agreement “concerning any arrangement for the financial support of the parties” is a factor the trial court must consider in making a maintenance decision. A prenup thus is just one factor regarding maintenance to be considered by the trial court, along with other factors such as the length of the marriage, the parties’ earning capacity, etc. The factors are listed at Wis. Stat. § 767.56(1c), along with the catch-all “such other factors as the court may in each individual case determine to be relevant.”

The difference is significant. Regarding property division, the burden is on the spouse who is challenging the prenup to show that it is inequitable; if the spouse cannot make such a showing, the inquiry ends and the terms of the prenup are enforced. Regarding maintenance, there is no presumption, no shifting of the burden between spouses; rather, the trial court weighs the evidence and exercises its discretion in determining maintenance. The focus is not on the prenup itself, but on the prenup in the context of the statutory maintenance factors and the twin maintenance objectives, support and fairness. See, e.g., Hefty v. Hefty.

September 19, 2012

CONCEALING INCOME

Wessel, Lehker & Fumelle Inc.

About once a year here at Wessel, Lehker & Fumelle we encounter an opposing party who is intent on hiding income. A party’s income, of course, is highly relevant information for purposes of setting maintenance (alimony), establishing child support, or changing the amount of maintenance or child support. Some support payers are working on perfecting the art of hiding or disguising income or assets, treating the support recipient much like they probably treat the IRS.

The signs are often fairly obvious. A party may report an income that barely covers expenses, yet take lavish vacations or acquire expensive toys. Or a party, often self-employed, may report an income that is substantially lower than it was before the parties split. Sometimes a party reports the former partner’s penchant for half-truths and misrepresentation. A party’s exhaustive or creative opposition to reasonable financial disclosure may signal interesting records.

Fortunately, the statutes authorizing access to information are broad in Wisconsin. Wisconsin Statutes Chapter 804 authorizes discovery of all “relevant” information, whether or not it is actually admissible at trial. And courts have little tolerance for parties who play loose with the facts. Once we can show some manipulation or lack of candor, courts are often willing to authorize a deeper investigation or impute income. We have also found that when the opposing party realizes that we are not simply going to accept the represented income as the whole truth, a reasonable settlement suddenly becomes more attractive.