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.

A friend of the family died recently at age 54. He and his wife had lived apart for several years; they were planning to divorce, perhaps had already started a divorce action. As with most divorces, a variety of problems plagued the marriage, but a big one was his wife’s excessive spending.

My friend had started to move on with his life. Like most people in those circumstances, his time and attention were focused on establishing housing, working out continuing financial obligations, dealing with his emotions, navigating co-parenting, building new relationships. Changing his estate planning documents was not among his priorities. It may have occurred to him, but it was buried under the mound of other tasks demanding his attention. And of course he did not expect to die at 54.

My friend did not change his life insurance beneficiary designation; his life insurance proceeds were paid to his wife. He did not change his retirement account beneficiary designation; those proceeds too were paid to his wife. He did not change his will, which left everything to his wife, including the substantial investment accounts he had recently inherited from his parents. His children are at the mercy of his spend-thrift wife; no one expects that there will be much left for them as they reach adulthood.

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In Wisconsin, parents have an obligation to support their child financially until the child is 18 years old. This support obligation can extend to age 19 if the child is in high school (“pursuing an accredited course of instruction leading to the acquisition of a high school diploma or its equivalent”). Wis Stats. § 767.511(4). Termination of child support when the child “ages out,” however, does not happen automatically. Sometimes the county Child Support Agency contacts the parents and then moves to terminate child support. But ultimately, the burden is on the parents to make sure child support terminates at the appropriate time. If the Child Support Agency does not act on your behalf, you may need to file a motion and obtain a court order terminating child support.

If you pay child support and your child is nearing the age when your obligation to pay child support ends, pay attention to your case. Contact your attorney or your county Child Support Agency to ensure that your child support does not continue to accrue after your obligation to pay support has ended. If you miss the termination date and over-pay child support, you may be able to recoup the overpayment by filing a motion and asking the circuit court to order repayment. But this is a time-consuming and potentially expensive remedy that is best avoided by ensuring that your child support terminates when it should.

If you have more than one child, it may be in your interest to seek modification of child support as each child approaches age 18/high school graduation. Before you do so, though, calculate your prospective child support obligation based upon the parties’ current financial circumstances to be sure the amount of child support you pay will decrease. For example, if your income has increased significantly since entry of the previous child support order, a recalculation of child support may actually increase your support obligation, even though you will be paying support for fewer children.

Maybe you entered a marital property agreement (prenup) prior to your marriage, and now that you are contemplating divorce, you assume there is no point in discussing division of property because the prenup’s provisions will control. Or maybe you are considering signing a prenup as an iron-clad guarantee that if you ever divorce, property will be divided as you wish.

In either case, think again. Yes, in Wisconsin, prenup provisions concerning division of property are presumed to be valid and enforceable pursuant to the divorce statutes. Still, there are many possible grounds for challenging a prenup and having it thrown out.

Challenges to the property division provisions of a prenup are analyzed under Button v. Button, 131 Wis.2d 84 (1986), and cases applying Button. In summary, Button provides that a prenup may be vulnerable to challenge if the parties did not make full financial disclosure to each other before signing the prenup and entering the marriage. It may be vulnerable to challenge if one spouse did not have a meaningful choice whether to enter the agreement, considering factors such as adequate time to evaluate the agreement, advice of independent counsel, and comprehension of the agreement. It may be vulnerable to challenge if it was unfair to one of the parties based upon their circumstances at the time it was signed, or if it is unfair to one of the parties at the time of divorce due to unforeseeable changed circumstances. Under Button, a prenup will be thrown out if a court finds that it fails on any one of these points.

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Late last year we blogged about our continuing efforts to uncover accurate income information for former spouses/partners despite their efforts to conceal their income or assets. The February 2013 Newsletter from Tracy Coenen and Sequence Forensic Accounting contains a timely discussion of this topic, titled Divorce Financial Analysis: Disappearing Income and Asset Values. Ms. Coenen provides an accounting perspective on approaches and techniques for developing an accurate financial picture despite a spouse/partner’s lack of cooperation or active efforts to obstruct or hide assets or income. Read her article at:

http://www.sequenceinc.com/fraudfiles/2013/02/divorce-financial-analysis-disappearing-income-and-asset-values/

Throughout your legal representation, it is imperative that you respond to your attorney in a timely manner when information is requested. Most often a hearing date is coming up and we must adhere to court deadlines to exchange documentation and provide it to the opposing party. By responding on time to your attorney and providing the necessary documentation, you will save money. Repeated efforts to track clients down or get the information needed from other sources probably will show up on your bill one way or another.

But most importantly, it will help your case. When attorneys do not get timely information from clients, they simply cannot be the efficient, effective advocates they strive to be. They may not be able to present your case in the best light. They may alienate counsel or the court. They may have to delay things to your detriment. They may not be able to file the appropriate documents with the court because they do not have all the necessary information.

When you receive mail or email from your attorney, please open and read the mail immediately. You often will be requested to take some action such as gather documents, schedule appointments, sign papers, or pay court fees. It is crucial that you read all incoming mail and respond to the action requested. Advise your attorney of the best way to provide you with written materials, i.e. either by mail or email.

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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.

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On April 3, 2012, the Wisconsin Supreme Court issued its decision in May v. May. The attorneys at Wessel, Lehker & Fumelle represented Michael May in this post-judgment child support dispute, and have blogged about the case previously. The issue presented in May was whether agreements between parents to set a floor on child support are unenforceable because they are against public policy, just has agreements to set a ceiling on child support have been held unenforceable because they are against public policy. See previous posts in this blog for further explanation of the issue.

In an opinion that has further muddied these already murky waters, the Supreme Court affirmed the trial court’s decision to enforce the child support agreement. The Court held that the Mays’ agreement did not violate public policy because “the circuit court retains its equitable power to consider circumstances in existence when the stipulation was challenged that were unforeseen by the parties when they entered into the agreement if those circumstances adversely affect the best interests of the children.” The Court flatly ignored a central issue: That in a shared-placement case, the financial resources in both homes affects the children’s best interests.

As Justice Bradley noted in her concurrence, the majority opinion “creates confusion rather than clarity.” It is small consolation that Justice Abrahamson’s dissent shows a clear understanding of the issues. Abrahamson states that the parties should not have “the ability to stipulate to a truly unmodifiable child support floor. This result is necessary because freedom of contract cannot take precedence over the best interests of the child.[fn2] While it is more frequently the case that raising the amount of child support would be in the child’s best interests, situations could arise in which lowering the amount would be in the child’s best interests because of fluctuations in the parents’ income levels.”

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Last week I attended the thirty-sixth annual conference of the Wisconsin Inter-Professional Committee on Divorce. One full day was devoted to the topic of the voice of the child in custody and placement disputes. Wisconsin Statutes provide that the “wishes of the child” is a specific factor for the court to consider. See Wis. Stats. Sec. 767.41(5).

But what does that mean in practice? How much weight should the child’s wishes be given? And how can the child’s wishes be accurately ascertained in the fraught environment of a pending court action?

A pending Wisconsin Court of Appeals case explores these issues in the context of a post-judgment placement modification motion. Wessel, Lehker & Fumelle argued in that appeal that it was error for the trial court to base its placement decision exclusively on the child’s preference. Read our briefs here. Watch this blog for updates.

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If you’re looking for a Wisconsin court’s assistance with enforcing an order from another state, one trap to be wary of is the differing registration provisions for enforcement of support orders vs. enforcement of custody and placement orders.

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) sets forth at Wis. Stat. § 822.35 the procedure for registering an order for placement and custody. The Uniform Interstate Family Support Act (UIFSA) sets forth at Wis. Stat. § 769.601 – 608 the procedure for registering an order for support. Both statutes specify the registration procedures, the steps that the registering court must take to provide notice, and the procedures and standards for contesting registration. While the basic procedures are similar, there are differences, and registering an order for purposes of one of the statutes will not suffice for registering an order for purposes of the other.

Contact the attorneys at Wessel, Lehker & Fumelle for assistance with these complex statutes.

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