Wisconsin Family Lawyer Blog

November 5, 2010

Wisconsin Property Division: What About Property Brought to the Marriage?

A common mis-perception about Wisconsin divorce law is the belief that the property, cash, and debts you owned before your marriage remain your separate property when you divorce, or are automatically awarded to you in the divorce. In fact, the property division section of the Wisconsin divorce laws, Wisconsin Statutes Section 767.61, states that all property acquired by either spouse before or during the marriage goes into the pot to be divided between the parties, either by the judge or by the parties’ agreement, at their divorce.

The statute does provide for two exceptions to this rule. (1) Any gifts of property or money you received either before or during your marriage remain your separate property, not subject to division in the divorce. This gift exception does not apply, however, to gifts you received from your spouse, which are included as property to be divided at divorce. (2) Any funds or property you received “by reason of the death of another” person remains your separate property, not subject to division in the divorce. This exception includes life insurance proceeds, inheritances, retirement benefits, etc. Under a “hardship” provision of the Wisconsin divorce laws, if the court finds that allowing you to keep your gifts and inheritances will create a hardship for your spouse or your children, the court will include your gifts and inheritances as property subject to division.

While these provisions are relatively straightforward, complications can arise. What if you inherited property, but then converted it to stocks held in your name alone? What if you received a gift of cash, and then used it as a down-payment on a home jointly titled with your spouse? What if your spouse inherited a cottage, and then you contributed materials and labor to fix it up? What constitutes a “hardship?” These sorts of issues have few clear-cut answers and often lead to litigation.

October 29, 2010

Considering the Wishes of A Child in Physical Placement Disputes in Wisconsin

Wessel, Lehker & Fumelle Inc.

Perhaps the most common question I have been asked as a Wisconsin family law attorney is “at what age may a child decide with whom he or she will reside.” My answer has always been the same: One may choose where and with whom he or she will live at age 18.

There seems to be a strong rumor running through the public that at a certain age, most commonly alleged to be 14 years, a child may actually decide which parent he wants to reside with. In reality, nothing could be further from the truth. When parents dispute the physical placement of a child, ultimately the court may be called upon to decide where and with whom that child will live and what periods of placement the child will spend with the other parent. The court does not make this decision in a vacuum. Rather, Sec. 767.41, Wis. Stats., governs decisions concerning custody and physical placement of children. Specifically, Sec. 767.41(5) requires the court to consider “all facts relevant to the best interests of the child.” Moreover, that statute requires the court to consider a list of specific factors stated in Sec. 767.41(5).

Among the specific factors the court must consider is “the wishes of the child.” However, this factor is not given any greater weight than the other factors; nor is it the controlling factor. In reality, it is one among 16 factors that the court must consider.

October 29, 2010

Child Custody in Wisconsin During the Holidays

Wessel, Lehker & Fumelle Inc.

Wisconsin Family law attorneys often see a spike in business in November and December as parents confront problems during the holidays. Shared placement, holiday travel, increased child care expenses, traditions with extended family – many issues can arise at this emotionally charged time of year. The holidays are right around the corner; make sure now, before problems arise, that your legal documents are in order and you are fully prepared for shared parenting during the holidays.

Many of the problems that arise this time of year can be anticipated and prevented. Closely read what your legal documents have to say about the holidays; parents often don’t have a clear recollection of these provisions. If your legal documents are not completely clear regarding child placement arrangements during the holidays – or if you have no legal documents – start the discussions with your parenting partner well in advance of the holidays. Expect that both parents will need to compromise. If your holiday plans include travel, provide your parenting partner with a detailed itinerary. For steps to minimize conflict and set a positive example for your children during the holidays, see New York University Child Study Center’s article, “Divorce and the Holidays: Split Decison or Family Friendly Compromise?” Psychology Today’s “Managing Divorce and Children During the Holidays” offers holiday suggestions in the broader context of the co-parenting relationship. If you are worried about whether the holidays will run smoothly, this is a good time to schedule an appointment with your family law attorney.

If holidays frequently present problems in your family and you find yourself paying an annual December visit to a Wisconsin circuit court, you and your parenting partner may want to consider using a Parenting Coordinator. A Parenting Coordinator is a neutral “on-call” decision-maker who can help parents evaluate options and work on conflict resolution, and if necessary can make decisions for the parents. You can find more information on Parenting Coordinators at Wessel, Lehker & Fumelle.

October 13, 2010

Long Distance Child Placement – A Guide for Children Traveling Alone

Wessel, Lehker & Fumelle Inc.

The New York Times recently reported that over the past year several airlines in Europe and Asia have stopped seating unaccompanied children next to adults following a number of incidents of alleged sexual abuse. However, some have countered that the incidents of alleged abuse are uncommon and seating these children apart from an adult leaves them susceptible to injury in the event of an onboard emergency. Although no domestic airline appears to have changed its seating policies the issues surrounding unaccompanied children travelers is important given estimates that around 20 million children fly unaccompanied every year. This is especially crucial to parents who live far from each other and share physical placement of their children.

The scenario is quite common. For example, dad resides in Wisconsin and mom in New York. Their two children are placed with dad during the school year and with mom during part of winter break and for part of the summer. Round trip air fare for two children and a parent may be cost prohibitive so the parents agree that the children will travel alone. For many parents, placing a child alone on a flight is a worrisome experience. But with proper planning and follow through parents can make it work.

AirSafe.com has published general airline rules for parents planning to place their children on a flight unaccompanied. Policies for unaccompanied children vary by airline so it is essential that a parent confirm an airline’s policy before purchasing a ticket. The parent must ascertain the specific airline’s requirements as well as what it will and will not allow. For example, some airlines may allow unaccompanied children on non-stop flights only; require earlier check-in; require a higher minimum age if the child needs to change planes; or may charge an increased fare for an unaccompanied child. Most airlines require that a child be at least five years old and no more than twelve to qualify for unaccompanied child service. Teenagers typically fly on their own. The bottom line is that the parent must verify an airline’s policy before booking the flight.

October 12, 2010

Enforceable Wisconsin Child Custody Agreements – Just Ask Mel Gibson

Wessel, Lehker & Fumelle Inc.

The Mel Gibson – Oksana Grigorieva custody dispute made headlines again this week with the release of a custody agreement between Mel and Oksana. The agreement spelled out a detailed placement schedule, culminating in equal placement when the child reaches the age of three.

There was just one problem: The agreement apparently was never signed by a judge and entered as a court order. When Oksana changed her mind and disavowed the agreement, it became worthless.

In our Wisconsin family law practice at Wessel, Lehker, & Fumelle, we strongly encourage parents to work together to try to reach agreements regarding placement and custody of their children. Studies (and common sense) show that it is better for everyone concerned – and especially for the children – if parents can resolve these difficult issues themselves, rather than leaving them to a judge to decide.