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You might hear of people who are legally separated and wonder how that is different from simply being divorced. In Wisconsin, legal separations and divorces share a similar legal process, but the end result is differently. For example, in both cases the parties have to file petitions with the court. The court cannot enter a judgment in either case until 120 days have passed since the joint petition was filed or the non-filing party was served.
In Wisconsin, the grounds for divorce is that the marriage is irretrievably broken, meaning there is not reason prospect of the parties being able to reconcile. However, in a legal separation, the parties need to allege and show that the marriage is only “broken”, which leaves the possibility that the parties may reconcile. After a court grants a judgment for legal separation the parties will remain legally married and can still enjoy certain benefits such as insurance. However, both parties would live separate lives. In both cases the court will make orders on child custody and placement. At any time during the legal separation the parties are able to reconcile. Additionally, the parties can mutually agree to convert the legal separation to a divorce proceeding. If one party wants to convert the legal separation to a divorce, however, they may not make that request until one year or after the entry of judgment of legal separation.
While there may be certain financial and medical benefits to pursing legal separation versus a divorce, it is important to seek counsel and review financial or medical policies.
If you have questions and want to learn more about legal separation or divorce, contact our office to schedule a consultation!
Because INCARCERATION IS NOT VOLUNTARY UNEMPLOYMENT, what happens to child support when payors are sent to jail? Wisconsin has recently made changes to the child support guidelines that includes added language to the administrative code, DCF 150, the code that covers child support, regarding this specific situation. What do these changes mean? It means that Incarcerated payors can now seek a modification to child support orders. In Wisconsin, the Wisconsin Supreme Court has long held that incarceration is just one factor to consider when determining whether to change a support order. By adding this language to DCF 150, Wisconsin is now prohibited from having a law that bars changes for incarcerated parents. In the past, states had laws that prevented incarcerated parents from seeking changes to child support orders. The federal government, however, has come in, and established federally required language that prohibits states from barring changes when parents are incarcerated. Now, by adding the language to DCF 150, Wisconsin is now compliant with federal requirements related to child support. These are complicated matters, and the point of me sharing this information with you is to make you aware of these matters and to help you explore the ideas and concepts. Thank you for reading. Can you do something for me so we can continue to make great content like this? Schedule a complimentary consultation to speak with us using Wisconsin Attorney | Random Lake, WI | Hawley, Kaufman & Kautzer S.C. Subscribe or follow HKK Law Offices on social media Like and share our social media posts Leave a comment on our social media posts
Legal custody disputes related to transgender children present special issues in family court. To help understand these types of disputes, it is important to know terminology, such as: Gender identity Gender expression Transgender Nonbinary Gender dysphoria Transition It is also important be aware of the people who could be relevant in legal custody disputes involving transgender youth, such as: Counselors Doctors Expert witnesses on transgender youth Examples of these types of disputes between parents: What if one parent is supportive of their child’s gender identity, but the other is not supportive? What if parents disagree as to whether and to what extent gender-affirming care should be provided to a child? What if one parent views a trans child’s gender expression as a mental health concern? These of disputes can generally be decided by a Wisconsin Court under the “best interest of the child standard.” The court can consider the positive or negative impact of gender-affirming health care, mental health care, counseling, and even medications and medical procedures, including hormone therapy, and surgical options. The court can also consider the existing mental health of the child, and whether there are any existing mental health disorders or the need for assessments or evaluations. The court will consider the conduct of the parents and the reasons for their support or rejection of the child’s gender identity or expression. These are complicated matters, and the point of me sharing this information with you is to make you aware of these matters and to help you explore the ideas and concepts. Thank you for reading. Can you do something for me so we can continue to make great content like this? Schedule a complimentary consultation to speak with us using Wisconsin Attorney | Random Lake, WI | Hawley, Kaufman & Kautzer S.C. Subscribe or follow HKK Law Offices on social media Like and share our social media posts Leave a comment on our social media posts
Wisconsin child support guidelines use the term “Serial-Family Parent.” A “Serial-family parent" means a parent with an existing legal obligation for child support who incurs an additional legal obligation for child support in a subsequent family because of a court order. Who is a serial-family parent? If you have a child with one parent, and then have another child with a different parent, you are a serial-family parent when it comes to considering how to set the support order for the second child. In Wisconsin, this means that when determining monthly income available for support for the second child, the court needs to know the dollar amount of the prior order, or the court needs to determine how much the parent would owe in the first case if support were determined today. Who is not a serial-family parent? If you have a child with one parent, and then have another child with a different parent, you are not a serial-family parent when it comes to considering how to set the support order for the first child In Wisconsin, this means that when determining monthly income available for support for the first child, the court is not instructed to know the dollar amount of the order for the second child, and the court does not need to determine how much the parent would owe in the second case if support were determined today. How is this fair? As always, there may be good reason for the court to deviate from the guidelines. The reasons to deviate are included in Wisconsin statutes, and one reason includes, the needs of any person, other than the child, whom either party is legally obligated to support. These are complicated matters, and the point of me sharing this information with you is to make you aware of these matters and to help you explore the ideas and concepts. Thank you for reading. Can you do something for me so we can continue to make great content like this? Schedule a complimentary consultation to speak with us using Wisconsin Attorney | Random Lake, WI | Hawley, Kaufman & Kautzer S.C. Subscribe or follow HKK Law Offices on social media Like and share our social media posts Leave a comment on our social media posts
In Wisconsin, your child has the right to deny you placement or visitation with your grandchild absent a court order requiring visitation or placement. You, as the grandparent, have the right to petition the state courts for relief. When determining whether placement or visitation is appropriate, a court will look at whether the grandparent will act in accordance with the parent’s wishes and if placement or visitation is in the best interests of the grandchild. Grandparents have a high burden of proof to obtain visitation. Courts will start with the presumption that the parent is acting in the child’s best interests and the burden is on the grandparent to overcome this presumption. Courts may look to what historical visitation schedule the grandparent exercised, the nature and length of relationship between grandparent and grandchild, the ability of the parties to cooperate and communicate, and any other factor that the court deems relevant. There are pros and cons in filing a petition for grandparent visitation and consulting with an attorney may be helpful to parties who think they will request relief.
Child support is generally ordered pursuant to the guidelines provided for in the governing statutes. Courts may deviate from these guidelines if it finds that the guidelines amount would be unfair. The court makes the fairness determination after evaluating the fifteen fairness factors. It is important for litigants to be prepared ahead of any request for deviation because the burden is on the requesting party to show that deviation is appropriate. Litigants often believe that child support is “just math,” but it can be much more complicated than that. An attorney can help parties look at all 15 factors, determine which ones apply, and make legal arguments on your behalf.
The Wisconsin Administrative Code pertaining to child support guidelines was updated effective January 1, 2024. The code chapter, specifically Department of Child and Families Chapter 150 (DCF 150), was updated to clarify when and how equivalent care should be applied when calculating child support. Child support is the obligation to support a child financially. Support is calculated by reviewing the payor’s gross income and comparing it to the amount of overnight placement that person has with the child. In some instances, a parent would be unable or unavailable to have overnight placement with their child. For example, a parent working third shift would not feasibly be able to have overnight placement. In that case and if a parent provided a certain amount of care during they day, they could be given credit for overnight placement. The purpose is to not penalize a parent for working third shift who provides meaningful care and support for their child but is unable to actually have overnight placement. That is called “Equivalent care”, which contemplated that periods of time a parent has with their child of at least 6 hours and during which a meal is provided could be considered equivalent of an overnight. Unfortunately, when applying equivalent care credit, courts were giving individuals duplicate credit for overnight placement and placement the day following but did not include an overnight. For example, If an individual had placement Saturday into Sunday, they would receive credit for Saturday overnight placement. Courts would often give that parent credit for an additional overnight if that parent had placement of the child until Sunday at 7:00 under the presumption that the child was provided meals and was with that parent nearly the entire day. The scenario was not consistent with the original intent for equivalent care credit. The update to DCF 150 removed the equivalent care definition and clarified its implementation within the code that is consistent with the original intent and purpose for equivalent care. The update specifically states that Duplicate credit, as described above, is not permitted. A parent cannot receive credit for equivalent care during a period that is within 24 hours of an overnight period for which they received a credit, unless the other parent is providing overnight care the night before and after. Child support calculations and placement arrangements are often among the most contentious issues in family law cases. If you find yourself lost and in need of direction, contact our Family Law Team today!
Unfortunately, there are times when one party withholds placement of a child. There a can be many reasons or motivations for a party to withhold placement from the other parent. Regardless of the reason, the party who has had their placement denied, withheld or interfered with may file a motion with the court to have the placement order enforced. As in most cases when a motion is filed, the moving party must allege facts to show that their placement has been denied or interfered with. Because this particular motion asserts that one parent has been denied placement with their child—and the parent-child relationship is of such great importance—the court is obligated to hold a hearing on the motion within 30 days of service, unless both parties agree to extend the time to hold a hearing. During the hearing, both parties present their case to the court. At the conclusion, the court must determine whether the party alleged to have denied placement to the other party did so intentionally and unreasonably. If the court finds both occurred, it must issue an order granting additional period of placement to replace those denied periods of placement and award the moving party a reasonable amount for the cost of the action. The court may make additional findings to include additional financial compensation to the moving party, find the responding party in contempt and issue an injunction requiring the responding part to strictly follow the placement order. It is possible for a court to find that placement was intentionally denied while determining that that denial was not unreasonable given the circumstances. If you have had periods of placement denied to you or have been accused of withholding placement from another parent, call one of the attorneys at Hawley, Kaufman & Kautzer, S.C. today!
A temporary order in a divorce proceeding is especially helpful when there are contested issues. Think of a temporary order as the “rules of the game” during a divorce proceeding. Aside from limited situations, the soonest a divorce judgment may be granted is 120 days after service or filing a joint petition. A lot can happen in that time and without any provisions or orders in place either or both parties may find themselves in at a disadvantage. A temporary order can establish a legal custody and physical placement arrangement for the parties to follow while the divorce is pending. That temporary order could end up being the final order of legal custody and placement, however, it is not uncommon for a final placement arrangement to be different from a temporary order. Either or both parties can request a temporary order hearing at which time the court would make an order regarding custody and placement. It is possible for the parties to enter into a stipulated agreement regarding custody or placement, which would be approved by the court and the parties would be obligated to follow the arrangement. A temporary order can also establish child support or maintenance from one party to the other. It can also direct either or both parties to continue pay debts or continue to maintain property resulting from the marriage. The order could also include a requirement that both parties maintain the children as beneficiaries on a health insurance policy. In some cases it may be appropriate to get an order awarding one person the right to and enjoyment of the martial residence, thereby requiring the other party to relocate. The order can also establish that debts incurred by either party after the divorce was filed is the debt of that individual rather than a marital debt. There are many good reasons to request hearing for a temporary and to obtain an order either by stipulation or following a contested hearing from the court. Some parties may want to proceed through a divorce amicably with their spouse, however, it could be detrimental to proceed without an order guiding the parties and setting the rules of the game. A temporary order is a vital way to protect yourself and interests while divorce is pending before the court. If you have questions on a new or pending divorce action or if you have more questions about a temporary order, contact our team today to schedule a free initial consultation!
In pending divorce proceedings, it is common for the parties to reach at least a partial agreement regarding physical placement, legal custody, child support, property division or maintenance while other matters remain unresolved. In that case, even though the parties prepare, sign and file that written agreement with the court, Wis. stat. 767.333 requires that the circuit court hold a hearing to review the agreement with the parties. At that hearing the court will ensure that the written agreement correctly conveys the agreement of both parties. Generally, the court will have each party provide brief testimony either elicited by the parties’ counsel or the court. It is necessary for the court to ensure that the parties express their understanding of the agreement and agree to be bound by the terms as it would be incorporated into the judgment. This section only applies to initial orders regarding physical placement, legal custody, child support, property division or maintenance. If the parties file a stipulation on these matters after a judgment had previously been entered, the court can simply approve the agreement without a hearing. If you have questions in your family law matter, make sure to contact Hawley, Kaufman & Kautzer today and schedule your free initial consultation!
A proceeding to terminate the parental rights (TPR) of one or both parents is initiated by preparing and filing a petition, summons and a notice. The petition is the document that identifies the people involved, including the child, and the grounds to terminate the right of one or both of the parents. Think of “grounds” as the reason for filing the petition. The summons and notice are the documents in which the parents and other parties are notified of the location, date and time of the hearing. It is important that the summons includes the potential consequences of failing to appear at the scheduled hearing. All parties must receive notice of those documents. The parents should be served in person at least seven days prior to the hearing. There are limited and specific circumstances under which other means of notifying the parties are acceptable, however. The initial hearing on the petition must be held within 30 days after the petitioner had been filed. At the initial hearing the court will determine whether a party will consent to the termination. The court should also advise the parents of their right to have an attorney represent them. Similar to criminal cases, a parent who has been found indigent could be eligible for representation by the public defender. The court will also inform the parents of their right to a jury trial and a substitution of judge. If the petition is contested—meaning one or both of the parties disagree with the request to terminate parental rights—the court shall set a trial within 45 days of that hearing, unless the court finds “good cause” to extend the time limits to schedule a hearing. The laws of civil procedures govern TPR proceedings, including the evidentiary phase of gathering discovery, conducting depositions and filing motions. The court will hear any timely filed motions prior to a trial. A TPR proceeding is broken into two phases: fact-finding and disposition. The fact-finding phase consists of a trial in which the fact finder determines what the “facts” are and whether they meet the burden of proof to show the grounds as alleged in the petition exist. If there is a court trial, the judge presides over the trial and is the “fact finder”. If there is a jury trial, “fact finder” consists of a jury of either 12 or 6 people. At the trial phase the fact finder only determines whether there are facts showing grounds exist to prove the petition. The fact finder does not decide whether the parental rights should be terminated. If following a trial, the fact finder determines that grounds exist to prove the petition, the case proceeds to a disposition hearing. At that hearing the judge determines whether it is in the child’s best interest that the parental rights of one or both of the parents be terminated. There are several factors that the court considers when making that decision. No one factor is given more weight than the others and the standard is the best interest of the child. The factors include: Likelihood of adoption after a TPR Age and health of the child at the time of disposition and at removal from home if applicable Whether the child has a substantial relationship with a parent or other family members and whether it would be harmful to sever those relationships Wishes of the child Duration of separation of parent from child Whether the child will enter into a more stable and permanent family relationship upon a TPR Regardless of the reasons for a termination of parental rights proceeding, these cases are very emotional and difficult for the parties involved. The consequences of a termination of parental rights are significant, but not always negative. In most instances these cases are initiated for good reason. Still, it takes an emotional toll all the parties involved. If you have questions or want to learn more about a TPR proceeding, call us today.
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Sheboygan Office: 608 North 6th Street, Sheboygan, WI 53081
Random Lake Office: 400 First Street, P.O. Box 485, Random Lake WI 53075
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