Frequently Asked Questions for Family Law
What is a Temporary Order?
As soon as possible after a divorce is started, an order should be entered which establishes the duties and responsibilities of the parties during the pendency of the divorce, until the court can make a final divorce judgment. Typically, temporary orders will specify in detail not only child custody, visitation, child support, spousal support, and debt and asset division, but they will freeze assets so that they cannot be sold or devalued prior to the granting of the divorce. It is for your protection that a temporary order should be issued quickly.
What is the difference between a legal separation and a divorce?
A legal separation involves almost the identical issues and procedures as a divorce. Assets and debts are divided between the parties. Child custody, visitation, and support must be determined. The major difference is that, when a Judge issues his decree, it is not a decree of divorce, but of legal separation. The parties’ rights and obligations have been legally defined, but the parties are not divorced. However, if either party wants a divorce rather than agreeing to the legal separation, the Judge will issue a decree of divorce.
What happens if the Judge does not approve the agreements of the parties?
If the Judge finds that aspects of the marital settlement agreement are not fair or reasonable, or that they do not meet the requirements of Wisconsin law, the Judge may not approve the stipulation, and may require the parties to proceed with a contested divorce trial or in any other fashion he or she determines to be necessary and proper under the circumstances.
Under what circumstances will the court award alimony or spousal support?
The obligation of spouses to support each other does not necessarily terminate when they divorce. If the divorce will leave one spouse with very little income and the other with enough to contribute to the low-income spouse’s support, the court will usually award spousal support, at least temporarily.
Spousal support is often awarded in cases in which one spouse has put his or her education or career on hold in order to raise the parties’ children, while the other climbed the career ladder and achieved a higher income. In such cases, the support will often be temporary, providing income for the period of time that wil enable the recipient spouse to become self-supporting. This temporary, rehabilitative spousal support enables the spouse receiving it to further their education, re-establish themselves in a former career, or complete childrearing responsibilities. However, if one spouse is unable to get a good-paying job, perhaps due to health or advanced age, the support award may be permanent.
What kind of assets are divided in a divorce?
All marital or community property owned by the parties will either be divided based on the agreement of the parties or the judge’s decision on the division. Generally speaking, this includes most of the property the couple acquired during the marriage such as the marital home, second or vacation home, home furnishings and appliances, artwork, vehicles, investments, pensions and privately-owned businesses.
It is not always easy for a spouse to identify all of the assets that may be available for valuation and division, especially if the other spouse is less than forthcoming with the details. This is where a skilled lawyer can help. Through the legal process known as discovery, the parties’ attorneys exchange documents that reveal each party’s income, assets, and liabilities. Documents such as tax returns, personal financial statements, bank account statements, brokerage house records, real estate records, loan applications, and business records usually give a clear indication of each party’s financial situation. In addition, each spouse may be deposed by the other spouse’s attorney. At the deposition, the questioned spouse will respond, under oath, to questions designed to gather all necessary information about their assets and income. If necessary, additional parties such as employers, bankers, or business partners may be deposed. If these additional witnesses do not come forth willingly, their presence can be compelled through the issuance of a subpoena, which is an official legal document that commands their participation.
What happens to the property that each spouse owned before the marriage?
In general, the property each spouse owned before the marriage, as well as property given to or inherited by one spouse during the marriage, usually remains that spouse’s separate property. However, the property may be considered as part of the total marital estate in determining a fair allocation of the marital property.
In addition, if non-marital property is not kept separate from marital property, it may lose its separate characterization and become subject to division. For example, if one spouse had a bank account containing $5,000 before the marriage, but during the marriage the spouses both made deposits and withdrawals from that account, the amount in the account at the time of divorce or separation will probabaly be deemed marital property, to be divided between the husband and wife. If, on the other hand, the spouse with the $5,000 account deposits only other non-marital money, such as inheritances to them alone, in the account throughout the marriage, all the money in the account will probably remain with that spouse upon divorce. However, a house owned by one spouse prior to marriage presents unique issues since most often both spouses contribute to the home’s maintenance and mortgage payments during their marriage.
How does a court decide which parent will get custody of a child?
When the parents cannot agree on a custody arrangement, the court will make the decision for them, after considering the circumstances, with the overriding consideration being the child’s best interests. To make that determination, the court will consider, among other things:
• The wishes of the child and the parents;
• The relationship of the child with the parents, siblings, and any other person who may affect the child’s best interests;
• The amount and quality of time each parent has spent with the child in the past;
• The age of the child and the child’s developmental and educational needs;
• The child’s need for regular and meaningful periods of physical placement to provide predictability and stability for the child;
• The cooperation and communication between the parties and whether either party unreasonably refuses to cooperate and communicate with the other party;
• Whether there is evidence that a party engaged in abuse, has a criminal record, has neglected the child, or has a significant problem with alcohol or drug abuse; and
• Reports of appropriate professionals.
How do I obtain a child support order?
In most cases, a child support order is obtained when one or both parties petition the court for an order, file for legal separation, or file for divorce. Child support amounts in most cases are determined by the child support guidelines, if an agreement cannot be reached between the parties.
How do I end my child support obligations?
In Wisconsin, children are considered to be legal adults at the age of 18 years. Child support payments usually stop when a child reaches age 18; however, Wisconsin law requires that payments continue until the child graduates from high school or turns 19, whichever comes first. Child support orders do not automatically stop at the “given age.” Contact with the court must be made to terminate these payments. Special situations, such as the care, custody, and support of a disabled child, should be discussed with an attorney directly.