Family Law FAQs
What is a Temporary Order?
In order to protect yourself, it is essential that once divorce proceedings have begun, an order should be entered to establish the duties and responsibilities of the parties while the divorce is pending and the parties are awaiting a final divorce judgment. Temporary orders will give you instructions on child custody, visitation, child support, spousal support, possession of the marital home, possession of specific vehicles, continuation of insurances and who is to pay which debts.
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 and child custody, visitation, and support are 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. Legal separation is an option for those who have religious beliefs that prohibit divorces or those who want financial protection from a spouse’s conduct (bad spending habits, dependency, selling of assets without consent) but are not ready to end the marriage itself.
Must a Judge approve an agreements of the parties, if both parties request it?
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.
What does a Court consider when deciding whether or not to award alimony or spousal support?
Judges have a lot of discretion in awarding alimony, now known as maintenance. How the facts are presented to the judge is critical. The Court considers a multitude of factors in making its decision, including; the length of the marriage, the age of the parties, the physical and emotional health of the parties, the division of property that the Court awarded, the educational level of each party at the time the parties married, the educational level of each party at the time of the divorce, the earning capacity of the party requesting the support, the length of absence from the job market, custodial responsibilities for the children over the course of the marriage, the time and expense necessary to acquire sufficient education or training to find appropriate employment, the standard of living the parties were accustomed to at the time the divorce was started, mutual agreements made between the parties before or during the marriage, and the contribution by one party to the education, training or increased earning power of the other. Support can be temporary, or permanent, again it is up to the Judge’s discretion.
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 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 divorce 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 can give insight into each party’s financial situation. In addition, each spouse may be deposed by the other spouse’s attorney. At the deposition, the questioned spouse must respond, under oath, to questions designed to gather all necessary information about their assets and income. If necessary, additional witnesses such as employers, bankers, or business partners may also 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. Appraisals are also utilized for determining values of assets.
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 value of the property property may be considered by the Court when it allocates division of the marital assets.
In addition, if property owned before the marriage is mixed (commingled) with 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 both spouses made deposits and withdrawals from that account, the amount in the account at the time of divorce will most likely 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 inherited funds, into 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 and which arrangement would be 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.
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 if the child has not yet graduated from high school, Wisconsin law requires that payments continue until the child graduates from high school (or an equivalent) 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.
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