Divorce, Family & Elder Law Articles

My husband has visitation rights every other weekend with his daughter. The mother of the child has stopped letting him or his parents get her. The mother wants my husband to call her, but he won’t because she is always causing trouble. It’s so bad that his parents have been picking up his daughter on his weekends to avoid conflict with the mother.

The mother also is living with a man that she is not married to and according to the court order she shouldn't be. The mother is also talking about moving his daughter out of state so she can be with her live-in boyfriend. What rights does my husband have? He pays his child support on time. Does he have to call the mother?

"If your husband has a Wisconsin order and is not allowed the placement rights specified, that’s a violation of the court order and the court could find the mother in contempt," says Ellen Frantz, a family law attorney with Johns, Flaherty & Collins. "If needed, you can ask the family court to clarify who can pick up and drop off the child."

Nevertheless, Frantz recommends your husband try to communicate with the mother. If the conversation goes poorly, he should still be polite but end the call. "Courts are always interested in the attempts you’ve made to be the reasonable person," says Frantz.

Generally, court orders do not specify whether parents can have another person living in the house. Sometimes parents will agree to that language, making it part of the order, but courts don’t typically legislate morality issues. If your court order specifies no live-in partners, you can ask the court to intervene.

Finally, Wisconsin law prohibits parents from relocating with a child out of state or more than 150 miles away without permission from the other parent or a court order, says Frantz. "That doesn’t necessarily stop them from leaving, but they would be violating the law if they didn’t follow the process. Your husband would need to alert the court to his objections."

For more information about family law, contact Ellen Frantz at 608-784-5678

My husband and I are divorcing, and we both want sole custody of our only child. We aren’t able to resolve this ourselves, and it will probably end up in court. Since I’m the mother, isn’t it most likely I’ll win?

There was a time when women nearly always received custody of minor children in a divorce, but that day has passed, according to Maureen Kinney, a Johns, Flaherty & Collins attorney.

"Now the statutes are clear: age and sex are not determining factors for deciding custody," she said. "The presumption now is there will be joint custody." It is only if there is evidence of child abuse, spousal battery, or domestic abuse that sole custody may be given.

Parents sometimes confuse custody and placement, which are separate issues. Legal custody gives the right to make major decisions for the child regarding education, health care, religion, and his or her general welfare.

Placement has to do with how much time a child spends with each parent, during which a parent can make routine daily decisions concerning the youngster. The law now requires maximum time be spent with each parent, but that is not the same as equal placement. The court recognizes a child’s developmental or educational needs at different ages.

Another issue affecting physical placement is when one parent wants to move out of state or some distance from the home of the child. A judge may not prevent that parent from moving, but may give legal custody to the other parent.

Beyond issues of legal custody and placement, Kinney said she is saddened by power-play battles between parents. "The other parent may have been a jerk as a husband or a wife," she said, "but that doesn’t make him or her a bad parent."

Looking at the complicated schedules children of divorced parents sometimes have, Kinney said, "I wonder how we’d like it as adults."

For more information about family law in Wisconsin, contact Maureen Kinney at 608-784-5678

My daughter is 13 years old. I was never married to her biological father, but he is listed on the birth certificate and she has his last name. We haven't had contact with him for eight years. Recently, I booked a vacation to Mexico with my husband and daughter. She was issued a passport. I have since learned, that in order to get in and out of the country, she needs a notarized letter of consent from her father or a court document advising I have sole custody. I have no idea where to begin looking for her father as it has been so long. I would appreciate any advice you could give me on what I can do to get sole custody of my daughter and what I can do to get her to go on this vacation.

In Wisconsin, your best bet for quick help is to petition the family court to allow the child to go, according to family law attorney Ellen Frantz of Johns, Flaherty & Collins. The process will depend on whether you have an existing judgment of paternity, but generally will include mailing a notice to the biological father’s last known address or an address provided by family members if you have contact with them.

"If you’re interested in a more long-term solution, you may have grounds for a termination of parental rights," said Frantz. "In Wisconsin, a termination may be granted on grounds of abandonment because there’s been no contact or failure to assume parental responsibility. The court would not terminate the father’s parental rights unless your husband is willing to adopt your daughter."

Termination of parental rights requires a lengthier, more involved process because it is a serious action. Wisconsin law requires you to try to serve him personally at his last known address. If he cannot be served, you may need to publish a notice in the local newspaper covering that area. If the father still does not appear or object to the action, the court will grant the termination.

For more information about family law, contact Ellen Frantz at 608-784-5678.

by Brian G. Weber, Attorney, Johns, Flaherty & Collins

As the snow melts and the days warm, many people are turning their attention to summer vacation planning. It can be a big job requiring plenty of advance planning for many families. For parents who share custody of children, it can be an even bigger job that requires even more planning.

Probably because of the break in the usual routine that comes with them, holidays and summer vacations frequently are an impetus for families to renegotiate shared custody arrangements. These occasional renegotiations are important because the children’s needs are paramount — and subject to frequent change.

When working through custody issues initially, parents and courts base decisions primarily on what is best for the child and secondarily on what works for both parents. They often don’t anticipate changes in life circumstances, and over the years, both your child’s and your needs change.

What works best for an infant, for example, may not be what works best for a pre-schooler, and the needs of a fourth-grader will differ from those of a teen. Similarly, parents may move, marry other partners or change work schedules.

Obviously, communication and compromise will be key to successful negotiations. If you can work out something together, you’ll likely reach a far more desirable outcome than if a court or judge decides for you. As you enter these discussions, the following guidelines can help:

• Plan ahead. It may take weeks or months to negotiate a new arrangement, so whether it’s a special holiday or a special vacation, begin talking to your children’s other parent as soon as you anticipate a need for changes to the original order.
• Approach discussions amicably. Even though your relationship is over, you will always have a connection through your children. Custody discussions should focus on what’s best for your children; not on punishing the other parent for perceived or past injustices or rehashing old problems.
• Remember your children’s needs come first. Consider what’s best for your children and let that guide your discussion.
• Be flexible. Acknowledge that all parties involved in the negotiations have changing needs and schedules. By remaining open-minded and flexible, you may find an even better arrangement than what you’ve had in the past.
• Put your agreement in writing. When you reach a new arrangement, write it out in a modification agreement that can be added to your original orders. If you’re traveling internationally with your children, you’ll need to bring that document along.
• Understand that if you can’t reach an agreement together, someone else will do it for you. If you can’t work out custody issues on your own, your first step is to go to mediation. The mediator will help you work though the sticking points and hopefully reach a new agreement.

If mediation doesn’t work, you will need to go back to court. In that case, you cede decisions about your children’s schedules and your own to a court, reducing the likelihood that either parent will get what he or she wants.

When your children do spend time with you, be sure to facilitate and even encourage interaction with the other parent, especially if they’ll be spending an extended time apart. Also, don’t discuss disputes with or in front of the children, and don’t place children in a position where they have to choose sides. Following the golden rule will help you maintain a spirit of cooperation and teamwork with their other parent and enhance your odds for a more enjoyable vacation and co-parenting experience.

Reprinted with permission from Holmen Courier and Onalaska Community Life, May 19, 2006.

In the state of Wisconsin, what age does a child need to be to determine with which parent he or she lives full time?

It’s a general misconception that children of a certain age can decide with which parent they can live, according to family law attorney Maureen Kinney of Johns, Flaherty & Collins. "There is no age where children have an absolute say as to which parent they will live with."

Wisconsin statutes provide in case of divorce or paternity actions that custody and physical placement is based upon a series of factors that the court considers. There are 16 factors, but Kinney says the most common relate to

• the wishes of the parents;
• the wishes of the child which may be communicated by either the child or appropriate professionals such as a guardian ad litem or counselor;
• interaction of the child with the parent, siblings and other persons who may significantly affect the child’s best interests;
• the amount and quality of time that each parent has spent with the child in the past, any necessary changes to the parent’s custodial roles and any reasonable lifestyle changes that a parent proposes to make to be able to spend time with the child in the future; and
• the child’s age and developmental needs.

The court is directed to provide for regularly occurring and meaningful periods of physical placement between the child and the parent to provide predictability and stability for the child. Regular and meaningful does not necessarily mean a 50-50 split. Additionally, the court is not to prefer one parent over the other based on sex or race of the parent but is to consider all facts relevant to the best interests of the child.

Kinney noted these factors only come into play when parents are not able to reach agreement amongst themselves. "It’s almost always best when parents can work out these issues on their own."

For more information about family law in Wisconsin, contact Maureen Kinney at 608-784-5678

I heard there are new rules about how judges will determine how much child support has to be paid. I think that means I will pay less. How can I get my payments reduced?

It is true that the Wisconsin child support guidelines changed as of January 1st, but the new regulations are not sufficient reason to go back to court, according to Johns, Flaherty & Collins attorney Ellen Frantz, whose practice includes family law. There are a number of changes, but the one that will impact more families is the change in the threshold where the incomes of both parents are considered.

"The new rules alone don't give you a reason to modify child support because the standard requirement for a modification is a 'substantial change in circumstances,'" she said.

A substantial change would be considered something like a job loss, a substantial increase or decrease in income or a change in how often a child stays with one parent or another. The new rules do not constitute a substantial change in circumstances.

Perhaps most significant is the new shared-time formula. Under the old rules, child support calculations changed when the parent paying child support had the children for 31 percent or more of the overnights per year. At 41 percent of the overnights, both parents' incomes were considered for the first time.

Under the new rules, both parents' incomes are considered at 25 percent of the overnights. This change is based on the premise that parents have duplicated costs and it is more fair and realistic to look at both incomes when placement reaches 25 percent.

It is hoped that lowering the threshold will decrease arguing over an extra night or two because of the financial impact, rather than considering what's best for the children.

The new rules also give the court discretion to deviate from the percentage in high-income cases and in low-income cases where the payer may have insufficient income to pay court-ordered support.

In addition to substantial changes in circumstances, the new rules will be considered at annual or periodic reviews if required in child support agreements.

"If you do go in for a modification, the new rules will apply," Frantz said.

For more information about family law, contact Ellen Frantz at 608-784-5678

I am a father of three children, one from a prior marriage and two from my current marriage. I have been unemployed for almost a year. How do I get my child support reduced to zero so the arrearages won’t continue to increase?

Wisconsin law requires you to return to the family court commissioner or circuit court judge for your county for adjustments to child support payments, according to family law attorney Maureen Kinney. The commissioner or judge will want to know why you’re unemployed — whether you quit your job or were laid off — and will require you to demonstrate you’re actively seeking employment. While commissioners or judges may not eliminate your child support payments altogether while unemployed, they may at least reduce your payments until you find a job.

For more information about family law, contact Maureen Kinney at 608-784-5678

When a divorced parent decides to move out-of-state, child support payments rank along with custody and visitation at the top of concerns--especially for the parent receiving the child support payment.

Moving out of state does not relieve a parent of making his or her child support payments. “The payer has an obligation to keep paying,” said attorney Maureen Kinney.

In Wisconsin, employers collect 98 percent of child support payments from employees’ wages, sending the money directly to the Wisconsin Support Collections Trust Fund. Payments are then transferred electronically each month to the custodial parent’s account or debit card.

The trust fund, designed to ensure noncustodial parents pay their court-ordered support, was created as a part of the national welfare reform law in the Clinton Administration.

States that receive federal money for programs like food stamps were required to adopt the Uniform Reciprocal Enforcement Of Support Act, which requires states to enforce each other’s court orders.

"When the payer changes employment, the old employer stops withholding money,” she said. “It is the payer’s responsibility to notify a new employer and to begin withholding even when moving out of state. If the new employer does not know about the wage assignment, he or she will not know to send the money to the fund. But that doesn’t mean the paying parent no longer owes it.”

The local child support agency pursues collection from parents delinquent on their child support obligations whether in Wisconsin or another state. The states are supposed to cooperate and most do so, knowing that they will have the same need to track down money from parents who have moved elsewhere.

Some states are more cooperative than others in working with another state. But in even the most helpful state, “It takes time to get that money from parents in other states,” Kinney said.

Interest is charged for delinquent payments at 1 percent a month or 12 percent a year. “Still, accumulating interest charges don’t help the kids,” she said.

For more information on collecting child support in Wisconsin, contact Maureen Kinney at 608-784-5678

I was just laid off from my job, but my ex is still demanding the same level of child support. I just don't have it. Do I have to keep paying?

Just because you lose your job or sustain an injury that keeps you from working, don’t assume the amount you pay in child support will automatically be reduced.

“Even with a layoff, your child support continues to accumulate at the higher rate,” said attorney Maureen Kinney. “You need to do something to stop that. It is not automatic because you are laid off.”

In Wisconsin, child support is based on the number of children in the family. The noncustodial parent pays 17 percent of his or her income for one child; 25 percent for two; 29 percent for three and 31 percent for four.

Employers send the money from paychecks to the Wisconsin Support Trust Fund, the entity responsible for monitoring and collecting the money. The other parent receives that money via an automatic transfer to his or her checking account or debit card.

If you are laid off for a legitimate reason or you are injured, you must complete a Certificate of Change, which is available in La Crosse County at the Child Support Agency in the Administrative Center. You don’t have to go to court if you’re injured or the layoff was not your fault.

Every 30 days, however, you must return the agency to provide proof that you are not working but are looking for a job. “You must prove that you have made five job searches a week or your full obligation for child support may be reinstated,” Kinney said.

It’s a different story if you have been fired for cause, meaning you have done something wrong. “Without a legitimate reason for not having a job, you have to go before the family court commissioner to get your payment changed,” she said.

Not paying child support is costly. The money you owe accumulates with interest at 12 percent a year.

“It’s important that you go in and notify the support agency,” Kinney said. “Changes made in your payments are not retroactive to when you were laid off.”

My children’s mother and I are divorced, and she recently received a big promotion and raise at her work. Now I think I’m paying a disproportionate share of the child support. What can I do to get it adjusted? Should I be concerned about how any adjustments may affect my tax situation?

You may be able to have the amount you pay in child support reviewed if there has been a substantial change in circumstances, such as a significant change in income or a serious illness or disability, according to attorney Maureen Kinney.

A change in child support would not affect your income tax situation. Child support is not taxable income to the recipient or a deduction to the payer. This is in contrast to the situation with spousal maintenance which is a tax deduction to the payer and is taxed as income to the recipient.

If you do not have the children at least 25 percent of the overnights, then your child support obligation is a simple calculation – you pay 17 percent of your gross income for one child, 25 percent for two, 29 percent for three, 31 percent for four and 34 percent for five or more.

If you are a shared-time payer, which means you have them more than 25 percent of the overnights, the calculation formula includes a consideration of both of your incomes and the percentage of overnights you each have them.

Assuming you each have the children an equal amount of time, an increase in income by the mother would have an impact on the formula. Depending on the size of the raise, you could end up getting a payment from her, or at least a reduction in your payment.

If you are a shared-time payer, then you also have the responsibility for costs of clothing, food and other expenses while the children are in your care. In addition, you would split such costs as daycare, tuition, school lunches and extracurricular activities based on the percentage of time that the children are with you, such as 50/50 or 60/40.

For more information about family law in Wisconsin, contact Maureen Kinney at 608-784-5678

by Ellen M. Frantz, Attorney, Johns, Flaherty & Collins

The number of unmarried couples living together increased tenfold between 1960 and 2000, according to the U.S. Census Bureau's most recent decennial report. At the time of that census, 11 million people were living with unmarried partners, including both same-sex and different-sex couples.

Though it's not the way many couples choose to view their relationships, all of them will end eventually, through death if not through break-up.

Unlike married spouses, unmarried couples do not enter an automatic contract when they begin a committed relationship with one another. If they want to establish what will happen to their property (and/or debt) when they separate or one partner dies, they must develop their own rules.

A living together contract shares a lot in common with a prenuptial agreement in that both spell out how couples will handle the financial aspects of their relationships. They are especially helpful for couples who have significant assets, who buy property together or for couples where one or both partners have significant debt.

Courts are prepared to get involved in the division of assets among unmarried partners, but living together contracts can help couples make those decisions themselves while also avoiding expensive court costs later. They also help many couples avoid future problems by talking through potentially divisive issues, such as budgeting and spending, at the relationship's outset.

Living together contracts can be as comprehensive or as specific as the couple needs. Some couples are only concerned with real property issues and can meet their needs with a joint tenancy agreement. Others may have more complex issues, especially if they are accumulating property or debt.

In these cases, couples may want to consider clauses regarding property owned before the relationship, property received by gift or inheritance during the relationship and property purchased during the relationship. They may also consider provisions for household expenses or debt both during the relationship and at its conclusion. Partners may want to do some estate planning, including financial and health care powers of attorney should a serious injury or illness occur to one or the relationship end upon the death of one of the partners.

It's also a good idea, whenever constructing a contract, to determine how you will resolve disagreements that may arise from it. You may include a provision for mediation or binding arbitration as a means to save court costs later.

If you and your partner ultimately decide to marry, you should consider replacing your cohabitation agreement with a prenuptial agreement. Prenuptial agreements have different requirements to be considered legally binding.

In any event, it's wise to sit down together to flush out the details of your partnership before moving in together. A qualified family law attorney can help you look at your objectives and the best means for accomplishing them.

Reprinted with permission from Holmen Courier and Onalaska Community Life, August 4, 2006

Many parents today remember a time when the 10 p.m. news began with a question for viewers: “It’s 10 p.m. Do you know where your child is?” 

It’s a good question when you consider what often happens at night: vandalism, underage drinking, drive-by shootings. That’s why more than 500 U.S. cities, including La Crosse, Wis., have curfew laws on the books.

Curfew laws are ostensibly designed to prevent crime, though there’s no definitive research to demonstrate that they do so. Many believe their real value is in giving law enforcement officers the ability to stop and question teens about what they may be doing in the middle of the night. If teens don’t have a legitimate reason for being out and about, officers then can take some action to get kids home.

In any case, it is a law currently on the local books, and if you have children and want to avoid penalties, you need to understand it. You’ll find slight differences among municipalities in the region; here is how it works in La Crosse.

For ages 15 to 17, curfew begins at 11 p.m. Sunday through Thursday. On Friday and Saturday, it’s 12:30 a.m. During summer months (defined as June 1 through August 31), it’s 12:30 a.m. all week.

For ages 12 to 14, curfew begins at 10 p.m. Sunday through Thursday. On Friday and Saturday, it’s 11 p.m. During the summer, curfew begins at 11 p.m. all week.

For ages 11 and under, curfew is at 10 p.m. at all times.

Exceptions are made in certain situations, including when kids are:

• running an emergency errand for their parents;
• working or traveling home from work;
• are returning home by the most direct route from another private home;
• going to or from school activities;
• are with a parent, guardian or other adult having legal custody.

If your child is found violating curfew laws, police will write a citation carrying a penalty of $101. To contest a citation or the fine in La Crosse, families go before the municipal court. The judge there has some discretion and may order community service in lieu of the fee.

In any case, when you consider the trouble that kids can encounter on the streets at night, whether through their own making or as innocent victims, adhering to curfew laws can give your child an added measure of safety—and you more peace of mind.

by Maureen L. Kinney, Attorney, Johns, Flaherty & Collins

While many families are working to return to a normal routine following the holidays, others are struggling to define a new routine. That’s because divorce filings often increase after the season, reflecting many families’ desire to stay together until the holidays are past.

When either married or unmarried couples with children separate, their chief concern typically is their children. They worry about how the changes will affect their children and about how much time they’ll get to spend with them. They want to know where the children will live and how much child support they’ll need to pay or be able to receive. They want to know how they can "win" custody of their children.

The key is to figure out how to help the children. Parents don’t win custody cases; custody cases are about helping children to survive.

There is a legal presumption that married couples who divorce will have joint custody, meaning they can’t make decisions about school, medical, religious and other issues for their children without both parents’ consent. For children born to unmarried parents, legal custody is with the mother but can be changed by the court or agreement to joint legal custody. That decision depends on the contact the father has had with the children. It can vary from very little contact to having lived with the children for long periods of time.

Once custody is determined, parents need to decide about placement, referring to the times when each parent will have the children in their care. Parents can find it difficult to make good placement decisions for their children because of anger or other difficult emotions that accompany breakups.

When couples aren’t able to work out custody and placement issues on their own, the family court commissioner determines a placement schedule that allows a child to spend meaningful periods of placement with each parent and that maximizes the amount of time a child may spend with each parent, taking into account geographic separation and accommodations for different households. That doesn’t mean the court will give parents equal time or an equal number of overnight visits.

Those decisions have more to do with how actively involved both parents have been in their child’s life prior to the breakup. If your work schedule or other circumstances have prevented you from spending as much time with your child as you would like, it’s best to change that situation before the divorce or paternity action begins. The family court commissioner tries to model what the parents have done during the partnership to minimize disruption for the child.

In determining child support amounts, the court relies on mathematical calculations provided by the Wisconsin Department of Workforce Development. One calculation applies to situations where one parent has fewer than 25 percent of the overnights. Once the parents share more of the overnights, a different calculation is used where both parents pay child support and the support is calculated according to how much income each parent has and how much time each spends with the child.

With placement and support issues, realistically, neither parent will get 100 percent of what he or she wishes, so compromise will be necessary. The third-party objective perspective of mediators can help parents communicate through these difficult negotiations. La Crosse County offers several programs to help parents work out plans that are best for the children and themselves.

Clearly, breaking up is a no-win situation. But parents who can separate the anger and sadness from discussions concerning their children come away with the best possible outcomes. The less the court is involved in making decisions for them and their families, the more control they have over their own — and their children’s — lives.

Reprinted with permission from Holmen Courier and Onalaska Community Life, February 16, 2007.

Spouses often think that debt the other spouse has incurred during marriage can’t affect them after a divorce. Not true. Creditors can look for repayment from both spouses after a divorce, even though one spouse has agreed to pay the bill. Creditors are not negatively affected by a divorce judgment.

“If only one spouse goes through bankruptcy, under Wisconsin’s marital property law there might be a nasty surprise for the other spouse. All of those bills could be dumped on that spouse,” said attorney Maureen Kinney. A spouse with higher earnings might be ineligible to discharge the debts in bankruptcy.

“If there are large unsecured debts or people have a mortgage on the home and there is more debt than the house is worth, we have to look at all of the assets and debts and the ability to repay them to make sure there are not unintended consequences relating to the way debt payments are allocated,” said Kinney.

by Brian G. Weber, Attorney, Johns, Flaherty & Collins

As if there isn’t enough to worry about when divorcing — child placement and support, maintenance, dividing assets and liabilities — you also need to think about insurance. In fact, insurance can be a key to determining equitable outcomes in all those other areas. 

For many couples, the most important insurance decisions surround three specific issues.

The first relates to health insurance. Divorce decrees typically require the party who has carried health insurance for the children to continue that coverage, but it’s not uncommon for both spouses to share the financial burden to do so. In most cases, it’s expected that each party will be responsible for his or her own health insurance coverage.

The second issue concerns child support and maintenance payments. In cases involving child support or maintenance, life insurance policies may be needed to ensure the support continues should the payer die. For maintenance, the beneficiary would be the ex-spouse; for child support, the parents should have estate planning done to make sure the children are taken care of.

Finally, life insurance policies may also be required to cover the family home. Oftentimes, couples delay selling the family residence until the children are grown, planning to sell the home at that later date and split the equity then. Again, a life insurance policy can guarantee payments continue in the event of either party’s death and ensure children can remain in the family home.

To make certain the party carrying the insurance keeps up on payments and maintains the policies, you may want to include stipulations in the divorce settlement requiring an annual proof of premiums payment and prohibiting borrowing against the policies.

An experienced family law attorney can help you determine your specific insurance needs in a divorce — while representing your other concerns as well.

Even if you are the primary wage earner in your marriage or the spouse who brought more to the marriage, you can expect assets—and debts—to be divided in a divorce.

“There is a presumption of dividing marital assets 50/50 and not just the positive assets, but also mortgages, loans and other debts,” said attorney Ellen Frantz. “The bottom line is that courts in most cases will divide property evenly.”

Some factors may be taken into consideration to alter the 50/50 presumption including the length of the marriage, property brought to the marriage, contributions each made to the marriage, age and health of the parties, and supporting a spouse while getting education that increased earning power.

Dividing property begins with a balance sheet of property and debts in the marriage, Frantz said. The valuation of property and other assets is based on fair market value, not what you think something is worth or its original cost.

“Most of us put a high value on things in our house, but even if you purchased a couch for $1000, it may not be worth more than $100 at auction,” Frantz said.

Gifts or inheritances that came to one spouse from a third party are excluded from marital property and generally not divisible.

“If a gift to one spouse sits in an account, is titled only in that spouse’s name, and grows through no effort of the other spouse, it is likely to be excluded from the marital property,” Frantz said.

“But if that money was used as a down payment on a marital home or was put into a joint account, it likely will be considered as having been converted to marital property.”

What surprises many in a divorce is that retirement accounts are divided even if only one person worked outside the home. “Retirement accounts are marital assets,” Frantz said. “The law recognizes the value of what both parties did during the marriage, not just the financial contributions that were made by one or the other spouse.” 

For people who divorced last year or who are in the midst of divorcing now, taxes are yet another of the many details to be negotiated. And with tax day just around the corner, now is a good time to start.

But filing taxes when divorcing or recently divorced can be confusing. Do you file jointly? Do you file as a married couple? Who claims the kids? Here’s a primer to explain the basics.

For people who divorced last year:

• Your filing status is determined by your status on the last day of the year for which you’re filing. If you were divorced as of Dec. 31, then you must file singly. If you were still married on Dec. 31, then you must file as married, filing either jointly or separately.
• Wisconsin is a community property state. If you were divorced in 2010, unless you opted out through a reclassification of income, both partners do a tax return as if still married up to the date of the divorce. This requires an exchange of information as to both incomes, withholding, deductions, etc. After the date of the divorce, each party reports his or her own income, withholding, deductions, etc.
• Child support is not income to the person receiving it, nor is it deductible by the person paying it.
• Maintenance (also called alimony or spousal support) is income to the person receiving it and a deduction for the person paying it.
• In most divorces, the marital settlement agreement or divorce judgment includes a provision (previously determined by the couple or by the court) indicating which party may take exemptions for dependent children. If this was not included, IRS rules will determine who gets the exemption. Those rules indicate that the custodial parent (the parent with whom the child spends the most number of nights during the year) may claim the exemption. If parents share equal custody, the custodial parent is the one with the higher adjusted gross income.

For couples now divorcing:

• Tax decisions are best made when developing your temporary order. You can indicate there how the returns will be filed, who will prepare them, who pays for the preparation, what happens to a refund, if there is one, or how to handle taxes due if needed.
• In most cases, it’s advantageous to file jointly, an option since you were still married on Dec. 31 last year. That way, you can claim exemptions for all dependent children on one return to maximize your refund. In some cases it may be worthwhile to also run the tax returns married filing separately to see if that results in a higher tax refund.
• While a divorce is pending, income tax refunds are considered a marital asset and if spent by one party without the consent of the other or order of the court, will need to be accounted for when marital property is divided.

An experienced family law attorney can help divorcing couples prepare for and navigate these decisions, assuring optimal outcomes. You can also find more information in IRS Publication 504—Divorced or Separated Individuals.

by Peder G. Arneson, Attorney, Johns, Flaherty & Collins

Estimates suggest that more than 2,500 couples divorce each day in the United States. While that represents a lot of heartache, it also represents a lot of headaches when it’s time to divide the household. And oftentimes couples find that the more the heartache, the bigger the headache.

That’s because decision-making can be difficult when emotions run high. It’s important to be able to think rationally about property division. If you can’t, you’ll have a third party — the courts — making those decisions for you.

Here are the basics you need to know.

If your spouse, however, sold property upon entering the marriage and you together used the proceeds of that sale for travel, home improvements or some other joint purpose, the court wouldn’t likely let your partner walk away empty-handed.

• Wisconsin is a community property state. That means all property, with limited exceptions by statute or prior agreement, is jointly owned by both partners. It also means that both partners are jointly responsible for debt.
• The filing date matters. Even though both parties are jointly responsible for marital debt until the time the divorce is finalized, courts will take note of debt accumulated between the filing date and the divorce date. In fact, the divorce filing includes a requirement that neither party incur debt or dispose of property until the divorce is final.
• Use doesn’t mean ownership. Wisconsin has a statutory 120-day waiting period before divorces can be finalized. During that time, couples will have rules (sometimes imposed by a family court-issued temporary order) concerning use of certain property. One partner may have use of the family home or use of the truck, but that’s “allocation of use,” not ownership.
• Exceptions apply. As with any rules, there are exceptions. One of the clearest exceptions to community property is inherited property. If one of the partners receives a gift through inheritance and never comingles it with marital property, it is not subject to division. For example, if you receive a $5,000 inheritance from a parent and use it as a down payment on a house you purchase with your spouse, it becomes marital property. If instead, you deposit the $5,000 into a separate account in your name and keep it there, it would typically remain your individual property.
• Short-term marriages are different. Though short-term is not well defined, couples married fewer than five years may be able to retain ownership of property they brought to the marriage. If you own your own home and bring a well-funded IRA to the marriage, for example, you may be able to retain ownership of that property after the divorce.
• Income is income; property is property. When it comes to property, the court will want to assure it was divided evenly. When it comes to income, however, the court will want to see that it is divided fairly. Income is relevant for issues of maintenance (alimony), debts and especially child support. Child support is set by an established formula based on the income of both parents. In determining maintenance and debt, courts will look at each partner’s income, self-sufficiency, age and financial condition, along with the couple’s standard of living during the marriage and other factors to attain fairness.
• If you can’t agree, the court will decide for you. Much like parents with squabbling siblings, family courts would rather see couples negotiate their own property settlements. But when you can’t, the court will intercede and decide for you. Clearly, it’s in your best interest to figure out what’s best for you.

When I divorced my husband, the property settlement called for the homestead property to become the sole property of my husband. He subsequently failed to get my name removed from the mortgage and is defaulting on the loan. The bank also refuses to remove my name even when I present them with the divorce decree and property settlement agreement. Can they do this? How can I get my name removed from this property before foreclosure?

When the bank agreed to finance your mortgage, they loaned the money to both of you, according to family law attorney Brian Weber. "You and your ex-husband cannot change the terms of that agreement without all the parties’ approval, including the bank. The only way to get your name removed from the mortgage, absent the bank’s approval, would have been for your ex-husband to take out a new loan. Because that didn’t happen, you still are responsible for any delinquencies or deficiencies on the loan."

If the bank forecloses on the property and obtains enough money in the sale to satisfy the outstanding balance, Weber said you will have a foreclosure on your credit record but you will not owe any money. If, however, the bank forecloses and the proceeds are not sufficient to satisfy the outstanding balance, you along with your ex-husband will still owe money to the bank.

In that event, the Wisconsin family court system may have some remedies. A family law attorney can help guide you through the process.

I recently got divorced and want to change my legal name back to my maiden name. What steps do I need to take?

Changing your name back after a divorce is easier than you think, according to attorney Ellen Frantz, whose practice includes family law.

During a divorce you can decide if you want to resume a former name," she said. "You just put it into the judgment paperwork that you will resume your former name."

While it usually applies to women who change their names after marriage – and divorce – the same rule applies to men. "It is a personal choice," Frantz said.

The actual change does not have to occur immediately. "Some decide to change right away and others wait until their children are grown," she said. You must notify Social Security, which will need a copy of your divorce judgment, to change your records.

If you decide after divorce that you want to go back to your birth name but did not have it in the judgment, Frantz said it may be possible to amend the divorce judgment to allow you to resume a former name.

If you choose to change your name for other reasons than marriage or divorce, you must go to court. You pay a court-filing fee, publish three legal notices in the newspaper and have a short hearing before a judge. If you want to change your name for reasons other than divorce or marriage but hold a professional license in Wisconsin (other than to teach in public schools) it is a little trickier. The licensing board must approve the name change to something other than what is on your license.

Children’s names also may be changed. If the child is under the age of 14, the change requires approval of both parents (or one if the other does not object after notice) or the surviving parent. If both are deceased or parental rights have been terminated, the petition to change the child’s name can be made by the legal guardian or a person with legal custody. After age 14, a child may decide for him or herself about a name change. No special requirements are needed to change a child’s name in an adoption situation as parental rights would have been terminated and the adopting parent(s) choose the new name for the child.

For more information, contact Ellen Frantz at 608-784-5678.

In a divorce case what does "Notice and Order for Administrative Dismissal with Parent Ed Issued" mean? And also, what does "Service: Summons and Petition on FCC" mean?

In family courts in this region (southwestern Wisconsin), cases are dismissed for two reasons. Either the parties have asked for it to be dismissed, or it has lingered for a long time with no action or response from any of the parties as to why, according to Johns, Flaherty & Collins family law attorney Maureen Kinney. The latter would be considered an administrative dismissal.

As to the summons and petition served to the family court commissioner (FCC), Kinney said Wisconsin courts require divorce summons and petitions to be filed in the office of the clerk of courts, with a copy served on the other party. "Because the family court commissioner is considered an adjunct of the court, filing with the court is considered to be the same as serving the family court commissioner," she said.

For more information on Wisconsin family law, contact Maureen Kinney at 608-784-5678.

I teach grade school and suspect a student’s mother is being abused by her live-in boyfriend. My suspicions became even stronger when she showed up for a parent-teacher conference with a black eye and broken wrist. What kinds of abuse should I be reporting and to whom? What am I obligated to report?

The simple answer is that you have no legal obligation to report abuse involving an adult. However, anyone who suspects abuse going on may report these concerns to authorities.

"You can always report if you think someone is being hurt, but you are not required to report abuse of an adult," said attorney Peder Arneson.

The law is different when it comes to children, however. "Any time you have a concern that a child is subject to abuse or neglect or has been threatened with abuse or neglect, it is your responsibility to call social services," Arneson said. "The Children’s Code portion of our Wisconsin statutes is very clear."

Under the code, state statutes specifically require educators to report neglect or abuse. Others with that responsibility include medical professionals (with some limited exceptions), mental health counselors, alcohol and other drug abuse professionals, police, law enforcement and first responders. With clergy frequently serving as counselors, it can be argued that they fall under this law although they are not specifically named.

The law also specifically states people who report abuse cannot be fired for contacting authorities with their suspicions

I recently discovered my 17-year-old son has been playing poker online for real money. Isn't that illegal? And who is liable for his losses?

The legality of online poker for any age person is becoming a much more common question, according to Brian Weber, an attorney with Johns, Flaherty & Collins.

"If you research this issue on the Internet, you will find a lot of debate over the answer," he said. "However, in Wisconsin, local district attorneys and the state attorney general's office have concluded that playing poker online is just as illegal - a misdemeanor under Wisconsin Statute - as it would be if a bet is made in person."

In terms of liability, there is no "line of credit" or debt that accumulates because an individual has to deposit money in an online account to play poker online. "If the losses were from funds that were sent by check or an automatic deposit from a bank account, your son would be responsible," Weber said.

While it may be possible to make a claim that those losses should be returned since your son was not of legal age to enter into a contract to play poker, it would be very difficult to pursue for a variety of reasons. "If the losses were on credit card transactions, you may be able to contest those charges based on your son not having the authority to make those charges," he said. "However, this is unlikely because most credit card companies do not accept charges from Internet gambling sites."

The bottom line is that anyone who places a bet in Wisconsin, whether in person or online, is guilty of a misdemeanor. "The liability for losses is a more complicated issue which should be discussed in more detail with a knowledgeable attorney," Weber said.

When one spouse is expected to need long-term care, divorce sometimes is considered a way to “protect” assets of the spouse living in the community. “Spouses can become concerned that their assets may be eaten up,” said attorney Maureen Kinney.

“They may be concerned about what the community spouse may be able to keep if the other person needs Medicaid to pay for a nursing home.” Without a divorce, the spouse of a person living in a nursing home is allowed to keep the home, household furnishings, car, his/her retirement account and up to approximately $110,000 in other assets. Any assets greater than the $110,000 would have to be spent down to qualify for government assistance to pay for the nursing home care.

In a divorce, expect half of the assets, including retirement accounts, to go to the spouse in long-term care. The funds of that spouse then would have to be spent down to $2,000 in order to qualify for medical assistance.

Many people just assume that in any divorce there will be alimony, but that line of thinking is as passé as the term 'alimony' itself.

In today’s statutes, alimony is referred to as maintenance. The philosophy is that maintenance is used in divorce to help both parties maintain as close to the same standard of living they had while married.

Still, a lot of myth surrounds the notion of maintenance. That’s dangerous for people contemplating a divorce because bad information can lead to bad decisions. False beliefs about alimony could lead someone to stay in a marriage because he doesn’t want to pay it for the rest of his life or, conversely, for someone to leave because of a false sense of security.

Here are the facts about maintenance.

Maintenance is not awarded in every divorce.

Estimates suggest maintenance is awarded in very few cases these days, possibly as few as 15 percent. Maintenance decisions are based on many factors, and oftentimes, couples will choose an unequal property division or increased child support in lieu of maintenance.

Maintenance is not permanent.

It’s very rare for people to pay maintenance to ex-spouses until the ex-spouse dies. Generally, courts will try to help the person with less income maintain a standard of living on their own for a specified number of years. The length of the marriage is an important factor in determining the duration of maintenance. The amount and length of time paid also depend on the number of children and other factors that may affect a person’s lifestyle and monetary requirements. It is also true that if the person receiving maintenance remarries, the maintenance ends.

Wives pay, too.

The belief that men are the ones always paying maintenance is a remnant from a different era when men were the providers and women were the homemakers. With more and more women in the workforce, wives often make more money than their husbands. Again, maintenance is about maintaining a standard of living, and equity may be achieved in a variety of other ways, outside maintenance payments.

Maintenance payments are tax-deductible.

Maintenance is considered income for the person who receives it, so that is the person who must pay income taxes on that money. That’s why taxes should be considered when determining maintenance. It could be that maintenance would push the recipient into a higher tax bracket, making it counterproductive for both parties.

Length of marriage matters, a lot.

For courts, the length of the marriage is the most significant factor in determining maintenance. It is almost never awarded in short-term marriages (marriages lasting fewer than 10 years), but after 20, time weighs heavily in maintenance decisions. Courts will also consider, for example, situations where one party stayed out of the workplace in order to support the other’s career or to rear children. Age, physical health, earning capacity and education levels of both parties are also factors.

It’s best for couples to decide for themselves.

With so many variables at play, including jurisdiction and personal discretion, it’s difficult to guess how a judge may rule when it comes to maintenance. Plus, that judge most likely has no first-hand knowledge of the intricacies of the couple’s lives. It’s almost always better for parting couples to reach their own agreements — agreements grounded in reality, not myth.

After three years of marriage and racking up thousands of dollars of credit card debt, my husband left me. Even though the debts are in his name, creditors now are calling me to collect. What are my obligations?

Unfortunately, under Wisconsin’s Marital Property Law, you are liable for that debt even if it was incurred by your spouse. Under the law, this debt is assumed to be "in the interest of the marriage" if it is incurred during the marriage.

"I can go into a bank and get a line of credit," said Maureen Kinney, a Johns, Flaherty & Collins attorney whose practice includes family law. "I get the line of credit, but my husband and I are both responsible for it ultimately."

Banks are supposed to send out "tattle-tale" notices, informing the other spouse that a loan has been incurred, but that often occurs after the fact. The loan already has been made or a new credit card issued. "The law is based on the scenario that spouses are supposed to talk about any borrowing they do," Kinney said. "Marriage is a financial partnership."

Sometimes, of course, the talk is meaningless. "A lot of times the person incurring the debt says, ‘I will pay for it,’" she added. "But if they don’t pay, the creditors will come back after both spouses. It can affect your credit rating."

On the positive side of the marital property law, all property and assets acquired during a marriage are presumed to be marital property. That means all marital property belongs equally to both spouses, unless you’ve both signed an agreement that indicates something different.

Since the law presumes that debts were incurred for the benefit of the marriage, it is difficult to convince a judge that the debt is not your responsibility.

To protect yourself, Kinney said you should cancel all joint credit cards at the start of a divorce action so the other spouse cannot go out and use the available credit.

I recently got divorced and want to change my legal name back to my maiden name. What steps do I need to take?

Changing your name back after a divorce is easier than you think, according to attorney Ellen Frantz, whose practice includes family law.

During a divorce you can decide if you want to resume a former name," she said. "You just put it into the judgment paperwork that you will resume your former name."

While it usually applies to women who change their names after marriage – and divorce – the same rule applies to men. "It is a personal choice," Frantz said.

The actual change does not have to occur immediately. "Some decide to change right away and others wait until their children are grown," she said. You must notify Social Security, which will need a copy of your divorce judgment, to change your records.

If you decide after divorce that you want to go back to your birth name but did not have it in the judgment, Frantz said it may be possible to amend the divorce judgment to allow you to resume a former name.

If you choose to change your name for other reasons than marriage or divorce, you must go to court. You pay a court-filing fee, publish three legal notices in the newspaper and have a short hearing before a judge. If you want to change your name for reasons other than divorce or marriage but hold a professional license in Wisconsin (other than to teach in public schools) it is a little trickier. The licensing board must approve the name change to something other than what is on your license.

Children’s names also may be changed. If the child is under the age of 14, the change requires approval of both parents (or one if the other does not object after notice) or the surviving parent. If both are deceased or parental rights have been terminated, the petition to change the child’s name can be made by the legal guardian or a person with legal custody. After age 14, a child may decide for him or herself about a name change. No special requirements are needed to change a child’s name in an adoption situation as parental rights would have been terminated and the adopting parent(s) choose the new name for the child.

For more information, contact Ellen Frantz at 608-784-5678.

by Gregory S. Bonney, Attorney, Johns, Flaherty & Collins

People who favored Wisconsin's marriage amendment that passed with 59 percent of the public vote last month said the amendment would protect the institution of marriage and advance family values. Opponents said it would deny critical legal protections for couples in committed relationships. But the reality of what the amendment means for Wisconsin families will depend on what the courts say over the next several months and even years.

The first sentence of the amendment (formally titled Amendment to Wisconsin Constitution Reaffirming Marriage Definition and Prohibiting Status Substantially Similar to Marriage) is fairly straightforward. "Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state." With that sentence, Wisconsin law essentially remained the same because a marriage was already defined as "a legal partnership between two equal persons, a husband and a wife...."

It's the second sentence that introduces ambiguity: "A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state."

While the second sentence almost certainly bans unmarried partners (same-sex or opposite-sex) from entering into civil unions or comprehensive domestic partnerships, it's unclear exactly what constitutes an arrangement "substantially similar" to marriage.

With that additional wording, the amendment places current practices at risk, including domestic partner benefits offered by employers, domestic violence laws, cohabitation agreements, medical decision making, child-rearing arrangements and property rights, among others.

The constitutionality of the amendment is likely to be challenged in court. Article I, Section 1 of the Wisconsin Constitution, for example, states "All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness...."

Some may also argue that the amendment disfavors a certain class of people, making it vulnerable to equal protection arguments.

While these issues make their way through the courts, it is important that unmarried partners take every step possible to protect their interests and document their wishes in legal instruments. Unmarried couples need to prepare (or update) durable powers of attorney for their finances and healthcare powers of attorney. They also need to take steps to be sure wishes are carried out in the event of death. That may mean putting a partner's name on a bank account or naming him or her as a beneficiary in a will, on life insurance policies or retirement accounts.

Because of the amendment's potential impact on any relationship "similar to that of marriage," persons should revisit cohabitation, property ownership and other contractual agreements. By viewing those aspects of a domestic relationship more like a business partnership (and treating them as such in the contracts), there may be a better chance of assuring arrangements hold up in court — regardless of the legal status of the marriage amendment.

As the law currently stands, unmarried couples, even those who are deeply emotionally and financially committed to each other, may have no more legal protections than strangers. Without contractual agreements, property and decision-making rights automatically default to the next of kin, not a partner.

While last month's vote demonstrated that reality is unlikely to change any time soon, unmarried couples can assume some control with estate planning documents and partnership agreements. So for now, a legal paper trail that demonstrates wishes in explicit and repetitive detail is the best bet for protecting joint interests.

Reprinted with permission from Holmen Courier and Onalaska Community Life, January 2007.

Our neighbors' young children were running through our house and knocked over our $7,000 harp. We've priced repairs and it's going to cost $2,400 to return the harp to its original condition. Our neighbors are refusing to pay, saying it was our fault for leaving the harp in a precarious position. Do we have any legal recourse?

It's always frustrating when parents do not control their children, but the answer to whether the parents are financially responsible is not a simple one, according to attorney Cheryl Gill.

Wisconsin's parental liability for acts of minor children makes parents responsible for up to $5,000 in damages if there was willful, malicious or wanton behavior.

"A child who just ran through the house, who hasn't been warned and happens to slip and accidentally knock over the harp probably would not be considered willful, malicious or wanton," she said.

It would be a different story for a child who walked up to the harp and intentionally knocked it over. Also different would be a situation in which a child was repeatedly warned to be careful of the harp, paid no attention and the parents did nothing to stop him or her. Still, Gill said, "It's a hard line to define."

Incidentally, under common law, a parent could be liable if a minor child physically harms someone else. There is no limit on damages if the parents should have controlled the child's behavior but did not.

While parents ideally would have taken responsibility for their child's actions, many do not today. Therefore, you may need to go to Small Claims Court (the court for claims under $5,000) to force the parents to pay for the damaged harp, In Small Claims Court, claimants are encouraged to participate in mediation to resolve the claim rather than engaging in trial.

"In mediation neither side gets exactly what they want," Gill said. "But by compromising, both sides may save some money and may maintain their prior relationship."

For more information about parental liability laws, contact Cheryl Gill at 608-784-5678.

My question is about Wisconsin law pertaining to paternal rights when a never-married couple has a child and the mother wants to move the child out of state. In this case, the father is listed on the birth certificate and has taken an active (50/50) role in parenting and financial responsibility for the 2-year-old child. Is there anything the father can do to prevent the mother from uprooting his child from a close and caring family? Do grandparent’s rights exist in Wisconsin in a situation like this?

According to family law attorney Maureen Kinney, there is a Wisconsin statute that states that if the court grants periods of placement to more than one parent that the court must order the parents with legal custody and placement rights to provide to the other parent at least 60 days notice if he/she wants to move out of state or more than 150 miles away. The statute then sets up a procedure to follow regarding the parent who may want to object to the move and how to resolve the dilemma.

In this case there might not actually be a court order for paternity that gives both parents placement rights if the only legal document is the birth certificate. So this parent would need to petition the court to establish his/her placement rights and then activate this provision regarding the move. The non-moving parent can also ask to have the primary placement of the child transferred to him/her at this time if the other parent moves.

The objecting parent needs to move quickly before the parent and child move, said Kinney. Once the move happens it is difficult to unravel. He/she might not be able to prevent the move but there can be orders for specific periods of placement back in Wisconsin, and since the child is not in school they could be for longer periods of time.

Grandparent rights are very fact specific depending upon how much time the grandparent has spent with the child. For example, does the grandparent have a parent-like relationship with the child (grandparent raising the child)? If both parents are actively involved with the child usually the grandparents would see the grandchild when their child has placement time. Specific time just for the grandparent would depend on the facts, such as whether there is an estrangement now between the grandparents and their child so the grandparents can't see the grandchild on their child's time.

For more information about family law in Wisconsin, call Maureen Kinney at (608) 784-5678.

My ex-wife wants our son to be adopted by her live-in boyfriend. What is the best thing for me to do? Do I have to give up my parental rights?

In Wisconsin, the stepparent must be married to the birth parent in order to adopt, and in those instances, the parental rights of the other birth parent must first be terminated.

If your child’s mother marries her boyfriend and wants him to adopt your child, you must consent to the termination of parental rights before the new husband can adopt. It is called a stepparent adoption, and it does not affect the mother’s parental rights in any way. As a parent, she consents to the adoption of the child by her husband.

In determining the best thing to do, ask yourself whether your son sees you as the father or the other man as his father, and think about what is the best plan for the child. If there is a support order, the termination of your parental rights will terminate any child support due in the future, but it will not forgive any past support that is owing.

If your child’s mother remains unmarried, her boyfriend cannot adopt your son. And in most cases courts will not terminate your parental rights if there is no one to "stand in your shoes" legally with support and other obligations for the child. Occasionally, parental rights may be terminated by the courts without consent from the parent. If you are concerned your rights may be terminated against your wishes, you should consult with a qualified family law attorney.

For more information on family law in Wisconsin, contact Ellen Frantz at 608-784-5678.

by Maureen L. Kinney, Attorney, Johns, Flaherty & Collins

It’s an unfortunate reality that one in every two marriages will end in divorce. The rising number of second and subsequent marriages combined with the rising age of first-time brides and grooms means more people are bringing more assets and children into marriages than ever before.

If you or your betrothed have significant assets, debt or children, you may want to add a prenuptial (or marital) agreement to your wedding planning list.

Marital agreements are signed, notarized contracts that spell out how couples will handle the financial aspects of their marriages. They make sense for many couples, especially in Wisconsin, a marital property state where assets are generally divided equally in the event of a divorce. Marital agreements enable you to contract out of Wisconsin’s marital property law and establish your agreement as the governing document for your relationship.

Many couples are reluctant to broach the topic of prenuptial agreements because it’s not very romantic. They worry the discussion may suggest they don’t really trust each other and that they’re not truly making a lifetime commitment to each other.

But prenuptial agreements are actually sound estate planning tools. They deal not only with the possibility of divorce, but also the death of a spouse and the handling of assets during a marriage. They help assure your assets will go where you want upon the end of the marriage — whether through death or divorce — and they help couples talk through spending, budgeting and big financial decisions before they walk down the aisle.

Prenuptial agreements are usually less necessary for younger couples with no children and few assets. But they do make sense for people who have accumulated retirement accounts, homes, businesses or other assets they don’t want to share with their new spouse.

The agreements can also be helpful if you have children. Marital agreements allow you to carve out the property you want to leave to them. Otherwise, upon your death, half of your assets will automatically go to your spouse, even if you would rather they go to your children.

If one partner has a large amount of debt, perhaps a business owner who has guaranteed loans to the business, you may also want to have a marital agreement to assure the other spouse isn’t held liable in the event of divorce or the debtor’s death.

It’s important to note that if couples have a marital agreement protecting them from one another’s debt, they must show that document to creditors before loans are made. Otherwise, creditors have the legal right to assume both parties will share responsibility for repayment.

Some older couples may be concerned about assets in the event one becomes ill and requires a nursing home. Often, these couples will use marital agreements to secure their assets and agree to buy long-term care insurance. Then if one partner becomes ill, the insurance will pay the bills and a divorce will not be needed to protect the other’s assets.

A marital agreement can divide assets any way you like as long as the agreement is entered into fairly. That means the agreement must include a full financial disclosure for each of the parties, listing annual income, assets, debts and all other financial information. Without a full disclosure, the parties cannot know exactly what they’re agreeing to, and their marital agreement will probably be invalidated by the court. Marital agreements also cannot impoverish one of the spouses. In these cases, the court would modify the agreement.

It’s wise for both parties to have independent legal counsel to protect their competing interests and to fully explain the advantages and disadvantages of the agreement..

If you determine a marital agreement makes sense for you, it’s wise to start planning at least six months prior to the wedding. Procrastination leads to scrambling and potentially poor decisions. (It can also open the door for one party to argue later they were forced to sign the agreement.)

Approach the conversation understanding that open communication can actually strengthen your trust in each other and start your marriage off on a note of honesty, consideration and thoughtfulness.

Reprinted with permission from Holmen Courier and Onalaska Community Life, May 12, 2006.

by Maureen L. Kinney, Attorney, Johns, Flaherty & Collins

Social Security Disability Insurance (SSDI) is one of the largest federal programs providing benefits to people with disabilities. In fact, a 2006 report in the Journal of Economic Perspectives estimated 4.1 percent of people between the ages of 25 and 64 received SSDI benefits in 2005. That’s nearly twice the number from a decade earlier.

Still, about two out of every three SSDI claim applications are initially denied. If you’ve been disabled and are unable to work, understanding how the SSDI system works may make the difference in whether you receive benefits.

SSDI is an insurance program that you pay for, along with retirement benefits, through Social Security withholding on your paycheck. Like your retirement benefits, the amount available to you in the event of disability depends on how much you have paid into the program. It generally ranges from $300 to $1,800 per month. People with disabilities may earn up to $900 per month without losing their benefits, a figure that is adjusted annually.

To qualify as an insured, you must have paid in a base amount for a certain number of quarters (not necessarily consecutive), depending on your age. In addition, you must have a physical or mental condition severe enough to prevent you from performing substantial work of any kind for at least a year.

Benefits begin after five months of disability, but SSDI determinations can take up to two years if a hearing is required, so it’s important to apply as soon as you know you’re dealing with a significant disability.

Submitting a claim involves five steps, including the Social Security Administration (SSA) application, a work history report (detailing how the disability affects work you may be qualified to do), a daily living questionnaire (assessing your ability to engage in day-to-day activities), the names and addresses of all doctors and healthcare institutions that have treated you for the condition and the dates of treatment, and an authorization for release of information.

The SSA then will make an initial determination without ever meeting or speaking with you. If your claim is denied, you have nothing to lose by appealing, and almost half of SSDI denials are reversed favorably on appeal.

To appeal a decision, you must complete a one-page SSA form called a Request for Reconsideration. The form is included with the SSA’s written denial of benefits and must be submitted within 60 days of receipt. The form asks for basic information and includes a section where you may briefly state the reasons you consider the denial unfair. You can attach additional supporting material for the administrators’ consideration.

If you still are denied, you may request a hearing before an administrative law judge. This allows your case to be reviewed by a federal administrative law judge who is not affiliated with the SSA. The next step is to appeal to the Social Security National Appeals Council in Washington, D.C. If you still are denied benefits and believe the decision unjust, you may file a lawsuit in federal court.

Attorneys experienced in SSDI can be a great resource for people who are appealing decisions, especially when they reach the hearing stage. The most recent data available (from the Social Security Subcommittee of the House Ways and Means Committee) indicate that in 2000, the allowance rate for claimants with legal representation at the hearing level was 63.6 percent while the allowance for unrepresented claimants was 40.1 percent.

Realizing that people applying for disability benefits probably can’t afford legal counsel, most attorneys will take these cases on a contingency basis. Federal rules limit how much attorneys can earn on SSDI cases to the lesser of 25 percent of the past-due benefits or $5,300. Your local SSA office can provide a list of qualified attorneys.

If you are unable to obtain SSDI benefits, take heart in knowing that there is additional help available through state and local agencies. You may be able to get money for vocational rehabilitation and job training. You may also qualify for medical and other public assistance programs. At the very least, you can find support for the journey.

Reprinted with permission from Holmen Courier and Onalaska Community Life, May 11, 2007.

The mother of my children signed away her parental rights 11 years ago when we got divorced. Because my children were so young at the time, I continued to let her see them whenever she wanted. During a recent visit with my daughter, my ex-wife put her in a behavioral hospital in another state and is refusing to return her to me. Do I have to continue to let their mother see my children if I feel my kids will not be returned to me?

If parental rights have been terminated, the mother has no legal right to the children, according to Johns, Flaherty & Collins family law attorney Ellen Frantz. In Wisconsin, a termination of parental rights is a separate legal action from a divorce, and unless the other party agrees, rights cannot be terminated unless a judge or jury finds statutory grounds.

A termination order completely and finally severs all rights and responsibilities, so there is no obligation to provide financial support and no right to even see the children. These orders are not the same as having a provision in a divorce that the other parent will not seek time, placement or visitation with the children.

If there was no formal termination of parental rights, you may want to consult a family law attorney for advice concerning how to provide some structure and safety for the children if or when they do have contact with their mother in the future and to clarify medical decision-making.

For more information on family law in Wisconsin, contact Ellen Frantz at 608-784-5678.

My former girlfriend has full custody of our son, and doesn’t want to give me visitation rights. We’ve always tried to handle everything without lawyers. What can I do? I’m paying child support. I should get to see my son.

This is not an uncommon situation, according to Johns, Flaherty & Collins lawyer Peder Arneson, whose practice includes family law.

“The first thing to do is to learn whether you have been adjudicated as the legal father. This could have occurred as the result of a document that the mother signed in the hospital or through a formal paternity action,” Arneson said.

Once legal paternity has been established, parents are often given joint legal custody and time with the child. If the parents cannot agree on visitation, it often goes to court. People often confuse legal custody and rights of physical placement. Custody is the right to make major decisions about the child, such as elective surgery. Physical placement refers to where a child lives, visitation, and day-to-day decision-making regarding the child..

“What is usually most important to both parents is placement," she said. Placement issues can be difficult, depending upon the history of the couple. “Sometimes the relationship between the parents is very limited,” Arneson said. “They may have only dated for a short while and have broken up. They may not really know each other, be able to stand each other or trust each other.”

If one parent is not complying with a court order about where the child will live and placement rights, that parent can be taken to court. Courts can find a parent in contempt of its orders, with jail and a fine among possible penalties.

What may help parents is Family Resources’ eight-week co-parenting class. It includes basic child care education and techniques for two people who may essentially be strangers to work together.

In La Crosse County, the Family Court Commissioner requires couples in this situation to attend the course together and come up with a plan about how they will co-parent the child.

“Parents need to realize that even though they may never have had a good relationship, a long relationship or even any relationship, both parents have legal rights regarding their relationship with their child. The law recognizes that children do best if they can have strong, healthy relationships with both parents, and courts will do what they can to foster such relationships,” Arneson said.

For more information about family law, contact Peder Arneson at 608-784-5678.