Presentation on theme: "Navigating Through Divorce & Post-Judgment Issues Jaskolski & Jaskolski, S.C. 3573 S. 108 th St. Greenfield, WI 53228 www.jaskolskilaw.com 414-321-6111."— Presentation transcript:
Navigating Through Divorce & Post-Judgment Issues Jaskolski & Jaskolski, S.C S. 108 th St. Greenfield, WI (P) (F) Attorney James K. Jaskolski Attorney Ronald J. Jaskolski Attorney Lindsey A. Kraig
The Divorce Procedure Generally a 5-Step Process: – Step 1: Starting the Divorce Action – Step 2: Working Out Temporary Orders – Step 3: Conducting Discovery – Step 4: Negotiating a Settlement – Step 5: Completing the Case/Preparing for Trial
Step 1: Starting the Divorce Action Husband or Wife must file paperwork – Petition = states the grounds for divorce and the requested relief Q: What are the grounds for a divorce in WI? A: Marriage must be irretrievably broken. WI is a no fault state, meaning that proving that one party was at fault does not come into play. – Summons = gives notice of the action and instructions to the other party – Costs = $169 filing fee + $40 service fee Other party may file his/her own divorce action via a response & counterclaim – Q: Why would you want to file your own divorce action after your spouse already filed an action? – A: To ensure that the divorce action will continue if your spouse drops his or her action
Step 1: Starting the Divorce Action cont. Q: Should you hire a lawyer? A: Yes (shameless plug ;) because: – A lawyer will help you navigate through the legal system. For many people, their first experience going to court occurs during the divorce. – A lawyer will explain your rights and obligations and help you understand the laws in WI, which are constantly changing. – A lawyer can ensure that you deal with all the important issues in a way most favorable to you; this is important because there are many aspects about your divorce agreement that cannot be easily changed after the divorce is final. – A lawyer will stay objective during a very emotional time for you.
Step 1: Starting the Divorce Action cont. Q: How long does it take to finalize a divorce action? – A: At least 4 months because of the 4 month cooling off/waiting period in WI. The average divorce gets completed in approximately 6-9 months.
Step 2: Working out Temporary Orders Along with initial papers, you can request a first (temporary) hearing in front of a family court commissioner to address pressing issues Reasons to request a first hearing: – You need to determine how your expenses are going to get paid and who is going to pay your expenses (i.e. mortgage, insurance, utilities, etc.) – You have moved out and need support money from your spouse to meet your living expenses – You have separated your residences and need clear orders as to where the children are to live Q: Does one person need to move out? – A: No. In fact, it is typically best to remain in the same household if possible until you have agreed to a temporary financial
Step 2: Working Out Temporary Orders The lawyers and parties will attempt to negotiate a “temporary stipulation and order” outside of court If the parties cannot agree, then they will appear in court and ask the family court commissioner to decide and make temporary orders The temporary orders govern the parties throughout the divorce action
Step 3: Conducting Discovery Q: What is discovery? A: Discovery is the procedure by which the parties obtain information and evidence from the other party relevant to the divorce case Q: Why is discovery used? – A: When one party needs more information to evaluate their case (i.e. info regarding a retirement account or other asset) or to prepare their case for trial (i.e. proof that the other party earns more income than they claim) Q: What techniques are used to obtain information? – Written Interrogatories (Questions) – Request for Production of Documents – Deposition (asking the party questions under oath in front of a court reporter – Exchange of Financial Disclosures
Step 4: Negotiating a Settlement Most parties resolve their divorce case by negotiating for and signing a Marital Settlement Agreement (MSA) The MSA addresses 4 main issues: – Property Division – Maintenance – Child custody & placement – Child Support
Step 4: Negotiating a Settlement cont. Property Division – Means the way that assets and debts are divided between husband and wife – According to WI law, there is a presumption that all property brought to or earned during the marriage shall be equally divided between husband and wife, regardless of who “earned” the asset or “brought” the asset to the marriage. *However, courts can deviate from the 50/50 presumption by considering many factors such as length of the marriage, contributions by each party during the marriage, and property brought by each party to the marriage
Step 4: Negotiating a Settlement cont. Maintenance (f/k/a alimony) – Maintenance consists of support payments by the higher income earner to the lower income earner that continue after the marriage – Maintenance is designed to serve 2 objectives: fairness and support – Maintenance can be waived, held open, or awarded – A court has wide discretion as to whether to award maintenance but must look at many factors, including length of marriage, contributions to the marriage, earning capacity of the recipient spouse, whether the recipient spouse can support her(him)self at a standard of living reasonably comparable to that earned during the marriage
Step 4: Negotiating a Settlement cont. Child Placement = where the children physically reside – 2 types of placement: Primary placement = a parent has primary placement when the other parent has less than 92 overnights per year Shared placement = parents have shared placement when they each have more than 92 overnights per year Child Custody = how major decisions are made with regards to the children – 2 types of custody: Sole = only one parent has decision making authority Joint = both parties have decision making authority and neither parent’s authority is superior to the other; – *in WI, there is a presumption of joint custody
Step 4: Negotiating a Settlement cont. More on Placement: – Each placement schedule is unique and whatever works best for the family – Examples of shared placement schedules: » = Father has placement every Monday and Tuesday and every other Friday through Monday; Mother has placement every Wednesday and Thursday and every other Friday through Monday » Reverse = In Week 1, Father has placement Monday and Tuesday and Mother has placement Wednesday and Thursday; in Week 2, Father has placement Wednesday and Thursday and Mother has placement Monday and Tuesday; parties alternate weekends » Week on-Week off » 9/5 = One parent has placement for 9 consecutive days, the other parent has placement for 5 consecutive days
Step 4: Negotiating a Settlement cont. Parents should choose a holiday schedule as part of their agreement like the following: HOLIDAY EVEN NUMBERED YEAR ODD NUMBERED YEAR NEW YEAR’S DAY Return by 6:00 p.m. MotherFather EASTER 8:00 a.m. until 8:00 p.m. FatherMother MOTHER’S DAY 8:00 a.m. until 8:00 p.m. Mother MEMORIAL DAY To the party who has weekend placement FATHER’S DAY 8:00 a.m. until 8:00 p.m. Father JULY 4 TH MotherFather LABOR DAY To the party who has weekend placement.. THANKSGIVING 8:00 a.m. until 8:00 p.m. MotherFather CHRISTMAS EVE 9:00 a.m. Christmas Eve through 9:00 a.m. Christmas Morning Mother CHRISTMAS DAY 9:00 a.m. Christmas Day to 9:00 p.m. December 26th Father NEW YEARS EVEFatherMother
Step 4: Negotiating a Settlement cont. Q: What happens if parents can’t agree over child custody and/or placement? – Answer: At whatever point a dispute arises, the court is informed and the parties are sent to mandatory mediation If mediation is unsuccessful, a Guardian ad Litem is appointed by the court. A Guardian ad Litem is an attorney who represents the best interests of the children. In some counties (i.e. Waukesha, Washington) a custody study is conducted by a social worker The social worker and Guardian ad Litem provide a recommendation as to custody/placement that hold a lot of weight with the Judge
Step 4: Negotiating a Settlement cont. Child Support: – Child support is calculated by statutory formulas and is tied to placement – If a parent has less than 92 overnights per year, then child support is set at the following percentage of their gross income from all sources: 17% for one child 25% for two children 29% for three children – If both parents have more than 92 overnights per year, then a formula is used that takes into consideration both parties’ incomes and placement
Step 5: Completing the Case/Preparing for Trial If you have an agreement settling all issues, you could finalize the divorce at the pre-trial conference (5-6 months after divorce starts) – Must show up to court and testify that you have voluntarily entered into the agreement – If there are children, you must complete the parenting class before the divorce can be finalized If you do not have an agreement by the pre-trial conference, then the court meets with the lawyers, determines what issues remain, and sets a trial date
Step 5: Completing the Case/Preparing for Trial Things to know about divorce trials: – Preparing for trials involves drafting testimony, naming witnesses, submitting briefs, and organizing exhibits – There are no juries in divorce trials. Instead, judges make the decisions – You will likely be called upon to testify in front of your spouse – Divorce trials are open to the public – The judge’s decision is final subject to an appeal process
List of To Do’s After the Divorce is Final: Change beneficiary designations/make new wills Execute quit claim deed to transfer ownership interest in real estate Refinance loans Transfer interest in retirement accounts Remember that you cannot marry anyone anywhere in the world for 6 months after the divorce is final per WI law
Post-Judgment Problems Q: What can you do if your former spouse is violating the court orders in your divorce? A: File a motion asking the judge to find your former spouse in contempt, set a purge for that contempt, and order that your former spouse pay your attorney fees Q: What can you do if your former spouse refuses to honor your placement time with your kids? – A: File a motion asking the judge to enforce the placement schedule and impose sanctions on your former spouse (motion must be heard within 30 days by WI law)
Post-Judgment Problems cont. Q: Can you undo a property division after the divorce? A: Generally no. There are very narrow grounds to reopen property division such as fraud or failure to disclose an asset. Q: What do you do if your financial situation worsens (i.e. lost your job) and you are under an order to pay support? – A: File and serve a motion to modify the support immediately. If you can show a substantial change in financial circumstances, the court can order an adjustment in support retro to the date you served your motion.
Post-Judgment Problems cont. Q: Can you modify child placement/custody after the divorce? – A: The burden to modify child related orders is very high. To modify placement/custody in the first two years after the divorce, you must show that the current schedule is emotionally or physically harmful to the child. To modify placement/custody after the first two years, you must show that there has been a substantial change in circumstances (i.e. you changed your work hours, the child wants to spend more time with you, the child is now in school and not an infant, the child is acting out behaviorally, you moved closer to the child, etc.)