Tuesday, November 25, 2008
Do I Neeed To File A Certificate Of Divorce
Yes, upon the court granting your divorce the Petitioner is responsible for filing a Certificate of Divorce. You can get those, generally, from the Clerk of Courts. If you choose to fill it out with pen, rather than type it, then in must be done in black ink.
Tuesday, November 18, 2008
Waiving Maintenance
If I waive maintenance, does that mean for ever? Yes, if you waive maintenance as part of the Final Hearing, it is for ever.
Friday, November 7, 2008
How Does This Divorce Stuff Work In Wisconsin
A. Grounds for Divorce:
The only grounds for divorce in Wisconsin are an irretrievable breakdown of the marriage.
Divorce can be completed different ways:
1. Stipulated Divorce: where spouses agree on the terms of the divorce, such as property division, child support, custody, maintenance, etc., where there are no issues left in dispute or unresolved.
2. Contested Divorce: where spouses don’t agree on all issues involved in the divorce and there are issues of dispute that are deadlocked and the parties are unable to agree. When this occurs, the parties have a trial and the judge rules on the issues left unresolved.
3. Default Divorce: where the non-filing party, or one party, doesn’t agree to a stipulated divorce and doesn’t participate in the divorce proceedings. The court will simply default the non-participating party and the remaining spouse gets whatever was asked for in the original paperwork.
B. Divorce Procedure:
1. To start, one spouse must file a Summons and Petition for Divorce (these documents are called pleading documents).
a. The party filing the action is called the Petitioner.
b. The non-filing party is called the Respondent.
2. The pleading documents then must be served on your spouse, the respondent.
3. The respondent may file a Response and Counter-Claim.
4. A Temporary Hearing is then set up through the Family Court to establish Temporary Orders, which set out the ground rules during the divorce procedure.
5. A few months later a Scheduling Conference/Pre-Trial is held in order to set a timeline for obtaining information (a.k.a. Discovery) and establishing a date for trial, if necessary.
6. If the discovery period passes and there are still issues in dispute and unresolved, a trial will be held.
7. If the issues can be resolved and a settlement reached prior to the date of trial, a stipulated entry of divorce will be entered.
C. Issues To Be Resolved:
1. Property Division: Assets that are obtained during the marriage, including assets that are not gifts or cannot be traced out of the marriage need to be divided between the spouses. If the parties are unable to fairly and equally split the property by agreement themselves, then the assets need to be valued by a professional and divided in a manner that is fair.
a. Personal Property: this includes furniture, appliances, tangible things, etc.
b. Real Property: this includes land and buildings, etc.
c. Debts: this includes credit card debt, mortgages, loans, etc.
2. Child Custody: The court will look at the custody, visitation, and child support agreements of your divorce agreement, if there is one, but will rule based upon what is best for the child or children.
a. Shared Custody: this is where both parties are given legal right to make major childrearing decisions, such as education, medical treatment, etc.
b. Sole Custody: this is where only one parent is given the right to make major childrearing decisions. However, generally, the parent who is caring for the child at a particular time will make basic day-to-day decisions.
3. Child Placement: The court will look at the custody, visitation, and child support agreements of your divorce agreement, if there is one, but will rule based upon what is best for the child or children here too.
a. Shared Placement: this is where both parties are given period of placement, which is where the child or children will spend time with each parent, i.e., overnight stays, etc.
b. Sole Placement: this is where only one parent is given the right to have the child or children stay with that parent. The other parent may not have the child for overnights or extended periods of time. However, generally, that parent is given the right of visitation with the child or children, sometimes it is restricted to supervised visitation, depending on the concerns of the court.
c. Some of the factors the court considers are:
i. The wishes of the child’s parents,
ii. The wishes of the child, which may be communicated by the child or through the child's guardian ad litem or other professional,
iii. The interaction and interrelationship of the child with his or her parents,
iv. The child’s adjustment to the home,
v. The needs of the child, etc.
4. Child Support: The court will generally consider the amount of gross income generated by each parent, the amount of placement, and the number of dependent children. Often times the court falls back on the percentage standard, and takes a certain percentage of the salary of the parent that does not have placement, such as 17% if there is one child, 25% if there are two children, etc. and gives that amount to the parent that has placement of the child or children.
a. Deviation from Child Support Guidelines. Sometimes the court will deviate from the guidelines, upon request by a party, if, the court finds by the greater weight of the credible evidence that use of the percentage standard is unfair to the child or to any of the parties, such as:
i. The financial resources of the child.
ii. The financial resources of both parents.
iii. The cost of day care if the custodian works outside the home, or the value of custodial services performed by the custodian if the custodian remains in the home.
iv. The physical, mental, and emotional health needs of the child, including any costs for health insurance.
v. The tax consequences to each party.
vi. Any other factors which the court in each case determines are relevant.
b. Length of Child Support Obligation. The court shall order either party or both to pay for the support of any child of the parties who is less than 18 years old, or any child of the parties who is less than 19 years old if the child is pursuing an accredited course of instruction leading to the acquisition of a high school diploma or its equivalent.
c. Withholding Support. Violation of physical placement rights by the custodial parent does not constitute reason for failure to meet child support obligations.
d. Automatic Deduction. Child support can be automatically deducted from the payor’s check, which is the easiest method.
5. Spousal Support: Maintenance, formerly known as alimony, is an allowance which husband or wife pays to the other spouse for support while they are separated or after they are divorced. There are many factors for the court to considered when determining if maintenance should be given from one party to the other, here just some of those reasons:
a. The length of the marriage
b. The age and physical and emotional health of the parties
c. The educational level of each party at the time of marriage and at the time the divorce is filed
d. The earning capacity of the party seeking maintenance
e. The feasibility that the party seeking alimony can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and, if so, the length of time necessary to achieve this goal.
f. Etc.
D. Common Questions:
1. How long does a divorce take? There is a 120-day waiting period in Wisconsin during which your divorce cannot be finalized. Most divorces take between six months and one year to finalize although it can be longer if there are contested issues.
2. What if I don't like the court commissioner’s decision? If you do not agree with the court commissioner’s orders at this first or temporary hearing or any other hearing before a court commissioner, you may request a Hearing De Novo and have the matter re-heard by the judge, instead of the court commissioner.
3. What are the residency requirements for filing a divorce? You or your spouse must have been a resident of Wisconsin for 6 months and of the county in which you file for 30 days immediately prior to filing where the divorce is filed.
4. What is a Community Property State? Wisconsin is a “community property” state. There is a presumption that all marital property should be divided equally. Marital property is all of the spouse’s property except separate property consisting of: (1) property inherited by either spouse; (2) property received as a gift by either spouse; etc.. The equal distribution may be altered by the court, without regard to marital misconduct, based on several factors, here are only a few: (1) the contribution of each spouse to the acquisition of the marital property; (2) the length of the marriage; (3) the age and health of the spouses; (4) the occupation of the spouses; (5) the standard of living established during the marriage; (6) any marital agreement, etc.
The only grounds for divorce in Wisconsin are an irretrievable breakdown of the marriage.
Divorce can be completed different ways:
1. Stipulated Divorce: where spouses agree on the terms of the divorce, such as property division, child support, custody, maintenance, etc., where there are no issues left in dispute or unresolved.
2. Contested Divorce: where spouses don’t agree on all issues involved in the divorce and there are issues of dispute that are deadlocked and the parties are unable to agree. When this occurs, the parties have a trial and the judge rules on the issues left unresolved.
3. Default Divorce: where the non-filing party, or one party, doesn’t agree to a stipulated divorce and doesn’t participate in the divorce proceedings. The court will simply default the non-participating party and the remaining spouse gets whatever was asked for in the original paperwork.
B. Divorce Procedure:
1. To start, one spouse must file a Summons and Petition for Divorce (these documents are called pleading documents).
a. The party filing the action is called the Petitioner.
b. The non-filing party is called the Respondent.
2. The pleading documents then must be served on your spouse, the respondent.
3. The respondent may file a Response and Counter-Claim.
4. A Temporary Hearing is then set up through the Family Court to establish Temporary Orders, which set out the ground rules during the divorce procedure.
5. A few months later a Scheduling Conference/Pre-Trial is held in order to set a timeline for obtaining information (a.k.a. Discovery) and establishing a date for trial, if necessary.
6. If the discovery period passes and there are still issues in dispute and unresolved, a trial will be held.
7. If the issues can be resolved and a settlement reached prior to the date of trial, a stipulated entry of divorce will be entered.
C. Issues To Be Resolved:
1. Property Division: Assets that are obtained during the marriage, including assets that are not gifts or cannot be traced out of the marriage need to be divided between the spouses. If the parties are unable to fairly and equally split the property by agreement themselves, then the assets need to be valued by a professional and divided in a manner that is fair.
a. Personal Property: this includes furniture, appliances, tangible things, etc.
b. Real Property: this includes land and buildings, etc.
c. Debts: this includes credit card debt, mortgages, loans, etc.
2. Child Custody: The court will look at the custody, visitation, and child support agreements of your divorce agreement, if there is one, but will rule based upon what is best for the child or children.
a. Shared Custody: this is where both parties are given legal right to make major childrearing decisions, such as education, medical treatment, etc.
b. Sole Custody: this is where only one parent is given the right to make major childrearing decisions. However, generally, the parent who is caring for the child at a particular time will make basic day-to-day decisions.
3. Child Placement: The court will look at the custody, visitation, and child support agreements of your divorce agreement, if there is one, but will rule based upon what is best for the child or children here too.
a. Shared Placement: this is where both parties are given period of placement, which is where the child or children will spend time with each parent, i.e., overnight stays, etc.
b. Sole Placement: this is where only one parent is given the right to have the child or children stay with that parent. The other parent may not have the child for overnights or extended periods of time. However, generally, that parent is given the right of visitation with the child or children, sometimes it is restricted to supervised visitation, depending on the concerns of the court.
c. Some of the factors the court considers are:
i. The wishes of the child’s parents,
ii. The wishes of the child, which may be communicated by the child or through the child's guardian ad litem or other professional,
iii. The interaction and interrelationship of the child with his or her parents,
iv. The child’s adjustment to the home,
v. The needs of the child, etc.
4. Child Support: The court will generally consider the amount of gross income generated by each parent, the amount of placement, and the number of dependent children. Often times the court falls back on the percentage standard, and takes a certain percentage of the salary of the parent that does not have placement, such as 17% if there is one child, 25% if there are two children, etc. and gives that amount to the parent that has placement of the child or children.
a. Deviation from Child Support Guidelines. Sometimes the court will deviate from the guidelines, upon request by a party, if, the court finds by the greater weight of the credible evidence that use of the percentage standard is unfair to the child or to any of the parties, such as:
i. The financial resources of the child.
ii. The financial resources of both parents.
iii. The cost of day care if the custodian works outside the home, or the value of custodial services performed by the custodian if the custodian remains in the home.
iv. The physical, mental, and emotional health needs of the child, including any costs for health insurance.
v. The tax consequences to each party.
vi. Any other factors which the court in each case determines are relevant.
b. Length of Child Support Obligation. The court shall order either party or both to pay for the support of any child of the parties who is less than 18 years old, or any child of the parties who is less than 19 years old if the child is pursuing an accredited course of instruction leading to the acquisition of a high school diploma or its equivalent.
c. Withholding Support. Violation of physical placement rights by the custodial parent does not constitute reason for failure to meet child support obligations.
d. Automatic Deduction. Child support can be automatically deducted from the payor’s check, which is the easiest method.
5. Spousal Support: Maintenance, formerly known as alimony, is an allowance which husband or wife pays to the other spouse for support while they are separated or after they are divorced. There are many factors for the court to considered when determining if maintenance should be given from one party to the other, here just some of those reasons:
a. The length of the marriage
b. The age and physical and emotional health of the parties
c. The educational level of each party at the time of marriage and at the time the divorce is filed
d. The earning capacity of the party seeking maintenance
e. The feasibility that the party seeking alimony can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and, if so, the length of time necessary to achieve this goal.
f. Etc.
D. Common Questions:
1. How long does a divorce take? There is a 120-day waiting period in Wisconsin during which your divorce cannot be finalized. Most divorces take between six months and one year to finalize although it can be longer if there are contested issues.
2. What if I don't like the court commissioner’s decision? If you do not agree with the court commissioner’s orders at this first or temporary hearing or any other hearing before a court commissioner, you may request a Hearing De Novo and have the matter re-heard by the judge, instead of the court commissioner.
3. What are the residency requirements for filing a divorce? You or your spouse must have been a resident of Wisconsin for 6 months and of the county in which you file for 30 days immediately prior to filing where the divorce is filed.
4. What is a Community Property State? Wisconsin is a “community property” state. There is a presumption that all marital property should be divided equally. Marital property is all of the spouse’s property except separate property consisting of: (1) property inherited by either spouse; (2) property received as a gift by either spouse; etc.. The equal distribution may be altered by the court, without regard to marital misconduct, based on several factors, here are only a few: (1) the contribution of each spouse to the acquisition of the marital property; (2) the length of the marriage; (3) the age and health of the spouses; (4) the occupation of the spouses; (5) the standard of living established during the marriage; (6) any marital agreement, etc.
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