Beginning August 3, 2009, same-sex couples in Wisconsin will be able to register for domestic partnerships with their local County Clerks.  This controversial new law was created with the state budget signed into law by Governor Doyle on June 29, 2009.  While domestic partnership is not the same as a “same sex marriage” or a “civil union,” it does afford couples more rights and protections than existed under prior law, including:

  • rights to inheritance
  • rights to family and medical leave
  • hospital visitation privileges

To register, couples will need to go to the County Clerk’s office in the county where they reside, complete a sworn affidavit and pay a fee.  There is a 5 day waiting period, which may be waived for a fee at the discretion of the Clerk.  Upon the expiration of the 5 day waiting period, the County Clerk issues a declaration to the couple.  The declaration must then be signed, notarized, and filed with the county Register of Deeds.  The declaration is maintained as a vital record – much as a birth certificate, death certificate, etc.

The advocacy group Fair Wisconsin has published a reference guide  on their website as a resource for couples seeking more information about the new law.  The Winnebago County Clerk’s office has also posted an extensive set of FAQs to assist those seeking to register or dissolve a domestic partnership.

Because the law does not treat a domestic partnership as a marriage (in fact, Wisconsin has a constitutional amendment banning same-sex marriage), the “regular” divorce laws do not apply upon dissolution of a domestic partnership.  However, an experienced divorce and family lawyer can assist same-sex and opposite-sex partners in resolving many types of disputes upon the termination of a relationship using pre-existing law regarding property rights.

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Bird Nesting

June 23, 2009

The media is all about the Gosselin divorce  today. Apparently, the infamous Jon and Kate are going to “bird nest.”  This is an arrangement where the children stay in the family home while their parents are going through a divorce.  Meanwhile, the parents rotate in and out of the house during their respective physical placement time with the kids.  

The parents must make arrangements for alternate housing during their “off” time.  Often, they stay with friends or family members.  One of the benefits of bird-nesting is that it is the adults, rather than the children, who are inconvenienced by having to pack bags and move back and forth between two residences.  When so many things about their lives are changing, having the constancy of their home can be a source of comfort to children.  When finances are tight, many divorcing couples feel that bird-nesting for a short time affords them the opportunity to “save” some money to enable the departing spouse to obtain more permanent housing.

For all of its potential benefits, Courts usually do not require bird nesting because it is fraught with the potential for problems.  Many of the same disputes that were present in the intact household remain a source of conflict during bird-nesting.  Disputes may arise over such issues as:

  • One spouse ate some of the groceries purchased by the other;
  • One spouse did not maintain the house or yard “properly” during her time;
  • One spouse went through the other’s mail or other personal effects;
  • One spouse had “friends” over for a party.

Despite the potential for these types of conflicts, when parents agree that a bird-nesting arrangement would be best for their children, courts will usually endorse such a plan on a temporary basis.  This is particularly so when the case appears to be relatively low-conflict.  The more even-tempered the individuals, the less likely that problems like those cited above will create major disputes.

Regardless of the circumstances, the bird nest tends to be a poor long-term solution, especially when it is only being done due to tight financial conditions.  Therefore, if a bird nest arrangement is in place, it is for a very short period of time, and usually ends before the divorce is finalized.

What is a Deposition?

June 4, 2009

In contested cases, a great deal of work goes into preparing the case for court.  Sometimes, it is necessary to conduct a deposition.   A deposition is testimony taken under oath (under penalty of perjury) in advance of a trial or evidentiary hearing before a Judge or Court Commissioner.   

Typically, a deposition is taken both to learn information, and to “box” a witness into a story.  Deposition testimony may be may be used against that witness in court.  Therefore, it is a very useful investigative and preparation tool for attorneys.

A deposition is a formal question and answer session.  The subject matter typically relates to the contested issues in the case.  In divorces, depositions often focus on the financial affairs of the spouses and any issues relevant to legal custody/physical placement determinations.  Often, the person being deposed is required to bring certain documents to the deposition.  In those instances, the deponent will almost surely be asked questions about those documents.

The person being deposed is known as a “deponent.”  Depositions may involve only the parties (husband and wife).  In more complex cases, family and friends may be deposed.  If there are any expert witnesses involved in the case, they may be deposed as well.  Experts may include appraisers, accountants and psychologists. 

Depositions are usually conducted at the office of one of the attorneys in the case.  In my office, we hold depositions in conference rooms.  A court reporter is present to transcribe all of the questions and answers for the record.  Court reporters are hired by the attorney requesting the deposition.  More rarely, a deposition is videotaped as well.  If a deposition is videotaped, that is usually done by a professional videographer.

The length of an individual deposition varies.  Generally, the more complex and acrimonious the case, the longer the deposition will be.  There is no Wisconsin law which specifically limits the amount of time a deposition may take.   However, a deposition cannot be taken solely for the purpose of harassment or intimidation. 

Anyone who is part of a deposition may order copies of the official transcript from the court reporter who transcribed the testimony.  A witness is allowed to read and review his or her testimony.  However, the contents of the transcript cannot be changed.

If you are subpoenaed to appear at a divorce deposition, you should consult an experienced divorce lawyer to learn about your rights.

Although most divorce lawyers enjoy going to Court, some clients would rather not go there.  Whether it is due to inconvenience, stress, fear, other reasons, clients often express a reluctance to appear in Court as part of their divorces.  In fact, most people I know would prefer to never step foot in a courthouse.  

It seems in some states, if all provisions are agreed upon by the spouses, paperwork may be submitted by mail and presto!  A divorce is granted.  This is never the case in Wisconsin.  Here, even when all aspects of the divorce are agreed upon, the soon-to-be-exes must participate in a court hearing at least one time, for what is known as final divorce hearing.  The final divorce hearing is the court proceeding in which the Judge formally grants a divorce to the parties.

Other than the final divorce hearing, the number of times a divorcing person appears in Court will depend on many different factors, including the contentiousness of the case and the County in which the case is taking place.   Generally speaking, the more contentious the case, the more likely it is one will find herself in court multiple times – before and after the divorce is granted. 

Sometimes, the number of court appearances has nothing to do with the level of animosity between the spouses.  Some Judges will hold Pretrial Conferences in which the attorneys and the parties to the case must attend to discuss the status of the case.   For some people, circumstances beyond their control, such as a job loss while the divorce is pending, will result in a trip back to Court to change provisions which may have been entered as part of a Temporary Order.

An experienced Wisconsin divorce attorney can help you determine how many Court hearings may be appropriate for your case.

What happens to Spot?

May 21, 2009

For many families with pets, the pets are truly a part of the family.  Unfortunately, the law largely treats animals as nothing more than property.  Despite prior proposals to the contrary, Wisconsin law does not have any special provisions for pet custody.  Divorcing spouses are often unable to agree upon what happens to a beloved pet or pet.  There is no uniform way that Wisconsin courts will handle such a dispute.  As with so many divorce issues, the outcome is going to depend upon case-specific facts.

Even though there are no special provisions in the law, pet custody arrangements may still be enforced by Court order if approved by the Judge assigned to the case.  These are some of the proposed agreements I have seen approved by Courts:

  • Dividing multiple pets between spouses.  This tends to arise in families with more than one cat, and only works well if the pets do not develop separation anxiety due to being apart from one another.

 

  • Having the pet travel back and forth between the parents’ homes with the human children.  This occurs mainly with dogs.  Some parents believe that the consistency of having a beloved dog with a child as she travels is comparable to having one’s siblings with them.  This can be problematic if one parent is not really devoted to the dog, however.

 

  • Giving one spouse the pet, with rights to visitation for the other spouse.

It is important to keep in mind that sharing custody of a pet often entails working out the right to make decisions (such as when it would be appropriate to euthanize a pet), medical issues (are you going to treat the arthritis with prescription medication?) and payments of grooming, boarding or vet expenses.   One can expect to encounter some of the same issues that tend to arise in co-parenting human children.   As a result, sharing pet custody means there must be an ongoing relationship between spouses, even after the divorce is final, and even if there are no children involved.  

Pet disputes are often difficult to resolve even with the assistance of attorneys or mediators.  If negotiation fails, the Court will decide what happens.  However, Courts are often not equipped to decide what is best for pets and will usually simply choose a “winner” – the person who gets the pet.  

In my experience, Judges tend to give weight to the person who has registered a pet, paid the vet bills, or provided the majority of the past care.  Chances are that the person who bore the brunt of the burden of caring for the pet could be awarded the animal as part of the property division.

The law provides no magic solution for couples caught in these battles.  Should the Wisconsin law be changed to provide greater Court authority to determine pet custody issues?

One of the most challenging projects for couples who are splitting up is the division of household items between them.  While the divorce court evaluates property based upon its fair market value, most people going through a divorce are concerned about the replacement value of these items.  After all, who wants to go through life without a working computer, or proper bath towels? 

Fair market value of used household goods tends to be dramatically less than replacement value.  And so the debate ensues.  In my practice, I typically encourage clients to resolve these disputes on their own, with their spouse.   Judges usually would prefer not to hear disagreements about why it is not fair that the wife got the good set of dishes, or why the husband’s tools are worth more than the Precious Moments collection, even when these items are extremely important to the litigants in their Courts. 

If spouses are unable to work out the division on their own, often a personal property appraiser is retained to value the household items.   An appraiser is an expert in determining the fair market value of an asset.  In this context, the role of the appraiser is to go to all of the locations where the personal property is located, view the items, and submit a report itemizing and valuing “the stuff.” 

With the assistance of an appraisal, the question of what things are worth is usually resolved based upon the appraiser’s opinion.  Even if spouses cannot agree upon the division of items, having the valuation issues resolved greatly reduces the amount of time and effort spent on presenting any necessary issues to the Court for decision.  The cost of an appraisal in my area is typically between $300-500.  Although not a drop in the bucket, when compared with the cost of having the fight, it is money well spent.

In Wisconsin, Court files are generally open and subject to public inspection, as part of the state Open Records Law.   That is why a political news story yesterday caught my eye: a Judge in a Missouri congressman’s divorce sealed the file after a reporter asked to see it.  

Unless a Judge specifically orders otherwise, any person can go to a local Circuit Court Clerk of Courts office and ask to see a divorce file.  The entire file is an “open book,” save for a few documents.   We also have CCAP, part of the Wisconsin Circuit Court Access System, where a catalogue of most court filings is maintained in a public database.  The level of detail provided online as to the nature of the individual documents within a file seems to vary by county.

There are two documents which are not for public consumption:

  • Confidential Petition Addendum.  A couple of years ago, the law was (thankfully) changed to provide that instead of putting people’s social security numbers in the Petition for Divorce, that information goes into a separate Confidential Petition Addendum.   The Addendum is placed into a sealed Court file.  The Court, the parties to the case and their attorneys are entitled to access this information.
  • Financial Disclosure Statement.  All parties to divorce are required to file sworn statements setting forth information about their income, expenses, assets and liabilities.  This document, known as a Financial Disclosure Statement, goes into a sealed Court file.  Only the Court, the parties to the case and their attorneys are entitled to access this information.

In Wisconsin, upon request, the Judge decides whether or not to seal a file.  In my local area the sealing of entire divorce files is a relatively rare occurrence, as confirmed by the Appleton Post-Crescent when the paper conducted an investigation of court files in its four-county readership area (Calumet, Outagamie, Waupaca and Winnebago Counties) earlier this year.  

As a result, for most people, their divorce is an open book for anyone to read.  The type of information in an open divorce file often includes:

  • Home address;
  • Occupation and/or employer;
  • Date of marriage;
  • Names and dates of birth of minor children;
  • Whether or not anyone in the family is receiving public assistance;
  • Whether or not the wife is pregnant;
  • In a custody dispute, specific claims about the other spouse: abuse, neglect, alcohol/drug use, etc.
  • A description of the assets being awarded to each spouse;
  • A description of the debts being assigned to each spouse;
  • What the custody and placement arrangements are in a case, and why.

Should this information be for public consumption?  Does the availability of CCAP make a difference? I’d love to hear what you think.