Clients commonly wonder what factors courts consider in making decisions about legal custody and physical placement of children in a divorce.  Section 767.41 is the relevant Wisconsin Statute to this determination.  See: 

http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=stats&jd=767.41

Under the statute, the Court is required to consider “all facts relevant to the best interest of the child.”  The following are the specific factors described in the law:

  • The wishes of the parents;
  • The wishes of the child;
  • The interaction an interrelationship of the child with family members and any others who significantly affect the child’s best interest;
  • The amount and quality of time each parent has spent with the child in the past, and proposed changes a parent wishes to make to spend time with the child in the future;
  • The child’s adjustment to home, school, religion and community;
  • The age of the child and the child’s developmental and educational needs at different ages;
  • Whether the mental or physical health of a party, minor child or other person living in a proposed household negatively affects the child’s well-being;
  • The need for regularly occurring and meaningful periods of placement to provide predictabilty and stability for the child;
  • The availability of child care services;
  • The cooperation and communication between the parties, and whether one party unreasonably refuses to cooperate or communicate with the other;
  • Whether each party can support the other party’s relationship with the child;
  • Whether there is evidence that a party abused the child;
  • Whether a person dating a parent or living in the proposed household has abused the child, or another child;
  • Whether there has been interspousal battery or domestic abuse;
  • Whether either party has or had a significant problem with alcohol or drug abuse;
  • The reports of outside professionals if admitted into evidence; and
  • Such other factors as the court may in each individual case determine to be relevant.

If you are involved in custody litigation, be prepared to address all of the above factors.  In my opinion, it is very important is that the Court may consider any factor determined to be relevant to the best interest of the child.   If a factor important to your case is not specifically listed by statute, show the Court how that information is relevant to your particular circumstances.

Grounds for Divorce

April 5, 2009

Wisconsin is what is known as a “no-fault” divorce state.  The only legal grounds for divorce are that the marriage is “irretrievably broken,” meaning that there is no reasonable prospect for reconciliation between the husband and wife. 

The ramifications of no-fault divorce are that a party seeking divorce need not show any “fault” on the part of the other spouse in order to obtain a divorce.   However, wrongdoing and poor behavior may be relevant to specific issues in a divorce, such as legal custody and physical placement of  the children.  The no-fault divorce also means that if the respondent spouse would prefer to stay married, there are not any viable legal defenses to stop the divorce from ultimately occurring.  It takes two to tango, so to speak. 

Some states retain traditional “fault” grounds for divorce, such as adultery, along with no-fault provisions.  However, there are no fault grounds in Wisconsin.  The ability of one spouse to unilaterally decide to divorce is controversial.   Proponents say that no-fault leads to less litigation and therefore, fewer emotional and financial costs to the parties and their children.  On the other hand, divorce rates have climbed since the advent of no-fault, and religious and conservative groups are seeking to change the law all across the country to strengthen the legal bond of marriage by making it more difficult to divorce. 

What do you think?  Does the legal system make it too “easy” to divorce?

Rising unemployment means that many people are unable to meet their court-ordered obligations.   Recently, The New York Times published an article about the effect of the economic downturn on child support payments.   http://tinyurl.com/dnfad4 

In Wisconsin, either parent (the recipient or the payor) may request that the Court review a child support order upon a showing of a substantial change in circumstances.  This means that something significant must occur with respect to the financial situation of either parent in order for the Court to revisit the issue.  The law presumes that a substantial change in circumstances occurred if more than 33 months have passed since the most recent revision of a child support order.

If the parents agree that the child support should be modified, that agreement can and should be made into an enforceable court order.  If the parents do not agree, then the party requesting the change must file a formal motion with the court requesting the change.  Then, the court will hold a hearing to determine whether or not there has been a substantial change in circumstances, and if so, whether or not the support order should be changed.

It is important to note that in the vast majority of circumstances, a Wisconsin Court is not allowed to make retroactive revisions to a child support obligation.  Therefore, time is of the essence if a parent believes he or she is entitled to a change in the support obligation.

Today, I will address how you can organize your research for your future benefit.  You and your colleagues are probably sitting on gold mines of legal scholarship but don’t realize it.  Instead of throwing hours and hours of research into an old banker’s box when you close a file, turn all of that work into a gift to yourself that keeps on giving.  I highly recommend implementing an internal organizational system such as a “brief bank,” which then becomes your own amazing internal research hub. Consider saving not only the compelling briefs and legal memoranda authored by your own attorneys, but well-written briefs received from opposing counsel as well.  Lawyers appreciate having the law supporting both sides of an issue.  A good internal research bank contains material addressing a variety of topics such as deviation from child support standards, the relationship between cohabitation and maintenance, interstate custody issues, and more.

 

Don’t hesitate to add those “secondary” sources of information.  Often, one can recall reading a great article about something, but cannot locate the article or even recall where one read it.  Well-written articles from periodicals, such as the Wisconsin Journal of Family Law,  can be particularly helpful when there are changes in the law, or when an issue examines a topic in-depth.  Seminar materials, amicus briefs, and more can be incorporated into your internal research bank and make excellent background reading when learning about new topics or updating your research when you have traveled down a certain path before.

 

            With a computerized case management system and a document scanner, your internal research bank may even be stored electronically.  Then, you have everything in one convenient location for ease of retrieving, reviewing and quickly updating the applicable law and argument into a new document, which brings more efficiency to your practice.    Hopefully, these tips will help you save time, find better information and give you and your team more time to enjoy the fruits of your labor.

This is the second part of a three part post describing various legal research methods.

 

Although the resources described Part 1 are typically termed “primary” sources of law, they are not necessarily the best places to begin a search for legal information.  Primary research material is often tricky and cumbersome to search when you don’t know exactly what it is you are searching for, resulting in inefficient fishing expeditions. On the other hand, “secondary” sources, which are legal encyclopedias, law journals and the like, often enable the reader to more quickly focus on key issues and the related primary sources more quickly and easily.

 

            Researching the above authorities is a wonderful way in which legal professionals can use their investigative skills to the advantage of the client, wearing one’s “detective” hat has many other practical implications for the practice of law.  In my opinion, http://www.wicourts.gov is a legal bonanza.  If you have not spent some time on this site, you will want to do so.  It has terrific features that even many attorneys are not aware of. 

Probably the best-known and most-loved feature of the Wisconsin courts site is the Wisconsin Circuit Court Access Program, commonly referred to as “CCAP.”  CCAP is a free database of all circuit court filings in Wisconsin’s 72 counties. (We use CCAP so frequently in our office that we have created a new verb – “CCAPed,” as in “Have you CCAPed this person?”)  CCAP has many practical uses. 

 

By using the “Simple Search” feature, one can track court filings in their own cases, or search by person to determine whether other parties have been involved in litigation before.  We CCAP all adverse parties, all lay witnesses (before we name them), all of our expert witnesses (before we hire them), all witnesses named by adverse parties, and all jurors on our voir dire lists.  We then discover whether people have criminal convictions, outstanding judgments, domestic abuse problems or prior injury cases.   

   

The “Reports” feature of CCAP also comes in handy from time to time.  This allows one to view judges’ and attorneys’ court calendars.  Find out just how much time is set aside for that motion hearing, or determine whether defense counsel is being truthful when he tells you his expert cannot be deposed for six more months because he has such a busy trial schedule.    

The Wisconsin Courts website also contains the Wisconsin Supreme Court and Court of Appeals Case Access (WSCAA), at www.wscca.wicourts.gov, which is the appellate court version of CCAP.  This site is especially valuable when one has an appellate case pending, because the court dockets deadlines and notes filings of documents.  The Clerk of the Supreme Court and Court of Appeals also posts memos of opinions scheduled for release, which are nice to review if you are anxiously awaiting a decision.  

Other pearls to be found on the Wisconsin Courts website include a schedule of filing fees, standardized court forms for use in the Circuit Court, the Docketing Statement which must be filed with an appeal, and a table of all of the case classification codes.  Bookmark your favorites!

 

There is somewhat of a federal counterpart to CCAP, known as PACER.  It is the Federal electronic access system to U.S. District, Bankruptcy and Appellate courts.  Unlike CCAP, it is not free, but it is affordable at 8 cents per page. One must be a registered user to obtain the data.  PACER can be found at www.pacer.psc.uscourts.gov.

 

Other states have varying degrees of open court records, with some open records being free and others subscription-based.  For example, some Illinois counties have their records on line, others do not. 

 

Practical information from many other government sources is in abundant supply once you know where to look.  Wisconsin Circuit Court Rules for all counties which have them are available on the State Bar of Wisconsin’s site – www.wisbar.org. The Wisconsin Courts site publishes links to municipal court sites, which often include local ordinances.

 

The official State of Wisconsin website, www.wisconsin.gov, is the hub of all state departments and agencies.  For example, one can search corporate entity records at the Wisconsin Department of Financial Institutions, www.wdfi.org.

 

In the final part of this post, coming soon, I will address how one can organize all of this research in such a way so that it can be effectively used in your cases.

Financial problems are at the root of many disagreements between couples, and divorce is difficult to face at any time in one’s life.  However, the recession brings money worries to the forefront of issues in nearly every marital breakup.  In these tough economic times, there are many issues to consider if you are contemplating divorce. 

Declining Market Value.  In a Wisconsin divorce, the Court has the authority to divide your assets and liabilities.  However, declining real estate and other investment values means that there is less of a pie to divide.  Most people have less today than they had even a few short weeks ago.   Unfortunately, many families are “upside down” on their homes — often the single biggest asset in the estate.  It is critical to properly identify, value and divide all assets (and debts) in order to achieve an equitable division of the marital estate.   I encourage anyone in this situation to consult with an experienced divorce lawyer.

Rising Unemployment.   The rising numbers of the jobless has drastic economic implications for divorcing families.  Child support and maintenance (alimony) are based largely on the parties’ incomes.  Even the still-employed are grappling with the effects of reduced or eliminated overtime work, cuts in hours, wage freezes and the like.   Diminished income results in less pie to share among members of the family.  If there is little to no money available, there is often little to no economic support to the spouse and children.  As a result, many couples literally cannot afford to separate under these conditions.

A Silver Lining.  The surprising upside for those divorcing in this economic downturn is that if they are working less, they are typically more available to parent their children.  Wisconsin law allows the courts to consider parents’ work schedules and availability to care for their children when deciding upon physical placement arrangements.  Being around early in the morning, during the day while the other parent works, after school, in the evening and on weekends can all translate into more quality time with your children.  In a time when all news seems bad, that is something to smile about.