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.

If you live in Wisconsin, have a child and were never married to the other parent, you need a formal determination of paternity in order to establish certain legal rights and responsibilities.   This is true even if the father’s name is on the birth certificate, and even if the child is given the father’s last name.  This is true even if the parents are living together.  This is true even if the parents have a great co-parenting relationship without the “benefit” (hassle) of legal intervention.

If you are a father, here is some of what you are missing:

  • You have no legal custody rights;
  • You have no rights to physical placement (physical custody);
  • Your child has no right to inherit from you;
  • Your child has no right to receive social security benefits based upon your earnings record in the event of your death or disability;
  • You have no legal input in the selection of your child’s last name;
  • You have no right to collect child support;
  • You have no right to collect reimbursement for child-related expenses;
  • You have no right to claim the child as a dependent/exemption for income tax purposes

If you are a mother, here is some of what you are missing:

  • You have no right to collect child support;
  • You have no right to collect reimbursement for child-related expenses;
  • You have no right, as the child’s custodian, to receive social security benefits for the child in the event of the father’s death or disability

In Wisconsin, paternity can be established in one of two ways:  a voluntary acknowledgement of paternity or a formal court adjudication of paternity.  Many of my clients have called the voluntary acknowledgement paperwork the “blue form” they received in the hospital.  This is different from the birth certificate paperwork.   A voluntary acknowledgement has a binding, legal effect and is filed with the State of Wisconsin with other vital records.  For more information on voluntary acknowledgements, visit http://dcf.wisconsin.gov/bcs/path.htm.

If a voluntary acknowledgement is not possible, a court action may be started to have the Court make a formal adjudication of paternity.  Fathers and mothers both have standing to begin a paternity case.   If a parent is receiving public assistance (welfare benefits), the State of Wisconsin will typically file a paternity case in the courts.  Private divorce & family law attorneys, like me, also frequently assist clients in establishing paternity. 

For more information about establishing paternity, visit:

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.

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.