Frequently Asked Questions

What is the age at which children get to decide where they live?
The quick and official answer is 18; i.e. the age at which the child is no longer a child. Although there is no bright line rule at which a younger child gets to be in charge, many people mistakenly believe otherwise. I can point to three reasons for this. First, teenagers in particular will seize and exercise whatever authority their parents, as a collective decision-making unit, do not successfully preserve for themselves. If one parent is going to let a teenager change houses, therefore, the other parent will have a hard time preventing that from occurring. Second, the custody statute, 767.41, recognizes that the wishes of the child (767.41(5)(2)), and the age of the child (767.41(5)(6)), are both factors which the court should consider in evaluating the child’s best interests. The wishes of an articulate 15 year old, therefore, are likely to be given stronger weight than the wishes of a 10 year old. Third, there are other areas of law, namely juvenile and probate, where children acquire specific rights upon the age of 12, and this likely contributes to the common misperception that there is a specific age when a child gets to choose where he/she wants to live.

If parents have equal placement of a child, will there be a child support order?
There will likely be a support order unless the parent’s respective incomes are very close to equal. Once each parent has over 25% placement, both incomes are counted, and offset against each other using a specific formula. WI Child Support Calculator. The Court is supposed to evaluate child support and follow that formula, and to explain why it deviates from the formula in any case where a deviation is made. If support would be nominal, i.e. in the neighborhood of $50.00 per month or less, a court might easily approve of an agreement for no support. If the support formula would result in a larger order, however, it will generally be paid.

What is the minimum length of time that people have to have been married before the court can issue a maintenance (or alimony) order?
The flip answer would be a single day. Maintenance is controlled by Wis. Stat. §767.56, which does not set forth any minimum time requirement before which a person is eligible for maintenance. In extraordinarily unusual facts, therefore, a court could conceivably award maintenance in a marriage of brief duration. As a practical matter, however, courts look to the length of the marriage and how the decisions made during the marriage affected the ability of each party to support him/herself. In most short-term marriages, parties are unlikely to have been seriously handicapped in their earning potentials as a result of marital decisions, with the result that a spousal support award is not likely to have merit. The longer the marriage, and the more time that the parties have spent with intertwined financial affairs and careers, the greater the likelihood that a court would view a support award as appropriate. Maintenance is very case specific, with no formulas or easy way to predict what outcome might be likely. If you are in a marriage with any significant income disparity between you and your spouse, you should confer with counsel about the range of potential maintenance outcomes.

Is a married person entitled to receive back, in a property division, a pension which he/she had before the marriage?
A married person is not entitled to receive back any property which he/she owned prior to the marriage. The court will presume that all property owned by a married person is to be divided equally. However, there are numerous factors, set forth in, which provide guidance for potentially deviating from an equal division of assets. One of those factors is property brought to the marriage. There is case law allowing a court to utilize a formula called a coverture fraction to separate out the pre-marital from the marital years of service, such that only the marital years are divided. The longer the marriage, however, the less likely it is that either party will receive back any premarital assets.

Does Wisconsin presume that children should be equally placed between the parents?
No. The language of the custody and placement statute does direct, however, that the court “shall maximize” periods of placement between the parents. Placement is designed according to the child’s best interest, as measured by the specific factors set forth in §767.41(5). So, what does this mean in practice about placement outcomes? Though the answer may depend on the area of the state, in my practice I see a high percentage of outcomes in the shared placement range, (i.e. each parent having at least 5 overnights out of 14). If both parents are involved, both available and accessible, and both appear stable and emotionally healthy, courts are likely to try sharing placement equally or close to it. If you have concerns, however, about the suitability of shared placement for your child/ren, you should confer with counsel regarding how the placement factors might be applied in your family situation.

Is a gift from one spouse to another included in the marriage and valued for property division purposes?
Yes. Although gifts from third parties, if maintained separately by the recipient spouse, are presumably excluded from the property division, gifts from one spouse to the other are part of the marriage. This rule is commonly misunderstood, and many people mistakenly exclude gifts from one of them to the other.

Can people change the tax treatment of child support and maintenance payments?
Sometimes, but proceed with caution!!! Child support is not deductible to the payer, and not taxable to the recipient. Maintenance receives the opposite tax treatment. It is not uncommon for parties to combine child support and maintenance in a way that switches some child support into maintenance so that the family as a whole saves money on taxes, but the IRS can recapture taxes for the payer if it is not done correctly. This should not be attempted without working with counsel and a tax professional.

My spouse and I are getting along and generally agree on what should be happening in our divorce. We have found forms and think we know how to fill them out. Is there any reason for either of us to think about talking with an attorney?
There are certainly plenty of cases in which the issues are sufficiently straightforward that there is little downside risk to proceeding without counsel. Some issues, however, are complicated enough to warrant at least a consultation with an experienced family law attorney. I have yet to see a form which provides any meaningful guidance to parties about how to value and divide retirement accounts. It is very easy to make a serious mistake about the amount, the duration, and the tax implications of a potential maintenance award. I also do not see standard forms that help parties evaluate any property division outcome other than an immediate payment of a cash equalizing amount. Given the minimal cost of a consultation, I believe that almost everyone going through a divorce would benefit from meeting with an experienced family law attorney to help advise as to potential complications in your situation.

We are talking about filing for a legal separation instead of a divorce. What would that mean?
I hear this question sometimes several times a week, and think it reflects a serious lack of knowledge about the meaning of a formal legal separation. A legal separation is a court action which proceeds all the way through to a court Judgment and addresses the same range of issues as an action for divorce. A legal separation ends the marriage for all practical and legal reasons, including marital property and income taxes. The differences between a legal separation and a divorce are these: One, a person can file for a legal separation with only 30 days of residency in the state, compared to the 6 months of residency needed for a divorce. Two, the grounds for a legal separation are that the marital relationship is broken, rather than irretrievably broken. Otherwise the actions proceed in the same way, involve comparable time, and comparable cost. Most actions which start as legal separations end up being converted to an action for divorce. The most common reasons for filing for a legal separation are religious, if the residency requirements for a divorce are not met, or if one spouse has health problems and the other has one of the few remaining insurance companies that does not treat a legal separation as a triggering event to disqualify the non-employed spouse from being a dependant on family coverage.

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