A divorce primer . . .
For anyone who is considering divorce there are many more questions than there are answers. This primer on Wisconsin divorce will address those concerns and at least permit the decision to be an informed one.
Should we get divorced?
This may not seem like a legal question because the reasons that couples get divorced are sometimes not easily understood; however, the emotions aside, this is actually an important legal decision. We cannot help you with the fact that your marital relationship is no longer working; however, one thing that you must clearly understand is that the decision to divorce should not be made lightly. It will be a financial disaster for both of you. As a married couple you enjoy a certain standard of living. After you are divorced, though, your standard of living will be effectively cut in half. That is, after a divorce you will be supporting two separate households on the same total income. Many people do not adequately consider what this will mean. Imagine what your life would be like if you suddenly cut your family income in half. Could you afford your mortgage? If not, you will need to find a smaller home. Could you afford your car? Could you afford any of the non-essential expenses that you currently afford?
On the other hand, if you and your spouse are not currently living together, whatever hopes you may hold out for reconciliation should not stop you from filing for divorce or legal separation. The family law in Wisconsin is written so as to encourage couples to reconcile even after the action is started. For example, no final judgment of divorce may be entered until at least 120 days have passed from the time it is filed. Also, if the couple would like to try to live together to determine whether the marriage can be saved the court proceedings can be "put on hold" (a stay of proceedings) by the court. If the attempt at reconciliation does not succeed then the divorce action can go forward without having to refile it. When you and your spouse are not living together you may come to believe that you are, in effect, divorced. You must remember, though, that you are still married for all legal purposes. If a woman becomes pregnant the law presumes that the husband is the father (regardless of whether this is biologically true or not). Likewise, if one spouse becomes ill or is injured and cannot work, the other spouse may be liable for a large maintenance payment.
By filing a divorce action you can request the court to enter "temporary orders." These orders control the relationship between you and your spouse while the divorce action in pending. The court will address the matters of who has the use of the home, child custody and placement, child support, and responsibility for payment of debt.
In sum, do not make the decision to divorce lightly. However, if you are not living together you must file for divorce immediately.
In every divorce action where there are minor children there are five issues that must be addressed. They are: (1) property division; (2) custody of children; (3) placement of the children; (4) child support; and, (5)maintenance. If the parties agree as to how to resolve each of these issues they will sign a written "contract" called a marital settlement agreement. This document is filed with the court and, if the judge finds it to be reasonable, the parties wil be granted a judgment of divorce and the marital settlement agreement will be incorporated into the final judgment. If, however, the parties cannot agree on one or more the issues then the case will be set for trial before the court. If the issue involves the custody or placement of the children then a guardian ad litem will be appointed for the children. A guardian ad litem is a lawyer whose responsibility it is to look out for the best interests of the children in the family litigation.
In order to be entitled to a divorce the parties need not prove infidelity or mental cruelty by the other. Rather, all that need be proved is that the marriage is irretrievably broken and that is proved by either spouse testifying under oath that it is so.
Property Division
Wisconsin is a marital property state and, therefore, property division ought to be nothing more than a math problem. That is the theory at least. The marital property law states that any property that is acquired by either spouse during the term of the marriage (other than by gift or by inheritance) is marital property and, in the event of a divorce, the marital property must be divided equally between the parties. Marital property includes the income of either spouse. Nonetheless, people have a very difficult time accepting that half of the money they earned from working at their job for all those years belongs to their (now estranged) spouse. What also complicates the property division is the sentimental value of certain property. Frequently one or the other of the spouses will want to remain in the family home. However, in order to have the home awarded to them they must account for their spouse's 50% of the equity. This is frequently a large sum of money and, now that the parties' standard of living has decreased by fifty percent, it is not a sum that is easily bought out. Thus, the most logical solution is to sell the house and divide up the proceeds evenly. Logic does not always trump emotion in a divorce, though.
The same is true for the division of the debt. Under marital property, any debt incurred by either spouse during the term of the marriage is marital debt. Upon divorce, the debt must be divided equally. Again, some people simply cannot accept that a large debt incurred by the other spouse must be divided equally at divorce.
Custody
We have all heard stories about a couple that is locked in a vicious "custody battle." Most likely this is not truly the case. "Custody" refers to the right of a parent to make important decisions on behalf of the minor children. This includes decisions about medical treatment, religious training, and schooling. Couples rarely fight over custody. In the vast majority of divorce cases the parties are awarded joint custody.
Placement
"Placement" refers to where the children will live and this is the issue that may be the subject of expensive litigation. "Primary placement" refers to where the children will live most of the time. "Temporary placement" is what people mean when they talk about "visitation"- that is, placement of the children with the parent who does not have primary placement. Under certain circumstances the court may award "shared placement" which is an arrangement under which the children live with each party for approximately equal periods. Although frequently demanded by divorcing parents shared placement is relatively rarely awarded by the courts. This is because in order for a shared placement arrangement to work the parents must be able to talk to one another and to cooperate (and if they were able to do this they probably would not be getting divorced). Additionally, if the children are of school age the parents must live within close proximity to one another so that the shared placement schedule does not interfere with school attendance. Grandparents may also have visitation rights.
Once again, emotion is usually the reason that parents cannot make placement agreements that are in the best interests of the children. Parents incorrectly assume that the parent who receives the "most" placement is the winner and will have the greatest influence on the children. This is certainly not true. Even in intact families it is not unusual for one spouse to be a care giver and the other to be a bread winner. Both roles are very important and both roles influence the children tremendously. What will cause the most influence on the children is a set of parents who continually fight over relatively minor periods of placement- and the influence will not be positive. It is not unusual to find divorcing parents who are willing to spend thousands of dollars on attorney's fees and many hours in court over something as trivial as the time of day at which an exchange of the children will take place on Christmas Eve.
This kind of dispute will not please the judge.
Sometimes, in rare cases, there will be a child born during the marriage, and it is determined that the husband is not the father. Under these circumstances, additional proceedings are required.
Child Support
Again, the law is written in way that is intended to make the issue of child support a math problem. In fact, there is a percentage schedule that the court must use in setting support. For one child the percentage amount is 17%, for two children it is 25%, and so on. The percentage is applied to the payer's "gross income"- that is, all income before taxes, including overtime, that is earned by the spouse paying support. The court may deviate from the child support schedule only in exceptional circumstances. Additionally, there are adjusted formulae for special circumstances.
Predictably, though, child support tends to be one of the most difficult issues to solve. The factors that make this issue difficult are: (1) the financial strain caused by the divorce; and, (2) the payer's firm believe that the recipient of the support payments is not spending the money on the children. Well, there is no legal requirement that the parent receiving support account to the court- or anyone else- about how he or she spends the support money.
Child support awards might be reduced if the parents approach a shared placement schedule; however, a pare,nt makes a grave mistake if he or she lets on the court that the only reason he or she wants a shared placement schedule is to avoid paying support.
Maintenance
Maintenance, or what used to be called alimony, is a payment from one spouse to other after the divorce intended to approximate the financial circumstances as they existed during the marriage. In other words, if a couple earned $100,000 between the two of them while they were married, the court will try to make sure that after the divorce each has available $50,000 of income. The spouse making more money will be ordered to pay a sum to the other to equalize the income.
Again, this is only the theory, In setting a maintenance award the court takes into account the length of the marriage, the age and health of each of the parties, whether one of the parties gave up a career opportunity to care for the children, the tax consequences and, most importantly, the ability to pay. It is the "length of the marriage" and the "ability to pay" factors that usually militate against a maintenance award. After a very short marriage the court is not likely to order maintenance even if there is a large disparity in income. Likewise, if a maintenance award will place the payer in a situation where he or she cannot afford shelter or food, no maintenance will be ordered. It is important to understand that maintenance is deducted from the payer's income for tax purposes and it taxable income for the recipient.
If you and your spouse have decided that it is time to end your marriage,learn about some strategies in preparation, and you should immediately seek the assistance of an experienced family law attorney.
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