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Halling & Cayo, S.C.

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Injunctions

Any person who claims to be the victim of domestic abuse or harassment may petition the court for an order restraining the alleged perpetrator from committing future conduct. The request for relief can be specifically tailored to protect the petitioner but generally the court orders the respondent to avoid contact and communication with the petitioner.

Domestic abuse is an intentional infliction of pain, injury, illness, sexual assault, or damage to one’s property, or a threat to do any of the above, by a family member, adult household member, adult caregiver, or former spouse or significant other.  Harassment is subjecting a person to physical contact, sexual assault, stalking, threatening to do any of the above, or engaging in a course of conduct or repeatedly committing acts to harass or intimidate which serve no legitimate purpose.

Procedurally, the petitioner must file a petition with the court requesting specific relief. There is a 2-step procedure.  At the time the petition is filed, if the court finds reasonable grounds (typically based on the party’s statements) that the respondent has engaged in or based on prior conduct could engage in domestic abuse or harassment, it will issue a temporary restraining order against the responded that would be in effect immediately. This temporary restraining order is in effect until a hearing on the request for an injunction.

Regardless of whether the court issues a temporary restraining order, at the time of filing the court will also schedule a hearing on the petition that typically occurs approximately two weeks from the filing date. At this hearing, the court will hear evidence from all parties and decide whether to grant or deny the injunction.

The court may order an injunction to continue for up to four years, or in rare cases, nine years.  All restraining orders and injunctions are enforceable with the police. If a domestic abuse injunction is granted, the respondent must surrender all firearms for the term of the injunction.

Legal Separation

A legal separation is very similar to a divorce, but it does not completely terminate the marriage. It operates more as a suspension of the marriage. If you both reconcile at some point in the future, you do not need to get remarried, as you would if you were divorced.

To obtain a legal separation all the procedures and substantive determinations required for a divorce must be complied with, including reaching an agreement on or obtaining orders as to custody and placement, child support, maintenance, and property division.

In order to grant a legal separation, the court must find that the marriage is broken. This is different from a divorce, in which the court must find that the marriage is irretrievably broken. Most often this determination is made from the parties’ testimony.

Parties choose a legal separation instead of a divorce for many reasons, though they are less common than divorces. These reasons often are tied to the residency requirements that the divorce process requires, to continue health insurance benefits that some plans allow, and religious objections to divorce.

A legal separation can be converted to a divorce by either party 1 year after the separation is granted, or at any time by agreement of both parties.

Marital Property Agreements or Pre-Nuptial Agreements

In Wisconsin, all property acquired during a marriage or brought into a marriage, both assets and debts, is considered marital property. In a divorce, the only property that is not subject to division during a divorce or legal separation must be acquired through gift or inheritance. Parties can opt out of this marital property law by engaging in a contract, commonly referred to as “pre-nups” or “post-nups.”

These agreements must follow specific requirement to be enforceable. These requirements include: (1) that each spouse made a fair and reasonable disclosure to the other of his or her financial status; (2) that each spouse has entered into the agreement voluntarily and freely; and (3) that the substantive provisions of the agreement dividing the property upon dissolution of the marriage are fair to each spouse.

Parties typically comply with the first requirement by exchanging financial disclosure statements that contain all their income, assets, debts, and liabilities. Courts judge the voluntary factor in the second requirement by weighing whether each party was represented by an attorney, whether each party had adequate time to review the agreement, whether the parties understood the terms of the agreement and their effect, and whether the parties understood their financial rights if they did not enter into an agreement. The equitable nature of the first and second requirements are judged at the time of the agreement’s execution. The third requirement may be re-assessed at the time of divorce or legal separation if there has been a significant change in circumstances since the execution of the agreement.

Paternity

A paternity a legal action filed by a parent, an alleged parent, or the State of Wisconsin. Paternity can be admitted immediately when a child is born via a Voluntary Acknowledgment, it can be admitted following genetic testing, or it can be determined by the court following genetic testing. Once a judgment of paternity is entered, terms can also be addressed. Like many actions affecting the family, a paternity action is extremely fact intensive, and the experience and outcomes vary on a case-by-case basis.

In broad terms, each paternity addresses:

  • Child custody and placement
  • Child support

Depending on the circumstances, it can also address insurance, birth costs, the child’s name, and other issues related to the child. Parties are free to settle these issues on their own and enter into an agreement. If the parties cannot agree, the court will hold a trial and hear evidence on the disputed issues before making the final determinations.

Adoption

An adoption may be filed by a married couple, an unmarried adult, or a stepparent of the adoptee. A child is available for adoption only if both parents are deceased or their rights have been terminated. Additionally, the child must have resided with the petitioner for at least six months. In a stepparent adoption, the non-custodial parent’s rights must have been terminated.

A guardian ad litem will be appointed for the child by the court in all adoption cases filed in conjunction with a termination of parental rights case. Additionally, the petitioner must make arrangements with an approved agency to have a home study completed. Often, this home study must be submitted with the required pleadings at the time of filing.

The petition for adoption should be heard within 90 days of filing. Assuming proper notice and the recommendation of the home study and guardian ad litem, the court will proceed.

Grandparent Custody & Visitation Rights

A grandparent, step-parent or other person who has maintained a relationship similar to a parent-child relationship with the child may petition the court for visitation if the child’s parents have notice and the court determines that visitation is in the child’s best interest. The specific circumstances that must be shown are very fact-dependent, so contact us if you have questions about proceeding.

Guardianship of a Minor

Private guardianships are governed by Chapter 54 of the Wisconsin Statutes. Alternatively, guardianships may also be entered under Chapter 48 of the Wisconsin Statutes, is for children under the jurisdiction of the court.

Minor guardianships provides for a decision-maker for a minor when informal agreements are insufficient. They are common in estate planning for LGBT families, in grandparent or relative caregiver situations, and in other family configurations.

The process and forms for a minor guardianship may seem a bit out of place because it is the same process and forms that are used in adult guardianships, however, this is currently the process that is necessary. Because of this, there are actually two types of guardianship: of the person and of the estate. In a minor settlement situation, a guardianship of the estate may be necessary. In most cases, a minor guardianship will be of the person. Petitions must be heard within 90 days of filing with the court.

A minor guardianship can either be temporary or permanent. A temporary guardianship is in effect for 60 days, and it can be extended one time for an additional 60 days if good cause can be shown. Any other guardianship is permanent, which means it does not have a termination date set. Once a guardianship is entered, it can be terminated by court order.

In general, a court will not impose a minor guardianship over the objections of a fit and willing parent. Case law has shown that in a dispute between a parent and a third party, the parent prevails unless the parent is shown to be either unfit or unable to care for the child or compelling reasons exist to award custody to a third party. These compelling reasons must essentially meet the grounds for involuntary termination of parental rights.

Minor guardianships require the appointment of a guardian ad litem (GAL). The GAL will make a recommendation to the court regarding whether he or she believes the guardianship is in the child’s best interest.

Guardianship of an Adult

A person over the age of 17 who is unable to make decisions regarding everyday living, often as a result of disabilities, injury or infirmities of aging including dementia, may need another person to assist him or her. A guardian is appointed by the court to provide this type of assistance or to make decisions on behalf of the individual.

There are two types of guardians: of the person and of the estate. A guardian of the person makes decisions related to personal matters such as medical care, housing arrangements and daily activities. A guardian of the estate makes financial decisions for the individual.

A guardianship is created by the court, and the guardian only has those powers that the court specifically provides.