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Halling & Cayo, S.C.

Milwaukee Divorce Lawyers

Family law issues deal with one of the most sensitive areas of our lives: our children and our marriages. Concerns about what the future holds are real and need to be addressed by someone who knows and understands family law well. In these matters, it is important to seek the legal advice of an experienced family law attorneys in Milwaukee such as Halling & Cayo.

The divorce process includes a variety of issues that spouses encounter concerning their future relationship with their children and it’s important to know your rights. Solving differences through mediation is less expensive and less traumatic and if it’s a viable option, we can guide you through the process. If at any point the process needs to move from a conference room to the courtroom, we will advocate for your interest and objectives.

If you are representing yourself, you are appearing pro se.  You will be at a distinct disadvantage if you are appearing pro se while your spouse using an attorney who knows the ins and outs of court.  Informal arrangements on child support and spousal support will not be able to be held up if they are breached. We see many individuals that come to us after their case is completed to see if we can fix a mistake that was done before a judgment was entered.

Our family law attorneys at Halling & Cayo are happy to meet and consult with you so that you know all of your options in advance.

Click here to see a list of the attorneys in each of our Practice Area Teams.

Divorce Lawyers in Milwaukee

A divorce is a legal action filed by at least one married individual to dissolve the marriage relationship. Wisconsin is a “no fault” divorce state, so the reasons why you are getting a divorce do not need to be in the petition; the court only requires one party to claim the marriage is “irretrievably broken.” Like many actions affecting the family, a divorce action is extremely fact intensive, and the experience and outcomes vary on a case-by-case basis.

In broad terms, each divorce may involve four central issues:

  • Child custody and placement
  • Child support
  • Property division
  • Maintenance (spousal support)

Parties are free to settle these issues on their own and enter into a Marital Settlement Agreement. A Marital Settlement Agreement is a written document between the divorcing parties that sets out their agreements on these main issues. If the parties are in full agreement, the court typically approves their agreement and incorporates it into the court’s judgment. If the parties cannot agree, the court will hold a trial and hear evidence on the disputed issues before making the final determinations.

Many judges also require mediation for financial issues prior to trial. We can work with you in mediation, either as your advocate, or if you and your spouse contact us as a mediator.  As the neutral facilitator, we give you information about the law and the legal process.  We guide a discussion to help resolve the issues, but we do not represent either spouse and we cannot give legal advice when we serve as the mediator. Mediation is a voluntary process, and it can avoid significant financial and emotional costs of lengthy litigation.

By law, parties cannot divorce until 120 days after filing the petition for divorce. However, the court’s calendar often makes this time much longer. Cases where the parties have reached an agreement resolve much more quickly than those with multiple contested issues when the parties must wait for a trial date.

Ultimately, the court will render a judgment of divorce that either adopts the parties’ settlement or sets for the orders on the legal issues. Like any court order, the terms of this decree are enforceable through contempt motions. Following a divorce, neither party is permitted to re-marry anywhere else in the world for six months.

Custody and Placement

Often the first and primary issue in the case is custody and placement of the children.  Legal custody is the right and responsibility to make major decisions concerning a child.  In cases in which both parents are involved in the children’s lives, the order is typically for joint custody, which gives both parents equal rights and responsibilities to make major decisions in the child’s life.  Custody may also be awarded solely to one parent, entirely or as to one issue.  For example, all decisions regarding a child’s religion may be awarded solely to one parent, while all other major decisions remain joint decisions.  Physical placement is where the child actually spends time; it is the condition under which a parent has the right to have a child physically placed with that parent.  A child is entitled to placement with both parents unless the court finds that placement with a parent would endanger the child’s health.  The court is not required to grant equal time to each parent.  Placement arrangements vary greatly depending on the circumstances of each case.

Child Support

The purpose of child support is to provide for the children as if the parties had not separated.  The Department of Children and Families has promulgated percentage standards for determining a parent’s child support obligation.  Which percentage and specific formula to apply, depends on the number of children, the parties’ placement arrangement, and in some cases, each parent’s income.  The percentage standard is applied to the parents’ gross income.  For example, if the parties have one child and one parent has primary placement, the other parent would pay seventeen percent of his or her gross income as child support.  The court may deviate from these standards after considering many case-specific factors, including the cost of health insurance, the cost of child care, the cost of travel to exercise placement, or the specific needs of the child.

Property Division

The property division in a divorce or separation divides the assets and debts between the parties. Because Wisconsin is a marital property state, the statutory presumption is that all property, both debts and assets, acquired prior to or during the marriage, are equally divided. The court may deviate from an equal division after considering a number of factors such as the length of the marriage, whether one spouse brought substantial assets or debts into the marriage, whether one of the parties has substantial assets not subject to division; whether one party contributed to the education, training, or increased earning power of the other; or any other factor the court deems relevant.

The only property not subject to division is property that one party acquired (1) by a gift from someone other than the spouse; (2) by reason of the death of another (i.e. inheritance, life insurance proceeds, or trust distribution); or (3) with funds acquired by either of the first two methods. In order to keep this non-marital property exempt from the property division, the spouse must establish the original gifted or inherited status of the property; and that the character and identity of the property has been preserved.

Divorce cases involving complex marital estates of high net worth can present particular challenges.  Our divorce attorneys work with you to carefully identify, value, and separate all of the assets and liabilities.  These include:

Maintenance

Whether maintenance is appropriate depends on the facts of each case, and any order for maintenance is based on numerous factors including the earning capacities of each spouse, the length of the marriage, and the parties’ age and health.  Maintenance is ordered to further two objectives: to support the recipient spouse, and to ensure a fair and equitable financial arrangement between the parties.  In determining the maintenance amount, courts frequently start by equalizing the total income and then set the amount at what it determines to be fair under the circumstances, with the goal of allowing the recipient to maintain the standard of living enjoyed during the marriage.

For more information, and to learn what to expect for your Wisconsin divorce case, contact Halling & Cayo with any questions about your case.

Collaborative Divorce Law in Wisconsin

Since 2001 Wisconsin family law practitioners have been able to offer collaborative divorce as a process to choose in the dissolution of marriage. This forward-thinking response was created to enable divorcing parties to take control of their case and exit their marriages through communication and agreement of how they will continue to co-parent.

Collaborative divorce is a dispute resolution process.  Each party is represented, and part of a team committed to work together to help the spouses understand their choices, avoid conflict, and create an out-of-court settlement to meet the needs of the family.

The parties and lawyers sign a stipulation that governs the process, which includes:

  1. a written pledge not to litigate in court;
  2. withdrawal of professionals if either party chooses to litigate;
  3. open and complete exchange of information; and
  4. negotiations to address the needs of all family members.

The collaborative process is a private, voluntary process that can only govern if all parties agree and abide by the process.  It can be tailored to the specific needs or timetable in your case.  Our representation is limited in that certain legal remedies, such as contempt motions or formal discovery, are not available.

As part of the collaborative team, we establish the framework within which we will address the issues in your case.  Then we gather information, share interests and values, and brainstorm settlement options.

If you believe that collaborative divorce may be a solution for you, contact a divorce and family law attorney for your no obligation discussion on the process and what it may mean for your family.

Legal Assistance after the Divorce Judgment

Division of Retirement Accounts

Retirement accounts differ, and how they can be divided also differs.  For example, and Roth IRA holds after-tax contributions while an IRA may need to be discounted for taxes when valuing.  Many parties choose to divide retirement accounts as part of the property division, and how they Posare divided depends on the types of accounts that they are.  Most IRAs can be divided by working with the plan administrator.  However, most 401ks require a qualified domestic relations order to be divided.  This is a special order submitted typically after the divorce judgment to create the new account for the alternate payee, separate from the plan participant.  Defined benefit plans or pensions may require a different type of order for division.  We can help you determine what is in your best interest, and also help with any required orders to implement the divorce judgment.

Post-Judgment Modifications

Some aspects of a divorce judgment may be modified, but others cannot.  The property division in a divorce is final as of the date of divorce.  The court may have authority to review and modify maintenance, depending on the specific language of the order.  The court does have authority to modify child support and custody and placement while the children are minors; however, the exact standards of review and grounds are specific to timing and the facts of the case.

Contempt

Contempt of court is the intentional disobedience of an order of the court. An order that requires specific conduct or payments can be enforced by contempt.  If one party fails to comply with an order of the court, the aggrieved party can file a contempt motion.

The court then has discretion to enter an order to ensure compliance with its prior order.

If the court finds a party in contempt, the court will order sanctions, and depending on the issues, this typically includes fines and could include jail time.  The court then may also offer purge conditions, usually substantial compliance with the original order, as a way to avoid the sanctions.  If you prevail on the contempt motion, the cost of your attorneys’ fees, if you have one, or your costs in pursuing the motion may also be awarded as a remedy.

Appeals

If the court enters a final order that you disagree with, it may be in your best interest to appeal the decision.  An appeal of a trial court order or judgment involves filing a notice of appeal with a statement of the issues, having the entire record sent to the Court of Appeals (including transcripts), and in most cases, arguing the case via briefs.

Appeals are regulated and have numerous requirements.  If you are considering appealing an order, contact us or another attorney right away.  Deadlines can approach quickly, the longest is 90 days, and if the deadline to appeal has lapsed, it cannot be changed.

Additional Actions Affecting the Family

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.

So many aspects of actions affecting families depend on the facts and circumstances of each individual case.  If you have specific questions, please feel free to contact us.

What are the grounds for divorce?

The court must find that the marriage is irretrievably broken.  This finding is usually based on the petition for the divorce and one or both parties’ testimony at the final hearing.  If one party contests the grounds, the court may still make a finding that the marriage is irretrievably broken if it finds no reasonable prospect of reconciliation based on one party’s testimony.

What is a divorce going to cost me?

Since each case is different, the cost of each case varies significantly.  We bill based on an hourly rate, so the cost depends on how much time your case requires.  This depends on many factors including the number of hearings, the types of issues, the nature of assets of one or both parties, whether a guardian ad litem is appointed to represent children’s best interests, and whether the parties have reached agreements on some or all issues.

Do I really need to hire an attorney?

Either or both parties may appear in court and get divorced pro se (self-represented).  Before making a decision, meet with an attorney and make an informed decision about whether to proceed on your own or with counsel.  I have seen many cases come back after the divorce is finalized because a mistake was made or the final order was not actually what one party thought it was.  It is often significantly more expensive to hire counsel after the fact to try to fix a mistake than to hire an attorney at the time of the divorce to make sure all issues are addressed appropriately the first time.

Can I get maintenance or will I have to provide maintenance to my spouse?

Whether maintenance is appropriate in your case depends on many factors.  Some of the most significant factors that the court considers often are the length of the marriage, the difference in earning capacities between the parties at the time of divorce, and the age and health of each of the parties.

Can I get an annulment in Wisconsin? 

Legal annulments are granted in Wisconsin only for very specific reasons.  The court may grant an annulment if it finds

  1. A party lacked capacity to consent to the marriage, because of age, mental incapacity, or the influence of drugs or alcohol;
  2. A party was induced to enter the marriage by force, duress or fraud within one year of obtaining knowledge of the fraud;
  3. A party lacks the physical capacity to consummate the marriage by sexual intercourse and this was not known by the other party; or
  4. The marriage is prohibited by law.

Even in cases where the court cannot grant a legal annulment, the parties may be able to pursue an annulment through their church following the legal divorce.

When can I file for divorce?

A divorce can be filed at any time when the residence requirements are met, which is that the petitioner lived in the state of Wisconsin for 6 months and the county in which the petition is filed for 30 days, and the moving party can state under oath that the marriage is irretrievably broken.

How long will the divorce take?

The length of the case depends on many factors, most significantly the type and number of contested issues and the court’s calendar.  By law, the parties have to wait 120 days after filing before the judgment of divorce can be entered.  While this is the minimum, most cases last longer.  The fastest cases occur when where parties enter a complete agreement on all issues quickly.

Do I have to go to Court?

The parties are ordered to appear, at a minimum, for the final hearing.  There may also be temporary order hearings or other hearings or conferences where your appearance is necessary, depending on the facts and procedure of your case.  If you fail to appear at the final hearing, or any hearing, the court can proceed without you, and which means they also proceed without your input and you would be in default.

At what point during the process can a spouse remarry or start dating?

In Wisconsin, a party is not allowed to remarry within six months of a court granting a divorce.  Any marriage within six months of the divorce judgment will be void.  As to dating, there is no law about when this can begin.  However, before a new significant relationship begins, it is important to consider how dating may affect certain orders, such as placement of the children or maintenance.

What if my spouse does not want the divorce?

As long as one spouse wants to proceed with the divorce, the court will proceed.  Both parties do not need to agree for the court to find that the marriage is irretrievably broken.

Do all of the issues – support, custody, alimony, and property – have to be decided before the divorce is final?

In general, yes.  The divorce is granted when the parties have reached an agreement on all issues or after a trial and the court decides the contested issues, so all of the issues are resolved at one time.  In rare instances, if trials last multiple days over a span of time, the court may grant the divorce following the testimony of both parties although the final order or decision on a contested issue may not be completed yet.

After I file for divorce, do I have to continue to live in this state?

The law does not have any residency requirements following the commencement of the action. However, the law does limit how a party can move with minor children if the court has granted periods of placement to more than one parent.

What if I am in the military and out of state?

You may still meet the residency requirements based on where you are a legal resident.  Additionally, only one of the parties must meet the requirements.  The Soldiers’ and Sailors’ Civil Relief Act provides additional protections to make sure that you have notice and the opportunity to respond.

What forms do I need to file a divorce?

The exact forms depend on the specifics of your case.  All divorces commences with filing a petition requesting the divorce.  Unless both parties sign the petition, a summons is also needed to notify the other party of the lawsuit.  The social security numbers of the parties and any children are filed in a confidential addendum.  Each party must also complete a financial disclosure statement.

What typically happens if I go to court to obtain my divorce myself?

At the final hearing, the judge’s clerk will look to make sure all of the required documents are filed appropriately and see if you have an agreement or if issues are contested.  The clerk cannot give you legal advice.  Assuming you have an agreement, the judge will likely review it and ask each of the parties questions both about themselves and about whether the terms of the agreement are appropriate.  The court will the grant the divorce and give the parties instructions.

Can a couple become legally married by living together as man and wife under the state’s laws (common law marriage)?

No, Wisconsin does not recognize common law marriages.  However, civil claims can arise from living together.  If unmarried cohabitants engage in a joint venture to accumulate assets, one party may be entitled to relief through unjust enrichment and partition at the conclusion of the relationship if one party attempts to retain an unreasonable amount of the property, depending on the circumstances.