Elmbrook Law is here to support you and help guide you through even the most difficult times. We will provide legal advice and strategy to navigate rocky roads of issues such as divorce and child custody. If you need a partner in these personal issues, don’t hesitate to contact us.
Call or email to set up a FREE consultation and attorney Greg Straub will walk you through the process of your case.
Call or email to set up a FREE consultation and we will walk you through the process of your case.
Areas of Law We Practice
- Traditional Divorce and Divorce Litigation
- Collaborative Divorce Practice
- Child Custody & Placement (Including Special Needs Issues)
- Child Support
- Maintenance (Spousal Support or Alimony)
- Modification and Enforcement of Placement, Child Support and Maintenance Orders
- Mediation of Divorce/Family Law Matters
- Prenuptial and Postnuptial Agreements
Divorce can be an emotionally charged and legally complex process.
Our job at Elmbrook Law Offices, LLC is to help our clients make sound decisions during these emotional and challenging times.
CONFLICT RESOLUTION OPTIONS
In any family law matter, there are three basic processes to resolve the dispute. Your attorney at Elmbrook Law Offices, LLC will work with you to explain the details of each method and the advantages and disadvantages of each.
Each family is different, and what works for one family or spouse may not be best for another. And while a conversation with your attorney may prove to be the most effective, the following information details the different options available to you for resolving your family law issues.
- Traditional Litigation
- Collaborative Divorce
Litigation is the traditional process, whereby both parties use the court system and procedures to resolve their dispute. The parties may hire an attorney or a party may appear pro se, or representing himself or herself without the aide of legal counsel. A single attorney cannot represent both parties in a family law matter. The attorney will provide legal advice and represent the positions of the client in negotiations and court hearings.
This process is considered an adversarial process in which each side advocates a position based on the client’s personal wants, needs and viewpoints. The parties communicate primarily through their
attorneys, rather than directly with one another, regarding their positions, proposals and counterproposals on the issues in their family law matter.
The process may involve the use of formal legal procedures, known as “discovery,” to secure financial and other relevant information. Discovery may include the use of depositions (a formal taking
of testimony before a court reporter) and the subpoenaing of documents or other material believed to be relevant to the issues. Further, each party may hire experts to support their positions. These
experts may include psychologists, real estate appraisers, personal property appraisers, business valuation specialists, accountants, and others.
If the parties dispute the legal custody or physical placement schedule of their children, the court will appoint a third attorney, called a Guardian ad Litem, to participate in the case as an advocate for the “best interests” of the children. Ultimately, if agreements are not reached, parties and other witnesses testify before a judge who makes a ruling on each disputed issue. Most litigation divorces are eventually settled. However, even if settled, there may be substantial time and emotion spent in the conflict prior to the settlement. For some people, the traditional litigation approach is preferable
because they do not believe they can work directly with their spouse to resolve the issues, and there is a feeling of security using the court methods and procedures to resolve the dispute. The traditional litigation approach has certain deadlines for accomplishing tasks, but the court’s schedules sometimes delays resolution for more than one year from filing.
The traditional litigation approach may not be preferable for parties who can communicate directly about resolving their issues. Because the range of solutions in traditional litigation is limited, the approach is not preferable for couples with complicated emotional, personal, child, or financial circumstances. Traditional litigation also has the disadvantage of being inefficient because there are simultaneous efforts to settle the matter and prepare for trial. The traditional litigation approach can be expensive when all of the court procedures are followed. A considerable amount of time
and money can be spent only to have the case settle prior to trial. If the matter does go to trial, the final outcome may be unexpected. The courts are limited to how they can resolve an issue. The outcome may not meet either party’s needs, and some parties will appeal the court’s decision to the appellate courts.
COLLABORATIVE DIVORCE PRACTICE
Collaborative divorce practice is a process whereby each party hires an attorney and all four work together in a cooperative, non-adversarial approach with a mutual goal of reaching a fair settlement of all issues. The process attempts to avoid the emotional and financial expense of traditional litigation.
The parties and attorneys agree to communicate and negotiate directly with one another in structured four-way settlement meetings. A structured process for gathering information and communicating at and between the four-way meetings is followed. Binding commitments are made by both parties and their respective attorneys to voluntarily disclose all financial and other relevant information, to proceed respectfully and in good faith in settlement negotiations and to refrain from the threat or use of litigation. The parties agree that they will not go to court for trials on disputed issues, and if anyone wants to do so, both attorneys must withdraw.
A child specialist can be used to give feedback and advice on a parenting plan that maximizes the best interests of the children. A financial specialist is used to educate the parties about the financial
consequences and opportunities of a divorce, and to help generate financial options, tax savings, and evaluations.
Other experts may be brought into the process as neutrals who are jointly retained by the parties. These experts may include a pension valuator or a real estate appraiser. This avoids the necessity of having each party hire his or her own expert and create duplicate expenses.
The Collaborative process is not just for people who get along. It is designed for people with difficult situations and complicated cases. The process does not avoid conflict; rather, it is a process that manages conflict and attempts to turn the conflict into creative resolutions. The process also has the goal of managing the conflict to assist that parties to interact in a productive way after the divorce is over.
In mediation, the parties hire a neutral third party to assist them in reaching agreements concerning their divorce. The mediator can provide information about the divorce process and guide a discussion to help resolve issues. The mediator does not represent either party and cannot provide legal advice.
Mediation may occur with parties who have hired attorneys or parties who are not represented. The parties communicate with one another directly in the presence of the mediator. The goal of mediation is to allow parties to reach agreements that meet the needs of both parties and their children without the financial and emotional cost of a court battle.
If the parties proceed in mediation without attorneys, they are responsible for preparing all the required forms for the court, though a mediator may help prepare forms for the parties. The parties must also appear on the record at court for their final hearing to have their agreement approved and the divorce judgment granted.
COMMON DIVORCE Q & A
CAN MY SPOUSE AND I USE ONE ATTORNEY?
No. State law and ethical rules prevent one attorney from representing 2 parties with conflicting interests. Sometimes in other types of cases this can be waived by the parties, but not in a divorce. You may file a Joint Petition for Divorce; however, one attorney cannot represent both parties in a divorce case.
HOW LONG DO WE HAVE TO BE SEPARATED BEFORE ONE OF US CAN FILE FOR DIVORCE?
You don’t have to be separated before you file for divorce. In fact, most people are not and some people even continue to live together until the granting of the divorce, although that is something to discuss with your attorney.
WHO IS ELIGIBLE TO GET A DIVORCE IN THE STATE OF WISCONSIN?
In order to get a divorce in Wisconsin, either you or your spouse must have been a residence of the State of Wisconsin for 6 months prior to filing your Petition for Divorce and either you or your spouse must have been a resident of the county in which the case will be filed for at least 30 days prior to the filing of the divorce action.
WHAT ARE THE GROUNDS FOR DIVORCE IN THE STATE OF WISCONSIN?
Wisconsin is a “no fault” divorce state. An “irretrievable breakdown” in the relationship in the opinion of one of the two parties is the only grounds needed for a divorce to be granted in Wisconsin.
SHOULD I FILE FIRST?
There are a few advantages to filing first. If you are very sure you want a divorce then filing early starts the waiting time required by law before a divorce can be granted. This also creates a mark in time to which the court may refer as the point where the marriage broke down, which will be important if any assets are moved around or hidden.
HOW LONG WILL MY CASE TAKE?
It depends. In Wisconsin you have to wait at least 120 days from the date of service of the Petition for Divorce until you can be granted the actual divorce.
HOW MUCH WILL MY CASE COST?
It depends. At the start of your case, your attorney can estimate how much your case might cost based on the facts you provide but no one can predict the way the other party will react to a divorce or who that party chooses as an attorney for their interests. Simple uncontested cases obviously cost less than a case that involves many issues.
HOW CAN I KEEP MY COSTS DOWN?
Gather records and documents and get them to us promptly and in an organized way. Do not withhold facts. Many things you may believe are too sensitive to tell can haunt you if you do not bring them up right away. Negative things can be dealt with early and the effect minimized and advantages learned early can be maximized. Make a list of things to talk about before your call—that will help to keep communication organized and productive. Don’t bring your attorney into emotional contests with your spouse.
CAN I KEEP USING THE CREDIT CARDS?
Yes, but be reasonable. Use the credit cards for necessities and utilities. Don’t go on a spending spree—that will only hurt you later.
MY SPOUSE HAS A LOT OF CREDIT CARD DEBT. WILL I HAVE TO PAY ANY OF IT?
In all likelihood credit card debts will be considered marital debts. An important exception is “marital waste”. Ask your attorney about this. Sometimes specific charges are assigned to one spouse because of waste or for other reasons but if the cards were used for everyday necessities (food, gas, etc.), the debt is simply another form of marital debt.
CAN I CANCEL THE CREDIT CARDS?
Yes. If your spouse is running up a lot of debt, but canceling the credit cards is only a good idea if done fairly and with warning. The Court will not look favorably on any party who acts in a way the Court sees as vindictive.
WHAT IS THE DIFFERENCE BETWEEN LEGAL CUSTODY AND PHYSICAL PLACEMENT?
“Legal custody” means making major decisions affecting your child(ren), such as medical care, education, and religion. “Physical placement” means the amount of time your child(ren) spend time with each parent.
CAN I MOVE WITH MY MINOR CHILD(REN)?
The rule is different before a divorce and after the divorce is final. In either case, distance and state lines matter. As long as you are not moving out of the State of Wisconsin or more than 150 miles away from your spouse it is easier. If, however, you are seeking to establish residency with your child(ren) outside of the State of Wisconsin or more than 150 miles away from your spouse within the
State, then you must follow very specific rules including notifying the ex-spouse and giving time to object and obtaining a court order. Absent your ex-spouse’s agreement, you will need to obtain permission from the court to move.
HOW OLD DOES A CHILD(REN) HAVE TO BE BEFORE HE/SHE CAN DECIDE WHERE TO LIVE?
The answer to this question is 18. Before that, the child(ren)’s wishes matter, but the parents decide and if they do not agree, a court makes a ruling while considering the child(ren)’s wishes along with many other factors. The maturity of the child(ren) matters as well as what you and your spouse are like. Child(ren) can make their wishes known to the court through their Guardian ad Litem or other court-appointed experts, who will convey the important issues and ideas to the judge. Your attorneys should not meet with your child(ren).
ARE THE CHILD SUPPORT PERCENTAGE GUIDELINES WRITTEN IN STONE?
No, they are guidelines. Courts sometimes deviate from the guidelines, depending on the circumstances. However, the guidelines for a payer who has the child(ren) less than 25% of the time set forth in the Wisconsin Statutes are as follows:
1 child – 17%
2 children – 25%
3 children – 29%
4 children – 31%
5+ children – 34%
All amounts are percentages of gross income. These percentages are used to reach a set money figure on a monthly basis when each parent has the child(ren) for at least 25% of the time, the child support will be based on a calculation that includes both parents’ incomes.
DO I HAVE TO PAY SUPPORT EVEN IF THE CHILD(REN) ARE WITH ME PART OF THE YEAR?
It depends. If you have placement of your child(ren) at least 25% of the time, the child support calculation may result in a lesser amount of support paid to the other parent. You must abide by the language of your most recent court order as it pertains to child support. If you think the order warrants a modification, you can go back to court to change it. Until it is changed, you must obey it.
MY EX-SPOUSE DOESN’T LET ME SEE MY CHILD(REN). DO I STILL HAVE TO PAY SUPPORT?
Yes. You can enforce your rights to see you child(ren) (any the child(ren)’s right to see you). However, you must still obey the court’s child support order regardless of whether you see your child(ren).
WHEN DOES CHILD SUPPORT END?
On the child(ren)’s 18th birthday or if your child(ren) will still be in high school on his or her 18th birthday, then child support is extended until graduation. Remember: child support won’t automatically cease. It is the payor’s obligation to notify the child support agency of such change or it will just go on until the State gets notice.
CAN I CHANGE THE LOCKS ON THE HOUSE?
Only after the court has issued an order giving you exclusive use of the home or ordered the other spouse to avoid your residence because of domestic violence.
HOW IS THE PROPERTY DIVIDED?
With a few important exceptions, you will receive all of your non-marital property, and your spouse will receive all of his or her non-marital property. Generally speaking, all of the marital property (and debt) will be divided based on a 50/50 presumption. However, some circumstances may allow for an unequal property division.
CAN I GET A PORTION OF MY SPOUSE’S RETIREMENT?
Yes. Generally, contributions made during the marriage to any retirement account are marital property. The amount which each party is entitled to upon divorce must be determined by the court in each individual case. Retirements benefits earned before the marriage or after the divorce is finalized may form the basis of an unequal award of debt or assets based on fairness.
HOW MUCH MAINTENANCE (ALIMONY) WILL I GET, AND HOW LONG WILL IT LAST?
It depends on the circumstances of your case. There is no magic formula. The court must consider many factors in determining whether to award maintenance and, of so, the amount and duration of maintenance to be paid.
CAN THE AMOUNT OF MAINTENANCE EVER BE CHANGED?
Yes, by showing that there has been a substantial change of circumstances.
IF MY SPOUSE FILES FOR BANKRUPTCY, WILL I BE RESPONSIBLE FOR OUR JOINT DEBTS?
The answer to this question is very complicated, but generally, yes, you will be encouraged to file along with your spouse in most cases to save money and problems. After the divorce if an ex-spouse files, you will be protected in most cases if your divorce decree is properly drafted.
HOW SOON AFTER MY DIVORCE CAN I GET MARRIED AGAIN?
Under Wisconsin law, it is illegal to marry again until 6 months after the Judgment of Divorce is granted. This is true even if you marry outside Wisconsin. Any marriage before 6 months is “void”.