Family Law Frequently Asked Questions
How much does a divorce or legal separation cost?
The total cost to complete the case varies depending on the complexity of the issues and cooperation from each side. For example, if a business is owned by one or both parties, will a valuation have to be performed by an outside expert? Will the marital residence need an appraisal? Costs for experts and fees for attorneys vary. Are both parties forthcoming with providing requested information, or is a formal discovery process necessary? Similarly, can the parties agree to certain issues, or will the attorney have to prepare for court hearings? These are some of the factors that affect the costs of divorce. At Boardman Clark, we do everything we can to keep your costs down. Our attorneys will work with you and your spouse or his/her counsel in a cooperative manner to settle all matters as efficiently and cost-effectively as possible. When it is appropriate, we urge clients to consider the Collaborative Divorce process, which can greatly reduce the cost of some parts of the divorce like information gathering and court time.
Can we save costs by having the attorney represent both of us?
The rules governing lawyer ethics mandate that we represent only one party. Some couples decide that only one of them will retain us and the other will proceed without an attorney and retain an independent lawyer to review the paperwork on his/her behalf when the matter is being finalized. That can save on costs, but both parties need to understand which person the attorney is representing.
If I have a consultation with an attorney, does my spouse need to know?
No. Your consultation is confidential. Anything you discuss with your attorney, or any other member of our firm, is held in the strictest of confidence.
My spouse and I have agreed to a Collaborative Divorce. What are the pluses/minuses of Collaborative Law?
With a Collaborative agreement in place, the parties agree to communicate openly with an honest and transparent exchange of information. They also agree that they will resolve any divorce issues between themselves and with the help of collaborative professionals, and that they will opt out of any contested court proceeding. There are many advantages to the collaborative process, and it can be an efficient and very effective way to get through a difficult divorce. Collaborative Divorce is not for everyone or for every case. We encourage clients to review the Collaborative Family Law Council of Wisconsin (CFLCW) website (collabdivorce.com) and be prepared to discuss this process option with our attorneys at the initial conference.
What is mediation? Do the Boardman Clark attorneys mediate divorces?
Mediation is a voluntary, confidential process that helps parties narrow and resolve disputes arising in divorce. Our family law attorneys all are trained to mediate divorces, and they frequently act as mediators assisting the parties in resolving their divorce issues. However, if the attorney acts as a mediator, he/she cannot give legal advice to either party. The attorney is a facilitator only, and helps the parties resolve their issues and proceed on their own with finalizing the matter with the court.
My spouse is “Difficult” with a Capital D. Should I even try mediation or Collaborative Law when I don’t believe she/he will cooperate?
Sometimes, clients have no choice but to invoke the court process to get orders in place in order to create some order out of chaos. Going to court will usually be more expensive because of the need to prepare and present matters more formally. Having said that, the legal costs can also be significantly higher when there are failed attempts at mediation/collaboration and the parties are forced into the court process anyway. Using either mediation or the Collaborative process requires a commitment on both sides to compromise in order to reach agreement.
Boardman Clark attorneys are at home in the courtroom. Although most of the time we believe it is better for divorcing couples and families to reach a settlement, sometimes that simply isn’t possible. Several of our attorneys are graduates of the American Bar Association and National Institute for Trial Advocacy’s family law litigation institute. We will advise you carefully about your options, but if litigation is the best way to handle your case, we can do the job.
DIVORCE VS. LEGAL SEPARATION
I’m not sure if I should file for legal separation or divorce. What is the difference?
In most cases, there is not a significant difference between the two. Parties tell the courts that their marriage is “irretrievably broken” when they ask for a divorce. They tell the courts that the “marital relationship is broken” when they ask for a legal separation. With a legal separation, the couple still invokes a legal process that ends in a division of property, orders on support, if applicable, and orders on custody and placement of minor children, if applicable. The attorney you meet with for your initial consultation can discuss your specific situation and help determine which filing is advisable for your particular situation.
My spouse and I haven’t lived together in months, and we’ve both just paid our own bills. Are we legally separated?
No, you’re only physically separated. Officially, you are still married, and unless you have a court order for “legal separation,” you are not legally separated.
If my spouse filed for legal separation but I want a divorce, how/when can I change that?
A case filed as a legal separation can be converted to a divorce by a simple written request.
Do I/we have to go to marriage counseling before I/we can file for divorce?
It is not a requirement, but if you believe counseling may save your marriage, you may wish to try it before filing for a divorce or legal separation. Some people going through divorce find it useful to go to counseling on their own, or to work with a divorce coach to help them through the process. Divorce coaches can play an important role in the Collaborative Divorce process, too.
I’ve only been in Wisconsin a few weeks, and my spouse still lives out of state. Can I file here now?
There is a residency requirement in Wisconsin for filing for divorce or legal separation. For a divorce, one of the two parties must reside in the state for a minimum six months, and must reside in the county where the case will be filed for at least 30 days prior to filing. For a legal separation, one of the parties must meet the 30-day residency requirement for a county in Wisconsin.
How long does a divorce take?
Our laws have a 120-day waiting period between the time a divorce begins and the final hearing, and that waiting period can only be waived in an emergency. However, if you and your spouse cannot agree on many issues, it would be very unusual for a divorce to be completed that quickly. It is more typical for a divorce to take six months to a year.
Will the judge look at me like I’m the “bad guy” if I’m the one filing for divorce?
No. It is generally understood that if a divorce petition has been filed, there are irreconcilable differences in the marriage causing it to end. Wisconsin also is a “no-fault” state, which means the court will not assign “blame” against either spouse. In many cases, the court never even hears about the reasons for the divorce.
I don’t want a divorce. Can I stop the divorce and make my spouse go to counseling?
Wisconsin laws do allow a judge to order parties to attempt counseling in some situations, but that is extremely rare. In the end, the court can grant a divorce even if only one person asks for it.
CUSTODY AND PLACEMENT OF MINOR CHILDREN
I’ve done some online research — does placement of children always work out to “50−50”?
There are many factors that affect placement, and many ways to determine what a placement schedule will be. In “typical” cases where both parents are good parents and there are no unique circumstances warranting otherwise, parents often agree to an equal placement schedule. If the parents cannot agree on a schedule, the court will be required to order a schedule, and when doing so, the judge is obligated to “maximize” the amount of time that the children spend with both parents. However, many factors impact the ultimate decision on the actual placement schedule.
What happens if we can’t agree on a placement schedule or other issues regarding what is best for our children?
In Dane County, the Family Court Counseling Service (FCCS) offers three basic services in an effort to help parties come to an agreement on custody and placement issues. First, the FCCS offers Parent Education Classes. Second, FCCS will conduct a mediation with the parties. This mediation is usually held after the parents attend the required education class. If mediation is unsuccessful, then a study may be conducted by FCCS. When it appears that the parents will not be reaching an agreement on matters regarding their minor children, the judge or court commissioner will appoint a Guardian ad Litemto represent the best interests of the children.
What is a Guardian ad Litem?
A Guardian ad Litem, or “GAL,” is an attorney appointed by the court to represent the best interests of your child or children if the parents cannot reach an agreement. The GAL will meet with both parties and sometimes with the children, depending on their ages, and he or she does an investigation to help determine what would be best. When a GAL is necessary, the cost is usually shared by the parties.
My spouse has a problem with alcohol/drugs. I’m concerned about leaving the children with my spouse. What can be done?
This is a factor that could cause a parent to request that a custody study be done and/or a Guardian ad Litem be appointed sooner rather than later. If this is a concern, you should bring it up during your initial conference with the attorney.
I’ve always been very honest with my children. Should I keep them posted on the progress of the divorce?
Absolutely not. Of course, children should be told about the divorce, — at the appropriate time and in an appropriate way — because they need to know their parents will be living separately. They usually need to hear that both parents love them, and that the divorce has nothing to do with the children (it’s not “their fault”). Depending on their ages, they will need to be told that, because the parents will be living separately, on certain days they’ll be with Mom and certain days they’ll be with Dad. Other than that, most divorce professionals agree that divorce should not be discussed with the children. Children should never be told things such as: “we can’t afford that because your Dad hasn’t paid child support in months” or “yes, you do have to go to Mom’s today, or she’ll file another court paper against me.” Married or divorcing, it’s never a good idea to denigrate the other parent to the children. And, they certainly do not need a blow-by-blow of negotiations or court procedures.
SPECIFIC ASSETS, DEBTS, AND PROPERTY ISSUES
I have a Wisconsin Retirement System (WRS) account. What will happen to that account in the property division?
There are many variables that can affect whether the account is divided or how it may be divided. The court does have the authority to award to the other spouse (the “alternate payee”) up to 50% of the current WRS at the time of the final divorce. The court order that awards a portion of the account to the alternate payee is called a Qualified Domestic Relations Order (QDRO). For more information, check the State of Wisconsin’s Department of Employee Trust Funds website: http://etf.wi.gov.
We’ve always kept separate bank accounts. Can we just keep what’s in there?
In most cases, yes. Talk with your attorney about how to handle accounts on a temporary basis and what to expect for a final division of the accounts.
We have a joint bank account. Can I move half or at least a portion to my own account?
It may be entirely appropriate to move certain funds at the time of filing a divorce or separation action. It depends on all of the financial circumstances of both parties. The law requires both parties to fully disclose all assets, income, and debts while the case is pending. If you are unsure of your rights to certain joint accounts or portions thereof, ask the attorney at your first meeting what you can do with joint funds.
I just found out my spouse has credit cards I didn’t know about, and they’re maxed out. What can I do?
This can be a difficult situation. Wisconsin is a marital property state and the presumption is that any spending, including credit card spending, by one spouse is for the benefit of both spouses. One option you have is to file for divorce or separation, in an attempt to protect yourself financially. Depending on the circumstances under which the cards were obtained and how the expenses were incurred, the spouse incurring the debt may be held totally responsible for it.
My spouse is telling me I need to leave the house. It’s my house, too — do I have to go?
This depends on many things, such as whether there are children, what their schedules are, whether the two of you can afford two residences, and so on. Often divorcing parties need a temporary order from the court, which establishes some rules for what happens while the divorce is going on, including access to the family home. This is a good question to ask an attorney at your first meeting
What is maintenance?
Maintenance is the financial support from your former spouse that many people call “alimony.”
We’ve only been married a few years. Can I still get maintenance?
(converse: We’ve been married more than 20 years. Am I guaranteed maintenance?)
Many factors go into the determination of maintenance. Because no two cases are the same, and because there are a multitude of variables that affect the right to receive maintenance, only one of which is the length of the marriage, it is best to discuss this directly with the attorney.
I never worked during our marriage; I stayed home with the children. Must I get a job because of the divorce?
This is something that will be determined on a case-by-case basis, and will depend on the ages of the children and other circumstances for everyone in the family (including, among other things, all financial circumstances, ages, and health issues).
One of our children graduated from high school — what happens with the amount of child support being paid?
Generally speaking, child support, if ordered, will be paid until the youngest child reaches the age of 18, or if that child is still in high school, when he or she graduates from high school or turns 19, whichever occurs first. If there is more than one child, support is reduced each time an older child graduates from high school or turns 18⁄19.
What does the term “variable cost” mean?
Variable costs are the extra costs of bringing up a child, beyond the basics of food, shelter and clothing. Examples of variable costs are: music lessons, participation in sports, extracurricular activities, tuition, day care, etc. Things like groceries and other standard living costs that occur during a parent’s placement time are not considered variable costs. Parents often negotiate an arrangement for the sharing of the variable costs for their children.
Who should be responsible for covering the children’s insurance premiums/uninsured costs?
While you are in the divorce process, the insurance in place at the time of filing should stay in place, if possible. At the time the divorce is finalized, if both parents are working, they should review the cost to them for single insurance and family insurance premiums, and also review deductibles and the general plans. Once it is determined who will cover insurance, the person not covering the children generally reimburses the other parent one-half the cost difference between the paying parent’s single coverage and family coverage. For example, if single coverage would be $50 per month and family coverage is $200 per month, the non-covering parent would pay $75 per month toward the children’s coverage to the covering parent. It is often standard practice for both parents to contribute equally to any other uninsured medical expenses, but there may be some unique circumstances to agree or obtain an order otherwise.
We lived together the first few years after our child was born. Now my partner is moving out. Do I have to pay child support back to the time when our child was born?
Generally speaking, no. The court presumes that both parents were providing support (financial and otherwise) to your child while you lived together, just as married parents do. Child support, typically, will not be ordered retroactively. If the parents later separate and child support is then ordered, it is usually only ordered as of the time of the request, not the birth of the child.
My spouse and I have already decided that the children will live with me half the time and with her the other half. We don’t need a child support order then, right?
It isn’t that simple. If both of you earn about the same amount and you are sharing other expenses equally, there may be no need for child support to be paid. However, if one of you out-earns the other, child support may be needed even if the children’s time is shared equally.
We were divorced years ago. My former spouse seems to only follow the parts of the final order that do not work in my favor. How can I make sure all parts of the order are followed?
Sometimes a simple letter from your attorney can remind a former spouse of his/her obligation to follow a court order. If the former spouse still won’t comply, it may be necessary to file a contempt motion to request a hearing at which the Commissioner or Judge could find the non-complying former spouse in contempt. If the former spouse is found to be in contempt, the court will generally allow him or her an opportunity to “purge the contempt” — that is, pay what is owed or do whatever was ordered that has not yet been done (help prepare a house for sale, abide by a placement schedule, sign over a title to a vehicle, etc.). The court may also sanction the former spouse for not following the court’s orders.
My spouse and I divorced last year. The schedule we chose for our children just isn’t working out, and I want to change it. Can I?
It is very difficult to change a child placement order within the first two years after the judgment of divorce, but there are some situations when it can be changed, and you should check with an attorney who can look at the facts of your situation. It is easier to change if both parents agree.
DISCLAIMER: The information provided is for general informational purposes only. This post is not updated to account for changes in the law and should not be considered tax or legal advice. This article is not intended to create an attorney-client relationship. You should consult with legal and/or financial advisors for legal and tax advice tailored to your specific circumstances.