Wisconsin Divorce Legal Questions

Under Wisconsin law, all property acquired either before or during the marriage is presumptively equal. The only exception is gifted or inherited property acquired from a third party. The home they built together is marital. The home should be appraised by agreement or by an order of the court to determine its' value. The equity is determined by fair market value (appraised value) - the current mortgage loan payoff. If that number is $200,000 by example, to keep the house she would have to pay him $100,000 and be required to refinance the mortgage into her name only so title and the mortgage can both be cleared. If they are both fighting for the house, chances are at trial, the court very well may simply order that the house be sold.       If they have minor children, the court can consider as a  factor letting the parent with  primary placement to stay in the home to take care of the children.... Read More

When you agreed to stop your ex from making payments to you, did you do this informally between both of you or formally with a stipulation and order filed and approved by the court? If formal, was lamguagecused that maintenance was "held open" to you? If so, and  there is a substantial change of circumstances, the answer to your question is yes, you are  within your rights to take him back to court and ask for support.       If you did this informally, and didn't submit a formal agreement to the court, arguably you could try to collect on the arrears built up from the non payments of support and could file a contempt motion to enforce the original terms of the agreement.... Read More

The statute on the prohibition to remarry says "six months." It does not speak to days. 6 months from December 23, 2016 would be after June 23, 2017, not before. I understand your point, but if I am right and you are wrong, your marriage would be null and void under the law; that seems to be a big risk to run, as opposed to waiting for a few extra days to make sure 6 months have truly gone by.... Read More

You raise an interesting question. Property division issues are "final" when you are divorced. I am not sure in my 34 plus years of practice I have ever had anyone ask to give back property that they were awarded from when they were divorced. Since we are uniquely dealing with a pension (defined benefit plan), the answer to your question may be where you currently are with receiving the benefits. If you were awarded a portion of the pension, and your ex has yet to reach normal retirement age where you can draw on his pension, and assuming further, no qualified domestic relations order (QDRO) was drafted and filed, it may be possible for you and your ex to enter into a post divorce stipulation and order to waive your interest in the pension and file it with the court for approval. If on the other hand, the qualified domestic relations order was completed and filed with the court and the  plan administrator, it may be now impossible to reverse that QDRO and have it undone. I am honestly not sure if it can be reversed without checking with an expert who is experienced in drafting QDROs and dealing with employee benefits. If the QDRO is properly done and filed and your ex is plan in pay status, or he is retirement age and continues to work, but you are already drawing your share of the pension, your other option is simply to pay him back the money each monnth as you receive it. That is a bit more tedious than undoing the orders and never receiving the benefit in the first place, but it could certainly be done that way. I would also suggest to you that you critically think through your decision.  The marital estate was to have been divided 50/50. I am curious why you only received 25% instead of 50% and you offer no explanation for that in your post. Before you decide to give back what is already yours, because either you don't finanically need it, or maybe feeling sorry for your ex, a lot of things could happen down the road where you may regret the decision. I don't want to burst your bubble, but your new marriage could result in a divorce, or worse, what happens if your new husband dies and you are on your own. At that point, you might really need that 25% pension benefit each month. Give it some very careful thought.... Read More

Each state has its own residency rules-but they often require that at least one of the spouses have lived in the state for at least six months, and in the county where the case is filed for at least 30 days. There is generally no restriction on where the other spouse lives-but you must be able to serve them with the summons and divorce petition.... Read More

It is very rare for defamation to be treated as a criminal offender. There will not likely be any criminal prosecution based on your report. Civil defamation might be available. But courts do not like defamation actions and proving your damages is likely to be expensive, difficult, and unavailing. Even if you could win a judgment against her, could you possibly collect it? You may want to consider seeking an anti-harassment injunction. Consult a skilled lawyer. It's almost always worth it.... Read More

Did your ex wife disclose in her financial disclosure statement as part of your divorce case that she had cashed in or taken money out of her 401k? How was her 401k divided up in the divorce? You may be able to bring a motion under s.767.125 (5) or 806.07 to reopen the judgment to consider the tax consequences. You need to talk to an experienced family lawyer about this ASAP.... Read More

If there is nothing in your divorce decree about your horse or what happens to it, that is sort of a major problem at this point for you.  You will need to file a motion with the court under s. 767.125 (failure of an asset to be disclosed) or s. 806.07, motion to reopen order or judgment for leaving out of the divorce judgment, which party is awarded the horse. ... Read More

the general answer to your question is no; check with the clerk in the family court commissioner's office in the county where you will be filing, to make sure that you are required to come in for a first hearing. If not, and you have things worked out on a temporary basis, you can keep things informal for now as long as you continue to live together temporarily. If you separate, there maybe one a need to have a first hearing or submit a stipulation and order to cover temporary finances while the divorce is pending.... Read More

All debts whether incurred before or during the marriage are presumptively 50/50 under the Wisconsin divorce code; if there is a showing of marital waste, that would be an exception to the presumption that the debt or obligation served a family purpose; gambling would be an example, ifvexcessivecand a pattern of practice during the marriage.... Read More

Presumably you are talking about the equity in your home. If you plan to keep it as part of the divorce, you first need to determine the value and equity; you can agree upon the value, use your property tax bill or have the home appraised. The equity is determined by the fair market value less the current mortgage loan payoff; once the equity is determined, you will need to go to the bank or a mortgage lender to refinance and have the loan pit just in your name and pay your spouse half the equity. If you cannot accomplish that, presumably the home would have to be sold and each of you split the equity at sale. You can also consider using other marital assets to pay him half the equity. If they have a pension or 401k, you could consider your 50% share of those assets against their share of the equity they are entitled from the house. You would still need to refinance the mortgage into only your name, butvtgis might avoid having to borrow more money to do the cash out.... Read More

Both sides in a divorce are allowed under Wisconsin law to conduct formal discovery, under chapter 804. If you were served with formal request for production of documents or written interrogatories, you are required to respond within 30 days. So the answer to your question is yes; presumptively also under WI law, all assets and all debts are considered 50/50; your HELOC loan falls into the same category. It is presumed to be an equal marital responsibility and to have served a marital family purpose; their trying to carve out a portion of the loan that only applies to them is an interesting argument, but not consistent with the law, unless you gambled away the money or otherwise engaged in marital waste.... Read More

In order for either of you to seek a change in child support, you must show the court that there has been a significant and substantial change in the finacnial circumstances of the parties since the entry of the last court order. There is a presumption under WI law that if 33 months have gone since orders were last set, that there is a substantial change. One would need to know if you have a shared placement arrangement for your children or if your ex has primary placement. If she has primary placement, her income is not a factor in the setting of child support. You are required to pay the support guidelines under WI law and DCF guidelines. If you have a shared or equal placement arrangement, there is a different formula for calculating support that consider both of your incomes and the percentage of time you both spend with the children. if it is a shared placement arrangment, her going on disability could be a substantial factor in modifying the current child support order. Also, under federal law, if she goes on social security disability, your children would be allocated a portion of the disability money for support. At least, that is my understanding.... Read More

You will need to talk to an Illinois family lawyer to see what the residency requirements are in advance prior to filing for divorce in that state. In Wisconsin, you must be a resident for six consecutive months prior to filing and reside in the county for 30 days prior to filing. If you meet the residency requirement for illinois, you may want to agree with your spouse to have the Florida family law case dismissed and refile it in Illinois. There may also be an issue of jurisdcition under the uniform chld custody act. The "home state" is where the child is lived during the last 6 months. I can't tell from your post how long you lived in Florida and how long you have lived now in Illinois.... Read More

Under Wisconsin law, compensation received from an injury case is not exempt as it is not a gift nor an inheritance, which are the only items excluded from presumed 50/50 property division. However, the case law dealing with injury money, basically allows the court to deviate from 50/50 property division to award the injury money to the injured party. The non-injured spouse is entitled to receive a portion of the settlement dealing with compensation for paying unpaid medical and hospital bills and any loss of wages due to the injury. That would cover the worker's compensation injury cliam. In regard to the social security disability claim and the worker's compensation claim, regardless of property division rights, the money clearly can be used to cover child supprot and spouseal support (maintenance). It is not excluded under DCF 150 guidelines under WI state law. Further, if you have minor children, they will receive an automatic share of the social security disability portion of the claim, under federal law.... Read More

The answer to your question is no; your spouse cannot kick you out of your own home. It is your home too and you have every right to be there. The only person who can decide whther you need to leave the home or your husband does, is the court. This is usually done at an initial hearing before the court commissioner, once the divorce is filed, or if there is an issue of harassment or domestic violence, at a restraining order hearing. Absent either of those, your husband cannot kick you out of your own home. Title to the property has nothing to do with it, nor how much you do or don't contribute to the home financially. Under Wisconsin law, it is presumptively 50/50 when getting a divorce.... Read More

The court has discretion to consider letting the custodial parent remain in the home with the minor children. I would also want to know what is your home worth, (current fair market value less mortgage balance) to determine the equity, because if you are going to keep the house, you will over time have to refinance the mortgage just into your name and pay your husband half the equity in the home. In regard to child support, there are two formulas in Wisconsin for calculating child support. If you have primary placement, your husband will pay you a percentage of his gross montly income. For two children, the percentage is 25% of his gross. Your post doesn't indicate how many children you have. In regard to spousal support, one would need more facts to determine if your case qualifies for spousal support. (maintenace). how long are you married? What is your respective ages? How much money does your husband earn? How long has it been since you worked? When you did work, what did you earn? Why are you not working now? Do you have any health issues that prevent you from working? what are the ages of your children? What is your educational level? All of these and perhaps other factors, all weigh in on whether this is a maintenance case or not, the chief issue being the length of the marriage. On any marriage of less than 7 years, you probably will not convince the court you should receive maintenance. On any long term marriage of 20 years or more, maintenance must be addressed very carefully and is an issue in longer term marriages that the court will need to resolve.... Read More

The answer to your question is "it depends." If you received half the 401k money, than you are going to be obligated to pay half the taxes that are due on it. If you received none of the money, than i can easily see the divorce court making your husband to be 100% responsible for the taxes due and to hold you harmless of any tax liabilites if the IRS or DOR comes after you under marital proprerty law for your share.... Read More

The answer to your first question is to look at one of the not for profit law firms in your area. Legal Action of Wisconsin, Legal Aid Society, Centro Legal in the Milwaukee area, are possible starting points for you. Secondly, many local county courthouses are not putting on free limited legal advice clinics. There is one in Milwaukee County daily that can provide limited advice to you and help you with the drafting of the divorce papers. Waukesha, Ozaukee, and Washington County have similar programs. These limited legal advice clinics cannot provide lawyers to go to court with you and represent you, but they can offer limited help if you can't afford an attorney, and also help with much of your paperwork along the way. Since I can't tell from your post where you are living, you should contact the court house in your area and see if they offer a free limited help family law clinic. On your second question, you can request maintenance from your wife, but simply because you are requesting it, doesn't mean you are going to get it. One would need many more facts from you to discuss what your chances might be for making a maintenance claim against your wife; such factors as how long you are married, how old you both are, what she does for a living, how much money she makes, what your earning capacity was when you were working, are all factors to be considered. Since you also state you were in a  car accident at work, I don't know if you are pursuing a worker's compensation case or a third party was involved and you are making a third party claim for injury. If so, it may be possible that your injury lawyer could refer you to a family lawyer to help you with the divorce case, and take a lien on your setltment that they would get paid from your settlement when received. The fees cannot be contingent however on your settlement. The lawyer wiould have to bill you per hour, keep track of their time and provide you monthly billing statements. They simply would waive the up front retainer and not expect that you pay each month as the work progresses. In exchange, you agree to pay them in full when your case settles, and if your case doesn't settle, you personally would be ultimately be responsible for payment. This arrangement must be in writing and signed by you and both of the lawyers.... Read More

There are plenty of attorneys around. Set up a conference with another attorney to get a second opinion on what the issues are that remain, how long it will take to litigate the issues and what the cost might be. If the fee agreement does not require a second retainer, you are not obligated to fork over more money now to the attorney. Review the fee agreement carefully.... Read More