Wisconsin Divorce Legal Questions

In answer to your question, probably not, but of course, no one can offer you any guarantees or promises. Wisconsin divorce law presumes that all property brought into the marriage or acquired during the marriage is presumptively equal.  The only exception is gifted and inherited property received from a third party. Courts have discretion under s. 767.61 to deviate from equal property division after considering all the factors listed under the statute. The two key factors for you are the length of the marriage and property brought into the marriage by either party.        Courts on short term marriages tend to restore the parties back to the way they were at the time of the marriage. Property acquired due the marriage remains equal and any enhanced value of a pre marital asset gets divided. The value of the pre marital asset remains intact and is restored to the person who brought the asset into the marriage. Your wife makes an interesting settlement proposal; she keeps 100% of her retirement plan, but takes 50% of your business value. That is fundamentally unfair, and I don't see a court doing that. If she is going after half your business, she will also be required to hire a business appraiser to present a business valuation and that can cost thousands of dollars depending on what type of business you have. Next time, get a pre-nup done. If they are done correctly, they are legally binding in a divorce case.... Read More

if you have a valid pre-nuptial agreement, you should refer to it in the petition for divorce, and attach it as an exhibit to the petition. It does not need to be notarized to make it legal and binding. If instead of a pre-nup, you are referring to a marital settlement agreement, and have all issues of your divorce case settled, similarly you can refer to that in your petition and attach it to your petition or file it separately after the divorce is filed with the court. The marital settlement agreement also does not require to have signed notarized signatures.       The answer to your last question, is that you will need to wait 120 days after your spouse gets served with the divorce papers before you can be divorced in Wisconsin. The 120 day waiting period is statutorily mandated to all couples getting a divorce in Wisconsin.... Read More

Taking gitfted and/or inherited property, which is exempt from property division when getting a divorce, and mixing it or commingling with marital assets arguably changes the character of the exempt asset into  presumed 50/50 property division. This would apply to paying off joint marital debts as well, in my opinion.... Read More

This is a common problem with going through a divorce, a lawyer  who appears to thwart the settlement process. It is not necessarily unethical conduct, but if you feel otherwise, you have the right to file a grievance with the office of lawyer regulation, the better remedy in my opinion, would be for you to talk heart to heart with your spouse and express your feelings that you feel their attorney is hindering settlement and encourage them to go get a second opinion from another lawyer about possibly taking over the case. ... Read More

I am not sure I understand your question. To file for divroce in Wisconsin, you must be a resident of the state for 6 conseuctive months and a resident in the county you are filing for 30 conseuctive days. For Legal separation, you must be a resident for 30 days in the state and county and can later convert to a divorce. I don't know what you mean by your comment that Wisconsin isn't listed in the "top states."  Top states for what?   If you are residiing here, it would be best to consult with an experienced family lawyer in advance to find out what your rights are and whether you qualify on residency grounds, to file for divorce here.... Read More

The question in divorce usually involves  MINOR children. If  there are children of the marriage but they are all adults, I don't really see what your concern might be. It depends how the question was asked in court, in the initial petition for divorce and in your divorce decree (findings of fact, conclusions of law and judgment of divorce).... Read More

I just lectured on that very topic as part of a panel in Madison for the WI state bar on lawyer ethics. The answer to your question is that it depends. Just because you talked to the lawyer doesn't necessarily mean there is a conflict of interest for your spouse to go and hire that same attorney.  I wouldn't do that, but I know there are some lawyers who would. The real question is how much time was spent during that initial contact with you and what was gleaned from the conversation. If the attorney spent two minutes with you on the phone and he quoted you a fee, there probably would not be a conflict of interest. If you went on the other hand to see the attorney in person and spent an hour at their office, discussed your case, finances, important information about your children,, and the attorney has gained insighful information that they can now use against you, yes it is a conflict and the attorney should not be properly representing your spouse.... Read More

The answer to your question is no; within $10,000 you have basically equally divided the estate. Technically, $5,000 is owed. However trading lucrative pension benefits for keeping the house is not always a good financial move. Make sure the pension is professionally valued so you know what is really currently worth; also consider what receiving 50% of your spouse's monthly pension at retirement over your life time means to you, so you can make an informed decision whether keeping the house and being one hundred percent responsible for its upkeep and maintenance , is really in your best financial interest. Consider talking to a family lawyer or financial advisor about this, before making a final decision.... Read More

If your spouse is threatening you with divorce and/or the removal of the children, you are well advised to consider beating her to the punch by filing a  family law action, such as  divorce or legal separation. By doing so, you will be triggering the state law in Wisconsin that prohibits the removal of the children from the state or moving them within the state more than 150 miles from the other parent. Right now, she can do whatever she wants. Once you file and she gets served, the prohibition applies during the divorce and after the divorce, unless the court holds a hearing and allows the move. There are also jurisdictional concerns under the uniform child custody act. "Home state" jurisdiction is determined under the UCCJEA, where the children have been residing during the last 6 months. If she moves out of state and is gone for 6  straight months, the state that she moves to could become "the home state," and force you to litigate the issues of custody of your children in a foreign state. You should consider sitting down with an experienced family lawyer as soon as possible to discuss your rights and what you need to do to protect yourself and your children.... Read More

This is the frustrating part of practicing law as well for us a practitioners, either  where other lawyers or litigants fail to do what they are required to do, creating extra aggravation for our clients and making extra work for us. While I am not sure I can specifically answer your question in  terms of federal law or employment law that puts some arbitrary cutoff point on how long your retirement benefits may be tied up, you do have a few remedies; 1. file a contempt motion with the divorce court to compel your ex to complete the pension/ 401k process. He can hire a new attorney if he needs to do this. It is in his best interest to do so, because every day that goes by where the QDRO is not completed to divide up the plan, puts his 45% interest in peril.  2. Hire your own lawyer to complete the QDRO to send to your employer. This may be significantly  cheaper and quicker than messing with a contempt motion that may takes months for you to get a court date, or do both at the same time.... Read More

A pension benefit is only payable to the alternate payee as the plan allows; that usually means normal retirement age as the plan dictates. Some plans allow the plan recipient to start receiving  their monthly benefit at an earlier age than normal retirement, but it is usually a reduced benefit. Normal retirement might be age 62 or 65. Early retirement might be age 55. You as the alternate payee can start drawing your share of your ex spouse's retirement when the plan indicates they are first eligible to draw on the pension, even if they keep working and do not retire. ... Read More

      If your divorce court orders requires your ex spouse to move out at "the end of November," you will need to wait until that time comes and passes before you can file a contempt motion for failing to vacate the residence. If they fail to get out when court ordered, you can proceed after that point by filing a contempt motion with the court to have them removed.... Read More

The answer to your question is yes, you do have a right to move back into the marital home, unless your wife has secured some type of a court order that requires you to vacate and remain vacated from the residence. The answer to your second question on whether you should move back is a personal one. Again, unless your wife has some type of a court order that prohibits you legally from moving back, it is your home too. My only concern would be putting yourself into a situation where you are  not wanted, and whether if you do move back in, your wife makes up some phony allegations against you that you threatened her or were physical with her, to have you removed from the home. Ordinarily, we advise  not to move out of the home in the first place, until the divorce or separation case is filed, there is a first hearing scheduled before the court commissioner and your custody and placement rights can be determined by the court. I can only surmise from your post that you are a nice guy and moved out to give your wife some space as you didn't want a divorce, and once you moved out, used it against you to go ahead and file for divorce anyhow.... Read More

One option is to commence the divorce herself. She can then do discovery and get the information from him. Or she could wait for the husband to start a divorce and then start the discovery process. Obviously it's best to hire a skilled family attorney-and almost always worth the investment. Or she could try to make an appointment with the highest officer of the bank-who might have the authority to release her the information. This is most likely if the account was a joint account. Some bank websites permit you to change the password, if you have the correct username.... Read More

I am sorry to say: a cheap divorce lawyer is not a lawyer to retain. Professional work requires a good deal of expense to do right, and you generally get what you pay for. If you are poor, you can book 2 agencies such as legal services, or community Justice Incorporated. If you can afford a reasonable fee you might check your state bar is loyal lawyer referral service, or the Yellow Pages. Sometimes a friend who has had a good experience with the particular lawyer can be the key. Although your case looks pretty simple ? except for locating your spouse you are certain to get more thorough and efficient service from an experienced family lawyer.... Read More