In Divorce: who gets the crops in the field?

In the recent (10-13-10) unpublished case of Emerson v. Emerson, 2009AP84, one of the questions the Wisconsin Court of Appeals, Dist. III, had to consider was “are the crops in the field a marital asset subject to division?”  The Court of Appeals first reiterated the fundamental legal rule that the determination of property division and any spousal maintenance award rests with the sound discretion of the trial judge. LeMere v. LeMere, 262 Wis. 2d 426, 663 N.W.2d 789 (2003).

In Emerson, Judge John A. Damon, Trempeleau County Circuit Judge, first determined that child support and spousal maintenance was appropriate given the wife’s income of $30,000/yr and husband’s income of $125,400/yr (including $83,400/yr of income available from the farm corporation).  The wife was also requesting that the crops that were planted but not yet harvested should be included in the property division.  In Emerson, Trempeleau County Judge Damon did not consider the crops as a marital property subject to division.  Judge Damon reasoned: 1) the yield and price of un-harvested crops was speculative; 2) it was not proper to double count the crops in the field as an asset and also as anticipated income; and 3) since husband’s income was almost solely due to the sale of crops that if he took this away, the husband “wouldn’t have this income next year to pay both child support and maintenance.”

The Court of Appeals found that Judge Damon’s decision was not “clearly erroneous” (the standard needed to overturn the circuit court’s determination of property division or spousal maintenance).  The appellate court further held that a trial court may choose to exclude accounts receivable from the marital estate if there is a link between the salaries and receivables and if dividing the receivables would adversely affect the ability to pay child support or spousal maintenance.” Sharon v. Sharon, 178 Wis. 2d 481, 504 N.W.2d 415 (Ct. App. 1993).

** Entries posted on this Blog shall not be deemed legal advice.  For individual attention to your particular legal situation, consult an attorney.**  Attorney Dan Murray helps individuals with divorce, custody, placement, high-income and complex-property matters, and other family-law matters throughout Western Wisconsin and the Twin Cities eastern metro. http://www.rodlibeskar.com

Amount of Spousal Maintenance Determined by Trial Court

Determining the amount and duration of spousal maintenance is left to the sound discretion of the trial court. Wikel v. Wikel, 168 Wis. 2d 278, 483 N.W.2d 292 (Ct. App. 1992).  In Wisconsin, the purpose of spousal support is to: a) support the recipient according to the parties’ needs and earning capacities; and b) ensure a fair and equitable financial arrangement. LaRocque v. LaRocque, 139 Wis. 2d 23, 406 N.W.2d 736 (1987).  The starting point for a spousal maintenance evaluation of a long-term marriage is to consider an equal division of total income. Schmitt v. Schmitt, 201 WI App. 78, 242 Wis. 2d 565, 626 N.W.2d 14.

The recent unpublished case of Pascual, involved the trial court evaluating a thirty-two marriage with the wife making $73,000/yr and the husband earning $22,000/yr and having an earning capacity of $35,000/yr.  The husband also operated a Comic Book Store and the amount of his income from the store was unclear.  The Court determined the fact of the long-term marriage favored a 50/50 division of the total yearly income of $95,000, and awarded the husband $125/week  until he obtained full-time employment (met his earning capacity) after which husband would receive $100/week.

In Wisconsin, since there are no hard-and-fast rules to determine spousal maintenance, it is a good idea to consult with an experienced family law attorney in evaluating (and advocating on your behalf) if, how much, and for how long maintenance should be expected in each individual case.

** Entries posted on this Blog shall not be deemed legal advice.  For individual attention to your particular legal situation, consult an attorney.**  Attorney Dan Murray helps individuals with divorce, custody, placement, and family-law matters throughout Western Wisconsin and the Twin Cities eastern metro. http://www.rodlibeskar.com

 

8 Pieces of Advice to Consider Regarding Your Divorce

I recently came across this short article by Attorney Laurie Giles that provides some good basic reminders concerning your contemplated or filed divorce action.  An experienced-helpful divorce attorney will keep reminding you of these practical divorce tenets throughout your case:

8 Divorce Mistakes That Could Cost You a Fortune
(provided by Laurie Giles, Esq., Connecticut Divorce Education)

Financial and emotional challenges of divorce are frequently difficult. Making avoidable mistakes may well result in emotional and financial destruction.

Here are mistakes many people going through divorce often make— mistakes that can cost you a fortune.

Mistake #1 Making decisions in the heat of the moment. Making decisions when are upset or depressed, can and probably will, result in making the wrong decision. Take time to mull over issues before making decisions.

Mistake #2 Getting divorce advice from friends and family. Undoubtedly you will receive lots of advice from many different people. Some solicited, most unsolicited. Everyone will have a story to tell, or know exactly what you should do to “win”. Heeding this advice can be a big mistake. Hear and listen first to the advice of the professionals you have hired. Then and most importantly follow you heart and gut.

Mistake #3 Using your divorce to punish your former spouse. Not only will this cost you, but will also hurt you and ultimately your children as well.

Mistake #4 Failing to develop a strategic plan. Approaching divorce in a piecemeal fashion without a clearly defined plan is like running a race without a clue as to where the finish line is. Plan before you act.

Mistake # 5 Fighting over the small stuff. Decide what is worth fighting over and leave the rest out. Fighting over salt and pepper shakers is not only a colossal waste of time but financially imprudent.

Mistake #6 Making unreasonable demands. Unless the circumstance of your divorce are so egregious as to send an experienced judge into shock, you have a better chance of hitting the lottery every year for the next 10 years than of being awarded 100% of the marital asset free and clear. Be reasonable.

Mistake # 7 Comparing your situation to others. Just as no two families are identical no two divorce cases are the same.

Mistake # 8 Failing to obtain security for support payment. If your former spouse dies, what will you do without the child support payments, or alimony? Get appropriate life insurance to protect these payments.

Information provided by
Laurie Giles, Esq., Connecticut Divorce Education

** Entries posted on this Blog shall not be deemed legal advice.  For individual attention to your particular legal situation, consult a qualified attorney.**  Information in this Blog provided by Minnesota and Wisconsin Family Law attorney Dan Murray — who represents individuals with divorce, legal custody, physical placement, physical custody, high-income and complex-property/business matters, and other family-law cases throughout Western Wisconsin and the Twin Cities eastern metro. http://www.rodlibeskar.com

Property Division in Wisconsin

There is often confusion as to how property is divided in a divorce or legal separation in the State of Wisconsin.  Reading what the Wisconsin Statute says is the best place to start to get guidance on how things may be decided in your individual case.

Section 767.61 Property division (2005), reads:

767.61(1)
(1) Division required. Upon every judgment of annulment, divorce, or legal separation, or in rendering a judgment in an action under s. 767.001 (1) (h), the court shall divide the property of the parties.

767.61(2)
(2) Property subject to division.

767.61(2)(a)
(a) Except as provided in par. (b), any property shown to have been acquired by either party prior to or during the course of the marriage in any of the following ways shall remain the property of that party and is not subject to a property division under this section:

767.61(2)(a)1.
1. As a gift from a person other than the other party.

767.61(2)(a)2.
2. By reason of the death of another, including, but not limited to, life insurance proceeds; payments made under a deferred employment benefit plan, as defined in s. 766.01 (4) (a), or an individual retirement account; and property acquired by right of survivorship, by a trust distribution, by bequest or inheritance or by a payable on death or a transfer on death arrangement under ch. 705.

767.61(2)(a)3.
3. With funds acquired in a manner provided in subd. 1. or 2.

767.61(2)(b)
(b) Paragraph (a) does not apply if the court finds that refusal to divide the property will create a hardship on the other party or on the children of the marriage. If the court makes such a finding, the court may divest the party of the property in a fair and equitable manner.

767.61(3)
(3) Presumption of equal division. The court shall presume that all property not described in sub. (2) (a) is to be divided equally between the parties, but may alter this distribution without regard to marital misconduct after considering all of the following:

767.61(3)(a)
(a) The length of the marriage.

767.61(3)(b)
(b) The property brought to the marriage by each party.

767.61(3)(c)
(c) Whether one of the parties has substantial assets not subject to division by the court.

767.61(3)(d)
(d) The contribution of each party to the marriage, giving appropriate economic value to each party’s contribution in homemaking and child care services.

767.61(3)(e)
(e) The age and physical and emotional health of the parties.

767.61(3)(f)
(f) The contribution by one party to the education, training or increased earning power of the other.

767.61(3)(g)
(g) The earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage.

767.61(3)(h)
(h) The desirability of awarding the family home or the right to live therein for a reasonable period to the party having physical placement for the greater period of time.

767.61(3)(i)
(i) The amount and duration of an order under s. 767.56 granting maintenance payments to either party, any order for periodic family support payments under s. 767.531 and whether the property division is in lieu of such payments.

767.61(3)(j)
(j) Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests.

767.61(3)(k)
(k) The tax consequences to each party.

767.61(3)(L)
(L) Any written agreement made by the parties before or during the marriage concerning any arrangement for property distribution; such agreements shall be binding upon the court except that no such agreement shall be binding where the terms of the agreement are inequitable as to either party. The court shall presume any such agreement to be equitable as to both parties.

767.61(3)(m)
(m) Such other factors as the court may in each individual case determine to be relevant.

767.61(4)
(4) Separate fund or trust option. In dividing the property of the parties under this section, the court may protect and promote the best interests of a child of the parties described under s. 767.511 (4) by setting aside a portion of the property in a separate fund or trust for the support, maintenance, education, and general welfare of the child.

767.61(5)
(5) Related provisions of judgment. In a judgment described under sub. (1), the court shall do all of the following:

767.61(5)(a)
(a) Direct that title to the property of the parties be transferred as necessary, in accordance with the division of property set forth in the judgment.

767.61(5)(b)
(b) Include all of the following in the judgment:

767.61(5)(b)1.
1. Notification that it may be necessary for the parties to take additional actions in order to transfer interests in their property in accordance with the division of property set forth in the judgment, including such interests as interests in real property, interests in retirement benefits, and contractual interests.

767.61(5)(b)2.
2. Notification that the judgment does not necessarily affect the ability of a creditor to proceed against a party or against that party’s property even though the party is not responsible for the debt under the terms of the judgment.

767.61(5)(b)3.
3. Notification that an instrument executed by a party before the judgment naming the other party as a beneficiary is not necessarily affected by the judgment and it may be necessary to revise the instrument if a change in beneficiary is desired.

767.61(6)
(6) Recording judgment affecting real property sufficient. A certified copy of the portion of the judgment affecting title to real property, or a deed consistent with the judgment, shall be recorded in the office of the register of deeds of the county in which the real property is located.

** Entries posted on this Blog shall not be deemed legal advice.  For individual attention to your particular legal situation, consult an attorney.**  Attorney Dan Murray is a lawyer who helps individuals with divorce, custody, placement, and family-law matters throughout Western Wisconsin and the Twin Cities eastern metro.  http://www.rodlibeskar.com

Maintenance/Spousal Support/Alimony – What is Fair?

In Wisconsin, spousal support/alimony is termed spousal “maintenance”.  There are  no hard-and-fast rules in setting the duration of maintenance; rather, each individual case is determined on the facts specific to that case. Kennedy v. Kennedy, 145 Wis. 2d 219, 426 N.W.2d 85 (Ct. App 1988).

The recent divorce case of Ladwig involved a medical-doctor husband making $900,000 a year, an account-manager wife making $21,840 a year, and a 13-year marriage.  The trial judge initially divided the property by awarding the husband assets worth 1.42M, awarding the wife assets worth 1.5M, and awarding the wife maintenance of $3,000/mo for 18 months, and $1,500/mo for another 18 months, for a total of three years of maintenance.  In an unpublished opinion, the appellate court reversed the initial trial court determination because the judge’s ruling did not further the two primary objectives of maintenance — a) to support the recipient spouse in accordance with the needs and earning capacity of the parties; and b) to ensure a fair and equitable financial arrangement between the parties.

The appellate court also pointed out that the wife should not have to dip into her property award to meet her monthly needs.  Wisconsin Law prohibits a maintenance award that forces one spouse to invade the property division to live while the other does not. Dowd v. Dowd, 167 Wis. 2d 409, 481 N.W.2d 504 (Ct. App. 1992).

Accordingly, in Ladwig, the case was sent back down for the trial judge to reevaluate several issues, including maintenance.  The second time around, the successor judge, determined the wife should receive spousal maintenance of $4,700/mo for 15 years which was tied to the projected retirement date of both parties.  This second award was upheld by the appellate court as meeting the objectives of maintenance.

In Wisconsin, since there are no hard-and-fast rules to determine spousal maintenance, it is a good idea to consult with an experienced family law attorney in evaluating (and advocating on your behalf) if, how much, and for how long maintenance should be expected in each individual case.

** Entries posted on this Blog shall not be deemed legal advice.  For individual attention to your particular legal situation, consult an attorney.**  Attorney Dan Murray is a lawyer who helps individuals with divorce, custody, placement, and family-law matters throughout Western Wisconsin and the Twin Cities eastern metro.  Feel free to contact him at http://www.rodlibeskar.com

Child Support – Deviating From the Percentage Standard

In Wisconsin, the trial Judge and the Court of Appeals presume that determining child support by using the percentage standard in WIS. ADMIN. CODE §DCF 150 (2010) is fair.  Abitz v. Abitz, 155 Wis. 2d 161, 455 N.W.2d 609 (1990).  In deciding child support, the trial judge may deviate from the percentage standard if it finds by the greater weight of credible evidence that the use of the standard would be unfair to the child or the party or the party requesting deviation. Mary L.O. v. Tommy R.B., 199 Wis. 2d 186, 544 N.W.2d 417 (1996).

** Entries posted on this Blog shall not be deemed legal advice.  For individual attention to your particular legal situation, consult an attorney.**  Attorney Dan Murray helps individuals with divorce, custody, placement, and family-law matters throughout Western Wisconsin and the Twin Cities eastern metro. Feel free to contact him at http://www.rodlibeskar.com

In Wisconsin, what is the role of a guardian-ad-litem (GAL)?

There is great confusion as to what role the GAL serves.  In Wisconsin, the guardian ad litem is not supposed to be a fact finder.  That role is reserved for the Judge.  Plain and simple, the guardian ad litem is an attorney that represents the “best interests” of a child.  The GAL does not represent either parent.  The GAL doesn’t even represent the child or the children.

The GAL’s role is that of an attorney, that is — to elicit testimony and offer exhibits, make objections, and make arguments supporting your client.  Your client is a concept, the “best interests” of a child.  The child is not your client.  Moreover, guardian ad litems should not be allowed to testify and therefore, should not put himself or herself in that position.  For example, a GAL should not make visits to the home to check out “home conditions” because doing so turns the attorney/GAL into a witness to testify about the home conditions.  Let pictures, other witnesses, or social service workers talk about the home conditions.

The GAL speaks directly with the child and informs the Court of the “child’s wishes”.  This is the one special additional role that the GAL has that a regular attorney (representing one parent) does not.  However, since the GAL is not representing the child, but representing the “best interests” of the child, the child’s wishes may not match the GAL’s recommendation.  For instance, if a child wants to live with his Dad because his Dad doesn’t make him do homework or doesn’t impose a curfew on the child, well, the child’s “best interests” may not be served by granting placement to Dad.  Similarly, if a child wants to live with Mom because Mom promised the kid a car when the kid turned 16, the child’s “best interests” may not be served by granting placement to Mom.

To read a discussion on proper role of a guardian ad litem, please see Hollister, 173 Wis. 2d 413, 496 N.W.2d 642 (Ct. App. 1992)

** Entries posted on this Blog shall not be deemed legal advice.  For individual attention to your particular legal situation, consult an attorney.**  Attorney Dan Murray helps individuals with divorce, custody, placement, and family-law matters throughout Western Wisconsin and the Twin Cities eastern metro. Feel free to contact him at http://www.rodlibeskar.com

What happens if a parent won’t co-parent with the other?

In Wisconsin, expressing your anger toward your soon-to-be ex-spouse and refusing to co-parent with your soon-to-be ex can negatively impact the custody and placement schedule you receive.  This is because one of the factors the Judge is to consider when making a determination as to what custody and placement arrangement is in the child’s best interests, is whether one parent is likely to unreasonably interfere with the child’s continuing relationship with the other parent.

In the Hollister case, 173 Wis.2d 413, 496 N.W.2d 642 (Ct. App 1992), the appellate court upheld the trial court’s determination that the child’s best interests were served by awarding sole legal custody and primary placement to the father because Mrs. Hollister, the mother, consistently throughout the proceedings expressed her anger about Mr. Hollister’s infidelity and made unilateral decisions to deprive Mr. Hollister of his parenting time.  The Judge considered the statutory factors and granted sole legal custody and primary placement to the father, concluding that Mrs. Hollister’s anger toward Mr. Hollister and her past unilateral actions, made it likely that if she were given custody of the children that she would interfere with the father’s continuing relationship with his children.

An experienced divorce attorney will recommend to his/her client to try their very best to co-parent with the other throughout the divorce process.  This is because, as seen in Hollister, one parent’s failure or refusal to co-parent with the other parent may result in the judge taking away rights to the child or decreasing the amount of placement time the parent is granted.

** Entries posted on this Blog shall not be deemed legal advice.  For individual attention to your particular legal situation, consult an attorney.**  Attorney Dan Murray helps individuals with divorce, custody, placement, and family-law matters throughout Western Wisconsin and the Twin Cities eastern metro.  Feel free to contact him at http://www.rodlibeskar.com

Impact of Divorce on Children

It is not a new revelation to state that a divorce can have a differing impact on each individual child.  Many factors go into how the divorce affects a child, including, the age of the child, how civil the parents are to one another, the mental and emotional state of the child, the child’s support group, etc.

I recently read an interesting article on DivorceWizards submitted by Kevin Friedland, a student in California.  Kevin Friedland spoke about the positives of his parents divorce and that in retrospect, he concluded that his parents’ divorce was the best thing that ever happened to him.  He concluded “[a]t age seven, I struggled with the confusion and pain of coping with my parents divorce.  Today, at age sixteen, I understand the obstacles can result in opportunity and success.  I learned that hard work, determination, and self-discipline can turn your worst time into your best time.”  The entire article can be found at http://www.divorcewizards.com/A-Teenager-Reflects-on-Divorce.html

** Entries posted on this Blog shall not be deemed legal advice.  For individual attention to your particular legal situation, consult an attorney.**  Attorney Dan Murray helps individuals with divorce, custody, placement, and family-law matters throughout Western Wisconsin and the Twin Cities eastern metro. Feel free to contact him at http://www.rodlibeskar.com

To get a child support reduction, can you add the number of overnights and amount of equivalent care provided?

The Court of Appeals in Franklin v. Franklin, unpublished decision, 2008 AP 2010, said “no” reasoning that the shared-placement formula is based upon either overnights or equivalent care.  In the Franklin case, the father tried to add the days he spent some time with the kids to his overnights (father’s overnights of 78 days per year equated to 21% of total overnights).  The appellate court reasoned that in order to qualify for shared placement under an equivalent care theory, a parent needs to show that the children are spending more than 25% of their total time with that parent, regardless of the number of overnights, based on the proportion of each day spent with each parent.

** Entries posted on this Blog shall not be deemed legal advice.  For individual attention to your particular legal situation, consult an attorney.**  Attorney Dan Murray helps individuals with divorce, custody, placement, and family-law matters throughout Western Wisconsin and the Twin Cities eastern metro.  Feel free to contact him at http://www.rodlibeskar.com