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In the recent (10-13-10) unpublished case of Emerson v. Emerson, 2009AP84, one of the questions the Wisconsin Court of Appeals, Dist.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

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

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

How do I reduce my child support?

In Wisconsin, in order to reduce child support from a straight percentage of gross income, a parent typically has to have at least 25% of overnights (92 overnights a year) in order to have child support determined under the shared-placement parent formula.  However, if  you are a parent who has placement less than 25% of the overnights, you still may be able to get a child support reduction.

One question to ask is, how much “equivalent care” is provided for the child?  Wis. Admin. Code §150.02(10) provides “Equivalent Care” means a period of time during which the parent cares for the child that is not overnight, but is determined by the court to require the parent to assume the basic support costs that are substantially equivalent to what the parent would spend to care for the child overnight.

For example, if a parent works the overnight shift, but cares for the child/children during the day, while the other parent works the day shift, the parent caring for the child all day would certainly be providing “equivalent care”.  Accordingly, the parent working the overnight shift, and caring for child/children during the day, would receive credit, and likely a reduction in his/her child support obligation.

** 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

Wisconsin Child Support Changes/Modifications

In addition to the procedure for an annual adjustment for Wisconsin child support under Wis. Stat. §767.553, child support may be modified by motion under Wis. Stat. §767.59.  Grounds to justify a revision of child support include: 1) one parent begins receiving financial assistance through a governmental program; 2) expiration of 33 months since child support last reviewed; 3) the paying person fails to timely disclose financial information; 4) change in the needs of the child; 5) change in the payer’s income (which equates to the support order changing by & 15% or more and the corresponding child support payment changing by at least $50); 6) change in payer’s earning capacity. See Wis. Stat. §767.59; see Department of Children & Families Website.

** 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 in the Twin Cities eastern metro. Feel free to contact him at http://www.rodlibeskar.com

Child Support in WI – Variable Costs

In Wisconsin, a common question people have is “if I pay child support, do I have to pay for daycare, child care, hockey, dance, winter boots, school supplies, etc.”  The answer is “it depends”.  There are several factors involved.  Most commonly, if the parents share placement of the child/children (each parent has at least 92 overnights a year), responsibility for “variable costs” will be in proportion to the amount of time you have the child, ie, you have the child for 40% of the overnights = you pay for 40% of the variable expenses.  However, it can be difficult to agree upon what constitutes a “variable cost” or “variable expense”.  The statutory definition does not provide enough guidance.  Variable costs are defined as: the reasonable costs above basic support costs incurred by or on behalf of a child, including but not limited to, the cost of child care, tuition, a child’s special needs, and other activities that involve a substantial cost.  DCF 150.02(29).  It is pretty clear that daycare or child care are included, but what about school supplies or skating lessons?  What constitutes “substantial cost”?  That answer may be different for different parents at different income levels.  A seasoned family law practitioner is usually able to offer guidance as to how different judges would answer these questions.

Also, another factor that ties in is legal custody.  Often when a parent unilaterally signs a child up for a sport or an event, without receiving permission from the other parent (in joint legal custody situations), the Court will determine that the parent that solely signed the child up without consensus, will be responsible for that expense.

Generally, if a parent has the child for less than 25% of overnights, that parent would pay straight percentage child support, and not be responsible for variable costs.  However, remember the Court in its discretion can always deviate from the percentage standards and may do so in those cases where traditional variable expenses exceed the amount of child support being paid.  Examples would include cases where daycare expenses for the month exceed the amount of child support received, ie, daycare expenses $1,200/mo but straight percentage child support garners only $500/mo.

** 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 in the Twin Cities eastern metro. Feel free to contact him at www.rodlibeskar.com