Articles Posted in Divorce

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With the importance of higher education in today’s society, many couples who are contemplating divorce must discuss not only how child support will be divided while their children are growing up, but also whether, and how, their children’s higher education expenses will be addressed. A recent Wisconsin child support case before the Wisconsin Court of Appeals looks at how to address college expenses when a marital settlement agreement is ambiguous about this responsibility.

In Marriage of North v. Farris, Ms. North and Mr. Farris divorced after four years of marriage. During the course of their marriage, they had two daughters together. Ms. North and Mr. Farris agreed to a marital settlement agreement during the course of their divorce, which included provisions for child custody and child support. The MSA also provided for the payment of higher education expenses. It stated that Mr. Farris would pay for five years of tuition and books, should their children go to the University of Wisconsin-Madison, and would split room and board with Ms. North.

The couple’s daughter Natalie attended the University of Wisconsin-Madison and took 10 semesters (five years) to graduate, plus three summer sessions. Ms. North sought reimbursement from Mr. Farris for these expenses, but Mr. Farris refused to pay for the last two semesters of Natalie’s schooling, saying that the MSA obligated him only to pay for five school years, or 10 semesters, which Natalie had already exceeded. Ms. North argued that the MSA required Mr. Farris to pay for five calendar years, regardless of the number of sessions or semesters Natalie completed.

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While most couples enter into a divorce hoping to complete the process as amicably as possible, that is not always the case. Whether due to disagreements over money, accusations of cheating or other offensive conduct, or battles over custody, a Wisconsin divorce can quickly turn ugly. Name-calling and fights over possessions are one thing, but when a spouse’s actions go from that to verbal or physical harassment, it may be time to get a court involved.

In Zernia v. Zernia, Sharon Zernia did just that. After experiencing harassment from her ex-husband, she sought an injunction to stop any further harassing behavior. Sharon and John Zernia divorced in 2011, and the process was a very contentious one. Several years later, in 2015, John approached the Pastor at the church that Sharon and her family attended, and he had several meetings with the Pastor to alert him to immoral conduct in which he believed Sharon had engaged, including stealing items from his home and being a “sadly mentally ill” mother. John also printed and distributed 110 flyers at Sharon’s church that also made these allegations about Sharon. After Sharon learned of the flyers, she petitioned the court for an injunction against John to keep him from coming near her and from further harassing her.

At the injunction hearing, John argued that he did not intend to hurt Sharon but was merely acting in accordance with his Catholic beliefs, which required him to alert the church to Sharon’s allegedly immoral behavior. Sharon testified that she was alarmed by John’s behavior and was worried for her safety. The lower court found that while John’s efforts to reach out to Sharon’s Pastor were not harassing, the flyers that he left on cars were. Since there was no legitimate purpose to the flyers, the court granted Sharon an injunction against John. John appealed.

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In Milwaukee divorce cases involving children, guardian ad litems (GALs) are frequently appointed to help represent the best interests of the child before the court. Ex-spouses may request the appointment of a GAL, or a court may require a GAL to be appointed. In either circumstance, the GAL will have fees for his or her time that must be paid by the parties involved in the divorce. How those fees are paid can be an issue of contention, especially when they rack up over time. In a recent case before the Wisconsin Court of Appeals, one spouse attempted to object to having to pay his share of GAL fees.

In Marriage of Arlene Gregerson v. Christopher Gregerson, Arlene and Christopher filed for divorce and sought custody over their two minor children. Since custody was contested, the court appointed a GAL to participate in the proceedings. After some negotiation, Arlene and Christopher reached a marital settlement agreement, which was incorporated into the court’s order of divorce. As part of the settlement agreement, Christopher and Arlene agreed to split the GAL fees 50/50. At the time, they did not know the full extent of what those fees would be. After the proceedings were completed, the GAL submitted a request for payment of her fees. Christopher provided the court with a written objection to the fee petition, but his objection was overruled, and the court approved the payment of the fees. Christopher appealed, arguing that he was entitled to a hearing to consider the objections that he had to the fee petition and that the court failed to credit him the $400 deposit he made toward the payment of the GAL’s fees.

In Wisconsin, county court rules govern the handling of disputes over payment of GAL fees. In St. Croix County, where Arlene and Christopher were located, the county court rules provide that any party who has a dispute with the payment of GAL fees should raise the issue with the judge or commissioner for it to be reviewed. Accordingly, Christopher filed his written objection to the fee petition and also requested that a hearing be scheduled to address his objection. The court reviewed his written objection and determined that it could resolve the issue on the basis of the written submissions. It therefore declined to conduct a hearing and granted the fee petition. On appeal, Christopher argued that the “review” of his petition required more than simply reviewing the documents, and it required that a hearing be scheduled. The Wisconsin Court of Appeals disagreed. It found that the rules gave the court the discretion to determine how to handle any objections to the payment of GAL fees and that if the court deemed a review through the documents sufficient, this satisfied the requirements of the rule. Since the rule did not explicitly require a hearing, the court did not err in deciding not to grant one.

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Not surprisingly, criminal acts of domestic violence by one spouse toward another frequently result in the filing of a divorce. In addition, frequently victims of domestic violence will seek a temporary restraining order and a permanent injunction to prevent the abusive spouse from having contact with the abused party or even with the children. Whether you are the alleged victim or the alleged abuser, there are strategy considerations to consider in deciding how to deal with this emotional and sometimes dangerous situation.

First, both parties should understand that a domestic violence accusation complicates a divorce case in several ways. If a restraining/injunction is granted, this means that the parties will not be able to have any contact without a specific exception from the court for divorce related issues. These exceptions may not be granted, particularly if the court has reason to believe that one party may be endangered. This means all efforts to pay bills, get kids to school or daycare, attend medical appointments, address holidays, etc may fall to the spouse who has placement. Both sides under these circumstances are well advised to retain a lawyer to try to obtain court orders that work around the impediments a no contact order can cause.

If a criminal case is going on at the same time as the divorce, the judge in the criminal case may impose his own no contact order as a condition of release on bail, which overrides any other court order in the divorce. Again, having a lawyer, preferably the same lawyer for the divorce and the criminal matter, is essential to coordinating the criminal and the family law courts. If both sides have attorneys, sometimes it is possible to negotiate a temporary order in a divorce that makes an injunction unnecessary or allows a criminal court judge to feel comfortable relaxing a no contact order in the criminal case. Sometimes, having absolutely no contact is not what the victim really wants and instead just wants the violence to stop and the spouse to get help. While that result seems reasonable on the surface, there are several possible impediments to such a resolution and having reasonable lawyers on both sides will increase the odds of a rationale result in all forums.

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Dividing a couple’s assets during a divorce is almost always a complicated endeavor. Courts must consider money an individual brought into the marriage, money and assets acquired during a marriage, and how to split up physical property like a home and vehicles. When a couple owns a business together, this becomes immensely more complicated, as a recent decision by the Wisconsin Court of Appeals illustrates. Rarely can a family-owned business be neatly divided between two ex-spouses without some sort of issue arising.

In In Re The Marriage of Haley v. Haley, Patrick Haley and Anna Haley decided to divorce after 12 years together. During the time that they were married, they owned and operated a company called IPS-CareFree Enzymes, which provided various enzyme products to companies and consumers. While running the business, Patrick invested in a new product that removed certain enzymes from pools and spas with a hose-mounted sprayer. He received a patent for this device and licensed use of the product out to different companies.

When Anna and Patrick divorced, they negotiated a Marital Settlement Agreement and a separate Supplemental Business Agreement to cover the division of their company. Under the SBA, the two ex-spouses divided up their former customers and decided that they could not cross-solicit from each other’s customers. Per the SBA, both parties were entitled to use and market all of the products created by the Company, including the product that Patrick patented. Several years later, Anna’s new company, now named Auraco, began advertising products for sale, including the patented product. Patrick sent a letter to Anna to demand she stop selling the patented products. He then moved to reopen divorce proceedings to clarify the extent to which Anna could sell the patented products. Anna sought the same clarification.

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In a divorce, one of the more challenging tasks can be to determine who should receive which property and how much they should receive. Splitting up finances can be very emotionally difficult for couples and can bring up feelings of resentment, frustration, and anger. In order to protect what they believe to be theirs, some spouses resort to taking jointly owned funds prior to a divorce and attempting to divert them for personal use. To avoid this problem, many courts will require a strict accounting of funds and assets in a divorce, dating back to well before the actual divorce papers were filed. If money cannot be taken into account, it may be held against the person who spent it, as a recent Wisconsin divorce case illustrates.

In In Re Marriage of Bodart v. Balthazor, Jane Bodart and Leslie Balthazor divorced after more than 30 years of marriage together. Sometime shortly prior to the divorce, Leslie emptied an IRA account in his name that held over $70,000 in assets. During the divorce, the parties began to dispute the division of assets and property, and Jane requested a full accounting of the money withdrawn from the IRA account. Leslie provided bank statements to show when the money was withdrawn, but he could not account for how it was all used. At trial, he testified that more than 95 percent of the assets were used to pay for joint marital expenses, rather than his own personal interests, but Jane carefully documented how many of the funds were not explained and were taken out via personal checks or unidentified ATM withdrawals. In total, while Jane conceded that $25,000 of the proceeds were likely used for marital expenses, she argued that the rest were not clearly used for both of their benefits.

The court repeatedly suggested that Leslie provide more information concerning the outstanding $50,000, but he was unable to provide specific documentation or receipts. Since the court could not ascertain exactly what had happened to that money, it made the decision to split it in half, assuming that $25,000 was used for marital expenses, while the remaining $25,000 was not and was credited against Leslie in distributing the remaining assets. Leslie appealed this outcome.

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Divorce is a painful and difficult process. Obviously, if the parties were getting along and communicating well, they wouldn’t be getting divorced in the first place. It’s the communication process that makes a good lawyer so critical in a divorce matter. You want to hire an attorney that demonstrates excellent communication skills to assist you in persuasively advancing your position, not only in court but also in negotiations with the other side.

The best divorce lawyers are able to argue a position without seeming argumentative. Seems counter-intuitive, doesn’t it? However, the divorce process is emotional. The parties typically feel anger, resentment, failure and a fear of the future. The job of the lawyer is to take the emotion out of the analysis. It doesn’t help to make the situation worse by being argumentative with the other side. Some people feel that the best divorce lawyer is the one that yells the loudest or refuses to concede any point, no matter how illogical. However, courts and other attorneys on a case tend to ignore those lawyers that blindly advocate a position, regardless of how irrational it is.

When interviewing an attorney, assess his ability to listen, to assess your problem(s) and to offer reasonable solutions you may not have considered. Most divorce cases ultimately resolve by agreement rather than by going to trial. Trials are expensive and can have an uncertain result. Your lawyer should have the ability to propose a reasonable result that gets you most of the things that are important to you while conceding the points that are less important in the interests of allowing you to move forward with your life.

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Spousal maintenance is typically awarded in a divorce so that one spouse can continue to live the life that they were accustomed to living before the divorce. Often in these situations, one spouse is making significantly more than the other, or one has taken time off from his or her career to raise children and is no longer in the workforce. In order to ensure that that parent is not left stranded after a divorce and effectively punished for sacrificing career obligations for family obligations, the court requires that the working spouse give some amount of money, on a monthly basis, to the spouse who was not working or was working a lower-paying job. Spousal maintenance is not necessarily a permanent payment, and it can change over time or with a change in circumstances. Sometimes it may only be awarded until the spouse who is receiving the maintenance has time to get back on his or her feet. A recent case before the Wisconsin Court of Appeals looks at when a change in circumstances can justify spousal maintenance payments being reduced or eliminated altogether.

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Determining child support payments in Wisconsin can be a complicated calculus, one that requires special consideration of the placement of the children, the income of both parents, their likely future income, and any other types of special contributions that an individual may be making to a household. Artificially low payments can significantly affect a primary parent’s ability to pay for the things that children need, while payments that are too high can make it almost impossible for the secondary parent to be able to make ends meet. Courts are often in the precarious position of trying to do the best that they can under the circumstances, hoping to protect the interests of all parties. In some situations, however, parties may attempt to manipulate the system in order to make payments lower than they should be. When this happens, as illustrated in the case below, courts may take action in order to ensure that child support payments remain fair.

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Dealing with divorce is never easy. It can be emotionally, mentally, and financially draining. On top of the many practical adjustments and changes to life routines, ex-spouses must deal with the complicated and lengthy nature of divorce proceedings, which can be particularly difficult when a divorce is contentious. While litigants may often wish to ignore what is going on in their legal case and turn away from dealing with tough issues, this kind of an approach can cause significant problems during a divorce. As a recent case before the Wisconsin Court of Appeals illustrates, when one spouse chooses not to participate or be cooperative in divorce proceedings, it can lead to sanctions down the road.

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