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Maintenance - What are other factors the Court may consider?

Linda S. Vanden Heuvel — Tue, 31 Aug 2010 15:15:00 GMT

Wis. Stat. Sec. 767.56 Maintenance provides a list of considerations the court should take into consideration in awarding maintenance. The last factor to be considered is "other factors as the court may in each individual case determine to be relevant." This other factor may include a relationship with another person on the date of divorce. While the court may not relieve a payor of maintenance based solely on the fact that the payee is cohabitating, if cohabitation enhances the recipient spouse's financial circumstances, then maintenance may be modified or terminated. Addictions may also be considered "other factors." Consider alcoholism, gambling, marital waste, etc. On the other side, significant health issues may be another factor.

Don't Just Accept the Results of a DSS Study. It Must be Supported by the Evidence.

Linda S. Vanden Heuvel — Tue, 31 Aug 2010 15:12:00 GMT

Wis. Stats. 767.405 (14)(b)1 provides that county custody/placement studies are governed by the rules of evidence. The report must be offered in accordance with the rules of evidence and shall be part of a record in the action if it is so offered and admitted into evidence. The court may review the report, but may not rely upon it as evidence before it is properly introduced.

Are Children's Statements Admissible in a Court Proceeding?

Linda S. Vanden Heuvel — Tue, 31 Aug 2010 15:06:00 GMT

Generally, such statements are hearsay. Wis. Stats. 906.11 gives the Court broad authority to control the presentation of evidence, including statements of children in a custody case. Look for a hearsay exception before offering the child's statement. You can potentially admit the child's statement through an expert. Wis. Stats. 907.03 allows experts to base their opinions on facts or data not available in evidence. Hearsay exceptions which may be successful in the admission of a child's statement include:

1.    Present sense impression;
2.    Excited utterance;
3.    The existing mental, emotional or facial condition; and
4.    Statements for purposes of medical diagnosis or treatment.

Statements of recent perception are admissible under Wis. Stats. 908.045. For example, if a child says something at school to a teacher or to a daycare provider Wis. Stats. 908.045 may be a successful hearsay exception.

Don't Confuse Gifted or Inherited Property with Property Brought to the Marriage

Linda S. Vanden Heuvel — Tue, 31 Aug 2010 15:00:00 GMT

Wisconsin property division statutes Wis. Stat. Sec. 767.61(3) creates a presumption that the marital estate should be divided equally, except for properties shown to have been inherited or gifted. Inherited property is removed from the presumption entirely. Under 767.61(3) the presumption applies subject to a number of adjustments to all other property. One of the adjustments is (b) property brought to the marriage by each party. Property brought to the marriage by each party is subject to the presumption and it must be argued that an exception to the presumption should be made giving the property back to the client. Look to the length of the marriage and the work history of the parties in order to address property brought to the marriage.

New Law -Carbon Monoxide Detectors Will Be Required In All Homes

Daniel R. Dineen — Thu, 19 Aug 2010 21:06:00 GMT

What is COBRA coverage?

Christopher J. MacGillis — Tue, 17 Aug 2010 15:20:00 GMT

The Consolidated Omnibus Budget Reconciliation Act (COBRA) requires businesses with at least twenty (20) employees to offer temporary extended health care plans to employees and their families in certain instances where coverage under a plan would otherwise end. While several events can trigger the right to COBRA coverage, COBRA is important in some divorce cases because it permits a person to apply to his/her ex-spouse's health insurance company for continued health insurance coverage for three (3) years after the parties are divorced. The person applying for the continued coverage, however, is responsible to pay for the insurance unless the parties agree otherwise.

Consideration of disability during hiring process

Graham P. Wiemer — Mon, 16 Aug 2010 15:50:00 GMT

An employer may not ask whether a prospective employee has a disability that may affect his ability to perform a job. An employer certainly can determine the qualifications necessary to successfully perform a job, but cannot ask directly about the existence of a disability.

In the event the prospective employee indicates that he has a disability that may require an accommodation, however, things change slightly. At that point, an employer may ask what types of accommodations would allow the prospective employee to perform the functions of the job.

Estate Tax in the United States

Daniel R. Dineen — Wed, 11 Aug 2010 21:14:00 GMT

Theestate tax is a tax imposed on the transfer of the "taxable estate" of every decedent who is a citizen or resident of the United States. This applies whether such property is transferred via a will, according to the state laws of intestacy or otherwise made as an incident of the death of the owner, such as a transfer of property from an intestate estate or trust, or the payment of certain life insurance benefits or financial account sums to beneficiaries. The estate tax is one part of the Unified Gift and Estate Tax system in the United States. The other part of the system, the gift tax, imposes a tax on transfers of property during a person's life; the gift tax prevents avoidance of the estate tax should a person want to give away his/her estate.

School Records in Divorce Actions

Linda S. Vanden Heuvel — Wed, 11 Aug 2010 15:33:00 GMT

The school records of minor children who are subjects of custody and placement actions are important to any determination by the guardian ad litem or social worker. It is imperative, however, that you send an authorization not only to the school for the academic records, but also a specific authorization to the guidance counselor. Records of the guidance counselor are generally not included in the general school file of a student.

Interest Rates on Debts and Mortgage Payments May Go Down When a Person Enters Military Service

Linda S. Vanden Heuvel — Wed, 11 Aug 2010 15:23:00 GMT

When an obligation was incurred before entry on active duty, the interest rate goes down to 6%, unless the creditor (bank, finance company, credit card issuer, etc.) can prove in court that the member's ability to pay was not materially affected by military service. The term "interest" includes service charges.

The new Act clarifies the rules on the 6% interest rate cap on pre-service loans and obligations by specifying that interest in excess of 6% per year must be forgiven. 50 U.S.C. App. Sec. 527(a)(2). The absence of such language in the SSCRA has allowed some lenders to argue that interest in excess of 6% was merely deferred.

The SCRA also specifies that a SM must request this reduction in writing and include a copy of his/her military orders. 50 U.S.C. App. Sec. 527(b)(1). Once the creditor receives notice, it must grant the relief effective as of the date the servicemember is called to active duty. The creditor must forgive any interest in excess of six percent with a resulting decrease in the amount of the periodic payment that the servicemember is required to make. 50 U.S.C. App. Sec. 527(b)(2). The creditor may challenge the rate reduction if it can show that the SM's military service has not materially affected his or her ability to pay. 50 U.S.C. App. Sec. 527(c).

Change of Substantial Circumstances in Divorce Actions

Linda S. Vanden Heuvel — Wed, 11 Aug 2010 15:19:00 GMT

A substantial change of circumstances is fact intensive: "The term 'substantial change of circumstances' is well-known in family law. It focuses on the facts. It compares the facts then and now. It requires that the facts on which the prior order was based differ from the present facts, and the difference is enough to justify the court's considering whether to modify the order." Beaupre v. Airriess, 208 Wis.2d 238, 245-46 (Ct. App. 1997).

Website Help in Divorce and Child Support Cases in Wisconsin

Linda S. Vanden Heuvel — Tue, 10 Aug 2010 20:23:00 GMT

http://www.supportguidelines.com (collection of child support cases across the country)
http://abanet.org/family (also provides links to military information for child support)
http://www.ccap.courts.state.wi.us/internetcourtaccess (provides access to information on closed and pending cases
Child Support Percentage Worksheet http://www.wisconsinforms.com/forms/cs3/pdf
Child Support Calculators http://www.wisconsinfathers.org http://www.dwd40calculator.com

Wisconsin Whistleblower Laws Provide the Following:

Linda S. Vanden Heuvel — Tue, 10 Aug 2010 20:18:00 GMT

An employer may not retaliate against a worker for disclosing information about: state or federal law violations, managers in state or local government who abuse authority, people who waste large amounts of public money, or threats to the health or safety of the public.
Before sharing the information with anyone other than a lawyer, union representative or elected official, the employee must share the information, in writing, with either a supervisor or the appropriate governmental unit.
To determine which governmental units qualify, or to file a retaliation complaint, call the Equal Rights Division of the state Department of Workforce Development at 414-227-4384.
A law passed earlier this year also protects the identities of whistleblowers who share information with journalists.

How to Find Out the Actual Earnings of a Specific Occupation to Assist in Maintenance Calculation and Imputed Income

Tue, 10 Aug 2010 20:15:00 GMT

An effective way to find out the earnings of a specific occupation is to visit the following internet sites:

http://stats.bls.gov//comhome.htm
www.acinet.org
ww.wageweb.com

Child Support Offset for Social Security Disability Payments

Linda S. Vanden Heuvel — Tue, 10 Aug 2010 20:09:00 GMT

If a parent is receiving social security retirement or disability payments, the children should also receive social security benefits directly. Wisconsin addresses this situation. DCF 150.03(5) provides as follows:

"ADJUSTMENT FOR CHILD'S SOCIAL SECURITY. The court may include benefits received by a child under 42 USC 402(d) based on a parent's entitlement to federal disability or old-age insurance benefits under 42 USC 401 to 433 in the parent's gross income and adjust a parent's child support obligation by subtracting the amount of the child's social security benefit. In no case may this adjustment require the payee to reimburse the payer for any portion of the child's benefit."