Recent Blog Posts

Factors Determinative of Standard of Living

VHDSC Law — Fri, 12 Aug 2011 19:01:00 GMT

In order to ascertain maintenance, one of the criteria the court looks at is the Standard of Living of the parties while married. These criteria include, but are not limited to, the following:

Appraisal of residence

Vacation homes

Regularity of dining out

Incomes

Pets

Golfing and other sporting activities

Athletic event tickets

Types of activities of children

Vacations

Clothing purchases

Food purchases

Church donations

Vehicles

Boats

How regularly credit cards are paid off

Entertainment

Cleaning services

Lawn services

It is important for the judge to know the type of living style enjoyed by the parties in order to attempt to make sure that any maintenance obligation fits into the previous lifestyle of the parties.

Maintenance in a Lump Sum

Linda S. Vanden Heuvel — Wed, 03 Aug 2011 19:11:00 GMT

Maintenance does not have to be paid on a monthly basis. It can be paid in one lump sum. A buy out of maintenance raises important and complicated tax issues. Consult an attorney or accountant before deciding to go ahead with a lump sum payment. The IRS offers a number of publications that may help you as you negotiate support: IRS Publication 505, Tax Withholding and Estimated Taxes, is one, and IRS Publication 504, Divorced or Separated Individuals, is another. Both are available at www.irs.gov or by phone request at 800-829-3676.

11 Tough Questions to Ask Before You Hire a Family Law Attorney

Linda S. Vanden Heuvel — Wed, 03 Aug 2011 19:09:00 GMT

How long have you practiced law in Wisconsin?

What percentage of your practice is devoted to family law and divorce?

Will you send me a free copy of Divorce Mistakes That Could Cost You a Fortune?

Are you a member of the Wisconsin Academy of Trial Lawyers?

Are you a member of the American Trial Lawyers Association?

Have you previously represented people in situations like mine?

Do you have an AV rating, the highest rating offered by the international legal directory Martindale-Hubbell for legal skills, integrity and honesty?

If I ask you to represent me, will you give me your home telephone number and cell phone number so I can reach you any time I have an emergency?

If you're away from the office, will someone in your office know about my case if I need help in your absence?

Will you discuss my case with me over the telephone?

How many trials have you conducted in the last five (5) years?

Earning Capacity and the Economy

Linda S. Vanden Heuvel — Mon, 25 Jul 2011 18:45:00 GMT

The economy has made determination of earning capacity a much more difficult analysis. People both in and out of the job market are being forced to take cuts in pay or to alter their job requirements and plans. The question is whether or not maintenance calculations should be based on what a person actually earns or should be based on a person's earning potential or earning capacity based on that person's education, experience, qualifications and job marketability. It is not enough to look at past 2-W-2s or paychecks. The economy plays a role. In this writer's opinion, earning capacity is not merely the job for which the person is qualified, but also the job the person can actually obtain in today's job market. Earning capacity has been defined as "not an amount which a person can theoretically earn, nor is it combined to actual income, but rather it is an amount which a person can realistically be expected to earn considering vocational skills, age and health." Availability of jobs is also a significant factor.

Preparing for Divorce - 25 Steps to Take

VHDSC Law — Thu, 21 Jul 2011 20:38:00 GMT

1. Talk to a number of divorce lawyers. Check out their ratings under AVVO and Martindale Hubble. Try to select an attorney that is familiar with your local rules and judges, and primarily practices in the area of divorce and family law. Figure out how you are going to pay an attorney.

2. Consider consulting with a therapist. Divorce is not easy. You may need assistance in the transition.

3. Get a new email account with a user name and password your spouse does not know and will not be able to guess. Get your own computer. You do not want your spouse to have any access to your computer.

4. Get a post office box. You want to make sure that you are able to get communications from your divorce attorney that are sent exclusively to you and are not accessible to other parties.

5. Set up your own cell phone account. You do not want your spouse to have access to your private conversations.

6. Get a copy of your credit report so that you can ascertain your credit history as it is made available to third parties. Make any necessary corrections.

7. Open your own bank accounts. These accounts should be in your own name and probably in a different bank than where your spouse's or your joint accounts are located. Use a different address for your new bank accounts.

8. Make copies of your income tax returns for the last five years, including W-2s and 1099s.

9. Apply for your own, individual credit cards. Consider closing or placing limits on joint accounts.

10. Video or make a list or take photographs of all items of personal property in your residence and other real estate. Identify which items were gifted or inherited and which items you brought into the marriage. If you have any receipts for the personal property, make copies of them.

11. Consider hiring your own accountant or financial advisor.

12. Consider closing or freezing joint accounts.

13. You may want to consider advising your bank that no withdrawals can be made from retirement accounts, etc., without written authorization of both parties.

14. If you are the lower income spouse, consider finishing your education or additional training. Two cannot live for the price of one.

15. Consider whether or not you should look for a different job. This is not an easy decision, especially if there are children to be considered and the increased cost of childcare.

16. Decide where you are going to live. Are you best served remaining in the residence, or should you obtain alternate housing. Generally do not leave the residence without a prior, written agreement relative to placement of the children.

17. Get the basics, including dates of birth, social security numbers, date and place of marriage, information about prior marriages and divorces, occupations, employers, education and degrees of each spouse, payroll stubs, a copy of any prenuptial agreement, appraisals, business evaluations, if applicable, mortgage balances, retirement plan statements. Make a copy of all your financial records, including any assets or debts. Know the names and addresses of your financial institutions.

18. Try to assess your financial situation. What is the income of each spouse? What are the expenses of each spouse? Detail your assets and liabilities.

19. What are your employee benefits from your job? Make sure you get copies of life, health and disability insurance policies. Know who the beneficiaries are on these policies.

20. Provide your attorney with a copy of any Will or Trusts that are currently in existence. Obtain COBRA coverage information.

21. If you are moving into another residence, take your personal items with you, i.e., photographs, jewelry and items of special significance.

22. Consider what type of divorce works for you - collaborative, cooperative or traditional.

23. Talk to your spouse about the divorce. If both of you can agree to the divorce, the steps to completing the divorce process will be easier and you are likely to have a smoother transition.

24. Request an earnings and benefit statement from the Social Security Administration for yourself and for your spouse. Form SSA-7704.

25. Keep a log of the time you spend with your children and the type of activities in which you participate.

Facebook, Twitter, MySpace are Here to Stay

Linda S. Vanden Heuvel — Wed, 22 Jun 2011 21:18:00 GMT

You don't need to hire a detective if you are trying to establish your spouse's infidelity. Too often you can simply use social media including Facebook, Twitter, MySpace, Match.com, eHarmony, etc., to obtain information about your spouse's internet relationships. When you choose to "friend" or "follow" or when you "write on a wall" or when you list your significant other as a "friend" on your profile, the impact on your marriage can be great. Facebook, Twitter, MySpace cannot be erased. Just because you press a button that says delete does not mean the information does not leave a permanent digital trail. Information posted on Facebook is often used as evidence in divorces. For example, if a separated man on Facebook in his efforts to imbelish his profile indicates that he earns $100,000 when he does not, that information can be used against the husband in the divorce trial. Inappropriate pictures also are fuel for placement and custody cases. The bottom line is be careful what you post online.

Every Day is Father's Day

Linda S. Vanden Heuvel — Wed, 22 Jun 2011 21:12:00 GMT

Happy Father's Day to the dads who are reading this blog. The Pew Research Center has recently recorded the changing roles of parents in the United States as marriage rates and traditional family households decrease at a fast rate. Almost half of American fathers under the age of 45 has atleast one child out of wedlock. While you would think to the contrary, the share of fathers living apart from their children is more than double what it was in the recent past. It is the lower income men who are understandably having the most difficult time seeing their children on a regular basis. If a father cannot pay sufficient support, he sometimes becomes estranged from his children. Better jobs also mean better benefits and family-friendly policies, in contrast to lower wage workers. This is not a male factor. It is a factor across the board for all lower wage earning individuals. But these are just statistics. Many men and women, moms and dads, with lower paying jobs are excellent, caring parents on an every day basis.

Domestic Partnership Registries in Wisconsin Upheld

Linda S. Vanden Heuvel — Tue, 21 Jun 2011 20:31:00 GMT

On June 20, 2011, Dane County Circuit Court Judge Daniel R. Moeser ruled that Wis. Stat. Chapter 770, which legalized registries for same sex couples, does not grant legal status to domestic partners that is identical or substantially similar to marriage. The Court reasoned that "the State does not recognize domestic partnership in a way that even remotely resembles how the State recognizes marriage." A case is currently pending, brought by Wisconsin Family Action, challenging Wisconsin's constitutional ban on both marriage and a "legal status identical or substantially similar to marriage" for same sex couples. This decision will be subject to appeals, ultimately to the Wisconsin Supreme Court.

In June 2009 former Governor Jim Doyle, as part of the State budget, approved partnership benefits for qualifying couples, including allowing domestic partners to take family and medical leave to care for a seriously ill partner, make end of life decisions and to have hospital visitation rights.

Our Family Wizard

Linda S. Vanden Heuvel — Tue, 08 Mar 2011 19:37:00 GMT

After divorce, use of Our Family Wizard assists in co-parenting and other placement issues. You can create time schedules, plans, share activities, trade days, track support and variable expenses, make journal entries, etc. Children do not have to worry about being used as messengers. Our Family Wizard is a tool for managing child custody and placement relationships and parenting times. It helps avoid costly misunderstandings. www.ourfamilywizard.com

Our Family Wizard also provides shared custody calendars and schedules, messaging, journaling, expenses and information management tools.

Social Security After Divorce

Linda S. Vanden Heuvel — Tue, 08 Mar 2011 19:31:00 GMT

If you are married 10 years or longer you can receive Social Security benefits as a widow or widower if your ex-spouse dies, even years after your divorce and even if your ex-spouse remarried. Your local Social Security office is a good source of information regarding Social Security, Medicaid and government pensions. www.ssa.gov

Difference Between Domestic Abuse Injunction and Harassment Injunction in Wisconsin

Linda S. Vanden Heuvel — Mon, 07 Mar 2011 21:27:00 GMT

Effective September 1, 2010, the parties can stipulate to the issuance of a harassment injunction instead of a domestic abuse injunction. If the parties agree to such a stipulation, the court may not approve the stipulation unless the following factors are met:

1.    Either or both parties submit an oral request on the record for the conversion explaining the reason why the conversion is requested; and
2.    The court advises the petitioner personally and determines that the petitioner entered into the stipulation voluntarily and with an understanding of the differences between a domestic abuse injunction and a harassment injunction; and
3.    In a harassment injunction, the court may order the respondent to avoid the harassment of the petitioner, avoid the petitioner's residence or any premises temporarily occupied by the petitioner or any combination thereof. A harassment injunction may only prohibit the conduct that has been actually proven in court. A harassment injunction only prohibits possession of a firearm. If the petitioner has proven by clear and convincing evidence that the respondent may use a firearm to cause harm to another or public safety.
4.    Under a domestic abuse injunction, any firearm the respondent owns or possesses must be surrendered and any domestic violence conviction prohibits return of the guns.

Changes to Wisconsin's Domestic Abuse Injunction Laws

Linda S. Vanden Heuvel — Mon, 07 Mar 2011 21:19:00 GMT

There have been changes to Wisconsin Domestic Abuse Injunction statutes, Wis. Stats. 813.12. The changes include:

1.    The petitioner must provide information regarding other cases involving the parties.
2.    The parties may stipulate to the issuance of a harassment injunction instead of a domestic abuse injunction.
3.    The court must provide written information to the petitioner regarding service by the sheriff's department.
4.    Either party has 30 days to file for a de novo review and the hearing must be held within 30 days of filing.

Changes have also been made to Wis. Stats. 813.125 Harassment Injunctions. These changes include:

1.    The ability to publish a harassment injunction.
2.    A child, parent, step-parent or legal guardian of a child may be a petitioner.
3.    A guardian ad litem may be appointed for a child party.
4.    The petitioner must provide information regarding other cases involving the parties.
5.   The court must provide written information to the petitioner regarding service by the sheriff's department.
6.    The court may not dismiss or deny a TRO or an injunction based on a pending action between the parties or an already existing no contact order or the need to verify the terms of an already existing no contact order.
7.    The court may order the sheriff to accompany the petitioner to place the petitioner in possession of his or her residence or serve the TRO or injunction.
8.    A confidential petition addendum is required.
9.    Either party has 30 days to file for a de novo review and the hearing must be held within 30 days of filing.

You Are Not Too Young to Utilize a Prenup

Linda S. Vanden Heuvel — Mon, 06 Dec 2010 15:54:00 GMT

Prenuptial agreements are used more and more often by the younger generation. Issues such as school loans, homes, pets, pensions, retirement accounts, premarital personalty, credit card debt, income when one party can't find a job, educational costs, business ownership, future assets, insurance, etc., are all issues which can be addressed in a prenuptial agreement. These issues effect persons in first marriages, some of whom may be in their 20s and 30s.

Elder Care - Check Drug Costs

Linda S. Vanden Heuvel — Mon, 06 Dec 2010 15:52:00 GMT

AARP and Consumer Reports released an online tool at www.drugsavings.aarp.org that lists generic alternatives for brand name drugs. The site estimates what the monthly cost would be for each option without factoring in health insurance. The site also lists drugs common uses and side effects.

Grandparent Visitation may be addressed in the Marital Settlement Agreement

Linda S. Vanden Heuvel — Fri, 19 Nov 2010 19:01:00 GMT

The issue of grandparent visitation is one of significance in many divorce cases. Obtaining grandparent visitation post-judgment is oftentimes difficult so if the parties are able to address the issue of grandparent visitation during the divorce process, it may save litigation in the future and foster a positive, significant relationship between the grandparents and minor children. Even if grandparent visitation is not addressed, you may include a clause that allows for the children to receive telephone calls from the grandparents and specifically prevents interference by either party with the children's relationship with the grandparents. Grandparents should be considered for summer visitation, as well as holidays.