mondays with morgan: divorce process in wisconsin april 21, 2014 1:00-2:00 pm 1 please use your...
TRANSCRIPT
MONTHLY LEGAL ADVOCACY UPDATES
Mondays with Morgan:Divorce Process in Wisconsin
April 21, 2014
1:00-2:00 PM
1
PLEASE USE YOUR PHONE FOR THE AUDIO PORTION OF
TODAY’S PROGRAM.
BY 1:00 DIALING
866-740-1260
ACCESS CODE
2557290
TODAY’S PRESENTATION
Basic Divorce Process
Required paperwork
2003 Wisconsin Act 130
Role of the Mediator and Guardian ad Litem
Role of the advocate
BASIC REQUIREMENTS FOR DIVORCE
Legally married person (anywhere in the world)
Who has resided in the State of WI for at least 6 months and in the county where filing for at least 30 days
In order for the court to have jurisdiction over children, they must also have resided in the state at least within the six months prior to filing or currently reside in the state
HOW TO START DIVORCE ACTION
Prepare the pleadings: Summons, Petition, Confidential Petition Addendum (Wis. Stats. Sec. 767.215)
File the pleadings with the Clerk of Courts for the county where filing with the appropriate filing fee or fee waiver
Service of Process (Wis. Stats. Ch. 801)
TEMPORARY ORDERS (WIS. STATS. SEC. 767.225)
To schedule a Temporary Order Hearing: File an Order to Show Cause for Temporary Order and Supporting
Affidavit Personally serve the other party with these papers Each party is typically required to fill out a Financial Disclosure
Statement at this time (Wis. Stats. Sec. 767.127)
Temporary Orders are to resolve matters of legal custody and physical placement of minor children, child support, and other financial matters during the pendency of the divorce and are typically heard in front of the County’s Family Court Commissioner
LEGAL CUSTODY OF CHILDREN
“Legal Custody” means the right and responsibility to make major decisions concerning the child. (Wis. Stats. Sec. 767.001(2)(a))
Other factors the court uses in determining custody and physical placement are found in (Wis. Stats. Sec. 767.41(5))
“Major decisions” includes, but is not limited to, decisions regarding consent to marry, consent to enter military service, consent to obtain a motor vehicle operator's license, authorization for nonemergency health care and choice of school and religion. (Wis. Stats. Sec. 767.001(2m))
JOINT LEGAL CUSTODY
“Joint legal custody” means that both parents share legal custody and neither parent's legal custody rights are superior. (Wis. Stats. Sec. 767.001(1s))
It presumes that parents are able to communicate and jointly make major decisions.
“IMPASSE BREAKING AUTHORITY”
In making an order of joint legal custody, the court may give one party sole power to make specified decisions, while both parties retain equal rights and responsibilities for other decisions. (Wis. Stats. Sec. 767.41(6)(b))
In essence, this gives one parent the right to make the final decision when the parties cannot agree on a custodial decision.
SOLE LEGAL CUSTODY
One parent has the legal custody of the child. (Wis. Stats. Sec. 767.001(6))
The court may order sole legal custody to one parent by agreement of the parties or due to any of the following:
One party is not capable of performing parental duties and responsibilities or does not wish to have an active role in raising the child.
One or more conditions exist at that time that would substantially interfere with the exercise of joint legal custody (i.e. an injunction prohibiting one parent from having any contact with the other).
The parties will not be able to cooperate in the future decision making. (Included in this is the rebuttable presumption that if either party engaged in abuse of the child, interspousal battery, or domestic abuse, the parties will not be able to cooperate in the future decision making. (Wis. Stats. Sec. 767.41(2)(b)2)).
PHYSICAL PLACEMENT (WIS. STATS. SEC. 767.41(4))
Primary placement = >75% annual overnights with the primary placement parent
Shared placement = 25% - 50% annual overnights with one parent and 75% - 50% annual overnights with the other parent
The court may award primary physical placement of the child to one parent, with secondary physical placement to the other, or a form of shared physical placement to both parents.
2003 WISCONSIN ACT 130
Pursuant to 2003 Wisconsin Act 130, as it is written into Wis. Stats. Sec. 767.41, the court may grant sole legal custody and/or primary physical placement to a victim of interspousal battery or domestic abuse.
(See Wis. Stats. Sec. 767.41 generally)
WHEN IS THE BEST TIME TO RAISE DOMESTIC VIOLENCE CONCERNS?
The sooner, the better, as domestic abuse is a statutorily created factor the court must consider in custody and placement orders.
For example, at the Temporary Order stage, the Family Court Commissioner should take domestic violence concerns into account when making temporary orders.
WHEN WILL A GUARDIAN AD LITEM BE APPOINTED? WHAT ABOUT MEDIATION?
Whenever there is a dispute regarding the custody and physical placement of the minor child, the court will refer the matter for mediation and a family court study. (Wis. Stats. Sec. 767.405(8))
If the dispute continues after mediation, the court
waives mediation, or the court is concerned for the welfare of the child, a Guardian ad Litem (“GAL”) shall be appointed. (Wis. Stats. Sec. 767.405(12)(b) and 767.407)
MEDIATION AND DV
Wisconsin statute allows those who have safety concerns to waive the ordered mediation This looks different in different areas
A good mediator will do a screening for DV and make accommodations as necessary if the survivor wishes to proceed or the waiver is not accepted
WHAT IS THE ROLE OF THE GAL?
The GAL shall be an advocate for the best interests of a minor child. (Wis. Stats. Sec. 767.407(4))
The GAL shall consider the factors under Wis. Stats. Sec. 767.41(5)(am) and conduct an investigation as to what is in the best interest of the minor child.
The GAL shall investigate whether there is evidence that either parent has engaged in interspousal battery or domestic abuse and shall report to the court on the results of the investigation.
To make a recommendation to the court as to what s/he believes is in the child’s best interest.
To present evidence at a trial/hearing to support her/his recommendation.
ABOUT THE GAL…
In WI, GALs are attorneys…. Not necessarily social workers are those trained in children’s development
GALs must be ready to litigate cases
All court-appointed GALs are required to have *some* domestic violence training as part of his/her certification
GALs are NOT required to meet with the children, nor is it necessarily a best practice to do so
It is extremely difficult to get GALs removed from a case once they are appointed and have started work
THE PROCESS LOOKS DIFFERENT
IN DIFFERENT COUNTIES!
DANE, JEFFERSON, RACINE, WAUKESHA COUNTIES
Dane, Jefferson, Racine, and Waukesha Counties have Family Court Counseling Services (FCCS) offices. The counselors/social workers conduct mediation and the family court studies, in the event that mediation fails. The assigned worker also assists the GALs in investigating and can serve as witnesses at trial.
Racine County has a specific number of GALs on contract. Dane County has a specific number of GALs on contract, but only for non-divorce cases.
MILWAUKEE AND ROCK COUNTIES
Milwaukee and Rock Counties have mediation offices in their courthouses, but no counselors who can conduct the family court studies.
Therefore, when a GAL is appointed, that person is responsible for conducting the investigation and writing recommendations to the court. Rock County has a specific number of GALs on contract.
KENOSHA COUNTY
Kenosha County utilizes an outside mediation agency called Interconnections. They have no Family Court Counseling Services, and therefore, no counselors who can conduct the family court studies.
Therefore, when a GAL is appointed, that person is again responsible for conducting the investigation and writing recommendations to the court. Kenosha County has a specific number of GALs on contract.
AND THEN WE WAIT….
STATUTORY WAITING PERIOD FOR FINAL HEARING OR TRIAL
The expiration of 120 days after service of the summons and petition upon the respondent or the expiration of 120 days after the filing of the joint petition, unless emergency reason for an immediate hearing exists.(Wis. Stats. Sec. 767.335)
THE PROCESS LOOKS DIFFERENT
IN DIFFERENT COUNTIES!
DANE COUNTY PROCEDURE
Family Court Commissioner has to certify the case over to the Judge
Judge conducts a pretrial/status/ scheduling conference with all parties and attorneys
Trial or stipulated divorce date is scheduled
OTHER COUNTIES’ PROCEDURE
Attorneys schedule a pretrial hearing or the Judge’s clerk mails out a court date notice for a pretrial hearing
Court issues pretrial orders
Trial or stipulated divorce date is scheduled
Some counties will schedule a stipulated final hearing without a pretrial conference – it’s the judge’s discretion
DIVORCE TRIAL/HEARING
If contested: Rules of Civil Procedure apply (See generally Wis.
Stats. Sections 801 to 847)
All attorneys, including GAL, present witnesses and other evidence.
Judge makes final ruling/orders on custody, placement, child support, maintenance, property division, debt allocation.
STIPULATED/DEFAULT DIVORCE HEARING
If stipulated: Testimony is taken of both parties based on the written
agreement of the parties.
Judge/Commissioner makes final ruling based on the written agreement. (Wis. Stats. Sec. 767.34)
A Commissioner can only grant a divorce upon the written agreement of the parties and both testifying the marriage is irretrievably broken, or if one party is in default. (Varies by county)
ODDS AND ENDS
Parties are to update their previously filed Financial Disclosure Statements at the time of the final hearing.
The judgment is effective when granted but it is unlawful under Wis. Stats. Sec. 767.03(2) for a party to marry again until 6 months after the judgment is granted. (Wis Stats. Sec. 767.35(3)).
The Court orders and/or approves agreements as to custody and placement that it deems are in the “best interest of the child” (usually GAL is asked if s/he believes order is in the child’s best interest).
FINAL JUDGMENT: “FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT OF DIVORCE”
It shall be drafted by the petitioner and shall be submitted to the court within 30 days after judgment is granted. (Wis. Stats. Sec. 767.251)
It incorporates written agreements as orders of the court, if applicable, and must be approved by all attorneys and the Court before signed by the Court.
This becomes the order to show for enforcement of custody/placement of children
THE ROLE OF THE ADVOCATE
Assist with completion of pro se forms Answer questions about process and players Help collect documentation (police reports,
medical records, school records, etc.) Educate the system professionals regarding
dynamics and other DV related issues that may arrise Very respectfully and carefully, of course
QUESTIONS?