What Property May be Excluded from the Marital Estate?

By Renee A. Read

March 31, 2016

A popular question in divorce law is what assets may be argued for exclusion from the marital estate, and therefore equal division of that asset avoided. Generally speaking, there are three circumstances that merit further evaluation: 1) gifted property, 2) inherited property, and 3) property brought to the marriage.

Wis. Stat. §767.61(2)(a) states that any property that is a gift from a person other than the other party or received by reason of death of another (including but not limited to life insurance proceeds) shall remain the property of that party. The word “shall” means that it is mandatory for the court to treat the property in that manner, as long as, of course, that the party can establish that it was actually received by gift or inheritance.  Although there is a presumption for equal division of property in Wisconsin divorce law, that presumption does not apply to gifts or inheritance.

Many people assume that they are entitled to gifts that they received from their spouse. However, as the statue clearly specifies that it covers only gifts from a person “other than the other party”, the courts generally treat gifts between spouses as marital property that is to be equally divided.  If not the asset is not actually divided, then it would still be included in the marital estate and awarded to one spouse with offset in the overall property division.

A court may deviate from an equal division of the marital estate after considering all the factors set forth in Wis. Stat. §767.61(3). One of the considerations is the “property brought to the marriage by each party.”  See Wis. Stat. §767.61(3)(b).  It is within the court’s discretion whether to have property brought to the marriage divided equally or awarded solely to the party who originally acquired it.  In my experience, the courts are more inclined to deviate from equal division when the marriage is of short duration and the asset can be easily traced and separated from an asset acquired after the date of marriage.

If you have questions about property division, it is important that you speak with an attorney regarding the specific facts of your case. The above is a general description of this issue, but each case is unique and a more in-depth analysis is recommended.

Attorney Renee A. Read Remley & Sensenbrenner, S.C. 219 E. Wisconsin Ave. Neenah, WI 54914 T: 920-725-2601

This Blog is focused on divorce and family law practice in the Fox Cities of Wisconsin, but is generally applicable for the entire state of Wisconsin.

Disclaimer: The content on this site is intended to provide general information regarding the subject matters covered. The provision of this information is not intended by the author as legal advice. If you need or desire legal advice, you should consult an attorney for advice specific to your situation. Further, laws change over time so the information should be verified before relying on it.

Custody vs. Placement; What’s the Difference?

By Renee A. Read
February 26, 2015

Many individuals confuse these terms. Contrary to the general public’s assumption, custody in Wisconsin does not refer to the time a parent has with a child. Instead, custody refers to a parent’s ability to make major decisions involving the child. Major decisions are defined in Wis. Stat. §767.001(2m). “‘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. Stat. §767.001(2m)). In most cases, it is presumed that joint legal custody is in the best interest of the child. Nonetheless, it is possible for the court to grant sole legal custody in certain circumstances.

Placement, on the other hand, describes time allocated to a parent to physically spend time with the child. Many individuals associate this meaning with visitation, which is a term used in some other states. During physical placement, a parent has the right and responsibility to make routine daily decisions regarding the child’s care. However, such decisions cannot be inconsistent with major custodial decision-making. The placement statute (Wis. Stat. §767.001(2m)) directs that the Court set a schedule which “maximizes the amount of time the child may spend with each parent” taking into consideration certain factors. Many judges find this as strong support for ordering equal physical placement between the parents. However, the best interest of the child is paramount, and the factors aide the court in determining what is best for the child. Nonetheless, Wisconsin law specifically states that the Court may not prefer one parent over the other on the basis of gender.

If you have questions about custody and placement, it is important that you speak with an attorney regarding the specific facts of your case. The above is a general description of the terms, but each case is unique and much that goes into a full analysis.

Attorney Renee A. Read
Remley & Sensenbrenner, S.C.
219 E. Wisconsin Ave.
Neenah, WI 54914
T: 920-725-2601

This Blog is focused on divorce and family law practice in the Fox Cities of Wisconsin, but is generally applicable for the entire state of Wisconsin.

Disclaimer: The content on this site is intended to provide general information regarding the subject matters covered. The provision of this information is not intended by the author as legal advice. If you need or desire legal advice, you should consult an attorney for advice specific to your situation. Further, laws change over time so the information should be verified before relying on it.

The Guardian ad Litem

By Renee A. Read

A Guardian ad Litem (GAL) is generally appointed by the Court after mediation is unsuccessful or when custody/placement is highly contentious.   The GAL is an attorney appointed to represent the best interest of the child(ren), as opposed to the child(ren) themselves.  Although the wishes of the child(ren) are taken into consideration, the children cannot dictate what the GAL recommends to the Court.  The GAL must evaluate the entire circumstances in determining what they believe is in the best interest of the children.  As part of their investigation, the GAL normally meets with each parent, and depending on the age of the children, each of the children as well.  It is not required that they go to each of the parent’s homes, and often home visits are not done unless the conditions of the home are at issue.  Often times GAL’s are attorneys in private practice, and therefore their fees are comparable to the hourly rates of other family law practitioners.  In some counties, Guardian ad Litem’s are on contract with the county and charge a lesser hourly rate.  Often times, the fees are shared equally between the parties, and a modest retainer must be paid by each party for the GAL’s services.  Depending on one’s income / financial resources, it is possible that they will qualify for the county rate and/or a lesser retainer will be required.  If the custody/placement issues exist in large part due to egregious behavior of the other party, it is possible that the other party will be responsible for the majority if not all of the GAL fees.

The GAL’s recommendation to the Court regarding custody/placement is taken into serious consideration by the Court because the GAL has had the opportunity to spend significant time investigating the matter and hearing the positions of both parties.  Therefore, the Court often times adopts the recommendations of the GAL as the decision of the Court.  Nonetheless, the GAL is not a substitute for the judge (or court commissioner) and the Judge can choose to deviate from the recommendation in full or in part.  However, because the GAL recommendation usually is adopted by the Court, many parties reach settlement based upon the terms of the recommendation.

Some counties place the attorneys qualified to do GAL work on a rotation and cases are assigned based upon the rotation.  In other counties, the attorneys for the parties reach an agreement on the identity of the GAL.  Because of the important role they have in a case, if it is expected that a GAL will be needed, you should talk to your attorney about this in advance.

Attorney Renee A. Read

Remley & Sensenbrenner, S.C.

219 E. Wisconsin Ave.

Neenah, WI 54914

T: 920-725-2601

Attorney Read practices primarily in the Fox Cities of Wisconsin, but the information in this blog is generally applicable for the entire state of Wisconsin.

Disclaimer: The content on this site is intended to provide general information regarding the subject matters covered.  The provision of this information is not intended by the author as legal advice.  If you need or desire legal advice, you should consult an attorney for advice specific to your situation.  Further, laws change over time so the information should be verified before relying on it.

The Divorce Sequence

By Renee A. Read
January 30, 2015

This Blog is focused on divorce and family law practice in the Fox Cities of Wisconsin, but is generally applicable for the entire state of Wisconsin.

A divorce begins with the Summons, Petition, and Confidential Petition Addendum. Attorneys usually recommend that an Order to Show Cause with a supporting affidavit be filed at the same time as the Petition.

Therefore, the first hearing is normally a hearing to issue a temporary order (i.e., a Temporary Order hearing). As many counties have family court commissioners, these hearings would normally take place before these officials. When a temporary order is issued by a family court commissioner, a party has the right to ask for a new hearing before a judge, called a De Novo, if they do so within the time deadlines set by law.

If minor children are involved, mediation is normally ordered as part of the Temporary Order. Mediation is an opportunity for the parties to sit down with a third-person to see if they can reach an agreement on custody and placement issues. If mediation is not successful, then the next step is generally the appointment of a Guardian ad Litem (GAL), who is an attorney appointed to represent the best interest of the children. The GAL investigates the circumstances and issues a recommendation on custody and placement issues to the court. In some cases, there may also be a Custody Study conducted, which is another investigation, but done by individuals who are generally educated and trained in the field of social work.

Assuming that it is not a contentious divorce, normally the next hearing will be a Pre-Trial Conference, Scheduling Conference or Default Divorce. A Default Divorce is a hearing set with the intention of granting a divorce on the basis that the parties have reached an agreement on all the issues and thus a Trial (contested hearing in which a judge will decide disputes) is not necessary. Some counties automatically schedule a case for a Default Divorce to occur sometime after 120 days has passed since the filing and service of the Petition. If a Default Divorce is scheduled and the parties have not yet reached an agreement, the court will typically use the date/time of the Default Divorce hearing to conduct a Pre-Trial or Scheduling Conference. A Pre-Trial and Scheduling Conference are very similar, and the court uses these hearings to find out the status of the case and potentially schedule a Trial. Since these hearings are usually scheduling based, they are frequently handled by the attorneys without the attendance of the client. However, you should not make that assumption and should consult with your attorney to be sure.

A Trial is a contested hearing conducted by the Judge assigned to your case to decide any issues in which the parties have not agreed upon. Divorce Trials do not have juries, and the trier of fact is the Judge. These are evidentiary proceedings in which testimony and exhibits should be presented. At the conclusion of the Trial, the Judge will typically issue his decision verbally, and one of the attorneys (typically Petitioner’s) will be asked to later draft the written decision. Some judges, although not common in the Fox Cities, will refrain from issuing a verbal decision at the time of the Trial, think on the matter and review the evidence, and issue a written decision drafted by him/her.

There may certainly be many other types of proceedings along the way, which is why it is important that you speak with your attorney regarding what to expect and the issues involved. For example, there may be hearings to deal with contempt issues, discovery issues, or conflict of interest concerns, etc. Furthermore, there are various pleadings along the way which are not addressed above. Given the complexity of the law and the circumstances that vary in case from case, a general framework can only be given and this article is not a substitute for having your own legal counsel.

Stay tuned for additional helpful information.

Attorney Renee A. Read
Remley & Sensenbrenner, S.C., 219 E. Wisconsin Ave., Neenah, WI 54914
T: 920-725-2601

Disclaimer: The content on this site is intended to provide general information regarding the subject matters covered. The provision of this information is not intended by the author as legal advice. If you need or desire legal advice, you should consult an attorney for advice specific to your situation. Further, laws change over time so the information should be verified before relying on it.