Family law is an area of law that deals with a wide range of family issues, including child support, legal custody, physical placement, paternity, guardianships, divorce, and termination of parental rights.
Regardless of the issue that is presented, family law is always coupled with stress and fear for a loved one‘s rights. Frank Gagliardi fully understands these issues and individual concerns. He is not just an attorney who is processing paperwork; rather, he is vested in his client‘s goals, objectives and outcome.
We have outlined some typical questions that routinely come up during the initial stages of a family law case.
What is the difference between legal custody and physical placement?
If you have legal custody, you make all the decisions on major life issues. It is presumed that the parties will jointly share legal custody and will equally participate in making major decisions for their minor child(ren). Some of the major decisions include: marriage, entry into the military, non-emergency medical treatment, education and religion. There are specific situations which may allow one party or the other to be awarded sole legal custody, including, but not limited to, if there was domestic abuse or other physical/sexual abuse present or if there was an inability for the parents to communicate.
Physical placement is the actual daily placement schedule with each respective parent. In addition to the daily placement schedule, the parent who has actual physical placement during a particular day has the right to make routine and daily decisions for the child(ren), including the right to seek emergency medical treatment. Physical placement can be divided between the parties in a number of ways depending on the parents‘ daily work schedules and child care availability. In southeastern Wisconsin, the courts attempt to apply the rules of equity and fairness. That means maximizing the amount of physical placement with each parent to allow a consistent and meaningful relationship to be maintained with both parents. There are three terms that are commonly used when referring to physical placement: primary placement, secondary placement/visitation and shared placement. Primary placement is when one parent has the child(ren) more than 75% of the overnights on a yearly basis. Secondary placement/visitation is when one of the parents has the child(ren) less then 25% of the overnights on a yearly basis. When the parent has more than 25% (i.e. 26% or more) technically they are in a shared placement situation. Shared placement does not always mean that a parent has equal (50%) of the overnights when the court is setting the figure for child support.
How does the court determine child support?
Child support is calculated based on the paying party’s gross income pursuant to the statutory guidelines. However, the court will order a set amount payable to the Wisconsin Support Collections Trust Fund, P.O. Box 74400, Milwaukee, WI 53274-0400. Depending on the employment situation, the court usually orders the payments to be made by an income assignment. The paying party will be issued, an identification number for the child number for referencing purposes, however until a number is issued the paying party would reference the case name, county and number. There are many considerations that the guidelines cover in setting the amount. For instance: if the physical placement schedule is primary vs. secondary physical placement, then the court uses the percentage of formula income (17% for one child, 25% for two children, 29% for three children, 31% for four children, and 34% for five or more children ); however if the physical placement schedule is Shared Physical Placement, then the court will use the Shared Placement Formula. This formula takes both parents‘ gross incomes into consideration and using a fairly simple formula based on the number of overnights, establishes the set number for support. There is also a formula for a high payer, a person who earns more than $84,000 gross per year. The amount of child support that is received is not taxable to the receiving party, which means that it is not deductible for the paying party.
Does a parent have the same rights if the child is born out of wedlock versus born during a marriage?
This question, when asked in relation to legal custody and physical placement, raises a distinction between the legal action for divorce and paternity. It is an important question. When a party conceives a child and the child is born during the marriage, then there is a presumption that the husband is the father of the child. With that presumption in place, he automatically has custodial and placement rights over the minor child. However, when the child is born out of wedlock, then there is no such presumption. In fact, the alleged father has no legal rights over the child until he is adjudicated the father from an order of the court. This can be achieved by filing an Action for Paternity (by either parent). Until that time when the court orders that he is the father, the mother has all of the control and rights over the minor child. It should also be known that, during the initial hearing in a paternity case, the father will have an opportunity to admit he is the father or deny it. A DNA test is available if this admission or denial is disputed.
What is the process to get into court and what happens at the first hearing?
A party must make a formal request to the court. If this is the first attempt (Petition for Divorce or Paternity), then the party must file a Summons and Petition. The party that so files the Petition is the Petitioner and must pay the initial filing fee. If the party is requesting something after the initial pleading is filed, then that party would file a Notice of Motion, Motion or Order to Show Cause, Affidavit in Support of the Motion or Order to Show Cause and, if necessary, a Memorandum or Brief in Support of the Motion or Order to Show Cause. The party filing such documentation is the moving party and usually has the burden of proving their allegation or position. In either situation, after the documents are filed with the court, the requesting party must obtain Personal Service on the other party (putting them on notice). A hearing will be set on the issues.
What happens at the first hearing depends on the requested relief. If this is an initial hearing (Temporary Hearing) in a family law case (Divorce or Paternity), then the court hears both parties‘ views on what the Temporary Order should be on the pending issues. These issues may include: financial obligations, support (child/spouse/family), legal custody, physical placement, mediation, the appointment of a Guardian ad Litem, or other. If the parties cannot agree on a physical placement schedule, the court will usually send the parties to mediation to try to amicably resolve the issue. The parties will then come back to court for a mediation review hearing. If there is no agreement by the review hearing, then a Guardian ad Litem is appointed. This is an attorney who is appointed and who represents the child(ren)’s interest. Another review hearing will be set for the Guardian ad Litem, who will at that hearing submit to the court its recommendation on physical placement and legal custody. Both parties and the child(ren) will have an opportunity to speak with the Guardian ad Litem in an effort for the Guardian to provide a meaningful recommendation. If at that hearing the parties agree to adopt these recommendations, then these issues are resolved; however, if one party would object, then the court will set the matter for a trial in front of the presiding judge on the issues. In between all of these hearings, the parties, with their respective attorneys, will be negotiating and proceeding with discovery in an effort to settle the case, or prepare for trial. If the parties come to an agreement, a formal written document will be produced, signed by the parties and entered as part of the order or judgment of the court. In a Paternity case, the parties would enter into a parenting agreement. For a divorce, the parties would enter into a marital settlement agreement or a partial marital settlement agreement.
My spouse was unfaithful during the marriage. Can I use that to my advantage to get more from our divorce?
Wisconsin is a No Fault state. Whether a spouse was faithful or not is really not a part of the divorce proceedings. There may be limited situations where extra-marital affair(s), such as marital waste (where marital funds are used for non-beneficial and non-marital purposes), but these situations are rare and even more difficult to prove.
How long will it take to complete my divorce?
The State of Wisconsin will not allow a party to officially be divorced until the passing of 120 days from the date of service of process (official notice to the other party). However, the length of time really will depend on if both parties are in agreement on all of the issues that are pending. Typically, a divorce takes between 4-8 months to complete.