Family Law and Divorce Attorney

Cost

The retainer (the amount you pay up front) will generally be either $1,000.00 or $3,000.00. If you have reached an agreement before coming into the office, or you believe you and your spouse will reach an agreement on all issues before a temporary order hearing (see below) is necessary, the retainer will be $1,000.00.

If it quickly becomes apparent an agreement on all issues will not be immediately reached, it will be necessary to deposit another $2,000.00. This can all be done by credit card.

If you do not have an agreement or do not anticipate an immediate agreement, the retainer fee is $3,000.00. The retainer is then deposited into a trust account. Scott charges by the hour. The hourly charges are taken from the retainer on a monthly basis. If you have money left over at the conclusion of the case, that money will be returned to you. If the retainer is used before the end of the case, additional funds will have to be deposited. Please be careful in only comparing hourly rates. Generally speaking, you get what you pay for and experienced attorneys can often resolve matters more quickly resulting in less fees at the end of the day.

We charge a $3,000.00 retainer because generally a contested divorce will end up in that price range. In my experience, 90% or more of divorce cases settle without a trial. If there is extensive discovery (interrogatories, depositions, etc.) a trial or unique issues (valuation of a sole proprietorship or partnership  for example) the cost will most certainly be more. The client and their spouse drive the cost of the divorce. The more fighting that occurs, the more expensive it gets. We will not incur any discovery expenses or out-of-pocket expenses without your explicit, upfront approval.

If you have any questions, please call Attorney Scott McCarthy at (608) 352-3366.

Procedure

Generally, we speak on the telephone first but you are certainly welcome to schedule an office conference if you are certain you want to proceed. Once you make the decision that you would like to proceed, we will usually meet in person and I will get the following information from you:

1. Names of the parties, including maiden name of wife;
2. Dates of birth of the parties;
3. Names of the children;
4. Dates of birth for the children;
5. Social Security Numbers of the parties and the children;
6. Employer of each spouse;
7. Occupation of each spouse;
8. Yearly income of each spouse;
9. Addresses of the parties;
10. Addresses of the children (current and from last five years);
11. Information regarding parties’ previous marriages (if any).

Once we have that information, a Summons and Petition for Divorce will be filed in the Court. We need your signature on the Petition. Once the Court stamps the Summons and Petition as “filed” we need to serve your spouse with those documents. That can be done either by having the sheriff hand it to your spouse or by having your spouse sign a document entitled “Admission of Service.”

The Admission of Service is simply a document your spouse signs indicating that they have received the Summons and Petition for Divorce. We can mail that to your spouse to sign, your spouse can stop into the office and sign it, or you can give it to your spouse and they can sign it and you can return it to our office.

The statutes require parties to wait 120 days from the date the adverse party is served before you can get a divorce. The legislature enacted the 120-day waiting period so people would not get divorced when they are angry at each other and decide to remarry a week later.

Unless the parties can agree otherwise, a temporary order hearing is then scheduled before a court commissioner. The temporary order hearing generally takes place approximately two or three weeks after the filing of the divorce Petition. At the temporary order hearing, the court commissioner will decide what happens on a temporary basis until the divorce is resolved by way of agreement or trial.

The court commissioner will decide such issues as temporary child placement, who will live where, child support, who will drive what car, who will pay for what bills, and whether one party must pay money to the other party as a form of temporary support. If either party feels aggrieved by the court commissioner’s decision, they have ten days to appeal the court commissioner’s decision to your assigned judge. That generally does not happen.

If the parties have children they are then ordered to attend mediation. The parties will be required to attend one session that provides the parents with information regarding the impact of the divorce on children. The second session will be hosted by a mediator that will talk to each of you regarding what you want for child placement and try to reach some middle ground. Often the parties are placed in separate rooms and the mediator goes back and forth attempting to find common ground. If the parties reach an agreement, a written document is drawn up encompassing their agreement and the issue of child placement is resolved.

If the parties do not reach an agreement in mediation, the court must appoint a guardian ad litem. A guardian ad litem is an attorney appointed by the judge to represent the best interests of the child(ren). Generally speaking, the parties are equally responsible for the cost associated with the guardian ad litem.

The guardian ad litem meets with each of the parents, and to the extent the children are old enough, meets with the children as well. The guardian ad litem will listen to each of your points of view and might do some investigation regarding what the guardian ad litem believes is in the best interests of the child(ren). The guardian ad litem does not represent either one of the parents. The guardian ad litem represents the best interests of the child(ren).

There is often a misperception that children will be able to choose which parent they live with or that at a certain age they have the right to choose. Such is not the case. The guardian ad litem will take the wishes of the children and parents into account, but neither the guardian ad litem nor the Court are obligated to do what the child wants. Sometimes the child simply wants to live with the “easier” parent that has no bedtime and does not require the child to do homework. That is not in the best interest of the child.

At some point, a pre-trial conference will be set with the Court. At that pre-trial conference, no evidence is received and nobody testifies. Rather the Court simply wants to know what issues are in dispute. The Court then assigns a trial date and sets dates by which various things must occur. For example, the Court will order the real estate and personal property of the parties to be appraised, set dates by which discovery must be completed and set dates for a final report from the guardian ad litem.

During all of this time, the attorneys and the parties are usually attempting to negotiate a settlement. If at any time an agreement is reached, a Marital Settlement Agreement can be drafted encompassing the agreement of the parties and the matter can be immediately scheduled for a final hearing (assuming 120 days has passed.)

At the final hearing, each of the parties must testify. The testimony only takes five minutes or so. Each of the parties are asked if they believe the Marital Settlement Agreement is fair. Each of the parties are required to file a Financial Disclosure Statement listing their monthly income, monthly budget, and their assets and liabilities. Each of the parties are asked if the Financial Disclosure Statement is true and accurate.

Finally, the Court confirms the parties are Rock County residents and have dates of birth, etc. as depicted on the original divorce Petition. The court will then grant the divorce. Neither party can remarry for 6 months.

If you have any questions, please call Attorney Scott McCarthy at (608) 352-3366.

Child Support

In the vast majority of cases, child support is set pursuant to a statutorily imposed formula. If one party has placement exceeding 75% of the overnights in a given year, the formula requires the other party to pay 17% of their gross income  for one child, 25% for two children, 29% for three children and it continues upward.

If the parties have shared placement (each of the parties have more than 25% of the overnights) a formula kicks in to reduce the percentages listed above. As an example, if one party has an income of $80,000.00 per year and the other party has an income of $40,000.00 per year and they have 50/50 placement of two children, the formula would call for the following support:

$80,000.00 x .25 = $20,000.00 x 1.5 = $30,000.00 x .5 = $15,000.00
$40,000.00 x .25 = $10,000.00 x 1.5 = $15,000.00 x .5 = $ 7,500.00
$15,000.00 - $7,500.00 = $7,500.00
$7,500.00 ÷ 12 = $625.00 per month

If the person with the $80,000.00 income has the children 40% of the time, the multiplier changes for each of the parties. Instead of “.5” it would be “.6” for the party earning $80,000.00 and “.4” for the party earning $40,000.00.

In addition, there are many, many different formulas based on how many children the parties have and their various placement arrangements. The formula changes if a party is paying support as a result of a previous marriage/paternity judgement. The formulas can get quite complicated but generally speaking the Court will follow the child support formulas in setting child support.

There are some unique circumstances where a Court might deviate from the formula. There are specific provisions for high income payors (individuals making more than $84,000.00 per year and individuals making more than $120,000.00 per year). In addition, there might be circumstances where one party has the children during all or most of their waking hours while the other person has the children overnight. That might be a circumstance where the Court would deviate from the formula and there are obviously many other unique situations.

If you have any questions, please call Attorney Scott McCarthy at (608) 352-3366.

Maintenance

Maintenance is the biggest coin flip in divorce actions. Chapter 767 of the Wisconsin Statutes lists the factors the Court must consider in setting maintenance. However, experience indicates the two greatest factors are the length of the marriage and the disparity of income.

Obviously, if each of the parties earn $50,000.00 per year, neither party will have to pay maintenance to the other (barring some very extraordinary circumstance.) Likewise, if the parties are only married for a year or two, the Court generally does not order maintenance.

I often tell people that if you are married for less than five years there is a significant chance no maintenance will be paid. If you are married in excess of twenty years, there is a significant chance the higher income spouse will pay maintenance for some significant period of time and potentially for the balance of the lives of the parties. Obviously, the closer you are to five years the less chance there will be for a maintenance award of any significance and the closer you are to a twenty-year marriage the greater the chances will be.

There are no guidelines or formulas as there are in the issue of child support. We will sit down together and discuss your situation and the factors listed in the statutes. Based on my more than twenty years of experience, I will give you my best estimate of your best case and worst case scenarios if you proceed to trial. This is always a difficult subject for parties involved in longer-term marriages.

If you have any questions, please call Attorney Scott McCarthy at (608) 352-3366.

Property Division

The statutes require that all marital property be split equally. Marital property is defined as everything owned by the parties except gifted and inherited property. As a result, you will be able to keep any gifted or inherited property unless it has been  comingled with marital property. For example, if you inherited $20,000.00, put it in your joint checking account and paid bills from the joint checking account, your spouse could make the case that the funds were comingled and as a result are no longer individual property.

The balance of your assets and liabilities will be split equally including, but not limited to, real estate, retirement plans, personal property, vehicles, etc. If the parties cannot agree on a split of their property, the Court will order appraisals be completed regarding all real estate and personal property. Usually the parties split the cost of the appraisals. The Court will then simply assign each of the parties various assets and debts until the division is 50/50.

With regard to retirement accounts, the Court has the authority to invoke a “Qualified Domestic Relations Order.” This is an order from the Court to the administrator of the retirement account that upon retirement, each of the parties is to receive a certain percentage of the payout. The Court has the authority to include or exclude from the calculation any amounts earned before the marriage.

I often tell people that if two years of a retirement account were earned prior to a twenty-year marriage, it is probably all going to be included. Likewise, if eighteen years of a retirement account were earned before a two-year marriage, those eighteen years will likely be excluded. There is no formula or guarantee regarding what the Court will do. As in all aspects of divorce law, the trial court has “equitable authority” to do whatever the Court believes is fair based on the totality of the circumstances.

If you have any questions, please call Attorney Scott McCarthy at (608) 352-3366.

Child Placement

The statutes indicate the Court should attempt to “maximize” placement with each of the parents within the confines of the best interests of the child(ren). Essentially, there is no requirement that the Court do anything other than what the Court believes is in the best interests of the children.

It is always, always, always better if the parents can somehow reach their own agreement. Generally speaking, neither of the parents are happy with the decision of a stranger (the Court). However, sometimes it is simply impossible to reach an agreement and in that case, the parties are sent to mediation. If mediation fails, a guardian ad litem (lawyer) is appointed to represent the best interests of the child(ren). Generally speaking, the parties are equally responsible for the cost associated with the guardian ad litem.

The guardian ad litem meets with each of the parents, and to the extent the children are old enough, meets with the children as well. The guardian ad litem will listen to each of your points of view and might do some investigation regarding what the guardian ad litem believes is in the best interests of the child(ren). The guardian ad litem does not represent either one of the parents. The guardian ad litem represents the best interests of the child(ren).

Many years ago, mom always had the advantage. Today, the statutes play no favorites between mom or dad. If mom and dad have both been great parents and work identical hours at a job out of the home, there is a significant chance the Court will award equal placement.

Many factors play a role in child placement including, but not limited to, the parties’ hours of employment, where each of the parties live, communication and cooperation between the parties, the roles each of the parties have been playing in the lives of the children in the past, familiarity with their school, friends and neighborhood, etc.

Going to trial over child placement is like gambling with every penny you have ever earned. There is nothing more important than your children and to the extent the parties can reach an agreement, it is far better than entering the courtroom casino. Unfortunately, sometimes you are left with no choice.

Again, Scott has more than twenty years of experience working with Rock and surrounding county judges, court commissioners and attorneys.  He knows what works and what doesn’t work. Don’t take risks when it comes to your kids.

If you have any questions, please call Attorney Scott McCarthy at (608) 352-3366.

Alternatives to Divorce

Be creative. To the extent a marriage can be saved, especially if you have children, you should try everything in your power to reconcile. Counseling is always a good idea. Counseling can be done separately, together, or both and often helps open the lines of communication and open the eyes of each of the parties.

If counseling doesn’t work, or one of the parties refuses to participate in counseling, the parties can “test drive” a separation and see if that is what they really want. Parties can separate by living in different households but can also effectively separate in the same household. Consider reaching an agreement or drawing up a contract signed by both of the parties with regard to each of their responsibilities in the home. List who is responsible to make meals on certain days, do laundry, clean the house, mow the yard, shovel the walk, etc. List the days and/or weekends each of you will be responsible for the children so the other party has some freedom to make plans.

Finally, if these options are either not viable or don’t work, the parties can file for a “legal separation.” A legal separation has the exact same legal effect as a divorce except the parties are not actually divorced. In other words, the Court enters orders regarding property division, child placement, child support, maintenance, etc. The Court’s order remains in effect until the parties either decide to dismiss the action or convert it into a divorce.

If the parties choose to dismiss the action, it’s as though the parties never filed anything and they are simply back to being married. If at any time either of the parties wishes to make the legal separation a divorce, they may do so one year after the entry of the judgment of legal separation. All of the Court’s orders regarding child placement, child support, maintenance, property division, etc., would then remain in effect.

Call your lawyer - Attorney Scott McCarthy - 608-352-3366 - 205 S. John Paul Rd. Milton, WI

Or Email your lawyer - Scott@mymiltonlawyer.com