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How will the Coronavirus affect my Divorce or Family Law case?

Governor Evers has declared a public health emergency due to the novel Coronavirus and associated COVID-19 pandemic for the State of Wisconsin. The United States Centers for Disease Control has issued guidance directing that businesses, organizations, and governmental units develop and implement flexible attendance policies that allow employees to stay home when sick, to remain home to care for sick household members, or to work from home when possible. The Wisconsin Supreme Court has issued orders implementing these guidelines into the Wisconsin Court system.

How does this impact the courts?

The Courts of the State of Wisconsin remain open.

However, the Wisconsin Supreme Court has suspended all in-person proceedings through Thursday, April 30, 2020. This suspension may be extended or modified by court order as circumstances may warrant. Many hearings and court conferences may proceed telephonically or via video conference. Some courts may even livestream proceedings on YouTube.

Each County, and in some cases each circuit court, has implemented policies to direct the management of cases under the order of the Wisconsin Supreme Court. Family Law and Divorce matters are subject to these rules. Pretrial hearings may be rescheduled or converted to telephonic proceedings. Some courts may permit stipulated hearings to proceed via telephone or other remote means, but other contested issues may be subject to rescheduling. Reaching a final resolution in your case may remain possible, but depends on your circumstances and potentially whether your counsel remains well versed and informed on each court’s policies.

Mediations through Family Court Services may be conducted remotely, but individual offices and individual cases may have unique qualities. Preparation for these proceedings is even more essential under these special circumstances.

Are you concerned about your case?

The Family Law Legal Team at Petit & Dommershausen, SC, is here for you. Governor Evers order provided that Legal Services are an Essential Service. We are therefore open and ready to assist you.

We can determine the status of your divorce or family law matter, implement a responsive strategy under the current circumstances, and we can guide you through your case challenges during this difficult time. A Great Outcome Will Not Just Happen under these circumstances. A knowledgeable, caring, and responsive legal team is an essential component of a Great Outcome. We have implemented significant policy changes to protect our clients, staff, and community as we work through this time.

Contact us at 920-739-9900 or visit us at pdlawoffice.com for more information.

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COVID 19 UPDATE

Petit & Dommershausen, SC, remains open for business. We are dedicated to your case and pursuit of your Great Outcome. However, in response to the COVID-19 crisis, we are talking every step possible to protect our clients, our staff and our community. The health and safety of our clients, our attorneys, our staff, and the visitors to our buildings are of paramount importance to us.

Out of an abundance of caution to protect our clients, staff, and community, Petit & Dommershausen, SC, will not be holding office appointments or drop-ins at the firm locations. You may schedule a teleconference or contact us online. We are prepared to handle as much business as possible “virtually.” Our clients will have access to the P&D legal team through email and phone conferences. New clients may contact us via telephone or via the internet. We offer bill payment online via our secure LawPay portal.

Please call 920-739-9900 for more information. In the meantime, stay safe, use good hygiene practices, exercise social distance, and contact us regarding your legal needs.

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Child Support in Wisconsin

Establishing Child Support and Child Support Guidelines

The law is clear that every parent must financially support their children, regardless of each parent’s involvement in the child’s life. Children have a legal right to receive support from both of their parents. In Wisconsin, we use a Child Support Percentage of Income Standard to determine this. This is outlined in Wisconsin Administrative Code – DCF 150.

Child support is intended to cover the basic expenses of having a child, including food, clothing, housing, utilities, transportation, personal care, and health insurance.

Who can initiate a child support action? Any of the following:

  1. The person’s spouse.
  2. The minor child.
  3. The person with legal custody of the child.
  4. A non-legally responsible relative.

How much? The court must then determine the amount, if any, that the person should reasonably contribute to the support and maintenance of the spouse or child and how the sum shall be paid. The amount shall be expressed as a fixed sum unless the parties have stipulated to expressing the amount as a percentage of the payer’s income.

The standard percentage of income guideline in Wisconsin for child support is:

  • 17% of income for 1 child
  • 25% of income for 2 children
  • 29% of income for 3 children
  • 31% of income for 4 children
  • 34% of income for 5 or more children

However, the court can still deviate from the standard if it would be unfair to either the child or one of the parents. Special child support guidelines exist for parents who:

  • Share placement of their children (child with each parent at least 25% of the time)
  • Split the placement of their children (Ex.: one parent has one child; the other parent has another)
  • Support more than one family
  • Have a Low income
  • Have a High income

No matter which guideline is used, the income of the parents must be determined. Wisconsin considers the following sources to be income:

  • Wages, salaries, earnings, tips, commissions, and bonuses from work
  • Interest and capital gains from investments or property
  • Worker’s compensation benefits or personal injury awards intended to replace income
  • Unemployment insurance
  • Social Security Disability Income (SSDI), but not Supplemental Security Income (SSI) or other public assistance
  • Military allowances and veterans’ benefits
  • Voluntary retirement contributions, cafeteria plans, and undistributed income of a corporation

Child support can also be based on a parent’s ability to earn based on past earnings, current health, education, work experience, history as primary care giver, and availability of jobs locally. Income can also look to intangible or non-cash sources, such as life insurance, cash, deposit accounts, stocks, bonds, and business interests.

How long? Parents have an obligation to pay child support until the child turns 18 or 19 if still enrolled in high school or a GED course. Additionally, you still owe past due child support after your child turns 18. Past due child support cases can be opened up to 20 years after the youngest child on the order turns 18.

What if I don’t pay? When a parent doesn’t pay child support, the debt becomes past-due. The interest charged on past-due child support in Wisconsin is .5% per month or 6% per year. Child support agencies can enforce a child support order by:

  • Intercepting the debtor’s federal or state income tax refunds or tribal per capita payments
  • Denying the parent who owes support a U.S. passport, college grants, or small business loans
  • Placing a lien on the debtor’s property that must be paid off before the property can be sold
  • Suspending or restricting a professional, recreational, or driver’s license

If you need help with child support, please contact Petit & Dommershausen today and speak to one of our experienced family law attorneys. With three convenient locations in Oshkosh, the Appleton area, and Green Bay, we serve all of northeast Wisconsin including Outagamie, Winnebago, Waupaca, Calumet, Brown, Oconto, Marinette, and Fond du Lac counties.

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Adverse Possession. Can you claim someone else’s property in Wisconsin?

Adverse possession is a concept where a person can actually gain legal title over someone else’s land. Wisconsin courts have continued to enforce this notion. The idea behind adverse possession if that if you spend enough time caring for someone else’s real property, that they don’t care about or perhaps have even forgotten, and the owner makes no objection to you caring for the property, then a Wisconsin court may say that you have obtained legal title to that property. But how does this happen?

Think: OCEAN

Adverse possession must be:

Open

Continuous

Exclusive

Adverse

Notorious

Let’s visit what this means.

Open and Notorious: The trespasser must be using the property openly, as if they were the owner, and not hiding or using it secretly.

Continuous: The use or possession must be continuous for a statutory period. In Wisconsin, this is generally twenty (20) years.

Exclusive: One must be using the property exclusively and in the possession of the trespasser alone.

Adverse: The use of the property must be against the right of the true owner. You can’t adversely take something they gave you permission to use!

However, the time period is a little different if the trespasser has “color of title,” meaning they by some means believed they actually were the rightful owner. This, coupled with the trespasser paying all real estate taxes for seven (7) years, can give the trespasser title.

But, what if you are the landowner and want to stop someone from adversely taking your land? Your first step is to tell the trespasser that they are intruding on your land, to take everything off your land they may have brought on, and to refraining from coming onto your property. This puts them on notice. If this continues, come talk to us at Petit & Dommershausen to bring an action to quiet title. This is an action where a court formally declares it is you, and not the trespasser, who is the true owner of the property.

Finally, it is important to know that this does not apply to the government. Sorry, you cannot hide out in a state park for twenty (20) years and claim it as your own.

If you need help or have any questions about your property, please contact Petit & Dommershausen today and speak to one of our experienced attorneys. With three convenient locations in Oshkosh, the Appleton area, and Green Bay, we serve all of northeast Wisconsin including Outagamie, Winnebago, Waupaca, Calumet, Brown, Oconto, Marinette, and Fond du Lac counties.

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Import Wisconsin Divorce Law Changes: Impact of the 2017 Tax Cuts and Jobs Act on Family Law

The Tax Cuts and Jobs Act, passed in 2017, imposed extensive changes throughout the tax code. A few of those changes directly impact Wisconsin family law litigants and are important to keep in mind, particularly when going through a divorce.

The first, and arguably most drastic change which impacts family law, is the elimination of the deduction for maintenance payments. Maintenance, also commonly referred to as “alimony,” is a monetary payment from one former spouse to the other, for either a limited or indefinite period of time. Prior to the Tax Cuts and Jobs Act, a former spouse who paid maintenance to the other spouse was allowed to claim a tax deduction from his or her income. Similarly, the recipient spouse of the maintenance was required to report all maintenance payments as taxable income. Under the new law, for any divorce or separation decree executed after December 31, 2018, the payor spouse is not allowed to claim a deduction, and the recipient spouse is no longer required to claim the maintenance as taxable income. This is an important change because prior to the Tax Cuts and Jobs Act, many divorce litigants were incentivized to pay maintenance based on the knowledge that they would receive a tax deduction. This incentive no longer exists under the new law, which may make maintenance disputes more prevalent.

The second important change which impacts family law is the elimination of personal exemptions. Prior to the passage of the Tax Cuts and Jobs Act, taxpayers were allowed to claim a $4,050 deduction per qualifying taxpayer, spouse, or dependent. Under the new law, personal exemptions are suspended for the tax years of 2018-2025. Personal exemptions provided tax savings for all filers, but particularly for filers with dependent children. This is an important change for the divorce process because parents going through a divorce typically negotiated as to which parent would be allowed to claim the child(ren) for each tax year.

Although personal exemptions are eliminated under the Tax Cuts and Jobs Act, the child tax credit was doubled from $1,000 to $2,000 for the tax years of 2018-2025. The child tax credit is available for each qualifying child under the age of 17. Although this increase can impact divorcing parents, it does not hold the same negotiation importance during the divorce process as the personal exemption did because the child tax credit is generally only available to the parent who the child lives with for at least six months out of the year.

It is important for family law litigants to keep tax considerations in mind when going through a divorce. If you need help with a divorce, please contact Petit & Dommershausen today and speak to one of our experienced family law attorneys. With three convenient locations in Oshkosh, the Appleton area, and Green Bay, we serve all of northeast Wisconsin including Outagamie, Winnebago, Waupaca, Calumet, Brown, Oconto, Marinette, and Fond du Lac counties.

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Grandparents Rights (Updated 10/09/2019)

Grandparent Rights in Wisconsin

Many states allow at least some form of grandparent visitation, after a determination as to whether such visitation is in the best interests of the child.  However, under a new WI Supreme Court case this process has gotten much more difficult. The first thing the grandparents must prove is that the parents aren’t fit or are unfit to make this decision.   At Petit & Dommershausen, we guide you thru the process to get grandparents a great outcome.

Grandparent Visitation

Parents have fundamental rights to raise their children as they see fit, as long as the children’s basic emotional and physical needs are being met.

A grandparent must file a petition requesting visitation with the court. A judge will schedule a hearing to review the circumstances of the case and allow the child’s parents to respond.

All of the following factors must be present for a judge to grant grandparent visitation:

  • The parent is unfit (this is a difficult standard)
  • the child’s parents are not married, or were married but have subsequently divorced, separated or one parent is deceased
  • the child isn’t adopted (to non-family members)
  • the grandparent has maintained a relationship with the child, or has attempted to maintain a relationship but was prevented by the parent
  • the grandparent is unlikely to act counter to the parent’s decisions regarding the child’s emotional physical, educational or spiritual welfare, and
  • that grandparent visitation is in the child’s best interests.  Most of the time a Guardian ad Litem will be appointed to advise the Judge as to what they think is in the best interests of the child.

Wisconsin courts require all the above elements to be met for grandparent visitation to occur.

The Court will then determine a reasonable amount of visitation.  What constitutes “reasonable visitation” will depend on the unique circumstances of your case.

When Can Grandparents Get Guardianship of a Grandchild?

In some cases, a grandparent may be able to obtain guardianship over a child’s natural parent when it’s necessary to protect the child’s safety or well-being and the parents are unfit to meet the child’s needs.

A court may only award guardianship to a child’s grandparent if the following are true:

  • granting guardianship to the grandparent would serve the child’s best interests, and
  • the parent is unfit or unable to adequately care for the child, or there are other compelling reasons for awarding guardianship to a grandparent.

The experienced and compassionate attorneys at Petit & Dommershausen can help you thru this difficult process. Call Attorney Tajara Dommershausen today to learn more about your rights and get the help you need.

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Pardons in Wisconsin

Wisconsin’s Governor has reinstated pardon review. Petit & Dommershausen, SC, offers a broad overview of the pardon process based on announced rules and governing law. Questions? Contact us today.

PARDON ELIGIBILITY

An individual is eligible for a pardon only if all of the following conditions apply to them:

  1. Must be for a felony conviction.
    1. However, if a secondary charge is a misdemeanor, it may be reviewed as well.
  2. A defendant must have completed the entire sentence at least five (5) years ago, meaning:
    1. Completed all periods of confinements; and
    2. All supervised release (i.e. probation, parole, and/or extended supervision).
  3. Has not been convicted of any new criminal offenses since completing the sentence and has no pending charges.
    1. This section includes convictions in jurisdictions outside of Wisconsin.
  4. Not currently required to register as a sex offense under Wis. Stat. § 301.45.

Must meet all of eligibility criteria or application will be denied.

Standard an Applicant Must Meet

The applicant must have a significant and documented need, such as:

  1. Employment related;
  2. Educational; and/or
  3. Job training.

Typically, it is inappropriate to apply for a pardon if (1) it is to clear one’s conscience or (2) reinstating one’s firearm rights.

  1. However, a Governor may review such cases if conviction is old and minor.
    1. Minor will depend on Governor’s interpretation of the crime.

Below is a non-exhaustive list of relevant factors when determining whether an application has a significant or documented need:

  1. Age
  2. Seriousness of conviction
  3. Extent of need
  4. Entire criminal record
  5. Applicant’s personal development since crime was committed; and
  6. Community or civic contributions since release.

Interested in learning more about applying for a pardon? Petit & Dommershausen, SC, is a Wisconsin law firm that can help. We regularly practice in Marinette County, Octonto County, Brown County, Door County, Kewaunee County, Outagamie County, Winnebago County, Waupaca County, Waushara County, Calumet County, Fond du Lac County, and Green Lake County. We offer convenient office locations in Appleton, Oshkosh, and Green Bay. We serve all of north east Wisconsin.

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Wisconsin Law: At what age can a child decide which parent they want to live with?

So, you’re either going through a divorce or you already have an existing placement order. Your child is at an age where they have started to express an opinion as to which parent they want to live with or spend the most time with. At what age does the child’s opinion matter?

Under Wisconsin statutes, physical placement orders will be structured to either award shared placement to both parents or primary placement to one parent. Shared placement occurs when both parents have at least 25% of overnights per year. Primary placement occurs when one parent has more than 75% of overnights in a year. Wisconsin law provides that a child is entitled to meaningful periods of physical placement with each parent, unless such an order would endanger the child.

In a contested placement dispute, Courts will typically appoint a Guardian ad Litem for the minor child. A Guardian ad Litem is an attorney who advocates for the best interests of the child and makes a recommendation to the court upon conducting an investigation. Under Wisconsin law, the Guardian ad Litem is required to consider the wishes of a minor child, but is not bound by those wishes when making their recommendation to the Court.

Similarly, the Court is required to consider the child’s wishes when determining periods of physical placement. However, the child’s opinion is only one of the many factors that the Court must consider. Among the other factors that the Court is required to consider are: the parents’ wishes, the age of the child, the amount and quality of time the child has spent with each parent in the past, the mental and physical health of the parents and child, etc.

Therefore, there is no specific age in Wisconsin where a child is able to decide which parent they want to live with. A child’s wishes must be considered by both the Guardian ad Litem and the Court once the child reaches an age where they are able to articulate those wishes. However, both the Guardian ad Litem and the Court are also required to consider all factors relevant to the best interests of the child, even if the result is a placement order that is contrary to the child’s wishes.

If you need help with a divorce or custody/placement dispute, please contact Petit & Dommershausen today and speak to one of our experienced family law attorneys. With three convenient locations in Oshkosh, the Appleton area, and Green Bay, we serve all of northeast Wisconsin including Outagamie, Winnebago, Waupaca, Calumet, Brown, Oconto, Marinette, and Fond du Lac counties.

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Can they take your blood if you passed out? “Mitchell v. Wisconsin: Unconscious Drivers and the Implied Consent Law”

                It is common knowledge that those who drive after consuming a sufficient amount of alcohol may be charged with operating a motor vehicle while intoxicated (OWI). While investigating an OWI case, it is common for law enforcement officials to ask the driver of the vehicle to submit to a breath and blood test. This is used to determine the driver’s blood alcohol concentration (BAC) in order to prove whether the person was under the influence while driving.

Wisconsin is an “implied consent” state, which means that by operating a motor vehicle on a highway within the state, the driver has impliedly consented to a test of his or her blood or breath for the purpose of determining whether there is any detectable amount of alcohol in his or her blood. A driver may refuse to submit to those tests, but he or she may still be prosecuted for a drunk driving related offense and may face additional criminal consequences as well.

The implied consent law has been challenged in various courts, both state and federal, several times in the past. Most recently, one narrow aspect of the law was challenged before the United States Supreme Court in Mitchell v. Wisconsin. In this case, the Supreme Court was asked to decide whether law enforcement has the authority under the implied consent law to perform a blood test on a suspected drunk driver who is unconscious and cannot submit to a preliminary breath test without first obtaining a search warrant.

Justice Alito, writing the main opinion for the United States Supreme Court, concluded that the exigent circumstances doctrine almost always permitted law enforcement to perform a blood draw on an unconscious subject without a warrant. The exigent circumstances doctrine allows law enforcement to conduct a search (or here, a blood test) without a warrant when potential key evidence in the investigation could be destroyed before the warrant would be obtained.

So how will this ruling be applied going forward? Wisconsin courts will most likely continue to adopt the policy that in almost every case, a warrantless blood draw can permissibly be performed by law enforcement. However, it is possible that suspected drunk drivers may be able to challenge the results of those tests if they can prove that exigent circumstances did not exist and a warrant could have been obtained prior to the performance of the tests.

If you or someone you know has been charged with an OWI-related offense, call Petit & Dommershausen for legal assistance today at (920) 739-9900.

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School District Choice: Who makes it?

So, you and your significant other separated and have a joint custody/joint placement order. Sharing placement has been relatively calm but now your child needs to start school.  The two of  you live in different school districts so who gets to choose the school district?

Under Wisconsin statutes, joint legal custody means that the parents share major decision making. Neither parent’s rights are superior. Major decisions include consent to marry, consent to enter military service, consent to obtain a driver’s license, authorize non-emergency healthcare, choice of school, and choice of religion. The presumption in Wisconsin is that joint legal custody is in the best interest of your child.

The sooner you start this discussion with your former significant other, the better. August is not the time to start discussing this. Most counties will require the parents to go to mediation first. Mediation is with a neutral third party who tries to help you work through the issues that you are having. This is the least expensive alternative. If at mediation you cannot reach an agreement, a motion will need to be filed with the court.

The court does not decide which school the child will go to; however, the court does decide which parent gets the right to make that choice. After a motion is filed, it will be set for an initial hearing. If you have already been to mediation on the issue, the court will appoint a Guardian ad Litem. A Guardian ad Litem is an attorney who does an investigation and looks into the best interest of your child and makes a recommendation to the court. If, after a Guardian ad Litem recommendation, the parties can reach an agreement or the court makes an order. If the parties are in disagreement with that order, the matter can be set for a trial. Mediation can often take a few months as can the Guardian ad Litem process. Therefore, the sooner this important decision is discussed and a motion filed, the better off you and your child will be.

If you need help with this process, please contact Petit & Dommershausen today and speak to one of our experienced family law attorneys. With three convenient locations in Oshkosh, the Appleton area, and Green Bay, we serve all of northeast Wisconsin including Outagamie, Winnebago, Waupaca, Calumet, Brown, Oconto, Marinette, and Fond do Lac counties.