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Debunking the Myth that Eyewitness Identification is Reliable

We’ve heard it in the news; we’ve seen it on our Facebook feeds; we’ve seen it on the latest Netflix documentary—There are innocent folks in prison for crimes they didn’t commit. The number one reason why? The admissibility of unreliable and inaccurate eyewitness testimony and misidentification. According to the Innocence Project , 358 people who had been convicted and sentenced to death since 1989 have been exonerated through DNA evidence. Of these, 71% had been convicted through eyewitness misidentification and had served an average of 14 years in prison before exoneration. Myth: Eyewitness Testimony is the Best Kind of Evidence, Stephen L. Chew, Samford University.

Historically figured as one of the most reliable pieces of evidence, eyewitness testimony is finally being recognized by psychologists and scientists alike as one of the most unreliable types of evidence. “Courts took very little notice of the problems associated with eyewitness identification until DNA evidence began to be used to exonerate criminal defendants, in some cases decades after they were convicted. In irrefutable cases of wrongful conviction, people both within and outside of the judiciary began to question the factors that led to each wrongful conviction. It became clear that the predominate cause was inaccurate eyewitness identification.” The Trouble With Eyewitness Identification in Criminal Cases, Greg Hurley, Knowledge and Information Services Analyst, National Center for State Courts.

Wisconsin’s own criminal appellate expert, professor Keith Findley, has called for reform and has outlined certain areas where change is needed in order for eyewitness accounts to be made reliable enough for use in criminal court:

• Only One Suspect per Procedure
• Proper Selection of “Fillers”
• Unbiased Witness Instructions
• Double-Blind Administration
• Prompt Recording of Confidence Statements
• Sequential Presentation
• Limit the Use of Show-ups
The Trouble With Eyewitness Identification in Criminal Cases, Greg Hurley, Knowledge and Information Services Analyst, National Center for State Courts.

To protect criminal defendants from wrongful convictions based on an eyewitness misidentification, it is important that the courts, and law enforcement, take notice of recent developments on the issue. Eyewitness testimony is favored by juries and is the most persuasive type of evidence next to DNA. Human memory is malleable, and always will be. Now that we recognize the issue, it’s time to implement and utilize some of Professor Findley’s solutions.

Were you or a loved one convicted based on eyewitness misidentification? Attorney Britteny LaFond (soon to be Britteny Koenig) specializes in Criminal Appeals, call her today at 920-739-9900 for your free consultation.

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Important Tax Information While Going Through Divorce

Determine your filing status. Your marital status at the end of the year determines how you file your tax return. If you were divorced by midnight on December 31 of the tax year, you will file separately from your former spouse. If you are the custodial parent for your children, you may qualify for the favorable head of household status. If not, then you will file as a single taxpayer, even if you were married for part of the tax year.

Consider the tax implications of support.
If you were divorced before 2019 and have not been back to court, the recipient of maintenance must claim it on her tax return, but child support isn’t reported as income. If you rolled your support together into “family support” in your agreement, that makes it fully taxable to the recipient and deductible to the payer, just like maintenance. Child support isn’t deductible.
If you are divorced in 2019 or after, maintenance and child support are not deductible to the person who pays it nor are they income to the person who receives it.

Don’t run afoul of the special rules regarding support. If maintenance payments are concentrated in the first year or two after divorce, the IRS may consider the money to be non-deductible property settlement. And if maintenance is scheduled to end within six months of a child’s 18th or 21st birthday, the IRS may consider the alimony, in reality, to be disguised child support.

Review your divorce decree to see who will claim the child tax credits. If divorce agreement did not specify who claims the children as exemptions, then the exemption for your kids goes to the custodial parent. If you have joint custody, the exemption goes to the parent who has the child the greatest number of days during the tax year.

File first if tax credits are an issue. If you are entitled to claim the children on your return, but your ex threatens to claim them instead, file early in the year. That way, since you’ve already claimed the children, the IRS will make your ex prove he or she was entitled to the exemption.

Claim the child care credit if you are eligible. If you are the custodial parent and you incur work-related child care for children under the age of 13, you may be able to claim a credit for a portion of the cost. Unlike the exemption, which can be assigned using IRS Form 8332, the child care credit is available only to the custodial parent.

Review legal fees paid during your divorce. Although most legal fees are not tax-deductible, fees you paid for advice concerning the tax consequences of your divorce can be taken as an itemized deduction on Schedule A of your tax return. Other fees, such as the cost of preparing a new title for your rental property, can be added to the tax basis of your assets.

Make estimated tax payments if withholding isn’t enough. If your withholding won’t be enough to cover your taxes for the coming year, set up quarterly estimated tax payments so that you won’t owe taxes and penalties at the end of the coming year.
Divorce may not be as inevitable as taxes, but it certainly brings complications to tax filing. Follow these ten tips, and the process should go smoothly in the future.
Tajara Dommershausen is a founding partner at Petit & Dommershausen, SC. Her practice focuses primarily on family law including divorce, paternity, custody, child support, maintenance and property division. She practices in a wide range of counties throughout Northeast Wisconsin, including Outagamie, Winnebago, Waupaca, Calumet and Fond du Lac counties. Please give her a call today at 920-739-9900.

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COVID 19 Court Hearings

               During the COVID-19 Pandemic, many court proceedings have become virtual, using apps such as Zoom or Pexip. Attending court appearances from your home, by computer or phone, is very convenient but can give a false sense of casualness. Virtual hearings are still formal proceedings and you should approach them with seriousness. You don’t want to be that defendant fighting a possession charge with a bong sitting behind you and a screen name of “SmokedUp420.”

Following these guidelines can help you get a better outcome at your next virtual hearing.

  1. Look Good
  2. Dress like you would if you were going to the courthouse.
  3. Don’t wear orange.
  4. Distraction-Free Surroundings
  5. Find a quiet place inside.
  6. Don’t join the hearing from your bathroom.
  7. Have a clean, simple background – you can check this ahead of time by using the camera on your phone or computer to see what might appear in the background.
  8. Remove anything from the background that would give a bad impression.
  9. Get someone to watch your kids, if you can – so you can be distraction free.
  10. Your Device – If using a phone, prop it up up instead of holding it – this way you won’t give anyone motion sickness.
  11. Connect to stable and secure Wi-fi, if possible. It Wi-fi is not available, find a location where you get the best cell phone service.
  12. Position camera at eye level or slightly above – it’s about the aesthetics.
  13. Look directly at camera when speaking – it creates the appearance of eye contact.
  14. Keep your device charged.
  15. Turn notifications off.
  16. Virtual Hearing Etiquette- Place yourself on mute unless directly addressed or asked to speak; Don’t walk around; Don’t do anything else on your phone; Don’t smoke; Don’t eat or drink; Make sure your name on Zoom is your real name – not a colorful or vulgar name you may use with friends.

Whether you are facing criminal charges, need help with a family matter, or have other legal needs, Petit & Dommershausen, SC is here to help. We have offices located in Appleton, Oshkosh, and Green Bay and serve all surrounding areas. Call us at 920-739-9900 today.

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Speeding Ticket License Suspension in Wisconsin

Demerit Points and Driver’s Licenses in Wisconsin

                You woke up late and you are rushing to make it to work on time. Travelling along Highway 41 and you catch a glimpse of flashing red in your rearview mirror. Your heart sinks and you look at your speedometer . . . 85mph!?!?!? Now you know that the flashing reds are for you. On top of being late for work, you now face a fine and demerit points on your license. While it might seem easy to just pay the fine, you must consider the other consequences it could have. 

                Now, imagine earlier this year, in a snow storm, you were cited for driving too fast for conditions, worth 4 demerit points. And shortly before that, you got pulled over for inattentive driving. That’s another 4 demerit points. You simply paid both of those tickets and gained 8 demerit points. Believe it or not, your new speeding ticket has now put you in danger of a license suspension.

                The Department of Transportation has the authority to suspend driving privileges of “a habitually reckless or negligent operator” based on the number of points accrued. You will be considered “a habitually reckless or negligent operator” if you accrue 12 or more demerit points. If you accumulate 12 points within any 12-month period your license will be suspended for 2 months (6 months if you have a probationary driver’s license or driving permit). If you accrue more points, the suspension could be for as long as a year.

                In this scenario, if you just pay your ticket and accept the 4 demerit points associated with the violation, your license will be suspended for 2 months! You won’t be allowed to drive – for 2 months! If you had successfully challenged either or both of your previous citations, you wouldn’t be in this predicament. And a successful challenge of this speeding ticket would prevent you from a suspension.

                Don’t overlook challenging traffic citations before you get too deep. If you are facing a traffic citation or driver’s license suspension in Appleton, Oshkosh, Green Bay, or the surrounding area, Petit & Dommershausen, SC will be here for you. Call us at 920-739-9900.

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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.

Petit & Dommershausen Office Appointment Policy – Effective June 1, 2020

Our office will resume in-person appointments starting on June 1, 2020. While appointments are available, we will still be conducting client contacts via phone and Zoom where appropriate. We have implemented the following practices in order to ensure the safety of our staff and clients:

-Our staff and attorneys will be wearing a mask during any face-to-face contact with clients. Clients also need to be wearing a mask before they enter any P&D office building.

-Call the office upon your arrival; a staff member or attorney will let you into the building

-We will be observing social distancing during all client interactions. We have arranged our conference rooms to ensure this is followed.

-Before your office appointment starts, we will ask you to answer some health screening questions.

-Please do not come to any of the office locations if you are feeing ill or have had contact with someone you know to be ill.

Know that we are taking extra measures to clean and sanitize our office for you safety. Conference rooms are receiving special attention and we have implemented practices make sure that signing documents is done in a hygienic manner.

We are still 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.

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.