When Your Relationship Isn't Working, We Work For You.

Families, whether biological or chosen, provide a sense of identity and belonging that is difficult to replicate elsewhere. When family relationships struggle, it makes sense that tensions often run high. This can make matters difficult to resolve without the direction of a neutral third party. Family law attorneys assist with a wide variety of such matters, providing guidance through legal processes concerning divorce, paternity, child custody, and more. They listen to the issues that clients’ relationships are facing, and offer advice on legal recourse leading to amicable solutions for all parties involved.

Family Matters We Assist With:

  • Divorce & Divorce Mediation
  • Child Support, Custody, and Visitation
  • Adoption
  • Paternity
  • Spousal Maintenance
  • Post-Judgment Matters
  • Prenuptial Agreements
  • Restraining Orders
  • Legal Separation and Annulment
  • Marital Real Estate and Property Division

Divorce And Property Division

No matter the duration of a marriage, divorce and its associated property division understandably cause emotions to flare. Our attorneys specialize in proactive divorce litigation, making sure that you leave your marriage with everything that you’re entitled to. We negotiate divorce settlements until you’re satisfied, and keep in mind that 50/50 asset division isn’t always equitable.

Each divorce case comes with its own unique challenges, and is often subject to rapid changes based on the parties’ financial and family circumstances, asset holdings, and degree of cooperation. We work with you throughout divorce actions, anticipating roadblocks where possible and taking appropriate actions to circumvent them to keep legal processes moving. Our can-do approach to client representation means that you keep what’s yours instead of conceding. Simply put, we advocate until they agree.

Does The Length Of A Marriage Affect The Divorce Process?

As with many legal matters, it depends. When it comes to property division, Wisconsin is a community property state. This means that, regardless of the length of the marriage, any property acquired during the marriage can be subject to 50/50 division between the parties during divorce. While the length of the marriage doesn’t affect this principle, it could affect what specific assets are divided. Generally, assets acquired before the marriage are considered individual property, and thus are not subject to 50/50 division.

Additionally, even in long-term marriages, if one of the parties can prove demonstrate that they essentially unilaterally contributed to a major asset that was not marital property, such as by making mortgage payments on a property that was deeded to the other party, the Court may award compensation to offset this financial inequity.

In another scenario, if a marriage last significantly shorter than average, a Court could decide to allow each party to keep what they have acquired, even during the marriage, provided that the marital property acquired was minimal.

It is worth noting that debts as well as assets can be considered marital property in Wisconsin. Debt accrued during the marriage, even if amassed largely by one spouse, is treated as joint debt. This means that it is also factored into the 50/50 division, creditors can pursue either party for money owed.

How Do Community Property States Differ From Equitable Distribution States?

Some states, including Wisconsin, Illinois, Minnesota, and 20 other states, are community property states, meaning that marital property must be split 50/50 between the parties in the event of divorce. Legally, community property includes all assets and debts obtained by either or both parties during the marriage and while living in a community property state. Community property, also known as marital property, can be tangible, such as with real estate, or intangible, such as funds held in retirement or bank accounts. Community property laws aim to simplify divorces and legal separations and reduce time needed to settle disputes between the parties.

Other states, such as New York, Ohio, and Michigan, use equitable distribution principles to govern property division during divorce. Equitable distribution takes into account each individual’s financial circumstances, future earning potential, spending/saving habits, and other specifics when deciding how marital assets and debts should be divided. These states acknowledge that parties in a divorce aren’t identical, and thus their circumstances shouldn’t be held equal for the purposes of divorce. Instead, equitable distribution states prioritize fairness over a 50/50 split of net assets between the parties. For example, if one party in a divorce is younger and more educated than the other, they would be held responsible for a larger share of the marital debt because they most probably have higher future earning potential and therefore greater ability to satisfy the obligation.

My Estranged Spouse And I Are Not Amicable. Will We Have To Talk To Each Other?

While parties must communicate in order to reach a settlement that is acceptable to both parties in order to finalize a divorce in nearly all cases, these discussions often go through the couple’s respective attorneys. Thus, it is vital for people seeking divorce to retain reputable counsel early in the process. Each attorney in the action advocates only for their client’s best interests from filing to final judgment, without being affected by acrimony between the parties.

If the parties are unable to reach a compromise on the division of marital property, they will often go through mediation. During this process, the parties, their respective attorneys, and a neutral third party such as a counselor to discuss the issues to be resolved before the divorce can be finalized. The mediator seeks to guide the parties towards a solution to these issues, and encourages the parties to communicate effectively, if only to finalize the divorce faster. If mediation fails, the matter goes to trial, and a judge hears the facts and decides how each issue should be settled. Trial is expensive; each party must pay additional attorney’s fees for their lawyer’s preparation for and appearance in Court. Additionally, each person will undoubtedly be displeased with rulings in favor of their spouse, generating more animosity between the parties and creating the potential for additional legal fees if any aspects of the divorce should be pursued in post-judgment.

Discussing possible compromises with an attorney at the outset of the divorce action and keeping communication through counsel as much as possible facilitates quicker and more cost-effective conversations between the parties.

My Spouse And I Are Divorcing, But Never Signed A Prenuptial Agreement. Will All Our Assets Get Divided 50/50?

While division of assets can vary from case to case, Wisconsin’s designation as a marital property state means that more often than not, property acquired over the course of the marriage is subject to 50/50 division during settlement absent a prenuptial agreement.

However, going into the divorce process with an attorney increases the likelihood that, even if the parties did not draft a prenuptial agreement, assets and debts accrued during the marriage can be divided according to terms that are acceptable to both parties.

If My Spouse And I Divorce, How Do We Decide Who Keeps The Dog?

Jointly-owned pets are considered property in Wisconsin, meaning that custody is usually awarded to one party or the other. Since pets are usually viewed as members of the family rather than property, taking ownership away from one person in favor of the other is a common point of contrition. Although Wisconsin is not yet among the states that typically allow custody agreements for pets, in many situations parties can work together or compromise via counsel to determine days and times for the non-custodial party to visit with the pet at a pre-determined location.

Legal Separation

While legal separation involves decisions on the same issues as are discussed during a divorce, it does not result in the end of a marriage. Couples can restore their marriage at any time if they reconcile, and neither spouse is permitted to marry someone else while the parties are legally separated. Additionally, at the outset of the process, each party is required to explain to the Court why they are seeking a legal separation rather than a divorce.

Legal separation is common in cases where parties disagree on whether their marriage can be “saved” or are going through measures such as counselling to work on their relationship but those measures are likely to be unsuccessful.

Is Legal Separation The Same As A Medicaid Divorce?

Although legal separation was previously used as an alternative to divorce that allowed a couple living separately to continue to receive the legal benefits of marriage, such as through spousal insurance or health care benefits while still being able to separate their assets to meet asset holding limits for eligibility purposes, many insurance providers, including Medicaid, have become aware of this tactic. Many providers no longer make distinctions between marriage and legal separation when determining coverage eligibility. Thus, if one member of a legally-separated couple needs to meet income requirements to qualify for Medicaid, their spouse’s income would still be counted for Medicaid eligibility purposes unless another means, such as a trust, is used to protect “excess” income from being counted for Medicaid purposes.

Because of the increased use of trusts and other means to protect a couple’s assets during qualification, Medicaid divorces are becoming less common. Establishing methods to convert countable assets into non-countable ones for Medicaid eligibility, discussed in depth on our Elder Law and Medicaid Planning page, has become vital in preparing for the eventuality of needing long-term care through Medicaid regardless of marital status.

What Are The Differences Between Annulment, Legal Separation, and Divorce?

Annulment, also known as nullification, requires concrete evidence that a marriage was never legal and therefore never existed. In Wisconsin, a marriage can be declared null and void if one or more of the following conditions apply:

  • One or both parties was incapable of consenting to the marriage because they were under the age of 18, or, if one or both parties was 16 or 17, they cannot demonstrate that they had parental consent to get married at the time that the marriage occurred.
  • One or both parties were incapable of consenting to the marriage at the time that it occurred due to mental defect caused by drug or alcohol use, mental illness, or incapacity.
  • One or both parties was coerced into the marriage through fraud or false pretenses.
  • One or both parties was already married to someone else when they sought to be married again. This second marriage would be considered invalid.
  • One or both parties was divorced from a previous spouse six months or less prior to the date of their remarriage.
  • One or both parties is impotent and did not inform their spouse of this prior to the marriage
  • If one or more of the above criteria is pertinent, a person may have grounds to petition the Court for a hearing on the annulment of the marriage. If a hearing is granted, parties will have the opportunity to prove, via credible witnesses and evidence, that the marriage should be annulled. If the Court grants the annulment, an order is issued affirming that the marriage is illegal and is therefore null and void. If a marriage is annulled, it is as though it never existed.

    **Note: Religious annulment is not legally valid in the state of Wisconsin. Even if parties successfully have their marriage nullified by a religious authority, they must still petition the Court for an annulment that will be recognized under state law.

    Legal separation can be thought of as a “financial divorce”. During a legal separation, parties divide their assets and debts as they would during the divorce process, enabling them to make financial decisions independently of one another, but are also still considered legally married. Parties who are legally separated also do not accrue marital debts or assets, and have the option to file individual tax returns. There are a number of reasons a couple might choose a legal separation over a divorce, including:

  • Receiving spousal health care or insurance benefits (some insurance providers make a distinction between married and legally separated couples when determining coverage, so this is not always an option).
  • Possibilities of reconciliation or undergoing counseling or other measures to repair the relationship.
  • Sponsoring (or being sponsored by) their spouse in an immigration matter
  • Filing joint tax returns
  • Religious restrictions on divorce
  • While legal separation is final, it can also be reversed unlike a divorce. If one or both parties decides that they would like to reconcile, they can petition the Court, after having been separated for at least a year, to reverse the legal separation. Alternatively, if one or both parties decide that they would like to be divorced, they may petition the Court, provided that they have been legally separated for at least a year, to convert the legal separation to a divorce.

    Divorce brings about the legal end of a marriage. In Wisconsin, parties may file for divorce if they are willing to testify under oath that the marriage is irretrievably broken, meaning that there is no possibility of reconciliation. If only one party will testify to this, the Court may find that there are grounds for divorce if the parties have voluntarily lived separately for at least one year. Wisconsin is a no fault state; neither spouse in a divorce action is required to prove that the other did anything wrong to justify the divorce.

    Parties are eligible to begin a divorce action in Wisconsin if one spouse has lived in the state for at least six months and in the county that the divorce will be filed for at least 30 days prior to the commencement of the action. Once a divorce petition has been filed by at least one spouse, the parties must come to agreements regarding division of marital assets and debts, spousal support payment obligations, and, if minor children are involved, custody and placement arrangements. Often, the Court schedules temporary hearings on each of these aspects and to review the parties’ drafted agreements or order mediation when agreements can’t be reached. Once settlement agreements have been reached on all outstanding issues and at least 120 days has passed since the divorce petition was filed, a judgment of divorce can be drafted and brought to trial and the divorce can be finalized.

    Although parties can go through a divorce without respective attorneys if they wish, doing so tends to draw out the process. Even if parties are amicable at the beginning of their divorce, dividing up marital property and determining monetary obligations that the parties have to each other often causes tension to rise and communication to break down. When this occurs, counsel is vital.

    Spousal Support? Alimony? Maintenance? Are They Different?

    Spousal support and alimony refer to the same thing, money to be paid from one party to another during or following a divorce, but the terms have different connotations for some. Spousal support invokes the understanding that one spouse would be at a significant disadvantage without the continued financial support of the other. The term alimony, on the other hand, is more commonly used in at-fault states, and is sometimes viewed as a “punishment” for bringing about the end of one’s marriage. However, because payments from one spouse to the other are Court-ordered following careful consideration of the parties’ finances, the term alimony is growing outdated. In Wisconsin, this payment is known as maintenance, again reinforcing the idea that it exists to prevent one party in a divorce from becoming destitute following the loss of the other party’s financial contribution.

    Who Is Entitled to Spousal Support?

    Spousal support payments begin following a Court order. Support determination depends on several factors, including:

  • Length of the marriage
  • Respective earning potential, age, and level of education
  • Contributions one spouse made during the marriage to encourage the other’s education or financial stability
  • Respective asset holding and debt obligations
  • Likelihood of each party being able to sustain the quality of life that they had during the marriage absent spousal contribution
  • Individual tax responsibilities
  • Financial agreements made prior to or during the marriage
  • Parties’ mental and physical health
  • Division of marital property in the divorce
  • Ultimately, the amount and duration of any maintenance obligation is subject to any factors that the Court deems relevant. Likewise, petitions for spousal support are approved only at a judge’s discretion. Wisconsin is a no-fault state, which in this context means that parties’ respective responsibility for the breakdown of the marriage cannot influence maintenance determination.

    Child Support, Custody, and Visitation

    Where children are involved, stability is vital. Familial transitions are stressful for everyone involved, but developing a consistent placement schedule ensures that kids have a stable home environment even when their parents’ relationships evolve. Our attorneys have extensive experience evaluating child placement schedules, mediating parental relationships, and making modification suggestions to ensure that the current placement is in the best interests of children and their parents. When needed, we connect families with therapy and reunification resources to repair broken relationships, address behavioral concerns, and develop strategies for effective communication.

    My Child's Other Parent Hasn't Been Involved In Caring For Them. Does This Affect Our Respective Placements?

    Wisconsin law assumes that it is in a child’s best interests to have joint placement with both parents. However, custody and placement of minors are determined by a Court order in situations where parents cannot agree on a placement schedule, or when equal placement isn’t feasible. As the child’s health, happiness, and safety are of utmost importance, the Court must consider the child’s wishes, the frequency of meaningful interactions that the child has had with each parent, and the relationship between the child and other members of each respective household when determining placement. Thus, if one parent can provide the Court with sufficient evidence that they are more interested and involved in their child’s care than the child’s other parent, the Court is more likely to find that the more present parent should be awarded primary placement.

    My Child's Other Parent Lives In A Different State. Are They Entitled To Periods of Placement?

    In Wisconsin, parties with shared placement are entitled to enforce their periods of placement even if they live in different states. Parents are often able to work out agreements in such scenarios regarding travel costs and meeting locations with the assistance of their respective attorneys and the Court. There are restrictions on distance if the parents have joint placement, however. If one party wants to relocate more than 100 miles from where they lived when the original placement order was entered, they are required to let the other party know via certified mail. The party receiving the notice must provide their approval or objection to the move. If there is an objection, the parties undergo Court-ordered mediation, where they attempt to reach an agreement regarding the child’s placement schedule. If mediation is unsuccessful, the matter is set for hearing and a guardian ad litem is appointed to represent the minor’s best interests.

    Similarly, one parent cannot choose to move the child out of state without consulting the parent with whom custody is shared. If either parent wants to move the child more than 100 miles away from the other parent’s residence, they must do so by filing a motion with the Court. The motion must provide a clear plan for the continuation of the child’s periods of placement with the other parent, and should also demonstrate to the Court that the relationship between the child and the other parent will have opportunity to grow despite the move.

    How Do I Seek Child Support From My Child's Other Parent?

    In Wisconsin, child support is determined using a statutory formula, so the amount owed from one parent to the other is usually determined through consideration of each parent’s respective income, number of overnight placements with the child, and presence of other minors in the household. Either parent can submit a request for child support through the Court or via the state child support agency. Applications for support require each parent to submit financial and household information, as well as supporting documentation like prior child support orders or paternity acknowledgment forms, if applicable. After the Court reviews each parent’s situation, it will issue an order for child support. Typically, child support payments are collected through wage garnishment, but payments can also be made directly to the Wisconsin Support Collection Trust Fund, the entity responsible for distributing support payments.

    I Don't Want My Child Around Their Other Parent's New Partner. What Can I Do?

    By Wisconsin statutes, the Court cannot choose to place a child primarily with one parent over the other without reason. Similarly, one parent cannot elect to withhold the child simply because they “don’t like” the other parent’s new partner. However, if they can demonstrate to the Court that the new partner’s presence has a negative effect on the child’s mental or physical health, happiness, or safety, they have the option to request that the Court order that the significant other may not be present during periods of placement.

    My Child's Grandparents Want Visitation Rights. Is That Allowed?

    Grandparents are typically only awarded visitation rights in Wisconsin if certain criteria apply. Under the Grandparents Visitation Statute, grandparents, step-parents, or anyone who has an ongoing parent-child relationship with a minor who is not their biological child may petition the Court for visitation rights. The matter will then be scheduled for a hearing, and the child’s biological parents must be provided with a Notice of Hearing so that they may attend and participate if they so choose. During the hearing, the grandparent or other individual will be given the opportunity to testify, call witnesses, and introduce supporting documentation. The Court will then decide, based on this hearing, if scheduled visitation is in the child’s best interests.

    Paternity Acknowledgment

    Paternity Acknowledgment is the process of legally naming a father on a child’s birth certificate when the parents are unmarried. It is often beneficial regardless of the father’s anticipated involvement in the child’s life. Paternity acknowledgment does not require the parents to live together or commit to a relationship It facilitates a healthy parent-child relationship and fosters a sense of family for both the father and child. Paternity acknowledgment could encourage the child’s physical health as well. It affords the child rights to their father’s health insurance coverage and allows medical professionals access to both parents’ health records so that the child receives effective care.

    Paternity acknowledgment also protects parties’ legal rights. After paternity is acknowledged, the father can petition the Court for custody and placement of the child, and is eligible to receive child support accordingly. In turn, the child’s rights are protected until they reach the age of majority. They are entitled to the father’s financial and emotional support until age 18, and are eligible for shares of inheritance, pension, Social Security, or other benefits upon the father’s death.

    Means To Establish Paternity

    Voluntary Acknowledgment of Paternity

    This is the most common way to establish paternity. A Voluntary Acknowledgment of Paternity form is typically completed shortly after the birth of the child, but can be filed with the Department of Vital Records any time before the child turns 19. Signing a Voluntary Paternity Acknowledgment means that the father consents to being listed on the child’s birth certificate and can legally make decisions on the child’s behalf. It also gives the father the ability to petition the Court for legal custody or for periods of placement if the parents’ relationship ends.

    Voluntary Acknowledgments of Paternity can be rescinded within 60 days of filing if either parent changes their mind or has doubts about who should be named the father on a child’s birth certificate. However, no one should agree to sign the form if there is a question about the father’s identity. After the 60-day period, genetic testing can be done to ascertain the paternity and amend the Voluntary Paternity Acknowledgment form if necessary.

    Acknowledgment Of A Marital Child

    Another common way to establish paternity is by filing an Acknowledgment of a Marital Child form with the state Department of Vital Records. Similar to a Voluntary Paternity Acknowledgment, an Acknowledgment of Marital Child is used when parties were in a relationship when a child was conceived but did not get married until after the child’s birth. Both parents must sign the form, which then allows the father’s name to appear on the birth certificate.

    Legal Action

    In cases where paternity is uncertain or contested, a mother, alleged father, grandparent, legal guardian, physical custodian, or appointed guardian ad litem can petition the Court for a hearing on the matter until the child reaches age 19. After they reach the age of majority, the child can petition the Court for a determination on their own paternity. If a hearing is scheduled, the alleged father should attend, and may retain an attorney to represent him. Often, a guardian ad litem is appointed to represent the best interests of the child. At the hearing, the Court will hear the facts and applicable testimony from the parties or their counsel, and will then make a determination as to the child’s paternity. If a judgment cannot be reached through testimony alone, the Court will order genetic testing to settle the matter.

    Genetic Testing

    When paternity is questioned or contested and parties want to definitively identify the father, the Court may order genetic testing to determine a father’s identity, or the state child support agency can file a subpoena with the Court to initiate genetic testing on behalf of someone seeking child support. Parties can also have paternity testing done through a private lab of their choosing, without going through the Court or child support agency, but will likely have to demonstrate that the private test met Court accuracy standards. Genetic paternity testing is done via a blood test or cheek swab done on the mother, alleged father, and child, respectively. During each test, DNA is extracted from cells obtained from each party and used to determine the likelihood of a relationship. In order to definitively establish paternity, the DNA test must show with 99% or higher probability that there is a parent-child relationship between the father and child.

    Who Can File A Petition To Establish Paternity?

    Although only a child’s parents can acknowledge paternity, anyone who is considered an interested party on behalf of the child can petition the Court for paternity establishment. Interested parties include:

  • The child’s biological mother
  • The state child support agency
  • An attorney appointed as guardian ad litem to represent the child’s best interests
  • The alleged father
  • Someone having custody of the child
  • The child’s grandparents, provided that they have custody of the mother or alleged father
  • The child themselves, if they are 18 or older
  • Does Paternity Have to Be Established If A Child Has Two Mothers?

    Paternity laws in Wisconsin apply to any person who became a parent with another person, regardless of either party’s gender. Thus, same-sex couples have the same ability as heterosexual couples to sign a Voluntary Paternity Acknowledgment or Acknowledgment of a Marital Child form to have their name listed on the birth certificate of any child born during the relationship.

    Likewise, although Wisconsin law assumes that a ‘husband and wife’ will be adopting a child, married people of any gender can adopt a child together. During the adoption process, the child’s biological parents will sign over their parental rights to the adoptive parents. Then, once the Court issues a certified adoption order, both adoptive parents can put their names on the child’s updated birth certificate.

    In short, although the language used in Wisconsin statutes assumes that parties are heterosexual, parents in same-sex relationships have the same ability to establish themselves as a child’s parents. If neither of the parents is the child’s “father”, paternity does not have to be established.

    What Is Marital Presumption?

    By Wisconsin state law, a man is automatically assumed to be a child’s father if he and the child’s mother were married to each other at the time the child was conceived. This is known as Marital Presumption of Parentage or Marital Presumption of Legitimacy.

    Marital presumption is long-standing and exists in some form in every U.S. state, yet it undoubtedly makes some generalizations. It was established out of necessity, as genetic paternity testing had not yet been invented. Now though, technology has evolved family structures have become more diverse as well. In response, marital presumption is changing as well. While it still applies to assumed paternity, marital presumption has been expanded since its inception to apply to the legal spouse of anyone who gives birth even if they are not biologically related to the child.

    Prenuptial Agreements

    Prenuptial agreements are often portrayed in the media as divisive ways to test a future spouse’s trust. In reality, a prenup, also known as a marital property agreement in Wisconsin, serves to safeguard each party’s assets if the marriage ends in divorce or legal separation, or if one spouse predeceases the other.

    Although there are a myriad of online sources that claim to allow couples to draft a prenup without a lawyer, doing so isn’t advised. A prenuptial agreement is a legal document like any other. As such, it must contain specific terms concisely laid out in a format that is admissible in any Court in the United States. Legal counsel is required to ensure that the document is carried out correctly, that the parties are not bound by inequitable terms, and that the contract is indeed valid. At minimum, an enforceable marital property agreement must include the following:

    • Full Financial Disclosure

      This aspect of a marital property agreement guarantees that each party has equal information about their spouse’s financial situation going into the marriage. Each party must list the true value of all assets and debts belonging to them, including any property holdings, expected inheritance, and obligations to people other than their spouse. This information sheds light on each party’s realistic financial contribution to the marriage, and delineates what should not be considered marital property. If the spouses so choose, they may also include instructions for the division of marital property in the event of legal separation or divorce.

    • Voluntary Participation

      For a marital property agreement to be enforceable, each party must enter into it of their own free will. One spouse may not coerce the other into signing a prenup with threats, like “I won’t marry you unless you sign this!”. Each party must have full understanding of the terms of the agreement, and must be given adequate time to review and sign it. Because a prenup is a legal contract involving compromise, each spouse is encouraged to seek their own counsel to ensure fair representation in the document and understanding of any rights waived by its terms.

    • Equitable Provisions

      For a prenuptial agreement to be accepted in Court, it must afford each party equal consideration. This means that the contract can’t be unjustly skewed to favor either spouse. While marital property is typically divided 50/50 in a divorce or legal separation, a prenup outlines terms for deviation from community property laws. In so doing, it must take into account what each party can reasonably be expected to contribute to the marriage given their current assets and debts and allowing a realistic estimate of their earning potential over the life of the marriage. Many factors go into the determination of each spouse’s earning potential, including age, overall mental and physical health, and education level. Expected contributions by one party to the other’s increased earning potential, such as by financing higher education, are also considered when putting together a snapshot of each spouse’s obligation to the marriage.

    • Adequate Time to Enforce

      Each party must have enough time to review, understand, and sign the marital property agreement. The exact amount of time to be given is left up to what is considered reasonable, that is, what would generally be considered enough time to sufficiently review a contract. Either spouse would be justified, and their rights protected, in refusing to sign a prenup if it was presented to them with inadequate notice, for example 24 hours before the wedding ceremony was to take place.

    Outside of these required criteria, prenuptial agreements are highly customizable according to the couple’s wishes and respective financial circumstances. Parties may choose to incorporate language pertaining to ownership of specific assets in a sunset clause, for example. They could include language that a business or other major asset owned and operated by one spouse cannot be liquidated and divided as marital property if the parties file for divorce or legal separation less than 10 years after the date of marriage.

    Parties may also choose to include an infidelity clause in their contract. Contrary to popular belief, cheating does not automatically render a marital property agreement null and void. Therefore, infidelity, or cheating, clauses include provisions for how the division of assets outlined in the body of the prenup will change if one party is unfaithful. In order to be enforceable, the clause must define exactly what should be considered infidelity, so that actions that would modify the terms of the prenup are clear. Additionally, in order to enforce an infidelity clause, one party would have to provide sufficient proof that the other committed actions that were in violation of the prenup’s terms.

    One scenario that a prenuptial agreement cannot set advance framework for is child support, custody, or placement of any children born to the parties during the marriage. Children are not considered marital property, and have their own rights that are protected by law. Any determination regarding living arrangements and monetary support of any minor children must be made by the Court at the time that the couple is going through divorce or legal separation.

    Are Prenuptial Agreements Required To Get Married?

    Prenuptial agreements must be entered into voluntarily to be considered valid in any Court in the United States, and are thus not required to participate in a legal marriage ceremony or receive a marriage license. While engaged couples are encouraged to have a prenup drafted before they marry, they cannot be required to do so as a condition of marriage, as this would be considered coercion.

    If My Spouse Has Children From A Previous Relationship, Can I Adopt Them?

    Parties wishing to adopt the minor children of their legal spouse can do so via stepparent adoption. There are four main parts to a stepparent adoption in Wisconsin:

  • Termination of parental rights by the other parent: The non-custodial parent must agree to the adoption, and must subsequently sign over their rights to be responsible for and make decisions on behalf of the child.
  • Petition to adopt: The person wishing to adopt the child must file a petition asking the Court to grant an Order for Adoption. The petition lists the person’s relationship to the child in question, verifies that the other parent’s rights have been terminated if they are still living, and confirms that the adoption is in the child’s best interests.
  • Adoption agency investigation: Before the adoption is granted, a licensed adoption agency will conduct a study of the child’s anticipated living arrangements. In Wisconsin, this is called a Structured Analysis Family Evaluation (SAFE) home study. It is used to ensure that the the child to be adopted will be living in an environment that is consistent with their physical, mental, and emotional needs.
  • If each of these phases is completed successfully and no other concerns are raised, the Court may rule to grant the Order for Adoption.

    Restraining Orders

    A restraining order is granted by a Court to obligate one party to stay away from or stop harassing another. In Wisconsin, there are four main types of restraining order, differentiated by who is petitioning and what actions are being alleged:

    Domestic Abuse: The petitioner has suffered, or been credibly threatened with, physical pain, injury, sexual assault intentionally inflicted by another adult, or another adult stalked them, intentionally damaged their property, or threatened to do so.

    Harassment: Similar to domestic abuse, but with a broader definition. The petitioner alleges that another adult kicked, hit, shoved, sexually assaulted, or otherwise physically abused them, or made credible threats to do so, or that another adult stalked them or is threatening to do so. Harassment restraining orders may also be granted if a petitioner alleges that someone engaged in, or has threatened to engage in, abuse towards a minor.

    Child Abuse: The petitioner alleges that another adult physically injured, neglected, trafficked, sexually assaulted, or otherwise exploited a minor or made credible threats to do so.

    Individual at Risk: The petitioner wishes to prevent someone who is elderly or who has a mental or physical condition that impairs their judgment or ability to care for themselves from being physically, mentally, or emotionally abused, being subjected to treatments without their consent, being taken advantage of financially, or being unnecessarily confined or restrained. It can also be used to prevent at-risk individuals from unwittingly neglecting their own needs because they are unable to care for themselves adequately.

    Individuals seeking restraining orders must first petition the Court for a temporary restraining order (TRO). After reviewing the information disclosed in the petition, the Court decides whether or not there is sufficient cause for a TRO to be granted. If so, the Court will schedule an injunction hearing, to take place within fourteen days of the TRO being granted. At the injunction hearing, the petitioner is given the opportunity to elaborate on the actions or events that warrant the restraining order. If sufficient evidence is provided, the restraining order can be extended for up to four years.

    Because getting a restraining order is reliant on information provided in the preliminary petition, it is strongly advised to seek counsel to prepare the petition and to provide representation at the injunction hearing. If a TRO petition is denied, an attorney is vital in presenting evidence for a successful appeal.

    Am I Able To Get A Restraining Order Against My Legal Spouse?

    In Wisconsin, restraining orders are granted as long as a person has sufficient evidence to demonstrate that someone is abusing, harassing, or threatening them. Parties’ marital status, even in regards to each other, doesn’t affect either person’s ability to take out a restraining order provided that they can prove that it is warranted.

    Can I Get A Restraining Order On My Child's Behalf?

    Anyone over the age of 18, regardless of parental relationship, can petition the Court for a restraining order on behalf of a minor. In cases of alleged child abuse, adult petitioners can submit evidence that a restraining order is necessary to safeguard the child’s best interests. Child abuse restraining orders can be granted for a maximum of two years, and do not expire if the child turns 18 while they are in effect.

    Post-Judgment Matters

    When financial situations or relationships change after an initial judgment, the matter often has to be revisited. Any matters opened with the Court in relation to a previous judgment intended to modify or reassess a decision that was made are done so as post-judgment matters. These cases are assigned new case numbers and are often heard by a different judge. Prior to hearings on the post-judgment matter, parties are allowed to submit evidence to their attorneys to support why the initial Court decision should or should not be modified. Each party’s attorney examines the evidence, and the case is heard by the Court similarly to how it was initially. The Court then makes reassesses its initial ruling based on what has been presented. If it is found that there is sufficient cause for the Court to modify its judgment, a new decision is entered, and the matter follows these new rules until such time that cause is presented to revisit it again.