Inside Track: Handling a Basic Divorce: Family Law Practitioners Give Practical Advice:

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  • Inside Track
    June
    29
    2012

    Handling a Basic Divorce: Family Law Practitioners Give Practical Advice

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    July 5, 2012 – Seasoned family law practitioners recently presented a wealth of information on "handling a basic divorce." This article highlights the major issues, with practical tips.

    Handling a Basic Divorce: Family Law Practitioners Give Practical Advice

    Seasoned family law practitioners recently presented a wealth of information on “handling a basic divorce.” This article highlights the major issues, with practical tips.

    Handling a Basic Divorce: Family Law 
Practitioners Give Practical Advice

    By org jforward wisbar Joe Forward, Legal Writer, State Bar of Wisconsin

    July 5, 2012 – Although Wisconsin has consistently stayed below the national divorce rate, 16,635 couples were divorced last year. One in every 1.8 marriages ends in divorce.

    So it was not surprising that a healthy number of young lawyers turned out for a recent CLE seminar, “Handling a Basic Divorce,” which revealed that divorces aren’t so basic.

    However, several seasoned family law practitioners presented a wealth of information that lawyers can use to start or build a divorce law practice, including practical advice. This article highlights some of the major issues, including practical tips, to handle a basic divorce.

    Initial Contact

    The phone call comes in: Jane Doe wants to part ways with her husband John and she’d like your help in filing the divorce action. In Wisconsin, a no-fault divorce state, filing the divorce action requires one party or both (jointly) to file a divorce petition. Madison family lawyer Steven Bach says he’ll take the call personally to get a feel for the prospective client.

    During the call, Bach asks the client basic questions about the situation and will determine how much time is required for an in-person consultation. He’ll also do a conflict check, necessary to properly comply with Wisconsin’s Rules of Professional Conduct for Attorneys.

    Bach’s Tips: Meet sooner than later. Often, helping clients understand the process early can help ease the stress associated with the divorce. Disclose whether you will charge for the in-person consultation, and how much time will be required. Be timely with call-backs.

    Steven Bach

    In Wisconsin, a no-fault divorce state, filing the divorce action requires one party or both (jointly) to file a divorce petition. Madison family lawyer Steven Bach says he’ll take the call personally to get a feel for the prospective client.

    First Conference

    The first in-person consultation should be a mutual interview, says Bach. Get a feel for the client and the case, asking simple questions to break the ice. Help them feel at ease.

    Then explain the basic process, including information on filing the petition and the 120-day minimum that is required to pass before the court will grant a divorce.

    If Jane Doe has minor children, explain the difference between legal custody and placement. Cover basic information about property division in Wisconsin. Also, inform the potential client about dispute resolution alternatives, such as mediation and collaborative divorce.

    For instance, collaborative divorce is an increasingly popular way for divorcing parties to resolve their disputes. Both parties and their attorneys agree to settle upfront. However, if the parties cannot agree, they must hire new lawyers for litigation.

    Don’t apply pressure. Bach says he often encourages prospective clients to shop around for other attorneys. And Bach reminds lawyers: Clients often remember how lawyers made them feel, rather than what the lawyer said. Empathy may go a long way, he says.

    “Criminal lawyers are considered a defendant’s mouthpiece,” Bach said. “Family lawyers are lightning rods. Listen, but keep the clients expectations in check early.”

    Set out your basis for fees and costs in a written fee agreement, which may include an initial retainer fee. Note that there is no obligation to take the client’s case after the first consultation. In fact, a few “red flags” may indicate the client may not be the right one for you.

    If the potential client has had multiple lawyers already, it may indicate the person has unreasonable expectations. Be aware of potential clients who want other family members or relatives present at the initial consultation or other meetings. Attorney-client privilege is at stake, and third parties may have different ideas about what is in the client’s best interest.

    Finally, be on the lookout for potential clients who offer questionable suggestions about property division or other issues that don’t involve full disclosure to an adverse party.

    Rebecca Richards-Bria

    When custody of children is in dispute, it’s going to be a longer process. “The sooner you explain that to your client the better,” said Mauston family lawyer Rebecca Richards-Bria.

    Custody and Placement of Children

    When custody of children is in dispute, it’s going to be a longer process. “The sooner you explain that to your client the better,” said Mauston family lawyer Rebecca Richards-Bria.

    Informing your client on the differences between legal custody and physical placement will help them understand the process and put them at greater ease, she says. Also, reel in the client’s expectations quickly, especially with respect to interactions with opposing counsel.

    “It’s okay for opposing attorneys to get along,” she said. “It will likely save headaches and money for the client down the road. I explain this to my clients who often have a perception that lawyers must be bullies to achieve the best result. It’s just not the case.”

    Know the local rules, Richards-Bria stressed. For instance, know how local courts handle procedural steps such as required mediation or the appointment of a guardian ad litem (GAL). Also, explain when procedures will cost the client money, such as a GAL appointment.

    It’s often helpful to contact lawyers who know what local judges want or expect when it comes to certain procedures or documents, she said. Knowing these things will save-face in court.

    Richards-Bria’s Tip: Contested physical placement and custody cases can be time-consuming and messy. Know your time and caseload constraints are before taking them on.

    Property Division

    All property is subject to division between the parties, except in circumstances such as property acquired by gift or inheritance. For a good discussion of gifted and inherited property issues in divorce, read Derr v. Derr, 2005 WI App 63, 280 Wis. 2d 681, 696 N.W.2d 170, Bach says.

    Also, the statutes that govern property division are found at Wis. Stat. section 767.61.

    Inform the client that Wisconsin presumes a 50/50 overall division of property that may be altered based on a number of considerations, without regard to marital misconduct.

    However, attorneys may argue that one spouse has committed “marital waste” through acts like gambling, which can be considered to alter the property distribution.

    In any case, Bach says that “parties should make every effort to divide property themselves by agreement,” noting that clients may have to engage appraisal experts to determine property’s fair market value at the date of divorce. Note: Animals are considered property.

    Bach’s Tip: Inform client’s that full disclosure of finances and assets is required, and there are provisions that will penalize the defendant for failing to disclose, including a provision that allows a spouse to “bring back” previously disposed assets sold for less than FMV within a year.

    Ellen Frantz

    Most important rule: Know the rules, says La Crosse family lawyer Ellen Frantz.

    Child Support and Maintenance

    Most important rule: Know the rules, says La Crosse family lawyer Ellen Frantz. In particular, Wis. Stat. chapter 767 sets out the laws on child support, and Admin. Code Ch. DCF 150 contains rules for the all-important “child support percentage of income standard.”

    “The percentages are the starting point in each case,” says Frantz, who notes that application of percentages involves a wide range of issues, often resulting in litigation. The percentages represent the amount each parent is expected to contribute to support the child or children.

    For example, the regulations define “gross income” for purposes of determining child support. Gross income includes almost any income imaginable, says Frantz. So it’s important for attorneys to know what forms and documents are necessary to show a client’s gross income.

    Be crystal clear on how you base your client’s percentage of income for child support, Frantz suggested. Judges must have a good explanation for any deviation from the standards.

    Like child support, know the laws found at Wis. Stat. section 767.56, which include the factors that a court will consider in granting maintenance (also known as alimony) to a spouse.

    Different judges do different things. Know the rules and preferences of the judge you are dealing with. If in doubt, reach out to a local family law attorney, says Bach.

    Conclusion

    In their full-day seminar, a panel of family law practitioners focused on the above topics, but also delved into topics on core negotiation skills, settlement agreements, trial preparation, and collaborative divorce, offering practical advice based on years of experience.

    This program, part of the State Bar of Wisconsin PINNACLEBuild Your Practice Series,” will be available via webcast replay for 6.0 CLE credits July 19 and Aug. 3, from 8:30 a.m. to 3:15 p.m.

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