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.
By 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.
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.
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.
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
PINNACLE™ “Build
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.
Related Educational Programs
Books and Forms Resources
Consumer
Pamphlets (also available for website
licensing)
