Monthly Archives: February 2010

How To Become a Legal Same-Sex Domestic Partnership in Wisconsin, and Why You Want To

2010 – The year Wisconsin Recognized Same-Sex Partnership

Wisconsin hasn’t yet joined the states that recognize same-sex marriage, but our state has taken steps to recognize domestic partnerships in a way that impacts estate planning, property rights, employee benefits, healthcare decision-making, wrongful death actions and more.  Now, same-sex couples can take a pro-active approach to protect each other and provide for each other in life and after their death.

(State employees fall under a different set of rules, and this article will not treat those rules.  See 2009 Wisconsin Act 28 for more details.)

Who Qualifies to Create A Domestic Partnership in Wisconsin?

Non-state employees, meaning everyone else (and State employees who meet both definitions), falls under Wisconsin’s new Chapter 770 defining same-sex domestic partnerships in this state.  Under the statute, a same-sex domestic partner has 1) applied for and obtained a Declaration of Domestic Partnership (DDP) with the clerk in the county in which one of them resides for at least 30 days prior to the application AND 2) recorded the declaration with the Register of Deeds.

Same-sex domestic partners are qualified to get a DDP if they:

  1. Are both at least 18 years of age
  2. And are otherwise capable of consenting to the DP
  3. Neither is married or in a DDP with another individual
  4. The two applicants share a common residence
  5. The two individuals are not next of kin closer than 2nd cousins
  6. The two are members of the same sex

As stated in Howard Sweet’s article entitled “Understanding Domestic Partnerships in Wisconsin”, Wisconsin Lawyer, 2009 Issue, the requirement that neither parties be married creates an interesting presumption that Wisconsin recognizes marriages of the same sex that are legal in other states.   This is not explicitly stated anywhere, but a good argument can be made that Wisconsin gives full faith and credit to a marriage (same sex or not, of course) that was performed and legally recognized in another state.  A court may take the position that this provision requires that neither be married to anyone OTHER than the intended DP.  It is yet to be seen.

How Do We Divorce if it Doesn’t Work Out?

Nullifying a DP in Wisconsin requires a Certificate of Termination from the same Clerk of Court who issued the DDP.  Either partner may file a Notice of Termination of DP and must either have the signature of the other DP or must follow the rules of service of process.

Unfortunately, this is not like a divorce.  It makes sense that because the state is not granting the same rights that are recognized in marriage, they would not grant an actual divorce for a DP.  What this means is that, unfortunately, there are no court dates to talk about dividing up property or custody and placement of children because there are not provisions that address ongoing property rights and division of property mechanisms during the termination of a DDP, which is why a DP couple may want to consider a contract similar to a prenuptial agreement prior to applying for a DP, so that if the relationship breaks down, property rights and divisions are subject to a binding contract.  There are also no provisions for the treatment of the children of a DDP couple in Wisconsin upon termination of the DDP.  Child custody under this scenario is beyond the scope of this article and will have to be treated elsewhere.

So What Difference Does it Make?

The benefits of a DDP include:

1)      Spousal privilege extends to same-sex DPs

2)      Health insurance companies may provide DPs with coverage

3)      Wrongful death actions may be brought by the surviving DP

4)      Death benefits may be payable to the surviving DP

5)      Any estate planning instrument provision naming a DP as a beneficiary will be revoked by a DDP termination

6)      Estate planning instruments that do not provide for the surviving DP that were created prior to a DDP will be subject to the surviving DP’s      entitlement to an intestate share of assets

7)      Powers of Attorney given to a DP will be revoked upon termination of a DDP

8)      Interest in vehicles and homes will be transferred to the surviving DP upon the death of one partner without the usual transfer fees

9)      A decedent DP who dies without a will does now leave an intestate interest in his/her property to the surviving DP

10)   FMLA applies to the care of a DP in the same way it would for a spouse

11)   Property acquired together will be recognized as joint tenancy property, unless otherwise evidenced in a title document or bill of sale

12)   Hospital visitation rights are the same as those afforded a spouse

13)   Nursing care and rehab admitting rights are the same as those afforded to a spouse

14)   Rights to authorize post-mortem organ donation and autopsy are the same afforded a spouse

15)   Healthcare power of attorney given to the partner is revoked upon termination of the DDP

16)   A surviving DP has the same rights to inspect healthcare records of the deceased DP as a spouse would

17)   Worker’s compensation and unpaid wage claims for deceased DPs may be brought by the surviving DP

There are some 40 various provisions through the Wisconsin code that are affected by Chapter 770.  For a specific interpretation regarding your particular fact-scenario, contact an attorney familiar with the new Domestic Partnership Law in Wisconsin.

This article is for general information purposes only.  It is not intended as legal advice and it does not constitute establishment of an attorney-client relationship with anyone who reads it or an attempt to create an attorney-client relationship.  Keep in mind that the law changes frequently based on legislation and case law.  If you have a legal issue that relates to this article’s subject matter, please consult with a licensed attorney to determine your individual rights and to clarify the law with respect to your particular set of facts.  If you live in another state, please consult a licensed attorney in your state.  Dana Boyle is licensed in the state of Wisconsin.

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The Case for a Kinder Divorce

Divorce can be the worst time in your life.  Aside from the heartbreak involved, there are legal and financial issues that must be dealt with and that can change your life in drastic ways.  On top of that, many times you have to move to a new home or apartment, disrupt your children, and create a new normal all while fighting it out with your new ex-spouse.

Divorce can be a damaging financial blow.  Many times it involves splitting up assets and selling things off.  Starting over in your thirties, forties or fifties can be extremely discouraging.  To make matters worse, legal fees and court costs can eat up a great portion of your personal wealth if your divorce is hotly contested and lengthy.  The wealthier of the two spouses may even be required by the court to pay for both attorneys.  That means every time the lawyers make a phone call, that party is paying double fees for the time that is ticking away.  Every status conference, every discovery request, every minute of both lawyers’ time is subtracting hundreds of dollars from the pie that you and your spouse will divide in your marital settlement agreement, and from the wealth you have accumulated to support your children.

The court will likely appoint a guardian ad litem to determine the best interest of your children.  That’s right.  As a couple and as parents you will not be deciding the best interest of your children, particularly if you can’t agree, but a third party will be doing so by making a recommendation to the court.  That third party will have much more say the more you fight with your spouse and the less you agree upon regarding the placement and rearing of your children.  If you show the GAL that you both care about the best interest of your children and you are committed to doing what is best for them, your joint decisions carry much more weight and the GAL is very likely to recommend what you jointly decide for your kids.

There are less expensive, less taxing ways to get a divorce.  A judge does not have to make all the final decisions for you.  In fact, you can make all the decisions together, if you can be civil and come to an agreement together.  Then all you have to do is have your agreement drawn up by a lawyer, or you can write it up yourself with the forms at the local clerk of court’s office, and file it with the court as a marital settlement agreement.  There may be some pitfalls to doing it yourself, because you are not a lawyer and you may not think of everything or you may not draw it up in a way that a judge will accept without putting on a trial to make sure you’ve considered everything.  If a judge does that to you, then you could end up in court anyway.  Then again, many folks divorce without lawyers.

There are several new family law styles being practiced by attorneys these days.  You may want to check into collaborative divorce or cooperative divorce.  Those are topics for another article.

There is an even gentler and more cost-effective approach.  In a divorce mediation where you hire the mediator and no lawyers, you and your spouse can work with the mediator to bring about a marital settlement agreement that you both can live with, without paying lawyers to litigate at all.  Sure, you can also hire lawyers and bring them to mediation, but a good mediator is going to want to talk to you about your needs and find a good fit for the family, rather than allow two lawyers to bicker like they would in court.

The intangible benefits of getting a divorce in a more peaceful manner go without saying.  Imagine your divorce running smoothly, settling fairly easily, and your relationship with the mother or father of your child remaining strong so that you can be the best parents for your child(ren) together even after you are no longer married.  Imagine not having to spend more money than you have to, not losing or gaining weight or developing ulcers or other stress-related health issues that can often result from prolonged stress.  Imagine not walking away from your divorce bitter and exhausted.

Surely, you can work out an agreeable settlement with the person you once loved, maybe still love, and the one you once agreed to commit your life to for better or worse.  You can still live happily ever after, even if divorce is the only way you can work things out.

This article is for general information purposes only.  It is not intended as legal advice and it does not constitute establishment of an attorney-client relationship with anyone who reads it or an attempt to create an attorney-client relationship.  Keep in mind that the law changes frequently based on legislation and case law.  If you have a legal issue that relates to this article’s subject matter, please consult with a licensed attorney to determine your individual rights and to clarify the law with respect to your particular set of facts.  If you live in another state, please consult a licensed attorney in your state.  Dana Boyle is licensed in the state of Wisconsin.

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Top Ten Reasons to Get a Prenup

A prenuptial agreement is a contract that two people enter into prior to marriage that deals with the financial consequences of a break-up, should they divorce.  Without a prenuptial agreement, couples’ financial affairs are subject to the jurisdiction of their domicile (where they live) when they divorce.  To override state laws or protect certain assets and interests, a prenup may be necessary.  There are particular sets of circumstances where a prenup may be most attractive and beneficial.

  1. One partner has much more personal property and wealth than the other. To protect yourself from someone marrying you for financial gain, a prenup can be written to protect premarital assets from division upon divorce.
  2. One or both of you has children from a previous marriage or some other person to care for. You may want to protect your children should something happen to you, so that they are provided for before your spouse takes your assets.
  3. One partner is coming into the marriage with substantial debt. In the event of divorce, you may want to protect yourself from division of debt as marital debt, leaving you to pay off half of the bills your spouse already piled up before you married them.
  4. One of you has significantly less than the other. This is the flipside of the coin.  You marry someone who has much more than you, and you want to ensure that if you divorce they can’t leave you with nothing after you’ve grown used to a better lifestyle, particularly if you have children with them.  If your divorce could leave you homeless and jobless, or living in an efficiency apartment on public aid, protect yourself.  If they want a prenup to protect themselves, you want to include provisions that protects you too.
  5. You want your final wishes carried out specifically, despite having a spouse. If you have significant premarital assets or heirlooms and you want those distributed according to your wishes despite having a spouse whom the law would otherwise give those assets to upon your death, a prenup can help you.
  6. You are a business owner or shareholder. In the event of your death or divorce, your spouse could claim a marital property interest in your business, particularly if you’ve conducted that business for a substantial portion of your marriage.  A prenup can ensure that your spouse is not a partner in a business where your other partners may not want the unintended partnership.
  7. You earn much more than your partner. Generally, all income earned during a marriage is marital property.  However, a prenup can limit how much alimony or maintenance a spouse can ask for and receive in a divorce. 
  8. You and your spouse have agreed that you will not work during all or part of the marriage. Opting to be a stay-at-home spouse can have a negative impact on your earning potential and ability to provide for yourself and your children should you divorce.  A prenup can ensure fair responsibility for support and care of children, taking your work history into account, should you divorce and have limited job opportunities or limited earning potential.
  9. You own assets jointly and cannot share them with your spouse in the event of a divorce or your death. It could be that you bought income property, a vacation home, a piece of real estate, or some other significant asset with your siblings or father or a friend from college and you are not able to allow your share to become marital property in the event your marriage ends.
  10. You have or will be earning a professional level degree that will create a rebuttable presumption of high earning potential. In some cases, your professional degree can be considered marital property in that it is assumed someone in the professions has a high earning potential, and this is attributed to the marriage.  There are actually experts that people hire during divorce proceedings who can put a value on this and your spouse can attempt to argue that they have a right to half of this intangible value in the event of a divorce or, at least, that you should be entitled to fewer tangible marital assets because you have higher earning potential on your side of the property division.

This article is for general information purposes only.  It is not intended as legal advice and it does not constitute establishment of an attorney-client relationship with anyone who reads it or an attempt to create an attorney-client relationship.  Keep in mind that the law changes frequently based on legislation and case law.  If you have a legal issue that relates to this article’s subject matter, please consult with a licensed attorney to determine your individual rights and to clarify the law with respect to your particular set of facts.  If you live in another state, please consult a licensed attorney in your state.  Dana Boyle is licensed in the state of Wisconsin.

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Why Hire a Mediator?

Success Rate

Most legal disputes settle.  Often times the parties have already hired attorneys and paid hefty legal fees so that their lawyers can negotiate back and forth to come to a resolution prior to going to court.  Sometimes lawyers hire a mediator and the parties split the cost, in addition to legal fees they’ve already paid.  Parties may even pay lawyers for their time during the mediation.

Studies indicate that most parties, even the most opposed parties, resolve their disputes in mediation, even if they have never tried mediation before.  Overall, mediation is about 75% effective.

Save Money

If most legal disputes settle anyway, why choose mediation instead of hiring lawyers and letting them resolve the dispute between them?  Most lawyers charge an hourly rate or a flat fee that estimates the time or work involved in handling your case.  If two parties pay separate lawyers an hourly rate of say, $185 per hour, and both have to work 10 hours to get your case resolved, you’ve spent at least $3,700 to settle your case between the two parties, not including additional filing fees or charges.

In contrast, a mediator usually charges an hourly or flat fee as well, but the fee is split between the parties, and mediations average 4 hours.  (Obviously, some are longer and some are shorter.)  Even if the mediator charges the same hourly rate, at 4 hours, you’ve only spent $740, and you will split that fee with the other party, so you are only down $370 in that hypothetical.  (Rates vary for lawyers and mediators.  Check with your mediator.)  It can be much more economical.

Having Your Say

Mediation is not binding.  In other words, the mediator only facilitates communication between the parties and does their best to find common ground to encourage resolution that both parties can live with.  Nothing the mediator says or does is binding and, unless you sign a settlement document that you agree to, you can walk away from a mediation if it isn’t going your way.

The mediator is not a judge or a lawyer for the purposes of your mediation.  They do not and cannot offer legal advice or tell you what a judge might or might not do.  Instead, they get to the heart of the dispute.  They listen to each party and help them craft a settlement that takes both sides’ interests into account.

This is not true of other forms of dispute resolution, including arbitration or going to court.  In a courtroom, the judge is going to apply the law to your particular set of facts and decide based on what the statues and cases say.  If the facts are not in your favor, you are likely to lose and you have nothing to say about it.  If the judge orders you to do something, you must do it.  You may not like the result, and you may end up paying part or all of the other side’s fees and costs in some types of cases.

Even if you decide to appeal and see if the higher court will see your side, it can drag out your case for years, and you still may not get the result you want.  In fact, most appeals do not result in the judge being overturned.

In mediation, you will not be bound to anything unless you agree to it.

Relationship Repair

More often than not, the people who we have disputes with are people with whom we’d prefer to keep a positive relationship.  It may be that we have a legal issue with our in-laws, a sibling, a neighbor, an employer, a vendor or contractor we have used for years, a friend, a spouse or mate, or someone else who it would benefit us to maintain healthy ties to going into the future.

Mediation can help both parties see the other side’s point of view and repair misunderstandings and hurt feelings so that each party’s reputation remains intact and they can move forward without any grudges or smudges.

Informal Setting

When you go to court, you should dress for court and present yourself in a way that helps the judge to look favorably upon you.  You want to put your best foot forward, and you may feel anxious because you don’t know the law and the procedures of the courtroom.  There are often other people waiting to have their cases heard after you, and they are allowed to sit and hear your testimony even though they are strangers and a court reporter will type every word you say into the record.  You are going to be rushed through, in many cases, because the judge has a full calendar and needs to move through everything on the docket.  It can be intimidating and scary.

In a mediation setting, you may dress and present yourself how you most feel comfortable.  There are no code rules of procedure or conduct that you have to obey, and the law is irrelevant.  Yes, I will repeat that.  The law is irrelevant.  What matters in a mediation is an agreement that both parties can live with.

You won’t be penalized if you didn’t follow the procedures, file the right paperwork, or wear the right shoes.  You will have time to be heard.  No one will rush you or cut you off.  You will be in a private room where total strangers will not be allowed to hear your private business.  Nobody will record every word you say.

Flexibility & Time

In a litigated case, one that goes to court, you or your lawyer will receive a notice from the court and most of the time the judge will set a date and time and you must be there.  There is little room for flexibility that meets your schedule, because the court has many matters to hear and is often backed up.

You may not get a trial date for two years in some types of cases.  Even if you get a date, you may be second or third in line for that slot, so it may not go on that date anyway.  Each time you have a hearing, you likely have to take time off of work at some inconvenient hour and often end up with another date to return to court again.

In mediation, the facilitator will schedule a time that is within their business hours, but one that you agree to and that meets your schedule.  You can plan ahead and take time off of work one time to resolve the matter.  You may even luck out and get a slot that is early enough or late enough in the day to avoid missing work at all.

Conclusion

As you can see, mediation saves time, frustration, money and often saves face all while effectively resolving your dispute.

If mediation sounds right for your dispute and you’d like to know how it works or schedule a mediation, I’d be happy to consult with you.

This article is for general information purposes only.  It is not intended as legal advice and it does not constitute establishment of an attorney-client relationship with anyone who reads it.  Keep in mind that the law changes frequently based on legislation and case law.  If you have a legal issue that relates to this article’s subject matter, please consult with a licensed attorney to determine your individual rights and to clarify the law with respect to your particular set of facts.  If you live in another state, please consult a licensed attorney in your state.  Dana Boyle is licensed in the state of Wisconsin.

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Who Keeps the Ring?

You were engaged.  The date was set.  The flowers were ordered.  The church was booked.  You were so happy!  Everything was going fine and then you hit a little snag.  The snag turned out to be something so big you two couldn’t get past it and now the wedding is off.

Who gets to keep the engagement ring?

Under Wisconsin law, an engagement ring is a conditional gift.  The condition is marriage.  If the marriage does not take place, the ring must be returned.

It doesn’t matter why you broke up.  It doesn’t matter who broke it off.  It doesn’t matter how long you were engaged or wore the ring.  If you didn’t get married, then the ring must be returned to the one who bought it.

Every time you hear people talking about this subject, inevitable exceptions come up.  “Well, what if the ring was given as a Christmas gift?  Or what if it was my birthday gift?  Or what if it was given on another holiday for that holiday?  Or what if he told me he didn’t want it back, but now he is suing me for it and I already sold it?”  So, what happens if you can establish that the ring was a Christmas gift, for example?  Does that pull any weight in Wisconsin?

It is a rare exception, and you will have to consult a lawyer if you feel you fall under one of the exceptions.  There have been cases where a court has allowed the woman to keep the ring if it was, indeed, given instead of other gifts at Christmas, or if it was refused when she tried to return it and she relied on that in selling it, but now he wants the ring back.

States vary, so consult someone in your state about the laws.  Generally, most states do consider an engagement ring a conditional gift.  Miss Manners would say it’s proper etiquette to return the engagement ring, regardless of who called off the wedding.  Aside from legal considerations, I’d ask my client why they want to keep the ring he bought for her.  Is it revenge?  How are you going to feel every time you look at it?

Wisconsin residents, if you have a situation where you are unsure what to do with an engagement ring, or you feel you are entitled to keep the ring or if your ex-fiancée refuses to return the engagement ring and you don’t know what to do to get it back, I would be happy to set up a consultation to see if I can help you resolve the dispute.

Don’t want to go to court and you have more than just an engagement ring to hash out?  I also mediate wedding call-off disputes.  Call for a consultation.

This article is for general information purposes only.  It is not intended as legal advice and it does not constitute establishment of an attorney-client relationship with anyone who reads it.  Keep in mind that the law changes frequently based on legislation and case law.  If you have a legal issue that relates to this article’s subject matter, please consult with a licensed attorney to determine your individual rights and to clarify the law with respect to your particular set of facts.  If you live in another state, please consult a licensed attorney in your state.  Dana Boyle is licensed in the state of Wisconsin.

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