The Grove Report

Why Did My Neighbor Send Me a Bill for His Fence?

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By popular request–OK, by one person’s request–I’m going to write about how Wisconsin’s fence law can create unfriendly neighbors. As attorneys in a rural town, it’s an issue that rolls into our office every so often.

The fence law, currently found in Chapter 90 of our state statutes, says that a fence is required if the property on either side is used for farming or grazing unless the neighbors agree that one isn’t needed. So the person doing the farming or grazing pays for it, right? Not so fast my friend!

The law, which dates back to when Wisconsin was part of the Michigan Territory, states that the neighbors must split the cost to build and maintain any fence. As you might imagine, this can create quite a conflict between a farmer and his new subdivision neighbors when the farmer throws up a fence and sends half the bill to these suburbanites.

Those suburbanites often call our office to complain because surely this isn’t fair. But, despite some clamoring that the law should be repealed because it’s no longer practical, it’s still on the books and we have to give them the bad news (but at least get to congratulate them on their new half a fence!).

We Broke Off the Engagement–Who Keeps the Ring?

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During happier times, the future husband saved up, hopefully went somewhere other than Jared, and gave a big ole rock to his soon-to-be-bride. Then, disaster strikes: “I thought we were in an open relationship!” “Where were you hiding all these credit cards?!” “You voted for WHO?!” The next thing you know, the engagement’s off and our heartbroken lovers are wondering who gets to keep the engagement ring.

In Wisconsin, the courts have already decided that issue. According to the judges in Brown v. Thomas, engagement rings are “conditional” gifts. This means that an engagement ring is a gift conditioned on the marriage actually happening. If the marriage doesn’t happen, the ring must be returned.

But, she cries, that dirtbag broke up with me (or caused me to break up with him)! In Wisconsin, it doesn’t matter. Just like divorces are “no-fault” in the court’s eyes, so are engagement break-ups. In other words, Wisconsin’s judges have decided that they aren’t going to touch the whose-fault-was-it issue with a ten-foot pole.

It might be good news for you or bad news for you, but in Wisconsin, the engagement ring goes back to the buyer if the engagement falls through.

What is a Guardian ad Litem?

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Many parents handle their family law matters without an attorney and often the first time they’re surprised is when a guardian ad litem gets involved. I can’t find the statistic, but I recall hearing that over 80% of the family law cases in Rock County do not have either party represented by an attorney.

Even without an attorney, the beginning stages of a custody case usually make sense. You show up to the initial hearing, the judge asks whether the parents agree on a plan, and, if the answer is no, the judge sends the parents to mediation. The case ends if a deal is reached at mediation. If not, the parents are notified that a guardian ad litem has been appointed. At this point, most parents typically ask, “who the hell is that?”

The guardian ad litem (“ad litem” means “for the suit”), or GAL, is a court-appointed attorney whose job is to advocate for the best interest of the child. And yes, this person is always an attorney per Wisconsin law. (As a side note, I’ve always thought that social workers, child therapists, and teachers would all be better suited for the role than lawyers, but so far the Wisconsin legislature hasn’t asked for my opinion.) To figure out what is in the child’s best interest, GALs will usually interview the parents, the child (if they’re mature enough), and other people with information like teachers or medical providers. At the end of their investigation, the GAL will make a recommendation to the judge about how they think the case should be decided.

The judge can ignore the GAL’s recommendation, but in practice, the judge will almost always adopt the recommendation or something close to it. That means that the GAL is often times the most important decision-maker in the case.  I’ll write more about guardians ad litem and how to work with them in future posts, but the important thing to remember for now is that they will be incredibly important to your case and you should treat them accordingly.

The Importance of Prenups for Older Couples

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We’ve all seen the story. Mom and dad are retired, sitting on the pile of money they earned throughout their working lives. Mom passes away, dad starts to get lonely, and the next thing you know dad is spending a lot of time with a woman you’re pretty sure you used to babysit. We have the makings of one of the greatest conflicts in humanity: the children versus the “gold digger.”

While few of us experience the stereotypical “gold digger,” it isn’t uncommon for adult children–who are often set to inherit from their surviving parent–to become nervous when that parent starts a new relationship, regardless of the new partner’s age or motivations. The kids have been in the mix for decades and it’s scary to think that a new fling might walk away with your parents’ house and retirement accounts. Even if this isn’t the new partner’s goal, the threat alone can go a long way towards poisoning the relationship between the kids and mom or dad’s new partner.

In these situations, I always recommend a prenuptial agreement. These are flexible documents that can be tailored to any given situation. And often times, it allows the parties themselves to discuss what their expectations are regarding the financial part of the relationship for the first time. These types of discussions can be difficult, but I can promise you it’s much easier than the fight that can erupt between the children and the new spouse after the parent is gone.

Get Paid to Delay Your Divorce a Little Longer

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There’s never a great time to get divorced, but there are a few times that are particularly not great. One is right before your tenth anniversary.

The reason? Social Security benefits. Social Security’s rules entitle you to your ex-spouse’s benefits if you were married more than 10 years. Collecting on your ex’s benefits doesn’t affect their (or their new spouse’s) ability to collect benefits, so tagging along shouldn’t create any bad blood. And while there are a few other requirements before you collect on your ex’s benefits–you need to be at least 62, unmarried, and the benefits need to be more than you would have received based on your own work–it usually makes sense to delay finalizing a divorce a few months to leave this door open.

So if you’ve been married for nine years or so and don’t think you can stand another day with your spouse–think again, particularly if they’ve made more money than you. It might be worth it in the long run.


Being the “Winner” in Your Divorce

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For readers who are thinking about or just starting their divorce, “winning” is an important concept. They want to win the property division, win the child custody fight, and win on spousal maintenance and child support. And in our first meeting, they want to know how I’m going to help them win.

Veterans of the divorce process sing a different tune. One that sounds a lot like Tiger Man McCool from Bobby Bare’s song “The Winner” (lyrics by Shel Silverstein!). In the song, Tiger Man McCool is known to have won every fight he’s ever been in. But when he’s challenged to another one, he talks about how his teeth got knocked out like Chiclets, a steel pin holds his jaw in place because he crashed his motorcycle in his most successful race, he broke his back fighting a guy after he slept with the guy’s wife, and his nose might fly off if he sneezes because he’s broken it so many times.

Divorce “winners” are often in a similar spot. They might have a little more of the property, a little more time with the kids, and a couple bucks more in spousal maintenance. Rather than busted teeth and a steel pin in their head, though, they paid their lawyer thousands and thousands more than they had to. They embarrassed someone they have to co-parent with for the next decade in open court. They probably alienated a fair number of mutual friends and they spent many sleepless nights fighting a two-year divorce that could have been over in six months had they been willing to compromise.

So if you’re new to the divorce process, ask a friend (or a family law attorney) who’s been through it what makes someone a “winner.” I think they’ll sound a lot like the guy who walked away from fighting Tiger Man McCool: “But my eyes still see and my nose still works and my teeth’re still in my mouth. And you know I guess that makes me the winner…”

How Much Child Support Will I Get (or Have to Pay)?

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In addition to spousal maintenance, the other monthly payment soon-to-be divorced parents have to worry about is child support.

Wisconsin addresses this issue by throwing a bunch of formulas at you. It’s easy enough to understand for experienced family law attorneys, but it can be confusing for people who don’t work with them every day.

The first thing to do is determine what category you fall in. Are you (roughly evenly) splitting the time each of you will have responsibility for the kids? Then you’re looking for the “shared placement” formula–this one compares both of your salaries and the number of nights you’ll be responsible for the kids and spits out an amount.

Will one parent have the kids a vast majority of the time? Then the other parent will pay a set amount of their pay–somewhere between 17% and 34% depending on the number of children. The important thing to note is that the custodial parent’s pay generally doesn’t matter in these cases.

What if one parent is taking one child and the other parent is taking the other? Then you need the “split placement” formula. Much like the shared placement calculator, the parents’ salaries are compared and the formula calculates the amount of support.

What if the paying parent is already paying child support from a previous relationship? That’s a “serial family” case and each kid is going to get slightly less support than the ones before him or her.

Finally, what if I making a cool $1 million a year and my ex takes care of our child? Paying 17% of that, or $170,000 a year, seems like a lot of money to raise a kid, doesn’t it? It does, so the judge has the discretion to apply the “high income payer” formula.

Once you know your category and want to get an idea of what child support might look like in your case, you can find the various calculators here. Or, you can call me and we can walk through it together.

One final note (and one that will be the subject of a future post): the judge has the authority to deviate from these formulas, but, in most cases, I wouldn’t count on them doing so.

Be Careful with Your Website Pictures

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A few clients over the years have received nasty letters from trolls law firms claiming that the pictures on my clients’ websites infringe on their client’s intellectual property rights. Along with the letter comes an offer to settle the case, typically for a few thousand dollars.

I usually have to give the client the bad news: that picture you took off the internet is someone else’s property, they do have a claim (albeit a small one) against you, and you are better off paying a couple thousand bucks now rather than pay me at least that much to fight it when you’ll probably lose anyway.

Although my clients have been out some money, at least I would personally never make that mistake having seen what they went through. Oh no, no, no, I would never be stupid enough to make that same mistake. And certainly never on this blog!

Did I make that mistake on this blog? Of course!

But, I got tripped up in an unexpected way. I knew I couldn’t just take any picture off the internet, so I used a tool in google’s image search that allows you to sort images by their “usage rights.” I picked the one that said “labeled for reuse” and figured I was home clear. The troll photographer, however, had attached terms that could only be viewed if I went to the picture’s original web page, specifically that someone could use the image for free but had to credit the photographer. I didn’t credit the photograph and after receiving a letter from his legal troll lawyer, I’m a little lighter in the wallet.

I’m using pictures of my cats from here on out.

Gwyneth Paltrow Has Not Made Divorces a Little Less Painful

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According to the Huffington Post, Gwyneth Paltrow hopes that she’s made your–yes, your–divorce a little less painful because her and her former husband “have contributed something positive to the culture of divorce.”

I can report that none of my divorce clients have mentioned that Gwyneth Paltrow helped them through the tough times. Hopefully, despite this setback, the rich, famous, and clueless continue to send aid to those of us in the trenches.

Wisconsin Child Support Changes in the Works

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Whether it’s part of a divorce or a standalone custody matter, child support is an issue in many of my cases. Based on feedback from my clients, most people who pay it think they have to pay too much and most people who receive it don’t think they get enough. Wisconsin uses formulas to determine child support amounts, so the fact that both sides are usually unhappy with the amount leads me to believe that the formulas are right about where they need to be.

But not everyone agrees. A wealthy divorced dad and his attorney teamed up in 2013 with their local legislator, Joel Kleefisch, to write a bill that would lower child support payments for high-income earners. (Surely, the fact that the dad was a major contributor to Kleefisch’s campaign had nothing to do with having the representative’s ear.) That bill was unsuccessful, but similar terms are now being proposed again. Specifically, the proposal would cut child support for income between $300,000 and $500,000 to about half of what it is under the current guidelines.

Admittedly, things can get wonky with extremely high-income earners because the formula can lead to six-figure per year child support payments. Judges, however, do have the power to deviate from the formula in these cases under current law and typically do a good job of doing so. So, taken as a whole, I’d be for leaving things as they are–a view shared by the committee tasked with looking at the proposed changes and the Family Law Section of the Wisconsin Bar. But some practitioners are for it.

I’ll keep you updated when a final decision is made.