Obtaining Fair And Full Child Support And Spousal Maintenance
When there are minor children in divorce action, the court is required to make findings regarding their custody, placement and support. Often times there is confusion on the part of divorcing parties as to what these terms mean and how they intersect in their divorce.
Understanding Legal Custody And Physical Placement
Legal Custody (Joint or Sole)
The legal custody of children will be either Joint or Sole. Joint Custody, which gives the right to make major decisions on behalf of a child is presumed at the outset of a case. Major decisions are defined as the choice of school and religion, choice of primary care physician, the decision to marry, serve in the military and the decision to become licensed to drive a vehicle. The parties can also agree on other decisions that they would want to be jointly decided.
That being said, joint custody is not always possible or in the best interests of children. This is true for example where there is a history of domestic violence or in situations where the communication dynamic is so bad between spouses that decisions are incapable of being made jointly.
Legal custody is not about physical placement, which was formerly called “visitation”. It is about the right to make what is defined by our statutes as being major decisions. A person who finds that his spouse has been awarded sole custody is not excluded from participating as a parent at school, at his or her child’s activities, or from having access to the child’s medical or school records, unless the circumstances are such that the court expressly had limited such access or participation.
Physical placement is the period of time that each party will end up spending with the children when their divorce case is finalized. How much time each will spend depends on a number of factors. The realities of employment may make expansive placement difficult to impossible. There may be other impediments—distance, physical or emotional limitations, domestic violence, the age and wishes of children and the recommendations of professionals, which may have an impact on how much placement ultimately will be awarded. The key in all of the considerations about placement is that the court must ultimately make findings that the custodial arrangements and the placement schedule arrived at are both in the best interests of the minor children.
Placement may be limited for any number of reasons or it may be expansive or “shared” as that term is used. Placement is considered to be shared in Wisconsin if a parent has at least 25% of the time with the child or children overnight (92 nights).
The amount of time each parent will spend with the children is significant because there is a direct correlation between that time and the amount of child support that will ultimately be involved in the case. Whether you are likely to be the support payor, or the support recipient, both parties to a divorce will be keenly interested in what this will mean to them. In general, if you will be having less than 25% placement with your children, you will be paying what is known as “guideline” support, which centers around the following percentage of gross income schedule:
- 1 child: 17%
- 2 children: 25%
- 3 children: 29%
- 4 children: 31%
- 5 or more children: 34%
There are provisions that permit the court to deviate from these percentages and also to reduce the amount to be paid if you qualify as a high income payor. In addition, if you are also providing health insurance for the children, the cost to provide insurance for them will be shared between you and your spouse, usually as an adjustment to child support.
When placement is shared, there is a formula that is applied to determine yours and your spouse’s respective share of the total support obligation. If, for example, you are both earning comparable incomes and have the children equally in your respective homes, the child support obligation would be zero. In that situation, you and your spouse would not pay child support but would equally share in what the court has labeled “variable expenses”, which are the costs above basic support incurred by or on behalf of a child including, but not limited to, the cost of child care, school costs, tuition, a child’s special needs or the cost of activities that involve substantial cost.
Child support considerations can be a battleground for many divorcing parents. In addition to fighting about how the recipient may use the funds, many times the desire to avoid paying support can result in battles over how much placement is desired, even when the circumstances would suggest that the best interests of the children would gravitate towards a less expansive schedule.
Receiving counsel from a knowledgeable attorney can help you reach agreements on mutually favorable terms relating to the custody, support and placement with your minor children and avoid unproductive and expensive battles in this area. We invite your call at [nap_names id=”FIRM-NAME-3″] and are available to assist you when you need us.
Assisting Clients With Spousal Support or Maintenance
Based upon a number of statutory factors, the court may award spousal maintenance, formerly called “alimony,” in a Wisconsin divorce. Unlike the guidelines that exist for child support, there are no state guidelines or formula to establish what would be an appropriate maintenance payment in a particular case. The court must consider the statutory guidelines and assess the need of the recipient and the ability of the payor to pay when maintenance is an issue in your case.
In deciding whether to award maintenance, the most important factors will be the length of the marriage and whether there is a significant income earning disparity between the parties. The shorter the marriage and the smaller the gap between incomes, the less likely that there will be an award for maintenance.
Wisconsin’s maintenance statute provides at relevant portions that the court may award maintenance for a limited or an indefinite period after considering the following:
- The length of your marriage
- The age and physical and emotional health of the parties
- The property division made in your case
- The education level of each party at the beginning and end of the marriage
- The earning capacity of the party seeking maintenance
- The feasibility that the party seeking maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage
- Any mutual agreement before or during the marriage on the subject of financial support
- Contributions made by one party to the education, training or increased earning capacity of the other
- And the catchall: Such other factors as the court in each case may determine to be relevant.
Whether you will be requesting maintenance or trying to prevent it from happening, you will need an attorney who is experienced with the issue and who will be able to process the information and present it with the use of financial spreadsheets that are generally recognized and used by local attorneys and our judges. By analyzing the financial data and being creative with potential solutions, maintenance issues can be successfully negotiated. That being said, the expectation for maintenance and the resistance to pay it in many situations can very often result in trials when everything else in the case has been resolved by agreement. If your case involves maintenance issues, I will use my knowledge and experience in this area to do what I can to resolve this and all other issues in your pending divorce.
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My firm is conveniently located to serve families in the Milwaukee Metropolitan Area including Milwaukee, Waukesha, Ozaukee, Racine and Kenosha counties. Arrange your free telephone consultation with me by calling 414-721-9633 or completing my online form.