Sometimes people think “family lawyers” are like “family doctors” and that they address legal issues of all kinds for all members of a family the same way a family doctor treats general illnesses and injuries for all ages. In fact, family lawyers are highly specialized in a very narrow and nuanced area of the law. Specifically, they handle thirteen different “actions affecting the family.” To learn more about the issues that comprise family law and how a Milwaukee family law attorney can help you, read on!
If the validity of a marriage is denied or doubted by either party, the other party (meaning the one not questioning the marriage) can file an “action to affirm marriage.” The judgment in such an action must either affirm the marriage or annul it (if the marriage is, in fact, invalid).
This type of action may arise when, for example, people have had a religious marriage without the benefit of a civil marriage or when they have been married according to cultural customs or overseas where the marriage requirements are substantially different from American laws.
It can also arise when someone is concerned their spouse may have been divorced too soon prior to their current marriage, when they come to learn their spouse may have been underage or otherwise unable to consent to the marriage, or when they come to learn the marriage had a “technical difficulty”—such as the officiant being unqualified or failing to register the proper paper work after the ceremony.
Contrary to popular belief, an annulment is not a purely religious concept and does not mean “the marriage never took place.” Rather, it means the marriage lacked the statutory requirements to be recognized as a legal marriage. The process of getting a legal annulment is very different from getting a religious annulment and getting one type of annulment is not a substitute or equivalent of getting the other.
It is very difficult to get a civil annulment. They require proof one party lacked capacity to consent to the marriage or that a party lacks the physical capacity to consummate the marriage (and that the other party did not know if this incapacity).
An annulment action based on these factors must be brought within one year of a party learning of the other party’s incapacity.
Parties can also get an annulment if they prove one party was underage and did not have parental consent for the marriage or if they prove the marriage was otherwise prohibited by the laws of Wisconsin.
If the parties cannot prove the necessary elements to get an annulment, they will have to get a divorce to dissolve the marriage.
“Divorce” is the court process for legally dissolving a marriage. People who don’t want a divorce might choose instead to get a “legal separation.” In Wisconsin, the legal process for a divorce and a legal separation are nearly identical. However, at the conclusion of a divorce, the parties can eventually get remarried. After a legal separation, they cannot. This is why it is important to consult a divorce lawyer in Milwaukee regarding the divorce process.
Whether the parties request a divorce or legal separation, the court will have to address and resolve issues of custody, placement, and child support (if the parties have children) and also spousal support and property division. The court must consider approximately one dozen factors in each category when making a decision. For example, the court has to consider the length of the marriage, the parties’ earning capacities, their health status, their ongoing ability to communicate with each other and many more factors!
Sometimes parents need to determine custody arrangements without filing a divorce or paternity action. This can happen when the court does not have jurisdiction over the parties’ divorce or paternity action or perhaps when paternity and child support were adjudicated in another state and now the parties are in Wisconsin and need to set-up custody arrangements. In these instances, a party can initiate an “independent action for custody.”
An independent action for custody does not establish paternity or parenthood. Rather, it establishes both parents’ rights and responsibilities to make major decisions for the child and to see the child day-to-day. Family law matters should be discussed with experienced family law attorneys to better understand what steps must be taken and in which order.
In Wisconsin, “child custody” refers to a parent’s right to make major decisions for a child and has nothing to do with where the child lives day to day. “Placement” is the term that describes the amount of court-ordered time a parent spends with a child. “Visitation,” on the other hand, typically refers to the right of someone who is not a parent to see the child (such as a stepparent or grandparent).
Even if custody is not in dispute, there may be circumstances where someone wants to establish and/or define their right to see a child. In such circumstances, they would file an independent action for placement or visitation. If you need a legal team to assist you in this, contact Karp & Iancu SC today.
When parents already have established placement arrangements but one parent wants to move the child more than 100 miles away from the other parent, the moving parent may initiate an action for relocation. This is a special type of court proceeding to determine whether it is in the child’s best interests to relocate and, if so, to determine whether a new placement order should go into effect.
Again, this type of action is separate from a divorce or paternity action and is initiated independently—usually because the court does not have jurisdiction over related issues such as custody and placement or the parties’ divorce. It can also be initiated by a party (or the state) if the parties are married but living apart and one or both parties are not sufficiently contributing to the support of their children or spouse—thereby making them eligible to receive public assistance. In this instance, the state will initiate the action to force the parties to support each other and their children before the state is required to provide benefits.
Child support is an amount paid by one parent to the other toward the support of children who live with the recipient parent. Maintenance is support paid from one spouse to the other. And family support is a combination of child support and maintenance combined into one monthly payment. And independent action can be initiated in each category or can be combined into one request under multiple categories.
Another type of “action affecting the family” is an independent action for property division. This type of action is typically commenced when the parties were divorced elsewhere but have property located in Wisconsin that the original divorce court could not divide. In this instance, the parties, with the help of an experienced Milwaukee divorce lawyer can ask a Wisconsin family court to divide their property independent of the underlying out-of-state divorce action.
After any of the foregoing family actions result in a judgment, it is possible one or both parties may need to modify or enforce that judgment if circumstances change in the future. Actions to modify or enforce a judgment are also “actions affecting the family.”
Judgments in which a party waives his or her right to receive spousal support can never be modified. Judgments finalizing property division are also non-modifiable. However, those orders can be enforced if one party or the other does not comply with the court’s judgment.
Judgments setting terms for child support, child custody or placement can always be enforced and can also be modified if there is a “substantial change in circumstances” since the time the judgment was entered.
Sometimes unmarried people have children together and therefore do not have the usual protections under the family code that apply to married parents. For example, a woman’s husband is automatically determined to be the father of any child she gives birth to during the marriage. When parents are unmarried, the law automatically gives the mother sole custody and requires the father to establish his rights through a paternity action.
Paternity actions can be commenced by the mother, the presumptive or alleged father, even by the child or the State of Wisconsin. A paternity action will determine the child’s legal father and establish provisions for child support, custody, placement and possibly changing the child’s last name.
It may surprise you to learn that certain actions between family members are not actually “actions affecting the family.”
For example, adoptions and the termination of parental rights are not family actions. They are juvenile actions that take place in juvenile court. Very few family lawyers handle juvenile court claims.
Actions between unmarried cohabitants also fall outside the parameters of family law. For example, even if a couple has children together and reside in the same household, if they break-up, the family court cannot help them divide their property or resolve claims they may have against each other for contributions to the other’s accumulation of assets. These actions would proceed in civil court in actions akin to a small claims or large claims lawsuit. However, some family lawyers handle such claims.
To find out if you have a claim in an “action affecting the family” or to discuss other family claims you may have, talk to some of the best family lawyers who can guide you to the right process and the right result for your situation.
933 N. Mayfair Rd., Suite 300
Milwaukee, WI 53226
M – F: 6:30am – 8pm
Sa – Su: 7:30am – 6pm