Wills, Trusts, and Estate Planning 

While you're living and healthy, you value being able to make your own decisions about your finances, property, health care, and raising your children. Should you die or become incapacitated, you hope others will handle these matters for you according to your wishes.

The only way to assure that will happen is through estate planning. The process involves weighing various personal and financial decisions and creating legal arrangements to carry out those decisions.

First, you should know that all trusts are written agreements that provide for property management. This management is provided by someone with a special position of responsibility and duty for the benefit of others. A revocable living trust (sometimes called a “living trust” or “revocable trust”) is a particular kind of agreement that you make that says how you want property you put into the trust to be managed and distributed. This trust agreement can be changed or revoked. The trust agreement involves at least three parties:

• the settlor or grantor (you, the person who creates the trust);
• the trustee (the person who agrees to accept your property and manage it as the trust directs); and
• the beneficiary (the person or people who will get the income from the property in the trust and, with your direction, the property itself).

You can name two or more people to act together as trustees. They are called “co-trustees,” because they must act together. Usually, you will name yourself – or you and your spouse – as the trustee because you want full control of the property. However, many people do name trusted friends or relatives, or a bank trust department as trustee. A revocable living trust in which you or a friend or relative is the trustee should always name a second person or bank trust department to act if the first trustee dies or otherwise is not able to continue to manage the property. This second person is called a “successor trustee.”

It is not necessary to put anything into the trust when you set it up. Such a trust would be an “unfunded” trust. An unfunded trust is intended for future use, such as an anticipated disability or old age. When you want to create a trust for future use you usually put only a small amount of money (such as $10) to start the trust. This trust will not do anything for you until later, when you decide to add more property to it. You might create this kind of trust as an alternative to a future guardianship or conservatorship. If you can’t take care of your own affairs your property is put into the trust later during your lifetime.

If you put a larger sum of money or stocks or real estate in your trust, it becomes “funded.” Now the trustee has something to do. The trustee manages the property as the trust agreement requires. The trustee pays the income to the beneficiaries you have selected. If you die, the people you have chosen will receive the property.

Some people put all or most of their property in the trust at the beginning. Others put some in at the beginning and add more from time to time (for example, when a certificate of deposit matures). Others may wait and transfer much of their property only when they die. To do this you would use a simple will – called a pour-over will. The pour-over will funds the trust with property that you did not put in the trust during your lifetime.

When you set up a revocable living trust, you are usually the first beneficiary. If you are married, you may decide to make both you and your spouse the first beneficiaries. If not the first beneficiary, you usually make your spouse the second beneficiary if you die first. In any event, you will want to choose the people whom you want to get your property after you die, so that the trustee will know what to do then.

What is a will?

A will is a written document that allows you to designate:

• who will receive your estate (your property that does not pass by beneficiary designation or joint ownership arrangement) after you die;
• who will raise your children if you die while they're still minors, and your spouse is unavailable to care for them;
• whether your beneficiaries receive their inheritance outright or in a trust; and
• who will serve as your personal representative - that is, the person who will pay your bills and taxes and distribute the rest of your estate to your beneficiaries.

When should I write a will?

If you have accumulated some assets, and you care who will receive those assets after you die, it's time to write a will.

Anyone with minor children definitely should have a will. In it, you can name the person you want to raise your children, should something happen to you and your spouse. Discuss this carefully with the prospective guardian, to be sure that he or she is up to the job. Also, name an alternate guardian in your will as a backup.

On the other hand, if you're a young adult, have no children, and own a few possessions, you probably don't need a will yet. The state would distribute your possessions to your parents. But if you'd rather leave your car to your girlfriend, or your prized Spider Man comic book collection to a favorite nephew, then a simple will is a good idea.

What if I die without a will?

In this case, the court appoints a personal representative who distributes your entire estate to your surviving spouse - unless you have children from outside your current marriage. In that case, your spouse retains half the marital property and receives half your individual property, with the rest of your estate split equally among all your children, from this marriage and outside it.

If you have no spouse or surviving children or descendants of children when you die, your estate goes to other surviving relatives. State law lists the order of inheritance as follows: parents, brothers and sisters, nieces and nephews, grandparents, and descendants of grandparents. The state school fund receives your assets if you leave no heirs closer than the descendants of your grandparents.

If you leave behind minor children and have named no guardian in the will, a court must choose a guardian. Ask yourself: Is that a decision you want someone to make for you?

Having a judge decide who will raise your children can be emotionally wrenching for other family members. Also, court-supervised guardianships entail extra costs. Avoid the upset and expense by naming a guardian in your will.

Finally, bear in mind that if you have no will, the court will appoint a personal representative to administer your estate. Having a will allows you to choose this person. Also, you can stipulate in your will that the personal representative need to post a surety bond, this saving money for your estate.

What types of property pass to your beneficiaries outside of a will?

These include:

• Survivorship and marital property - goes directly to a surviving spouse. An example would be a house that has both spouses' names (and only their names) on the title.
• Property that is jointly owned - goes to the surviving owner(s).
• Life insurance proceeds and funds in IRAs and other retirement plans - go directly to beneficiaries you listed on the appropriate forms.

If all your property falls into the above categories, and you have no minor children, you might think you have no need for a will. You may be right. On the other hand, a will may still be wise.

For example, both you and your spouse, or other joint owner, could die at the same time. A will would enable you to name alternate beneficiaries. Also, you could save on estate taxes, thus leaving more to your beneficiaries, by using a will to set up a trust.

What makes a will legal?

To be valid, your will must be in writing, and you must date and sign it. At least two witnesses also must sign the will. They can do this after they watch you sign it. If they weren't present then, you can state to them that the signature is yours, and then the witnesses can sign. The witnesses should not be beneficiaries named in the will or your heirs as designated by law.

Can I write my own will?

Yes, if you comply with the above-mentioned requirements to make your will valid. But if in creating your will, you encounter any questions or complexities you don't understand, it's a good idea to see your attorney. Remember, this document must spell out all the conditions for transferring your assets. And, if you have minor children, it names their guardian.

A will is an important document. You'll want to be sure it correctly expresses your wishes and that it's legally enforceable. A lawyer can give you advice about not only your will, but also other aspects of estate planning you might otherwise overlook.

How does someone challenge my will?

A person can attempt to prove in court that:

• you were under duress or undue influence when making your will;
• you were incompetent or unable to understand the results of your will when writing it; or
• your will does not meet the requirements that make it valid, as listed earlier

How can I change my will?

You have two options. You can simply write a new will, which automatically replaces an older one. Or you can add a supplement, called a codicil, to your existing will. For a codicil to be valid, it must satisfy the same legal requirements as those mentioned for a will.

Where should I keep my will?

Place your will where it's safe from theft, fire, or other damage. A safe-deposit box is one possibility. You also may deposit it with the register in probate for your county.

Be sure your personal representative knows where your will is. Some people also give a copy to their personal representative. You'd want to do this, for instance, if you include funeral preferences in your will. Usually the reading of a will doesn't happen until after a funeral. So you'd want your personal representative ti have a copy on hand, to be able to carry out your funeral wishes.

Is a will written in another state legal in Wisconsin?

To be valid in Wisconsin, the will must comply with the laws of one of the following: Wisconsin, or the place where you properly signed your will, or the place where you lived when you properly signed your will.

Be aware, however, that Wisconsin has a marital property law. if your will is from a jurisdiction with no such law, you should have an attorney review your will. That way you can assure it still achieves the results you intend.

What is a trust created by a will?

You can use your will to create a trust upon your death. The trust holds your property for another person's benefit. For example, a trust may provide an income for your spouse. Or it can hold property for your minor children until they become adults.

You name a trustee to oversee the trust. The trust can either be a trusted individual (a friend, a relative, or professional advisor) or a financial institution (a bank, brokerage firm, or trust company). The trustee is responsible for protecting the assets, paying out income earned, and terminating the trust as your will instructs.

What is a living trust?

You can create a living trust to control your property while you are alive. The trustee then would control your property after you die. Under this arrangement, you sign documents to give your property to the trust. As long as you're living, the property usually is treated the same for tax purposes as if you still owned it.

An advantage of a living trust is that property can pass to heirs after you die without going through probate. A drawback is that buying, handling, or selling assets held in a living trust may be more cumbersome while you're alive. Ask your attorney how a living trust would affect your property.

If I have a living trust, do I still need a will?

Yes. A will would be important for several reasons. You may have property that never got transferred to your trust while you were alive. You would need a will to transfer that property to your trust after your death. Or your estate might receive money after your death. For instance, if your death was the result of an accident, your estate may receive wrongful death benefits. Again, you would need a will to transfer this money to the trust.

You also need a will in order to name a personal representative. That's not part of setting up a living trust. A personal repsentative can take certain actions on behalf of your estate that a trustee cannot, such as pursuing a wrongful death claim.

 What is a durable power of attorney?

This authorizes another person, called an agent, to act for you in financial matters. The agent's rights to act on your behalf depend on what you say in your durable power of attorney document. These rights might include the authority to sign legal documents, pay bills, buy and sell real estate, and take other actions on your behalf. Choose a person you trust absolutely.

A durable power of attorney can take effect in one of two ways. If you wish, it can take effect immediately. Or you can provide that before the durable power of attorney takes effects, two physicians must state, in writing, that you are incapable of handling your affairs. The latter is called a "springing" durable power of attorney.

A durable power of attorney ends at your death. Your agent retains no further authority to handle your finances. If you want your agent to settle your financial affairs after you die, you need to name that operson as your personal representative in your will.

What is a durable power of attorney for health care?

This arrangement gives your agent the authority to make better health-care decisions for you when you're unable to make them yourself. This is a heavy responsibility for anyone to assume. Be sure you discuss your health-care preferences with your agent, so he or she knows what you'd want. This makes the agent's job much less difficult during what may already be a stressful time.

To create a durable power of attorney for health care, you can use the standard state form. Or, an attorney can create an individualized document for you. Either way, a durable power of attorney must meet specific requirements for it to be valid.

Can I have the same agent for both finances and health care?

Yes, one person can serve as both. If you feel you need to name two different agents, be sure they can work together. This would avoid a situation, for instance, in which your agent for finances could interfere with health-care decisions by refusing to pay certain medical bills.

What is a living will?

A living will is a separate legal document, not a part of your will. And, it's not the same as a durable power of attorney for health care. The latter allows your agent to make health-care decisions for you. A living will, on the other hand, allows you to state in writing your preferences about life-prolonging medical treatment.

In a living will, you can declare that you wish medical professionals to withhold or withdraw life-sustaining procedures or non-orally ingested food and water - if you are in an incurable condition, or you're near death, or you're in a persistent vegetative state.

Your living will takes effect only when you become incapacitated, cannot speak for yourself, and there's no hope for your recovery.

Your durable power of attorney agent also can make these sorts of end-of-life health-care decisions for you, if you grant that power. If you have both a living will and durable power of attorney for health care, the latter rules if there is any conflict between the two.

The current law regarding living wills went into effect November 25, 1991. If your living will was written  before then, you should have your attorney review it to be sure it still expresses your wishes.

I've been injured, now what?

• Motor vehicle accidents: Fault or “negligence” is determined by traffic regulations and which driver's carelessness contributed most to the accident and injuries, including your own conduct such as failure to use seatbelts.
• Commercial accidents (such as in stores): Injuries are compensable only if caused by an unsafe condition that the owner should have known of, appreciated, and corrected before the accident.
• Home/farm/apartment/recreation injuries: Renters, owners, or residents may be found liable for injuries they cause by negligent maintenance, oversight, or attacks by pets; however, property owners who permit others to use their land without charge for recreational purposes may be completely immune to any claim for unsafe conditions, however flagrant.
• Government employees and premises: Injuries caused by negligent public employees or unsafe conditions will be compensated only in limited circumstances and are subject to stringent notice and claim requirements. State, federal, and local governments are given broad latitude to determine most matters involving public safety, including the design and maintenance of roads, parks, and facilities.
• Workplace injuries: Injuries at work generally are covered by worker’s compensation benefits which compensate for medical expenses, lost wages, and permanent impairments, without regard to fault by anyone. If the accident was caused by someone other than the employer or a co-worker, a fault-based claim can be made that could include damages for pain and suffering in addition to the worker’s compensation benefits.
• Intentional injuries: Injuries inflicted on purpose by any means are not usually covered by the guilty party’s liability insurance, although the responsible party may be personally liable for such harm.
• Other accidents: More complicated rules determine if injuries caused by dangerous products, the accumulation of ice or snow, faulty professional services, or public utilities will be compensated. In addition, users of firearms, dog owners, and operators of restaurants, hotels, and public transportation may be liable for injuries they cause because the law imposes special responsibility for these hazards which your attorney can explain in more detail.

Which insurance policies will cover my costs?

Most automobile, homeowners and commercial liability policies contain “medical payments” coverage for medical expenses incurred after an accident without regard to fault. This coverage in auto policies applies to the insured family members and vehicle passengers, while homeowners and commercial policies cover only “others” or visitors to the premises.

Health, worker’s compensation, disability insurance carriers or HMOs usually will pay benefits arising from accidental injuries. However, if your claim against another person succeeds, then the insurance provider will probably require you to repay these benefits to them.

If the accidental injury is primarily your own fault, then only health insurance (such as through your employer), worker’s compensation, or medical payments coverage may apply.

Injuries caused by uninsured drivers are compensated by your own “uninsured motorist” coverage (if you have it) applying the same general rules as insured drivers, but often requiring arbitration for disputed claims.

Should I hire a lawyer?

If you know for certain that your injury is a minor one that will not result in time lost from work or school or substantial medical care, then you may want to settle it yourself in small claims court. (In Wisconsin, this court handles claims up to $5,000.) Of course, insurance claims adjusters generally try to settle claims inexpensively and on terms favorable to the insurer. If you have been seriously injured or are unsure as to the outcome of your injury, then an experienced personal injury attorney should always be consulted before yougive any statements or sign papers of any kind and as soon after the injury as possible. You should be able to discuss your claim and the potential fee arrangements with your attorney before you commit to legal costs.

Personal injury attorneys usually handle claims on a “contingent” or percentage basis depending on the type, difficulty, and expense of the case. Contingent fees can range from 20 percent for worker’s compensation claims to as much as 40 percent for difficult or complex cases. Contingent fee agreements must be in writing and include provisions for out-of-pocket expenses, which typically are paid by the attorney but paid back from any recovery, in addition to the fee for the attorney’s services.

How long do I have to decide?

The law requires you to settle your claim, start a lawsuit, or give special notice within limited times after the injury. The time you have to take action depends on the person or entity that caused your accidental injury. Some Wisconsin statutes of limitation and notice requirements illustrate the complexity and variety of these rules:

• Injury generally – 3 years
• Claims against city/county/school employee – 120 days
• Claims against state employed physicians – 180 days
• Claims under a fire insurance policy – 1 year
• Worker’s compensation claim – 2 years notice to employer, 12 years to file claim.

If you have any doubt about the statute of limitations or notice required you should consult an attorney. Other states may have shorter or more stringent limitations.

What is my claim worth?

A claim is valued and usually settled based upon an estimate of what a jury would likely regard as fair and reasonable compensation given the severity of the injury and the effects of the accident on your life, as well as the probability that a recovery against the wrongdoer is warranted. In addition to medical expense and wage loss, you are entitled to money damages for “personal injuries,” including pain, suffering, and loss of enjoyment of life. Your attorney may point out additional damages authorized in special cases such as dog bites or flagrant misconduct.

Severe injuries requiring substantial medical treatment, extended absences from work, and permanent physical or mental impairments may command substantial compensation. Juries tend to believe that injuries that cannot be seen or demonstrated objectively are susceptible to exaggeration by the party seeking money damages, and insurance claim personnel tend to appreciate that fact.

When it comes time to settle a claim, both sides should have a clear “before and after” picture of the injuries and how they have affected the victim’s life. The “difference” is the value of the claim. For example, a previously healthy, productive, young worker injured severely by an obviously culpable defendant will demand substantial compensation, especially where the victim has undergone substantial medical care, extended loss of earnings, and is facing a future of impaired earning capacity, disfigurement, pain, and suffering. On the other hand, the claim of an older person injured in questionable circumstances resulting in complaints that can be established only by the word of the claimant may be substantially discounted both by a jury and a claims adjuster.

If the injured person is found partially at fault for the accident causing the injury, then the amount of damages will be proportionately reduced; likewise, if there is a substantial chance that the claim will not succeed for any reason, then any pretrial settlement will be reduced in most instances.

How and when will my claim be settled?

If the person responsible for your injury has insurance, an insurance adjuster will gather and try to verify the necessary medical treatment records, medical expense, and wage loss information and what permanent impairments have been caused by the accident. If the insurance company makes an offer that you (and your attorney) find acceptable, then the claim process is over. If no acceptable offer is made, then you may file a lawsuit. During the early months after a lawsuit has been filed, both sides can conduct depositions and other “discovery” to obtain more detailed and exacting proof about the nature of the claim.

As the trial date approaches, both the claimant and the insurance company usually take a closer look at the elements of the claim and available evidence to support it, and may try to settle the matter by informal discussion, mediation or pretrial conferences with the judge. Although about 95 percent of injury claims settle before trial, one cannot know in advance which claims will require a trial before a judge or jury for resolution. Once a claim is put in suit, it typically takes six to 18 months to resolve.

Buying and Selling Real Estate

 What can an attorney do for a seller?

A lawyer can protect the seller's interests in the sale process by:

• writing or reviewing listing contracts and offers; and advising on issues related to sale;
• helping satisfy conditions to the offer and resolving problems that arise;
• drafting deeds, transfer returns, and other transaction documents; and
• reviewing financial arrangements and assuring obligations are met at closing

What can an attorney do for a buyer?

The buyer's attorney can make sure the buyer receives what the contract provides by:

• drafting or advising on buyer agency agreements and offers, including conditions and contingencies added for buyer's protection;
• examining a seller's title (abstract or title insurance commitment) and explaining the documents affecting that title;
• answering legal questions about the property and its purchase including options for holding title;
• checking the note and mortgage, deed, and other documents; explaining the buyer's legal rights and obligations under them at closing; and
• reviewing title after closing to make sure all legal requirements have been met.

Can't the real estate agent handle the transaction?

Real estate agents are prohibited by law from giving legal advice and representation. In Wisconsin, real estate agents act as intermediaries in a sale or purchase but can't advocate for either side nor provide legal advice.

In many transactions no real estate agent is involved. In those transactions the attorney should be more deeply involved in the negotiation and drafting of the offer and seeing the transaction through to closing.

Should the same attorney represent the buyer and seller?

It's not a good idea. The buyer and seller have conflicting interests in a real estate transaction. There also may be other parties to the transaction (the lender and title company, for example) and their attorneys represent their interests, which are not the same as the buyer's and seller's interests.

How important is the offer to purchase?

The offer to purchase is critical. Buyers and sellers should seek legal assistance in dealing with it. The offer is a legally binding contract when both parties have signed it and its contingencies are met. Contingencies (such as financing or property inspection) protect the parties by setting conditions that must be resolved before the sale is completed or "closed."

The offer establishes what property will be soldm what it will cost, when the sale will close, how closing costs will be allocated, and the other terms of the transaction. It also determines if the buyer's earnest money will be forfeited or returned if the sale does not close.

Many offers include a contingency for attorney approval. This allows the attorney to review the offer and recommend changes to it to assure the contract is valid and the parties' interests are protected.

What information is available on the property's condition?

An offer to purchase includes representations about the property and often contains a contingency to allow the buyer to have the property inspected and to cancel the offer if major defects are found. Professional home inspectors, regulated by the state, provide this service for a fee. For most residential property, the seller must provide a condition report disclosing defects of which the seller is aware and a disclosure regarding lead-based paint. Some property is sold in "as-is" condition, which makes the buyer's inspection even more important. Real estate licensees also must inspect the property and disclose defects. Nonresidential property transactions also may include property condition reports as a contingency. Parties should discuss property disclosure issues and questions with their attorneys. The amount and quality of information that the parties have will help assure the fairness of the transaction and prevent later problems.

How do you hold title to real estate?

Individuals and entities (such as corporations or limited liability companies) may own property individually or with another person as tenants-in-common or joint tenants.

Married couples living in Wisconsin are subject to the Marital Property Act, which affects how title is held. Under that law, property may be: individual  property of one spouse; marital property (owned in equal shares by the spouses); or survivorship marital property (marital property with a right of the survivor to full ownership when the first spouse dies). Couples who owned property before the Act went into effect (1986) may hold it individually, in joint tenancy, or in tenancy-in-common, or may change the title to one of the options described above under the Act.

Management and control of the property (including the right to sell) is given to the spouse who has the title as shown on the public records except for "homestead" property (generally the couple's primary residence). For homestead property, both spouses must sign deeds and most mortgages affecting it.

An unmarried couple may own property together as tenants-in-common to joint tenants, but it is advisable for them to have an attorney prepare an agreement spelling out their respective rights and obligations in regard to the property.

Does a buyer need title insurance?

An attorney can help the buyer determine whether to ask for title insurance of an abstract and title opinions. Most lenders require title insurance, even though it may cost less to use an abstract, if one exists. The lender may require title insurance regardless what the offer to purchase says. Buyers should contact a lender before writing the offer to purchase to determine the lender's requirements.

What's the difference between a warranty deed and a quit claim deed?

A warranty deed "warrants" or guarantees that the title is free of all title claims against the property except those mentioned in the deed. A quit claim deed transfers what title the seller has (if any), without such guarantees.

What legal issues are involved in financing?

Financing is the key to most real estate transactions. Financing provides the funds necessary to make the purchase. There are several financing options, and an attorney can help a buyer evaluate them. Buyers may wish to seek loan prequalification to help evaluate what they can afford.

Buyers usually get financing from a commercial lender - a bank, savings institution, or the like. To make sure the loan is repaid, the lender will take a mortgage on the property purchased. The lender also will look into the buyer's finances and credit history, and may require mortgage insurance. If any problems arise, an attorney can help work them out.

The documents surrounding a mortgage can be very complicated. Buyers should seek legal assistance to understand these documents and be sure their rights are protected under them.

What is a land contract?

A land contract is used when the seller finances the buyer's purchase of the property. Rather than paying the entire purchase price at closing, the buyer pays the seller in installments and receives a deed when all payments are made.

For the buyer, the land contract may be the only financing available depending upon economic conditions, the type of property, or the buyer's creditworthiness. A land contract may have a small down payment, fewer closing costs, and even a lower interest rate than a mortgage. Often a land contract will have a short term and involve a lump sum (balloon) payment of the balance when the buyer's equity will allow mortgage financing of the property. For the seller, land contract financing may be the only way to put the sale together.

Enforcement of a land contract is somewhat easier than a mortgage, but the seller assumes the risk that it will have to retake the property and resell it.

The land contract is a flexible financing instrument that involves detailed negotiation. The parties need good legal advice to assure that the land contract reflects their arrangements and that their interests are protected.

When can a lender foreclose on a property?

A significant breach, such as failing to make payments or damaging the property, will allow the lender or land contract vendor to foreclose. Foreclosure terms are stated in the mortgage or land contract. Foreclosure may result in the sale of the property and loss of the buyer's interest in it.

Under state law, the buyer may have the right to be notified of his or her breaches and to correct them. Because different provisions apply in different circumstances, buyers should see a lawyer if they have been threatened with foreclosure.

Does the purchase and sale process vary with the type of real estate involved?

The basic process remains the same regardless what type of real estate is involved in the transaction, but certain elements may have greater or lesser importance. There are things to consider in buying or selling a farm that differ from those involved in a resort condominium unit, a factory, a home, or an investment property. An attorney can help assure the different elements of the transaction are fully considered.

What do owners need to know about building a home?

Building, remodeling, or adding on to a home or property involves additional contracts that an attorney should review and negotiate on the owner's behalf. The owners must decide what they need and can afford, which often requires the help of an architect or engineer with whom the owner will have a contract. The owner and the builder will need a construction contract covering what is to be built, changes to the plans, performance standards for the builder (including time for construction and delays, and warranties), and costs and extras. The owner may need a construction or home equity loan. Construction can be exciting and satisfying if the rights of the parties are clearly spelled out and fully understood.

Custody and Placement

Society has created many laws regarding the respect and treatment due children. Custody and placement laws are based on the assumption that children are healthiest and happiest when they have a good relationship with each parent. When parents are getting a divorce or paternity judgment, the law requires that the court must make provisions for parental decision-making as well as periods of physical placement with each parent.

Because children's well-being depends on the quality of the relationship with both parents, it is important that al parents understand the legal terms, laws, and court orders regarding their children.

What is legal custody?

Legal custody is the legal right to make major decisions concerning your children. Major decisions include such decisions as elective health care, choice of school, choice of religion, consent to marry, consent to obtain a driver's license, and consent to enter the military service. Other types of decisions can be included as major decisions upon agreement or order of the court. Order can be for joint legal custody or sole legal custody. Legal custody is different from physical placement (see below).

What is the difference between joint legal custody and sole legal custody?

Joint legal custody between parents means that both parents have the equal right to make major decisions concerning their children. Neither parent's right to make major decisions about the children is greater than the other parent's right.

Sole legal custody means only one parent has the right to make the major decisions concerning the children. (The court can also order that one parent or the other has the sole right to make certain types of decisions, such as health care.)

What happens if we have joint legal custody and can't agree on a major decision?

Neither parent has the superior right to make a major decision. Family courts encourage parents to make major decisions together, because otherwise you each could make decisions that contradict the other. For example, if you couldn't agree on which school to send your children to, one of you could enroll the children in one school and the other could enroll the children in another school. You could then send the children to one school one day and the other school the other day. This obviously is not good for the children.

Instead of each parent insisting on the exclusive right to make decisions, it is better for the children if parents try to resolve the disagreement. One good way to resolve a disagreement regarding a major decision is for both parents to discuss the matter with a mediator. A mediator can help you reach a decision that addresses both parents' concerns. Most counties provide at least one mediator to help people through situations like this. For more information, call your county's Family Court Commissioner office or Clerk of Court.

If you are unable to come to an agreement in mediation, then you may file a motion to ask that the court decide who gets to make the decision. You would each present your arguments to the court and, after hearing the arguments (and maybe appointing an attorney to represent the children's best interests), the court would choose which of you would get to make the decision. Many people prefer not to have the court make the decision, however, because then neither parent  has control over the outcome. Going to court is costly and time-consuming as well.

What is physical placement?

Physical placement is the time that the children are with you (or in your care) during which you have the right to make the routine daily decisions regarding the children's care.

Most court orders provide a placement schedule of the times the children are to be with each of you. Some court orders are very detailed, including the time when placement of the children switches from one parent to the other. Other court orders provide that the children are to be placed with one parent most of the time, and with the other parent at reasonable times upon reasonable notice or as agreed upon by the parents. Parents with significant or ongoing difficulties in enforcing placement times usually benefit from specific fixed schedules.

What decisions are considered routine daily decisions?

Many routine daily decisions arise in the course of raising a child. These include bedtime, study time, diet, extracurricular activities, social activities, discipline, and so forth.

Legally, the right to make routine daily decisions belongs to the parent during his or her placement time. The only legal restrictions on the parent making routine daily decisions are that the decisions:

1. must be consistent with any major decisions that have been made under the legal custody provisions; and
2. must not break any laws regarding safety.

Whatever the legal rights of the parents are, children to best when parents can agree to similar rules and routines in both households.

Also, while the other parent has no legal control over what goes on in your home, it is often helpful for everyone to come to an understanding that you will each respect the other's right to know about your children. Both parents benefit from knowing that the children are safe and well-cared for, and the children benefit by having two parents coordinating their upbringing.

What are my rights to information about my children?

Every parent has a right to their children's school, medical, and dental records. The only exception to this rule is the parent who has  been denied any visitation or physical placement with the child by the court.

How can I get information about my children without relying on the other parent to give it to me?

To get school, medical, and dental records (including report cards, notices of parent/teacher conferences, health notices, prescription information, and so on), you may contact the school or doctor directly. They are required to provide you with this information under section 767.27(7), Wisconsin Statutes. You may want to provide the school and doctor with self-addressed stamped envelopes to make it easier for them to send you copies of records. There may be a fee for copying the records.

What happens if the other parent won't let me see my children?

First, find our the times that the court order states the children are to be with you. If the order provides for specific times, you may want to remind the other parent of this order or give the other parent a copy of the order. If the order does not provide for specific times, you may want to ask the court to change the order to provide for specific times so that your rights to see your children are clarified.

If the other parent still does not let you have the children during the times the order requires, you may ask the court for help in enforcing the order. You may do this by filing a "Petition to Enforce Physical Placement Orders" or an "Order to Show Cause for Finding of Remedial Contempt." Most counties will have forms you can fill out in order to bring these motions. Ask your county Family Court Commissioner office or Clerk of Court for more information. Some of these forms can be obtained online at www.wicourts.gov.

What is a "petition to enforce physical placement"?

A petition to enforce physical placement is a request to the court for help in enforcing a placement order. When you submit a properly filed petition, a hearing will be scheduled. The court also may appoint an attorney (called a guardian ad litem) to investigate and represent the best interests of your children. At the hearing, you and the other parent (and the guardian ad litem, if one has been appointed) each will have a chance to present evidence to support your positions.

If the court finds that the other parent has, without a good reason, either intentionally denied or interfered with your court-ordered time with your children, the court must give you additional placement to make up for the missed time. Additionally, the court must award you a reasonable amount of costs and attorney fees.

In addition, if the court feels it is necessary, the court also may:

1. make a more specific placement schedule;
2. find the other parent in contempt;
3. issue an injuction ordering the other parent to follow the placement schedule or be subject to fines or imprisonment.

What is an order to show cause for remedial contempt?

An order to show cause for remedial contempt is another type of request to the court for help in enforcing an order. Upon submission of a properly filed request, a hearing will be scheduled. You and the other parent each will present evidence you may have to support your positions. If the court finds that the other parent has, without good reason, failed to follow a court order, that person will be deemed to be in contempt. The court then will decide what sanctions are appropriate, such as a payment to compensate for loss, imprisonment up to six months in jail, a fine of up to $2,000 for each day the contempt continues, or anything else the court finds appropriate.

The sanction will not happen right away, however. The court is required to give the other parent a last chance to start obeying the court order (and often make up for the past failure to abide by the order). This opportunity is called the purge. If the parent does not satisfy the purge conditions, however, then the sanction will be imposed against the parent.

What if my order does not specify times the children are to be placed with me?

If the order does not provide specific times for placement, you may want to have the order changed to provide for specific times.

How do I get an order changed?

There are two main ways to get an order changed.

The first way is to come to an agreement with the other parent. Put the agreement in writing and ask the court to approve it. Courts will approve most agreements for placement, as long as the agreement appears to be reasonable and voluntary. However, unless the court approves an agreement, it is not an order and the parties are not required to follow it.

If you and the other parent have difficulty in reaching an agreement, a mediator may be able to assist you. Most counties provide a mediator to assist people in resolving disputes regarding their children. You may get information about your county's mediator(s) by calling your county Family Court Commissioner or Clerk of Court.

The second way to get an order changed is to file a "Motion to Change the Placement Schedule" to ask the court to make a new order. Upon submission of a properly filed motion, the court usually will appoint an attorney (called a guardian ad litem) to represent the children's best interests. The court will also ask a trained expert to investigate and recommend the specific placement schedule that is in the children's best interests. This investigation can take several months to a year.

After learning the placement schedule recommendations of the guardian ad litem and expert, and before the hearing is held, some people come to a written agreement. Most agreements are adopted by a court. If the parents and guardian do not reach an agreement, then the court will schedule a hearing, at which the parents and guardian ad litem will present evidence. After the hearing, the court will make a decision based on the evidence presented.

If your placement schedule does not have specific days and times for you to see your children, and the other parent won't let you see your children at all, you may also file a petition to enforce physical placement.

What if I don't think it is good for the children to be with the other parent or step-parent?

It is best to discuss your concerns with the other parent and try to work something out that is mutually acceptable. Remember, while parents have the legal right to determine what occurs inside their home (as long as it is consistent with the major legal decisions and the children's safety), it usually is better for children if both parents are sensitive to the other's concerns and work together in sharing information and routine decision making. Of course, while good for the children, this may not be easy for parents to do, especially when one or both have new partners.

If you continue to have concerns that are unaddressed, you may request the assistance of a mediator to deal with those concerns. You may request mediation by contacting your county's Family Court Commissioner or Clerk of Court.

If mediation does not resolve your concerns, you may file a "Motion to Change the Placement Schedule." However, if the sole basis for your motion is that you do not like the other parent's parenting style, this motion will be difficult to win. The court will find, absent evidence of actual harm, that it is  best for children to have a substantial relationship with both parents.

What will happen if I refuse to let the other parent see our children?

If a court order provides certain times that the children are to be placed with the other parent, and if you violate that order, you could be held in contempt of the court. Or the court could grant the other parent relief under a petition to enforce physical placement. Additionally, you may be charged with committing a felony crime, depending on the circumstances of your situation.

There are certain situations when it might be justifiable to violate a court order: for example, to protect you or the children from immediate abuse or harm. However, it is advisable to speak to an experienced family law attorney before intentionally disobeying any court order.

What happens if the other parent refuses to take our children as provided in the order?

It is difficult to force a parent to spend time with children if the parent does not want to. If a parent is not taking the children for placement as provided in the order, you may want to ask the other parent why and whether there is any problem that could be worked out so the parent could take the children as provided in the order. Or maybe the order could be changed to accommodate changes in your lives since the order was last made.

However, if the other parent still refuses to take the children for placement as provided in the other, and if you lose money as a result, you may file a petition to enforce placement orders to require the other parent to pay you the money you lost. You will need to provide to the court how much money you lost, that other parent intentionally failed to take the children as ordered, that the failure was "unreasonable," and that the parent didn't give you "adequate notice" that he or she would not be taking the children. The court decides what is "unreasonable" and what is "adequate notice" depending upon the specific circumstances of your case. A failure that would be "reasonable" would be that the care broke down on the way to placement or a medical emergency suddenly arose. "Adequate notice" might be considered enough time to find a babysitter.

If a parent "repeatedly" and "unreasonably" fails to take the children as provided in the court order, you may file a motion to change placement and ask the court to order a placement schedule consistent with what is actually happening. (Again, the court decides what is "repeatedly" and "unreasonably" depending upon the specific circumstances of your case.) This is especially appropriate in cases in which a child support order has been reduced based on the children spending significant time with the child support payer. If the placement order is changed, you can, with a properly filed request, ask the court to change the child support order accordingly.

Where can I get further information?

If you have specific questions about how to raise your children in cooperation with the other parent (often called "co-parenting"), you may want to talk to a private counselor or therapist trained in divorce issues, or with a Family Court Commissioner office (if available in your county).

For more information about the law, you may talk to an experienced family law attorney. Only an attorney can review the facts of your situation and give you legal advice. You may also want to hire an attorney to file motions or orders to show cause for you, although many county courthouses have "do-it-yourself" papers.

Marital Property

A sound marriage is a partnership of equals. That idea is the basis for Wisconsin’s Marital Property Act, enacted in 1986. The law presents benefits and pitfalls. This brochure examines both. Below you’ll find answers to several commonly asked questions about the Marital Property Act. It’s a complex law, full of exceptions. The intent here is not to present legal advice, but rather to cover a few basics to acquaint you with the law. Individual situations vary. If you have additional questions, talk to your lawyer.

Why was the Marital Property Act passed?

The law recognizes that both spouses contribute to supporting a marriage — even if only one earns a salary, or if both draw an income but one earns more than the other. The law says that whatever the couple acquires during their marriage should belong to them equally. This translates into certain advantages. For example, a nonemployed spouse has easier access to credit, and each spouse can make individual decisions about bequeathing assets (more on this later).

What is marital property?

Marital property includes all income and possessions a couple acquires after their “determination date” (with certain exceptions). The determination date is the latest of: the couple’s marriage day; the date when they both took up residence in Wisconsin; or Jan. 1, 1986.

Two concepts bear special mention:

• Survivorship marital property – This passes directly to the surviving spouse upon the other’s death. It does not pass under a will. An example would be a house that has both spouses’ names (and only their names) on the title.
• Deferred marital property – This is a tricky concept; a brief explanation must suffice here. This term applies to property that would have been classified as marital property except that it was acquired before the couple’s determination date. Say a couple moved to Wisconsin in 1995. All the property they brought with them did not automatically become marital property just because they moved to Wisconsin. But if one spouse dies, the survivor may have rights to a certain amount of money, based on the value of what would have been marital property if the Marital Property Act had been in effect during the entire marriage. The upshot is that the surviving spouse in this situation has some economic protection, even if not the beneficiary of the other’s estate.

Can I still have property that's my own?

Yes, you can have individual property. Usually this is property you owned before marriage. A personal gift or inheritance, no matter when received, also is individual property. For an item to be individual property, however, you must have records that prove it belongs solely to you. Otherwise the law presumes that all property owned by spouses is marital property, belonging to both of you equally.

Simply having only your name on the title to an item does not make it individual property. The spouse named on the title does, however, have the right to manage and control that property. The law requires the titled spouse to treat the nontitled spouse fairly if the item is marital property.

Can individual property unintentionally become marital property?

Yes. During a marriage, individual and marital property can get jumbled together. The law presumes this mixed property to be entirely marital property, unless records prove that some portion is individual property.

For instance, say you had a savings account before you were married. Over the years, you deposit portions of your paychecks, which are marital property, and the account continues to earn interest. You often withdraw money to pay family expenses. That account has become mixed property and at least partially marital property. It becomes extremely complicated to trace a portion of that account as individual property because multiple deposits, interest earnings, and withdrawals have moved in and out of that account during the marriage.

Another example: You’ve owned a summer cabin since before you were married. After marriage, your spouse builds an addition to the cabin, without receiving compensation for his or her labor. That extra room boosts the cabin’s value. The amount of increased value is marital property, even though the cabin’s original value could remain individual property, if documentation so proves.

On the other hand, suppose you owned 100 shares of stock before you were married. You buy no more shares during your marriage, and the stock grows in value due to market changes. That stock, along with its increased value, remains individual property.

It bears repeating: If you wish to maintain an item as individual property, you must have records to trace the ownership.

What are the credit implications of this law?

The law makes it easier for a nonincome-earning spouse to get credit. When deciding one spouse’s creditworthiness, the creditor must consider the value of all marital property, including the other spouse’s income.

But the Marital Property Act also presents some risks. Debts you incur during marriage are presumed to be in the interest of your marriage. To collect on such a debt, a creditor can go after not only the debtor’s individual property, but also all marital property. For example, if one spouse borrows money and then becomes unemployed and can’t pay the debt, the creditor can garnish the other spouse’s paycheck.

If you and your spouse are prone to disagree on credit matters, consider entering into a marital property agreement. This could limit each spouse’s liabilities for the other’s debts. But you must give a creditor a copy of such an agreement before obtaining credit.

How does this law affect my will?

Upon death, your estate will consist of your individual property plus half of all marital property. You may leave your estate to whomever you choose. A word of caution, however. Suppose you leave everything to a charity. The charity would inherit your individual property, plus half your marital property. The latter could include half of property still half-owned and used by your surviving spouse, such as the family car. Your surviving spouse would end up co-owning the car with a charity, which may not be what you had in mind. Be sure your bequests are exactly what you intend.

What if I have no will?

In this case, your entire estate goes to your surviving spouse, unless you have children from outside your marriage. Then your spouse gets half the marital property and half of your individual property. The rest of your estate goes to your children, both from this marriage and from outside it.

How does the law affect life insurance and retirement benefits?

People often pay into life insurance and deferred retirement plans before and during a marriage. Thus, special formulas exist to calculate which portions are marital or individual property.

You should name beneficiaries for life insurance and deferred retirement benefits. Then these assets can pass directly to your beneficiaries, rather than by a will. For life insurance, if you name someone besides your spouse as beneficiary, your spouse still may have a marital property claim to part of the death benefit. Keep this in mind if you wish to name children from another marriage as life insurance beneficiaries.

A spouse has a marital property interest in the other spouse’s deferred retirement benefits — but only while alive. In other words, the spouse who dies first can’t will away half of the survivor’s retirement benefits.

Can I give away marital property?

One spouse may give away marital property to a third party, if that spouse’s name is on the title. If both spouses agree to the gift, it can be of any value. But if one spouse disputes the gift, and its value is more than $1,000 (or a larger “reasonable” amount based on the couple’s economic situation), that spouse can go to court to void the gift.

What if my spouse and I disagree about marital property?

If you have disagreements you can’t settle, you could go to court to seek legal remedies. Among others, these include:

• recovering property the other spouse gave away to a third party, if that gift exceeded the limit described above
• having your name added to a property’s title, so you and your spouse have joint management and control rights over that property
• removing a spouse’s name from a title, to limit his or her management and control rights
• asking for an accounting of your financial situation

How does the law affect divorce?

It doesn’t. The Marital Property Act applies during marriage and upon a spouse’s death. Wisconsin has other laws that cover the division of divorce property.

Should we consider a marital property agreement?

You and your spouse may want such an agreement if you disagree on credit matters. A marital property agreement can serve other purposes, as well. Perhaps you both wish to avoid the marital property system. You’d rather keep some or all of your property separate, as individual property. Or, you may wish to have some or all of your individual property reclassified as marital property.

Thus, a marital property agreement allows you to either opt into or out of the marital property law. Deciding if either is a smart move for you depends on such factors as your tax situation and estate planning needs. An attorney can help you sort out the best options and also draft the agreement. Or you may be able to use the statutory form agreements. Either way, the agreement must be in writing, and both spouses must sign it voluntarily.

If you seek legal help to draft the agreement, you may be able to hire one attorney on both spouses’ behalf. But if the agreement would seriously affect one spouse’s property rights, it’s best for each of you to have your own lawyer.