Brief on Family Law - Wisconsin Service Member Support Division

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Transcript Brief on Family Law - Wisconsin Service Member Support Division

Brief on Family Law

COL Michael McKenna Jennifer Van Kirk

General Wisconsin Statutes Which Can Affect Service Members Financially  Wisconsin Statutes § 767.511

 Child Support Statute  Child Support Guidelines  Shared Placement Formula   Straight Child Support Guidelines Wisconsin Statute § 767.56

 Maintenance Statute  Wisconsin Department of Children and Families Regulations  “Gross Income” includes military allowances, per diem (except per diem used to pay expenses), veterans’ benefits, and disability income

Support Obligations to Spouse/Children  A Wisconsin Circuit Court’s determination on support owed to spouse/children trumps any obligation ordered by command  If Court orders no support, then none is required despite Army/Air Force regulations  If Court orders support in excess of support required by Army/Air Force regulations, the Service member must comply with the Court’s orders  Support cannot be revised retroactively; Wis. Statutes § 767.59

 The Court may not revise the amount of child support, maintenance, or family support that has accrued prior to the date that notice of the action is given to the other party

General Wisconsin Placement Statutes Affecting Service Members  Wisconsin’s Family Code, Wisconsin Statutes Chapter 767, includes provisions which can affect Service members  Wis. Stat. § 767.43

 Under Wis. Stat. § 767.43, grandparent, great-grandparent, stepparent or person with parent-child relationship may receive visitation rights…BUT…  Interpreted by the Wisconsin Court of Appeals in Lubinski v. Lubinski, 2008 WI App 151  Placement rights cannot be enforced in Service member's absence; Court of Appeals denied step-mother’s request to have placement of child while father was deployed

General Wisconsin Placement Statutes Affecting Service Members, con’t  The Wisconsin Supreme Court found that “a parent cannot delegate his visitation rights to others in his absence.”  Parents have a liberty interest in directing the care, custody and control of their children…and this means that non-deployed parent directs child’s placement  Potential wiggle room: if parent completely denies placement to step-parent and/or extended family who had parent-child relationship  Court can order electronic communication with children, which typically includes phone contact and/or web cameras

Specific Statutes to Protect Service Members’ Rights in Family Law  When determining allocation of placement, “the Court may not consider as a factor in determining the legal custody of a child whether the service member has been or may be called to active duty in the U.S. armed forces and consequently is, or in the future will be or may be, absent from the service member’s home.” Wis. Stats. § 767.41(4)(c)  “If a party is a service member…and the Court modifies an order of physical placement on the basis that the service member has been or will be called to active duty in the U.S. Armed Forces…the Court shall require in the order that the allocation of periods of physical placement and, if applicable, the physical placement schedule that were in effect before the modification are reinstated immediately upon the service member’s discharge or release from active duty” Wis. Stats. § 767.451 (3m)

General Tips Regarding the Protection of Service Member’s Interests  DNA Testing in paternity cases recommended  Protection of gear in complex/difficult family cases  Service member may wish to seek family court ruling, in the event military regulations provide for support in excess of amounts which would be ordered by family court  Exercise extreme caution with Power of Attorneys  Family Care Plan not applicable in Wisconsin Circuit Court decisions

General Tips Regarding the Protection of Service Member’s Interests, con’t  Court’s treatment of direct deposits  Absent Court Order, typically legal and wise to deposit into a separate account, especially in the event of a spend-happy spouse  Division and treatment of pensions  10/10 rule  Valuation of military pensions  Service members can initiate proceedings during a deployment—SCRA is a shield for Service members, not an impediment to proceeding