Brief on Family Law

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Brief on Family Law

• COL Michael McKenna
• Jennifer Van Kirk

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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

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Support Obligations to Spouse/Children

• A Wisconsin Circuit Courts 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 Courts
  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

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General Wisconsin Placement StatutesAffecting
Service Members

• Wisconsins 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
  rightsBUT
• 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-mothers request to have placement of child
  while father was deployed

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General Wisconsin Placement StatutesAffecting
Service Members, cont

• 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 childrenand
  this means that non-deployed parent directs
  childs 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

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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 members home. Wis. Stats.
  767.41(4)(c)
• If a party is a service memberand 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
  Forcesthe 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 members discharge or release from active
  duty Wis. Stats. 767.451 (3m)

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General Tips Regarding the Protection of Service
Members 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

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General Tips Regarding the Protection of Service
Members Interests, cont

• Courts 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
  deploymentSCRA is a shield for Service members,
  not an impediment to proceeding

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Questions??