Mediation FAQ's

Every county in Wisconsin must provide mediation to couples who have not agreed on custody and placement. Both must attend at least one session unless the court finds that attending will endanger the health or safety of either spouse. Attorneys usually don’t attend.The mediator will not address property settlements, maintenance or child support. When you finish, the mediator will prepare an agreement which their attorneys will review. If everyone agrees, it’s made part of the final judgment. If you don’t, the court will appoint a guardian ad litem to help determine the child’s best interest.

In addition to the mediation that counties provide, there is also private mediaton where parties can resolve all the issues in their divorce. This includes financial issues such as child support, spousal support, and dividing property (including real estate) to name a few Some people use private mediation for issues that arise afterwards such as when one must relocate for a job. Private mediators generally charge more than through the county. There is no administrative regulation of mediators in Wisconsin. When seeking a private mediator, it is critical to ask about training, experience and what their clients have said.

Legal advice is giving a legal opinion on the law as it applies to a specific factual situation. It involves analyzing the facts and advising a person to act based on the applicable law. Only lawyers should give legal advice. Even a lawyer should not give legal advice when acting as a mediator.Mediators can give broad information relating to the issues and options if the parties ask. Mediators will not advise either do or request a specific settlement. Mediators will ask questions to help people figure out what they want as well as their options

Couples only need to agree that they want to try mediation.  They do not have to agree on anything else. In fact, they can disagree on how to divide their property, how to share their children and every other issue.Many people want to settle their issues before mediation but it is not needed and can hurt the process. Once you agree, we’ll set up a date for your first session.

People can hire an attorney if they want someone to consult and advise them about the issues, their rights and possible divorce outcomes for them before and during mediation.Attorneys can be very helpful consulting in between sessions. They can also be available  by phone to answer questions during sessions. Less often, attorney can also help parties by participating directly in the sessions. When one person wants to bring their attorney to a session, the other will almost always request that as well.

Private mediation can help parties improve their communication and reduce stress for their children. Researchers have looked at thousands of people and know specifically which factors will increase the risk of problems for children of divorce. But to ensure the best adjustment, you would want to minimize these factors:Their exposure to conflict and arguments (including a “cold war”)

Losing significant contact with a parent.
Mental health problems that affect parenting
Increased stress of moving, new significant others, etc.
family financial hardship with either parent

Often a husband and wife agree on custody and placement. If not, the judge determines custody and placement in light of the “best interests” of the child(ren).In making this decision, the judge considers testimony and other evidence presented in a trial. Important considerations include: reports of appropriate professionals; the wishes of the child and the parents; the interrelationships of the child with parents, siblings and others who may affect the child’s best interest;the child’s adjustment to the home, school, religion and community; the parties’ mental and physical health; availability of child care services; whether one party is likely to unreasonably interfere with the child’s continuing relationship with the other party; and any other factor the judge deems relevant.

Joint custody means that both parties maintain parental control and have the right to participate in decisions regarding medical care, religious training, choice of schools the child(ren) will attend, and so forth. Joint custody does not necessarily mean equal physical placement.The court can order joint legal custody if it seems in the child(ren)’s best interest and if either of the following applies: both parties agree to joint legal custody; or the parties don’t agree to joint legal custody, but one party requests it and the court specifically finds that both parents can meet parental duties and responsibilities and want an active role in raising the child(ren);there are no conditions that would interfere with the exercise of joint legal custody; and the parties will be able to cooperate in decisions regarding the child(ren). However, if the court finds that either party has engaged in a pattern or serious incident of inter-spousal battery or domestic abuse, there is a presumption that it is detrimental to the child to award sole or joint custody to that parent.

If you have children, there may be some limits on where you can move after a divorce with the children. There are important rules regarding: removing a child from the state for longer than 90 days (in some cases, for longer than 14 days); and establishing residence outside the state, or even 150 miles or more away from the other parent.If you want to move out of the state or more than 150 miles away and you provide notice by certified mail of your intent to do so, the other party may file an objection with the court. This must be done within 15 days of receiving the notice. The court will then refer you and your former spouse for mediation or other court services. It may appoint a guardian ad litem.

A guardian ad litem is an attorney appointed to represent the best interest of the child(ren) when- ever the courts are asked to make decisions that involve them.The guardian ad litem may fully participate in any hearing before the court and may make recommendations regarding custody, visitation and child support. His or her sole interest is to do “what is best for the child(ren)” and to represent those interests to the court and the parents.

Child support is usually set by applying percentage standards to the gross income of the parent who has placement less than 25 percent of the time (91 days) placement: 17 percent for one child; 25 percent for two children; 29 percent for three children; 31 percent for four children; and 34 percent for five or more children.The court will use a shared-time payer formula if both parents have at least 91 days. You can determine child support as a shared-time payer by using a spreadsheet created by the family law section at dcf150sheets.com.However, the court does not have to apply these standards if it determines they would be unfair in a particular case. If physical placement of the child or children is substantially equal, the child support will usually be reduced to reflect the additional placement time.If a payer has an existing obligation to pay support due to a prior divorce or paternity judgment, the gross income available for child support may be reduced by the previous order be- fore the percentage standards are applied to the payer’s income.Also, if the court believes that the current earnings are not accurate, the court can base the child support order on the payer’s earning capacity rather than the payer’s actual earnings. Violation of physical placement (visitation) rights by the parent with custody does not allow the non-custodial parent to stop child support payments

A wage assignment is an order to an employer to deduct child support or maintenance payments from an employee’s check.Each time the court makes a support or maintenance order, the order includes a wage assignment order for the payor’s employer. However, if an order for wage assignment would cause the payor irreparable harm, the court may allow payment directly to the clerk of courts.

When one spouse pays another for support, it is called Maintenance. This is not for the children and is not child support. For decades, the paying spouse used to be able to deduct that payment.Then the receiving spouse had to include it in their income. Under the 2018 tax act, that’s no longer the case. Now the person paying can’t deduct it and the spouse who receives it doesn’t report it as income.

A husband and wife may agree on whether, and how much maintenance is appropriate. If they don’t, the judge decides whether to award maintenance payments and for how long. The court will consider: the length of the marriage; the age, physical and emotional health of the parties; the division of property; the educational level of each party; the earning capacity of each party; the likelihood that the party seeking maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage and how long it would take to achieve this goal; tax consequences; any agreement of the parties; the contribution by one party to the education, training or increased earning power of the other; and any other factor the court determines to be relevant.

Usually not. Under certain limited circumstances, however, the court may order a contribution from the other party.

Most of a couple’s property, including assets such as pension plans, is subject to division. The only exception is property received either as a gift from a third party or an inheritance. Even gifts and bequests may be divided in some circumstances.If the couple can’t agree on how to divide the property, the court will usually divide equally the total of the divisible property. It may alter this division, however, by considering: the length of the marriage; the property brought into the marriage by either party; whether one of the parties has substantial assets not subject to division by the court; each party’s contribution to the marriage; the age and physical and emotional health of the parties; the contribution by one of the parties to the increased earning power of the other; the earning capacity of each party; the desirability of awarding the family home or the right to live there to the party with more physical placement of the minor child(ren); tax consequences; agreements of the parties; and any other factor the court deems relevant.

If a woman wants to resume using her maiden name or a former legal name, the court will restore it. If she wishes to continue to use her married name, she may do so.

Ethical rules generally prohibit an attorney from representing both parties in a divorce. Occasionally an attorney will represent one spouse, and the other will choose to represent himself or herself. Divorces in which neither party uses an attorney also occur, particularly when there are no children and/ or little or no property.In mediation, the mediator is neutral and assists both parties in coming to an agreement. You should use extreme caution if you go through a divorce without a lawyer. Divorce is a lawsuit and it can have a number of hidden consequences. If you have little or no income, you may qualify for free help from a legal services agency.

If you aren’t satisfied, you can ask the court to reconsider its decision. You also can appeal to the Wisconsin Court of Appeals. There are very strict time limits for filing an appeal (usually 45 days). Certain issues can be reviewed by the trial court at any time.You will usually have to show a substantial change of circumstances before a trial court will revise a judgment. Very few cases succeed on appeal. It is important to make informed decisions before the final judgement. If you are dissatisfied with a decision about maintenance, however, you should be aware of certain limits.A judgment that waives maintenance cannot be revised. If you want the court to reconsider an award of limited-term maintenance, you must file a motion before the maintenance period ends.

Usually not. Under certain limited circumstances, however, the court may order a contribution from the other party.

A default divorce is one in which you and your spouse have no contested issues to be decided by the court. The date of a default hearing is usually soon after you file a Final Marital Settlement Agreement, which spells out all your arrangements for support, maintenance, and asset and liability distribution, as long as the 120-day statutory waiting period has expired. At the hearing, upon approval of your agreement, the court will grant an absolute judgment of divorce.If a spouse fails to respond to the petition for divorce, the case is legally considered a default action. For practical purposes, however, the absence of an agreement between the parties makes the matter a contested case.

If you can’t reach a final agreement after the fact- gathering process, your case must be scheduled for trial. The date is determined by the length of time needed for the hearing and the court’s other business. Contested trials are costly and involved. The rules of evidence will be enforced and contain many pitfalls for the unwary.

Yes. However, you’ll have to show the court that you’ve tried everything possible to locate your spouse. You’ll have to publish a notice in the local paper in an attempt to inform your spouse the divorce proceedings have been initiated.If it’s at all possible to find an address, then you must attempt to serve notice of the divorce action upon your spouse. The court has no power to order child support or maintenance unless your spouse personally is served.What action may be taken against a spouse who disobeys a court order regarding custody, visitation, debt payments or payments of support or maintenance? You must petition the court to enforce its order. This is known as a “contempt motion.”After receiving the court papers, your spouse must appear to explain whether he or she has followed the court’s orders. If not, the court will want to know why. After hearing the facts, the court decides whether your spouse willfully disobeyed. He or she may be found in contempt of court and given an opportunity to “purge” or correct the contempt. If he or she does not purge, then the court can impose punishment with a jail term of up to six months. The court may issue other orders as necessary to remedy the contempt

Yes. The court’s order does not change the parties’ relationships with creditors. They may sue either spouse and may repossess any property in your possession that was pledged as security .If only one of you is sued, that spouse may bring the other into the lawsuit

Mediation is a process to help parties resolve their issues. It is one of the family court’s counseling services that is intended to help you settle issues of child custody, physical placement or visitation. Mediation attempts to help you resolve such issues faster and at less cost.The family court commissioner or the court itself must refer you to the family court counseling services for mediation of custody, placement or visitation disputes. The same is true if one of you wishes to revise a final judgment and legal custody or physical placement is one of the contested issues. Property settlements, maintenance or child support usually aren’t addressed unless they relate directly to legal custody or physical placement. They may also be discussed if you both agree in writing to do so.When you are referred for mediation, both of you must attend at least one session. The court can make an exception to this rule if it determines that attending will cause undue hardship or endanger the health or safety of the other party. Your attorneys usually don’t attend.Mediation can continue if all parties (including the mediator) agree that further sessions may be useful.The court may delay your final hearing on legal custody or physical placement until mediation is completed or terminated.In all discussions, the mediator is guided by what’s best for your child(ren). If you reach an agreement, it’s made part of the final judgment. If you don’t, the court will appoint a guardian ad litem to help determine the child(ren)’s best interest.

How to Discuss Divorce Mediation When Your Spouse Doesn’t Know You Want a Divorce Serving Beaver Dam, Oshkosh, West Bend & Wisconsin

At Derr & Villarreal, our family law attorneys bring more than 50 years of combined experience to your case. We are proven trial lawyers who are also family law mediators. Whenever possible, we are dedicated to helping our clients retain the power to make decisions and to keep the peace by going through the mediation process. We have found that this is the healthy, economical way to solve your family law and divorce issues. We are ready with the personal attention and service to help you move forward to a positive future.