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Courts meant to serve the public

Gregg Herman is a family law attorney with Loeb & Herman in Milwaukee. He is board certified in Family Law Trial Advocacy by the NBTA, a fellow of the American Academy of Matrimonial Lawyers and is a former chairman of the Wisconsin Bar Association and ABA Family Law Sections. In addition to writing for the Wisconsin Law Journal on family law issues, he operates Wisconsin Family Law Case Finder, a legal research site for family law practitioners. He welcomes comments at [email protected].

Though I try to discuss new topics in each of my columns, every once in a while, there is something which merits further discussion.

Such is the case with a simple idea: Courts should serve the public. In particular, parties should be allowed to be divorced without the costs and inconvenience of a public court appearance.

Wis. Stats. §767.235(1) requires that “…all hearings and trials to determine whether judgment shall be granted…shall be before the court.” However, this is a statutory right. Criminal defendants frequently waive their rights to a jury trial, representation by counsel and other important constitutional rights. If a constitutional right can be waived, so can a statutory right.

During the pandemic, several counties allowed parties to waive a personal appearance and get a divorce by submitting the necessary paperwork, including an affidavit specifically waiving this right. The result was magical: Less cost, less pressure, no harm done. For some reason, some counties have either ended or are considering ending this process.

The primary argument for personal appearances is that it allows the court to confirm that the parties knowingly and voluntarily entered into the agreement and that preventing the court from making this assessment in person could lead to problems down the road if one of the parties challenges the agreement. That’s possible, but how often does such a challenge ever occur? And – in the rare event it does – is it worth the cost which is incurred in all of the other cases?

The cost of a personal appearance is not only the increased attorney fees for traveling, parking and waiting (for a virtual court appearance, an attorney can be doing other work while waiting.) But also, the parties may need to take off of work or find day care. In addition, many parties are intimidated by going to a courthouse and appearing before a judge. So, the test is weighing potential rare benefits against known and certain costs.

As I wrote in a previous column, one theory of our system of American jurisprudence is that we have 51 laboratories for experimentation (including Washington D.C.) and there should be some cross-learning. So as a totally unscientific experiment, I asked some friends who are experienced family-law attorneys about the rules in their states. Even though I sampled only a fraction of the total of 51 laboratories, lawyers in the following states advised that no personal appearance is required for most or all default divorces: Oklahoma, Oregon, Alabama, Pennsylvania, California, Kentucky, New Mexico, North Carolina and South Carolina. All reported no difficulties with this process.

The benefit vs. cost equation seems so obvious, one wonders why there is any opposition by the courts. After all, lawyers overwhelmingly (in my own unscientific poll) support divorce by affidavit, although they would make more money if a personal appearance were required. Do judges think there is a political benefit to seeing parties in court? If so, I think they are wrong.

To the extent that there would be any political benefit, it would be surpassed by servicing the best interests of the public. As idealistic as that goal may be, it is still a good one.

Will courts really enforce proposed financial information exchange rules?

In law, as in many things in life, some ideas are better in theory than in practice.

It is not uncommon that the Legislature, which has precious few lawyers (most sessions have ten or fewer lawyers out of 133 state Senators and Representatives, and almost none of them has ever been in the private practice of law), passes legislation which sounds good on its face but has a different practical effect. The phrase which attaches to such legislation is “the law of unintended consequences.”

One pending example is 2021 SB 604, which has been passed by both houses and awaits Gov. Tony Evers’ signature. This well-intentioned legislation will substantially tighten the current loose (or non-existent) requirements regarding the exchange of financial information in family-law cases which involve modifiable support.

The current statute, Wis. Stats. §767.54, requires the parties in such instances “annually to exchange financial information.” Typically, when lawyers are involved, this vague requirement is made more specific by defining the documents to be exchanged (usually tax returns) and specifying deadlines. However, most divorce cases are pro se on both sides and, as a result, this requirement is difficult to enforce.

Hence the need for legislation. The result, however, may go too far. SB 604 would require information to be exchanged no later than May 1 of each calendar year unless a different arrangement is agreed upon in writing by the parties. It further defines the information that’s needed as being federal and state income tax returns for the previous calendar year, including all W-2 forms and 1099 forms, year-end paycheck stubs from all sources of employment and “[A]ny other documentation of the party’s income from all sources for the 12-month period preceding the exchange of information”.

In theory, this new statute will substantially tighten a very loose requirement. The problem, in my opinion, is whether it will be effectively enforced. In my experience, I have not even been able to get a court to enforce an order for providing tax returns even though the payer had been specifically instructed to do so on a previous occasion. Shockingly, the court of appeals also saw no trouble with a payer totally ignoring this court order. Krause v. Krause, Case No. 2017AP1434 (decided July 17, 2018). And, no, this is not just bitterness at losing the case (well, maybe a little bit). Rather, this is just one example of a case in which the court failed to enforce the current rule. There are many more.

Will making the rule more specific increase compliance and enforcement? I sure hope so, but I doubt it. Rather, I fear that, like certain other statutes in this field (e.g., parenting plans, medical history information), it will be honored in the breach.

That would be unfortunate since I come from the school of thought that says that court orders should have more meaning than an invitation. As a lawyer in this field, I have to sort out which orders clients need to follow and which they can safely ignore. This should not be the case. Court orders which can be safely ignored lead to a lack of respect for our legal system in general.

Of course, I could be wrong. Maybe courts will hold parties’ feet to the proverbial fire. But somehow, I doubt it.

Wisconsin divorce filings on the wane since pandemic’s beginnings

In late March, as people in China emerged from coronavirus quarantines, lawyers watched divorce rates skyrocket in many Chinese cities. Statistics about the increase quickly spread online.

Bloomberg News called the trend a “warning” to the world and its millions of quarantined couples.

Wisconsin couples were then about two weeks into the state’s mandatory stay-at-home order. Now, two months and one overturned statewide order later, family lawyers are assessing the effects of the COVID-19 pandemic on their practices. And to the surprise of some, there hasn’t been inundation of divorce filings.

Gregg Herman, managing partner at Loeb & Herman in Milwaukee, said his firm’s court filings are down enormously — going from 15 to 20 a day in Milwaukee courts to about five. He said he and other divorce lawyers generally have two hypotheses about why this is happening.

Some believe the recent increase in domestic-violence incidents has led to a decrease in divorce filings. With the coronavirus causing financial strain and confining many people to their homes, stress has become all too common in many homes, and Milwaukee and other cities have been reporting higher rates of domestic violence. Someone who is living under the threat of physical harm might be too afraid to file.

Herman, though, subscribes to a second hypothesis.

“People think, ‘It’s not a great marriage, but I don’t know if it’s a good time with my 401(k) and my savings down,’” Herman said. “I don’t think there’s going to be a huge spurt of new divorces filed with the quarantine lifted. I think the economic condition is going to suppress that, although nobody knows for sure.”

Susan Hansen, a collaborative lawyer and mediator at Hansen & Hildebrand in Milwaukee, said it’s likely more people will want a divorce during or after the pandemic. But it’s hard to predict if they’ll actually file because of the pandemic’s far-reaching ramifications.

“Relationships either grow stronger or they break in this type of pressure and adversity,” Hansen said. “We’re going to be dealing with people who are dealing with a very different kind of struggle than ‘Do I stay, or do I leave the marriage?’”

New demands

Although the outlook on divorce rates is uncertain at this point, both Herman and Hansen have experienced new demands in other parts of their practice because of the pandemic. Herman is now involved in, or is being consulted on, six or seven cases regarding lost income and support payments.

“It’s huge in terms of this field,” Herman said. “So many people have lost their jobs or had their income substantially cut back.”

The income change could lead to several modifications to support — first when people are laid off or lose part of their incomes and again when they are rehired or allowed to reopen their businesses.

At the same time, Herman said, many support questions are being pushed off because the courts aren’t handling their normal workloads. Until they return to normal operations, he said, it will most likely remain unclear exactly what people should be doing.

“In a lot of these cases, if there’s no income, then there’s no support being paid,” Herman said. “If the income isn’t zero, then it’s been diminished. What I’ve told my clients is you’ve got to pay something. We calculate a pro rata amount.”

Hansen and her firm have seen an increase in calls about mediation since the pandemic’s beginnings. Most are coming from couples wanting to represent themselves, a trend that has contributed to the rise in requests for divorce documents from Wisconsin Legal Blank this past month.

The Milwaukee business, which provides legal paperwork, has seen an estimated 65% increase in divorce-kit sales since mid-April. Rick Russell, an owner of Wisconsin Legal Blank, said his company went from selling just a few forms a week to about 15. Most of the orders are from local residents.

Hansen said about 70% of all requesters will choose to represent themselves in their divorces proceedings, and about 98% will end up with a signed agreement. Many of the couples she has started working with since the pandemic’s beginnings are approaching divorce jointly.

“The stay-at-home orders have put people together for much longer blocks of time, and for some, it’s really compelled some deeper conversations,” Hansen said.

There aren’t any new legal barriers to divorce that have arisen since the start of the pandemic. Still, Hansen said, recent changes in court operations have made the process even more difficult for those who choose to represent themselves. In these circumstances, she said, family lawyers should strive to be a source of legal information, instruction and guidance for couples.

“I think we as lawyers need to look through a different lens at how we can help those families navigate separation and divorce, versus a traditional lawyer lens of zealous advocacy and using the courts as a place to engage in a legal battle involving a family,” Hansen said. “I’m hoping this (pandemic) helps us rescind some of that.”

Increased efficiency, technology

To ensure she can continue providing her services during these difficult times, Hansen has moved her practice almost entirely online. Even before the pandemic, the firm had started using ShareFile, an online file-transfer system that has become only more necessary in recent months. And her partner, Paul Stenzel, and the rest of the firm have begun using Zoom.

“Basically our practice went virtual and online in a matter of a couple days,” Hansen said. “It certainly forced me out of some of my comfort zones of how I practice with so much of my work being face-to-face.”

Hansen and Herman said new technology can eliminate inefficiencies in family law. Through the use of Zoom and similar services, pretrial hearings that once took hours out of a party’s day can now happen in 10 minutes.

“I’m hoping some of these changes we’ve had to adapt will remain post-pandemic,” Hansen said. “I think it would help the parties and also, frankly, help lawyers and courts.”

Herman said Milwaukee and Waukesha counties have adopted interim plans to essentially allow divorce by affidavit, a procedure that saves quite a bit of time. Although some lawyers are averse to the plan, Herman believes the chance that complications will arise in the future are close to one in 1,000.

“You’re taking 999 cases and telling them they have to be inconvenienced financially for a pro forma hearing that could be handled solely by affidavit and mailings,” Herman said. “Right now, it’s an emergency order by the courts, and I’m hoping the courts will continue to allow that.”

Adapting practices

Although the definition of “normal” continues to change, family lawyers will have to continue to adapt.

Herman said more people are turning to family attorneys as they lose income or raise concerns about children’s safety in custody and placement agreements.

Hansen expects some of her clients will want to return to in-person meetings as soon as possible, despite the continuing health risks.

“For as much as we all want the resumption of what was normal, I worry at times that the desire for normalcy and the dismissiveness around the risks of the pandemic will cause some people not to take appropriate steps,” Hansen said.

She said people will have to be willing to compromise when safety is in question, whether that means wearing masks at in-person meetings or simply continuing to use Zoom.

Although much remains uncertain about the pandemic’s long-term effects, Hansen said she family lawyers will now consider offering more mediation, limited-scope consulting and other unbundled services — options that often help hold down costs for clients.

“Divorce has gotten far too expensive for most people,” Hansen said. “We can use some of the other tools so we can have a higher volume of clients, but a more efficient and effective delivery of services.”

How support has changed in the age of COVID-19

Although I’m normally not one to bemoan the “good old days” gone by, there are instances in which I do. And given the unprecedented and unusual circumstances surrounding the COVID-19 outbreak as it affects the legal system, one such instance comes to mind.

Back in the olden days, when a support payer (back then it was almost always men) lost his job, he could wait until he had a new one before seeking relief in court if his former spouse was unwilling to agree. At that time, the court could make a determination if the loss of employment had been involuntary and then adjust, not just future support, but forgive any or all arrears which had accrued in the interim.

That all changed many years ago. Today, Wis. Stats. §767.59(1m) prohibits the revision of support before the date that the notice of a court action has been provided, except in very limited circumstances. As a result, when a payer receives notice of a reduction in pay or a layoff, he or she needs to promptly bring a modification action.

In normal times (which this most certainly is not), the necessity of bringing a legal action creates a burden since it would be preferable for a payer to spend any available time seeking new employment rather than bringing a court action. In the age of COVID-19, difficulties multiply.

Although some symptoms of this virus are mild, many are not and the possibility exists that health could be an impediment to seeking legal relief. No health exception to the non-retroactivity law can be found in the statute, although one would hope that courts would find some means of exercising their equitable powers of relief in such circumstances.

More commonly, the source of trouble will not have to do with health but rather lack of income. Failure to either file a timely motion or get another party to stipulate prohibits retroactive modification of dollar-expressed orders, which constitute almost all support orders. In other words, the meter keeps clicking.

This problem is even worse in cases in which a payer does not lose 100% of his or her income but rather has a severe reduction in income and support is being paid using an income assignment. In such cases, the support will continue to be sucked out of paychecks since it would take a subsequent court order to modify the income assignment. Although in most cases, federal law prohibits assignments from sucking out more than 50% of wages, such an assignment can create severe hardships for the payer (and, of course, the payee).

Piling on the misery, since the courts are basically closed (when is the last time that happened?) and absent a stipulation from the payee, there is no immediate relief in sight. And when the courts finally open – whenever that will be – the backlog will make an already busy court calendar even worse.

So, my advice to payers (and their lawyers): File a motion immediately! Leave the eventual hearing date open, but get the motion filed.

My advice to payees (and their lawyers): Be reasonable! Stipulate when possible. Whereas previously, the assumption in court is that anyone without a job is not trying real hard to find one (see Gregg Herman, “Choice of Jobs Available in a Time of Full Employment”, Wisconsin Law Journal, May, 2019), those were, well, the good old days. Today, courts will not look kindly on payees who refuse to be realistic and cooperative.

One would hope that many payees would understand reality and cooperate. In such cases, e-filing stipulations and orders will be easy. But when a payee is not so cooperative (which will certainly occur), an already backlogged court system will be even more so as support orders will have to be modified. Ah, one wishes for the good ol’ days!

Note: Need a mediator for your family law case? Call or email me at (414) 272-5632 or [email protected]. Sliding scale fees are available.

AVOID THE ‘F’ WORD: What’s ‘fair’ got to do with it?

Recently, a default divorce hearing fell through because the judge in the case had the temerity to ask a party whether she thought the proposed settlement was fair.

Incredibly, the wife answered honestly (an all too rare occurrence in our court system) that there was nothing fair about it. As a result, the judge declined to accept the settlement (a couple of months later, the judge did accept it after seeing the wife change her testimony.)

It’s not uncommon for a judge or lawyers to ask the parties at a default hearing if they believe a settlement is fair. It’s also not unusual for the parties to lie because they want to get on with their lives.

To avoid perjury, I never ask my clients the “fair” question. Rather, I ask if they believe a proposed settlement is a reasonable compromise and in their best interests. In fact, I frequently tell clients that, in my office, we never use the four letter “F” word. No, not that four letter “F” word – I use that one all the time. The forbidden four letter “F” word is “fair.”

Not that there is anything wrong with that word. In most contexts, it’s perfectly acceptable. However, in a divorce context, in which all of the parties believe they are 100% right, it tends to frustrate people.

Before 1978, the resultant property division and support orders in a Wisconsin divorce included the idea of fault. For whatever reason (my hypothesis is that fault was too difficult to figure out in most cases,) Wisconsin went the route of most states and eliminated fault as a factor. Although this may have had many salutary results, it can also be a source of frustration to parties who feel a divorce is strictly (or mostly) the fault of the other side. Yet the legal system does not punish wrongdoers or compensate the innocent.

For example: One of the most difficult questions that I get asked goes along the following lines: “Let me understand this. I did not do anything wrong in this marriage – I didn’t cheat, abuse or even neglect my spouse. Yet because he (or she) wants out, I am going to lose half of my assets, maybe half of my income and half of the time with my kids. And, I will have to pay you. Why is that fair if I did nothing wrong?”

The answer, of course, is that because of the “no fault” law in Wisconsin (and most other states) “fair” has nothing to do with it. Asking the question is similar to asking a doctor why you have a certain disease when you have exercised, eaten appropriately and lived a generally healthy life. You just do. So let’s figure out a treatment plan.

At root, the trouble is that there a great amount of subjectivity in any interpretation of the word “fairness. “ What is perceived as “fair” to one may be perceived as totally unfair to another. Perhaps in the next world there is a far greater judge than we have here (no offense to any judge who might be reading this) who can give “fair” an objective application. But this rarely happens on this Earth.

So, relying on the term usually does little more than leave behind two very frustrated parties. That’s why I never ask my clients if an agreement is “fair” – rather, I ask if they believe it to be reasonable and in their best interests. Fairness be damned. At least in this world.

Note: Need a mediator for your family law case? Call or email me at (414) 272-5632 or [email protected]. Sliding scale fees are available.

Zielinski provides divorcing couples with financial options

Grant Zielinski knows he needs to do a little explaining when responding to the question: What do you do for a living?

Zielinski, a certified divorce financial analyst at Divorce Financial Solutions LLC in Milwaukee, said few people have heard of professionals in his line of work or know what they do.

“The certification was only created in the early 2000s,” he said. “We are often brought into divorce cases by attorneys to provide information so clients can make well-informed decisions.”

Zielinski and his father, Garrick, started Divorce Financial Solutions in 2005. Garrick Zielinski had already retired but was looking for ways to stay active. One thing he dabbled in was providing financial information to people going through divorces. Grant Zielinski was a recent graduate of the University of Northern Iowa and loved the idea of going into business with his father.

“We provide neutral information – it’s not advice – and we meet with the couple and their attorneys to go over the options and explain how their needs can be met and how what we present relates to taxes,” said Grant Zielinski, who took over the firm when his father retired last year. “The clients then take that information and make a decision.”

Taxes figure into a lot of what Zielinski does.

“Much of what we do is about taxes and trying to help clients keep as much as they can,” he said.

The changes to the tax laws have made Zielinski’s work considerably more difficult. He reads as much as he can about taxes so he understands how the rule changes are likely to affect his clients.

Zielinski also gives presentations discussing taxes and negotiations between divorcing clients.

“I do a lot of reading and work hard to stay up-to-date on everything,” he said.

Couples from all sorts of backgrounds seek out advice from Zielinski.

“A large majority of my clients have assets, but are cash-poor,” he said. “Low-income couples with a lot of debt also need help as well.”

Zielinski said his firm handles a large number of cases; 1,000 were opened last year alone.

“I normally have 80 clients at a time,” he said. “I meet with clients two or three times at most and do some work outside of those meetings. The work is done in normally four to six months.”

GETTING TO KNOW ZIELINSKI

Wisconsin Law Journal: What do you enjoy most about your work?

Grant Zielinski: The problem-solving aspect. Sometimes, it’s hard to find something enjoyable when working in the divorce industry, but I do enjoy the challenge of finding solutions for a family.

When I get information about a case, it’s like a puzzle and I need to find multiple ways to put it together.

WLJ: What do people get wrong about what you do?

Zielinski: I think clients often think I will be like a financial advisor, which is a very different profession. I don’t provide advice; I provide neutral information. I don’t provide clients with a financial plan. I simply talk to them about their options and their interests and help quantify and illustrate what those options would look like. We work through them together to establish an outcome that best suits their needs and wants. For example, I don’t tell people they cannot afford to keep the house. I say, “If you wanted to keep the house, here is what you would need to do and how it would look.” Then, I let them make their own choice if that outcome is a good financial decision for them.

WLJ: Do you have a mentor?

Zielinski: Without a doubt my mentor would be my father Garrick Zielinski, who has been in this business for a long time. There are others that I admire and have learned quite a lot from. Sue Hansen is an attorney and taught me a lot about the legal field. I admire her vision and her genuine concern for her clients. Carol Ann Wilson, a (certified divorce financial analyst) working in Colorado, is a leader in the industry and I have learned a lot from her on how to market and build a business around this growing profession.

WLJ: What do you do to get away from the stress of the office?

Zielinski: I have a wife and four young children: Harper 7, Logan 5, Grady 4 and Everett 2. My time outside of work is often spent with my family. They keep me busy most of the time. When I can get away, I love to golf. I also help run a youth football program during the fall. (Zielinski played football at Northern Iowa.)

WLJ: What is a challenge you deal with in your job?

Zielinski: I think one of the main challenges is the growing number of pro se divorces. There are so many resources out there and so much information that many people believe they can go through a divorce on their own. For some, that may be true, but for most they would really benefit from having an understanding of the financial options and how those options will impact their future. The challenge is getting the divorce industry to see value in the work that we do so instead of thinking of a CDFA as a specialist used only when needed, thinking of a CDFA as a core piece of every divorce process.

Marriage waiting period elimination passes Assembly

MADISON, Wis. (AP) — Couples who get divorced would no longer have to wait six months before remarrying under a bill approved by the Wisconsin Assembly.

Under state current law, a person who was a party to a divorce action in Wisconsin or any other state must wait six months after the divorce is granted before remarrying. The bipartisan bill approved Thursday would do away with the waiting period.

The proposal’s author, Republican Rep. Cindi Duchow, says the waiting period penalizes people who get divorced when they’ve broken no laws.

The bill now heads to the state Senate. It would have to pass there and be signed by Gov. Scott Walker before becoming law.

GRAY AREA: Divorces among 50-plus pose new obstacles for attorneys

Garrick Zielinski of Divorce Financial Solutions works from his Milwaukee office on June 7. He says that of the roughly 1,500 divorce cases he and his colleagues take on every year, the bulk involve couples who are 50 years old or older. (Staff Photo by Kevin Harnack)

When it comes to divorce, it’s not enough anymore to know the ins and outs of child custody or the complexities of the law governing property divisions.

That’s especially true for the quickly increasing numbers of couples who are seeking “gray divorces” — meaning they are 50 or older and trying to end their marriages. Between 1990 and 2010, the divorce rate among Americans in this group doubled, according to a report that Ohio’s Bowling Green State University released in 2013.

Garrick Zielinski of Divorce Financial Solutions, a firm in Milwaukee, says that of the roughly 1,500 divorce cases he and his colleagues take on every year, the bulk now involve couples who are 50 or older.

“It’s been an explosion,” Zielinski said. “We internally refer it to as an epidemic. It’s something I haven’t seen in 30 years.”

It’s a trend that Milwaukee family attorney Susan Hansen has also noticed over the past 10 years, making itself felt both in the work she does at her law firm and at the family mediation center she recently opened. The demand for divorce seems greatest among couples who have been married for more than 25 years, she said.

“Part of this is that people are living longer,” Hansen said. “Also, there’s an increasing number of both individuals having careers.”

Couples that might have found purpose in their marriage when they were raising their children suddenly lose that when the kids grow up and become independent. What’s more, older women who see their daughters finding fulfillment in a career might become dissatisfied with their lots as housewives and seek a change.

No matter the reasons for seeking a divorce, either party’s prospects of receiving retirement income often gives rise to a need to untangle various matters involving tax and business law. Financial planning becomes only more indispensable.

“The focus of a 30-year-old is more on the now,” Hansen said. “If there are children, it’s providing for children, whereas for those in their 50 and 60s, the focus is less now and more long-term: Will I have adequate financial resources to meet my living expenses, not just for the next year but for the rest of my life?”

There are several ways that people who are 50 or older tend to go about divorce differently than younger couples. Above all, the older a person is, the more attention he is likely to pay to Social Security benefits and 401K and IRA accounts and other retirement benefits.

Some of the biggest questions concern how retirement income will be divvied up. The upshot is that it’s not only help with the divorce that’s needed, but also a good measure of financial planning.

“These cases are the most intellectually interesting because you’re taking all of these disparate financial pieces and trying to help not only your own client but the couple create a financial plan that’s livable and sustainable for them long after their divorces,” Hansen said.

Hansen said it’s crucial to become adept at spotting flaws in clients’ plans. To do that, lawyers who work on gray-divorce cases should make it a point to always gain a thorough understanding of their clients’ finances.

Beyond that, divorce attorneys should become familiar with the workings of pensions, annuities and other fixed sources of income, said Zielinski. Pensions, he said, are particularly tricky because they are governed by rules that change often. And the various options that might be offered by a particular plan can trip up the unwary.

As is true for any sort of legal practice, lawyers working with gray divorces should be on guard against malpractice. Zielinski said the biggest trap is so-called qualified domestic-relations orders, which stipulate how retirement and pension plans are to be divided.

Sometimes, these sorts of orders are written up without language meant to protect a former spouse should the other partner in a now-dissolved marriage die. These sorts of omissions put surviving partners at risk of losing a lot of money.

Lawyers who fail to make sure such language is included thus expose themselves to claims of malpractice.

Other complexities of gray divorces have led Hansen to regularly turn to certified financial planners for help in the cases. Professionals of that stripe are particularly useful in making accurate valuations of assets and doing financial projections and analyses for clients.

“I’m working much more with a variety of financial specialists so that the clients really have an understanding that it’s not just divide by two and walk away,” Hansen said.

She works with Zielinski to make sure her clients are not only aware of their financial alternatives, but also that they aren’t making costly tax mistakes or leaving money behind because things weren’t properly divided or the value of assets wasn’t maximized.

She’s not the only attorney seeking specialized financial advice for her clients. Zielinski’s financial-planning company, which has been designed specifically to be an aid to legal professionals, has around 2,200 lawyers on its client list.

Further complications arise when it’s not only a married couple themselves who are going to be affected by a gray divorce, but also their adult children. In such circumstances, many people prefer so-called collaborative divorces or mediation.

Hansen says she is seeing more and more clients who are looking for less adversarial ways of ending a marriage.

“It tends to be a situation where they would rather restructure a family in the least destructive way possible because their adult kids and grandkids will be connected with them for the rest of their lives,” said Hansen.

Hansen said people who are 50 or older should above all keep in mind that, at least in one way, the stakes of divorce are much higher for them than for younger couples.

“They don’t have the next half of their life to recoup from a divorce,” said Hansen.

Staff writer Lauren Kirkwood of The Baltimore Daily Record, a sister newspaper of the Wisconsin Law Journal, also contributed to this report.

Should grandparents have visitation rights?

Judge Jean DiMotto retired in 2013 after16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at jeandimotto@gmail.com — Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also is of counsel with Nistler Law office SC. She can be reached at [email protected].

In a rare unanimous decision, the Wisconsin Supreme Court construed the meaning of the statute on grandparents’ visitation rights after a divorce.

At issue in this case of who can petition for visitation rights was the meaning of the statutory phrase, “grandparent, great-grandparent, step-parent or person who has maintained a relationship similar to a parent-child relationship with the child.”

Petition for visitation rights

In their divorce, Nancy and Jay Meister agreed to joint legal custody of their four minor children. The mother received primary physical placement as well as impasse-breaking authority.

Five months after the divorce, the children’s paternal grandmother petitioned for visitation rights. She indicated that her petition was coming in response to Nancy Meister’s changes in the grandmother’s informal visitation with the children.

The grandmother, who lived in Ohio, sought six visits a year with the children, the right to arrange the visits using an online scheduling portal, and the right to make regular phone calls to the children.

A family court commissioner granted the petition. Dissatisfied with the decision, the mother requested a review from the circuit court.

Circuit court review

Jefferson County Circuit Judge William Hue conducted a hearing to flesh out the record concerning the grandmother’s relationship with her grandchildren. The grandmother, representing herself, described a supportive relationship.

For example, as a former teacher, she had tutored the children in various subjects both during a vacation that took place the year before the divorce and during the spring break that followed soon after the divorce had been made final. She frequently purchased food and clothing for the children, either when they visited her in Ohio or she them in Wisconsin.

She emphasized that even though she lived in Ohio, she played an important consultative role, helping the children with their homework by phone and giving her son general parenting advice. The children called her frequently, “almost daily sometimes,” when staying with their father.

The children’s guardian ad litem argued that the grandmother had a relationship with the children similar to that of parent who lived out of state.

Nonetheless, Judge Hue ruled against the grandmother. He construed sec. 767.43(1) in accordance with a 2007 court of appeals case, Rogers v. Rogers, which also dealt with the visitation rights of grandparents. He concluded that a grandmother’s relationship could not be characterized as “similar to a parent-child relationship” as required by Rogers.

Appeal

The guardian ad litem for the Meister children appealed Judge Hue’s order. In an unpublished decision in S.A.M. v. Nancy M. Meister, the District 4 Court of Appeals, bound by the Rogers case, affirmed Judge Hue.

Less than three weeks after that decision was issued, the grandmother died.

Nonetheless, the guardian ad litem filed a petition for review, and the petition was accepted.

Supreme Court opinion

In a 28-page decision written by Justice David Prosser, the state Supreme Court decided it was issuing an opinion despite the grandmother’s death because the subject matter was of great public importance and would appear frequently in the future.

The court then took up the question of the correct interpretation of the statutory phrase, “grandparent, greatgrandparent, stepparent or person who has maintained a relationship similar to a parent-child relationship with the child.”

On one hand, it could mean that all the persons designated in the statute have to demonstrate a parent-child relationship. This was the Rogers court’s interpretation.

On the other hand, the phrase could mean that the first three categories of persons designated in the statute could petition for visitation based solely on their status as grandparent, great-grandparent or step-parent, while anyone not designated in one of those ways would have to show they had maintained a relationship with the child similar to a parent-child relationship.

The Supreme Court chose the second interpretation. As justification, the court cited the last-antecedent canon of statutory construction, finding that the words “who has maintained a relationship similar to a parent-child relationship with the child” modifies only the word “person.”

Thus, only a person who is not a grandparent, great-grandparent or step-parent has to demonstrate a relationship similar to a parent-child relationship.

In contrast, the mere fact of a relationship to the child as a grandparent, great-grandparent or step-parent is sufficient in itself to entitle any of these people to petition for visitation rights.

The court also weighed the implications of its interpretation of parents’ due process rights to direct the care, custody and control of their children. In the end, it found that parents’ liberty interest was not being infringed upon. Still, the opinion ends by noting that in considering a petition for visitation rights, a court must consider not only the constitutional rights of the parents but also the best interests of the child.

Concurrences

Justice Shirley Abrahamson noted that only the grandmother, not the guardian ad litem, was statutorily permitted to bring this appeal. She also indicated that even though she agreed with the interpretation of sec. 767.43(1), she believed it cast doubt on the statute’s constitutionality.

Justice Annette Ziegler concluded the statute had not needed interpretation because it was unambiguous. Prosser sidestepped this argument by writing that the statute was “not wholly unambiguous. In other words, reasonable people have read it in different ways.” Not least the two levels of appellate courts.

Commentary

This decision makes good semantic sense. While the statutory phrase here was not necessarily unambiguous, one wonders whether an Oxford comma by the drafters might have made it so.

The court’s interpretation of the statute also makes good common sense. After all, there aren’t many great-grandparents who are able to have “a parent-child relationship” with a great-grandchild. And grandparents will not have to pay the price for an acrimonious divorce.

Above all, the best interests of the child in relationship to a grandparent, great-grandparent or step-parent will be the priority in judicial considerations of visitation rights.

It is a bit remarkable that the star of this case, the guardian ad litem, had no standing to bring the appeal. Although noted in Abrahamson’s concurrence, the court dispensed with this point in a footnote by observing that standing had not been an issue in the appeal “and we do not see a prudential reason to make it an issue in this opinion.”

Group wants pro bono attorneys for piecemeal divorce cases

“What we’re doing is breaking (the case) into segments, recognizing that it’s a labor-intensive activity and difficult for many lawyers to do. We’re hoping if we break it into manageable sections more people would volunteer.”Kathy Charlton, Hawks Quindel family law attorney (Staff Photo by Kevin Harnack) — Family attorney Kathy Charlton, of Hawks Quindel, is part of a committee that is developing a program that some hope will encourage attorneys to volunteer to take pro bono divorce cases while at the same time provide legal representation to those who cannot afford it. She completed the pilot program’s first case in April. (Staff photos by Kevin Harnack)

Before a recent rule change, chances were slim that the parties in a divorce case could find lawyers to represent them pro bono.

Most lawyers were unwilling to take up such cases because they feared a judge would force them to see the often lengthy proceedings through to the end, said Milwaukee County Circuit Judge Mike Dwyer. Wanting to cut down on the number of litigants who are choosing to represent themselves in court, Dwyer joined a committee charged with identifying some of the reasons why family law attorneys were not using a 2007 rule that lets attorneys provide limited-scope representation.

More commonly referred to as unbundled services, this sort of representation gives lawyers the ability to handle family law cases in a piecemeal fashion. Lawyers who participate can take up certain parts of a case pro bono while leaving others to separate legal professionals.

Dwyer and his fellow committee members are hoping a new pilot program they have proposed for Milwaukee will encourage greater use of unbundled services. The program would pair people who are going through a divorce with a different volunteer lawyer at each stage of their case.

“What we’re doing is breaking (the case) into segments, recognizing that it’s a labor-intensive activity and difficult for many lawyers to do,” said Kathy Charlton, a lawyer who practices family law out of Hawks Quindel’s office in Milwaukee. “We’re hoping if we break it into manageable sections more people would volunteer.”

Attorneys who are being paid by the parties in a divorce generally see the case through from start to finish. The task puts a heavy burden on a person’s time, Charlton said, so when it comes to doing the same work for free, many lawyers are understandably reluctant to go all in.

After Wisconsin’s rule governing limited-scope representation underwent some clarification in 2015, Dwyer helped organize a committee charged with finding ways to make it easier for lawyers to work pro bono on divorce cases. The primary goal was to slow the rise in people choosing to represent themselves in court.

A lack of money is not the only reason litigants now forgo professional legal services. Many people are seeking to have an amiable divorce and think that lawyers will only make things acrimonious.

Whatever the reasons, it’s now estimated that more than 70 percent of litigants in family law cases decide to forgo enlisting professional legal services.

“Both the rule and the pilot project came out of a need for improving access to legal assistance, particularly in family law cases,” Dwyer said.

Besides Charlton, the committee includes Lindsey Burghardt of Gagne McChrystal De Lorenzo Burghardt’s Milwaukee office, and Maggie Niebler-Brown, who helps organize Legal Action of Wisconsin’s volunteer lawyer programs.

Maggie Niebler-Brown, attorney coordinator for Legal Action of Wisconsin, is part of a committee piloting a program that would let volunteer attorneys take segments of a divorce case rather than an entire case. Niebler-Brown said she looked for straightforward cases for the first step of the program. (Staff photo by Kevin Harnack) — Maggie Niebler-Brown, attorney coordinator for Legal Action of Wisconsin, is part of a committee piloting a program that would let volunteer attorneys take segments of a divorce case rather than an entire case. Niebler-Brown said she looked for straightforward cases for the first step of the program.

Niebler worked with Legal Action to find good candidates for pro bono legal assistance. Her search was primarily aimed at digging up straightforward cases involving couples without children. Also appealing were cases in which both parties had agreed that it would be best that their marriage end.

The work yielded two possible clients, one of whom was referred to Charlton and the other to Burghardt. Charlton’s case eventually went forward and wrapped up with a hearing in April. Burghardt’s client, on the other hand, never reached out for assistance.

Charlton, in taking on the pro bono work, ended up representing her client only to the end of the pretrial conference. In deciding how to best divide up divorce cases to prevent volunteer lawyers from having to take on everything, Charlton and her fellow committee members had decided pretrial conferences would mark a good breaking point.

The majority of divorces cases stop there, Charlton said. Rather than go to trial, most end in a settlement.

Charlton said the new limited-scope rule provides a structure to those who want to practice family law pro bono. Recognizing the benefits of the piecemeal approach, Charlton and her fellow committee members are now in search of more lawyers who are willing to donate their time.

“The rule gives roadmaps of how to do it and lets you know what the limits are,” she said.

All this is not to say, though, that the piecemeal approach is without drawbacks.

For one, limited representation may put litigants at a disadvantage if they cannot find volunteer lawyers who are willing to take up a case where previous ones had left off. That’s especially true if the opposing party has managed to retain an attorney for the entire proceeding.

“That could lead to some diminished leverage because the other lawyer knows the limited-scope lawyer won’t be there afterward,” Charlton said.

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Cordell & Cordell to host Men’s Divorce School

Men’s Divorce School, a free seminar presented July 7 in Milwaukee by the domestic litigation firm Cordell & Cordell, will provide a crash course in Divorce 101.

Topics will include an overview of alimony, child support, custody, property division and the divorce process, while offering tips and strategies for your case.

The seminar will be held from 6:30 to 8:30 p.m. Tuesday, July 7, at the InterContinental Milwaukee. Registration begins at 6 p.m.

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