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An open letter to Wisconsin’s lawmakers

By: dmc-admin//November 29, 2006//

An open letter to Wisconsin’s lawmakers

By: dmc-admin//November 29, 2006//

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Herman
Gregg Herman

The dust had barely settled from the election earlier this month, when talk started about changes to Wisconsin divorce law, including a proposal to return to fault-based divorce. Immediately afterward, my phone started ringing off the hook, and my e-mail Inbox became clogged with communiqués from you, wanting to know my thoughts on the issue.

Just wanted to see if I had your attention.

Of course that didn’t happen. But I wish it would. Maybe it seems like a novel idea, but, esteemed lawmakers, how about consulting a few of us “in the trenches” for a few suggestions?

After all, lawmakers, you are, by and large, not relying upon your experiences as practitioners when looking to make changes. Moreover, very few of you are lawyers and, to my knowledge, maybe one of you has ever practiced family law.

Here’s what I’d like you to do:

1) Learn from experience. Before radically changing the Family Code, ask fault-based states how their laws are working. One of the theories of American democracy is that we have 51 laboratories for experimentation. Regional differences have been greatly minimized over the years due to the migratory nature of Americans. So, let’s learn from others.

If, as I suspect, the lesson is that fault states have the same rate of divorce as no-fault states, then changing to fault in Wisconsin will not lower the divorce rate. However, we may learn from other states that fault requirements increase the cost and perjury rates, neither of which would be good legislative objectives.

2) Leave children alone. The father’s rights movements will, undoubtedly, keep trying to have the Legislature mandate equal placement of children, a battle that has been raging for years. Despite certain changes to the placement statute, thanks mainly to Wisconsin Courts (see, e.g. Landwehr v. Landwehr, 2006 WI 64, 291 Wis. 2d 49, 715 N.W.2d 180), the focus continues to be best interests of the children, as opposed to the self-interests of the parents.

Given the wide variety of parenting arrangements in this vast world, not to mention the uniqueness of every child, any law other than giving trial courts wide discretion to attempt to achieve the child’s best interests runs the risk of mandating a one-size-fits-all approach. Children come in a wide variety of sizes, and are too important for experimentation.

The system is far from perfect, but legislation is not going to cure it. Rather, it could make things worse.

3) Help children through resources. Want to help children? Make resources available for them.

Children do not have effective lobbying, so legislators facing re-election, which is all of them, have little incentive to increase spending to help them, other than — here is a wild thought — doing the right thing.

Among the resources that are so desperately needed are funds for family court counseling services, mediation, domestic violence shelters and guardians ad litem.

4) Don’t enact worthless laws. Recently, at a meeting of family law attorneys, someone asked the audience how many courts were enforcing the requirement that GALs can be required to report on the progress of their investigations, as required by Wis. Stat. §767.045(4m). Not a single hand went up.

As another example, the Wisconsin Court of Appeals properly held that the statutory requirement of mandatory parenting plans would not trump the child’s best interests, despite the language of the statute. Guelig v. Guelig, 2005 WI App 212, 287 Wis. 2d 472, 704 N.W.2d 916.

Passing statutes that are not enforceable leads to confusion and disrespect for the law as a whole. Lawyers have enough trouble convincing clients not to violate laws that are enforceable. Please spare us from those that are not.

5) Don’t even consider worthless proposals. In every legislative session, several bills are proposed that no one intends to be taken seriously, but are drafted to placate an angry constituent. Last session, for example, one would have essentially eliminated maintenance.

While telling an angry constituent that such a proposal is a non-starter may cost a legislator one vote, such proposals use tax-payer dollars to draft, debate and consider before they are left to die. These resources could find better use. (Note: this suggestion does not apply to any legislator who won an election by only one vote.)

6) Ask family law attorneys. We represent both men and women. We serve as GALs. We are neutral, knowledgeable and concerned. Even respected — at least by some!

Either through a constituent in your district or through the State Bar of Wisconsin Family Law Section, we are more than pleased to share our experience and opinions with you. (My number’s listed; my e-mail’s included on this page.)

To conclude, the family law system in Wisconsin is far from perfect. However, change, in and of itself is not necessarily for the better. If you can’t improve it, at least don’t make it worse.

Sincerely,
Gregg Herman

P.S. On a completely unrelated note, if possible, next election, can you spare us from those attack ads, too?

Gregg Herman is a shareholder with Loeb & Herman S.C. in Milwaukee, which practices exclusively family law. Herman can be reached by e-mail at gherman@ loebherman.com.

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