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Court should clarify how legal separation should be treated in insurance contracts

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 gherman@loebherman.com.

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 gherman@loebherman.com.

The Wisconsin Supreme Court now has an opportunity to clarify an area of family law which very much needs clarifying.

Although I’ve recently criticized the court for accepting review in two cases in which the court of appeals had made perfectly fine decisions (Miller v. Carroll, 2020 WI 56 and Pulkkila v. Pulkkila, 2020 WI 34) – and issuing decisions of little help to practitioners in both cases – the court has now agreed to take another look a case that presents one particular issue that could actually use review.

In Kemper Independence Insurance Co. v. Islami, 2019AP488 (May 27, 2020), a published decision, the court of appeals affirmed an order by Waukesha County Judge Hon. William Domina denying coverage to Ydbi Islami (“Ydbi”) for the loss of her home because of a fire set by her former (?) husband, Ismet, from whom she was legally separated. The reason for the “?” is the question of whether a judgment of legal separation means that Ydbi and Ismet are no longer married – or to what extent they were no longer married. Apparently, unlike pregnancy, it is possible to be a “little married.”

The trial court found that, for the purposes of the insurance contract, it was irrelevant whether or not under Wisconsin law Ydbi and Ismet were actually married at the time of the arson as they represented themselves as “an insured interest based upon their marriage.” The trial court denied the claim under a “concealment or fraud” condition of the homeowner’s policy, by which there is no coverage if an insured person conceals or misrepresents a fact upon which the insurer relies or which contributes to the loss. Since Ydbi lied in statements to Kemper after the fire, the trial court granted summary judgment to Kemper denying coverage to Ismet, despite the fact that she was an innocent insured person.

The court of appeals affirmed, finding, among other matters, that Ydbi was Ismet’s spouse, notwithstanding the judgment of legal separation. The appellate court found that a legal separation is “something less than terminating a marriage,” although did not bother to define “something.” Citing Herbst v. Hansen, 46 Wis. 2d 697, 176 N.W.2d 380 (1970), the appellate court noted that “[T]here are more rights remaining in a marriage after a legal separation than following an absolute divorce.” Again, the court did not bother to be explicit about these “rights.”

In any event, the appellate court was more concerned about the interpretation of the insurance contract than with, in its own words, “this fine point of Wisconsin family law.” Mostly because of the interpretation of the insurance contract, the court affirmed the trial court in denying coverage for Ismet. Ismet petitioned for review, and the Supreme Court accepted the request.

It would be helpful if the Supreme Court, while it’s in the neighborhood, helped define this “fine point of Wisconsin family law.” Inquiries by clients and possible clients about the difference between a legal separation and a divorce are common. Although it’s easy to explain the prohibition against remarriage for a legally separated couple, much else is fuzzy. Fuzziest of all, for example, is the extent to which a legal separation would protect a legally separated spouse from a marital purpose obligation under Chapter 766.

Of course, the Supreme Court might decide this case on contract interpretation and avoid questions about the differences between legal separation and divorce. Here’s hoping that they don’t do so.

We could use some help here.

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