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Tag: divorce

FAMILY LAW: Rewriting the book on marriage

Gregg Herman is a shareholder with Loeb & Herman SC, Milwaukee, which practices exclusively family law. Herman can be reached at [email protected].

With same-sex marriage now legal in 36 states — and probably legal in all 50 after the U.S. Supreme Court rules next summer — same-sex divorces will follow in due course.

Will there be any differences between opposite-sex divorces and same-sex divorces?

Procedurally, the answer is, “yes, a little.” As authors of the “System Book for Family Law,” published by the Wisconsin Bar Association, my office is working on the next supplement. In it, we are changing certain forms which use the terminology “husband” and “wife” and giving other options, such as using first names. For example, I find a high risk of error in Marital Settlement Agreements that use “Petitioner” and “Respondent,” as it is easy to forget which party is which in an individual case. Therefore, we have traditionally used “Husband” and Wife.” That won’t work for a same-sex couple, so with apologies to the few family court judges who dislike parties being called by their first names, it seems to be the easiest alternative when there are two husbands or two wives.

The larger problem is the joint petition which differentiates between the parties as “Joint-Petitioner Husband” and “Joint Petitioner Wife.” We haven’t figured that one out yet and we welcome any suggestions.

Procedure is the easy part. The tougher question is whether same-sex divorces will be any different substantively. Of course, the technical answer is no, as the law is supposed to be gender-neutral. But, many a slip has been caused by the gap between theory and reality.

It may be years before there is even any anecdotal evidence of any difference. In short-term marriages, property tends to be returned to whoever owned it prior to marriage as a deviation from an equal property division. Also, maintenance generally does not become an issue until marriage is at least a few years old, and is generally not a major issue until the marriage length reaches double digits. It will be a while before same-sex marriages reach mid-term status, much less long-term. In the interim, neither property division nor maintenance orders will likely be any different than in opposite-sex marriages.

What about 10 to 20 years down the road, though? As Yogi Berra famously (supposedly) said: “Predictions are very difficult to make, especially about the future.” Still, this column is designed not just to educate, but also to entertain. Besides, it is a safe bet that 10 to 20 years from now, no one will recall this column anyway. So, caution to the wind.

Yes, I believe that the “play out” of same-sex marriages will differ from that of opposite-sex ones in certain ways. For one, if same-sex couples can marry, they should be able to have families, as much as biology and adoption laws allow. So surrogacy law — which in Wisconsin consists of exactly one case, Rosecky v. Schissel, 2013 WI 66, 349 Wis. 2d 84, 833 N.W.2d 634 — needs expansion. Divorce lawyers and courts will need to learn about surrogacy and adoption and how it applies among the varying gender possibilities.

It will be interesting to see the development of support agreements and orders. Technically, of course, support laws are gender-neutral. But, this neutrality seems to be more commonly applied in child support matters, undoubtedly due to the guidelines.

Spousal support is another matter. Anecdotally, it seems far easier to get spousal support — more of it and longer — for a woman than for a man. My guess is that the biological requirement for a uterus to give birth makes it more common for a woman to get pregnant and, in turn, to have a maternity leave. Therefore, it is more common for women to make the sacrifices in a marital relationship, which result in less ability to create income in the future if the marriage fails. So my prediction is that spousal support awards will be better in same-sex female marriages than same-sex male marriages, at least where one of the females gave birth.

Only time will tell if these predictions come true. In the meantime, I’m going to get to work modifying the forms.

FAMILY LAW: A handy decision for divorcees considering a move

Gregg Herman is a shareholder with Loeb & Herman SC, Milwaukee, which practices exclusively family law. Herman can be reached at [email protected].

Two questions regarding removal were addressed by the District 2 Court of Appeals in Shulka v. Sikraji, No. 2013AP2080, which was recommended for publication.

The first dealt with the requirement that a notice of intent to remove minor children specify the proposed location of the move. The second deals with whether the parent proposing the move can change his or her mind about the move if the court would change placement rather than approve the proposed removal.

In Shulka, the parties divorced in 2007 with the mother given primary placement of the children. In October 2011, she filed a motion to remove the children from Lake Geneva to Lake County, Ill., which was granted by the family court commissioner. However, she moved from Lake Geneva to Round Lake, Ill., which is not in Lake County. The FCC then ordered her to move back to Lake Geneva and re-enroll the children in the schools there, or lose primary placement.

The Court of Appeals affirmed the trial court, finding that a substantial change in circumstances had occurred when she moved to a different location than she had proposed in her motion. The appellate court affirmed the order that the children be enrolled in the Lake Geneva schools and that she return so their enrollment could be accomplished, or lose primary placement.

While the decision simply affirms the trial court’s exercise of discretion as being appropriate, there are two aspects of the removal law, Wis. Stats. §767.481, which should be noted.

First, the statute was amended in 1995, changes I was involved in drafting and lobbying for. Part of that amendment required persons seeking to remove with a minor child to specify the “specific beginning and ending dates and location of the removal.” Wis. Stats. §767.481(1)1(b). This is the first case to deal with that portion of the statute and, appropriately, affirms the trial court for holding the mother to her representation. In simple terms, if you tell the child’s other parent where you intend to take the child, permission to remove is specific to that location. The removing parent doesn’t have carte blanche to move wherever he or she chooses.

The second interesting aspect of the case was the trial court, by ordering the mother to move back to Wisconsin, was allowing her to change her mind about moving rather than having primary placement changed. While there is no provision in the statute to allow a “never mind” decision, it makes a great deal of sense. After all, placement is awarded to a parent, not a location. If one parent intends to change that location, permission must be sought and one possible result may be to change primary placement to the other parent. But, if the moving parent doesn’t move, then matters should remain as they are.

Most courts, in my experience, allow the “never mind” option. While this case doesn’t expressly adopt that option as a matter of law, by affirming the trial court, it implicitly approves it.

Therefore, this is a handy case for family-law attorneys to have at their disposal for those cases where a client wants to move, but would forgo it if it means losing primary placement.

Divorces drop for 3rd straight year across state

MADISON, Wis. (AP) — For the first time in three years, the number of people getting married in Wisconsin went down.

The number of weddings had declined for 30 straight years before increases in both 2011 and 2012. But in 2013, weddings dropped by 961 compared with the year before.

The state Department of Health Services reported the data Wednesday.

The report shows that 29,979 couples tied the knot last year, down 961 from the year before.

While fewer people are getting married, divorces also continue to decline.

There were 15,941 divorces in the state last year, the third year in a row there has been a decrease. There were 391 fewer divorces in 2013 compared with 2012.

The most popular month to get married last year was August, with January the least popular.

FAMILY LAW: Divorce ‘documentary’ shows little to no reality

Gregg Herman is a shareholder with Loeb & Herman SC, Milwaukee, which practices exclusively family law. Herman can be reached at [email protected].

Now that we’re in the thick of winter and as Oscar season approaches, thoughts turn to spending some time at the warm local cinema for diversion.

But a film I won’t be seeing anytime soon is a new documentary called “Divorce Corp.,” billed as an “expose” on the divorce “industry.”

According to its marketing campaign, “Divorce Corp.” exposes divorce as: “[A] $50 billion a year industry, with more funds flooding in to family courts in the United States than all other court systems combined.” It goes on to say that filmmaker Joseph Sorge was inspired by his own divorce and custody battles a few years ago and calls the system “an unregulated mess in which children are ripped from their homes, insulting judges play God with parents’ lives, and unlicensed custody evaluators are more like extortionists.”

Clearly, I and probably every other family-court attorney and judge take issue with that characterization. My initial questions/concerns:

  • Where do they get those statistics?
  • A system that applies largely statutory law and where elected judges and attorneys are overseen for ethics violations is an “unregulated mess?”
  • Custody evaluators are unlicensed – since when?

But don’t just take it from me that this documentary has problems. Reviewers have said “Divorce Corp.” exhibits poor logic and an inaccurate reality. The review at rogerebert.com, for example, says the film “takes a few outrageous examples and extrapolates to those being the rule rather than the exception. In fact, much of the film is apparently about one case.”

In the movie trailer, one woman purports to have been involved in a divorce that spanned eight years. Really? I know of no divorce in Wisconsin, or anywhere else, where the divorce process itself lasted anywhere near that time.

It’s all about as scientific as Bernard Madoff “exposing” the investment advising business as ripping off customers.

To add to the scientific nature of the film, “Divorce Corp.” is narrated by Dr. Drew Pinsky. If you’ve not heard of him, he’s the star of TV’s “Celebrity Rehab” and “Sex Rehab,” among other programs.

High-minded stuff.

Back to Bernie. Are there dishonest investment advisors? I’m sure there are. And I’m equally sure that they comprise the minority, not the majority. The same can be said, for that matter, about any profession. None is immune from some who do not play by the rules.

In reality, the vast majority of lawyers with whom I deal are highly professional. Most and by most, I mean much more than 80 percent do what professionals are supposed to do, which is to work for the best interests of their clients.

Of course I’ve had experience with lawyers who are running the meter to enrich themselves at the expense of their clients; but they are — by far — the minority.

It is not uncommon in this field for people to engage in anger transference. Instead of being angry at themselves (or better yet, accepting the situation and not being angry at anyone), some transfer the anger to others. As a result, family lawyers are a leading target for ethical grievances and malpractice suits. But this is a result of the high degree of emotion involved in family breakups. In reality, family-law attorneys are no worse than lawyers in any other area of law. And, given the high degree of emotions involved in this field, that’s saying a lot.

The same applies to most judges and experts. For judges, the vast majority I have appeared before cares deeply about the people in their cases and try very hard to do the right thing as they see it. To take one (or even a few) cases and extrapolate that the system is corrupt is more than unfair; it’s libelous.

The Divorcecorp.com website also is telling. Under a tab labeled “Reform,” there are no suggestions for reform, which likely holds true in the film, as well. Rather, we are urged to attend an upcoming conference on the topic, which no doubt will be a gathering of very bitter people, lining the pockets of the producers of this movie and coming up with absolutely nothing to actually reform the system.

The system always can be improved, to be sure. But, having practiced in the area for three decades now, I can say the system now works about as well as any other aspect of the justice system – and actually does a lot of good for many people.

“Divorce Corp.” is not in wide release, but appears to available now only by special screening. Save your money if you get an opportunity to go.

Instead go see “The Nut Job,” “I, Frankenstein” or something along those lines, which very likely present more reality and will provoke more thought than this film.

Fools rush in to mediation

By John Fiske
Dolan Media Newswires

Stop_watch_Recently a woman, despite her basic fears, called me to discuss divorce mediation.

She wasn’t ready to commit, and voiced a list of worries:

  • “I’m afraid my interests won’t be represented. I will have no one in the room with me to back me up.”
  • “When I talked with a lawyer, he completely overreacted. He wanted to sue my husband and be very aggressive. We don’t want that at all.”
  • “Divorce has its own culture of contentiousness. It’s as if all my friends hear that I am getting divorced and they’re telling me I have to fight with my husband. We don’t want that at all. We have goodwill toward one another.”
  • “I’m afraid that my husband will get mad at me for asking for something and I’ll back down.”
  • “We’ve been separated for two years and are cooperating well around our children. Yet when I decided to move out, I was told that I’m screwed in the divorce because I was the one who left.”

There are many responses available to the listening mediator:

How much time do you spend on the phone with one spouse before meeting him or her?

Do you compromise your neutrality if you spend half an hour with this woman and not talk on the phone with the husband before they come to your office?

What if you’ve already talked to the husband and encouraged him to tell his wife to call? After talking to the husband, would you ever telephone or email the wife if she didn’t call you? How do you reassure her about having left?

There may not be any responses that fully answer those questions. The listening mediator decides what he feels will help the mediation, which usually means listening a lot to the wife and then trying to answer her questions as directly and simply as possible.

But the key is to listen. Don’t jump into action or force the potential client to decide to take action.

The first phone call is your first chance to connect, after which something good may happen, e.g., she comes in with her husband to meet with you and they hire you to mediate their divorce. (Note: The last thing you want to do is call a person who has not called you first, so it’s up to her to bring in her husband, not you).

One way to connect with her is to acknowledge her fear. In the instance above, I was struck by how much she had already figured out. I asked her how she had come to realize what was troubling her: She would feel alone in the mediation room.

What a gift for the mediator — to be told by the client what is going on for her. In an insightful article for Mediation Quarterly in fall 1988, John Haynes described in “John and Mary: Sharing parenting after divorce” why he began the mediation of a transcontinental kidnapping case by asking each parent to define the worst possible outcome in working with him.

He wrote:

“I wanted to find out what it was they feared the most. My experience in cases such as this is that couples are driven to mediation by fear: fear of the alternatives and fear that the worst possible outcome will materialize in alternative arenas. I believe that if these fears can surface and be negotiated early in the process, then the parties can concentrate not on defending against their fears but on solving the immediate problem.”

I agree, and early in the process, I like to ask couples: “What are your concerns?”

I’ve found two archetypal and totally gender-based responses. The woman says, “I don’t want to be a bag lady. I don’t want to be on the street. I want security.” Almost never does the man say he wants security. The man’s concern is his freedom: “How long do I have to pay alimony? When am I off the hook?” His fear is that he is forever enslaved.

Fear is energizing and also paralyzing, depending on who we are and how we respond to it; some confront, others avoid.

A couple came to me and the wife began by saying for three years she had avoided discussing their conflict because she was afraid she would lose the house. Her husband was astonished and said, “You can have the house; I don’t want it.” She gave a small scream and started sobbing.

For that woman, the mediation process became liberating. The mediator’s solution to everything is to talk about it, and by giving people a place to talk we give them a safe place to confront their fears and to liberate themselves. Then they have to decide what to do.

The problem with negotiating is that we don’t always know what we want. We don’t spend the time and hard, lonely work walking in the wilderness to figure it out. People who ask themselves about their own concerns will be on the right track and may be astonished at some answers.

Until you know what you want, any negotiation is dangerous. My wife suggests that therapy may help a client focus so that he or she can answer: “What is most important to me? What do I care about the most? Why?”

In addition to therapeutic insight, divorcing clients benefit from living apart for a time. In a course I took years ago at the Boston Psychoanalytic Institute about the psychology of divorce, neither the teachers nor the students could agree on anything, except that it’s easier to work with clients who have been living apart for at least six months than those still living together or only recently separated. After six months, couples have experience with what works and what doesn’t and are beginning to figure out their own priorities.

I’m constantly slowing people down and telling them, “Don’t agree to anything until you’re sure it’s right for you.”

It’s also about readiness. When people are ready to agree, they will agree — and not a moment sooner.

In a voluntary process such as mediation, no one should agree to anything before he or she is ready. Rush into nothing. The process and the result will be worthy of respect for years to come.

John Fiske is of counsel at Healy, Fiske, Richmond & Matthew, a Cambridge, Mass., firm concentrating in family law and mediation.

Divorces, other family crises take civil approach in Ind. court

By SUSAN BROWN
The Times

VALPARAISO, Ind. (AP) — Nearly 15 years after the Indiana Supreme Court launched its Family Court Project, 22 counties — including Lake and Porter — are working toward a kinder, gentler, more holistic way to resolve family crises, court officials say.

“Family law cases are different than most cases,” said Merrillville attorney Debra Dubovich, head of the Family Law section of the Lake County Bar Association.

“If you’re hit by a drunk driver, it’s an emotional thing. But when being sued by the person who promised to love, honor and cherish you your entire life, it’s takes on a whole new dimension. The courtroom is never a good place to decide those issues.”

A litigant may never see a drunken driving defendant again after the case is concluded, she said.

But that’s not the case with families.

“If you have children, then it’s for the rest of their life,” Dubovich told The Times.

Initially the high court’s Family Court Project focused on the basics of how the courts could share information on families that had multiple issues before the court — be they related to divorce, criminal or juvenile proceedings.

The scope since has broadened to offering services of all sorts, from mediation and counseling to truancy programs and even free legal assistance.

Few of the participating counties ended up consolidating a family’s multiple cases under a unified family court system in which a family’s issues are heard by a single judge or judicial officer.

And the existing projects have proven to be far from “one size fits all.” Instead, they are tailored to each county’s needs and resources, according to a 2011 report by the high court on the project’s progress.

There’s even a four-county project involving four separate counties: Bartholomew, Brown, Jackson and Lawrence. These counties share a single mediator to expedite certain divorce and paternity cases as well as those involving children in need of services.

While he was a legislator in the 1990s, now Porter Superior Court Judge William Alexa was in the vanguard of the high court’s family court initiative.

Working with Porter Circuit Court Judge Mary Harper, Alexa obtained funding for the county as one of the three or four original demonstration projects.

“The purpose was to maintain contact with families that may have things going on in different courts,” he said.

Today he receives at least a weekly printout listing families involved with the family court, Alexa said.

“It’s important for me to know if one of my defendants is also involved in a domestic violence case,” he said. “It’s also important at sentencing time for a presentence report.”

Alexa said the extra awareness allows him to modify an order in his court when he learns of a family’s issues in another court.gavelrings

But all family court initiatives are under the domain of Harper and have been since 2000.

Since then, Harper has sought to bridge the gap between the fields of adult and juvenile justice, according to a 2011 report to the high court.

In the report, the county details a comprehensive “full service court” process to collect information on families involved in family law and juvenile cases and provide an array of services.

Any family with multiple cases is eligible for family court and, when selected, all pending cases involving the family are included in family court proceedings — though the cases remain in their original courts.

Over the years, the county’s family court initiatives have expanded to include a mental health diversion program and a juvenile and family drug court.

In Lake County, while there is technically a single family court project, each of its three separate courts — circuit, superior court division 3 and juvenile — has established programs tailored to specific jurisdictions or needs.

“We all have similar goals,” Lake Superior Court Judge Elizabeth Tavitas said recently. “It’s just we have different ways of reaching them.”

Lake County adopted its family court project in 2004, with Tavitas taking over the lead in superior court two years later.

“One thing we do together is share information,” Tavitas said. “If there is, for example, a divorce proceeding and in the same family a child has an issue in juvenile court, I would need to know that information. It’s not public record. It’s confidential.”

The courts’ information-sharing agreement makes such information available to her, she said.

Tavitas said all three courts offer low-cost mediation services funded from court costs.

The innovation in Tavitas’ court includes a pro se clinic for low-income parents filing for divorce in which a lawyer assists the couple in filling their own pleadings.

The clinic has since expanded, she said. All such divorce cases are set on a single afternoon during which a mediator assists the couple in working out an agreement.

“They go to court the same day, and the judge will approve the decree — all without any real lawyering,” Tavitas said.

“Divorce is an emotional process,” she added. “They’ve made the decisions without an adversarial process.”

In 2012, Tavitas saw 1,032 new filings with the legal clinic serving 122 litigants, according to her office. Some 182 individuals benefited from mediation services.

Lake County courts in recent years also adopted local family court rules, all with the support of the Lake County Bar Association.

The rules are modeled on a cooperative approach developed by Indianapolis attorney Charlie Asher.

Asher, a former trial lawyer, now works solely with a foundation created by his family to work with families in crisis.

Asher’s approach can be explored by visiting uptoparents.org, designed for divorcing parents, and proudtoparent.org, focusing on parents in paternity cases.

Lake County has its own version available at lakecountykids.org.

Lake Circuit Court Judge George Paras said he supports the effort while throwing in a dose of realism.

“The cooperative rules are only as good as the people who are party to them,” Paras said.

“It works well when the people want to use the tools available to them,” he said. “But if they want to have a ‘fight,’ they have to come to court.”

Residents in Lake County may file for divorce in either circuit or superior court, with about an equal number filed in each.

The circuit court’s family court offering includes the Domestic Relations Bureau, which offers a wide range of services including mediation and a clinical psychologist providing low-cost custody evaluations, Paras said.

Child care for parents waiting to appear in court is offered in the children’s playroom.

Some 50 percent of divorce filings are self-represented, with such court calls held on Fridays, Paras said. Litigants are directed to the website and shown what documents need to be filed.

Over in Lake Juvenile Court, Magistrate Elizabeth Tegarden said the court offers a parenting course and mediation services to parents pursuing paternity rights.

Tegarden said the programs do work when there’s a reasonable possibility parents can work things out together “without going brickbats in court.”

Information from: The Times, http://www.thetimesonline.com

FAMILY LAW: What causes divorce

Gregg Herman is a shareholder with Loeb & Herman S.C. in Milwaukee, which practices exclusively family law. Herman can be reached via at [email protected].

Perhaps the two most common questions I am asked by people who learn that I am a divorce lawyer are: “What causes most of the divorces I handle?” and “How can I prevent becoming one of your clients?”

The answer to the first one is fairly simple, but the answer to the second is far more complicated.

My answer to the first question has to be taken into context. Most of the cases I see involve people of a higher than average socio-economic status. While I have handled cases involving domestic violence, substance abuse, alcoholism and financial hardship, these issues tend to be less prevalent in higher socio-economic status cases.

In my cases, by far the most common cause for divorce is simply incompatibility. Personalities are not static; people change over time, sometimes for the better and sometimes for the worse. And occasionally, the changes are neither bad nor good — they are just not compatible with the changes in the other spouse’s personality.

When there is infidelity, it is almost always a symptom of a failing marriage, rather than the underlying cause. That is not to say the spouse is wrong for lying or cheating. If a marriage is failing, it would be far better to end the marriage first before exploring other romantic or physical options.

But generally, there are temptations for married people, illustrated by President Jimmy Carter’s famous confession that he had “looked on many women with lust.” Where the underlying marital relationship is strong, however, neither spouse will act on temptations. It is where the underlying relationship is already damaged that a spouse will violate his or her marital vow to forsake all others.

It is this very erosion of the marital relationship that makes divorce difficult. The legal issues in most cases are typically not that difficult to resolve. Absent abuse or geographic distance, placement of children is so commonly shared equally that at times I wonder if it is not mandatory (and many couples seem to think that it is).

Child support guidelines, once merely a suggestion, are now uniformly applied to all but the most unusual cases. And given the increasing number of women in the workforce and a trend toward pay parity, even maintenance cases are not as common as back in the day of the standard stay-at-home mom.

But the emotions that led to filing of a divorce do not disappear when the filing fee is paid. After all, the parties have the same personality, and the incompatibility that led them to split frequently causes emotions to overwhelm the legal issues that need to be resolved. One means of ameliorating this problem is connected with the second question of how to preserve marriages.

My problem with this question is two-fold. First, I typically see marriages after they have reached the point of no return. Second, my training is as a lawyer, not a mental health expert. Still, observing the dissolution of marriages for many years has allowed me to derive some opinions.

Permit me to do it by analogy. A number of years ago, a colleague had a tree snap in two during a major windstorm. Prior to that storm, from all external evidence, the tree seemed to be thriving. It grew new leaves every spring and looked healthy. Once it snapped, you could see that it had been rotting for a long time.

Had my colleague been aware that the tree was rotting early enough, he could have treated it and perhaps saved the tree.

The same goes for marriage.

Divorces are not instantaneous mutations in characters. Rather, they are the product of a slow, degenerative process that takes a long time. When left untreated, a sudden event, such as acting on a sexual temptation, is the equivalent of the gust of wind causing a structural failure.

The only effective treatment is a course of counseling before the erosion of the relationship has proceeded too far. Even if not successful, by tackling these issues, the parties often can prevent the divorce from becoming a war.

Unlike lawyers, whose training includes engaging in adversarial combat (otherwise known as litigation), mental health providers are trained to help people find peace — both within themselves and with others.

Therefore, all married couples should seek counselors before engaging lawyers. Not because the law requires it, but because it is the best treatment available. If it can preserve the marriage, great. But, if not, it may have the desirable (if secondary effect) of making the process less violent and more peaceful.

FAMILY LAW: Why collaborative divorce continues to decline in popularity

Gregg Herman is a shareholder with Loeb & Herman S.C. in Milwaukee, which practices exclusively family law. Herman can be reached via at [email protected].

Few articles I’ve written have resulted in as much feedback as a June 8, 2011, piece I did on a collaborative case filings in Waukesha County.

While some readers recognized that, as I said at the end of the article, “Numbers don’t lie,” others attacked the methodology or the conclusion that collaborative cases were declining.

Now I’ve updated the study and am bracing for the impact.

My updated conclusion, now based on seven years of data, is that collaborative law is more of a training exercise for a small number of devotees who seem to do a lot of training for very few cases.

Once again, I’m using Waukesha County for this study, since it’s large enough to be meaningful, but not too large to make a study costly or overly difficult.

In my initial study in 2008, I found that 1.91 percent of divorce cases were resolved collaboratively over a three-year period. To my surprise, over the next two years, this percentage did not go up, but rather decreased to 1.36 percent of all divorce filings.

The good news for devotees of this process is that there is not much lower to go from less than 2 percent of the total cases filed. The bad news is that, while there is a huge upside potential, growth did not happen.

During the three-year period from 2010 through 2012, there were 62 collaborative divorce cases filed out of a total of 3,862 divorces. The total number of family-law cases filed was higher, but most, if not all, collaborative cases arise from divorces, so I will limit the comparison to those cases. The arithmetic reflects that 1.6 percent of divorce cases were filed as collaborative, or about the average of the prior two studies. The raw statistics are available for viewing on my office’s website.

With this many years of statistics now available and the above-stated maxim still applicable, a conclusion may be drawn: Collaborative divorce is a minuscule part of our family-law system, notwithstanding the number of trainings and meetings put on by the group.

So, why hasn’t this seemingly helpful methodology of settlement grown beyond a tiny number of cases?

One reason, for sure, is the cost of the process. Of the calls I’ve received about handling a case collaboratively, most, if not all, have been centered not on a goal of achieving a peaceful process, but on saving attorney fees. Yet, the collaborative process not only requires both sides to have lawyers, but frequently involves numerous other professionals, such a child specialist, mental-health coaches for both parties and an independent financial expert. At a time when more divorcing parties are choosing to have no lawyers at all, a collaborative case typically requires more money, not less.

In addition, derived or not, there is a general perception that the collaborative movement is not only cliquish, but exclusive. Certainly, it seems that the same individuals are recycled as officers and speakers. Worse, the perception is that the proponents are evangelistic — believing not just that collaborative is one of a number of alternatives, but that it is the best method of divorcing. That attitude is a turn-off for those who believe that practitioners need to keep an open mind and be flexible so that the strategy fits an individual case, and not the other way around.

Finally, and perhaps most importantly, the relatively few collaborative cases that have failed tend to receive more notice than the ones that succeed. Since, by design, the cost of failure is so high, there’s a reluctance for practitioners to recommend that clients take the risk.

This is not to say that I don’t believe there is a place for collaborative divorce. After all, I founded the Wisconsin Council on Collaborative Divorce and served as its first chairman. And even though I recently dropped my membership due to the above concerns, it was with regret.

Parties to a divorce should have the option of choosing a route that doesn’t go through the litigation process. But the numbers don’t lie: not many are opting to try the collaborative option.

Property — divorce

Wisconsin Court of Appeals

Civil

Property — divorce

A divorce court lacks jurisdiction to transfer interests in real property, where the respondent was not personally served in the divorce action and did not appear in any proceedings pertaining to the divorce action.

“Had the legislature intended to remove the requirement of personal jurisdiction for divorce decisions involving property, it could have written the 2001 amendment more expansively. Our reading of the narrow exception the legislature created is consistent with rules of statutory construction. Under the doctrine of expressio unius est exclusio alterius, ‘“the express mention of one matter excludes other similar matters [that are] not mentioned.”’ FAS, LLC v. Town of Bass Lake, 2007 WI 73, ¶27, 301 Wis. 2d 321, 733 N.W.2d 287 (citation omitted; brackets in FAS).”

Affirmed.

Recommended for publication in the official reports.

2012AP102 Montalvo v. U.S. Title & Closing Services, LLC

Dist. I, Milwaukee County, Siefert, J., Kessler, J.

Attorneys: For Appellant: Yeager, Karl J., Minneapolis; Weiss, Debra L., Minneapolis; For Respondent: Steinmetz, William R., Milwaukee

Family – divorce – arbitration — family support — attorney fees — modification

Wisconsin Court of Appeals

Civil

Family – divorce – arbitration — family support — attorney fees — modification

Ron Symdon appeals the circuit court judgment divorcing him from Peggy Symdon. The judgment incorporated an arbitration award that addressed all contested issues, including property division, family support, and attorney’s fees. Ron separately appeals a post-divorce order in which the circuit court denied Ron’s motion to modify family support and found Ron in contempt for failing to pay additional attorney’s fees that the court had ordered. Ron purports to present arguments on eight issues relating to the divorce judgment and three issues relating to the post-divorce order. However, we conclude that many of these arguments are undeveloped or underdeveloped, and that none of the arguments that are sufficiently developed for consideration are persuasive. Therefore, we affirm. Not recommended for publication in the official reports.

2011AP623, 2011AP2617 In re the marriage of: Symdon v. Symdon

Dist IV, Dane County, Markson, J., Blanchard, J.

Attorneys: For Appellant: Winnig, Joel B., Madison; For Respondent: Musser, Daniel, Madison

Family – divorce — voluntary dismissal

Wisconsin Court of Appeals

Civil

Family – divorce — voluntary dismissal

Andrew Kittelson appeals an order dismissing Patricia Kittelson’s petition for divorce. Andrew argues the circuit court erroneously exercised its discretion by: (1) granting Patricia’s motion for voluntary dismissal without considering the factors set forth in Clark v. Mudge, 229 Wis. 2d 44, 599 N.W.2d 67 (Ct. App. 1999); and (2) failing to address his guardian’s motion for leave to file a counterclaim. We agree. We therefore reverse the court’s order and remand for the court to apply the Clark factors and consider the guardian’s motion. This opinion will not be published.

2011AP2433 In re the marriage of: Kittelson v. Kittelson

Dist III, Trempealeau County, Damon, J., Per Curiam

Attorneys: For Appellant: Feltes, Charles V., Osseo; For Respondent: Skemp, Joseph J., Jr., La Crosse; Burgos, Kara M., La Crosse

Divorced father entitled to dependency tax exemption, rules US Tax Court

A divorced father could claim a dependency exemption on his federal income taxes – even though his child’s mother refused to sign the form ordinarily required by the IRS for such exemptions, the U.S. Tax Court has ruled.

The taxpayer divorced in 2001. Although his child lives with his former wife for most of the year, their separation agreement provided that the taxpayer was entitled to claim the child as his dependent. In addition, the wife promised to fill out the form required by the IRS when allocating the dependency exemption to a noncustodial parent (customarily Form 8332), as long as the taxpayer kept current with his child support payments.

The wife refused to execute a Form 8332 for the 2006 tax year, even though the taxpayer had paid his child support.

To substantiate his entitlement to the exemption, the taxpayer attached a copy of his separation agreement to his federal income tax return instead.

The IRS disallowed the exemption and child tax credit, determining that the copy of the separation agreement was not an adequate substitute for a duly executed Form 8332.

But the court decided that the taxpayer had sufficiently demonstrated his entitlement to the dependency exemption.

“Here, there’s no ambiguity about what year [the taxpayer] was entitled to claim [his child] as a dependent: The separation agreement is unequivocal that ‘[f]or calendar year 2000 and for any taxable years henceforth, the Father shall be entitled to claim the minor child … as a dependent exemption for purposes of income tax returns.’ [The taxpayer’s] entitlement is absolute: The only omission on the agreement was the parents’ Social Security numbers and even those the parties later stipulated. … [C]onsistent with the plain language of [Internal Revenue Code] §152(e)(2), this oversight isn’t fatal to the separation agreement’s serving as the required declaration,” the court said.

U.S. Tax Court. Scalone v. Commissioner, No. 15287-08S.