Legal area of practice at Musial & Friedrich, S.C.

Legal specialties at Musial & Friedrich, S.C.The skilled family law attorneys at Musial & Friedrich, S.C. are dedicated to helping their clients with everything from estate planning and prenuptial agreements to divorce and custody agreements. Our practice areas include:

Mediation

Mediation is a process in which parties hire a neutral third party to help them negotiate an agreement. Typically, mediators have education and experience in law, social work or mental health. A mediator does not represent either party, and therefore cannot give advice to either party. Mediation may occur with parties who have hired attorneys or who are not represented by counsel. The mediator helps parties frame their issues, gives direction and focus to the parties, and can provide information about the range of possible outcomes for them. A skilled mediator can help parties resolve even the most difficult and painful disputes with dignity.

Divorcing and separating couples, both traditional and non-traditional, can use a mediator to help them reach agreements as to how to divide their property, raise their children, and support themselves and their children. In most situations, after an agreement is reached, the parties want it reduced to writing. Some mediators draft letters or memoranda summarizing the parties' agreements, after which the parties or their attorneys prepare any legal documents required by the court system. Some attorney-mediators serve as draftsperson for the parties, and draft the formal documents necessary to finalize their separation or divorce.

At Musial & Friedrich, S.C., Lisa Friedrich offers mediation services to clients.

Premarital and marital agreements

On January 1, 1986, Wisconsin became a "marital property" state. Under Wisconsin law, property acquired by the earnings of either party before and during the marriage, even though titled in one spouse's name, is considered property of the marriage, and each spouse has an undivided one-half interest in each item of marital property. However, the party in whose name the property is titled has the right to control and manage that property, subject to a good faith duty to act in both parties' best interests. Gifts and inheritances are considered individual property, and not marital property, unless they become "mixed" with other marital property. Under Wisconsin law, a couple may use a formal marital agreement to "reclassify" gifts, inheritances, and property owned prior to the marriage as "marital" property, or to "classify" assets acquired before and during their marriage as "individual," and not marital property.

One of the first questions a couple should address is: What are your main objectives in entering into a marital agreement? Do you wish an agreement for use during your marriage, for protection of either of you upon the death of the other, for protection of any child or children, or for use in the event of a divorce? Knowing your goals in entering into a marital agreement will enable us to better focus the agreement for you.

A couple should discuss the following issues:

  • Support for a minor child. Nothing in a marital agreement can adversely affect the right of a minor child to support. This includes any child by a previous marriage, as well as any children born during the marriage. Anything contained in a marital agreement which adversely affects a child's right to support will be deemed void by the Courts.
  • Property rights and obligations. The rights and obligations each party may have regarding property owned by either party, regardless of when or how it is acquired, may be set out in a marital property agreement.
  • Management and control. Parties may reach agreements regarding who may manage and control their individual as well as their marital property.
  • Incapacitation, divorce or death. Parties may set out how they wish their property divided in the event of the incapacity of either of them, the death of either, or a divorce.
  • Support for a spouse. Parties should discuss their wishes regarding support by one for the other during their marriage as well as upon any separation, divorce, or incapacity.
  • Other documents. Parties may discuss making a will, trust, or other arrangement to carry out the terms of their marital agreement.
  • Avoiding probate. Parties may discuss what they wish to be done with their assets at the time of either party's death. These agreements may be included in the marital agreement so that the property may pass without probate.
  • Forum. Parties may decide which state's laws they wish to govern their agreement, in the event they move to another state during their marriage.
  • Other decisions. Parties may make any other decision regarding their property that they wish, so long as that decision is not in violation of a public policy or a statute imposing a criminal penalty.

A formal marital property agreement can only be amended or revoked by another marital property agreement signed at a later time by both parties. Parties may enter into a marital property agreement prior to their marriage, but it will take effect only upon their marriage.

A marital property agreement will not be enforceable if either spouse proves any of the following:

  • The agreement was unconscionable, or totally unfair or unjust to one party, at the time it was signed.
  • A party did not enter into the marital property agreement voluntarily.
  • Prior to the agreement, one party did not receive a fair and reasonable disclosure of the other party's property or financial obligations, or did not voluntarily waive, in writing, the right to such disclosure; and he or she did not have notice of the other party’s property or financial obligations.

Given the requirement for “fair and reasonable” financial disclosure in order to enter into an enforceable marital property agreement, each party should fully disclose his or her assets, debts, income and ongoing obligations or budget to the other before the couple begins serious negotiations about the terms of a marital agreement. In that way, when the parties discuss the terms of their marital agreement each does so with full knowledge of the other’s financial status.

Because of the complex, sensitive nature of a marital agreement, and the rights involved for both parties, it is preferable for each party to have an attorney to help him or her understand and negotiate the terms of the agreement. Parties may use mediation or the collaborative model to help them negotiate their marital agreement. Parties should remember, however, that this process takes time, and it is best to get any premarital agreement drafted and signed well before the wedding.

At Musial & Friedrich, S.C., Lisa Friedrich assists clients with premarital and marital agreements and offers mediation and the collaborative model.

Paternity

When two unmarried people have a child together, the child’s paternity may be legally established by a paternity action. Without a judgement of paternity, a father has no legally enforceable right to see the child, and no duty to provide support for the child. After paternity is established, both parents have legally enforceable rights regarding their child, as well as a duty to provide financial support for their child.

Either or both parents can start a paternity action. A paternity action is officially begun with the filing of a summons and petition (or simply a joint petition if both parents sign it) with the court system. The summons formally gives notice to the other person that he or she is being sued, and that he or she has the right to file an answer, or response, to the suit. The petition states the basic facts of the case and sets out the legal relief requested by the person who has filed the action.

If the man alleged to be the father of the child disputes, or is not sure that he is the child’s father, genetic tests can be ordered for the parties and the child. The American Red Cross performs genetic tests by collecting saliva from the parents and child with oral swabs; drawing blood is no longer necessary. Under some circumstances, the alleged father may be entitled to a court-appointed attorney, but only regarding the issue of whether or not he is the child’s father. If requested in a timely manner, a jury trial may be held; otherwise, a paternity trial is given to the judge. Paternity proceedings to determine who the father of a child is are confidential and not open to the public.

Once the court decides who the child's father is, it will enter orders regarding the child's legal custody and physical placement. Legal custody refers to the right and responsibility to make major decisions concerning a child. Major decisions include decisions regarding consent to marry, consent to enter the military service, consent to obtain a driver’s license, authorization for non-emergency health care and choice of school and religion. In Wisconsin, parents may be awarded joint legal custody, so that they share legal custody, and neither parent's legal custody rights are superior to the other parent's rights. Alternatively, one parent may be awarded sole legal custody, if certain conditions are met. Often, in a paternity action, the decision regarding the child’s legal custody is made at the first court appearance in the case. Because of this, a parent may wish to involve an attorney at the start of a paternity action, to avoid jeopardizing his or her rights.

Physical placement refers to a child's schedule between the parents' homes, and it should include the child's routine, day-to-day and week-to-week schedule, as well as holidays and vacations. A child's physical placement schedule should be specific and detailed, so that a court could enforce a parent's placement rights in the future, if necessary. A well-drafted custody and physical placement order is essential to protect each parent's rights, and to minimize the possibility of the child being caught in the middle of conflicts between the parents.

If the parents can agree on the legal custody and physical placement of their child, in most circumstances, the court will enter an order incorporating their agreements. If the parents disagree on their child's legal custody and physical placement, the court will enter a temporary order regarding placement, and it may refer the parents to a mediator or social service agency (often one within the court system) to help them resolve these issues. A mediator will often first try to help parents reach agreements regarding their child's legal custody and physical placement. If the parents do not reach an agreement through mediation, the social service agency will evaluate and investigate their proposals and life situations, and it will make recommendations to the court as to what legal custody and physical placement arrangements are in the best interest of the child. If the parents are still unable to reach agreement, the court will schedule a hearing to take evidence, hear arguments on behalf of each parent, and make the final decisions regarding the child’s legal custody and physical placement.

Financial issues regarding the child must also be addressed by the child's parents and the court. These may include child support, payment of the child's expenses, maintenance of health insurance for the child, and a determination of which parent may claim the child as a tax exemption. Wisconsin has guidelines for setting child support which require the consideration of a number of factors, including the parents' respective incomes, the number of children involved, payment of the child's expenses, and the physical placement schedule, among other factors. An attorney can help you sort out how all of these factors apply to your specific factual circumstances.

At Musial & Friedrich, S.C., Bonnie S. Musial and Lisa Friedrich can assist you with your paternity issues.

Family law resources

Collaborative Family Law

"Divorce, A Problem to be Solved, Not a Battle to be Fought"
By Karen Fagerstrom, published by Brookwood Publishing, 1997.

Website of the Collaborative Family Law Council of Wisconsin:
www.collabdivorce.com

Website of the International Academy of Collaborative Professionals:
www.collaborativepractice.com

Grieving

"How to Survive the Loss of a Love"
By Melba Colgrove, PhD., Harold H. Bloomfield, M.D. & Peter McWilliams, published by Bantom Books, 1977.

Negotiating

"Getting to Yes," Second Edition
By Roger Fisher, William Ury & Bruce Patton, published by Penguin Books, 1991.

Parenting

"Between Two Worlds"
By Elizabeth Marquart, published by Crown Publishers, 2005.

"The Co-Parenting Survival Guide"
By Elizabeth Thayer, PhD. & Jeffery Zimmerman, PhD., Published by Harbinger Publications, Inc., 2001

"How to Help Your Child Overcome Your Divorce"
By Elissa P. Benedek, M.D. & Catherine F. Brown, M.Ed., published by New Market Press, 1998.

"Mom's House, Dad's House: Making Two Homes for Your Child"
By Isolina Ricci, Ph.D., published by Simon & Schuster, 1997

Contact Musial & Friedrich, S.C. in Madison, Wisconsin, today to speak with an experienced, compassionate attorney regarding your legal matters.