Family Law Glossary
Annulment: Is an action to declare that a marriage was invalid. Some common examples of invalid marriages are where one party was not competent to marry, or where the marriage occurred within six months of the divorce of one of the parties.
Answer: When one is served with a petition for divorce, the party is required to file a written answer in which he or she admits or denies the factual allegations of the complaint.
Attorney's Fees: In family law cases-- unlike most other civil cases-- the court may order one of the parties to pay the actual attorney's fees of the other party. This will occur when one party has a much greater income, or where one party is guilty of over-litigating the case.
Birth expenses: Literally, the medical expenses associated with child birth. In a paternity action, the court will assign liability for payment of birth expenses between the parties.
Child Support: In every divorce or paternity case where there are minor children, the law obligates the court to make a child support order. This is a payment from the parent without primary placement, to the parent with primary placement. In Wisconsin, child support is calculated based upon a percentage standard. However, the court may deviate from the percentage standard under special circumstances.
Contempt of Court: A party is in contempt of court where he or she is deliberately violating a court order. Contempt proceedings are very common in family court. Typically, a contempt proceeding involves a claim that one parent is not paying child support as ordered, or one parent is violating the placement schedule. If the court finds that the party is in contempt, the court has wide remedial powers which even include the ability to jail the party who is in contempt.
Court Commissioner: A court commissioner may be thought of as an "assistant judge." Commissioners have some-- but not all-- of the powers of a circuit court judge. Family courts in Wisconsin make extensive use of court commissioners. Any order granted by a court commissioner is subject to review by a circuit court judge upon the filing of a motion for review. See, Sec. 767.17, Stats
Current support: Refers to the on-going payment of child support. See "child support"
Custody: Custody refers to a parent's right to make important decisions for a minor child. These decisions include religious training, schooling, and medical care. In most cases, the court will order joint custody, which means that each parent retains the right to make these important decisions. Custody is one of the issues in a divorce or paternity case that is subject to modification under certain circumstances even after the final judgment has been entered.
Divorce: Divorce is a legal action to dissolve a marriage. In Wisconsin, a person is entitled to a divorce if he or she can establish that the marriage is irretrievably broken. This is established by one of the parties testifying under oath that the marriage is irretrievably broken. There is no requirement that the person seeking a divorce prove that the other spouse is guilty of such things as infidelity or mental cruelty. Whenever a married couple is no longer living together, a divorce action should be filed, even though the parties hold out hope that they will reconcile. A divorce action is commenced by the filing of a summons and petition for divorce. Although there is no requirement that a party be represented by an attorney, it is very advantageous to be represented by an experienced family law lawyer.
Expert testimony: Testimony given in relation to some scientific, technical or professional matter by experts, i.e., person qualified to speak authoritatively by reason of their special training, skill or familiarity with the subject.
Family Court: A branch of the circuit court that is assigned to hear actions under Wisconsin's Family Code (Ch. 767, Stats). In Milwaukee County, the family court hears only family law cases. In smaller counties, it is common for each branch of the circuit court to hear family court cases, as well as all other kinds of cases.
Family Law Attorney: Is an attorney who is well-versed in Wisconsin family law, and who has experience in the family courts. When deciding whom to hire as counsel in a divorce case, it is very important to inquire into the attorney's experience, to meet him or her in his office, and to feel comfortable with that person as your legal representative. You will have many questions, and it is important that you and your lawyer are able to communicate effectively.
Family Support: Family support is a hybrid of child support and maintenance.
Financial Declaration: In any family court proceeding, each party is required to file a financial declaration that sets forth his or her income, assets, and debts.
Findings of Fact: In trials to the court, or in contested motion hearings, where there is a dispute as to the important facts, the court will hear testimony and then recite findings of fact on the record. The judge will then apply the law to these findings, and make conclusions of law and a judgment.
Guardian ad Litem: An attorney appointed by the court to represent the best interests of a minor or incompetent person whose interests are affected by litigation. A guardian ad litem is not "adversary counsel" whose obligation it is to argue the wishes of the client whether or not the attorney believes that this is in the client's best interests.
Income: For purposes of setting child support or maintenance, "income" includes all sources of income, including wages, salary, and investment income. Significantly, "income" is not limited to a forty-hour work week; if the payer works overtime, the overtime income is included. Each party must file a financial disclosure form with the court at the start of any hearing where finanical orders are in issue.
Injunction: A prohibitive order or remedy issued by the court at the suit of the complaining party, which forbids the defendant to do some act which he is threatening or attempting to do. Conversely, it may require him to perform an act which he is obligated to perform but refuses to do.
Judgment : The official and authentic decision of a court of justice upon the rights and claims of parties to an action or suit submitted to the court for determination.
Jurisdiction: The power or authority of a court to hear and try a case; the geographic area in which a court has power or the types of cases it has power to hear. There are two types of jurisdiction: "subject matter jurisdiction" and "personal jurisdiction". A court has subject matter jurisdiction if there is a pleading filed in the court that alleges sufficient facts to constitute a cause of action under the law. For example, if a petition is filed with the court alleging that a marriage is irretrievably broken (and the other jurisdictional facts), the court has subject matter jurisdiction over the case. Personal jurisdiction refers to the court's ability to pass judgment over an invidual, and to order him or her to do certain things. The court obtains personal jurisdiction over an individual when that person is properly served with a copy of the pleadings. In family court proceedings, it is not unusual for courts in separate states to each have subject matter jurisdiction. Under the interstate compact on jurisdiction over children, the judges in each court are required to confer, and to decide between them which court will assume jurisdiction over the matter.
Legal separation: A legal separation is nearly identical to a divorce, except that, within one year of the judgment of legal separation, the parties may move the court to revoke the judgment of legal separation, and then the parties will once again be married.
Maintenance: Maintenance is a payment from one party to the other, after a divorce, which is intended to equalize the financial circumstances. In setting maintenance, the court takes into account the length of the marriage, the education and earning capacity of each spouse, whether one spouse has contributed to home life rather than to develop a career, the health of each party, and the ability of each party to pay maintenance. Maintenance is a deduction of income for the payer; and it must be claimed as income by the recipient.
Marital settlement agreement: In a divorce action, a marital settlement agreement is a written agreement signed by the parties settling all of the issues in the case. The document is filed with the court and, if the judge approves of it, it will be incorporated into the judgment of divorce.
Material change in financial circumstances: Child support may be modified whenever there has been a material change in financial circumstances. See , Sec.767.59(1f)(a), .Wis. Stats. The statutes do not provide a specific definition of what constitutes a "material change" except that the passage of 33 months since the last revision will raise the presumption of a material change. Some examples of what the court will find to be a material change are the loss of a job, a promotion that carries with it a substantial increase in salary, or some sort of financial catastrophe (such as large, unexpected and uninsured medical expenses).
Mediation: A form of alternative dispute resolution in which the parties bring their dispute to a neutral third party, who helps them agree on a settlement. It is not unusual in Milwaukee County for the court to refer the parties to mediation before scheduling a contested matter for hearing. A court will not order mediation where there has been domestic violence. The family law attorney does not attend mediation with the client.
Motion: An application made to a court or judge which requests a ruling or order in favor of the applicant. Typically, motions in a family law case are to modify support, to modify placment, or to permit a move more than 150 miles away.
Notice: Formal notification to the party that has been sued in a civil case of the fact that the lawsuit has been filed. Also, any form of notification of a legal proceeding.
Past-support: Refers to support that was ordered but not paid. See "child support". Past-support collects interest at the rate of 1% per month (12% per annum). Thus, past-support collects interest at an astounding rate. A parent should not ignore past support.
Paternity action: Where a child is born to an unmarried mother, a paternity action is used to establish the identity of the father. In a paternity action, once paternity is established, the court will make orders concerning such things as custody, placement, and child support.
Petition: In family cases, the petition is the document that is filed with the court to commence the action. The petition, in order to be sufficient, must allege sufficient facts which, if true, would constitute a cause of action under the Family Code (divorce, legal separation, paternity, enforce child support).
Placement: Placement refers to where a minor child will live after a divorce, or in a paternity action. Typically, one parent will have "primary placement", whereas the other parent will have periods of "temporary placement" (visitation). Placement is different than "custody". Under some circumstances, a court will order "shared placement". Shared placement is where each parent has substantially equal periods of placement. The court will not order shared placement unless the parents are able to communicate, cooperate, and reside very close to another. Whenever placement is contested, the court must appoint a guardian ad litem for the minor children and, also, each parent must file a parenting plan. Grandparents also have certain placement rights.
Pretrial conference: Once the statutory 120 day waiting period has been completed, and the parties have filed a certificate of compliance, if the parties are unable to reach a marital settlement agreement, the parties may ask the court to set the matter for a pretrial conference. At a pretrial conference, the judge will discuss the remaining issues with the parties, and then set the matter for trial.
Property division: In a divorce case, one of the issues is property division. Wisconsin is a "marital property" state, which means that any property acquired by the couple during the term of the marriage is considered to be marital property. Upon divorce, the marital property must be divided equally. Property acquired through gift or inheritance is not marital property, it is individual property. Property that one acquires before a marriage is individual property; however, if the individual property is co-mingled with marital property, the court may find that it has become marital property. The most common example of this is where one spouse owns a home prior to the marriage, but then, during the term of the marriage, uses marital income to pay the mortgage. At the start of any temporary orders hearing, default hearing, or trial, each party is required to file a written financial disclosure form.
Order to Show Cause: An order to show cause is used when there is a claim of contempt. The order requires one of the parties to appear before the court and show cause why he or she should not be held in contempt (or why the court should not enter other orders as requested by the party seeking relief).
Reconciliation: While a divorce action is pending, the parties may apply to the court for a ninety day period of reconciliation. If granted, the proceedings will be stayed (put on hold), and the parties may live together for ninety days in an attempt to reconcile their marriage. If they do not succeed, they may revoke the reconciliation order and proceed with the divorce without having to refile.
Residence requirements. No action to affirm marriage or for annulment under s. 767.001 (1) (a) or (b) may be brought unless at least one of the parties has been a bona fide resident of the county in which the action is brought for not less than 30 days next preceding the commencement of the action, or unless the marriage has been contracted within this state within one year prior to the commencement of the action. No action for divorce or legal separation under s. 767.001 (1) (c) or (d) may be brought unless at least one of the parties has been a bona fide resident of the county in which the action is brought for not less than 30 days next preceding the commencement of the action. No action for divorce under s. 767.001 (1) (c) may be brought unless at least one of the parties has been a bona fide resident of this state for not less than 6 months next preceding the commencement of the action
Shared placement: An arrangement where each parent has substantially equal periods of placement with the minor child(ren). See, "Placement"
Stipulation: A stipulation is a formal, written agreement between the parties in a lawsuit. A stipulation is filed with the court and, once signed by the judge, becomes the finding of fact, or order, of the court.
Shirking: A party who is ordered to pay support or maintenance may not avoid that obligation by quitting his or her job, or by deliberately declining bonuses or overtime. If the court finds that a party has "shirked" his or her responsibility to pay support, the court will set support based on the party's last-known income.
Summons: A summons is the legal pleading that is attached to the petition and orders the party receiving the summons to either appear in court or to respond to the allegations in the petition. The form of a summons is specified in the Wisconsin Statutes.
Temporary orders: In the beginning of a divorce or paternity action, a party may move for temporary orders. If such a motion is made, the court may issue temporary orders concerning custody, placement, child support, and maintenance. These orders will govern the relationship between the parties pending final judgment. Although temporary orders are, in fact, temporary, such orders do have the tendency to become the final order of the court.
Temporary restraining order: An emergency remedy of brief duration issued by a court only in exceptional circumstances, usually when immediate or irreparable damages or loss might result before the opposition could take action.
Venue: Authority of a court to hear a matter based on geographical location. In Wisconsin family law matters, the "venue" for the action lies in the county where one of the parties has resided for at least thirty days; or, in custody, placement, and child support issues, the county where the child is present.
Waiting Period. No action for divorce or legal separation may be granted unless at least 120 days have passed from the time the summons and petition were served upon the respondent. When this period has expired, the parties must file a certificate of compliance with the court.
