All About Collaborative Divorce December 2009

What is a domestic partnership?
It is a legal status for you and your partner if you register with the State of Wisconsin. It is legal recognition of your commitment to each other. The benefits are limited, however. While the law is a step forward for Wisconsin, it is nothing close to marriage or equality.

The benefits include:

• Limited inheritance rights
• Limited health care rights
• The right to sue for your partner’s wrongful death
• The ability to take time off work to care for your partner under Wisconsin’s Family Medical Leave Act
• The ability to prevent your partner from testifying against you in court
• The ability to better protect attorney-client communications

The benefits do not include:

• Child-related rights
• Marital property rights
• Mutual support rights
• State and federal tax rights
• Federal and out-of-state rights in general

Do we still need a life and estate plan?
Yes. A thorough LGBT-specific life and estate plan goes well beyond the rights conveyed by the new law. Furthermore, a good life and estate plan is much more secure than a domestic partnership registration. The registration is a law, and as such, is subject to politics, legislative revision, and court challenges. Finally, federal law and most other states will not recognize a Wisconsin domestic partnership. Therefore, life and estate planning documents will continue to be essential to protecting your family out-of-state.

Should we register as domestic partners?
For most families, registering is a good idea. However, there are some families for whom a domestic partnership could have unintended consequences. It could affect gift tax liability, eligibility for public assistance, and the content and validity of current wills and property titles. This is especially true for couples who own real estate together. You should speak with an LGBT estate planning attorney before registering. Know what you are doing, before you do it, as unromantic as that sounds.

How do we register as domestic partners?
First, you and your partner must satisfy five requirements: (1) you must be 18; (2) you must be a same-sex couple; (3) you must live together; (4) you must be unrelated; and (5) you must be unmarried and not in another domestic partnership.

If you and your partner are eligible and decide to register, you may go to the Clerk of Courts Office in your county and file a state form (an “affidavit”). The first day to register is August 3, 2009. If you have been previously married or registered as a domestic partner, you will need to take additional steps before registering. Be sure to ask for a copy of your affidavit and registration for your records. If you register before speaking to an attorney, be sure to inform your attorney of your registration. You may need to update your life and estate plan.

For more information, call The Law Center for Children & Families at 821-8200.

The Surrogacy Center
A reputable, safe and professional surrogacy center located in Madison, Wisconsin.
www.surrogacycenter.com

Adoptions of Wisconsin
A private, non-profit agency that offers a full range of adoption services.
www.adoptionsofwisconsin.com

Sara has long been a strong advocate for children. Before attending law school, she was a caseworker for the Bureau of Milwaukee Child Welfare. As an attorney, Sara has helped many families involved in the child welfare system, as well as those with delinquency and school law issues. In all cases, Sara seeks creative solutions that work for families and protect children’s rights. Sara is a member of the Collaborative Family Law Council of Wisconsin and she believes a team approach to family law is a very effective way to meet the unique needs of each family member involved.  

Education

Sara graduated with distinction from UW-Madison with a B.S. in Human Development and Family Studies & Psychology.

She earned her law degree from the University of Wisconsin Law School where she was awarded the Bruce F. Beilfuss Award for Outstanding Service to the Law School, and the Pro Bono Partnership Award/Pro Bono Publico Award.

While in law school Sara was a leader in the Children’s Justice Project. She was also active in the Wisconsin Journal of Law, Gender & Society, and Law Students for Reproductive Justice. She interned for the Honorable David Flanagan, Dane County Circuit Court, and was a student attorney with both the Rock County Public Defender’s Office and the Family Law & Restorative Justice Project of the Frank J. Remington Center.

Personal

Sara is the captain of her co-ed kickball team and participates in various charity road races. She is proud to have completed a Madison Marathon. To say she enjoys running would be a stretch, but she does it anyway. Sara enjoys traveling but also spends time at home, hanging out with her cat, Monkey.

Areas of Practice

Adoption
Advanced reproductive technology
Child custody, placement and support
Divorce and Collaborative  Divorce
Guardianship
Grandparents’ rights
Foster parents’ rights
Juvenile delinquency
LGBT issues
Paternity
School law

You’ve decided to end your relationship. Divorcing or otherwise separating from your partner is much more complicated when you have children. Whether you’re separating amicably or full of anger and mistrust, this will be the ultimate opportunity to show your love and commitment to your children. How? By keeping this question circling in your head… “Am I putting my kids and their needs first?”

Legal custody and physical placement of children are bound to involve emotional struggles, both for you, your soon-to-be ex and your children. But you can greatly minimize the damage to your kids’ emotional health by following a few rules:

1. Put your kids’ needs first. This seems obvious. Of course you will. But it can be extremely difficult. If your child wants to call his dad to talk, let him. Encourage him. Dial for him. He needs his father right now even if it isn’t what you need.
2. Keep the negative thoughts about your ex far away from your children. Remember, this is still your child’s parent. Your child still loves your ex, even if you don’t.
3. Insulate your children from the details of the divorce. They don’t need to know every stipulation and legal maneuver. And don’t forget how perceptive they are and what big ears they have. Even when you think your daughter is engrossed in a computer game, she may be picking up on conversations you’re having.
4. Don’t be afraid to get professional help. Seek a co-parenting counselor for both you and your ex. Although perhaps uncomfortable and painful to sit in a room together, a counselor will help focus the two of you on what is best for your kids.
5. Alert others in your child’s life about what’s going on. This doesn’t mean telling the whole sordid story or trashing your ex but simply letting your kid’s coach or teacher know of the difficulties your child is facing.
6. You and your ex will need to figure out where and with whom the children are going to live. If you can’t agree, the court will decide for you. Legal custody and physical placement are two legal terms that are often confused. Legal custody means the right and responsibility to make major decisions concerning the child but has nothing to do with where the child lives. Physical placement is where and with whom the child will be living. In Wisconsin, there is a presumption that separated parents should have joint legal custody. The court can grant sole legal custody to one of the parents if both agree or certain rare circumstances exist.

Under Wisconsin law, the schedule for physical placement should maximize the time the child spends with each parent. This may or may not be equal placement with each. The goal should be to try to equalize meaningful time with each parent. For example, if mom works weekends, and dad works weekdays, sending the child to mom’s on the weekend isn’t maximizing their time together.

In determining physical placement, the court considers many things including the wishes of the parents, the wishes of the child, the relationship between the child and his/her parents and siblings, and the amount and quality of time each parent has spent with the child in the past.

The court also considers whether each parent can support the other’s relationship with the child, including encouraging frequent contact. In fact, if one parent appears to be interfering with the relationship between the child and the other parent, the court can take action and change the child’s placement to favor the more supportive parent. So, not only does your child need to have a healthy relationship with the other parent, the court will insist you do so.

The bottom line is this. Even while feeling your own sadness and anger, you have to look out for your child’s best interests from the child’s point of view, not your own. Your child shouldn’t have to live two separate lives — ¬but rather one life –shared with two parents.

For more information, contact Carol at The Law Center for Children & Families at 608-821-8211 or go to www.law4kids.com.

Estate planning is an often overlooked piece of an otherwise responsible life. But what exactly is estate planning? It is more than just a Will, more than naming an “executor,” more than deciding who will get the antique engagement ring you inherited from your grandmother. Estate planning should certainly include those things, but it is much more, or at least with the assistance of an able attorney, it should be.

The term “estate planning” refers not only to planning for the distribution of your property at death, but also to planning for your health care, finances, and family if you become incapacitated during life. Who would pay your taxes and mortgage, or your child’s college tuition, if you became seriously ill or injured? Who would care for your minor children? These are the eventualities that a thorough estate planning attorney should prompt you to address. In this sense, “estate planning” is a misnomer; “life and estate planning” is a more accurate description.

While life and estate planning is a serious endeavor, it need not be a daunting or even a morbid one. Clients should be guided, and sometimes nagged, through the process, and they should expect more than just documents. They should expect an attorney to guide them through beneficiary designations and property titles, the execution of the documents, and finally, the distribution, storing, and updating of the documents.

The following is a guide to the life and estate planning process, a checklist of what to expect, or demand, from your attorney:

1. Deciding to complete a life and estate plan. No matter the exact make-up of your family constellation, your age, marital status, or sexuality, the size of your estate, or the state of your health, you need a life and estate plan. Otherwise, the State of Wisconsin will provide one for you, no matter your wishes, and it will assess fees to do so. You risk, for example, losing the right to choose whether to live or die, and/or not having a voice in who will raise your children upon your incapacitation or death. Life and estate planning is about you maintaining control of your life.

If you have minor children, life and estate planning becomes even more important. You need to execute a Nomination of Guardian, in which you decide who will care for your children upon your incapacitation or death. If you are not married or cannot marry, a competent life and estate plan must address a non-legal parent’s rights to the children. You must also ensure that your Will establishes a minor support trust, or something similar, to avoid your children’s inheritance being placed in a burdensome process controlled by a court.

If you have a large estate, without a life and estate plan, the U.S. government and the State of Wisconsin may deplete your estate through their tax laws, so that you will pass on less to your loved ones.But money or no money, children or no children, life and estate planning is also about your health care wishes. Age or the state of health is irrelevant. The need for careful planning and clear wishes was nowhere more evident than in the public debacle in Florida in 2005 surrounding Terri Schiavo’s death.

2. Choosing the right attorney. Yes, unfortunately, you should retain an attorney. Completing standardized documents from your hospital, bank, or worse, the Internet, can do more harm than good. You should invest in your peace in mind and look at attorney fees as a front-end expense.

Your choice of attorney is one of the most important steps in the process. Your attorney should be one experienced in life and estate planning, and not just an attorney you know who practices in some other area of law. If your life has a so-called “non-traditional” twist, you should seek out an attorney experienced in your situation. For instance, LGBT families should retain an attorney well-versed in the unique issues they confront. The same principle applies for high-income families and individuals with specific health issues.

3. Disclosing your family tree, health, and assets. Your attorney should begin the process by asking you to complete a questionnaire regarding your family tree, mental and physical health, and assets. You should therefore be ready to list every bank account, savings bond, life insurance policy, and retirement account. Take this opportunity to organize and centralize your financial information. While the disclosure may feel invasive, without this information, an attorney cannot give you competent advice. You should expect, and insist upon, an estate plan that accounts for each and every individual asset. Again, an estate plan is more than just a Will. Your attorney should guide you through beneficiary designation forms for retirement accounts and life insurance policies, and property titles for bank accounts, mutual funds, and real estate, to avoid unnecessary probate fees.

4. Learning about and understanding your life and estate plan. After you have made the necessary disclosures, and your attorney has designed an individualized plan for you, you should go through your documents together. You should expect, and demand, to be educated as to how they work. This is important not only for your personal betterment and financial astuteness, but also for the validity of the documents. Too often, my clients come to me with documents from their former attorney, creating some elaborate trust, and they have absolutely no idea what was done or how the plan works. Such a blind-eye could create a cause for challenge of the documents.

5. The execution meeting. After your documents are drafted and explained to you, your attorney should oversee the signing of the documents with you, your witnesses, and a notary public. You and your attorney can create a brilliant estate plan, but if you do not sign the documents according to the formalities required by statute, your documents will be invalid.

6. What to do with your documents. Your attorney’s duties do not end after the execution meeting. Your attorney should provide you with guidance on where to store the originals, to whom to give copies, and how to keep track of it all. Your life and estate plan is worth nothing if the relevant people don’t know about, can’t find, or don’t have access to the documents when they need them. Your attorney should not retain your original documents. In fact, it is unethical for him or her to do so. However, your attorney should keep copies of all your documents in his or her file, and should be willing and able to release copies to you and others upon reasonable request with the appropriate client consent.

7. Updating your life and estate plan. Your attorney should instruct you at the end of the process on how to revoke or amend your documents, as well as on the life changes that may necessitate an update to your life and estate plan. He or she should also check in with you at least every five years to determine whether an update is necessary or advisable.

With the right attorney, the life and estate planning process should be structured and thorough, with the final product being not just documents, but your peace of mind knowing that you have done everything you can to protect yourself and your family.

Introduction

Marriage brings with it many advantages under both state and federal law. As you probably well know, however, you and your family do not receive the benefits and protections that are automatically granted other families because, under present law, you cannot marry. The law instead treats you and your partner as “legal strangers,” and more like business partners than life partners.

The Law Center for Children & Families will help protect you and your family from this discrimination by thinking creatively and carefully crafting wills, trusts, contracts, and other legal documents. We will help you confront and navigate the complex legal issues, and provide cutting-edge solutions to the unique challenges you, your family, and your estate face.

Why do you need a Life Plan?

The term “life planning” may sound vague and broad, but it is actually very easy to define: it is what you and your family need to protect each other in the event that one of you becomes seriously ill or injured. The need for careful planning and clear wishes was nowhere more evident than in the public debacle in Florida in 2005 surrounding Terry Schiavo’s death.

For better or for worse, contract law governs your family, not family law. By not having a life plan, upon your incapacitation or death or the dissolution of your relationship, you are inviting federal and state law to haphazardly govern your family using a so-called “traditional” family model. If you do not spell out your wishes in legal writing, you risk, for instance, losing the right to choose whether to live or die, and/or your partner being denied visitation rights in the event of your hospitalization.

You and your family face an additional challenge: prejudice. Frequently, courts do not accord family constellations that include gay and lesbian partners the same deference as other families. The Law Center will help you to predict such discrimination and protect against it. To this end, we recommend and will design the following documents to meet the individualized needs of your family:

• Living Wills and Health Care Powers of Attorney
• Health Care Facility Visitation Authorizations
• General and Limited Financial Powers of Attorney
• Nominations of Guardians for Minors and Adults
• Name Change documents
• Domestic Partnership Agreements
• Co-Parenting Agreements
• Agreements governing termination of the relationship intended to avoid litigation, including property division and child custody, visitation, and support

The Law Center can also refer your family to trusted insurance agents and certified public and tax accountants with experience in handling complex financial matters for families similar to your own.

Why do you need an Estate Plan?

If you do not have an estate plan, the State of Wisconsin will provide one for you, no matter your wishes; and it will assess your estate hefty probate fees to do so. Unless you have an estate plan, the U.S. government and the State of Wisconsin may deplete your estate through their tax laws, so that you will pass on less to your loved ones. Furthermore, with or without an estate plan, you and your family face the additional challenge of having to predict and address the possible prejudice your estate may face after your death.

Intestacy
Intestacy is the costly and time-consuming process that will control the distribution of your property at your death if you die without an estate plan. The statutory process is based on the so-called “traditional” family model: children, grandchildren, parents, siblings, and grandparents. Surviving partners do not appear in the order of descent. Thus, without an estate plan, your estate will pass to your next of kin instead of your life partner. There is no room for your wishes in intestate succession. This process can be easily avoided with a will.

Probate
Probate is also a state statutory process that is lengthy and expensive. Specifically, it is the court proceeding in which: (1) your will is validated or intestate succession is implemented (if you do not have a will); (2) federal and state gift and estate taxes are paid; (3) your personal creditors are paid; (4) probate fees are assessed; and (5) your remaining property is inventoried and distributed to your beneficiaries (or heirs-at-law if you do not have a will). The disadvantages of probate, however, can be easily minimized with experienced and creative estate planning.

Gift and Estate Taxes
If your gross estate at your death exceeds certain dollar amounts, it will be subject to considerable federal gift and estate taxation, as well as Wisconsin estate taxation. The Law Center can assist you in structuring your estate plan and your financial behavior during your life, to lessen the tax burden your estate will face after your death. Such planning will enable you to pass on more of your estate to your loved ones rather than to the federal and state governments.

Challenges to Your Wishes
After your death, your family may face additional legal woes. Because estranged and/or unaccepting family members may, and sometimes do, challenge wills in probate, your estate plan may be vulnerable to attack. Sometimes even mental competency is challenged. The Law Center will help your family plan and take every action to foreclose those potential challenges, for instance by conducting meticulous procedures in executing your will and drafting affidavits to document your state of mind.

To protect you and your family against these threats, The Law Center will fastidiously guide you through the following estate planning options:

• Wills
• Trusts
• Intestacy
• Funeral arrangements
• Non-Testamentary/Non-Probate Transfers (e.g., payable on death (”POD”) and transfer on death (”TOD”) designations, life insurance, and retirement benefits)
• Property Title (e.g., joint tenancies)

Recommendation

The Law Center recommends that you and your family take at least the following steps immediately:

• Work with an attorney knowledgeable in same-sex estate planning to make a Will and/or Trust to dispose of your assets upon your death.
• Title your assets strategically.
• Consult with an income taxation accountant regarding how to maximize your family’s allowable deductions, exemptions, and credits.
• Take out life insurance policies on each other to cover some of the unavoidable tax and probate expenses to which same-sex couples are subjected by virtue of their non-marital status.
• Execute a Living Will and Durable Powers of Attorney to enable your partner to make decisions for you in the event of your incapacitation.
• Enter into a Domestic Partnership Agreement and a Co-Parenting Agreement (if applicable) with your partner, so that the two of you decide what will happen if you dissolve your relationship rather than Wisconsin’s outdated contract and family laws.

Despite the challenges discussed above, the life and estate planning process does not have to be a morbid or painful experience. You may want to be protected because you are starting a family or because you have just been diagnosed with a serious illness. Regardless of the circumstances that bring you to The Law Center, we strive to make the process a structured and positive one with the final product being your peace of mind knowing that you have done everything you can to protect your family.