Brief on Family Law
COL Michael McKenna
Jennifer Van Kirk
General Wisconsin Statutes Which Can
Affect Service Members Financially
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Wisconsin Statutes § 767.511
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Child Support Statute
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Child Support Guidelines
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Shared Placement Formula
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Straight Child Support Guidelines
Wisconsin Statute § 767.56
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Maintenance Statute
Wisconsin Department of Children and Families Regulations
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“Gross Income” includes military allowances, per diem (except per diem used to
pay expenses), veterans’ benefits, and disability income
Support Obligations to Spouse/Children
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A Wisconsin Circuit Court’s determination on support owed to
spouse/children trumps any obligation ordered by command
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If Court orders no support, then none is required despite Army/Air Force
regulations
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If Court orders support in excess of support required by Army/Air Force
regulations, the Service member must comply with the Court’s orders
Support cannot be revised retroactively; Wis. Statutes § 767.59
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The Court may not revise the amount of child support, maintenance, or family
support that has accrued prior to the date that notice of the action is given to the
other party
General Wisconsin Placement Statutes
Affecting Service Members
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Wisconsin’s Family Code, Wisconsin Statutes Chapter 767, includes
provisions which can affect Service members
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Wis. Stat. § 767.43
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Under Wis. Stat. § 767.43, grandparent, great-grandparent, stepparent or
person with parent-child relationship may receive visitation rights…BUT…
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Interpreted by the Wisconsin Court of Appeals in Lubinski v. Lubinski, 2008 WI
App 151
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Placement rights cannot be enforced in Service member's absence; Court of
Appeals denied step-mother’s request to have placement of child while father
was deployed
General Wisconsin Placement Statutes
Affecting Service Members, con’t
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The Wisconsin Supreme Court found that “a parent cannot delegate his
visitation rights to others in his absence.”
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Parents have a liberty interest in directing the care, custody and control of their
children…and this means that non-deployed parent directs child’s placement
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Potential wiggle room: if parent completely denies placement to step-parent
and/or extended family who had parent-child relationship
Court can order electronic communication with children, which typically includes
phone contact and/or web cameras
Specific Statutes to Protect Service
Members’ Rights in Family Law
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When determining allocation of placement, “the Court may not consider as a
factor in determining the legal custody of a child whether the service member
has been or may be called to active duty in the U.S. armed forces and
consequently is, or in the future will be or may be, absent from the service
member’s home.” Wis. Stats. § 767.41(4)(c)
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“If a party is a service member…and the Court modifies an order of physical
placement on the basis that the service member has been or will be called to
active duty in the U.S. Armed Forces…the Court shall require in the order that
the allocation of periods of physical placement and, if applicable, the physical
placement schedule that were in effect before the modification are reinstated
immediately upon the service member’s discharge or release from active duty”
Wis. Stats. § 767.451 (3m)
General Tips Regarding the Protection of
Service Member’s Interests
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DNA Testing in paternity cases recommended
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Protection of gear in complex/difficult family cases
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Service member may wish to seek family court ruling, in the event military
regulations provide for support in excess of amounts which would be
ordered by family court
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Exercise extreme caution with Power of Attorneys
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Family Care Plan not applicable in Wisconsin Circuit Court decisions
General Tips Regarding the Protection of
Service Member’s Interests, con’t
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Court’s treatment of direct deposits
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Absent Court Order, typically legal and wise to deposit into a separate account,
especially in the event of a spend-happy spouse
Division and treatment of pensions
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10/10 rule
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Valuation of military pensions
Service members can initiate proceedings during a deployment—SCRA is a
shield for Service members, not an impediment to proceeding
Questions??