Quality, Respect, Sensitivity
Selected Articles By Gregg Herman
2011
Wisconsin Law Journal
November 4, 2011
July 25, 2011
Wisconsin Law Journal
July 14, 2011
June 8, 2011
April 7, 2011
Vo. 31, No. 1 (Winter, 2011)
February 1, 2011
January 11, 2011
January 4, 2011
2010
Aug. 30, 2010
Aug. 23, 2010
July 19, 2010
July 5, 2010
June 28, 2010
Spring, 2010 (Vol. 30, No. 2)
May 3, 2010
April 5, 2010
Feb. 1, 2010
2009
Wisconsin Law Journal
Aug. 10, 2009
Wisconsin Law Journal
Aug. 3, 2009
Wisconsin Law Journal
June 1, 2009
Wisconsin Law Journal
May 25, 2009
Wisconsin Law Journal
March 23, 2009
Wisconsin Law Journal
March 16, 2009
Wisconsin Law Journal
March 5, 2009
Wisconsin Law Journal
Feb. 26, 2009
2008
Wisconsin Law Journal
Dec. 2008
Wisconsin Law Journal Article Series
Oct. 29, 2008
Wisconsin Law Journal Article Series
Oct. 13, 2008
Wisconsin Law Journal Article Series
June 16, 2008
Wisconsin Law Journal Article Series
Dec. 2007 /Jan. 2008
2007
Wisconsin Journal of Family Law
July 2007
Wisconsin Law Journal
Sept. 2007
Wisconsin Law Journal
Sept. 2007
Wisconsin Law Journal
July 2007
2006
Oct. 2006
Wisconsin Law Journal
Aug. 2, 2006
Wisconsin Law Journal
May 31, 2006
Wisconsin Law Journal Article Series
April/May 2006
Wisconsin Law Journal
Feb . 8, 2006
2005
Wisconsin Law Journal
Nov. 30, 2005
Wisconsin Law Journal
Oct. 19, 2005
Fall, 2005 Vol. 19, No. 3
Wisconsin Law Journal
Aug. 10, 2005
Wisconsin Law Journal
July 13, 2005
Wisconsin Law Journal
July 13, 2005
Wisconsin Law Journal
July 6, 2005
Wisconsin Law Journal
June 22, 2005
Wisconsin Law Journal
June 1, 2005
Wisconsin Law Journal
May 25, 2005
Wisconsin Law Journal
April 20, 2005
Wisconsin Law Journal
March 30, 2005
Wisconsin Law Journal
Feb. 9, 2005
Wisconsin Law Journal
Feb. 2, 2005
Wisconsin Law Journal
Jan. 26, 2005
Wisconsin Law Journal
Jan. 5, 2005
2004
Wisconsin Law Journal
Sept. 29, 2004
Wisconsin Law Journal
Sept. 15, 2004
Wisconsin Law Journal
July 21, 2004
Wisconsin Law Journal
June 9, 2004
Wisconsin Law Journal
June 23, 2004
As it appeared in the American Journal of Family Law
Vol. 18, No. 1, Spring, 2004
Wisconsin Law Journal
March 10, 2004
Wisconsin Law Journal
March 17, 2004
2003
Wisconsin Law Journal
November 26, 2003 edition
Wisconsin Law Journal
July 23 , 2003 edition
Wisconsin Law Journal
July 9, 2003 edition
The Family Advocate
Summer, 2003 edition
The American Journal of Family Law, Vol. 17, No. 3.
Summer, 2003 edition
Wisconsin Law Journal, June, 2003
2002
Wisconsin Law Journal, December, 2002
Wisconsin Law Journal, December, 2002
Wisconsin Law Journal, November, 2002
Wisconsin Law Journal, October, 2002
Wisconsin Journal of Family Law, January, 2002
2001
Wisconsin Law Journal, November 21 , 2001
Wisconsin Law Journal, May 2, 2001
Wisconsin Law Journal, May 9, 2001
Wisconsin Law Journal, May 16, 2001
The Third Branch, April, 2001
Divorce Litigation, April, 2001
Coauthoried with Assistant Family Court Commissioner Lucy Cooper
Wisconsin Lawyer, March, 2001
2000
Wisconsin Opinions, November 29, 2000
Wisconsin Opinions, November 1, 2000
GP Solo, published by the ABA General Practice Section,
October/November, 2000
Wisconsin Opinions, September 20, 2000
Wisconsin Opinions, September 6, 2000
Wisconsin Opinions, "Term in Review, 1999-2000 Decisions and Analyses"
American Journal of Family Law, Vol. 14, No. 3, Fall, 2000
Divorce Litigation, April, 2000
MBA Messenger, Opinions, April, 2000
Wisconsin Opinions, April 5, 2000
Wisconsin Journal of Family Law, April, 2000
Wisconsin Opinions, March 1, 2000
Wisconsin Opinions, January 19, 2000
1999
Wisconsin Opinions, October 13, 1999
Fairshare, September, 1999
Wisconsin Opinions "Term in Review," August 11, 1999
Wisconsin Opinions, August 25, 1999
Wisconsin Journal of Family Law, July 1999
Wisconsin Opinions, April 29, 1999
Wisconsin Opinions, 1999
1998
Wisconsin Opinions, January, 1998
The Complete Lawyer
The Practical Litigator
Wisconsin Opinions, January, 1998
Wisconsin Opinions, March 1998
1997
Wisconsin Opinions, November 26, 1997
November 2011
Featured Article
Articles by Gregg Herman
Gregg Herman has written extensively on family law issues in such noted publications as Wisconsin Law Journal, Divorce Litigation, Wisconsin Journal of Family Law and Wisconsin Lawyer Magazine.
Articles in his current archive tackle topics such as collaborative divorce, custody, and child support, as well as commentary on important Wisconsin cases involving family law issues.
Gregg is also the editor for FamLaw Update, a free e-mail list service published by
Loeb & Herman.
Loeb & Herman, S.C. 111 East Wisconsin Avenue Suite 1725 - Milwaukee, WI 53202 (414) 272-5632 Phone (414) 272-7918 Fax
All contents copyright © 2012 Loeb & Herman SC. All rights reserved.
(414) 272-5632
“Contract Support Allows Parties to Make Decisions Without Fear of Court Intervention”
By Gregg Herman
As it appeared in the November 4, 2011 edition of the Wisconsin Law Journal.
MAY V. MAY
Listening to oral arguments is generally frustrating for me.
Case in point: On Oct. 6, the Wisconsin Supreme Court heard oral arguments in May v. May, No. 2010AP177 (filed Jan. 6). The Court of Appeals certified the case to the high court to decide “the enforceability of child support stipulations that set a child support payment amount, and then restrict the payor’s right to request downward adjustments.”
In May, the parties stipulated that Michael would pay a minimum amount of child support for 33 months and could not seek a reduction during that time period. Seventeen months later, he lost his job and sought relief. The trial court found that the stipulation was not against public policy and denied his motion. Michael appealed.The Court of Appeals in its certification noted a conflict between a footnote in Frisch v. Henrichs, 2007 WI 102, ¶74, n.23, 304 Wis. 2d 1, 736 N.W. 2d 85, in which the Supreme Court appears to allow a floor in child support as long as it is only for a limited period of time and the Court of Appeals’ decision in Jalovec v. Jalovec, 2007 WI App 206, 305 Wis. 2d 467, 739 N.W.2d 834, which held that a stipulation setting a four-year floor on child support violates public policy. What causes my frustrating as an observer is that occasionally a lawyer, or even a justice, misstates the law. In this case, a justice, hopefully, simply misspoke when saying there is a two-year prohibition on changing custody and placement. (In case that justice is reading this, it’s a higher burden for two years, not a prohibition).In addition, sometimes it seems the questioning by the court and the responses by the lawyers miss the real issues. In this case, the continual actions by Michael over the years to reduce child support, while no doubt important to Ms. May, should not be the basis for establishing public policy in Wisconsin.Rather, the public policy issue present in May is the freedom of parties to contract. The closest analogy is not custody and placement statutes, but maintenance. Wisconsin courts have long recognized that spousal support may be paid in a non-modifiable fashion instead of statutory maintenance, which is subject to modification. If the parties agree to waive maintenance and have support paid in a contractual fashion, they will be held to their agreement. Ross v. Ross, 149 Wis. 2d 713, 439 N.W.2d 639 (Ct. App. 1989). Even a stipulation providing for maintenance will be non-modifiable if that was the intent of the parties. Nichols v. Nichols, 162 Wis. 2d 96, 469 N.W.2d 619 (1991).
Although I disagree with it, there is at least a valid argument that stipulations placing a ceiling on child support should not be enforceable since the children would be surrendering a higher standard of income without their consent. Why, however, would that argument prevail when the stipulation provides for a floor, which is designed to protect the childrens’ standard of living?The freedom to contract support is important as it allows parties to make decisions without fear of court intervention. People frequently make vocational choices based on factors other than money. They may go into a preferable field, leave a horrible boss (hopefully, not as in the movie), make a vocational choice to spend more time with their children or for myriad other reasons.Where support is modifiable, these decisions must be made with one eye - and sometimes both - on the unknown vagaries of what a court might think. If support is contractual, both parties know the extent of their financial obligations and can plan accordingly.If child support floors are enforceable, this does not lead a payor in financial straits to debtor’s prison. Just as with Section 71 payments, a remedial contempt action requires a court to find that the alleged contemnor has the ability to obey the order. See Gregg Herman, “The Law of Contempt” 30 W.J..F.L. 2 (Spring, 2010).As I’ve argued before, the best interests of children would be promoted by discouraging litigation between parents. As long as their basic needs are met, children would be better served with fewer financial resources and a peaceful environment, rather than more money and less peace. If you don’t believe me, just ask a child whose parents are warring.