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MAD in divorce

by Gregg Herman on 04/11/14

During the cold war, the threat of nuclear war was called "MAD" or Mutually Assured Destruction.  The same concept applies in divorce and is well illustrated by a recent case in New York as reported in an article in the on-line ABA Journal.

According the article, a judge reduced the value of the husband's law partnership because of the wife's public criticism of her husband.  The court said:  "In essence, the wife chose to bite the hand that fed her.”

At least one of the wife's allegations, if true, would justify her criticism: She accused her husband of refusing to pay for their daughter’s $12,000 hearing aids even though he paid $215,000 for an engagement ring for his Playboy model girlfriend.  I could do a whole blog on that alone!

But, let's stick to the topic of MAD in divorce.  According the judge, Janice Schacter raised legitimate concerns about domestic violence, but her negative online posts about her husband “went beyond any reasonable discussion of this very serious issue...[A]t a time when work in his field was in decline, any negative publicity, even if not directly related to the husband's legal acumen, could potentially scare away clients."

Frequently in divorce (as in intact marriages) the better the wage earning spouse performs, the better for both parties (and the entire family).  Put simply, a rising tide lifts all boats.  Therefore, in the typical gender situation (not by any means as typical as it used to be...), the wife should want the husband to be very successful and make lots and lots of money.  Simply put, the more he makes, the more he has available to pay her. 

Since divorce publicity is never a good thing, other than scratching the emotional itch to trash her ex, going pubic with such allegations is MAD.  Perhaps some divorcing parties find the cost to be worth it.  But not only did she choose to marry him, but the person she is trashing is the only father her children will ever have.  Now is the cost worth it?

In such cases, I have tried to communicate the importance of avoiding such publicity to my clients.  More people, I suspect, will respect the dignity of keeping private affairs private than will agree with wronged spouse.  Those who enjoy the trashing are gossip mongers or engaging in schadenfreude (enjoying the suffering of others).  In an article which I wrote a number of years ago, I referred to parties who trash their spouses as "Suicide Bombers."

I wish I could say that all of my clients have followed my advice.  Unfortunately, sometimes raw emotions control common sense.  The result is unfortunate for both parties - and even worse for the children who are innocent victims.

Joint legal custody in Wisconsin

by Gregg Herman on 04/07/14

On February 27, 2014, I posted regarding a court of appeals case which I believe misstated Wisconsin's joint custody law.  The Wisconsin Law Journal just published my article which explains my reasoning in a bit more depth.

I well recognize that most courts and lawyers disagree with my interpretation, but that is because they only read the title "joint legal custody" rather than the statutory definition.  If you actually read the definition, we really have "several" legal custody, not "joint."

Here is how that plays out:  If the parties don't have disputes on any of the six covered areas (permission to marry, permission to drive, permission to join the military, non-emergency medical procedures, choice of school and choice of religion), there is no problem because joint legal custody is a nice term with no practical meaning.  Since most of these issues are never in dispute, the nice term "joint legal custody" does not create problems in most cases.

Where there is a dispute however, the  solution is for the court to either award decision making in that area of dispute or terminate joint legal custody entirely and award sole legal custody.  For example, if there is equal placement and both parents want the child to attend school in his/her district, the court has to choose one parent to make the decision.

The irony arises if a parent without equal placement asserts his or her right to make a decision.  Since  the court will almost always award decision making to the parent with primary placement, the effect of asserting this right will usually be to lose any right entirely.  If the non-primary parent knows this, he or she will never assert that right and life goes on.

So,  for most cases, joint legal custody is a nice, feel good term with little practical effect.  OTOH, it rarely does any  harm.  A little good and no harm is better than the legal system does in a lot of other instances.

Equtable distribution in property division

by Gregg Herman on 03/28/14

It hurts to say this, but the Wisconsin Court of Appeals got something right yesterday.  It is far more fun when they get something wrong.  But, fair is fair.

In Baxter v. Baxter, 2013AP116, the trial court committed a common error by excluding an asset from the marital estate because it was premarital.  Such a ruling is contrary to Wisconsin's equitable distribution rule in divorce property division and the court of appeals reversed with the correct reasoning.

In a community property state, precommunity property is generally not divisible.   While Wisconsin is a community property state in other areas (don't ask why, please), divorce property division is an equitable distribution scheme.  In most cases, this is an insignificant difference.  But not always.

In an ED state, the court is to presume an equal division of the marital estate.  The court can then deviate from an equal division based on a large number of factors, one of which is the length of the marriage.  So, in short term marriages (usually under 5 years), the court typically deviates from an equal division based on that factor.

In this case, however, the trial court (who is fairly new to the bench and did not handle divorce cases as a practicing lawyer) said that it was his intent to divide the marital estate equally and then found that premarital property was not divisible.  Wrong.

As I said, this is a common mistake.  I am used to trial courts saying exactly what the court said in this case.  And kudos to the appellate court for getting it right.

"Getting it right" meant ruling that only gifts and inheritances, whenever received, are exempt.  Premarital property is merely a factor for the court to consider.

I have every confidence that the court of appeals will go back to its usual ways soon and misread the statutes (e.g., how joint legal custody is defined) and make my life as a blogger more fun.  Can't wait!



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