Family Law Update for June 2020

In this Issue …

A Word from Gregg Herman
Silver linings?

Wisconsin Courts Updates
Enforcement more than 20 years after the divorce, legal separation

Coronavirus impact on surrogacy arrangements

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A Word from Gregg Herman …

Until this crisis is over (not soon enough!), I’ll continue to publish FLU monthly with any new cases or other family law news. Thanks to Steve Hayes for continuing his contributions on adoption and the effects of the pandemic.

Are there any silver linings in this very dark cloud? Well, here are some thoughts from my blog.

Silver Linings in a Dark Cloud

My mother used to say that it takes a very ill wind to blow no good. The COVID crisis is as ill a wind as I’ve ever seen. Does it blow any good for our legal system? Or to utilize a different metaphor, are there any silver linings in a very dark cloud?

Wisconsin Courts Update

On May 5, 2020, the District I Court of Appeals issued their opinion in Schwab v. Schwab, No. 2019AP1200, which reversed the order rendered by the Honorable Michael J. Dwyer (Milwaukee County).

According to their 1992 divorce agreement, Paul was to pay Kathy “one-half the present non[-]vested value…when and if it is available to [him].” However, neither party drafted a QDRO. Paul began receiving his pension in 2017. After being unable to agree with Paul on calculations regarding how much she should get, Kathy started proceedings, twenty-five years after the divorce, to find Paul in contempt of court for failing to comply with the pension provision of their marital settlement agreement.

Paul argued that Kathy’s motion was barred by the time limits set forth in Wis. Stat. §893.40 (2017-18),1 which generally precludes “action upon a judgment or decree of a court” after twenty years. The trial court found that the contempt action was not time-barred, and allowed for the pension division provision to be enforced. The appellate court reversed.

The court held that the language of Wis. Stats. §893.40 is mandatory and there is no exception for a family law action. The court distinguished the Supreme Court decision in Johnson v. Masters, 2013 WI 43, 347 Wis. 2d 238, 830 N.W.2d 647, finding that “…while the controlling opinion in Johnson, at ¶¶20-22, appeared to leave open the door for trial courts to exercise discretion in applying the statute of repose in family law cases, particularly when application might appear unfair or absurd, four justices expressed opinions that such discretion is not permitted under WIS.STAT. §893.40.”

The case is recommended for publication.

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On May 27, 2020, the District II Court of Appeals issued their opinion in Kemper Independence Insurance Company,v. Islami, No. 2019AP488, which affirmed the order rendered by the Honorable William Domina (Waukesha County).

Ismet appealed a summary judgment order in favor of Kemper Insurance Company (Kemper) which denied coverage for loss of her home due to a fire intentionally set by Ydbi Islami (Ydbi), from whom she is legally separated. The trial court ruled that coverage to Ismet was barred under a “concealment or fraud” condition of her policy which provides that there is no coverage if “an insured, whether before or after the loss, conceals or misrepresents any fact upon which the insurer relies or which contributes to the loss.”

The family law related issue is whether because of their legal separation, Ydbi is Ismet’s spouse, and therefore not an insured to whom the “concealment or fraud provision applies”.

In relevant part, the Court of Appeals found that: “”The parties have not cited us to, and we have not found, Wisconsin authority on the question of whether parties who are legally separated are considered “spouses” under an insurance policy—or, for that matter, under any other contract employing that term. Wisconsin law, however, does consider a legal separation as something less than terminating a marriage… Parties to a legal separation cannot remarry and can reconcile without having to get remarried. Sec. 767.35(4). As our supreme court has noted, “there are more rights and obligations remaining in the marriage after a legal separation than following an absolute divorce.”” Herbst v. Hansen, 46 Wis.2d 697, 706, 176 N.W.2d 380 (1970), 46 Wis.2d 697, 706, 176 N.W.2d 380 (1970).

The case is recommended for publication.


The following is provided courtesy of Contributing Editors Stephen Hayes and Elizabeth Neary of Grady, Hayes & Neary, LLC, Waukesha, WI. They can be reached at 262-347-2001 or via e-mail.

Coronavirus Impact on Surrogacy Arrangements

Both medical procedures and court parentage determination hearings have been delayed as a result of COVID-19. Pre embryo transfer medical testing has in many cases been postponed indefinitely as have transfers as a result of decisions made by the medical clinics to facilitate such actions. They are guided by recommendations from assisted reproduction medical groups such as the American Society for Reproductive Medicine (ASRM) and the Society for Assisted Reproductive Technology (SART), as well as their own independent judgment. Some clinics have, as of the beginning of May, started scheduling both testing and embryo transfers into the future. It remains to be seen how long this will continue.

Parentage determination hearings in Wisconsin have gone forward in some instances. Some courts are granting orders based on pleadings, signed stipulations and affidavits. Others have used zoom to take testimony to complete the court process. It is hoped by carriers, intended parents and counsel that the use of zoom and telephonic hearings will continue once the coronavirus threat has dissipated inasmuch as the hearings are uncontested and of short duration.

Attorney Gregg Herman is a founding partner of Loeb & Herman, LLC in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.