New Legislation – Or the Less Things Change

By Attorney Gregg Herman
May 16, 2018

Dad and KidsIn the recently ended session of the Wisconsin Legislature, three bills affecting family law were passed and signed into law by Gov. Walker. For the most part, none of them are going to change life (or the practice of family law) as we know it. But, to different degrees, they are worth mentioning here – from the most significant to least.

First, 25 years after the law regarding removal of children was substantially modified, it has been modified again. (I, together with attorney Judith Hartig-Osanka of Racine, who, sadly, passed away a few years ago, was significantly involved with the earlier statute.) The new legislation, 2017 Wisconsin Act 203 improves the present law in some respects, primarily by making it clear that the removal legislation applies to paternity cases. In theory, the law also is an improvement by requiring an initial hearing to be held within 30 days after a motion requesting permission to move with a minor child is filed. Also, if there is a de novo motion filed from the Family Court Commissioner’s (FCC) order, the new law requires the judge to hold the de novo hearing within 30 days after the motion requesting the de novo hearing is filed, unless the court finds good cause for an extension.

These time requirements always are better in theory than in practice. Currently, it can take as long as four months (I kid you not) to get a hearing before the FCC in Milwaukee County. Since the legislature does not add any funding for additional family court commissioners or circuit courts when it passes such time requirements, the time requirements tend to be honored in the breach. For more, see my prior column, “Proposed Legislation on Removal of Children.”

Second, in 2017 Wisconsin Act 235, the legislature created some restrictions to Wisconsin law regarding discovery. Since rules of civil procedure apply (in theory, anyway) to family law, these changes are applicable. One restricts the parties to “a reasonable number” of depositions, not to exceed 10 depositions, none of which may exceed seven hours. Another limits a party to a “reasonable” number of requests, not to exceed 25 interrogatories, including subparts.

This should have very little effect on family law cases. Unless highly unusual circumstances are present, the only “reasonable” number of depositions or interrogatories is zero. In Wisconsin, as in most states, there is an affirmative duty on the parties to disclose assets and income. Divorce is not a game of trying to find what the other party earns, owns, and owes. Rather, each party has a duty to disclose these matters without the necessity of any discovery from the other party. Further, unlike most – if not all – other civil cases, the parties know each other as intimately as two human beings can know each other. To engage in formal discovery to learn facts that are already common knowledge is wasteful and unprofessional. Therefore, these changes to discovery law will affect only a few cases.

Finally, the legislature passed and the governor signed, 2017 Wisconsin Act 272, otherwise known as “Sara’s Law.” The law was passed in response to the murder of Wausau-area lawyer Sara Quirt Sann, who was shot to death in a horrible incident in 2017. The law makes it a Class H felony to cause or threaten bodily harm to guardians ad litem, corporation counsels, or attorneys in response to their official actions in family law proceedings.

While well intended, the practical problem is that the threat of a felony is unlikely to deter someone who is intending to die anyway, either by suicide or suicide-by-cop, as was the case with the murderer of attorney Sann. While the personal safety of lawyers and GALs are a major concern, legislation is not going to improve matters. Instead, attorney Dan Bestul of Monroe provided several practical ideas for safety in his presentation at the AAML seminar “Divorce Wisconsin Style” in Milwaukee this past March. It is posted on his office website.

Dan’s ideas, if adopted by lawyers throughout the state, may have more of a practical and positive effect than all the legislation enacted into law this year.

Editor’s Note: This article originally appeared in Inside Track, a bi-weekly newsletter of the State Bar of Wisconsin.

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