Help Desk Law Student Training Fall 2012

What Law Students Do:Work one-on-one with unrepresented

litigants with child support modifications, divorce and other family law issues, assisting with forms and questions as necessary.

Issue spot and parse through relevant facts.

Maintain and organize forms, and checklists.

Do intake to help control the flow of litigants

Legal Advice vs. Legal Information

You cannot give legal advice, you are not Attorneys.

We give “legal information” – general information about the forms and the process.

If a person wants specific legal advice about their situation, they must speak with an attorney.

What is Legal Advice Discussion:

If you do not know the answer to a question the litigant is asking– DON’T TRY TO ANSWER IT

If you think it what you want to say may be legal advice COME AND ASK ME BEFORE YOU SAY IT

A CLIENT’S PERSPECTIVE Personality types in the Clinic

Easy going, Concerned, and High Conflict

Phrases to use with litigants • “Hello, my name is ____ I am a law

student and will be helping you today. What are you trying to do?” Or “Tell me about why you are here”• You have to phrase what you want in

your own words, I can’t tell you what to write it’s your decision.”• “I can see how upset this makes you,

this is how I can help you.”• I can help you with these forms, but I

can’t give you legal advice.”

Pre- Judgment ActionsPre- Judgment actions include:starting divorce/ legal separation

name changes

These actions do not have case numbers. They will get a case number

What is the Difference Between Divorce and Legal Separation?

In a divorce, the marriage is “irretrievably broken” (generally no chance of reconciliation).

In a legal separation, the marriage is just “broken” (may be repaired).

What is the Difference Between Divorce and Legal Separation?

In a divorce, the parties are free to remarry 6 months after they are divorced.

In a legal separation, the parties are still married. However, the legal separation may be converted into a divorce after 1 year (sooner if both parties agree).

What is the Difference Between Divorce and Legal Separation?

The Procedures are exactly the same for both.

The court may order the same types of things in a legal separation (child support, property division, etc.) that it can in a divorce.

If asked about the difference, we always tell people that the above are the general differences, that there may be more legal distinctions between the two and that if they want a thorough explanation of the difference, they must seek legal advice.

Rules for Filing a Divorce in Milwaukee CountyA party can file for divorce in Milwaukee

County if ONE of the parties has been a resident of Milw. Co. for at least 30 days and a resident of Wisconsin for at least 6 months.

Does not matter which party meets that requirement.

A party can file for legal separation if one of the parties has lived in Milw. Co. for 30 days (not necessary to have lived in Wisconsin for 6 mos).

How Long Does it Take to get Divorced/Legally Separated?There is a mandatory 120-day waiting

period from the time the other party is served (or from filing if it is a joint divorce). That is the earliest date that parties can get divorced/separated.

The only other factors are how quickly the parties get their paperwork done and filed, the court’s calendar, and the complexity of the issues.

What is the Divorce Process?• Divorce can be filed jointly (both parties

agree to get divorced) or separately (one party may not want to be divorced).

• Divorce is a two-step process.

• The first step is the Summons (if filing separately), Petition, Order to Show Cause and Affidavit for Temporary Order (if necessary), and a Confidential Petition Addendum.

• The second step involves forms to define the terms of the final order.

Litigants Must Have the Divorce Forms BEFORE we can Help ThemThey can purchase the forms in

room G10-1 $15 for “without children” divorce and $18 for a “with children” divorce.

Forms are available for free on the internet – www.milwaukeejusticecenter.com.

What if the wife is Pregnant?Come and get me, there may be

a marital presumption issue that needs to be resolved.

Joint Divorce If there are minor children born to the parties during the

marriage, make sure the litigants have the Joint Petition With Minor Children and that you use the joint checklist

If one party (or both) had children prior to the marriage, the other party did not adopt the children, and there were no children born during the marriage, make sure to use the Joint Petition Without Minor Children

If there are both children from previous marriages or relationships AND children of the marriage, get the With Children packet.

When filing a joint divorce, both parties must sign the initial paperwork.

When filing jointly service is NOT necessary. If one of the parties lives out of state they should not file a

joint divorce.

Separate Divorce Separate Divorce requires a

Summons and PetitionMake sure you have the correct

forms for “with” or “without children”

What is the Summons?It is the document that is used to

notify the other party that their spouse has filed for divorce.

The Summons is served with the Petition and Order to Show Cause and Affidavit for Temporary Order (if necessary) and acts as notification to the non-filing spouse (respondent).

What is a Petition?Establishes the facts for the

divorce. ◦Jurisdiction◦Information about parties◦Information about marriage

What is the Confidential Petition Addendum? Needed for both Joint and

Separate Divorce. Provides information about the

parties and their children Information about the party filing

must be complete, for everyone else, if information is not know it can be left out.

What Is a Temporary Order?A request for the FCC to set

orders before the final divorce. Is optional and not needed if

there are no active disagreements.

Might need a temporary order if:◦There are children and a party wants

child support◦One party wants the other party to

move out

Common Problems The filing party does not know

where the other party lives. ◦It’s okay. They must use the last

known address and try and serve the other party there. Then they MUST come back to complete the publication process.

Common Problems The other party is active duty

military

• People in the active military have special rights.

• Determine whether the spouse is in the ACTIVE military (as opposed to discharged, inactive, etc.)

• If the spouse is in the active military, get a supervisor.

Common Problems The wife had a child while the

married that is not the husbands

◦Wisconsin has a marital presumption.

◦Get a supervisor to assist with this litigant.

HypotheticalWife- Gloria (pregnant)Husband- Corey (previously

married)Gloria’s child from a previous

marriage- Joey, age 17Marital Child- Gina, age 12Moved to Milwaukee in 2010Gloria wants Corey to move out of

the family home and pay child support while the action is pending

Service Must be completed within 90

days of filingMust be Personal Service

◦This means it CANNOT be mailed

Service Sheriff or private process server. The

Milwaukee County Sheriff is free with the fee waiver.

If the spouse does not live or work in Milwaukee County, the person must contact the Sheriff or a private process server where the spouse is to arrange for service.

After service is complete, the person will receive an Affidavit of Service in the mail. The process server does NOT send it into court.

Service If a party does not want to or cannot use the

Sheriff, service of process by an adult who is not a party to the action is acceptable when:

1. The person is a resident of the state where service is made. If service is made in Wisconsin, the person serving the respondent can be a resident of Wisconsin, Illinois, Iowa, Michigan, or Minnesota.

2. If the respondent cannot be located, the summons may be left with an adult that lives in the same resident as the respondent, or a family member over the age of 14.

3. If, after using due diligence, the respondent cannot be located, the petitioner may serve the respondent by publication in the jurisdiction the respondent was known to be in last.

ServiceIf the other party will cooperate

and be at the hearing an Admission of service can be used.

Getting ready for Second Step of DivorceInform the parties that divorce

happens in two steps. They must turn in the rest of the packet before the administrative dismissal date

Can call to make an appointment for help with second step

Must bring in a completed Financial Disclosure, pay stubs, and proof of service to Help Desk to receive help for second step.

Post Judgment ActionsModification MotionsStipulationsContempt MotionsDe Novo ReviewEnforcement of Physical

Placement OrdersRe-Open for DNA testingResponding to a divorce

Terminology • Custody: legal decision making ONLY. It has nothing

to do with who the child lives with or visitation.

• Physical Placement: who the child lives with and for visitation.

• Current Support: monthly child support for a minor.

• Arrears Payment: monthly amount, in addition to child support (while the child is a minor) to catch up on past-due support (arrears balance).

• Legal Fatherhood: Determined by the courts after paternity has been established.

Modification MotionsUsed for CHANGING an existing

orderThe caption never changes – in a

paternity, it is 99.99% of the time mother v. father.

In a divorce, we need to ask who filed for divorce originally.

Many people think that the “petitioner” is the person filing the motion, but that is not necessarily true.

Modification MotionsThere is a big confusion between

custody and placement.Custody is just decision making –

who has a say in the major issues of the child’s life, such as education, religion, and health care.

Placement is where the child lives and includes the subcategory of visitation (technically called alternate placement).

Modification MotionsCan also be used to change child

support or arrears payment orders.

StipulationsUsed if both parties agree to the

change

If a form is already signed by both parents but not filled out we cannot use that form. A new blank stipulation must be filled out and signed.

No service or filling fee for this motion

Contempt Used to Enforce and existing

order. Litigant must be able to show

that the other party is in violation of an order.

This motion must be personally served. The litigant MUST have the other party’s address in order to file. If they don’t the litigant should file a motion to modify.

Re-open for DNA Testing This is a motion filed when a

party no longer believes that they are the father of a child.

They are asking the court to allow them to have a DNA test. The court does not have to grant this motion.

Fathers can be defaulted if they do not appear for the initial paternity hearing.

De Novo ReviewThis motion asks a judge to

review the orders made by a court commissioner.

Must be filed within 15 business days if a family law matter and 30 days if a harassment injunction.

Gets sent to the Judge assigned to the case not the FCC.

Enforcement of Physical Placement OrdersOnly used in emergency

situations when the non- custodial parent will not return the child to the custodial parent.

Responding to Divorce ActionsGive the respondent an

opportunity to respond to the facts listed in the petition

Allows the respondent to file all of the second step of divorce paperwork or a request for a temporary hearing, if needed.

Fee WaiversThe litigant MUST be a U.S. resident

and a resident of Milwaukee county in order to qualify.

They must provide proof of income. A months worth of pay stubs or proof of public benefits must be presented with the waiver.

G 10-1 will assist with obtaining proof of food share but an additional form needs to be completed.