Bennett named Rising Star

Happy to say that I have been named a Rising Star for family law by Super Lawyers! This is based on their selection process which relies on nominations and ratings by other lawyers and judges. There are 9 Super Lawyers / Rising Stars in family law in La Crosse County, and the other 8 are at large firms.

Excellence, personal attention, and value...what can a solo "super" attorney do for you?

Jurisdictional dilemmas - "what state or county do I file in?"

Jurisdictional issues in divorce can be both confusing and high-stakes.  Here in the Coulee region, they can also be quite common.  Different jurisdictional rules apply for divorce, legal separation, paternity, child custody and child support, but courts will almost always ensure that related issues (for example, custody and support) are heard by a single court and not split between jurisdictions.  And within the bounds of those rules, it is often the first party to file that has the advantage in setting the forum where the case will be heard.

People generally have two questions about jurisdiction: Which court can hear my case?  And, if I have a choice, which court should I choose to file my case in (or move my case to)?  Where there is a choice, it can be between states (e.g. Minnesota vs. Wisconsin) or between counties (e.g. La Crosse County vs. Vernon County).  The difference in state law can be very significant when it comes to property division, custody, support, and spousal maintenance (aka alimony).  All counties within a state follow the same laws, but local practices and procedures can differ between counties, and of course the commissioners and judges who sit in those counties are different people, and each one may take a different view of the case in ways that substantially affect the outcome.

Some rules of thumb: under Wisconsin or Minnesota law, a divorce case can be filed in the state where either party has lived for at least six months, in the county where that party has lived for at least 30 days.  Legal separations do not have the six-month requirement, so can be filed after only 30 days living in a particular county.  An independent custody case (including post-divorce motions) typically belongs in the last state where the child in question lived for six consecutive months...but if jurisdiction is still in a different state, a motion must first be filed in that state asking that it relinquish jurisdiction of the case.

Once properly filed, divorce and legal separation cases are unlikely to be moved.  On the other hand, custody and support cases may change venue (counties) and jurisdiction (states) over time, as the parties and child relocate.  Even though the rules are designed to be clear and consistent, even the idea of where a party or a child "resides" can be a fluid one open to interpretation and requiring the support of evidence.  With the thicket of rules surrounding jurisdiction and the potentially great consequences of litigating in a less favorable or distant jurisdiction, seeking legal counsel is your best bet for landing in the best possible court for your case.

Same sex marriage - a new dimension for marriage and divorce

Same-sex marriage has been legal in Wisconsin since June 2014, when federal district court for the Western District of Wisconsin ruled (in Wolf v. Walker) that the ban on such marriages violated the Equal Protection guarantees of the U.S. Constitution.  Although the ruling was followed by uncertainty about whether it would stand on appeal, that was finally put to rest on October 6, when the U.S. Supreme Court denied certiorari on appeals by several state attorneys general (including Wisconsin’s own AG) seeking to overturn federal court decisions allowing same-sex marriage.  By denying “cert”, the legal controversy over same-sex marriage effectively ended.  Now, Wisconsin county clerks are issuing marriage licenses to gay and lesbian couples, and Wisconsin courts also perform divorces for gay and lesbian couples, including those who were married in other jurisdictions before the changes in Wisconsin law.

In Minnesota, same-sex marriage has been legal by statute since July 2013, and Minnesota courts also hear same-sex divorce cases.

The handling of divorce cases for gay and lesbian couples is no different under the law than for heterosexual couples.  However, in many cases there are likely to be practical differences that affect the divorce proceedings in important ways.  First, if there are any children of the marriage who are not the legal children of both spouses, there may be significant issues when it comes to the custody, placement and support of those children.  A spouse who has developed a parental relationship with a children but is not the legal parent of that child will probably reply on a different and more limited set of statutory custodial rights than a legal parent.  As in most cases, it is best for spouses who have acted as parents during the marriage to attempt to resolve their differences out of court, often with the assistance of attorneys, counselors, and/or a guardian ad litem.

There may also be issues where a divorce is taking place following a long separation.  The couple may have been separated for a long period but simply never obtained a divorce because their home state (Wisconsin before 2014, or Minnesota before 2013) did not recognize the marriage.  This invites courts to view the cases differently when it comes to property division and maintenance; however this requires case-by-case consideration.

Gay and lesbian married couples can take step before or during marriage, in order to secure their rights in the marriage and avoid conflict later on.  A positive step is that adoptions, powers of attorney, and other legal procedures are no longer necessary as workarounds to compensate for the lack of legal same-sex marriage.  However, adoption of non-joint children (where feasible) can place spouses on equal footing for custodial and support purposes in the event of separation or divorce, and, prenuptial or postnuptial agreements regarding the treatment of property and debt can clarify agreements and expectations on both sides.

Child custody - got questions?

Anyone who has looked for information about child custody online knows that there is no shortage of raw information.  But how much of it is useful?  For Wisconsin and Minnesota residents, basic answers to common questions are available on state bar / state court websites.  You can find definitions for terms like custody, placement (WI) and parenting time (MN), and information about the process of resolving custody-related matters through the court system.

Of course, when custody issues come up, an attorney can help you get past the basics and put a plan into action.  A consultation provides an opportunity to review your situation and explore strategies for reaching your goals as fully and efficiently as possible, before making any moves.

Myers Law is open!

It's been an interesting and busy process, but the office of Myers Law LLC has now been open for three weeks, and following some transition, everything from the sign out front to the computer network is up and running.  I've had many enlightening conversations and received great advice from other small business owners (lawyers and non-lawyers) who have taken on the work of running a business for the sake of independence and a more direct relationship with clients.  Their hours are long, but their stories are full of pride and satisfaction in what they do and what they offer their clients.

Solo practice allows me to provide a high level of personal service.  Many people involved in a divorce or other family law matter sense that they are involved in a complex process requiring legal expertise, but may hesitate to consult with an experienced attorney.  My goal is to help make that an easier step for more people in the Coulee Region, so that people can know their options, define their goals, and then achieve them, when they need it.  

I am also excited to have my office located in downtown Onalaska - a nice peaceful spot that is also centrally located.  Thanks to everyone who has stopped by to say hello!

 

The Custody Assessment Team – a local, multifaceted, and sometimes controversial process

For parents involved in custody litigation in La Crosse County, here is an important acronym to be aware of: C.A.T. The Custody Assessment Team is the main process for reaching resolution in disputed custody cases, where parents have not reached an agreement on issues of legal custody (decision-making authority) and physical placement (schedule and conditions of each parent’s time with the children).

The CAT is a special custody evaluation process specific to La Crosse County. Its existence is recognized by La Crosse County Local Rule 908, which provides that

A Custody Assessment Team (CAT) consisting of the guardian ad litem, a child development specialist and a mediation/case evaluator will assess the family and make a recommendation as to a suitable parenting plan within 90 days.

The team will meet with the parents to recommend a parenting plan. If the parents agree with the recommendation it will be incorporated into a marital settlement agreement (MSA) and the matter will proceed to a default hearing. If the parents do not agree with the recommendation, the family court commissioner will impose a plan and the matter will be set for trial.

The CAT will only be appointed after the parties have attempted mediation with the La Crosse Mediation and Family Court Services office, and that mediation has failed to produce a final agreement. There are two Mediator/Case Evaluators in that office, and where one handles the attempted mediation, the other will then serve as the Case Evaluator on the CAT. When mediation has failed, either party may request a hearing (a “CAT pretrial”), typically before the Family Court Commissioner, to initiate the CAT process. The Case Evaluator will appear at the hearing to make introductory remarks and hand out a packet of information for the parties to fill out and return to the CAT. At that hearing, the Guardian ad Litem, an attorney, will be selected, and following the hearing, the Child Development Specialist (a counselor or psychologist) will be selected by the first two team members. These three individuals will comprise the CAT for the remainder of the process.

Another aspect of the CAT decided at the CAT pretrial is the payment of the total CAT fee of $4,400. In most cases this expense will be divided equally between the parties, but the parties are required to bring a financial disclosure statement to the hearing so that the court can make an informed decision on this division of costs, and whether the payment needs to be made up front or according to a payment plan.

The CAT tends to be a longer, more involved, and more intrusive process than the Guardian ad Litem investigations conducted in contested custody cases in other counties in this part of Wisconsin. In fact, in most cases, the process runs longer than the 90-day time frame set forth in Rule 908. Does this result in better outcomes for the parties, or benefit the children involved? The CAT process has supporters and detractors among people who have been through the process, including local family law attorneys. A second blog post on this topic will compare the CAT to the more typical GAL process, and examine some of the pros and cons cited by those who know it.

Collectors beware – unique historical items raise unique jurisdictional questions

Updated - see below

Minnesota Lawyer (subscription required) recently wrote about a case of mine in Fillmore County to determine the proper ownership of a historically and financially valuable item – a copper printing plate created in 1775 to print the currency for the Colony of New Hampshire. The “1775 John Ward Gilman Copper Printing Plate” was created at the request of the Colony of New Hampshire in June 1775, virtually the eve of the American Revolution. The notes it was used to print are finely decorated and depicts four different denominations – 1, 6, 40 and 20 shillings.

234 years later, the copper printing plate turned up at an estate sale in Spring Valley, Minnesota, where it was purchased by our client. Little is known about where the plate was in the meantime. This alone makes the case an interesting one. After all, these are some of the notes that financed the Revolution and the nation that emerged from it. But another question – and for now, the legally operative one – is jurisdiction. When the client attempted to place the item up for sale at a numismatic auction in 2010, the New Hampshire Attorney General intervened and demanded that the sale be halted. The client sought declaratory relief in Minnesota determining him to be the proper owner of the plate, and New Hampshire contested jurisdiction – a contest which has now been before the trial court several times and to the Minnesota Court of Appeals once.

So which court can declare the proper ownership of the plate? The answer depends (in part) on one’s reading of the federal constitution. In a dispute between a private citizen in Minnesota and the government of another state (New Hampshire) over a valuable item found in Minnesota but with long-ago ties to the Colony of New Hampshire, what court can determine ownership? The question raises issues of federalism with its roots in the debates between Thomas Jefferson and Alexander Hamilton over the proper extent of state sovereignty. It also raises a question – somewhat simpler – of fairness: if the plate was found in good faith in Minnesota by a Minnesota citizen, should the New Hampshire state government be able to seize the item (or simply outlast him in litigation), because of its distant connection to the item? New Hampshire’s Concord Monitor has a good account of the early stages of the dispute.

Two years after the auction of the “1775 John Gilman Copper Printing Plate” was halted, it remains disputed whether Minnesota courts have jurisdiction to determine its proper ownership. The copper plate remains in Minnesota, as New Hampshire’s second and third appeals in the case are heard by Minnesota Court of Appeals.

UPDATE: 

After over two and a half years of litigation, including three appeals (all filed by New Hampshire), we have reached a favorable settlement resolving this case.  The final two appeals (which were decided simultaneously) provided that the Minnesota does have personal jurisidiction over the State of New Hampshire for the purposes of this dispute.  A major factor was the extent to which New Hampshire inserted itself into this case by its actions in August 2010 at the time of the intended auction.  As it turns out, jurisdiction was the whole ballgame, as following that appellate decision, we reached a settlement granting my client uncontested ownership of the Copper Plate, with New Hampshire restrained from asserting any claim against the Copper Plate or interfering in any future transfer of ownership.  In return, we agreed to a pro forma dismissal of our declaratory judgment lawsuit.

The Court of Appeals decisions in this matter can be found here: 

 A11-851 (11/7/2011; denying in rem jurisdiction and remanding to District Court)

A11-1414 & A12-0965 (2/11/2013, unpublished; finding personal jurisdiction but reversing a default judgment granted after the appeal had been filed, and remanding to the District Court)