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Brent Blanchard
Brent Blanchard, Family Law Attorney
Category: Family Law
Satisfied Customers: 1975
Experience:  Eleven years of experience in family law, from pre-nups, divorces, child custody and support mod
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My son who has been very unhappy in his marriage saw an attorney

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My son who has been very unhappy in his marriage saw an attorney about two years ago for a divorce however he never followed through with filing as his wife was so very distraught and his daughter was so young (she was just under three).

He stayed to try and work through the issues he has with his wife, mostly because of his daughter who is five years old now, however the relationship is very one-sided and still not working. He has been married a little over five and a half years now. The lawyer he saw two years ago told him he had such a young marriage that splitting assets would be extremely easy with no maintenance (child support of course). They both work full time, they purchased a home together five years ago (no equity in the house yet) and pension (401k) from his employer (she has nothing).

My inquiry is;

1. Is he still considered as having a "young marriage" where splitting assets would be easy?
He is concerned about his 401k and assumes since there is no equity in the house one or the other could take over ownership and make the payments or sell and both walk away.

2. Child support is of course not an issue for him as he is so in love with his child but would also like 50/50 custody, physically and legally, I think there is a difference but am possibly saying this wrong???

Thank you.
Thank you for your question. Sorry to hear about the situation.

One of the biggest reasons why short-term marriages can be more simple for property division and spousal support are: 1) there usually hasn't been enough time to accumulate enough assets during the marriage for there to be much to argue over; and 2) if one spouse is not working, that person was often self-supporting in the job market just before the marriage (giving up a career to contribute to the marriage becomes a larger financial loss, and a larger obstacle to re-employment, the more years it has been).

The details of how it will work out will depend on the numbers--what each person was earning before the marriage, during the marriage, and is "capable" of earning after the divorce.

Wisconsin is NOT a "community property" state, so property division is not so strictly a half-and-half proposition for what was earned and acquired (other than by gift or inheritance) during the marriage. Beware, because pre-marital or "sole and separate" property can become marital property if its title (like a car) is changed to both spouses, or if it is money/investments and the other spouse is added to the account. The law (dry reading) can be found here: https://docs.legis.wisconsin.gov/statutes/statutes/767/VII/61. An easier to read summary is here: http://www.wisbar.org/forPublic/INeedInformation/Pages/Marriage-Marital-Property.aspx

If the two parents are of about the same earnings capacity, a 50/50 child custody arrangement can result in no child support owed. I have seen this happen in other states. Wisconsin offers calculators for the various types of custody here: http://dcf.wisconsin.gov/bcs/order/guidelines_tools.htm. Just remember that the accuracy of the estimate there depends on the accuracy of the information put in.

And what is roughly equal or fair may not be very close to half and half if the child has special needs which are not split by the parents. This equitable adjustment usually is not a factor with 50/50 custody.

I personally recommend for non-legal reasons that divorcing parents live as close to each other as they can stand. When there is an argument with one parent, I prefer that the child (whether young or a teenager) be able to "run away" to the other parent's house on foot and in only a couple of blocks of travel.

So you will know, "legal" custody is the right to have a voice in the upbringing of the child, especially useful when a trip to the emergency room is needed. "Physical" custody is which home the child lives in.

I hope that this helps you sort this out. If everyone is lucky and smart, the parents will be adult enough to look at the facts and the numbers and the law, and just agree to a reasonable property division and parenting plan without need for a trial.

Thank you.

BAB.

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