Surprisingly, this is a topic that many lawyers fumble over. I am not sure why. Especially when it comes to family law matters, I think most people, including lawyers, want to avoid acrimony and contentious court hearings, so the impetus is to just agree no matter the result. I also think lawyers have a hard time explaining their value to clients, especially in family law cases.
I have said many times in my career that only if a client had seen me first, we would have saved not only lots of dollars, but would achieve outcomes that are favorable to a client. No one, it seems, understands or accepts this concept. I see hiring a lawyer the same way one looks at health insurance. Health insurance is designed so that you pay a little each month to avoid owing a lot at a certain date and time for a medical procedure. Hiring a lawyer to assist you in advance of a legal problem can often save you time and money later on.
I am going to give a long example. I am going to do this because 1) lawyers like to give examples because much of what we do is outcome based on past experiences, and 2) I think it is an interesting story.
I have a client recently who was getting along extremely well with the ex-spouse. This is a good thing. This result is what Courts want to see happen between former spouses. The two parties were getting along so well that one would actually describe them as friends.
At one point in the relationship, one former spouse wished to move out of state. After long, careful, kind, considerate discussions, the other former spouse agreed to the move. The parties sat down and mapped out a schedule that would allow the non-moving spouse to travel to the state where the other former spouse moved with the minor child. The parties had also arranged that the child would return to Wisconsin to visit the non-moving parent in the summer months.
The parties actually acted on this agreement. One parent visited the minor child in the out of state location on two occasions and the child was then sent to Wisconsin to visit with the other parent in the summer. At the conclusions of the summer visit, the child did not return to the other parent. The Wisconsin-based parent decided to withhold the child.
Suddenly, what had been a very amicable relationship between two divorced parents became very contentious. I think everyone can understand why that would be.
The matter made its way to court and what occurred was that the Court required the parent who had already moved to comply with the terms of Wis. Stat. 767.481 which is entitled “Moving the Child’s Residence Within or Outside the State”. This statutory procedure sets forth the requirement that a parent who wants to move with the minor child take certain actions in court prior to the move. The actions require the parent to file a Motion with the Court that includes a written plan that includes the date of the proposed relocation; the municipality and state of the proposed new residence; the reason for the relocation; a proposed new placement schedule including placement during the school year, summers, and holidays; the proposed responsibility and allocation of cost for each parent for transportation of the child between the parties under proposed new placement schedule; a request for a change in legal custody. Notice must be given to the other parent stating that if the other parent objects to the relocation, that parent must file and serve no later than five (5) days before the initial hearing an objection for the relocation and supply to the Court any alternate proposal, including a modification of physical placement or legal custody. What is important about the statute is the phrase in the statute that says that if a parent intends to move with the child more than one-hundred (100) miles from the other parent, then “the parent who intends to relocate and reside with the child shall file a motion with the Court seeking permission for the child’s relocation.”
So, here we have a situation where two parents were good friends after the divorce. We have a situation where both parents agreed to the move; had all of the details amicably worked out between them; however, they did not follow the terms of the statute which requires a parent who is seeking to relocate with the child to file a Motion with the Court. Had the parent filed the agreement/stipulation that was reached between the parents with the Court, we would not have had, in my opinion, a drawn out and highly contentious hearing costing each parent many dollars of attorneys’ fees and Guardian ad Litem expenses. If a written agreement had been filed with the Court, then a Judge would not have been able to second guess the moving parent’s decision to move.
My estimate is that had one of the parents come to me with instructions to draft a formal Stipulation and Order allowing the relocation, the cost would have been between $250.00 and $500.00. Instead, we had what amounted to a full-blown child placement hearing at a cost of thousands upon thousands of dollars.
I try placement cases very frequently. That is what we do. We go to court to help people. However, another aspect of what we do and what we can do is help people avoid problems. This is something to think about. Even when you are getting along with your former spouse; agreements that change a Court Order or cause a Court Order to be modified must be reduced to writing; filed with the Court; and approved of by the presiding Judge. Taking this step, even though it costs a little bit of money, can save thousands of dollars later on.
If you have a Court Order that is no longer be followed by you and your former spouse, come and see us. Tell us your story; let us draft the appropriate paperwork that documents the changes to the Order that you have made informally with your spouse so that you can rely on that informal agreement going forward.