Some clients have difficulty understanding exactly what they would like the attorney to accomplish. It is difficult when you are caught up in an emotional roller-coaster of a law suit to fully appreciate what you are trying to accomplish or why. The attorney has to become an investigator. It is their job at this point to weed through the emotional ties that the client has to the suit and be able to spot the issues at hand. A good attorney will make sure, multiple times, that the two of you have properly identified all of the issues you want addressed. Then, they will be able to identify what issues can be effectively addressed in your case.

As the case progresses, frequent communication with a client must continue. As we all know, our day to day lives impact our ultimate goals for the future. These same daily life experiences sometimes impact the outcome that a client would like to see on their case. Staying in close contact with your attorney to discuss any of these changes is important.

Communication with the clients is sometimes seen as dollar signs by the client. This is not necessarily the case. An attorney is saving you time and money by staying in frequent contact with you throughout the case. Sharing any details that they are receiving, making sure that your goals haven’t changed and keeping you informed on any progress so there is no need for an hour long meeting on what has happened. In addition, by keeping the attorney informed on what is happening with you, they don’t need to find your new address if you move, track down a different phone number if yours changes or wonder why you aren’t available for a court date because you are out of town on vacation.

By the end of your case, with any luck, you will view your attorney as a close confident. This should be someone that you are not dreading to talk to or someone you haven’t caught up with forever. It will be a person that you miss when something new is happening in your life, because for a long time you shared all of that with them. If you are able to establish this type of relationship with your attorney, know you have found an attorney who has mastered the art of communication.

In the event a member of a mixed marriage dies without a will, the state of Wisconsin says that one half of the estate is to be left to the surviving spouse.  The other half is to be provided in equal shares to the remaining children.  What happens if you want your spouse to be able to stay in the marital home without having to buy your kids out?  What happens if you have minor children, the guardian of which would likely be your ex-spouse, who would by default have control over those assets?  Do you know of a family with a “black sheep” that may just force a sale of the marital home, displacing everyone else involved, just to get his or her share of the estate?

A well drafted will, trust or combination of these can help you prepare and plan for your mortality.  You can provide for your spouse and your children as you see fit.  You can establish who is to control the purse strings on a trust left for the benefit of minor children.  You can make other wishes known as well.  We can help walk you through the entire process.  Memento Mori…now go Carpe the Diem!

A Realistic Approach, Honest Opinions, A New Way to Practice.

Nelson & Lindquist, S.C.

Governed under Wisconsin Statute §813.12 , a Domestic Abuse Restraining Order is an action that may be brought against a family member, a household member, a former spouse, someone with whom you have a child in common, someone with whom you have had a dating relationship or a caregiver.  The statute is very explicit that the respondent must be someone over 18 years in age, in other words an adult.  The respondent must be inflicting or threatening abuse against you, the petitioner,  as specifically defined as: intentional physical pain or injury, intentional impairment of physical condition, violation of 1^st, 2^nd or 3^rd degree sexual assault, intentional damage to physical property belonging to the petitioner or a threat to engage in any of the above stated conduct.

The petition can be filed in the County where the petitioner lives, the respondent lives, the abuse happened or the petitioner is temporarily staying .  There is no fee for filing a domestic abuse restraining petition and the court will review the petition the same day as it is filed to give the petitioner an immediate answer.  If the court finds that that the petitioner is in imminent harm from the respondent and that they meet the elements stated above, the court may issue a Temporary Restraining Order (TRO).   A TRO prohibits further contact between the parties until the court can hold a hearing on all the issues stated by the petitioner in the petition, within 14 days, unless extended by consent of both parties.  The respondent will then be served with a copy of the TRO, along with the return court date on the injunction itself.

An injunction hearing is held before the court, where both parties and witnesses are allowed to testify and present evidence regarding the petitioner’s allegation of abuse.  Before an injunction is granted the court must find the elements stated above and find that it is reasonable to believe that the respondent has committed domestic abuse or based on prior conduct, will commit domestic abuse against the petitioner in the future.  The court must find the petitioner to be in potential danger and that there is a pattern of domestic abuse.  The court may not consider existing court orders that bars contact in lieu of dismissing or denying the injunction.

When a court issues an injunction they are ordering the respondent from committing any acts of domestic abuse against the petitioner.  They can further require the respondent to avoid anywhere that the petitioner works, lives or regularly goes.  In some instances the court will put a certain distance in these orders like 100 feet to 2 blocks, depending on the court, thereby making it very easy for the respondent to be arrested on any violation.  The court can require the respondent not contact the petitioner through any means, even the use third parties, therefore only allowing contact through law enforcement or attorneys.   This can be a difficult provision especially if the parties have children in common that they are co-parenting, however sometimes necessary given the circumstances.  The court may put into place any other order that it feels necessary to help protect the petitioner from the respondent.   Any violation of these orders is a criminal offense.

A requirement of a domestic abuse restraining order is the surrender of all firearms from the respondent since April 1, 1996.  The firearms can be held at the Sheriff’s Department, as they do here in Hudson or surrendered to someone approved by the court.  A respondent cannot possess or use a firearm then for the entire length of the order, which can be up to four years and then extended if the Court feels it is warranted.  There are limited exceptions for law enforcement officers, member of the military or it is required as a term of employment to keep use their firearms.

The rise in Domestic Abuse throughout this country has required the courts to adopted statues like Wis. Stat. §813.12 to govern how they handle domestic abuse restraining orders.  If you have any questions about this process, from either the petitioner or the respondent’s point of view, feel free to give us a call at Nelson & Lindquist to discuss your options.

If records of the previous proceedings exist, then the court will look to the record to determine whether or not the judge in the previous case made the defendant aware of their right to an attorney, the advantages and disadvantages of proceeding with or without and attorney, the range of penalties, the seriousness of the offense and there needs to be a finding that the defendant knowingly, intelligently and voluntarily made their pleas and waived the right to an attorney.

Many times, records are destroyed after 5-10 years, depending on the jurisdiction.  If no record exists after diligent inquiry, then the defendant submits an affidavit setting forth what they recall from the previous hearing as it pertains to their right to an attorney.  Once the claim is made, it is up to the prosecutor to call the defendant to the stand and attempt to determine what the defendant knew at the time the previous hearing occurred, which could have been many years ago.  In short, it is very, very difficult for the state to prove a valid waiver occurred without adequate court records.

A successful collateral attack can mean the difference of litigating a felony case versus a misdemeanor, or even amending a misdemeanor case to a civil forfeiture.  It could mean the difference between serving 90 days in jail versus 10 days, over a couple of weekends.  If you or someone you know is facing this type of situation, please contact Attorney Andrew Nelson at 715-381-8270 for a free initial consultation.  Always remember: be safe, don’t drink and drive.

Where to have your case heard

Because of how mobile we as a nation have become, the Courts have determined that where the child resides or where an initial action began is the child’s home state and will remain so until the parties all agree and another court will take on the action.  This is helpful for the parent who remains in WI if the other party moves away with the child, because any further action involving the child will always have to be heard in the same Court here in WI as long as one party is here or until all parties agree to move it elsewhere.  This is important because all matters involving children are fluid and can be heard by the Court to change current Orders every two years and because of that the Courts want to be consistent with the Orders they have in place.  By keeping the matter in the same Court, with the same judge in most cases, you are able to have some consistency with your Orders and do not have to keep going over the history of your case at every filing, thereby expediting the process a little.

If you are currently in transition and don’t know where to file, give us a call and we can help you figure that out.  If you have options available to you because of where the other party lives or where you plan to move to, it is best to consult with an attorney before filing anything.  Sometimes where you are located can be of great advantage to you and when you are talking about the future of your children, you should use every advantage you have.  Give us a call today.