It is often said that a divorce is a process, not an event. The following is a brief and very simplified explanation of that process. For more detailed information, consult a competent attorney.
All types of litigation can be confusing, frustrating, expensive, and difficult. Because of the emotional and sensitive nature of a divorce, it can be all of these and more- especially when the custody and visitation of children is involved. This article includes a brief outline of the process of divorce in Wyoming. We strongly advise talking to an experienced attorney to assist and advise you with regards to your legal rights and obligations associated with dissolving a marriage and/or litigating the custody and visitation of minor children.
Similar to nearly all civil litigation, the divorce process starts when one party files a complaint. The spouse filing the complaint is the plaintiff and the other spouse is the defendant. Although some feel that there is a benefit to being the filing spouse or the defending spouse, the end result is the same- both spouses still end up divorced.
The complaint lays out the jurisdictional basis for the divorce action and outlines what outcome the plaintiff desires. This generally includes the date and location of the marriage, the length of time the plaintiff has resided in Wyoming, the basis for the divorce (usually irreconcilable differences), the presence of property and debts (not listing property, but rather describing the nature of property- personal property and/or real estate), a request to equitably divide property and debts, and a request for spousal support. Although not usually awarded in Wyoming, spousal support is often requested in a complaint for the simple reason that if you do not ask for it in the complaint you cannot get it in the end.
For divorces with minor children, the complaint also lays out the jurisdictional basis necessary for the court to determine child custody, visitation, and support. This includes the names and dates of birth for children, each address they have lived at for the past five years and with whom, information about other people who may claim a parental or custodial interest in the children, any other open case regarding the children, an assertion that the plaintiff wants to be awarded primary custody and control of the children with visitation for the other parent, and a request that the other parent pay child support.
A child custody dispute between unmarried parents is very similar; however, the issue is generally brought before the court as an action to determine paternity with party pronouns of petitioner and respondent instead of plaintiff and defendant.
The next step after the complaint is filed is to provide notice to other party that the divorce action has begun. This is accomplished by the service of a summons along with the complaint to the defendant. Generally a sheriff or other non-interested person delivers a copy of the summons and complaint to the defendant at their home or place of employment. Another common method is when a defendant accepts service of the summons and complaint by signing an affidavit acknowledging that he or she has received the summons and complaint. This is known as acceptance of service and is most common in uncontested or amicable divorces. The least common method of service is by publication when the other party cannot be located.
Once the summons is served along with the complaint, a defendant has 20 days (if served in Wyoming) or 30 days (if served outside of Wyoming) to file a response with the court or otherwise defend. If a defendant chooses not to or fails to respond to the complaint within the time limit, they can lose their opportunity to have any say in what happens in the divorce or with regards to child custody and visitation.
The Answer and Counterclaim
After being served with the summons and complaint, a defendant then responds by filing an answer which is often accompanied by a counterclaim. An answer includes a response of whether or not the defendant admits or denies each allegation in the plaintiff’s complaint. When a defendant wants to assert their own claims to property, spousal support, child custody, and child support, a counterclaim is filed along with the answer. The Counterclaim is very similar to the complaint and incudes essentially the same information.
Once the complaint is filed and served on the defendant another time clock of 30 days begins to run with regards to information that must be disclosed by each party to the other. The information that must be disclosed is known as the initial disclosures and includes a listing of all property owned by either party, all debts, and a brief statement regarding each party’s position with regard to child custody. Initial disclosures are not filed with the court but are delivered to the other party. The purpose of initial disclosures is to define the marital estate and to help establish each party’s position with regard division of property, child custody, and visitation.
Confidential Financial Affidavit
In divorces with minor children and paternity actions, both parents are required to complete a confidential financial affidavit on a form approved by the Wyoming Supreme Court (available on the Wyoming Supreme Court website). The purpose of this document is to define each parent’s income for the purposes of calculating child support and must include copies of recent paystubs with year to date amounts and income tax returns and W-2s for the most recent two years. There is no deadline to file a financial affidavit; however, it is often beneficial to file it sooner rather than later. For questions about how child support is calculated, see the blog entry titled How Child Support Works in Wyoming.
Negotiation and Settlement
Not all cases must go to trial. In fact, it is quite rare for divorce and custody cases to go to trial. Once the dust settles after the filing of the complaint, service of summons, and delivery of initial disclosures, it is often customary for attorneys to find out their client’s position, draft a settlement proposal, and submit it to the other party’s attorney. This initial proposal kicks off the negotiation process that can last as long as it takes for the parties to either reach an agreement or decide to let the judge decide by going to trial. If the parties reach an agreement as to the distribution of property, child custody, visitation, and child support, their agreement is presented to the court for approval along with other necessary documentation. If the court approves the agreement, which happens in most situations, it will become the order of the court and the divorce will be completed.
It is quite common that attorneys will need more information from the other party than is provided in that party’s initial disclosures. In that situation, there are a number of ways to request such information. This is known as the discovery process and can include interrogatories (written questions), requests for production of documents, requests for admission (asking a party to admit specific facts), and even a deposition (a formal meeting outside of court where an attorney asks questions of a party or witness who has been sworn and placed under oath; depositions are transcribed by a court reporter and/or recorded). The discovery process is governed by specific rules regarding timing and deadlines, what information must be disclosed, and what information can be withheld.
In divorce cases it is generally beneficial to avoid trial for a number of reasons- first and foremost is the cost associated with trial. Trials include a lot of preparation time and can include a number of days in court. With attorneys, time spent on your case means money spent on your case. Thus, when a marital estate is modest, a trial can easily consume much or all of the assets owned in the marital estate. For example, if a couple is arguing over $5000.00 worth of assets, trial could easily cost $5000.00 or more. As can easily be seen, it is not a sound financial decision to spend $5000 for the chance to get awarded $5000.00 or to avoid parting with $5000.00. Although it may seem an obvious choice, emotions associated with a divorce can easily cloud a person’s judgment with regards to the choice about going to trial. Because of this financial risk, it is crucial to have competent representation to assist you when making these kinds of decisions.
In cases involving children, whether it be a divorce or a paternity case, it is generally beneficial to avoid trial for a number of reasons. Cost is a very important factor as described above. However, even more important than cost, a trial can irreparably harm parents’ ability to cooperate for the sake of their children. Additionally, the court will often apply standard schedules (every other weekend, alternating holidays, 6-8 weeks each summer) regarding visitation that may or may not work according to both parties’ busy lives. Therefore, it is often beneficial to cooperate and craft a schedule for custody and visitation that is customized to your individual lives. There are many different factors at play with regards to child custody and visitation, consult a competent attorney for more detailed information.
Enforcement of the Final Order
Once the court has approved the final order, after trial or settlement, the court can be called upon to settle disputes regarding the order or enforce provisions of the order. This is accomplished through a process known as a show cause action. Basically, the party wanting to enforce a provision within the court’s order files a motion for an order to show cause wherein they detail the other party’s failure to comply. If allegations in the motion amount to a material violation, the court will issue an order to show cause and set a hearing where the person asking the court to enforce the order must prove a material and willful violation of the order and the person accused of violating the order is given the opportunity to show cause why they should not be held in contempt of court for failing to obey the court’s order. If the court decides that a violation occurred the judge will order some kind of remedy to correct the situation.
Divorces and child custody disputes are often very emotionally charged and can be extremely difficult for the spouses/parents but also for adult and minor children. It is always beneficial to try to keep perspective of what is actually happening in order to minimize any adverse effects. In Wyoming, the purpose of a divorce is to equitably divide the marital estate and to allocate responsibility for children with regards to custody, visitation, and support. A divorce or paternity action is not a place where either party will obtain justice for the grievances among the parties. Keeping this in mind can often help parties reach settlement and save time and money.
Property is divided according to statutory factors geared toward reaching an equitable distribution. Equitable does not mean equal but rather fair considering the circumstances of each case. Property owned by a party prior to a marriage or inherited by them and kept separate is often awarded to that party. This is not a hard and fast rule, but rather what courts will often do if the issue is presented at trial.
Child custody and visitation is based on the best interests of the children after consideration of a number of factors. It is not based on what is fair to each party or what each party wants. Key factors for courts are often the stability of the children and the willingness of a parent to cooperate with the other parent regarding parenting time and decision making. These are certainly not determinative factors- there are many different facts and circumstances that can cause a judge to decide one way or another. Consult a competent attorney for more information about how judges determine custody.
The divorce process is fraught with pitfalls and deadlines that can drastically affect your property or parental rights. We encourage everyone contemplating divorce to consult with competent legal counsel.
How Child Support works in Wyoming
The issue of Child Support arises when the parties are parents of minor children in divorce cases or in paternity cases where the parties were never married. Child Support is property of the children and as such is determined through a standardized calculation based on each parent’s net monthly income.
The income of the parties is determined when each party completes a Confidential Financial Affidavit as required by statute.
The Confidential Financial Affidavit, or CFA, takes into account all sources of income and also mandatory deductions from your paycheck such as federal income tax and social security withholding. The CFA also requires identifying information for all of your minor children regardless if they are from previous relationships. From the information in the CFA, a net monthly income is determined.
When a parent is not employed, that parent’s net monthly income is imputed. Imputed is a term that means it is assumed that a parent is capable of working and so they are assigned a net monthly income amount based on their earning capacity. When a parent does not have specific job skills or training or has never been employed, that parent’s income is generally imputed at minimum wage, or $1160.00 per month. This $1160.00 amount is based on the assumption that the parent is capable of working a minimum wage job for at least forty hours each week.
A parent’s net monthly income can be imputed at an amount higher than the parent’s actual income if that parent is deemed underemployed. A parent can be deemed underemployed if that parent has special training, skills, or a degree and is working in a job outside that parent's field of training and earning much less than other workers in their degree or skill field.
Because the calculation is standardized once each parent’s net monthly income is determined, the most technical part of the process is determining each parent’s income. You should consult with an attorney who is familiar with child support matters if you have any questions.
Here is an example of how child support is calculated based on an assumption that a Mom and a Dad are getting divorced and have 2 children. For this example, we further assume that Dad is the custodial parent with a net monthly income of $4,500 per month and that Mom is the non-custodial parent and earns a net monthly income of $3,000 per month.
The incomes are first added together to get a combined net monthly income. The combined net monthly income is then used to determine a joint presumptive support obligation. Presumptive just means that the legislature presumes that if parents earn a certain amount that they are capable of spending a specific amount for the support of their children.
Once a joint support obligation is determined, that support obligation is divided between the parties based on the percentage that represents each parent’s portion of the combined income.
This is what it looks like:
Dad’s income: $4,500.00 (or 60% of the combined income)
Mom’s income: $3,000.00 (or 40% of the combined income)
Combined net monthly income: $7,500
Joint child support obligation: $1,772.30
Here is how the joint child support obligation is calculated: the statute, W.S. § 20-2-304, assigns a presumptive child support level for each income bracket. Here, the joint income of $7,500.00 falls in between the category ranging from joint incomes of $5,498.00 to $7,612.99. That bracket sets the joint support amount at $1,468.00 plus 15.2% of the joint income above $5.498.00. In this example it looks like this: $1,468 + [15.2% x ($7,500 -$5,498)] = $1,772.30
That presumptive joint support obligation is then allocated between the parents based on their percentage of the combined income.
Thus: $1772.30 x 60% =$1063.38 for Dad’s portion
$1772.30 x 40% = $708.92 for Mom’s portion
Mom's portion is paid to Dad through the Clerk of District Court.
Since the children live with Dad, it is presumed that he will be spending $1772.30 each month on their care from his own income in addition to the child support that Mom’s is paying to Dad; therefore, the children are being provided for by both parents according each parent’s earning capacity.
When parents share custody of the children, meaning each parent has the children for at least 40% of the nights of each calendar year, the calculation is different.
For example, if both parents have the children 50% of the time, each parent’s presumptive child support amount is multiplied by the percentage of time the child is with the other parent. Then, the parent with the higher presumed amount pays the difference between both parents’ shared custody presumptive amounts to the other parent.
Here is what it actually looks like:
Dad’s shared custody amount: $1063.38 x 50% = $531.69
Mom’s shared custody amount: $708.92 x 50% = $354.23
The difference between Mom’s amount and Dad’s amount:
$531.59 - $354.23 = $177.23
The $177.23 would then be paid by Dad to Mom each month for the support of the children. The theory is that if each parent has the children 50% of the time, Dad would be paying Mom $531.69 per month and Mom would be paying Dad $354.23 a month. Therefore, instead of two checks going back and forth, Dad just pays Mom the difference.
One thing to keep in mind is that a parent is also presumed to be able to contribute additionally to the children’s care with medical support and various additional expenses such as school clothes and activity participation costs.
The presumptive child support can be deviated from either by agreement of the parties or by order of the Court when appropriate based on factors defined by statute. When children receive any kind of state benefit, such as food stamps (SNAP) or health care (CHIP), the presumptive child support amount cannot be deviated from.
Child support can be modified every six months if a parent’s income changes enough that the presumptive child support amount will change by at least 20% or every three years if the change will not result in a 20% change.
Child support obligations do not generally terminate on their own. So, if you are paying child support for a child that has finished high school and is over 18, you likely need to modify the child support order.
As you can see, child support can be complicated. Please feel free to contact us with any questions.
To blow or not to blow, that is the question.
For years the insider’s secret for when a driver gets pulled over for suspected DUI was to refuse the breath test. This worked well simply because without a breath test showing that a driver had a blood alcohol content (BAC) higher than a .08%, the state would have to prove a driver was too intoxicated to safely drive through the officer’s testimony and other evidence such as a video of standard field sobriety tests. The latter situation is much harder for the state and as such was better for a defendant. This is no longer the case.
The law in Wyoming regarding refusal to take a breath test changed in 2011. Now, when a driver refuses to take a breath test (or a chemical test by blood or urine), an officer can apply for a search warrant. As a result, when an officer describes sufficient evidence in a warrant application, a judge can issue a warrant and a driver can be compelled to submit to chemical testing.
What does this mean for drivers in Wyoming? It means that whether you choose to blow or not to blow, a chemical test will likely happen either way. Bottom line: if an officer has probable cause for a warrant, the state will likely have a chemically tested BAC to admit into evidence at trial.
So should a driver always submit to testing right away? A good question and one without a clear answer. Refusing to comply with a breath test can result in an additional citation for interference with a police officer. On the other hand, when officers have to get a warrant after a driver refuses to blow, a blood test is the likely next option for a chemical test. A blood test may not take place for over an hour. This hour could give your body additional time to process the alcohol in your system. This extra time could be beneficial as it could result in a lower BAC as your liver processes the alcohol already in your blood stream. However, it could also be to a driver’s detriment as alcohol in a person’s stomach that has not worked its way into the blood stream would have time to do so which could result in a higher BAC.
Just a reminder, every case is different and there is no solid answer for what you should do. There are many factors that come into play in every case. As such, please feel free to contact us with your questions. We are happy to discuss ways to avoid a citation for DUI and what to do if you get one.
Liberty Day 2013
Liberty Day takes place each year on September 17. On that date in 1787, the United States Constitution was signed. In an effort to better educate our children about the contents of the United States Constitution, Andy McKean and his late wife, Kathy, founded Liberty Day in 1996.
The Wyoming Bar Foundation has taken an active part in Liberty Day over the past several years, enlisting volunteer attorneys from around the state to present a lesson to local fifth grade classes about the Constitution. In Albany County this year, we had eight schools, twelve classes and seven volunteer attorneys participate in Liberty Day.
Brown & Hiser contributed three attorney volunteers to present to classes in Albany County this year: Kelly Neville Heck, Clayton Melinkovich and Elisa Butler. In presenting to the classes, we talked to the fifth graders about the history leading up to the Constitution, including the signing of the Declaration of Independence and the Revolutionary War. The students especially enjoyed activities related to taxation without representation. Additionally, we discussed the three branches of government, the Bill of Rights, and the various other amendments to the Constitution. We experienced some lively debate when the students were given the opportunity to act as the three branches of government and enact laws.
All three volunteers from Brown & Hiser greatly enjoyed presenting to the various classes. The fifth graders were eager participants, and seemed to enjoy the time that we spent in their classrooms. The schools and teachers were extremely gracious in giving up time in their schedules to allow us to present.
What a great program Liberty Day has become, and we are proud to be a part of helping to teach the next generation about the United States Constitution! We are so happy to volunteer, and look forward another great experience next year. Happy Liberty Day everyone!
The Wyoming State Bar does not certify any lawyer as a specialist or expert. Anyone considering a lawyer should independently investigate the lawyer's credentials and ability, and not rely upon advertisements or self-proclaimed expertise.
Copyright 2014 by Brown & Hiser LLC, 515 Ivinson Ave., P.O. Box 971, Laramie, WY 82073-0971