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Legal FAQs
Alan A. Panek Law Office S.C. is happy to answer all of your legal questions and questions of a technical nature regarding this website. If you do not see the answer to your question listed below, please contact us, and we will be happy to provide one for you.
This information provided below, which is based on Wisconsin law, is issued to inform and not to advise. No person should ever apply or interpret any law whithout the aid of a trained expert who knows the facts, because the facts may change the application of the law.
Please choose one of the following categories:
Business Law
Divorce and Child Custody
Estate Planning
Medical Care
Personal Injury
Real Estate
Website Technical Issues
Divorce and Child Custody
What is the difference between a divorce and a legal separation?
Divorce ends a marriage. Legal separation involves the same procedures as divorce, but the separated spouses can't marry others. Legal separation is an alternative for people who wish to avoid divorce for religious or other reasons. The court grants a legal separation on the ground that the marriage relationship is broken.
What is an annulment?
An annulment dissolves a marriage that was invalid from the beginning. For instance, one spouse may have been too young, unable to have sexual intercourse, incapable of consenting to the marriage, or may have been induced to marry by fraud or force.
What is meant by “legal custody?”
Legal custody is the legal right to make major decisions affecting your children, such as elective medical care, choice of religion, choice of school, consent to marry, consent to obtain a driver’s license, and consent to enter the military service. Orders can be for joint legal custody or sole legal custody. Joint legal custody between parents means that both parents have the equal right to make major decisions concerning their children.
Neither parent’s right to make major decisions about the children is greater than the other parent’s right. Sole legal custody means only one parent has the right to make major decisions concerning the children. Legal custody has nothing to do with the amount of time the children will spend in a parent’s home. The amount of time a child spends with a parent is called “physical placement.”
What is a guardian ad litem?
Parents in family court actions, such as divorce, are sometimes unable to agree on issues of custody and physical placement of their children. When this happens, the court will appoint a guardian ad litem to assist the judge in making custody and placement decisions. A guardian ad litem is an attorney who represents the best interests of the minor children.
The guardian ad litem will investigate the facts and recommend to the judge a position on legal custody and placement. The guardian ad litem is not the same as the children’s attorney, however. The guardian ad litem’s role is to advocate for the best interests of the children, which may not be the same as advocating for what the child wants.
Can my obligation to pay child support or maintenance (alimony) be discharged if I file bankruptcy?
No. Debts relating to child and spousal support are not dischargeable.
If my ex-spouse fails to pay the debts she was ordered to pay in the divorce, can the creditor then sue me?
Yes. The divorce judgment does not change your relationship with those you owe money to (your creditors). Creditors may sue either spouse, no matter which spouse was ordered to pay the debt in the divorce. If the creditor sues you, you may bring your ex-spouse in to the lawsuit. You may also file a motion in the divorce court to address your ex-spouse’s non-payment of debts.
Estate Planning
What will happen to my estate if I do not have a will?
If you die without a will, your estate will be distributed pursuant to an established order of distribution set by Wisconsin Law.
Am I obligated under the law to leave assets to my family?
You are not obligated to give anything to your adult children or relatives upon your death. It is however a common practice to leave one dollar to a person you wish to omit from distributions. This one dollar gift is made to show that they were remembered but that the person making the will chose not to give them more. By leaving one dollar to them, the argument that omitting them was an unintentional mistake is defeated.
Business Law
How is an LLC taxed?
A LLC can choose to be taxed as either a partnership or as a corporation. If taxed as a partnership, tax profits and losses are paid or received by the “members” (owners). If taxed as a corporation, taxes are paid and losses are claimed by the company.
Which debts are dischargable under bankruptcy?
Under bankruptcy law, not all debts are necessairly dischargeable. For example, the following debts are generally not dischargeable: taxes; spousal and child support; student loans; criminal fines and penalties; debts arising out of willful or malicious misconduct; liability for injury or death from driving while intoxicated; nondischargeable debts from a prior bankruptcy.
Does an LLC have shareholders?
Owners of an LLC (limited liability company) are called members. But, owners of a corporation are referred to as shareholders.
Personal Injury
How long do I have to decide on a personal injury claim settlement?
The law requires you to settle your claim, start a lawsuit, or give special notice within limited times after the injury. The time you have to take action depends on the person or entity that caused your accidental injury. You should contact an attorney to find out the statue of limitations as it applies to your personal injury.
What is my personal injury claim worth?
A claim is valued and usually settled based upon an estimate of what a jury would likely regard as fair and reasonable compensation given the severity of the injury and the effects of the accident on your life, as well as the probability that a recovery against the wrongdoer is warranted. In addition to medical expense and wage loss, you are entitled to money damages for personal injuries, including pain, suffering, and loss of enjoyment of life.
Which insurance policies will cover my costs?
Most automobile, homeowners, and commercial liability policies contain medical payments coverage for medical expenses incurred after an accident without regard to fault. This coverage in auto policies applies to the insured family members and vehicle passengers, while homeowners and commercial policies cover only others or visitors to the premises.
Real Estate
Should the same attorney represent the buyer and seller?
It's not a good idea. The buyer and seller have conflicting interests in a real estate transaction. There may also be other parties to the transaction (the lender and title company, for example) and their attorneys represent their interests, which are not the same as the buyer's and seller's interests.
How important is the offer to purchase?
The offer to purchasse is critical. Buyers and sellers should seek legal assistance in dealing with it. The offer is a legally binding contract when both parties have signed it and its contingencies are met. Contingencies (such as financing or property inspection) protect the parties by setting conditions that must be resolved before the sale is completed or closed.
How do you hold title to real estate?
Individuals and entities (such as corporations or limted liability companies) may own property individually or with another person as tenants-in-common or joint tenants. Married couples living in Wisconsin are subject to the Marital Property Act, which affects how title is held. An unmarried couple may own property together as tenants-in-common or joint tenants, but it is advisable for them to have an attorney prepare an agreement spelling out their respective rights and obligations in regard to the property.
Does a buyer need title insurance?
An attorney can help the buyer determine whether to ask for title insurance or an abstract and title opinions. Most lenders require title insurance, even though it may cost less to use an abstract, if one exists. The lender may require title insurance regardless what the offer to purchase says. Buyers should contact a lender before writing the offer to purchase to determine the lender's requirements.
What's the difference between a warranty deed and a quit claim deed?
A warranty deed warrants or guarantees that the title is free of all title claims against the property except those mentioned in the deed. A quit claim deed transfers what title the seller has (if any), without such guarantees.
What is a land contract?
A land contract is used when the seller finances the buyer's purchase of the property. Rather than paying the entire purchase price at closing, the buyer pays the seller in installments and receives a deed when all payments are made. Enforcement of a land contract is somewhat easier than a mortgage, but the seller assumes the risk that it will have to retake the property and resell it.
When can a lender foreclose on a property?
A significant breach, such as failing to make payments or damaging the property, will allow the lender or land contract vendor to foreclose. Foreclosure terms are usually stated in the mortgage or land contract. Foreclosure may result in the sale of the property and loss of the buyer's interest in it.
When do you need a written lease?
If your lease is for more than a year, it must be in writing and must contain certain essential items to be enforceable. If the lease is for a year or less, it doesn't have to be in writing to be legal, but it is still a good idea. The landlord must provide, in writing, the names and addresses of the premises owner and authorized agents. This disclosure requirement applies in all cases except those in which the owner occupies a structure that contains no more than four dwelling units.
How does a landlord terminate a tenancy for nonpayment of rent?
When rent is paid on a month-to-month basis, the landlord has two options, whether the lease is in writing or not. The first option is to give the tenant who doesn't pay on time a notice to either pay or leave within five days. If the rent is paid within five days, the tenant can continue to live on the premises. If the tenant doesn't pay within five days, the landlord can begin eviction proceedings.
The second option is to give the tenant notice to leave within fourteen days. A fourteen day notice doesn't give the tenant the right to pay and continue to live on the premises. A written or printed copy of the notice must be delivered to the tenant or to a member of his or her family who is age fourteen or over, and who is informed of the contents of the notice.
When can a landlord enter a tenant's premises?
A landlord can enter the premises at reasonable times to inspect it, make repairs, or show the premises to prospective tenants. He or she must give twelve hours notice except in unusual situations when it's reasonably necessary to preserve or protect the premises. If the landlord complies with the requirements, the tenant cannot refuse entry. Your written lease may have additional requirements for entry.
When can a landlord withhold a security deposit?
If you damage the premises- beyond ordinary wear and tear- the landlord is entitled to use the security deposit to pay for repairs. In addition, a landlord can withhold the security deposit for waste or negelct of the premises, nonpayment of rent, nonpayment of amounts owed for utility service provided by the landlord, nonpayment of amounts owed for diirect utiltiy service, and mobile home parking fees assessed against the tenant by a local unit of government. The landlord must give you a written reason for withholding the deposit, and you must give your landlord your new address.
Medical Care
What rights do I have about the medical care I receive?
The legal doctrine of informed consent defines your right to decide whether and how you will receive medical care. Informed consent means your health care provider must appropriately explain the proposed treatment to you and get your permission before treating you.
Do I have a right to refuse treatment?
Yes. Courts have repeatedly ruled that a competent adult patient has the right to refuse treatment, even if the patient's family or doctors disagree. You are the person who must decide.
What is an advance directive?
An advance directive is a written instruction that you make while you are mentally competent. The advance directive states how you want health care decisions to be made for you if you become incapacitated. Wisconsin laws recognize two forms of advance directives: the living will and the health care power of attorney.
Why should I have an advance directive?
An advance directive allows you to make your wishes clear to your family, friends, and health care providers while you are still able to do so. The advance directive helps prevent disagreements among your family members about what treatment you should receive if you are incapacitated.
How long does my living will or health care power of attorney last?
Both types of advance directives last from the time they are created until your death, unless they are revoked or changed.
When should I prepare an advance directive?
Now. While most people first think about preparing an advance directive when they are admitted to a hospital or nursing home, it is a good idea to think about doing so now- while your health still permits you to do so.
Technical FAQs
I see that a RSS feed is available on the Legal News section of the website. What is RSS? Do I need it?
RSS (Rich Site Summary) is a XML based markup format used for syndicating website content. Once website content is formatted in RSS, it can be viewed with a RSS program instead of a browser. This gives RSS the ability to be ported to platforms other than a PC. If you would like to learn more about RSS or download a free RSS client, please click here.
I'm trying to open a document/link, but it says that I don't have the software necessary to open the file, or I get an error message. What should I do?
Some documents on our website have been saved in the portable document format (pdf). In order to view these documents, you will need to install a copy of Adobe Acrobat Reader. Please click here to download a free copy of this software.
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Did you know...
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The legal doctrine of informed consent defines your right to decide whether and how you will receive medical care?
Contact Alan A. Panek Law Office S.C. to discuss your legal rights regarding medical treatment.
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