Tuesday, May 17, 2011

PALIMONY IN WISCONSIN?

The Wisconsin Court of Appeals just decided a case arising in La Crosse County called Jahimiak v. Long.  The case should stand as a reminder that parties who decide to live together and accumulate property together outside of marriage can cause significant legal problems in the increasingly common circumstance where those relationships end. 

In recent years, it has been more common for people to cohabit without the benefit of marriage.  When this cohabitation extends for years, the unmarried persons in such relationships frequently accumulate the same legal and financial entanglements married people do.  As cohabiting couples “break up” the legal system is then asked how to resolve the resulting legal and financial problems.

Should things like real estate, boats and cars belong solely to the person whose name is on the title?  Who should receive how much of various financial accounts or retirement plans?  Who should get credit for how much of what was previously paid toward their joint financial obligations or what one party contributed to pay on the debts of the other?

When married parties see their relationship end, the legal system has an entire chapter of Wisconsin statutes governing divorce in place to deal with untangling the legal and financial issues involved.   However, when the parties are not married, and have not agreed in advance how to resolve future problems, the legal dispute can be substantial and the results uncertain.    

In 1977, actor Lee Marvin was sued by a woman with whom he cohabited.  She claimed that when they moved in together, he promised to support her for life.  Noted California divorce attorney Marvin Mitchelson referred to the claim he brought against Marvin for breach of that contract as a suit seeking “palimony.”  Palimony has come to be understood as a shorthand way of describing court action brought to apportion the financial consequences arising from the break-up of a long term non-marital relationship.

In 1987, in Watts v. Watts, the Wisconsin Supreme Court decided divorce laws would not apply to such situations.  But it ruled long standing legal claims employed in other situations could be used to determine legal rights former cohabiting parties might have in assets or debts accumulated during the time they lived together.  The Court ruled legal claims like breach of an express contract, breach of an implied in fact contract, unjust enrichment and partition could be used to divide real estate, financial assets, and personal property accumulated during the relationship.

Parties considering cohabitation can reduce their exposure to expensive and uncertain future lawsuits if they have an attorney draft an agreement to govern their legal rights in such a circumstance.  Individuals who have accumulated property during cohabitation without such a written agreement should consult an attorney when the relationship ends to be sure their financial and legal rights are protected. 

Wednesday, May 11, 2011

Wisconsin Supreme Court Affirms Admissibility of Dying Declaration

In 2004, the United States Supreme Court issued its most significant decision in decades on the right a criminal defendant has to confront the witnesses against him at trial in Crawford v. Washington.  In Crawford, the Court held that, with few exceptions, hearsay (testimony by one person about what another person said) could not be used to prove a defendant guilty.  Before Crawford, throughout the nation frequently allowed witnesses to testify to what other witnesses told them under exceptions to the rule of evidence governing hearsay permitting hearsay to be used where the statement of the third party recounted by the person who testified was deemed "reliable." 

Crawford made it clear the touchstone of whether hearsay would be admissible in a criminal case was not whether the statement was "reliable" (likely to be true based on circumstantial guarantees of trustworthiness) but whether the statement was "testimonial" (given by someone under circumstances where the statement was for the purpose of accusing someone of wrongdoing).  If the statement was "testimonial" (such as most statements given to a police officer) it would not be allowed unless the person who made the statement was actually present at trial to be subjected to cross examination.

Last week, in State of Wisconsin v. Beauchamp, the Wisconsin Supreme Court decided statements made by someone who believed they were about to die in which they sought to identify their killer were still admissible at criminal trials despite Crawford - even if they died and could thus not testify at trial.  The Supreme Court ruled that the United States constitutional amendment creating the right to confront witnesses (the 6th Amendment) was not intended to change what was then admissible in evidence and since court decisions from before the 6th Amendment was adopted allowed dying declarations to be admissible, the 6th Amendment did not prohibit them from being used in evidence now.  While this decision was not unexpected, it is an example of a significant development in the law governing criminal prosecutions that criminal defense attorneys must constantly be on the alert for in order to provide their clients with effective representation. 

Monday, May 2, 2011

Jim Kroner Speaks on Attorney Fees to La Crosse County Bar

On March 21, 2011, Jim Kroner gave a presentation to the La Crosse County Bar Association on Wisconsin "fee shifting" statutes.  These are laws that in specific situations, alter what is known as the "American Rule" that has each party to a lawsuit paying its own attorney fees.  Wisconsin law contains dozens of statutes which require a defendant who loses a lawsuit to pay a plaintiff who wins the lawsuit for the "reasonable attorney fees" incurred by the plaintiff in the lawsuit.  The presentation highlighted situations where such statutes were most frequently applicable and provided a primer on how to apply the laws to recover attorney fees from the opponent in such a circumstance.

The La Crosse County Bar Association is applying for legal education credit for those attorneys who attended the presentation.  If such a statute applies to a legal situation you are involved in it can significantly affect the way the case is handled and the outcome available.  Be sure to make sure the attorney representing you knows how to apply these laws to your benefit.

La Crosse County Bar Association Elects New Officers

At its annual meeting on Monday, April 25, 2011, the La Crosse County Bar Association elected the following officers: President – Margaret (Peggy) Herlitzka of Hale, Skemp, Hanson, Skemp & Sleik; President-Elect – Jim Kroner of Moen Ehrsam & Kroner, S.C.; Secretary – Angela Machi; and Treasurer – Emily Hynek of Johns, Flaherty & Collins, S.C.