What are the grounds for divorce in Wisconsin?

The only legal basis for divorce in Wisconsin is that the marriage is “irretrievably broken.” This means there is no chance for the husband and wife to reconcile or work out their differences. A judge usually will find a marriage irretrievably broken even if only one of the spouses wants a divorce.
 

What is the difference between a divorce and a legal separation?

Divorce ends a marriage. A legal separation involves the same procedures as a divorce, but the spouses can’t remarry. Legal separation is an alternative for people who don’t wish to divorce for religious or other reasons. However, a legal separation can be converted to a divorce by either party after one year without the other’s consent.

A legal separation is granted on the grounds that the marriage relationship is broken. As in a divorce, the property is divided, custody of children is determined, and maintenance and child support payments may be ordered..

Spouses who reconcile after a legal separation may apply to have the separation revoked.
 

What is an annulment?

An annulment dissolves a marriage that was not valid from the beginning. For instance, one spouse may have been too young, unable to have sexual intercourse, incapable of consenting to the marriage, or induced to marry by fraud or force.
 

How long must I live in Wisconsin before I can file for divorce?

Before you can file for divorce, one spouse must have been a Wisconsin resident for at least six months. Either spouse must have lived in the county where the divorce is filed for at least 30 days.
 

How is a divorce action started?

Divorce usually begins with the filing of four legal documents:

• the Summons, the filing of which starts the legal action;
• the Petition for Divorce, which gives the legal and factual history of the marriage and states the desired outcome;
• the Affidavit for Temporary Relief, which requests temporary arrangements for child custody, visitation, or support, and any other provisions needed. The court uses the Affidavit as the basis for issuing temporary orders, which are ground rules by which both spouses must abide until the final divorce hearing;
• the Order to Show Cause, which contains the time and date of the hearing before the family court commissioner who will establish the temporary orders.

The divorce action begins when one spouse files the Summons and Petition with the clerk of courts and the documents are served upon the family court commissioner and the other spouse.

On legal documents relating to the divorce, the person who asks for the divorce is called the “petitioner.” The other spouse is referred to as the “respondent.” Either husband or wife may be referred to as a “party” in the divorce.
 

How long does it take to get a divorce?

Though the court can make exceptions for certain emergencies, there usually has to be at least four months between the serving of the initial papers and the final hearing. Most divorces take more than four months. The complexity of your case, the ability of you and your spouse to agree on property division, support, and other issues, plus the amount of other business before the trial court all affect how long the action takes.

A divorce isn’t effective until the final hearing. Once the divorce is final, both parties must wait at least six months before remarrying.
 

Can my rights be protected between the time a divorce action is started and the final hearing?

Yes. Unless the court orders otherwise, both spouses cannot harass, intimidate, physically abuse, or impose any restraints on the personal liberty of the other spouse or a minor (under age 18) child of either husband or wife. In addition, both parties cannot encumber, conceal, destroy, damage, transfer, or otherwise dispose of property owned by either or both of them, without the consent of the other party or prior order of the court or family court commissioner. The court may make some exceptions for selling property in the usual course of business, in order to buy necessities, or to pay reasonable costs and expenses of the divorce, including attorney fees.

Parents who have minor children together have additional rights and responsibilities. Neither parent can move the child(ren) outside Wisconsin or more than 150 miles from the other parent within the state. Parents cannot remove a minor child from Wisconsin for more than 90 consecutive days without the consent of the other parent or an order of the court or family court commissioner. Also, neither parent can conceal a minor child from the other parent.

These restraining orders apply until the divorce action is dismissed or a final judgment is entered, unless the court orders otherwise. The court may punish a spouse who violates these restraining orders.

In addition, the judge or a family court commissioner may issue other temporary orders that protect your rights. For example, temporary orders may determine custody, physical placement, use of the home, maintenance, child support, or payment of debts and counseling costs.

A person disobeying a temporary order can be fined, jailed or both. Some law enforcement agencies, though, are reluctant to arrest a spouse for violating a divorce temporary restraining order. In cases involving violence, one spouse may seek to restrain the other by filing a domestic abuse injunction. Law enforcement agencies generally are more willing to take immediate action for violating an abuse injunction.
 

How does the court decide who gets custody and physical placement of a child?

Often a husband and wife agree on custody and placement. If not, the judge determines custody and placement in light of the best interests of the child(ren). In making this decision, the judge considers testimony and other evidence presented in a trial. Important considerations include:

• reports of appropriate professionals, such as counselors or physicians;
• the wishes of the child and the parents;
• the relationships among the child, parents, brothers and sisters, and others who may affect the child’s best interest;
• the child’s adjustment to the home, school, religion, and community;
• the mental and physical health of the parties, the minor children, and other persons living in a proposed custodial household;
• availability of child care services;
• the amount and quality of time that each parent has spent with the child in the past, any necessary changes to the parents’ custodial roles, and any reasonable lifestyle changes that a parent proposes to make to be able to spend time with the child in the future;
• the age of the child and the child’s developmental and educational needs now and in the future;
• whether each parent can support the other parent’s relationship with the child, including encouraging and facilitating frequent and continuing contact with the child, or whether one parent is likely to unreasonably interfere with the child’s continuing relationship with the other parent; and
• any other factor the judge deems relevant.

What is joint legal custody?

Joint custody means that both parents have a say in decisions regarding medical care, religious training, choice of schools the child(ren) will attend, and so forth. Joint custody does not necessarily mean the children will spend equal amounts of time in each parent’s home.

The court must presume that joint legal custody is in the child’s best interests. The court can grant custody to one parent (“sole custody”) only if it finds that sole custody is in the child’s best interests and one of the following applies:

• both parents agree to sole legal custody with the one parent;
• one parent is not capable of raising the child or does not wish to have an active role in raising the child;
• one or more conditions exist that would make it difficult for joint legal custody to work; and
• the parents will not be able to cooperate in the future decision making that would be required under joint legal custody, taking into account any evidence of spousal or child abuse.

Can I move to a new location after the divorce?

If you have children, there may be some limits on where you can move after a divorce , just as there are during a pending divorce. If you want to move out of the state or more than 150 miles away from the other parent and you provide notice by certified mail of your plans, the other parent may object by filing a document with the court. This objection must be filed within 15 days of receiving the notice. The court will then refer you and your former spouse for mediation or other court services. The court may appoint a guardian ad litem.
 

What is a guardian ad litem?

A guardian ad litem is an attorney appointed to represent the best interest of the child(ren) whenever courts are asked to make decisions that involve them. The guardian ad litem may fully participate in any hearing before the court and may make recommendations regarding custody, visitation, and child support. His or her sole interest is to do what is best for the child(ren) and to represent those interests to the court and the parents.
 

How does the court decide the issue of child support?

Child support is usually set at a percentage of the gross (pre-tax) income of the parent without primary placement: 17 percent for one child; 25 percent for two children; 29 percent for three children; 31 percent for four children; and 34 percent for five or more children. However, the court does not have to apply these standards if it determines they would be unfair in a particular case.

If the children live about equally with each parent, the child support usually will be reduced to reflect the additional placement time. The court must order, however, that in addition to child support, the parent paying child support will assume variable child care costs in proportion to the number of days he or she cares for the child. Variable costs include (but are not limited to) food, clothing, school, extracurricular activities, recreation, and day care.

If the parent ordered to pay child support is already paying support due to a prior divorce or paternity judgment, the gross income available for child support may be reduced by the previous order before the percentage standards are applied to the payer’s income.

Also, if the court believes that the paying parent is “shirking” his or her obligation, the court can base the child support order on the payer’s earning capacity rather than the payer’s actual earnings.

Even if the parent with custody does not follow the physical placement (visitation) rules, the parent paying child support may not reduce or stop payments.
 

What is a wage assignment?

A wage assignment is an order to a person’s employer to deduct child support or maintenance (see below) payments from his or her pay.

Each time the court orders a person in a divorce to pay support or maintenance, the order includes a wage assignment order for his or her employer. However, if an order for wage assignment would cause the payer irreparable harm, the court may allow the person to pay directly to the clerk of courts, who will forward the money to the other party.
 

What is maintenance?

Maintenance, formerly called alimony, is money one spouse pays to the other during or after a divorce.

Maintenance differs from child support in how it is taxed. A parent paying child support can’t deduct it on his or her income tax return. A parent who receives child support doesn’t report it as income. Maintenance can be deducted by the person who pays it. The person who receives maintenance must report it as income.
 

How does the court decide whether to award maintenance?

A husband and wife may agree on whether, and how much, maintenance is appropriate. If they don’t, the judge decides whether to award maintenance payments and for how long. The court will consider the:

• length of the marriage;
• age and physical and emotional health of the parties;
• how the property was divided;
• educational level of each person;
• each person’s earning capacity;
• likelihood that the spouse seeking maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage and how long it would take to achieve this goal;
• tax consequences;
• any agreement of the parties;
• contribution by one spouse to the education, training, or increased earning power of the other; and
• any other factor the court determines to be relevant.

How does the court divide the couple’s property?

Most of a couple’s property, including assets such as retirement interests, can be divided in a divorce. One exception is property received either as a gift from a third party or an inheritance, although even gifts and inheritances may be divided in some circumstances. If the couple can’t agree on how to divide the property, the court usually will divide all their property. The court may alter this division, however, by considering:

• the length of the marriage;
• property owned by either spouse when they married;
• whether one of the parties has substantial assets that the court cannot divide;
• each person’s contribution to the marriage;
• age and physical and emotional health of the parties;
• contribution by one of the spouses to the increased earning power of the other;
• the earning capacity of each party;
• desirability of awarding the family home or the right to live there to the parent with more physical placement of the minor child(ren);
• tax consequences;
• agreements of the parties; and
• any other factor the court deems relevant.

May a woman use her former name after a divorce?

If a woman wants to resume using her maiden name or a former legal name, the court will restore it. If she wishes to continue to use her married name, she may do so.
 

Can the husband and wife getting divorced use the same lawyer?

Ethical rules prohibit an attorney from representing both parties in a divorce.

Occasionally an attorney will represent one spouse, and the other will choose to represent himself or herself. Divorces in which neither party uses an attorney also occur, particularly when there are no children and/or little or no property.

You should use extreme caution if you go through a divorce without a lawyer. Divorce is a lawsuit and it can have hidden consequences. If you have little or no income, you may qualify for free help from a legal services agency.
 

What can I do if I’m not satisfied with the final divorce judgment?

If you aren’t satisfied, you can ask the court to reconsider its decision. You also can appeal to the Wisconsin Court of Appeals. There are very strict time limits for filing an appeal (usually 45 days).

Certain issues can be reviewed by the trial court at any time. You usually will have to show a substantial change of circumstances before a trial court will revise a judgment.

If you are dissatisfied with a decision about maintenance, however, you should be aware of certain limits. A judgment that waives maintenance cannot be revised. If you want the court to reconsider an award of limited-term maintenance, you must file a motion before the maintenance period ends.
 

Will the court order my spouse to pay for my attorney?

Usually not. Under certain limited circumstances, however, the court may order your spouse to help pay your attorney fees.
 

What is a default divorce?

A default divorce is one in which you and your spouse have no contested issues to be decided by the court. The date of a default hearing usually is soon after you file a Final Marital Settlement Agreement, which spells out all your arrangements for support, maintenance, and asset and liability distribution. The hearing will occur after the 120-day statutory waiting period has expired. At the hearing, upon approval of your agreement, the court will grant an absolute judgment of divorce.

If a spouse fails to respond to the petition for divorce, the case is legally considered a default action. For practical purposes, however, the absence of an agreement between the parties makes the matter a contested case.
 

What if my spouse and I can’t reach an agreement?

If you can’t reach a final agreement after the fact-gathering process, your case must be scheduled for trial. The trial date is determined by the length of time needed for the hearing and the court’s other business. Contested divorce trials are costly and involved. The rules of evidence will be enforced and contain many pitfalls for the unwary.
 

Can I get divorced if I don’t know where my spouse lives?

Yes, however, you’ll have to show the court that you’ve tried everything possible to locate your spouse. You’ll have to publish a notice in the local paper in an attempt to inform your spouse you have started a divorce.

If it’s at all possible to find an address, then you must attempt to serve notice of the divorce action upon your spouse. The court has no power to order child support or maintenance unless your spouse personally is served.
 

What action can I take if my spouse disobeys a court order regarding custody, visitation, debt payments, or payments of support or maintenance?

You must petition the court to enforce its order. This is known as a “contempt motion.” After receiving the court papers, your spouse must appear in court to explain whether he or she has followed the court’s orders. The court will want to know why your spouse hasn’t followed its orders. After hearing the facts, the court decides whether your spouse willfully disobeyed. Your spouse may be found in contempt of court and given an opportunity to correct the contempt. If he or she does not correct the contempt, then the court can send your spouse to jail for up to six months. The court may issue other orders as necessary to remedy the contempt.

If the other parent has denied or substantially interfered with one or more periods of physical placement (visitation), you may bring a Petition for Enforcement of Physical Placement Orders. In most instances, the court must hold a hearing on such a petition no later than 30 days after the petition is served on the other parent. If the court finds that the other party has intentionally and unreasonably denied you of one or more periods of physical placement, the court can issue various orders, including granting additional periods of physical placement to replace those denied or interfered with and awarding you money and attorney fees.
 

If my spouse fails to pay bills as ordered by the court, can the creditor sue both of us?

Yes. The court’s order does not change your relationship with those you owe money (creditors). Creditors may sue either spouse and may repossess any property you have that was pledged as security. If only one of you is sued, that spouse may bring the other spouse into the lawsuit.
 

What is mediation?