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
What is the difference between a divorce and a legal
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
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
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
- 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
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
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 ag