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Divorce Answering Your Questions about Divorce

Divorce
Answering Your Questions about Divorce
 

 

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;
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