Index
Marriage Counseling
Grounds for
Divorce
Annulments
Alternatives to Court Battles
How to Start
Temporary
Hearings
Custody
Guardian Ad Litem &
Custody Evaluations
Child
Support
Alimony
Property
Divisions
Marriage Counseling as a First Step
Any marriage that was once good may be worth
saving. It is important to remember that we can't love our mates at all
hours of the day on all days of the week. Let's face it. Marriages take
work. Before you consider divorce, reconsider your marriage. Divorce is and
should be a final and drastic step.
Grounds for Divorce
Wisconsin, like most states, is a "no fault" divorce state. That means that
no grounds or "fault" is necessary to file a divorce. In fact, under most
circumstances issues of fault such as infidelity are irrelevant to the
proceedings. The only legal basis for divorce in Wisconsin is that the
marriage is “irretrievably broken.” Wisconsin courts generally will find a
marriage irretrievably broken even if only one of the spouses wants a
divorce.
Legal Separation
If you do believe that your marriage relationship may be salvaged or for
religious reasons do not want to proceed with divorce, you may still
separate and address financial issues through a legal separation. Just like
a divorce the court may divide property, determine custody and physical
placement, child support, and maintenance. The only difference between a
legal separation and a divorce is that in a divorce the marital relationship
is severed. A legal separation may also be converted into a divorce by
either party after one year.
Annulments
In our modern world, an annulment tends to be more a creature of religion
than of law. Annulments are rarely granted and when they are, very specific
circumstances must exist. Often people believe that they may annul a
marriage simply because it was of a very short duration. That is not the
case. To annul a marriage, a person must demonstrate that the marriage is
void because it is prohibited by the laws of the State or is
voidable because the intent to enter into a civil contract was
not present at the time that the parties married. When an annulment is
granted, it dissolves a marriage and treats it as if it had never occurred.
Some reasons for annulment include bigamy, marriage under the age of
consent, marriage by force, marriage based on fraud, marriage without
disclosing sexual impotency.
Wisconsin Jurisdiction
In order to file a divorce in Wisconsin, you must
demonstrate that Wisconsin has jurisdiction. There is a residency
requirement that one spouse must have been lived in Wisconsin for at least
six months immediately prior to the divorce filing. The divorce may be filed
in any county where one spouse has lived for at least 30 days.
Alternatives
to Court Battles
The way a divorce is commenced and how long it takes may
depend on the process that you choose. Not all divorce issues must be
resolved in a court room battle. The simplest divorce is one that is
resolved by an agreement of the parties. Once an agreement is reached, it
can be taken to a lawyer to draft up all the necessary divorce papers. This
process will obviously save each of the parties significant time, money and
emotional turmoil. However, in most cases, the parties will need help in
reaching agreements. In such cases, the parties may try mediation to
resolve their issues. Although mediation may occur before a dissolution
proceeding is commenced., where there are unresolved issues, it is also
likely to be required by the Court after divorce papers are filed.
Often, the divorce process turns spouses into bitter
adversaries requiring them to argue and fight about issues. This is
generally not a pleasant process. It can be time consuming, emotionally
draining and expensive. For that reason, an alternative has been developed
which provides each spouse with legal advice and treats the parties to a
divorce like team members allowing them to discuss and resolve their issues
in creative ways. Often, this process leads to better, lasting solutions,
reduces costs and speed up the process.
How To Start & How
Long Does It Take
To commence a divorce in the Court system, two documents
must be filed with the Clerk of Court in your county along with a filing
fee and served on the other party. The documents include the following:
- A Summons which
indicates that a divorce is being filed;
- A Petition for
Dissolution of Marriage which sets out basic factual information about
the each spouse, the children, if any, and asset information along with
a request for relief from the Court.
The person filing the
documents is referred to as the “petitioner.” The other spouse is referred
to as the “respondent.” There are few advantages or disadvantages to being
the first one to file. The only real advantage is being able to choose the
county where the action is filed if the parties live in different counties.
Pursuant to Wisconsin statutes, except for certain
emergencies, a final hearing cannot be held for a minimum of 120 days.
However, the divorce process may, in fact last much longer depending on the
complexities of the case. Divorces are concluded mist rapidly when the
parties are able to agree upon the issues related to debt and property
division, child support, and spousal maintenance.
Once the divorce is final, both parties must wait at least six months before
remarrying.
Temporary Hearings
Since the divorce process may span many months, either party may schedule
a temporary hearing in order to resolve urgent issues on a temporary basis
such as the issue of temporary custody, physical placement, child support,
spousal maintenance, and payment of debt. Such temporary orders remain in
effect until the divorce is finalized. Temporary orders may be reviewed
during the process if there is a change in circumstance. To commence a
temporary hearing the following documents must be served and filed:
- An Affidavit for Temporary Relief sets out the facts on which a
party will rely to support his or her request for relief. Relief
requested may include temporary arrangements for child custody and
placement, visitation, support, maintenance, division of debt and assets
or spousal maintenance.
- An Order to Show Cause or a Motion for Temporary Relief informs the
other party of the time and date of the hearing before the family court
commissioner who will establish the temporary orders and compels that
party's appearance at the hearing.
A Family Court Commissioner will generally preside at a temporary
hearing. The Family Court Commissioner is essentially an assistant judge
with the same broad authority of a Judge to make orders in the divorce
on a "temporary basis." At a temporary hearing the Court Commissioner
will wish to see a completed financial statement from each party. The
financial statement provides the commissioner with a summary of each
party's income, assets and liabilities. You should also bring to the
hearing any information that is critical to the issues in dispute.
Temporary orders are not supposed to have "precedential" value at the
final hearing. This means that a temporary order should not be
considered by the Court when making a final ruling on the issues.
Unfortunately, that is not always the case in practice. Often Judge's
lean toward preserving the status quo which means that a party that
receives a favorable temporary order may have obtained a significant
strategic advantage over the other party at the time of the final
hearing. Any decision that is made by a family court commissioner may be
appealed to a Judge of the circuit court. At the new hearing, the Court
must hear the issues "de novo." This means that the issue is hear new
without giving any weight to the prior decision by the Court
Commissioner.
Child Custody:
Child custody is one of the most contentious issues in a divorce
proceeding. It is important to remember that there are two kinds of
custody
- Legal custody refers to the right of the parents to
participate in important decisions in the lives of their child(ren).
This specifically includes decisions related to schooling, medical care,
religion, extra-curricular activities and other important events. There
is a very strong presumption under Wisconsin law that these
responsibilities should be shared by the parties. The only time that
legal custody is not shared is when the parties demonstrate a complete
inability to communicate or where there has been domestic abuse.
- Physical Placement is what most people think of when
they hear the term custody. It refers to the primary physical residence
where the child will live. What used to be referred to as visitation
with the other parent, is now called "periods of temporary placement".
There is a presumption under Wisconsin law that each party is entitled
to the maximum period of physical placement. This means the mother and
the father are equally entitled to the custody of the child. However, in
making a determination regarding physical placement, the court must
determine what is in the "best interest of the child." This
determination is made, in part, by considering all facts relevant to the
best interest of the child including the following statutory factors:
- The wishes of the child's parent or parents.
- The wishes of the child, which may be communicated by the child
or through the child's guardian ad litem or other appropriate
professional;
- The interaction and interrelationship of the child with his or
her parent or parents, siblings, and any other person who may
significantly 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
house-hold;
- The availability of public or private child care services;
- Whether one party is likely to unreasonably interfere with the
child's continuing relationship with the other party;
- Whether there is evidence that a party engaged in abuse, as
defined in s. 813.122 (1) (a), of the child, as defined in s. 48.02
(2).
- Whether there is evidence of interspousal battery as de-scribed
under s. 940.19 or 940.20 (1m) or domestic abuse as de-fined in s.
813.12 (1) (a).
- Whether either party has or had a significant problem with
alcohol or drug abuse;
- Such other factors as the court may in each individual case
determine to be relevant.
Where custody and placement disputes exist, the parties may be ordered to
participate in mediation. If mediation fails, the Court appoints a Guardian
Ad Litem to represent the interest of the children and to make
recommendations related to custody and physical placement. The Court may
also require a custody evaluation performed by court services.
Guardian Ad Litem
& Custody Evaluations
If custody cannot be resolved in mediation, then the court must proceed
with a custody determination. To facilitate the process and evaluate the
allegations of each of the parties, the court will appointment a guardian ad
litem to represent the interests of the children. The Guardian Ad Litem
operates, to an extent, as a legal counsel for the children and is charged
with seeing to their best interest in the legal proceeding. The Court may
also require a custody evaluation performed by the county social service
agency. As part of a “Custody Evaluation” an
evaluator meets with the parties and evaluates the custody issues based on
the factors for determining custody that are spelled out by Wisconsin
Statutes. Once the custody evaluation is complete the evaluator submits a
report to the Court which will recommend a custody and visitation schedule
that the evaluator believes is in the child’s best interests.
This report is a critical element of your case. Although
custody studies may be challenged in court, many Judge’s defer to the
recommendations of the evaluator because, unlike the parties, they are
deemed to be an independent witness without any personal Interest in the
outcome. As a result how you relate your case to the evaluator is very
important.
Child Support in Wisconsin
In Wisconsin, child support is based on a percentage of the gross
(pre-tax) income of the parent without primary physical placement. The
percentages applied are as follows: 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.
These percentages form a presumption that may be rebutted. This means
that the Court will generally follow the guidelines unless it makes specific
findings that the guidelines should not apply because they are overly
burdensome and unfair in a particular case.
As previously stated, there is a presumption that each parent's time with
the children should be maximized. Often this equates to joint physical
placement. If a Court awards joint physical placement, that is the children
live about equally with each parent, child support is usually reduced to
reflect the shared placement time. The court may also require each parent to
pay child care costs as additional child support in proportion to the number
of days each parent has the child in his or her care. Child care costs may
encompass many thins including food, school expenses, sports activities,
clothing and day care.
After child support has been set, it may always be modified if there is a
change in circumstance. Since child support is based on a percentage of
gross income, it may be reduced if income decreases or increased if income
rises. This does not occur automatically, however, and must be commenced by
filing a motion with an affidavit supporting the modification request. If
there is a change in circumstance (increased or decreased earnings), you
must act quickly. Remember child support cannot be forgiven except from the
day that you file your motion for a change in child support. Make sure
that you provide the Court with documents demonstrating the increased or
decreased earnings such as pay stubs, tax returns or with other important
evidence.
Child support ends at age 18 if your child is out of high school. If your
child is over 18 but still in high school, child support can continue to age
19.
Alimony/Spousal Maintenance
Either spouse may be ordered to pay alimony, without regard to marital
fault, if it finds that the spouse seeking maintenance: (a) lacks sufficient
property, including marital property apportioned to the spouse, to provide
for reasonable needs of the spouse considering the standard of living
established during the marriage, especially, but not limited to, a period of
training or education, or (b) is unable to provide adequate self-support,
after considering the standard of living established during the marriage and
all relevant circumstances, through appropriate employment, or is the
custodian of a child whose condition or circumstances make it appropriate
that the custodian not be required to seek employment outside the home.
If the Court determines spousal maintenance (alimony) is appropriate, it
must determine the length of time and amount by considering all relevant
factors which may include:
- The length of the marriage.
- The age and physical and emotional health of the parties.
- The division of marital property.
- The educational level of each party at the time of marriage and at
the time the action is commenced.
- The earning capacity of the party seeking maintenance, including
educational background, training, employment skills, work experience,
length of absence from the job market, custodial responsibilities for
children and the time and expense necessary to acquire sufficient
education or training to enable the party to find appropriate
employment.
- The feasibility that the party seeking maintenance can be-come
self-supporting at a standard of living reasonably comparable to that
enjoyed during the marriage, and, if so, the length of time necessary to
achieve this goal.
- The tax consequences to each party.
- Any mutual agreement made by the parties before or during the
marriage, according to the terms of which one party has made financial
or service contributions to the other with the expectation of
reciprocation or other compensation in the future, where such repayment
has not been made, or any mutual agreement made by the parties before or
during the marriage concerning any arrangement for the financial support
of the parties.
- The contribution by one party to the education, training or
increased earning power of the other.
- Such other factors as the court may in each individual case
determine to be relevant.
Often in ordering spousal maintenance, Courts use as their starting point
an equalization of incomes approach. This means that the courts will add up
the incomes of both parties and divide that figure down the middle.
Remember, this is only a starting point and there are many variables that
may result in a deviation from this result.
Property Divisions
Wisconsin is a marital property state. This means that under the law
there is a presumption that any assets acquired during the marriage should
be divided equally. The valuation date for the marital assets is the day of
the final hearing unless a different date is agreed upon by the parties, or
unless the court finds that another date of valuation is fair and equitable.
"Nonmarital property" means property real or personal, acquired by either
spouse before, during, or after the existence of their marriage, which (a)
is acquired as a gift, bequest, devise or inheritance made by a third party
to one but not to the other spouse; (b) is acquired before the marriage.
Pensions, retirement plans, 401K and other deferred compensation is
marital so long as it was acquired during the marriage. The Court has the
power in a divorce to appoint a qualified person experienced in the
valuation of pension benefits and rights to function as an expert witness in
valuing pension benefits or rights.
If the parties cannot reach a comprehensive agreement, a trial will be
held on all or some of the issues and the court will make findings of fact
and conclusions of law based upon the evidence presented and according to
applicable statutory and case law.
Once a divorce is granted, neither party may remarry during the first six
months following the granting of the divorce, and the parties may ask the
court to vacate the divorce decree within this initial six month period.
