Everyone hopes to never have to endure a divorce, one
of life’s most traumatic experiences. But some marriages
deteriorate beyond repair. If you’re facing a divorce, you
need to know what lies ahead in the legal process. This
pamphlet will answer many of your questions.
What are the grounds for divorce in Wisconsin?
The only basis for divorce in Wisconsin is that the marriage
is “irretrievably broken.” This means the husband
and wife can find no way to work out their differences.
A judge usually will find a marriage irretrievably broken
even if only one spouse wants a divorce.
What is the difference between
a divorce and a legal separation?
Divorce ends a marriage. Legal separation involves the
same procedures as divorce, but the separated spouses
can’t marry others. Legal separation is an alternative for
people who wish to avoid divorce for religious or other
reasons. The court grants a legal separation on the ground
that the marriage relationship is broken.
Like a divorce, a legal separation requires property
division and determination of child custody and placement.
The court may order maintenance and child support
payments. (More on these topics later in this pamphlet.)
After one year, either spouse can seek to have a legal
separation converted into a divorce without the other
spouse’s consent. 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 invalid 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
How long must I live in Wisconsin
before filing for divorce?
You must have been a Wisconsin resident for at least six
months before filing for divorce here. Also, must have
lived at least 30 days in the county where you file.
How does either spouse start a divorce action?
Divorce usually begins with the filing of a petition for
divorce and a summons. The petition for divorce gives the
factual history of the marriage and states the desired outcome
of the divorce. The summons states that a response
must be filed within 20 days.
Sometimes the court finds it necessary to issue temporary
orders, which are orders laying out the ground
rules that each spouse must follow until the final divorce
hearing. If temporary orders are necessary, two additional
documents must be filed. The affidavit for temporary relief
requests temporary arrangements for child custody, placement,
or support, as well as any other needed provisions.
The order to show cause contains the time and date of the
hearing before the family court commissioner, who establishes
the temporary orders.
After one spouse files the petition and summons with
the clerk of court, these documents are served upon the
family court commissioner (in certain counties) and the
other spouse. The person asking for a divorce is called the
petitioner, and the other spouse is the respondent. Both
spouses are parties to the divorce action.
Can I get divorced if I don’t
know where my spouse is?
Yes, but you have to show the court that you made reasonable
efforts to locate your spouse. You also must publish a
notice in a local newspaper in an attempt to inform your
spouse that you have started a divorce.
If it is at all possible to find an address, you must
attempt to have notice of the divorce action served upon
your spouse. The court has no power to order child support
or maintenance unless your spouse has been personally
served with notice.
How long does it take to get a divorce?
Unless the court makes an exception for an emergency,
at least four months (120 days) must pass between the
serving of the initial papers and the final hearing. Most
divorces take longer than four months. Several factors
affect the length of the process: the complexity of the case,
the ability of the spouses to agree on the issues, and the
amount of other business before the trial court.
A divorce isn’t effective until the final hearing. Once
the divorce is final, both parties must wait at least six
months before marrying other people.
Can my rights be protected between the start
of a divorce action and the final hearing?
Yes. Every divorce includes an order that neither spouse
can harass, intimidate, physically abuse, or impose
restraints on the personal liberty of the other spouse or
minor children (under age 18) of either spouse. In addition,
neither spouse can encumber, conceal, destroy,
damage, transfer, or otherwise dispose of property
owned by either or both of the spouses, without the other
spouse’s consent or a prior order of the court or family
court commissioner. There are exceptions for actions
taken in the usual course of business, in order to buy
necessities, or to pay reasonable divorce expenses, including
Parents who have minor children together have additional
responsibilities. Neither parent can move minor
children outside Wisconsin or more than 150 miles from
the other parent within the state. Neither parent can
remove minor children from Wisconsin for more than 90
consecutive days without the other parent’s consent or
an order of the court or family court commissioner. Also,
neither parent can conceal minor children from the other
These restraining orders apply until dismissal of the
divorce action or until the final judgment, unless the court
orders otherwise. The court may punish a spouse who
violates restraining orders.
In addition, the judge or family court commissioner
may issue other temporary orders that protect your rights
during the divorce process. For example, temporary orders
may determine child custody and physical placement, who
lives in the family home, payment of maintenance and
child support, and payment of debts.
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 act immediately on violations of an abuse
How does the court decide who gets
custody and physical placement of a child?
The term custody refers to the right to make legal decisions
regarding a child, such as school choice, religious
training, medical care, and so on. The court must presume
that joint legal custody is in the child’s best interests – that
is, both parents have decision-making authority – unless
there is evidence of interspousal battery or domestic
The term physical placement refers to how much time
a child spends with each parent. You often hear of “visitation,”
but physical placement is now the correct legal term.
Many couples manage to work out their own agreement
on child custody and physical placement. This is
the best solution for all concerned. The two of you will no
longer be spouses after divorce, but you still are parents
of your children. By agreeing on custody and placement,
you will be better able to communicate with each other
for years to come. And your children are less likely to be
caught in the middle of parental disputes, one of the worst
after-effects of divorce.
When couples have trouble agreeing on custody or
placement, the judge or family court commissioner refers
them to family court counseling. If the spouses still fail to
work out their differences, the judge decides on custody
and placement based on the child’s best interests.
To make this decision, the judge weighs several factors.
The court may appoint a guardian ad litem, an attorney
who represents the child’s interests. To learn more,
see the State Bar’s pamphlets, “Answering Your Legal
Questions About Custody and Placement” and “Answering
Your Legal Questions About Guardians Ad Litem in Family
How does the court determine
child support payments?
If a parent has physical placement with the child less
than 25 percent of the time, the court usually bases child
support on a percentage of that parent’s gross (pre-tax)
income. The standard support percentages are: 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, these percentages
may be reduced for higher income levels. In addition, the
court may adjust the standard support percentages upward
or downward, if it determines that applying the standard
percentages would be unfair in a particular case.
If each parent has at least 25 percent physical placement
with the child, which is known as shared placement,
each parent’s gross income is considered in setting child
support. Though the standard support percentages discussed
above are part of the equation, the calculation is
much more complex because it also considers the amount
of physical placement each parent has with the child. In
addition to the child support amount set by this calculation,
shared placement parents also are responsible for
the child’s variable costs (such as child care, tuition, and
special needs) typically in proportion to the time that the
parent has physical placement with the child.
Sometimes one or both parents are paying child support
already due to a previous divorce or paternity judgment.
Under those circumstances, the court may reduce
that parent’s gross income available for child support in
this new case before applying the standard support percentages
and calculations discussed above.
If the court believes that either parent is shirking his
or her obligation, the court may use the shirking parent’s
earning capacity, instead of actual earnings, as the income
from which to set child support.
Even if the parent who receives child support fails to
follow the physical placement schedule, the parent paying
child support may not legally reduce or stop payments,
unless that modification is specifically approved and
ordered by the court. Doing so only hurts the child.
What is maintenance?
Maintenance, formerly called alimony, is money one
spouse pays to the other during or after a divorce.
Maintenance and child support are treated differently
for tax purposes. A parent paying child support can’t
deduct it on his or her income tax return. And the parent
receiving child support doesn’t report it as income. By
contrast, the person paying maintenance can deduct it on
taxes, and the person receiving maintenance must report it
How does the court decide
whether to award maintenance?
A husband and wife may agree on whether maintenance
is appropriate and, if so, what the maintenance amount
and duration will be. If they don’t agree, the judge decides
these issues. The judge will consider:
• the length of the marriage;
• each spouse’s age and physical and emotional health;
• how property was divided;
• each spouse’s educational level;
• each spouse’s earning capacity;
• the 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 spouses;
• one spouse’s contribution to the education, training,
or increased earning power of the other; and any other
factor the court finds relevant.
What is a wage assignment?
A wage assignment is an order to an employer to deduct
child support or maintenance payments from an employee’s
pay. When 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. But if a wage assignment order would cause the payer irreparable harm,
the court may allow the person to pay directly to the
Wisconsin Support Collections Trust Fund (WI SCTF),
which forwards the money to the other spouse.
How does the court divide 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 as
an inheritance, although even gifts and inheritances may
be divided in some circumstances.
If the couple can’t agree on how to divide property, the
court decides. The court starts with the presumption that
equal division is fair and proper. But the court may alter
this by considering:
• the length of the marriage;
• the property owned by either spouse when they
• whether one spouse has substantial assets the court
• each spouse’s contribution to the marriage;
• each spouse’s age and physical and emotional health;
• one spouse’s contribution to the increased earning
power of the other;
• each spouse’s earning capacity; the desirability of
awarding the family home, or the right to live there, to the
parent with primary placement of minor children;
• tax consequences;
• agreements of the spouses; and
• any other factor the court finds relevant.
What is a default divorce?
A default divorce is one in which you and your spouse
have no contested issues for the court to decide. A default
hearing usually occurs soon after you file a final marital
settlement agreement. This spells out all your arrangements
for support, maintenance, and asset and liability
The default hearing cannot occur until after the 120-
day waiting period expires, unless there is an emergency.
At the hearing, upon approval of your agreement, the court
will grant an absolute judgment of divorce.
Don’t confuse “default divorce” with “no-fault
divorce.” A no-fault divorce means that the petitioner need
not prove wrongdoing on the part of the other spouse
in order to file for divorce. Wisconsin is a no-fault state.
As noted earlier in this pamphlet, the only legal basis for
divorce in this state is that the marriage is “irretrievably
What if my spouse and I
can’t reach an agreement?
If you can’t reach a final agreement, your case goes to
trial. The trial date depends on the length of time needed
for the hearing and the court’s other business. Contested
divorce trials are costly and involved. The court enforces
rules of evidence, which contain many pitfalls for the
unwary. The best way to avoid these is to hire an attorney.
Can spouses use the same divorce lawyer?
Ethical rules prohibit an attorney from representing both
spouses in a divorce.
Occasionally an attorney represents one spouse, and
the other spouse chooses to represent himself or herself.
Divorces in which neither spouse uses an attorney also
occur, particularly when the couple has no children and/
or little or no property.
Exercise caution if you go through a divorce without
a lawyer. Divorce is a lawsuit, often having hidden consequences.
If you have little or no income to pay for an
attorney, you may qualify for free help from a legal services
Will the court order my spouse
to pay for my attorney?
Under certain limited circumstances, the court may order
your spouse to help pay your attorney fees. One example
would be if your spouse violated a court order during the
divorce. Usually, however, each party pays for his or her
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 restores it as part of the
divorce action. Or she may continue to use her married
name, if she wishes.
What can I do if I’m dissatisfied
with the final divorce judgment?
You can ask the court to reconsider its decision. You also
can appeal to the Wisconsin Court of Appeals. Strict time
limits exist for filing an appeal (usually 45 days).
If you are dissatisfied with a decision about maintenance,
however, you should be aware of certain limits. The
court can’t revise a judgment that waives maintenance. If
you want the court to reconsider an award of limited-term
maintenance, you must file a motion before the maintenance
Can the final divorce judgment
be changed in the future?
The trial court can modify certain orders, such as child
support and physical placement, in the future, although
usually you must show that a substantial change in circumstances
has occurred since the current orders went
into effect before a trial court can revise a judgment. In
most cases, orders regarding property division cannot be
changed, once the orders are approved by the court.
Can I move to a new location after the divorce?
If you have children, you may face limits on where you
can move after a divorce, just as you do during a pending
divorce. If you want to move out of state or more than 150
miles away from the other parent, you must provide notice
by certified mail of your plans at least 60 days before the
planned move. The other parent may file a written objection
within 15 days of receiving the notice. The court
then will refer you and your former spouse to mediation.
The court also may appoint a guardian ad litem for your
What can I do if my former spouse disobeys a court
order regarding custody, physical placement, child
support, maintenance, or debt payments?
You must petition the court to enforce its order. This is
known as a contempt motion. After receiving the court
papers, your former spouse must appear in court to report
whether he or she has followed the court’s orders and to
explain any lapses.
After hearing the facts, the court decides whether your
former spouse willfully disobeyed. The court may find
your former spouse in contempt and grant him or her an
opportunity to correct the contempt. Failure to do so can
result in as much as six months in jail. The court also may
issue other orders as necessary to remedy the contempt.
If the other parent denies or substantially interferes
with one or more periods of physical placement, you may
bring a petition for enforcement of physical placement order.
Usually the court must hold a hearing on such a petition
no later than 30 days after it is served on the other parent.
If the court finds that your former spouse intentionally
and unreasonably denied you of one or more periods of
physical placement, the court can issue various orders.
These might include granting additional periods of physical
placement to replace those denied or hindered, as well
as 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 doesn’t change your relationship
with creditors – that is, the parties to whom you owe
money. Creditors may sue either spouse and may repossess
any property pledged as security. If the creditor sues
only one spouse, that spouse may bring the other into the
What is mediation?
A mediator takes no one’s side. His or her role is to help a
couple to communicate and arrive at mutual agreements.
Through mediation, you may be able to resolve disputes
faster, with less bitterness, and at less cost than battling in
As mentioned earlier, the family court’s counseling
services provide mediation for couples needing help to
settle child custody and placement issues. Family court
counseling usually doesn’t address property settlements,
maintenance, or child support – unless these issues relate
directly to child custody or placement. But you may discuss
these issues if both of you agree in writing to do so.
Usually, the spouses split most of the family court
counseling costs. For more information on family court
counseling, see the State Bar’s brochure, “Answering Your
Legal Questions About Custody and Placement.”
Private mediation services also are available. Here a
couple can discuss any issues pertaining to their divorce,
and they pay all the mediation costs. Your lawyer can refer
you to an appropriate service. See also the State Bar’s pamphlet,
“Answering Your Legal Questions About Alternative
What are cooperative and collaborative divorce?
In these processes, the focus is on settlement of issues.
The goal is to reduce the emotional and financial effects
of divorce by avoiding formal discovery and individual
appraisal of assets. In a collaborative divorce, if the process
fails, the attorneys for both spouses must withdraw
and turn the case over to other attorneys. For more information
on collaborative divorce in Wisconsin, go to www.
collabdivorce.com. In a cooperative divorce, although
the emphasis is on settlement, court is still available as an
option, but only if all efforts at settlement fail. For more
information about cooperative divorce in Wisconsin, go to
What should I look for in a divorce lawyer?
Contrary to what many people believe, good divorce lawyers
don’t push their clients into full-scale war. This only
leaves behind damage and resentments that can linger for
The best outcome is a divorce that allows two people
to begin to heal and get on with their lives. Toward that
end, divorce attorneys help their clients to settle their
divorce, if at all possible, rather than to go to trial. As
you ask for recommendations, you should seek a divorce
lawyer who will:
• act as a problem-solver and peacemaker;
• be courageous enough to tell you things you may not
want to hear; and
• be courteous and cooperative in working with your
This is one in a series of consumer information pamphlets
published by the State Bar of Wisconsin.
Answering your legal questions about divorce
What are my rights? How do I petition for divorce?
How does child custody and/or support work?