Kaplan Law Firm S.C.

10200 North Port Washington Road, Suite 100

Mequon, WI 53092

 

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Divorce

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

or force.

 

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

attorney fees.

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

parent.

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

injunction.

 

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

abuse.

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

Court.”

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

as income.

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

married;

• whether one spouse has substantial assets the court

can’t divide;

• 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

distribution.

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

broken.”

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

agency.

 

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

own lawyer.

 

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

period ends.

 

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

children.

 

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

lawsuit.

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

court.

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

Dispute Resolution.”

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

www.cooperativedivorce.org.

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

years.

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

spouse’s attorney.

 

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?