DIVORCE & FAMILY LAW
Wisconsin is a community property state, also known as "marital property", where assets and debts of one spouse are considered assets and debts of the other spouse. Marital property may include all property acquired during or before marriage, with certain narrow exceptions.
What is the difference between divorce and legal separation?
In terms of legal process and procedure, both divorce and legal separation are the same. The legal outcome of both divorce and legal separation results in a final judgment entered by the court. The final judgment finalizes the divorce or legal separation with the division of assets/ property and debts, determination of custody and placement rights if children are involved, and each party's financial responsibilities towards one another and the children. The difference between the two is that a person who is legally separated is still legally married to their spouse.
A legal separation can be dismissed if a person decides they want to remain married to their spouse. If one party wishes to convert the separation to a divorce that party must wait 1 year for such conversion. If both parties wish to convert the separation to a divorce the conversion may occur immediately.
How long does someone have to wait before remarrying?
Six months after a divorce judgment has been entered by the court.
How do I determine where to file for divorce?
To file a divorce in a certain county you must have lived in that county for at least 30 days. To file in the State of Wisconsin you must have lived here for at least 6 months.
How does a person start the process of filing divorce?
The paperwork that is filed to start a divorce is called a Summons and Petition. The person who initiates the divorce process is called the "Petitioner" and the person who receives the notice that a divorce has been filed against him/ her is called the "Respondent". The Summons is a court document that serves as notice to the Respondent that a divorce action has been filed. The Summons also informs the Respondent that he/ she has 20 days from receipt of the Summons to respond to the Petition by filing an Answer and Counterclaim. The Petition legally formalizes various facts concerning the marriage and children, if there are any. The Petitioner also makes formal requests to the court concerning maintenance/ alimony payments, child support payments (if applicable), child custody and placement issues as well as property division and payment of debt.
What step does a Respondent take upon receiving a Summons and Petition for divorce?
A written Response and Counterclaim must be filed with the court within 20 days from the date you are served with the Summons and Petition for divorce. The failure to file a Response and Counterclaim is a voluntary waiver of your legal rights. A default judgment could be issued and this means your interests in the divorce proceeding could be overlooked and everything the person who filed for divorce is requesting from the court could be granted.
What is the legal standard one must meet to obtain a divorce?
Wisconsin is a "no fault" state therefore fault does not need to be proven in order to obtain a divorce. Instead the standard is whether the marriage is irretrievably broken. Only one party needs to believe the marriage is beyond repair to obtain a divorce. In some counties each parent will need to complete a court approved Parent Education Course before a divorce will be granted.
How long does the whole divorce process take?
It depends. The divorce will not be finalized for at least 120 days from the time of filing or service on the other spouse. If there are issues both parties find difficult to resolve the divorce will likely take longer than 120 days.
What am I supposed to do about important issues I need to be addressed between the initial filing of the divorce to the finalization of the divorce?
Many times people involved in a divorce proceeding will ask the court by the filing of an Order to Show Cause for a Temporary Order Hearing. This way a person does not have to wait until the end of the 120 day waiting period to have the court address various important issues involved in the divorce case immediately. Temporary orders cover issues such as payment of maintenance/ alimony, child custody and placement, use of home/ residence, payment of child support, payment of debts and use of personal property. The temporary order may continue until the finalization of the divorce unless it is modified. The temporary order may also be incorporated into a permanent order at the finalization of the case.
What finalizes a divorce?
The marital settlement agreement embodies any agreement between the parties concerning property division, payments of maintenance, child support and child placement, payments of debts and selling of assets. If the court approves such agreement the divorce will be concluded at a Stipulated Divorce Hearing before a Court Commissioner or a Circuit Court Judge. The divorce will only be finalized at this time if both parties are in agreement to all issues. If the parties are not in agreement as to all issues necessary to dissolve the marriage a Contested Divorce Hearing or trial must be held to conclude the divorce. At trial a Circuit Court Judge will decide whatever issues the parties could not decide amongst themselves. Upon the filing of a legal document titled the Findings of Fact, Conclusions of Law and Judgment your divorce is official. This Findings of Fact document takes into consideration the final terms of the divorce.
What is child custody?
Custody involves the authority to make decisions concerning a child's life, such as schooling, religion and medical care. Joint custody includes both parents cooperating in the involvement of these decisions. Sole custody means only one parent is making these decisions. Joint custody is favored in the court system. Custody does not necessarily determine all aspects of payment of child support.
What is child placement?
Placement involves where a child physically lives. The parent with whom the children live with the majority of the time has primary physical placement. The parent who does not have primary placement may have visitation rights which is commonly referred to as periods of placement or secondary placement. Additional placement arrangements include shared placement where both parents have at least 92 days of court ordered periods of placement a year. Child placement is a important determining factor in payment of child support.
What if I can not agree with my soon to be ex-spouse concerning child placement/ and or custody issues?
Then the court may order mediation, a way for the parties to interact to see if an agreement may be reached. If mediation does not prove to be successful, and the parties still can not agree on child placement the court may next appoint a guardian ad litem, an attorney to represent the best interests of the child(ren) and order a custody and placement study be performed by a county social service agency.
The court may take the following factors into account in making a custody determination: 1) wishes of the child's parent or parents, 2) wishes of the child(ren) communicated through the guardian ad litem or other professional, 3) the interaction and interrelationship of the child with his or her parents, siblings and any other person who may significantly affect the child's best interest, 4) the child's adjustment to the home, school, religion and community, 5) the mental and physical health of the parties, the minor children and other persons living in a proposed custodial household, 6) the availability of public or private child care services, 6) whether one party is likely to unreasonably interfere with the child's continued relationship with the other party, 7) evidence of abuse/ interspousal abuse/ domestic abuse/ alcohol or drug abuse, 8) any other factors the court may find relevant in the individual case at hand.
The general standard used by the court to determine child placement is what is in the best interests of the child(ren).
What percentages are used to determine the amount of child support to be paid?
The payer (payor) of child support may be the parent who does not have primary physical placement of the child(ren), has significantly less placement time with the child(ren) and/ or the parent who has a substantially higher wage or income than the other parent.
The GENERAL percentages used for child support, as determined by the Department of Children and Families, are as follows:
- 17% for one child
- 25% for two children
- 29% for three children
- 31% for four children
- 34% for five or more children.
These percentages are applied to a payer's gross income. Gross income does not include deductions for taxes, union dues, medical insurance, etc. Gross income may be adjusted to determine appropriate child support if a payer has other child support court ordered obligations, has monthly gross income of more than $7,000, or is considered a low income payer. Gross income includes most sources of income not just employment income. If the payer has other children or if the payer has placement of the child(ren) 25%, at least 92 days out of the year, a court may decide a different child support payment rate than the percentages above.
Are there circumstances where a divorce may not result in the equal division (half-half) split of property?
Yes. If there is property that was gifted to or inherited by one spouse before or during the marriage, that property may remain exclusively with that spouse upon divorce. But, if the gift or inheritance was used to purchase something used by both parties during the marriage, if the gift or inheritance increased in value due to the efforts of both parties or even if the gift or inheritance generates income during the marriage these attributes can be subject to division as part of marital property. The court can also look to one party's retained gifted or inherited property in order to unequally divide other marital assets between the parties. If the marriage was a short one both parties may end up parting with exactly what they came into the marriage with.
What is maintenance?
Maintenance is also known as alimony. Maintenance is payment of money by a higher-paid spouse, to help support the lower paid spouse with the level of lifestyle accustomed to while married.
Who is awarded maintenance and for how long?
Maintenance can be awarded to either a husband or wife, but usually maintenance is awarded if the parties have been married for a substantial period of time. The issue of maintenance payments is very discretionary and the amount and length of time of such payments is unpredictable.
Other factors may be considered by the court, including the length of the marriage, age/ physical and emotional health of the parties, property division, educational level of each of the parties, each party's earning capacity, feasibility the party seeking maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage and the length of time to achieve that goal, tax consequences to each party, the contribution of one party to the education, training or increased earning power of the other, an agreement between the parties and an ability to pay by the party to whom maintenance is sought.
Maintenance is usually set for a certain temporary time period, except in very limited circumstances.
If the person would like the court to extend the payment of maintenance the request for extension must be made before the expiration of the originally ordered maintenance schedule.
Can maintenance payments be adjusted, terminated or extended?
Yes. If there is a substantial change in either party's employment maintenance can be terminated or adjusted. It may also be terminated or adjusted if the party receiving maintenance remarries or is involved in a relationship much like a marriage or if the party that pays maintenance dies.
If the party making the maintenance payments retires, depending on reasons for retirement and whether this party has other sources of income besides retirement benefits, maintenance could terminate as well.
What effect does maintenance have on the filing of income tax returns?
Maintenance payments are tax deductible by the person who pays it. Maintenance payments are reported as taxable income by the person who receives it.
I have been thinking about filing for divorce, what should I do?
Contact my office for a FREE, immediate email consultation to assess your situation. Office hours are flexible and you can be seen immediately.
I have been served divorce papers, what should I do?
Contact my office for a FREE, immediate email consultation to discuss your situation. You only have a 20 days to make your representations to the court and protect your rights. Office hours are flexible and you can be seen immediately.
I want to file for divorce but am afraid for my safety and/or my children's safety. Is there anything I can do about this?
You can ask the court for a restraining order. There are 2 types of restraining orders that can be obtained for an adult. One is based on domestic abuse the other based on harassment. A restraining order based on abuse can be effective for up to 4 years, based on harassment for not more than 4 years. If a person wishes their domestic abuse restraining order to extend past the 4 years this request must be made by petition to the court before termination of the existing restraining order.
For minor children a restraining order based on child abuse may be in effect for 2 years. Then one must petition the court before termination of the existing restraining order to get the child abuse restraining order extended beyond 4 years.
I am divorced, but my ex-spouse is not following the divorce decree. Don't I have any remedies?
Yes. Your matter is a post-judgment divorce matter and if your ex-spouse is not following the terms of the divorce decree you can go back to court and ask the court to order sanctions (ie: monetary penalties), impose an injunction (to stop certain actions) and order your ex-spouse to follow the terms of the divorce decree (ie: placement rights, etc).
I am divorced but I would like to modify/change certain aspects of my divorce judgment, can I do that?
Generally speaking, no. Property division is usually final upon divorce. Changes concerning custody and/ or placement of children may not be filed for at least 2 years after the divorce judgment, depending on your situation. Child support is usually not modifiable for at least 33 months from the divorce judgment.
Frequently asked questions concerning paternity actions:
What is a paternity action?
Paternity is where parties have children together but have NEVER been married, therefore they don't get a divorce.
Why does someone bring a paternity action?
Usually because a parent needs: to have paternity established, child support ordered, custody and or placement issues determined.
How is paternity established?
Paternity can be established voluntarily where a male either signs a child's birth certificate at birth or later acknowledges paternity by filing a paternity acknowledgement with the state's registrar's office. Paternity can also be established with a court ordered DNA/ genetic test.
What are child support payments, custody and placement based on in a paternity case?
Child support guidelines and percentages are the same in paternity cases as divorce cases.
In most paternity cases courts favor joint legal custody between the Mother and Father. But Mother will have primary placement rights with Father having placement "upon reasonable time and notice". These are generalities and not always the standard in paternity cases.