Divorce in Wisconsin
(These materials are for informational purposes only, to help you recognize your legal rights and responsibilities. They are not a substitute for speaking with an attorney regarding your specific circumstances.)
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A divorce action is begun with the filing of a summons and petition, or if the parties file together, a joint petition is used and a summons is not needed. The person who files for divorce is called the petitioner, and the other party is called the respondent. If both parties file together, they are called joint petitioners. A divorce will be granted if one of the parties believes the marriage is irretrievably broken. Generally, a divorce will not be granted until at least 120 days have passed from the date the respondent has been served with the summons and petition, or from the date a joint petition is filed with the court.
To file for divorce in Wisconsin, at least one of the parties has to live in this state for at least six months, and in the county for at least 30 days, before the petition may be filed.
In many divorce actions, particularly if the parties have children, they will secure a Temporary Order to set their temporary financial arrangements and temporary custody and placement terms for their children. A Temporary Order can be entered by agreement of the parties or, if they are unable to agree, after a hearing in front of a Circuit Court Commissioner. If there are disputes between parents regarding the custody and placement of their children, they may either hire a private mediator, or they will be referred to the county Family Court Counseling Service for mediation and/or a custody study. In addition, the judge may appoint an attorney, called a guardian ad litem, to represent the best interests of their child/ren. In general, the parents will be expected to share the fees charged by the guardian ad litem.
If parties are able to reach agreement on all issues between them, the agreement must be reduced to writing, and the judge will then schedule a final hearing. When there is an agreement resolving all issues, the final hearing takes only 15 to 20 minutes, after which the judge grants the divorce and approves the parties’ agreement. Parties are single the date of their final hearing, but they may not remarry for six months after that date.
If parties are unable to reach agreement on all issues, they must inform the court what issues they have unresolved, after which the judge will set the matter for a contested hearing. At the hearing, both parties and their attorneys present evidence and make argument to the judge regarding the unresolved issues, after which the judge makes the final decision.
As part of a divorce action, parties must divide their property and debts. In general, gifted or inherited property is excluded from division in a divorce, if it has been kept separate from other marital assets. Wisconsin statutes require a court to presume that all other property owned by the parties is part of their marital estate, and is to be divided equally. However, there are numerous factors in the statutes that a court must consider in determining a property division, and based on those factors, parties or the court may decide on an unequal property division. In dividing their estate, parties must determine the value of their assets, the current balances on their debts, and they must then allocate those assets and debts between them, or determine that certain assets will be sold. If the parties are unable to make these decisions, the judge will do so.
The property division is generally considered final as of the date of the parties’ final hearing, and it is difficult to change the property division after that date. If the property division determination is made by the judge, after a contested hearing, then it may require further motions and hearings with that judge, or a successful appeal, to change it. If the property division is based on the parties’ agreement, Wisconsin statutes allow a court to later change the terms of that agreement under very limited circumstances. Therefore, to change the terms of the property division based on the parties’ agreement would require a further agreement by the parties, or a motion and hearing with the judge.
Legal Custody and Physical Placement
If parties have a child or children, they will need to work out the legal custody and physical placement arrangements. Legal custody refers to the right and responsibility to make major decisions for a child. In Wisconsin, “major decisions” include consent for health care, choice of school or religion, consent to marry, consent to join the military, and consent to obtain a motor vehicle license. In Wisconsin, both parties may be awarded joint legal custody, or one party may be awarded sole legal custody. In Wisconsin, even if parties have joint legal custody, they may agree, or a court may order, that one parent has final decision-making authority in one or more of the major decision areas.
Physical placement refers to the schedule the parties’ child or children will follow between their respective homes. Typically, parents or the court must set the children’s routine time-sharing schedule, which is the schedule they follow for times other than holidays or vacations, as well as a specific schedule for future holidays and vacations.
Child support is set depending on a number of factors, including the number of children, their placement schedule, the parents’ respective incomes, and the parents’ sharing of the children’s costs. In general, in Wisconsin, child support is set based upon guidelines, unless the court determines or the parties agree to do otherwise. Child support payments are generally not taxable income for the recipient or deductible for the payer, although a well-drafted agreement can provide for deductible family support payments, which may reduce the total taxes paid by the two parties. In addition to regular child support payments, parents and the court need to determine how the parties will pay their children’s future variable costs, including childcare costs, uninsured health care costs and expenses for the children’s activities, and they need to determine how the dependency exemption(s) will be allocated.
Maintenance is the word Wisconsin courts use for alimony, or support for from one spouse for the other. Maintenance is typically taxable income to the recipient and deductible for the payer, and it ends at the death of either party, the remarriage of the recipient, or on a date as agreed by the parties or ordered by the judge. Wisconsin statutes set out several factors the court must consider in deciding whether or not maintenance should be awarded, and if so, the amount of the payments and how long they must be paid. In general, the court must consider the need of a dependent spouse for support, the ability of the other party to pay the support, the contributions of each party to the other party’s education or earning power, or to their marriage, and the fairness of the overall settlement, including the property division. If maintenance is ordered as part of the parties’ final judgment of divorce, the court usually retains the power to make changes in the maintenance order after the divorce is done, if there is a substantial changes in the parties’ financial circumstances. On the other hand, if parties waive, or give up, maintenance as part of their final settlement or judgment, then they can never ask the court for maintenance in the future.
Financial Documents Needed
Each party in a divorce action is required to provide full disclosure of any assets in which he or she has any interest, regardless of where the assets are located, using a standard financial disclosure form provided by the court system or the party’s attorney. Assets a party must disclose include real estate, checking and savings accounts, stocks and bonds, mortgages or promissory notes (showing money owed to the party), life insurance, business interests, personal property, and retirement plans. Each party must also disclose his/her income from employment or any other source, as well as all debts and financial liabilities of either or both parties. The standard disclosure form required by the court system contains a signature line for the party and the statement that complete disclosure of assets and debts is required by law, and deliberate failure to provide complete disclosure constitutes perjury. If the parties have any minor children, they must also furnish information to the court regarding what health insurance coverage is available for the children through each party’s employment or other organization.
By statute, each party is to file his or her financial disclosure statement with the court within 90 days of the date the joint petition is filed, or the respondent is served with the Summons and Petition. Each party is required to update his or her financial information at the time of final hearing. Also by statute, each party’s financial information is sealed after final hearing, and it may not be made available to anyone, other than for further litigation, appeal, modification or enforcement of the parties’ judgment. If a party fails to provide a financial disclosure statement, as required by the statutes, the court may accept the other party’s information as accurate.
In order to put together a complete financial disclosure statement, you should gather the following financial documents:
How an Attorney Can Help
If you question whether or not your estate should be divided equally, of if gifted or inherited assets should be excluded from your marital estate, you may wish to consult with an attorney. An attorney can also help you determine how your assets should be valued, and what factors you should consider in dividing your estate and debts. An attorney can help you determine whether or not maintenance for you or your former spouse should be part of your final judgment of divorce, and if so, how much and for how long. If you have already completed your divorce action, but you are unhappy with the terms of your final settlement or judgment, you may wish to consult with an attorney to see whether or not you have a basis to appeal or change your judgment.
If you have a child or children to raise, you may want the assistance of an attorney to write your final agreement as to your children’s future custody, placement with your former spouse and you, and support. A well-drafted custody, placement and support agreement can help you avoid future conflict or litigation with your former spouse.
Divorce does not have to be a destructive parting. An attorney who is knowledgeable and sensitive to the reality of divorce can assist you in dividing your estate and planning for your own and your children’s future in a way that is positive and beneficial for all of you.
Karen D. Julian has been representing clients in divorce actions since 1975, and she offers collaborative family law and mediation services, as well as the traditional litigation model, to her clients.