Getting a divorce is not immediate in Wisconsin. The soonest a final judgment of divorce can be granted is 120 days from the date the non-filing spouse is served with the petition (or 120 days from filing if spouses file the petition jointly). Many people call this the “cooling off” period. The purpose of this time is to prevent people filing for divorce hastily and having the divorce finalized before they are sure it is what they want.
During this period, the court can enter temporary orders, such as:
This waiting period can work as a trial separation and provides spouses a chance to see how divorce will change day-to-day life. During this time, parties will work through the division of debts, assets, liabilities and begin to prepare the final divorce paperwork.
Not necessarily. The 120-day waiting period is the minimum amount of time. Depending on the county in which the proceeding is filed, it could be longer, even in an uncontested divorce. The court's calendar can get booked up quickly in certain counties, so generally cases are at the mercy of the Judge’s calendar. Keep this in mind when planning ahead.
However, if prior to a final divorce hearing, the spouses decide they want to reconcile, the action can be dismissed and the marriage remains completely intact. There is no penalty to this dismissal, other than the court costs already spent on the matter. Once dismissed, the case will be closed. Should either party decide later to proceed with a divorce, a new divorce case will need to be filed.
Each state has child support guidelines for calculating child support. In Wisconsin, the child support calculation guidelines can be somewhat rigid.
What is child support based on in Wisconsin?
How is the child support amount set?
Every child support case is different and subject to variation. When there is a shared or equal placement situation, the guidelines provide a detailed formula combining both parent’s income and time spent with children. If one parent has placement less than 25% or 92 overnights per year (ex. every other weekend placement), there will be a percentage applied to his or her gross income for child support:
There are circumstances, governed by Wisconsin Statute Section 767.511 (1m) when the court can deviate from the guidelines and set child support higher or lower. The court will consider evidence supporting the following factors in determining whether to deviate from the child support guidelines:
If you have questions regarding support and if you are paying the correct percentage or amount, contact one of our skilled attorneys today. We can discuss collateral issues to the child support amount, such as variable expenses, health insurance and medical costs, and tax credits related to the children.
Wisconsin Statute Section 767.511(4) defines the amount of time a child support order will remain in effect. Essentially, the obligation to support your child(ren) continues until your child turns 18 or graduates from high school, whichever comes later. If your child is still pursuing a high school degree or GED, child support will continue until your child is 19 years old.
This does not mean that any unpaid child support will simply disappear once this child turns 18. All past due child support, also known as arrears, continues to be owed even after the support order has lapsed. Under Wisconsin law, any arrears can be collected up to 20 years past the date of the youngest child ending the support order.
In Wisconsin, there is a statutory presumption of parents sharing joint legal custody, meaning neither parent has a superior right to the other to make major decisions. Even if the time spent with the child is unequal, parents are usually presumed to have joint legal custody.
Legal custody: Who has the rights and responsibilities to make major decisions concerning a minor child.
Major decisions include:
The presumption of joint legal child custody can be refuted by a few circumstances which are detailed within the Wisconsin Statutes. One of the most common circumstances creating grounds for sole legal custody stems from domestic violence or abuse incidents/allegations.
Physical placement (the correct term for “visitation”) means the period of time and conditions during which the child/children will have placement with a parent. Unlike legal custody, there is no starting presumption with regard to the physical placement of a child. A number of factors can affect physical placement.
This is generally the most contested portion of a family law matter. Property division and other aspects of divorce can be relatively cut and dry; laws surrounding children and custody fall into a gray area. Parties often disagree on placement for various reasons. This is when the court will order other court resources like a social worker (or a Guardian ad Litem) to investigate and make a recommendation on placement.
No, Wisconsin divorce laws do not favor the mother over the father. Listening to the experiences of friends, family members, co-workers, etc., may give the impression that the law may be biased or unfair. The facts of every case are specific to that family, and the courts determine the outcomes on a case by case basis.
The court will look at many factors in deciding custody and placement of the child. They will consider what is in the best interest of the child and whether the child’s physical, mental, and emotional needs are met. The courts will look at the location where each parent lives, where the child’s school, friends, activities and community are. They will consider the age of the child, and whether it is in the best interest of the child to stay closer to one parent over the other. The court will consider many factors and will not automatically favor the mother.
If there is no history of domestic violence or substance abuse, the Court will order the parties to mediate through family court services. This mediation does not involve attorneys, though we will help you prepare for mediation. If mediation is unsuccessful, the next step is for the Court to appoint a Guardian ad Litem to represent the best interests of your child(ren).
At this point, it is also necessary to prepare a parenting plan. This plan will help both parents put on paper the logistics of raising a child as a single parent. This will show how close or far the parties are to an agreement and may show either parent his or her limitations as a single parent.
Only the parents know what is truly best for their children. When parents are unable to come to an agreement regarding what is in the best interests of their child(ren), they are inevitably deciding to put the decision into the hands of a third party, who does not know the parents or the child(ren).
At trial, the judge often has a limited amount of time to hear any evidence and make a decision regarding your future. Thus, the judge will often place great weight on input from the Guardian ad Litem, who has had more time to investigate the situation and meet with the children.
It is important to note that whether parties agree to an outcome or it is decided in the trial, it is extremely difficult to change custody and placement during the first two years of a standing order unless the change is agreed to by all parties.
The court takes allegations of drug and alcohol abuse very seriously. If a court finds that your spouse has a drug or alcohol issue, they may require supervised physical placement for the child/children. The court will always rule on behalf of the best interest for the child or children.
You should gather evidence supporting your concern about your spouse’s substance abuse, including pictures, evidence of any OWI/DUI convictions, texts or emails verifying use, etc.
By Wisconsin state statute, courts presume joint custody, but sole legal custody can be awarded to one parent in certain circumstances, like substance abuse issues. If your spouse has a substance abuse issue that may interfere will their ability to parent, or if the substance abuse may affect the child’s physical, mental, and emotional health, the court may order sole legal custody to you.
In family law cases, both parties are required to submit a complete, current and accurate financial disclosure statement.
In a divorce, a financial disclosure statement is a document listing all known assets, debts and your income and monthly expenses, including:
This document is often the biggest homework item you will be given by your attorney and should be given the appropriate attention and time to complete as it often is the most important financial document in your case.
It is important to take the time to locate all information, even if that means pulling a credit report, and ensure everything is listed accurately. By signing a financial disclosure statement, you are declaring under the penalty of perjury that all information is true and correct as of the date you sign it.
If a party fails to list an asset on a financial disclosure statement, it opens the door for the divorce to be reopened down the road due to a lack of full disclosure. Should a party fail to list a debt on a financial disclosure statement, he or she will become solely responsible for that debt, despite it being a marital debt.
A financial disclosure statement also requires you to disclose any assets you have disposed of, either by selling or gifting, liquidating retirement accounts or investments, or just throwing items away, in the 12 months prior to the filing of the divorce action. Ultimately, if this was done without the knowledge or agreement of the other party, this can become an issue in the division of property in your case. When completing this form, we will compare your information to the information provided by the other party and determine whether additional steps are needed to gather information on the assets and debts.
The Guardian ad Litem (GAL) is an attorney, licensed to practice law in Wisconsin, who is appointed to serve the best interests of a minor child as to paternity, legal custody, physical placement and support. A GAL is an advocate for the child/children and serves as an investigator for the court.
The GAL functions independently and provides a litany of necessary information to the court. Their duties include:
They consider, but are not bound by, the wishes of the minor child or others as to the best interests of the minor child. Advocating for the best interest of the children may not be the same as advocating for what the children want, so best interest will always be the primary consideration.
The GAL may take a variety of actions before making their recommendation, including interviewing each party, visiting their homes, speaking with the child’s teachers, etc.
In investigating and developing a recommendation for the court’s consideration, the Guardian ad Litem must consider the following legal factors:
The Guardian ad Litem should be respected as the child’s impartial advocate. As soon as the GAL is appointed, you and your Divergent Family Law divorce attorney should schedule a meeting. Showing a willingness to be honest and cooperative makes a good first impression and will positively impact the GAL's recommendation.
The Guardian ad Litem will make a final recommendation to the parties and to the court. With your Divergent child custody attorney, you can help shape that decision. While the courts have no obligation to follow the recommendations of the Guardian ad Litem, they often give great weight to the recommendation of the Guardian ad Litem because they have had more opportunity to gather direct information regarding the children, parents and issues in the case.
What is the difference between legal separation and divorce in Wisconsin? A legal separation establishes certain legal responsibilities and division of debts and assets while the parties are separated but does not end the marriage.
The process of a legal separation is identical to a divorce; both proceedings will separate all assets, debts, and liabilities, and establish custody and placement of any children. At any point prior to the end of the proceedings, a legal separation can be converted to a divorce and vice versa. The only difference is at the end of a divorce, the parties are no longer married; at the end of a legal separation, the parties are still married.
After the legal separation has been granted, it will remain a legal separation indefinitely unless one of the following things occur:
The key difference with these situations is within one year of the legal separation, there must be an agreement. After one year, either party can choose to convert the legal separation to a divorce. The request to the court will result in an automatic conversion without the requirement of any additional hearing.
Common reasons for legal separation over divorce range from wanting to gain protection from the other spouse’s future debts to having certain moral or religious beliefs against divorce. Additionally, many health insurance companies will continue to provide coverage to both spouses because the marriage did not legally end. If you’re considering legal separation to maintain health insurance, contact your human resources department or health insurance provider.
Wisconsin is a “community property” state, which means any property that has been acquired (by either party) prior to or during the course of the marriage is considered community property, even if it is not titled in both names. For example, the home and real property in which the family usually resided during the marriage is referred to as the marital home. Either one or both spouses may own the marital home. Regardless of which spouse is the titled owner of the marital home, each spouse has a one-half interest in the home and has the same right to use and reside in the home. This right can be varied by court order or contract.
Property may be considered individual property of a party and not subject to division if it was acquired:
This exempted property does not apply if the court finds that refusal to divide the property will create a hardship on the other party or on the children of the marriage. If the court makes such a finding, the court may divest the party of the property in a fair and equitable manner.
In Wisconsin, there is a presumption that property will be divided equally between parties. This presumption can be overcome by arguments as to why a different division is fairer. While the law presumes all property is community, many times arguments are made that each party should leave with what they came with. In practice, the parties often negotiate the division of the assets acquired during the marriage and exclude their premarital assets as their individual property. However, an argument can be made that the premarital interests are so commingled with marital assets that they have lost their individual interest and have become all marital. Such an argument requires a careful review of the facts of the situation.
Yes, if you start a business during the marriage, a court may consider the value of the business, including assets and receivables, as marital property. Your spouse may receive part or even half of your business in a divorce. Since it may be difficult to physically divide a business, a court may allocate another marital asset that is equal to the value of your business. The court may also order assets from the business to be paid to the ex-spouse.
Under Wisconsin law, all assets brought to the marriage or acquired during the marriage are considered marital property. Retirement funds are included in assets that can be divided.
When gathering all the asset and debt information in your marital estate, it is often a balancing act in determining who will keep which assets and debt. If you have enough assets that are equal in value to your retirement account, then your spouse could opt to receive those assets, and you could keep your retirement account.
If you have any pre-marital interest in your retirement accounts, you can certainly negotiate with your spouse to exclude your pre-marital interest from the marital assets being divided. You will need to gather records indicating the value of your account at the time of the marriage to verify your pre-marital interest. You should note that the court is not required to grant you any premarital interest.
A parenting plan is a plan each parent develops depicting the day-to-day care and placement parents anticipate for the children when they are no longer living as an intact family. Parenting plans are not always necessary, but should be completed in a contested case regarding custody and placement of the children. A parenting plan shall provide information answering the following questions:
The parenting plan helps the Guardian ad Litem and the court see what each parent is looking for as an outcome to the case. It will show how far apart the parents are on an agreement and works as a negotiation piece. Even though it is required by statute, in practice, not all lawyers or Guardian ad Litem’s will have the parents fill out the plan unless it becomes necessary or is ordered by the court. However, in some situations, a parenting plan can assist the parties in coming to an agreement.
No, the outcomes of every case are specific to the family. A schedule that works for one family may not work for another family. Parents' work schedules, ages of the children, the distance between the parent’s homes, and the special needs of the children all impact the court's decision process. Some placement schedules are more commonly used by families than others, but no preferred plan that is set forth in Wisconsin law.
A temporary order hearing is commonly referred to as an Order to Show Cause hearing.
While there is a waiting period before parties can be divorced in Wisconsin, there is sometimes a need to have rules in place for parents as to placement schedules, temporary use of property or temporary payment of bills. When possible, parties should discuss any orders that need to be established to determine if they can come to an agreement on temporary orders. Orders include:
This agreement will streamline the process and a stipulation can be entered into. If not, you can request a hearing before the Family Court Commissioner who is given the authority to make just and reasonable temporary orders.
All topics can be brought up at this hearing. The most common topics include child support and/or maintenance, use of the marital home, custody and placement, who has use of what vehicle, bank accounts, who pays what debts, coverage of insurances and payment of uninsured medical expenses.
Both parties will need to have the Financial Disclosure Statement prepared by this time in order to provide the Commissioner enough information for them to understand the financial circumstances of the parties and either make orders or approve of a stipulation.
If there is no agreement to all or some of the issues, a contested hearing will proceed before a commissioner. At the hearing, each side will tell the commissioner what he or she is requesting to be part of the order and why. Having facts, examples and evidence to accompany requests will help support your position.
Any temporary order put into place during an action is subject to change. If a commissioner enters temporary orders, either party has the right to appeal the decision to a judge in a process called De Novo Review. Further, should things change within the family action, causing a need for temporary orders to be updated, a new request for a hearing can be filed at any time.
When dividing your property and debt, the court begins with a presumption to equally divide all assets, debts and liabilities. Property includes but is not limited to real estate, vehicles, retirement accounts and pensions, personal belongings, debt, bank accounts, recreational toys, animals, etc.
Property is not subject to division upon divorce if it was acquired:
Ultimately, the court may need to decide if the property is to be excluded from division in the marital estate based on the facts and circumstances as to when the asset was gifted or inherited and whether or not it has been mixed, or commingled, with the marital property during the marriage. Excluded property is deemed "individual property."
Wisconsin statute Section 767.61(3) provides factors for the court to consider when asked to divide the property other than equal. The factors to consider are as follows:
Property and debt division is final with the Judgment of Divorce. If you come to an agreement with your spouse, but decide a year later that it seems unfair to you, you will not be able to go back to court and ask the Judge to re-evaluate the division of property or debt, outside of limited exceptions where you can prove fraud or mistake of law. Before you sign any agreement, you should ensure you have all the necessary information to make an informed decision as to the division of your assets and debts.
Under Wisconsin law, each party must complete a financial disclosure statement when going through a divorce that requires them to identify their income, expenses, assets and debts to the court and to each other. The statement is submitted to the court as a trued and accurate disclosure. Hiding assets or failing to disclose all your assets is considered fraud in Wisconsin and if proven, you could be subject to perjury charges.
If you believe your spouse is hiding assets, our attorneys could help you investigate public records to find evidence. Keep track of your bank account records, credit card statements, and previous tax statements. Furthermore, you can demand documents and information from your spouse with a formal request.
Finally, if you have a significant estate, you may want to consider hiring a forensic accountant. A forensic accountant could analyze financial records to determine if any hidden assets may exist. Divergent Family Law attorneys have experience with High Net Worth Estates.
The short answer is maybe, but it is rare. It depends on each case. There is no right to have an attorney in divorce cases. If there is an extreme disparity in incomes where one spouse is the breadwinner and the other spouse earns little or no income, a court may grant a motion dictating the spouse with more money to pay for the court costs and provide funds for the other spouse's attorney.
If a court determines you have enough funds to hire an attorney, they will likely not order your spouse to pay your fees, even if your spouse was the one to initiate the divorce.
The key here is the disparity in income between the two spouses. Sometimes a court will look to potential future funds that one may receive as an outcome of the divorce. This is known as an advancement. The court can grant that the attorney’s fees come out of your share of the assets in advance.
Yes, you can seek attorney fees paid by your spouse if your spouse's actions during the divorce process can be considered “overtrial.”
Overtrial is a Wisconsin-specific doctrine that can be asserted in family law cases when you believe that the other party’s unreasonable approach to litigation causes you to incur extra and unnecessary attorney fees and court costs.
If the other party is taking action that is resulting in "unnecessary proceedings,” the court can issue sanctions against that party with the objectives of “deterring unnecessary use of judicial resources” and "compensating the victimized party for fees unnecessarily incurred."
In a Wisconsin divorce, animals are considered property to be divided. If you proceed to trial, the animal will be given to one party or the other. The court will not order a “placement” schedule for animals. Pet ownership is dictated by the surrounding facts and circumstances of your case.
If you are battling over ownership of your pet at trial, make sure to bring evidence of who provides primary care of the pet, who has more available time, and who has the greater means to provide for the pet. Evidence that the pet was a gift to you is also a good strategy for gaining ownership of your pet.
While the courts may approve an agreement of the parties to do a shared placement schedule of the animals, it will likely do so with the warning that the court views the animals as property. Upon any disagreement, the court may allocate the animal to one party or the other.
It depends. Many people try to argue the ring was a gift, but under Wisconsin law, gifts between the parties are considered to be marital property. Wedding rings are subject to marital division in a divorce.
If the ring was an engagement ring given before the marriage, you could argue that the ring is a premarital gift and not subject to division. However, if your engagement ring is soldered together with the wedding ring as one piece, and they become one piece, you could argue the ring is marital property. If original engagement/wedding rings were lost and you purchased new ones during the marriage, they too become marital property subject to be divided.
If the parties come to an agreement as to who keeps the ring, the court will honor the agreement.
Under Wisconsin law, all marital assets and debts are subject to be divided in a divorce. Marital debts are debts that were incurred during the course of a marriage. These debts include mortgages, car loans, credit cards, student loans, and even taxes. The court may sometimes require one party to pay off more debt because they will be receiving greater assets.
The court has the authority to order one or both parties to pay off any marital debt, even if the purchased asset only benefitted one party. For example, if a husband takes out a loan to purchase a car during the marriage and later defaults, the wife may be liable for the debt even if she never drove the car.
Sometimes one party may have hidden debts that the other party did not know exist. The court could still make both parties responsible for paying off the hidden debt.
Generally, if the student loans were taken out before marriage, they would be considered individual property. If the loan was taken out during the marriage, however, you could be liable for your spouse's student loan debt. If your spouse took out loans for the purpose of supporting your family, the loans have a higher likelihood of being considered marital debt. A court will look at many facts and perform an economic analysis when ruling on the division of student loan debt in a marriage.
Under Wisconsin law, alimony payments (referred to as “maintenance” in Wisconsin statutes) can be terminated or modified upon remarriage, death of a party, or by mutual agreement. The court will look at the changing circumstances when deciding to modify or terminate alimony. Your ex may request the alimony payments be modified if you are cohabiting with a new significant other. Since you would be saving more money by living with your significant other, the court could justify a decrease in alimony.
Oftenly, cohabitation alone is not sufficient to convince a court that a support order should be modified or terminated.
Under Wisconsin’s Marital Property Act, a creditor can seek payment from either party for debt incurred during the marriage, even if one party incurred the debt in their name. Therefore, if one spouse files for bankruptcy, creditors can go after the other spouse to pay for the judgment. You should seek legal help to ensure your divorce settlement agreement protects you if your ex ever files bankruptcy.
Divergent Family Law attorneys can check that your settlement includes the ability to go back to court and seek a sanction or remedy should your ex file bankruptcy.
No, moving out of the house does not mean that you will lose your shared interest in the marital home. Often times it may be necessary to leave the home due to conflict, domestic abuse, or to obtain more space during a divorce. The court will look at many factors when ultimately dividing the marital property and the marital house is usually the most important asset to divide.
Sometimes both parties choose to leave the house and to divide the proceeds from the sale of the house. An experienced family law attorney can go over your options with you and advise the best course of action for your self-interests. Protecting your property rights is of utmost importance to our lawyers.
No, there are many families that separate before or during the divorce process. Moving out of the marital house does not mean you have abandoned your children. There are also times when it is necessary for a parent to leave for the parent or the children’s safety due to conflict or domestic violence in the home.
Once your divorce action is filed, however, you should request a Temporary Orders hearing in order to ask the Court to set a schedule for placement time with your children. You do not want to go for a substantial period of time without seeing them as it is not in their best interests and does not help you with respect to determining placement of the children in your case.
If you intend to relocate with your child over 100 miles away from the other parent, you will need permission from the court. Wisconsin law sets forth a very specific procedure in order to remove a child from the state.
An attorney can help you file a relocation plan, which gives the court information on where you are moving and what the new placement plan will be for your child. A hearing will take place. You should not move until you have reached an agreement with the child’s other parent or until you are granted permission from the court. The court will look at the best interest of the child in determining whether or not to grant the motion to relocate.
If your ex-spouse is the one planning to move out of state with your child, you can file an objection to the relocation. The court must receive your objection at least 5 days before the hearing for it to be acknowledged.