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Divorce in Wisconsin

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A Wisconsin Attorney's Guide to the Divorce Process

Is Wisconsin a No-Fault State?

Wisconsin Law defines divorce as the dissolution of a marriage between married people. The state of Wisconsin follows no-fault divorce, meaning the two parties do not have to prove fault to begin the divorce process. Instead, either party must state under oath that there is an irretrievable breakdown of their marriage with no hope of reconciliation. Our Milwaukee Family Law attorneys have years of experience navigating the Wisconsin divorce process for the communities of Milwaukee, Glendale, Appleton, Brookfield, & Madison

Uncontested vs. Contested Divorce in Wisconsin

Most people think of divorce as a vicious legal battle, but it doesn’t have to get ugly. In fact, many people come to an agreement that a divorce is what is best for them. If you both agree that you want a divorce, then you should have a discussion about the issues that face you with the divorce – i.e. child placement, support, division of assets and debt. If you come to an agreement on every issue in the divorce, then you can proceed with an uncontested divorce. This is more cost-effective than going to trial and contesting the placement of every asset. See also: How much does a divorce cost in Wisconsin?

Moving forward with an uncontested divorce can be a lot faster and less expensive for you, and can save you the stress of going to trial. To get started, you can file a joint petition for divorce. Once the case is filed, you will both have to file a financial disclosure statement that will identify all of your income, assets, expenses, and liabilities. Ultimately, you will need to reduce your agreements to writing in a document called a Marital Settlement Agreement. All this paperwork, and possibly any additional county-specific required forms, must be completed and filed in the proper court, which is typically the county in which you live.

Once you have completed all the paperwork and submitted it to the court, you will be given a court date at which you will both need to attend.  There is a set of general questions that the court will ask each of you and then the judge will verify your understanding of your agreement. If there are no issues with your paperwork, the judge will sign the Findings of Fact Conclusions of Law and Judgment and your divorce will become final.

A contested divorce occurs when the two parties don't agree on all withstanding issues. The disagreements will either be resolved through mediation or taken to court and presented to a judge. The judge will issue the final hearing, which will resolve all withstanding issues.

Uncontested Divorce:

  • Parties agree on all issues involving property distribution, debt, child custody, child placement & child support.
  • File a stipulated agreement and proceed to a default divorce hearing.
  • The judge will approve or alter the proposed stipulation agreement.
  • Fewer issues to litigate make uncontested divorce less complicated.

Contested Divorce:

  • One party files for divorce.
  • The court gives temporary orders while the parties attempt to come to a resolution through mediation.
  • Parties hire attorneys or self-represent (pro se divorce). 
  • More complicated and requires more time and effort.

Contact one of our experienced attorneys today to discuss your situation.

 

Collaborative Divorce May Also Be an Option

The collaborative divorce process is an alternative way to resolve your contested issues related to the divorce without fighting a lengthy legal battle in court. The process requires a commitment by both parties to be transparent and open-minded to negotiate and work together to reach a final settlement agreement.

In this process, both parties have to agree to participate, and both parties must hire an attorney who is trained in the collaborative process. Untrained attorneys will lack mediation skills needed to reach an amicable agreement between the parties. Once the parties have committed to the process and found an attorney, you will sign an agreement to engage in the collaborative process and avoid court.

The process involves a series of meetings with the attorneys and parties. Some couples only need a few meetings and some require several meetings over several months. It depends on the complexity of the divorce and the number of disputes. The first meeting is to review the collaborative divorce agreement and verify everyone’s commitment to the process. The attorneys then work through the disclosure of financial information and preparation of a joint financial disclosure statement, addressing child custody and placement, support, and division of property and debt. The goal of the meetings is to finalize a Marital Settlement Agreement.

The collaborative process can also involve a number of other professionals to resolve all disputes. Often times it is suggested that the parties hire a “coach.” The coach is a mental health professional hired to help deal with the emotional side of the divorce. If there are issues with a divorce involving children, the parties can hire a Child Consultant. If the divorce involves complex financial issues, the parties can hire a Financial Neutral, which is a single financial consultant trained in the collaborative process and hired to assist both parties on financial matters.

The most appealing advantage of the collaborative process is that your personal disputes with your spouse aren't settled by a judge who does not know much about the two of you. The collaborative process allows you and your spouse to be in control of all of the decisions and resolutions.

Divorce is difficult and can be messy. If you and your spouse are willing to commit to a process that is resolution-focused with a team of professionals ready to help you, then a collaborative divorce may be the right path for you.

When does a Legal Separation make sense? 

Legal separation is a legal process similar to a divorce, but it’s different in important ways. After a legal separation has been finalized, the couple remains legally married but usually lives separately from each other with separate assets and specific placement time with their children.

In order to determine when a legal separation makes sense, it is important to understand the differences between legal separation and divorce.

Similarities of Legal Separation & Divorce

The court rules on the same issues, including:

  • Division of assets
  • Division of debts
  • Child custody and placement schedules
  • Both have a 120-day waiting period before they can be finalized by the court

Differences between Legal Separation & Divorce

  • A legal separation can be filed after a person has been a resident of the state of Wisconsin for 30 days, rather than 6 months as is required for a divorce
  • The parties are still legally married after a legal separation
  • One party usually can stay on the other’s insurance
  • The parties will only have to agree that the marriage is currently broken for the court to grant a legal separation, rather than irretrievably broken, and the parties are free to reconcile at any time
  • Neither party can remarry after a legal separation, only after a divorce is finalized

Tips for Navigating the Legal Separation Process

  • Become very familiar with your marital finances. This step can begin even before you file for legal separation in order to fully understand your financial situation.
  • Begin the process of separating your finances. Cancel joint credit cards and establish credit cards in your own name to build individual credit. Keep a record of all financial documents related to marital debts, income, and property.
  • Consult a family law attorney to help you draft the necessary legal documentation.
  • Remember you are still legally married when legally separated, and you will have to go through the divorce process to begin a new marriage.
  • Be conscientious of what you share on social media. Be careful not to overshare personal or financial details through the process.
  • Avoid overspending on major unilateral purchases.
  • Try your best to facilitate healthy relationships between any minor children and both respective parents.

Legal Separation FAQs

When should you consider a legal separation? 

One of the most common reasons to opt for a legal separation over a divorce is if a divorce goes against a party’s religious or cultural views. For other people, allowing one party to maintain health insurance is critical because of costs and ongoing health issues.

An often overlooked reason to opt for legal separation is how quickly it can be filed after establishing residency in Wisconsin. While a person must live in Wisconsin for 6 months to file for divorce, legal separation only requires a party to live in Wisconsin for 30 days. Since a legal separation addresses similar issues as a divorce, a party is able to begin negotiation of the division of assets, set up a placement schedule for the kids and move forward with living separate lives. Once the person has been in Wisconsin for 6 months, the legal separation can be converted into a divorce.

If you think a legal separation could be right for you, contact Divergent Family Law to discuss your best options.

What are the benefits of legal separation? 

Compared to divorce, legal separation provides a much simpler path back to married status for couples who feel there might still be a possibility of reconciliation. It also helps parties begin the process of financially separating from one another while allowing the parties to maintain many of the financial benefits of marriage.

  • Health Insurance – Legal separation usually allows a spouse to stay on their spouse’s health insurance plan as they were covered during their marriage. However, some insurance companies may stop covering a legally separated spouse, so always read the fine print of your specific plan.
  • Taxes – In many instances, the option to file joint taxes presents a savings opportunity to both parties. If the parties are amicable, legally separated parties are still able to file taxes jointly.
  • Spousal Military and Social Security Benefits – Military and social security benefits are available to a spouse after 10 years of marriage, and any time spent legally separated counts towards this timeframe. Couples who have been married for 7-8 years may choose to legally separate until they reach the 10-year mark before filing for divorce to secure those benefits.

Do I need to be physically separated from my spouse to file for legal separation? 

No – though many couples do choose to physically separate before filing for legal separation, physical separation is not a requirement. In cases where financial disagreements are a barrier to physical separation, a legal separation can be a tool to possibly conclude the disagreements and provide a viable path to physical separation.

If my spouse and I reconcile, can we end our legal separation? 

Yes – ending a legal separation is relatively simple but requires both parties to agree. 

After obtaining a copy of your original Order of Separation, you and your spouse will:

  • Prepare a Motion to Vacate the Order of Legal Separation
  • Prepare an Order to Vacate the Order of Legal Separation

Your attorney will help you draft this paperwork. Once the paperwork is finalized, it will be filed, along with your original Order of Separation and the required filing fee, in the same county where the legal separation was initially filed.

Is it possible to convert a legal separation to a divorce? 

Yes – but the process varies depending on whether both parties want the divorce.

If you and your spouse agree, you can file a joint stipulation. This makes the process much simpler and typically does not require additional wait times. 

If one party wants to convert the legal separation to a divorce, and the other does not, the party who wants to convert may file a petition for conversion. This option may only be pursued after the legal separation has been granted for at least one year.

Is there a maximum amount of time my spouse and I can remain legally separated? 

The State of Wisconsin does not provide an upper limit on how long you and your spouse can maintain the status of legal separation. Wisconsin does provide a minimum time period, at least one year from the granting of a legal separation, before one party can unilaterally petition for divorce.

Wisconsin divorce on the horizon

Is Divorce on the Horizon?

Here Are Some Tips on How to Prepare

Getting a divorce is an incredibly overwhelming and emotional process. It can be an isolating and feelings of shame can overwhelm people. Protecting your financial and legal rights should be on the forefront of your mine. This is why preparing for divorce is best to protect your own interest before the divorce even begins.

Regardless for who is to blame for the divorce, here are 4 things that you can proactively do if you think divorce may be looming:

1. Seek Advice

Every divorce is different due to everyone being in a different situation. The first step is to build a team to protect your rights and represent you going forward. Meet with a experienced lawyer to discuss the process. Speak with your financial advisor to get finances in order. You may even wat to speak with a therapist, as this process can be emotional. With a strong team supporting you, you will be prepared for the lengthy road ahead.

2. Avoid Major Expenses

If you think a divorce is looming, don’t spend major money on things such as vacations, new car, or a house. Divorce can be an expensive process and if there are major purchases, that is just one more thing that will need to be argued about for settlement. This is a time to reduce expenses and save it. This will have you be better off in the long run, even if you and your spouse end up staying together.

3. Start Gathering Documentation

There is a lot of paperwork involved in the divorce process. You will also need to have supporting documentation if there are any disputes on property division. To help out your future self, be proactive and start setting aside the necessary documents. Below are examples of some documents to begin gathering:
  • All bank statements for the last 12 months.
  • 401k or any type of retirement account statements.
  • Mortgage or loan statements.
  • Credit card statements.
  • Detailed list of assets
    • (furniture, automobiles, jewelry, etc.).
  • Pay stubs.
  • W-2's.
  • 1099's.

4. Don’t Try to be Sneaky

Being sneaky and devious can only complicate the divorce processing. Divorce can be much simpler if everyone is transparent through the process. If you attempt to hide things and beat the system, in the end, the Court will find it. The only thing that being sneaky will do is cause the process to be drawn out and cost you more money. If you are honest with the process, it will make everything much easier.

No one gets married thinking they will end in divorce. Taking precautions in the tough times does not mean you will end in divorce. However, it does mean easing the stress should you end in the worst-case scenario.

Wisconsin divorce on the horizon

When is the best time to file for Divorce? 

While the end of the year is a popular time for marriage proposals, the beginning of the year may be the most ideal time to file for divorce. The holiday season can be stressful and emotional, and the new year often brings the desire for a fresh start. January is an ideal time to file for divorce because:

Your Financial Position May be Better by January

With the busy holiday season coming about in December, it is possible your finances have received a boost. Specifically, you may have received monetary gifts, holiday bonuses or even quarterly payouts. The extra income from these sources may have given you the necessary resources to file for divorce. January is also a great time to review your budget, create a reduced spending plan and commit to saving more.

You Can Prepare Your Documentation for the Impending Tax Season

Whether or not you were preparing for divorce, you’ll have to start organizing documentation for the prior year in anticipation of the upcoming tax season. Just like preparing for tax season, filing for divorce will require you to collect documentation from many aspects of your life. If you are filing for divorce, you are going to want to gather any prenuptial or postnuptial agreements, investment statements, loan statements, titles, property deeds and more. Following the holiday chaos, January is the ideal month to get yourself organized, especially if you are planning to file for divorce.

You Can Make Decisions with a Clear Mind

The holidays bring about a mess of obligations and stress, especially if you are not getting along with your spouse. Between full schedules and numerous holiday gatherings, emotions and arguments can flare. While it may seem obvious to you in December that you want to end your marriage, consider waiting until January after you have had some time to cool down. If by January you still feel like divorce is the way to go, you can have confidence you are making the decision with a clear mind.

Commonly Asked Questions:

Do I need to be a Wisconsin resident to file for divorce?

One party must be a Wisconsin resident for at least 6 months and a resident of his or her Wisconsin county for at least 30 days before filing for divorce. 

What are the steps for filing a divorce?

Divorce actions can be filed independently by one party or jointly by both parties. In order to file for divorce, you will be required to file a summons, petition, and confidential petition addendum in order to begin the divorce proceedings.

If your situation requires a temporary order, you will have to additionally file an affidavit to show cause for the temporary order and file a formal request for a temporary order hearing. 

After filing the paperwork, there is a 120-day waiting period in Wisconsin before the final hearing can commence. Pre-marital agreementsalimony (spousal support) and division of property issues may arise during this period. If there are children involved, child support, child custody and placement issues must be discussed.

A final Marital Settlement Agreement must be approved by the court at the final court hearing for the divorce to be granted.

What should I do if I've been served divorce papers?

After being served divorce papers, you have 20 days from the date you were served to file a written admission of service, a response, and a counterclaim. Failing to do so may leave you open to a default trial hearing.

How much does it cost to file for divorce?

The cost of divorce can vary greatly based on your specific case and the contested issues involved in your case. Make sure to consider filing fees and the county you reside when calculating the costs. Contact an experienced divorce attorney at Divergent Law at our offices in Milwaukee, Glendale, Appleton, Brookfield, & Madison to discuss costs and flexible payment plans.

 

What happens if my spouse spends our joint money during a divorce? 

During divorce proceedings, the division of finances and property is always stressful, and marital waste can be an overlooked financial issue. Marital waste takes many forms.

The core aspect of marital waste is one spouse disposing of or misusing marital assets to the detriment of the other. Wisconsin is a community property state, meaning the court begins divorce proceedings presuming a 50/50 property division is fair and equitable. It is then up to the harmed party to prove the other party committed marital waste.

What can I do if my spouse has committed marital waste? 

To show the court your former spouse committed marital waste, you must provide evidence and testimony proving the following:

During divorce proceedings, both parties are entitled to all information regarding marital assets for the year prior to the initial divorce filing or back to the date of marriage, whichever is shorter. You are entitled to review deed transfers and property sales and know the status of any asset valued at $500 or more. Time is a critical factor in trying to prove marital waste has occurred. If you believe marital waste has occurred, it is critical to make your claim as soon as possible. As more time passes, it will only get more difficult to prove.

Once marital waste is proven, the court may award any or all of the following remedies to the harmed party.

If you suspect your spouse has committed marital waste, gather as much financial information as possible and consult with an experienced attorney at Divergent Family Law right away.

As a Stay-At-Home Parent, What Rights Do I Have During a Divorce? 

Divorce can bring about unique challenges for stay-at-home parents. Financial stability is one of the biggest concerns when it comes to being a stay-at-home parent, and you have the right to be able to financially support yourself and your children during and after the divorce.

What is a Vocational Expert? 

A vocational expert is a professional trained to make determinations on one’s earning capacity (both short-term and long-term) based on job skills, education credentials, work history and jobs that may be available in the local area. Vocational experts are very commonly utilized in family law, especially in cases involving maintenance.

It’s important to note, a vocational expert is someone you hire privately to make a statement on your earning capacity during divorce proceedings. A judge is not legally bound to rule based on the opinion of a vocational expert, but they tend to make very compelling arguments. A vocational expert can help provide the most accurate understanding of what both parties will reasonably be expected to earn upon the dissolution of the marriage.

What Types of Scenarios May Warrant the Use of a Vocational Expert? 

The most common situation in which you may need the help of a vocational expert is when your spouse is attempting to avoid paying spousal maintenance to you by suggesting their income is insufficient to support both of you. Providing the court with a written evaluation by a vocational expert can help shed light on your spouse’s actual earning potential.

In the opposite case, you may be looking to prove to the court you’re unable to earn as much as you had in the past due to extenuating circumstances, and you believe you are unable to pay spousal support. Hiring a vocational expert can further explain your circumstances and lend credibility to your argument.

Making the Most of Vocational Evaluations

While no one wants to add costs to their divorce budget, a vocational expert can save you serious money in the long run. A skilled vocational expert will work alongside you and your attorney, go over the facts of your and your spouse’s finances, and provide the best possible analysis of your current situation and earning potential.

4 Things to Remember When Going Through a Divorce

The decision to get a divorce is difficult enough, let alone the actual process of separating. In order to make the process as painless as possible, there are things you should do, and things you should not do. Divergent Family Law has extensive experience guiding people through divorces, and we’ve seen it all. Here are some of the most important things to do to make your divorce process as smooth as possible.

Important Topics to Discuss with Your Divorce Attorney

Divorce is always stressful, and it’s normal to not know where to start. An experienced divorce attorney can help ease your mind, and advise you on the best steps to take to move your life forward. When you first sit down with an attorney to discuss your case, there are certain topics you should be sure to cover.

First of all, do I need an attorney? 

While it is not required to hire an attorney, navigating divorce proceedings on your own is rarely a good idea. Divorce is more than simple paperwork and forms. Ultimately, a divorce is a lawsuit, understanding the process and how the law applies to your situation can be critical for securing a favorable outcome. You also need to be prepared for court hearings and understand how to keep moving your case forward. Talk to an attorney before deciding to handle your case alone.

What costs can I expect? 

Legal costs for a divorce will vary based on the specific case, the amount of work necessary and the time duration of the case. While representing yourself may save you money upfront, it could end up costing you big in the end. It is imperative for you to protect your rights when dealing with issues of custody and placement, property division, and support. Unlike most attorneys who work on retainers and hourly rates, the attorneys at Divergent Family Law work on a flat fee system so you know all of your costs upfront with no surprises. Call today to set up a free consultation with one of our attorneys. We will meet with you, evaluate the facts of your case and give you a comprehensive quote.

Will I have to pay maintenance? 

Maintenance determinations in Wisconsin are based on factors such as the length of the marriage, tax implications to each party, physical and emotional health of the parties and spousal earning capacity. A skilled attorney at Divergent Family Law will be able to examine the factors in your specific case and make an informed estimate on whether you will have to make maintenance payments.

Am I going to lose half of everything I own? 

Wisconsin is a community property state, meaning the court enters all divorce proceedings assuming a 50/50 split of marital property will be equitable. Each case, however, is unique and a 50/50 split is not necessarily set in stone. When meeting with your attorney, be sure to ask about your options and they will help determine if you may be able to argue for a more significant portion of marital property.

What will happen to my children? 

Custody and placement issues are a necessary evil for divorces involving children. It is important for your attorney to lay out your options for custody and placement so you can make an informed decision on your approach. Your attorney will be able to determine if you have a case for sole legal custody and make informed assumptions on physical placement percentages.

What will happen to the marital home? 

There are three common scenarios for how the marital home is handled after a divorce. Either spouse can keep the home, or the house can be sold with the proceeds divided equally between the parties. Several factors can impact the final decision, such as if the house was inherited or purchased individually by one party before the marriage began. You should lay out all the facts and the action you would like to take with your attorney when discussing your case. They will be able to determine your best options and find your best path forward.

Every divorce case is different. It is important to recognize your lawyer will be able to advise you on how court proceedings may go to the best of their knowledge and abilities, but the ultimate decisions will still be determined by the court. It is critical for you to be 100% honest with your attorney through every stage of the divorce proceedings. If they don’t have all the facts, it will only come back to bite you in the courtroom.

 

4 Tips for Choosing a Divorce Lawyer

The family court system is uniquely personal and emotional. If you are going through a divorce, you need an attorney by your side with a deep understanding of the intricacies of family court, the unique processes and specific laws. Here are four factors you should take into account when choosing your divorce lawyer.

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