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WI DIVORCE LAWS

8 WISCONSIN DIVORCE LAWS (& HOW TO GET STARTED)

WI statutes on adultery, debt, hidden assets & who gets the dog.

Considering divorce? Our guide to Wisconsin divorce laws has you covered

Divorce can feel like a familiar topic, but most people are unaware of the most fundamental Wisconsin statutes defining the process. Encoded in legalese, Wisconsin divorce laws have the answers to your most-asked questions—we spell it out in plain English so you can plan your next steps intelligently.

Our Milwaukee Family Law attorneys are zealous advocates for the rights and best interests of our clients at all stages of divorce. We offer free initial consultations and honest advice about working with Wisconsin divorce laws to define your new path.

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Wisconsin divorce laws property division

Wisconsin divorce laws alcoholism & substance abuse

Wisconsin divorce laws on engagement and wedding rings,

1. Adultery is a felony (but probably not a factor)

Adultery is actually a Class I felony under Wisconsin law. Like most states, Wisconsin defines adultery as the act of a married person having sexual intercourse with someone other than his or her spouse. This criminal statute against adultery dates back to the 19th century, however, the crime of adultery hasn’t been prosecuted for years in Wisconsin.

Wisconsin is a "no-fault" divorce state, which means the court isn’t interested in the reasons why people are seeking a divorce. You will not be given the opportunity to provide evidence for why the marriage ended. This includes proof of extramarital affairs. Wisconsin courts aren't even allowed to consider marital misconduct when making decisions related to the divorce.

The court focuses on the unemotional facts of the divorce to speed up legal proceedings and spare divorcing couples the heartache of airing their dirty laundry in the courtroom. On top of that, providing proof of adultery is near impossible as it requires hard evidence that extramarital sexual intercourse truly occurred. Police filings, confessions, and DNA evidence would be the only true way to prove adultery. Officially, the penalties for adultery include a $10,000 fine and/or 3.5 years imprisonment.

2. Assets & Property Division What happens to assets acquired before the marriage?

Wisconsin statutes state that all property you bring to the marriage or acquire during the marriage is considered marital property subject to an equal division. If the asset is a gift from a third party or you inherited the property, it can be qualified as your separate property for you to keep. However, depending on what that asset is, a court may even find that gifted or inherited property has become commingled, meaning that your separate property has been mixed with marital property such that you can no longer identify the premarital interest. For example, if you owned a house in your name before the marriage that you inherited, but during the marriage, your spouse remodeled the house which increased the property value, the house may not be your asset anymore. There are also factors that a court can consider such as how long you have been married, whether or not the asset has appreciated or depreciated and whether or not the property can be traced back to one spouse or another.

In many cases, however, the parties gather information verifying premarital interest in property and can negotiate to exclude that property as part of the property subject to being divided in the marriage.

I started a business during the marriage and it’s successful. Will my spouse get part of it?

Yes. Wisconsin is a community property state which means that assets and debts acquired during the marriage, with the exception of property received by gift or inheritance, are divided equally.

If you start a business during the marriage, a court may consider the value of the business, including assets and receivables, as marital property. This means that your spouse may receive a part, or even half of your business in a divorce. Since it may be difficult to physically divide a business, a court may give your ex-spouse another marital asset that may be equal the value of the business. The court may also order assets from the business to be paid to the ex-spouse.

Can spouses negotiate the division of assets as they wish?

While there is a legal presumption in Wisconsin that assets and debts are divided equally, the parties may come to an agreement that may be unequal, meaning it may be more favorable to one party than the other. When two parties reach an agreement while represented by attorneys, the court will likely approve the agreement even if it is an unequal division of the assets so long as the disparity in division is not too great. Further, there are justifiable reasons why people may agree to an unequal division, including that one party had more assets they brought into the marriage, one party may have unreasonably wasted away assets (i.e. gambling, substance abuse, etc.), or one party may have been gifted or inherited property. As long as the overall agreement appears to be fair and equitable to both parties, it is likely the court will approve the agreement.

I heard never move out or you’ll lose the house, is this true?

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. Leaving the house before any orders in place does present the risk that you may not be able to have temporary use of the marital home, but making the decision to leave usually results in your giving up temporary possession. The courts will look at many factors when ultimately dividing property and the marital house is usually an important asset to divide.

Sometimes both parties choose to leave the house and to divide the proceeds from the sale of the house. There are options to think about and to discuss with your attorney.

What happens to assets acquired before marriage?

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 it is proven that you have hidden assets that should have been disclosure during the divorce, you could be subject to perjury charges.

If you believe your spouse is hiding assets, there are ways to investigate public records for possible hidden assets. Keep track of your bank account records, credit card statements, and previous tax statements. Further, you can demand that documents and information be produced during the divorce through a formal request upon your spouse. Finally, if you have a significant estate, you may want to consider hiring a forensic accountant to do an analysis of the financial records to determine if there may be hidden assets or money.

I don’t have the same access to money that my spouse does. Can I get a court order for my spouse to pay my attorney fees?

The short answer is maybe, but it’s 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 where the spouse with more money pays for the court costs and provide funds to the other spouse for an attorney. If a court finds that you have access to funds, even if it isn’t as much as your spouse, they may not require your spouse to pay for your attorney.

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.

My spouse is causing delays & taking unreasonable positions, making the divorce more expensive than it should be. Can I seek attorney fees against my spouse for this reason?

Yes, you can seek attorney fees paid by your spouse if the facts and circumstances of your case and actions of your spouse rise the level of “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. If you believe that this is occurring in your case, you should ask your attorney about seeking compensation for your attorney fees.

Take our interactive quiz to learn more about Wisconsin divorce costs.

3. Divorce & Child Custody Does Wisconsin Divorce Law Favor the Mother?

Answer: 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 the law does not automatically factor the mother in a divorce case.

Do Wisconsin divorce laws favor a particular parenting schedule?

Answer: No. The facts of every case are specific to that family; a schedule that works for one family may not work for another family. There are many different facts that can will impact a family’s placement schedule, including the work schedules of the parents, ages of the children, the distance between the parent’s homes, special needs of the children, etc. There are a few more common placement schedules that families use, but there is no preferred plan that is set forth in Wisconsin law.

In Wisconsin, parents are required to create a parenting plan they are going through a divorce, which will include the parent’s proposal as to decision-making for their child(ren) and placement schedule. Parenting plans are helpful for parents to think about a schedule that will work for their children on a regular basis. The parent’s also need to outline which holidays and which school breaks a child will spend with each parent.

My spouse & I are heading for a divorce and I intend to move out. We have children. Will the court consider my move an abandonment of the children?

Answer: No. There are many families that separate before or when the divorce action is filed, even if they do not have a schedule figured out as it relates to the children. Just because you may move, it does not mean that you have abandoned the children, or your property for that matter. 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.

What happens if I move out of state with the kids?

Answer: If you have an existing custody and placement agreement with the court, if you intend to relocate with your child over 100 miles from the other parent, you have to ask for permission from the court. Wisconsin law set forth a very specific procedure in order to remove a child from the state. An attorney can help you file a motion that will include what is called a relocation plan giving the court information on where you are moving and what the new placement plan will be for your child. An initial hearing will take place. You should not move until you have an agreement with the child’s other parent or until granted permission from the court to do so.

The court will look at the best interest of the child in determining whether or not to grant the motion to relocate. If your spouse is planning to move out of state with your child, you have a chance to file an objection to the relocation. There is a time limit to this objection. The court must receive your objection at least 5 days before the hearing.

4. Debt & Divorce How is debt handled in divorce?

Under Wisconsin law, all marital assets and debts are subject to be divided in a divorce. Marital debt is a debt that was incurred during the course of the marriage to the date of divorce. This can be debt from taking out a mortgage, a car loan, credit card debt, student loans or even owing on taxes.

The court may sometimes require one party to pay off more debt because they will be receiving greater assets.

The court can order either party or both parties to pay off the marital debt. This can even happen if the purchased asset wasn’t even yours. For example, if the husband takes out a loan and purchases a car during the marriage, and later defaults, the wife may be liable for the debt even though she never drove the car.

Sometimes one party may have hidden debts that the other party was not even aware existed. The court could make both parties responsible for paying off this debt even though one party may have had no idea of the debt.

Will I be responsible for my spouse’s student loans?

Generally, if the student loans were taken out before marriage, then they would be considered separate property. However, there is a possibility that one party would be liable for the other’s student loan debt if the loan was taken out during the marriage. These loans could be considered marital debt. If the amount of the loans taken out was in excess of tuition and books for the purposes of supporting your family during the period you were attaining your degree, the loans have a higher likelihood of being considered marital debt.

A court will look at many facts and do an economic analysis when ruling on whether or not one party or both would be liable for student loans incurred during the marriage.

What happens if my ex files bankruptcy after the divorce?

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.

It is important to protect yourself in a divorce and ensure your settlement agreement has language that protects you in the event that your spouse does file bankruptcy. An attorney can ensure that language is added that would grant you the ability to go back to the family court and seek a sanction or remedy, including limited maintenance/support, should your ex file bankruptcy.

5. Substances & Custody Laws How does substance abuse affect custody?

Wisconsin courts take allegations of drugs and alcohol very seriously. If a court finds that your spouse has a drug or alcohol issue, they may have supervised or monitored physical placement with their child. When it comes to child custody and placement, the court will look at many factors, and review the facts and circumstances supporting the factors against what is in the best interest of the child. You should gather evidence supporting your concern about your spouse’s substance abuse, including pictures, evidence of any OWI/DUI, texts or email verifying use, etc.

By statute, in Wisconsin, courts presume joint custody, but sole legal custody can be awarded to one parent in certain circumstances, including 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.

Can a Wisconsin Family Court Judge Order a Drug Test?

When a judge could order a drug test during custody or divorce cases.

In a family law case, if there is suspected substance abuse allegation, a judge has the authority to order either party to take a drug test. If you believe the other parent is abusing drugs or alcohol, you must present to the Court why you believe this. It helps if you are able to show a history of the abuse and how it might have a negative impact on the minor child. There are many different tests that the judge could order, each with different costs and effectiveness.

Urine Analysis

The most commonly known drug test is the urine analysis. The urine tests can screen for amphetamines, barbiturates, benzodiazepines, cocaine, marijuana (commonly known as weed or pot), MDMA (commonly known as Ecstasy) and its metabolite, methadone, opiates, oxycodone, phencyclidine (PCP) and propoxyphene, synthetic cannabinoids (commonly known as "K2/Spice") and synthetic stimulants (commonly known as "Bath Salts"). The urine screens are a quick test; however, it only goes back, at most, a few days. If a judge orders this type of test, it is imperative that the test be taken as quickly as possible. Otherwise, the drug may be out of the other parent’s system and not show on the screening. Urine tests aren’t generally used if alcohol is thought to be the issue because alcohol passes so quickly through the body. Another issue with urine tests are that they are the easiest test to fake or produce a false negative. However, one benefit is that this type of test is generally the cheapest of the drug tests.

Saliva Test

A test that is used far less is a saliva test. This is a convenient test as it can detect drugs immediately and is not as invasive as other tests. The Saliva test is able to screen for the same drugs the urine analysis can. The results come back quickly, in as little as 8 hours to 24 hours. While this test isn’t used often, it is commonly used by a parent the day before their placement to prove there is no drug use prior to picking up the child. Additionally, the test could be used to prove there was no drug usage during the period of placement with the child. A downside is that the saliva test is a little more costly that a urine test.

Blood Screen

As one would imagine, a blood test is a very invasive test. Blood tests are often used when it is believed that the person is under the influence at that moment, as they are a very brief detection window. Blood tests are expensive and not typically used in family cases. However, the benefit is that drugs can be detectable within minutes.

Hair Follicle Test

A hair follicle test is the most commonly recommended test in family court cases. The benefit of a hair follicle test is that it detects drug usage up to 90 days prior. A hair follicle test can test for a number of drugs, including but not limited to Cocaine (Cocaine & Benzoylecgonine), Marijuana, Opiates (Codeine, Morphine & 6-Monacteyl Morphine), Methamphetamine (Methamphetamine/Amphetamine & Ecstasy), and Phencyclidine (PCP). A downfall of the hair test is that it is very expensive. The upside is that even if someone is bald or has little head hair, the hair can be taken from any part of the body in order to obtain a requisite sample.

Fingernail Test

Another common test to recommend is the fingernail or toenail test. The fingernail test has the ability to test for the same drugs as the hair follicle test. The benefit of a fingernail test is that it can test for drugs for several months prior. Unfortunately, is it the most expensive test out there.

A judge will not take the request for a drug screen lightly. There must be reason and presentation of evidence before a Judge will order a party must take a drug test. Talk with an experienced family law attorney to determine whether the facts in your case would amount to requiring a drug test.

6. Pet Custody In Divorce Who Keeps the Pets?

In Wisconsin, animals are considered property to be divided. Thus, 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. In making the decision as to which party the animal shall be awarded to, the facts and circumstances of the case will dictate the outcome. While it may seem easiest to simply let the animal go with the two parties standing a distance apart and see who it goes to first, if you do have this issue at trial, you may want to produce evidence of who provides primary care of the animal, who has more available time, who has the greater means to provide care for the animal, or evidence that the animal was gifted to you.

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 and upon any disagreement, the court may allocate the animal to one party or the other.

7. Engagement & Wedding Rings In Divorce Settlements, Who keeps the ring?

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. 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. But the wedding rings are marital subject to being divided in the divorce. However, if your engagement ring is soldered together with the wedding ring and they become one piece, then you could argue that the ring is marital property and its value should be included in the marital estate subject to being divided. If the original engagement/wedding rings are lost and you purchase new ones during the marriage, then they too become marital property to be divided.

If there is an agreement as to who keeps the ring, the court will follow what the two parties agree on.

8. Serving Divorce Papers You Must Serve Your Spouse With Papers In WI

Serving divorce papers to your spouse is something you might think only happens in the movies. In fact, Wisconsin law explicitly requires you to serve your spouse by the 90th day from your original filing date. Your spouse then has 20 days to respond with an Admission of Service. If your spouse does not respond in 20 days, a default divorce hearing may take place.

Service can be accomplished 1 of 3 ways:

Personal delivery to your spouse by yourself or a legal adult.
The Sheriff’s Department or a Private Process Server will deliver the documents for you.
If you exhausted the first two options, your last option is publically announcing the divorce petition in a local paper. A copy of the publication and an indication for how long the notice ran will need to be filed as proof of service.

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Nuts and Bolts Wisconsin Divorce Statues

These laws define what it takes to file for divorce, what happens if one spouse doesn’t want to, and when you can get remarried.

You have to be a Wisconsin resident for at least 6 months

In order to file for a divorce in the state of Wisconsin, the law requires you to live in the county you intend to file the petition for at least thirty days and in Wisconsin for at least six months.

This waiting period is often referred to as the “cooling off” period due to the tendency of people to quickly rush to file for divorce before experiencing other emotions that may lead to other resolutions. The 120 days are also used for mediation between the two parties in order to hopefully reach an agreement regarding property division and child custody before the courtroom.

Divorcing couples must be patient as there is an extremely limited exception to waive the cooling off period. The court can waive the 120 day period for the protection of health or safety of one of the parties or of any children of the marriage. This is a high standard and the courts rarely grant a waiver.

It takes two ONE

It only takes one party to want a divorce in the state of Wisconsin for the court to move forward. The court shall declare the marriage is irretrievably broken if the parties have voluntarily lived apart continuously for a year or more, and one party claims the marriage is irretrievably broken.

However, if the parties have not lived apart and one party does not believe the marriage is irretrievably broken, Wisconsin law permits the judge to evaluate the prospect of reconciliation and may recommend or order marriage counseling for the couple. The judge will then adjourn the hearing about 30-60 days out, at which time the judge will re-evaluate whether the marriage is irretrievably broken.

Love & (re)Marriage

You may be eager to jump into a new relationship and begin a new chapter of your life. Wisconsin State Law requires you to wait at least 6 months from your final divorce date until remarrying. This law can sometimes be inconvenient if your divorce proceedings take months of mediation and hearings to resolve. You’ll have to put the brakes on a tying a new knot. If you ignore the law and get married within the six-month period in Wisconsin or anywhere else in the world, that marriage would be considered null and void under Wisconsin law.

Working with Wisconsin Divorce Laws

Our lawyers know Wisconsin divorce law backward and forwards. We apply our understanding of the statutes to your situation so you have the power to make the best possible decisions in impossible-feeling circumstances.

We offer free initial consultations by phone or at one of our offices in Milwaukee, Glendale, Brookfield, Madison or Appleton.

Wisconsin divorce law does not require you to get an attorney—but you probably should. Book your free initial consultation online or call today.