Wisconsin’s laws and statutes define and outline each section of divorce, legal separation, and annulments. These laws are found in Chapter 767: Actions Affecting the Family. Each county also has their own processes and rules that impact divorce, but the state sets forth the general guidelines.
Divorce laws in Wisconsin are defined and outlined within the Wisconsin statutes under Chapter 767: Actions Affecting the Family. The procedures and rules that dictate the different aspects of family law each have their own subchapter within Chapter 767:
Wisconsin statute 767.315 outlines the two grounds for divorce and legal separation which are (1) an irretrievable breakdown of the marriage and (2) a broken marital relationship. Both of these grounds are “no-fault” which means neither party is required to establish fault in order to get a divorce.
Wisconsin law requires both parties to state under oath or affirmation that the marriage is irretrievably broken or that the marital relationship is presently broken. See Wis. Stat. 767.315.
If only one party agrees that the marriage is irretrievably broken, the court is required to consider all relevant factors and circumstances including the feasibility of reconciliation. See Wis. Stat. 767.315(1)(b).
Residency requirements for obtaining a divorce judgment in Wisconsin are found in Wis. Stat. 767.301 which states, essentially, no action for divorce may be brought unless at least one of the parties has been a resident of the county in which the action is filed for at least 30 days before the filing date. In addition, at least one of the parties must have been a resident of the state of Wisconsin for at least six months before the filing date.
A typical divorce proceeding in Wisconsin begins with the filing of a Summons and Petition which may be initiated by either one or both parties. If one party has filed the action, the Summons and Petition must be personally served to the other party in accordance with Wisconsin’s rules of civil procedure. Alternatively, a party may accept or admit personal service by signing an Affidavit that states the date when a copy of the Summons and Petition have been received. If the parties have filed the Summons and Petition jointly, then service is deemed completed as of the date of filing.
After personal service has been completed, Wisconsin law requires 120 days to pass before the court can render a final judgment. See Wis. Stat. 767.335(1). In rare cases, the court may order an immediate hearing on the divorce if the protection of the health or safety of either party or any child of the marriage warrants it. See Wis. Stat. 767.335(2).
The role of a judge in the final proceedings for divorce will vary depending on how the divorce action resolves.
If the matter is resolved by agreement, often called a Marital Settlement Agreement, the judge will take testimony from each party at a final hearing. The testimonies include confirmation that the parties are competent adults and that the judge is able to rule on the case. Additionally, the court may ask for testimony to ensure there was complete disclosure of their financial circumstances and that they are ready for the final divorce order. Individual judges may require more specific testimony concerning the parties’ agreements to ensure both parties understand the terms of their Marital Settlement Agreement.
If the matter is contested because the parties do not agree, the judge is responsible for ensuring that the proceedings are fair and complete. This may include establishing deadlines for evidence submission and witness testimony. Within a contested hearing, often called a divorce trial, the judge will take testimony from the parties and their witnesses on all relevant topics and may make rulings on topics as needed. After hearing all of the evidence presented and the arguments of each party, the judge will make findings of fact, conclusions of law, and render a judgment based upon the application of the law to the facts of the case.
Whether the matter is resolved by agreement or following a trial, the court will make certain statements on the record at the time of the final hearing in the divorce. These statements may include confirmation that jurisdictional requirements have been satisfied and the statutory waiting period has expired. In addition, the court may make statements confirming the orders regarding legal custody, physical placement, and financial support of children. Finally, the court will advise the parties as to when their judgment of divorce is granted and will inform them that they are not permitted to remarry in Wisconsin or elsewhere until six months after the date of judgment has passed.
Following the hearing, the court will order that a document entitled Findings of Fact, Conclusions of Law and Judgment be prepared within 30 days of judgment being granted. This document will serve as the judgment of the court commonly referred to as a divorce decree once it has been signed by the judge.
Technically, adultery is a Class I felony in Wisconsin. See Wis. Stat. 944.16. However, Wisconsin has not charged anyone with this for decades, and it is not used in formal divorce proceedings. This is in part due to Wisconsin’s status as a “no-fault” divorce state.
Wisconsin’s marital property division law is generally outlined in section 767.61 of the Wisconsin Statutes. Wisconsin is a community property state which means that all property of the parties is presumed to be subject to division.
In Wisconsin all marital property divided in a divorce action is divided equally between the parties. See Wis. Stat. 767.61(3). If the court deviates from this presumption, it is required to consider all of thirteen statutory factors set forth at Wis. Stat. 767.61(3). These factors include things such as the length of the marriage, each spouse’s contribution to the marriage, and each spouse’s age and health.
Wisconsin law presumes that debt incurred by either spouse during the marriage is incurred in the interest of the marriage. For that reason, debt is subject to allocation and must be considered in property division matters.
For child custody matters in a divorce, the court looks at three main topics: legal custody, physical placement, and child support.
Legal custody is defined within Wis. Stat. § 767.001(2m) as any major decision regarding a child. This includes topics such as obtaining a driver’s license, authorizing non-emergency health care, and choosing the child’s school and religion.
Wisconsin courts may award joint legal custody or sole legal custody of a minor child. Joint legal custody means that the legal guardians of a child must make all legal decisions together and in consultation with each other. Sole legal custody means one party may unilaterally be authorized to make a legal decision on behalf of the child. Joint custody is more common. Wisconsin courts must presume that joint legal custody is in the best interests of the child. See Wis. Stat. 767.41(2)(am).
Physical placement is generally where a child resides and how often the child sees each parent. Physical placement orders can either be entered as primary or shared physical placement. Primary physical placement means one party has been awarded placement of the child for the majority of the time. Shared physical placement means the parties about equal time with the child. Whether placement is shared or one party has primary placement, a parenting plan will be made to outline who has the child when.
If the parties cannot agree on custody or placement of a child, the court will decide for them. When making these decisions, the court looks to the best interest of the child. How they determine the best interests of the child is outlined in Wis. Stat. 767.41(5)(am). They look at factors such as any evidence of abuse, each parent’s prior relationship with the child, and the wishes of the parents and child.
Wisconsin law does not prefer one gender over another when it comes to the custody and placement matters. Courts in Wisconsin are legally prohibited from using gender to make custody and placement decisions. In fact, unless there is proof otherwise, the court must assume that it is in the child’s best interest for both parties to share custody and placement.
In Wisconsin, child support is governed by a number of statutes and administrative rules. The child support guidelines are outlined in Wis. Stat. 767.511 and Chapter 150 of Wisconsin’s administrative code.
In general, child support is based on the income of the paying parent as well as the amount of time each parent spends with the child. A parent with less than 50% placement time with a child will generally be ordered to pay child support. To see what a child support payment could look like in your situation, use our child support calculator.
Wisconsin law gives the courts a lot of discretion in decisions around alimony. This includes how much alimony should be paid and how long alimony should be paid for. The court looks to factors defined in the Wisconsin statutes to make these decisions. Those factors include things like the length of the marriage, how the property is being divided, and the earning capacity of the person asking for alimony. See Wis. Stat 767.56.
Case law in Wisconsin has consistently proved that the two primary objects of alimony are to:
