The term divorce refers to a legal process in which a couple’s marriage or legal union is dissolved by the court. When the divorce has been finalized, each person is allowed to remarry. Each state has its own requirements and laws regarding divorce, and the actual process of filing for divorce can differ as well.
Generally speaking, all states require that the spouse filing for the divorce must be a resident of the state in which they are filing. Again, the amount of time required for establishing will vary, but it is generally a minimum of six months.
Another factor of divorce that varies on a state by state basis would be the different types of divorce. These would be “no fault” or “at fault” divorce states:
- No Fault Divorce: States that offer no fault divorces do not require the filing spouse to prove any wrongdoing on behalf of either spouse in order to obtain the divorce. Some states will require that the couple declares that they can no longer get along, which is most commonly referred to as “irreconcilable differences.” Other states have determined that the couple is required to live apart for a set amount of time before they are allowed to file for a no fault divorce;
- At Fault Divorce: If the spouse is filing for divorce in an “at fault” state, they will need to provide a reason as to why the divorce should be granted. What exactly constitutes fault will vary from state to state. The most commonly cited reasons for divorce include:
- Cruelty, meaning the intentional infliction of unnecessary or emotional pain;
- Adultery;
- Desertion for a set amount of time;
- Confinement in prison for a set amount of time; and/or
- The physical inability to consummate the marriage.
What Is the Difference Between a Divorce And a Legal Separation in Wisconsin?
Some states, such as Wisconsin, provide different marriage dissolution options. Wisconsin recognizes the difference between a divorce, and a legal separation. Legal separation can serve as a sort of trial period in which the couple is determining whether they can and/or should remain married. They may use this time to determine whether permanently separating by filing for divorce is the better option for their circumstances.
Legal separation may also be referred to as marital separation. This specifically refers to a legally binding agreement which sets certain guidelines that the couple must adhere to while living apart. An example of this would be a clause stating how each spouse is to manage their affairs and assets. This agreement certifies the separation, and grants a legal status, but is not yet considered a formal divorce.
Another way to put it is that while divorce is the final end of a marriage, legal separation is not final and can be revoked. Similar to a divorce, a legal separation allows the court to rule on relevant issues, include but not limited to:
- Child support and custody;
Use of personal property, such as a vehicle;
How bills are to be paid; and
The use of the family home.
It is important to note that pursuing a legal separation does not necessarily mean that the spouses must live in different homes. The defining feature of a legal separation depends on whether a binding agreement was formed, as a family court may be able to enforce the agreement should either party violate any part of it.
Many couples may choose to be legally separated when their religion prohibits divorce, or when they simply wish to no longer be legally married to each other while remaining in a relationship.
What Paperwork Must Be Filed In Order to Obtain a Divorce In Wisconsin?
To reiterate, the divorce process varies from state to state. It is best to consult with an attorney before moving forward in order to ensure you have the correct information and reduce the risk of any issues along the way.
Generally speaking, the divorce process in Wisconsin is as follows:
- Determine How You Will File: Couples may file for divorce separately, or jointly. Filing jointly has the advantage of greatly reduced or even eliminated paperwork. Joint filing generally occurs when the divorcing couple is relatively amicable, and there are few or no marital assets and children involved. Filing separately would be the better option for those fearing for their safety, or for those who have children together;
- Determine Whether a Temporary Hearing Will Be Necessary: Temporary hearings are held to make decisions, such as child custody and placement, that will be in place throughout the remainder of the divorce process. Again, temporary hearings may be preferable for those who are divorcing because they are concerned for their safety, or for couples who have especially complex circumstances leading to the need for divorce;
- File a Divorce Action: This action notifies the court of the couple’s intention, and officially begins the legal divorce process. To file a divorce action in Wisconsin, you must have been a resident of the state for six months, and a resident of your county for thirty days;
- Service of Process: If the couple files separately, the spouse who filed is responsible for putting the other spouse on official notice. This is referred to as service of process, and it informs the other spouse of the filing for divorce or separation. Again, the rules that govern service of process can vary by state, so it is important to discuss this with a local attorney to ensure that all rules are being followed;
- Attend and Complete Parenting Classes: Some states, including Wisconsin, require the divorcing couple to attend and complete a course on parenting prior to their divorce being finalized. These courses are intended to help the parents understand how their divorce will impact their children, and how to best handle such issues. In Wisconsin specifically, the parenting class must be approved by the state and tend to consist of four or more hours. Additionally, parents may attend separate classes; they do not need to attend the same course, together, in order for it to count; and
- Attend All Necessary Hearings: The court may require mediation sessions in order to resolve specific issues. Alternatively, the court may rule on the divorce or separation issues at actual court hearings. It is imperative that you attend all necessary hearings and are prepared when doing so, as failure to appear can hold you in contempt of court.
Once each side has presented their case to the court, the judge will issue a final ruling which finalizes the divorce. A court issued final order will detail the rights and responsibilities assigned to each party.
Is Wisconsin a Community Property State, Or a Separate Property State?
Wisconsin is a community property state. What this means is that all property brought into the marriage is split 50/50 between the separating spouses. Some examples of what constitutes “property” in terms of divorce include, but may not be limited to:
- Cash;
- Investments;
- Pets;
- Personal property such as clothes, jewelry, and phones;
- Real estate; and/or
- Vehicles.
It is crucial to note that your former spouse’s creditors may be able to reach part or all of the community property, in order to satisfy the debts incurred by either spouse. However, there are some exceptions to the community property 50/50 default rule, which can be further explained by a Wisconsin family attorney.
What Else Should I Know About Divorce in Wisconsin?
Alimony, or spousal support, is not required in the state of Wisconsin. The amount of support that may be ordered can vary widely, based on each specific case and the associated facts. Generally speaking, spousal support is only awarded in Wisconsin when the couple has been married to each other for a minimum of ten years.
In terms of child custody and child support, Wisconsin law states that when a child’s parents are not married to each other, the child’s mother is automatically awarded sole custody of the child unless or until the court orders otherwise.
Child support amounts in Wisconsin are determined according to a child support calculator. As of 2021, an example of this would be:
- 17% of gross income for one child;
- 25% of gross income for two children;
- 29% of gross income for three children;
- 31% of gross income for four children; and
- 34% of gross income for five or more children.
The paying parent generally must continue child support payments until the child has reached 18 years of age.
Do I Need an Attorney For Divorce In Wisconsin?
If you live in Wisconsin and are considering filing for divorce, you should consult with an experienced Wisconsin divorce lawyer. Because so much regarding divorce and child support varies from state to state, it is important that you work with a local Wisconsin lawyer in order to receive the most relevant advice.
An experienced Wisconsin divorce attorney can help you understand Wisconsin’s process for filing for divorce, and ensure that you are adhering to all applicable laws. Finally, an experienced attorney will also be able to represent you in court, as needed.
