What is Divorce?

Divorce or separation also known, as the dissolution of marriage, is a legal action used to terminate a legal union. The act of divorce cancels the legal responsibilities of marriage, thus completely severing the bond of marriage.

Residency Requirements

To file a divorce in Wisconsin specific residency requirements must be met. For a court to have jurisdictional rights to oversee a divorce case, proof of the following must be provided. One spouse must be a Wisconsin resident for a minimum of 6 months and a current resident of the county they file for a minimum of 30 days.

So What Counts?

If you can answer yes to the following questions you meet the Wisconsin residency requirements and can file a petition for divorce in your current county.

  • Have I been considered a legal resident of Wisconsin for the last six months?
  • Have I been considered a legal resident of the Wisconsin county I am filing my divorce for the last 30 days?

Fail to Meet Residency Requirements?

If residency requirements CAN NOT be met one of the following can be done to proceed with a divorce:

  • Establish legal residency in Wisconsin and wait to meet the residency requirement to file a divorce
  • Convince your spouse to file if they meet the requirements
  • Get divorced in another state where you meet the residency requirements (all states are unique, so check their residency requirements)

Where to File

If you were able to answer yes to both of the residency requirement questions you can begin filing a divorce. The first step is to file a petition and summons with your county Clerk of Courts.

To begin the process in the most organized fashion we tell prospective clients to minimally retain an attorney on a limited-scope basis. This ensures you get the proper forms and file the action in the appropriate manner. We have witnessed many individuals begin the process incorrectly, extending the entire divorce and consequently increasing the overall cost of the action.

Waiting Period

Once a Petition for Divorce and Summons to Appear is filed with the Clerk of Courts a hearing can be scheduled. However, the Clerk of Courts WILL NOT schedule a hearing until 120 days after the opposing party is legally served the Summons and Petition. During this four month waiting period it is prudent of both parties to begin negotiating the terms of the divorce.

Court Ordered Mediation/Counseling

In Wisconsin, couples going through a divorce may be forced to go to counseling and or mediation. Required mediation only happens when the parties CAN NOT come to an agreement on the custody and placement of their children. If there are no children from the marriage, ignore this section, as it does not apply.

In cases where parties cannot agree on the placement and custody of children the court will order parents to seek mediation. A mediator appointed by the court will conduct these mediation sessions.

During mediation financial issues are not considered or allowed as part of the discussion. The mediator will try to find common ground between the parties to determine an acceptable placement and custody schedule aligned with the best interests of the child.

If mediation is successful a written agreement is drafted and submitted to the court. This document will be included in the court order or stipulation.

If mediation fails and the parties are unable to come to an agreement the court will be notified and a guardian at litem (GAL) will be appointed immediately. The guardian at litem appointed to the case will conduct interviews and an investigation into the child’s life in order to give the court a recommended custody and placement schedule.

Grounds for Filing a Divorce in Wisconsin

In the United States there are two grounds for filing a divorce. Every state conforms to either at-fault or no-fault divorce laws; Wisconsin is a no-fault divorce state.

What is a No-Fault Divorce?

A no-fault divorce means a divorce can be filed, and neither party is responsible for proving the other spouse was the cause for the breakdown of the marriage. All states recognize no-fault divorce laws, and in no-fault divorce states the only legal grounds for a divorce is the irreparable breakdown of the marriage. This is a legal way to say the couple no longer gets along and the marriage cannot be repaired. So, if one spouse states the marriage is broken, the other spouse cannot object and stop the petition for a no-fault divorce.

Wisconsin enacted no-fault divorce laws in 1978, which passed in 1977 as part of a larger bill called the Uniform Divorce Act. Wisconsin was one of the first eight states in the United States to adopt no-fault divorce laws.

Overall the adoption of no-fault divorce laws had two significant, correlated impacts. First, when the law passed divorce rates exploded in the United States and continued to rise until the late eighties when they began to plateau and tail off. Secondly, the adoption of no-fault divorce laws has been strongly correlated to a decrease in domestic violence.

Fault Divorce – Just So You Know

As stated above, Wisconsin is a no-fault divorce state and DOES NOT recognize at-fault divorce laws.

Just for your edification an at-fault or fault divorce is when one spouse requests an at-fault divorce be granted based on the fault of other spouse.

The most common grounds for at-fault divorce trials are claims of adultery, abandonment of the marriage, prison confinement, inability to have sexual intercourse, and or emotional/physical pain. If the court grants a fault divorce the party proving fault is granted a larger portion of the marital property and alimony/support orders.

List of Fault Divorce States

Alabama
Alaska
Arkansas
Connecticut
Delaware
Georgia
Idaho
Illinois
Maine
Maryland
Massachusetts
Mississippi
New Hampshire
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
West Virginia

Types of Divorce Actions

Wisconsin recognizes two kinds of divorce: absolute divorce and limited divorce(also know as legal separation). There is a significant difference between a divorce and legal separation; the reasons for filing the actions are also considerably different.

Divorce

A divorce, otherwise known as an absolute divorce, is a legal action completely dissolving the marriage and is the result of irreconcilable differences between the two parties. The biggest difference between the two types of divorce in Wisconsin is the complete dissolution of the marriage.

Limited Divorce or Legal Separation

A limited divorce or legal separation is not a divorce, rather it is legal separation between the two parties. What this means legally is separating the liability of the partners to the pre-marriage state.

For example, when Betty and John got married they were legally linked. Anything John did financially, Betty was also liable. If Betty and John get a legal separation because John is trying to get over a gambling addiction Betty is protected. If John takes out loans to gamble Betty and the children are protected from John’s addiction.

This type of circumstance is a good example of when a legal separation is used to help the family unit. Since they are not completely dissolving the marriage, rather separating liability, the family unit has time to heal.

When filing a legal separation in Wisconsin the parties will decide on nearly all the same issues they would face during a divorce proceeding. This includes custody, support, property division and alimony.

It is important to take these issues seriously during a legal separation action, because once the filing is complete and approved by a judge at any point one or both parties can decide to finalize the divorce. What was agreed upon in the legal separation paperwork will be enforced and converted to a final divorce decree.

Uniform Divorce Recognition Act

Wisconsin is one of seven states that recognize the Uniform Divorce Recognition Act, or UDRA which it is also referred. The UDRA is a law drafted by a national committee governing when a state should recognize a divorce from another state. Basically this law was created to avoid “quickie” divorces as well as allow for no-fault divorce as discussed in the Grounds for Divorce section.

When is the UDRA Enforced?

The Uniform Divorce Recognition Act is enforced when one spouse falsely claims residency in “state B” when his/her domicile is in “state A” just to get a “quickie” divorce decree.

This law prevents two things. First the UDRA prevents someone from moving from one state to another to file a divorce faster. An example of this would be if someone from Wisconsin moves to Illinois to file, because the waiting period is 21 days in Illinois vs 120 days in Wisconsin. This is an example of someone seeking a “quickie” divorce.

The second thing the UDRA prevents is someone from forum shopping. Forum shopping is when one party seeks a different court due to that courts stance on a specific issue.

For instance, we recently tried a case were one party moved to Illinois, established residency with a family member, and filed the divorce in Illinois instead of Wisconsin. Due to the significantly decreased waiting period the case was heard in Illinois.

What we were able to prove in court was the opposing party left for Illinois due to their stance on alimony/spousal support. The UDRA helped prevent this action and the case was dismissed in Illinois and resumed in Wisconsin.

Dividing Property, Assets & Debt

Every couple that separates or ends their marriage faces a minimum of two difficult decisions. The first decisions are made around issues surrounding property division.

Under Wisconsin Statue 767.61 divorcing couples must divide “marital property” in an agreed upon fashion and if an agreement cannot be met the court will divide the property.

Marital properties are assets and debts accumulated during marriage. This includes the following:

  • Cash/Money Deposits
  • Family Home(s)
  • Vacation Home(s)
  • Retirement Investments & 401k plans
  • Pension Plans
  • Debts, Loans and Mortgages accumulated during married life

Ensure Property is Properly Classified

Assets, property, and debt acquired before marriage is called separate property. In general each party will keep separate property unless it can be proven marital property was used to finance, pay for or increase the value of the separate property. Some examples of separate property are as follows:

  • Student Loans
  • Cars brought to the Marriage
  • Separate 401k account established before marriage that was not ever contributed to during the marriage

Get Fair Alimony Orders

The second major decision every couple filing a divorce will face is making decisions or concessions to alimony.

In Wisconsin, Statue 767.56, courts to decide spousal support (also called alimony, spousal maintenance or maintenance). There is no guaranteed maintenance to be awarded and it is primarily up to the judge’s discretion.

A judge will look at several factors to determine spousal support mainly length of a marriage and earring potential of the divorcing parties.

The magic number of years to obtain spousal support is typically ten years, but other factors judges will review include:

  • Age
  • Physical Health
  • Emotional Health
  • Property Division Agreement
  • Educational Level of each party
  • Feasibility the support seeking party can become self-supporting
  • Tax Implications to each party
  • Contribution of one party to the education or increased earning potential of the other party

Along with the above mentioned factors the court may also consider other factors to be determined on a situational basis to be used to influence the amount and length of the maintenance award.

Secure Custody, Placement & Visitation Rights

If you and your spouse have children, the stress and emotions of the divorce will be intensified. Decisions need to be made regarding the custody arrangement of your children and if an agreement cannot be reached the courts will mandate an arrangement under Wisconsin Statue 767.41.

This should be avoided if at all possible.

There are three custody issues which need to be decided on when children are involved in a divorce:

  • Physical Custody (also known as primary placement)
  • Legal Custody
  • Visitation

Physical Custody
This type of custody is regarding the where the children primarily live on a day to day basis. What comes along with physical custody is oversight in day to day type decisions.

Legal Custody
This type of custody is oversight on major decisions in a child's life. Such topics include education, religion and healthcare.

Visitation
Visitation is the quality time and schedule each parent gets with the child(ren). There are many types of visitation schedules and nothing is off the table as long as the parents agree on the schedule.

Ensure Child Support is Enforced & Accurate

Child support and child custody arraignments work hand in hand. Decisions made on custody will affect child support and the likelihood of child support being paid to one spouse from another.

Child support payments are fairly straightforward under Wisconsin Statue 49.22. The Wisconsin Department of Children and Families require a percentage of income outlined in DCF 150.03 to paid as child support to the custodial parent.

The percentage standard, is how child support is typically determined in Wisconsin.

The percentage standard for those above the low-income level is as follows:

  • 17% for one child
  • 25% for 2 children
  • 29% for 3 children
  • 31% for 4 children
  • 34% for 5 or more children

Create a Custom Support Plan

Another option for separating or divorcing couples is creating a custom child support plan. If both parties find agreement to an alternative child support plan this can also be approved by the judge.

This is not typical, but is an option for those who go through a more amicable divorce.

Get a Personalized Strategy

In a contested or complex divorce married parties will appear before a judge. Typically this type of divorce involves attorneys, counselors, a guardian at-litem, and many court appearances. When one party must protect their assets and or children from the other party a divorce litigator is required. A divorce litigator is also known as a “pit-bull” attorney, because they are ruthless in their approach to achieving client goals.

How to File a Complex Divorce

When filing a divorce, when the situation is missing agreement, individuals should carefully consider obtaining full representation from an award winning litigation attorney. Filing the divorce will begin with a petition for divorce filed with the county in which they live.

Attorney Dan Exner is a candidate to consider. He was the 2014 Rising Star Award Winner from SuperLawyers. Only 5% of attorneys in win this award nationally. Attorney Dan Exner uses his knowledge and aggressive negotiating skills to achieve desired outcomes and goals.

Two Methods of Getting a Judgment

When filing a divorce during complex circumstances and little agreement there are two methods of achieving an outcome: arbitration and trial.

Arbitration

An arbitrated divorce is a type of contested divorce where you and your spouse agree to hire a private judge, called an arbitrator. You agree the arbitrator can make similar decisions as a family court judge and you agree you will honor the arbitrator’s decision.

Just like a contested trial divorce, both parties will use an attorney to prepare arguments and evidence. This evidence is presented to the arbitrator, and the arbitrator will make decisions based on the evidence and the arguments.

The advantage of an arbitrated divorce versus a trial divorce is speed and cost efficiency. The process is much faster as scheduling time with an arbitrator is easier than with a county family court. The process is more cost efficient because the setting is less formal. The less formal setting lends to less preparation requirements for a divorce lawyer, saving you money.

IMPORTANT - An arbitrator’s decision is binding, meaning you can’t ask for a do-over. You also can’t appeal arbitrator's decisions to a higher court.

Trial

A trial divorce is just as it suggests, a divorce that goes to trial. Only 5% of divorces go to trial nationally as a trial divorce is very expensive as well as emotionally painful. In a trial divorce, lawyers will prepare formal arguments and evidence to present the judge.

The judge will hear the arguments and evidence presented by both parties and then make a decision as it relates to living arrangements, parenting plans, child custody, child support, spousal support, and property division.

The judge will then develop a court order resolution to the divorce, which is determined based on the evidence and agreements of each spouse.

Use Dispute Resolution to Avoid a Lengthy Divorce

A negotiated, or otherwise known as an uncontested divorce, is a divorce filed in a manner where the two parties are working toward an agreement. What a negotiated divorce aims to avoid is a formal trial. Instead of a formal trial, parties will work toward and eventually file a marital settlement agreement or MSA.

An MSA details all agreements made between both parties including dividing property and debts, custodial arrangements for children, as well as support payments.

Once the MSA is filed with the family court a judge will review the document. The judge will aim to approve the agreement and this is typically the case. In rare circumstance a judge will not approve the agreement if the MSA clearly benefits one party significantly more than the other party. The judge’s sole purpose in the process is to ensure legal fairness.

How to File a Divorce

There are two methods of filing a divorce: joint or separate filing.

To reduce costs, filing the paperwork jointly is a good option. If you and your spouse are already separated, filing separately is also a good option, but includes a few more costs due to filing fees and affidavit of service.

At Sterling Law Offices we recommend individuals who have children and or assets to file a divorce with the assistance of a lawyer.

Filing a divorce with an attorney can be done in one of two ways:

Limited Scope Representation
Limited scope representation is similar to al-carte options found with other service providers. We supply the forms, supply coaching, file forms, serve opposing parties, negotiate marital settlement agreements, and appear in court for clients

Full Representation
Full representation takes the burden off the client and ensures rights and outcomes are protected throughout the legal process. The major benefit of full representation is ensuring your legal rights are protected and the negotiated terms are something you can live with after the divorce.

Many times pro-se litigants or those who file without a lawyer find themselves mad or misrepresented after the divorce proceeding is over. They want a new trial and do not realize the decisions made last minimally two years. Not only do the decisions last two years, but the divorce decree hold significant amount of precedence.

Basically think about a divorce like twenty feet of rope, once the final divorce decree is set and you are given 11 feet of rope you will not be able to go back to court to get a significantly bigger portion. You can go back to court, but you will likely only get or lose a few inches.

What are Legal Mediation & Collaborative Lawyers?

A mediated divorce is a type of negotiated divorce when spouses' hire a neutral third party, called a legal mediator, to help you resolve issues in the divorce. This is sometimes also known as dispute resolution.

The role of the mediator is not to make decisions, rather the mediator's role is to facilitate communication between the couple until an agreement can be reached.

Sterling Law Offices can help parties negotiate an MSA for divorcing parties. We have two types of clients, 85% of which are clients who aim to find an agreeable divorce settlement. For these individuals we approach the case in a collaborative manner. We aim to achieve two or three major goals for the client while keeping the costs down for the client.

Attorney Trisha Festerling is an award-winning attorney who is great at finding common ground and getting outcomes both sides want. She won the 2013 Rising Star Award from SuperLawyers because she was recognized not only by clients as great, but also verified by her attorney peers the she can get things done in an efficient collaborative manner.

Filing a Military Divorce

When military members and spouses of veteran military members file a divorce there are additional laws that must be considered. The Uniformed Services Former Spouses' Protection Act (USFSPA)  is one such law recognizing the distribution of military retirement. This distribution is deemed to be payable to a former spouse. The USFSPA also gives legal direction for enforcing the orders with help from the Department of Defense.

When seeking a military divorce it is advisable to obtain representation. This decision will have a significant impact on the future of both parties. The additional complexity of the military divorce laws make hiring an attorney like 2014 Rising Star Dan Exner an investment in the future worth considering.

The following paragraphs outline the major laws and rights of military members and spouses of military members.

Military Service Member's Rights

Every case involving an active duty military member is complicated not only by local state laws, but the rights of military members are further protected under the Service Member’s Civil Relief Act (SCRA).

This federal law has two purposes:

  1. to provide for, strengthen, and expedite the national defense through protection extended by this Act to service members of the United States to enable such persons to devote their entire energy to the defense needs of the Nation
  2. to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of service members during their military service.

Dividing Military Pensions

A pension earned by military members is considered marital property and is available to divide as a property award in a divorce decree.

When property awards are determined in a divorce decree, retirement pay should be defined as an unchanging amount, or defined as a set percentage. This set percentage would be applied to discretionary retirement pay of the service member.

10/10 Rule

Additionally a law called the 10/10 Rule needs to be followed when dividing military pensions. The laws states, to be awarded a portion of the military pension as property, the service member and spouse must meet the following criteria

  1. married to for a minimum of 10 years, and
  2. married during the time the service member was an active military member for a minimum of 10 years.

This stipulation is enforced under the USFSPA.

File a Simple Divorce

A simple, default or pro-se divorce action is filed when the parties filing have no children and little to no assets. Another factor that determines a divorce as “simple” is the length of marriage. A typical “simple” divorce ends within three years of getting married.

A family court will grant a simple or default divorce judgment if divorce paper work is filed and the other spouse does not respond.

How to File a Simple Divorce 

When filing a simple divorce, using pro-se divorce forms is a good option. Pro-se divorce forms can be found in two ways.

First, Sterling Law Offices provides forms and one hour of coaching for $285. What you will receive are instructions on how to file your case, the forms required to file, as well as one-hour of coaching so you know your legal rights.

The second source can be found on www.wicourts.gov. The site has a divorce form builder. The down side to using this site is the errors and complexity of the product. In our experience using the forms is unadvisable. We have been involved in divorce cases where the opposing party uses the divorce forms and due to the complexity of the process they mess up and need to start the divorce action from the beginning. The result is a more costly, more time consuming, more confusing divorce action.

If filing a pro-se divorce you and your spouse should be filing a joint petition for divorce to keep court costs down. Filing jointly also will decrease the paperwork and waiting period.

One strategy to keep costs down, but keep your rights completely protected is hire a divorce lawyer in a coaching arrangement. Sterling Law Offices helps clients in this manner providing all the forms as well as 60 minutes of in-office coaching for $285.

This option ensures your rights are protected and reduces the ambiguity surrounding the divorce. The catch is the clients must do the all the legwork, fill out the forms, appear in court, prepare court arguments, serve the opposing party, coordinate hearings with the court, file the court forms, prepare financial disclosure agreements, and ensure the other party does the same.

Effects of Divorce on Divorcees

When looking at divorce, the United States ranks highest in the world. The divorce rate in Wisconsin is lower than the national average with the eight lowest divorce rate in the US. The effects of divorce in Wisconsin are far ranging and differ significantly between men and women.

Effects of Divorce on Women

Women initiate divorce actions 2:1 or twice as often as men. There is no correlation, but women also maintain primary custody of their children over 90% of the time. Another interesting fact about women after divorce is the rate of poverty after divorce. Over 60% of all people considered to be in poverty are divorced women with children. This is primarily due to the fact over 65% of women with children who get divorced do not receive child support.

On the positive side, women who go through a divorce are typically under less stress and are better adjusted when compared to their male counter parts. What research has shown is women are more likely to attach emotions to marital struggles; so solving the problem (ending the marriage) is a great sense of relief. Another reason for their reduced stress comes from a broader more diverse social support system.

Another thing women face after divorce are stereotypes. Working women will be stigmatized for developing their career after divorce. This is especially true for women with children, who put their children in childcare. The world is not sympathetic to women who send children even to the best child care, rather the world is incorrectly judgmental.

Effects of Divorce on Men

After a divorce men react differently than women. This is especially apparent when it comes to emotional reactions after the divorce is over. Men typically face a greater emotional adjustment and are more prone to depression and alcohol/drug abuse post divorce.

The primary reason for this is related to a weaker social network, loss of an intimate relationship and a reduced impact on their child’s life. Men also face significant emotional issues due to the loss of household income after divorce. Men judge their worth more closely with monetary value and this hurts their psyche and ego.

Men have a tendency to remarry quickly to avoid the emotional issues described above.

The 10% of men who receive shared or primary custody of their children are acknowledged and endeared by society for doing what they are supposed to do. This is great for men, but very frustrating for many women.

Lastly, men are initially more negative about divorce, likely due to the emotional issues they subconsciously know are looming. Subsequently men devote more energy to a divorce in attempting to salvage the marriage at all costs. When the marriage inevitably does fail this destroys them emotionally.

How Divorce Effects Mutual Friendships

The reality of a divorce is it impacts more than just the two people getting a divorce. A 2012 study, conducted by Kathy Deal, looked how a divorce affected friendships.

What they found might not be surprising. The study asked several questions to a large panel of married or previously married individuals. The questions ranged from the number of “couple” friends they had to the importance of the “couple” friendship.

A “couple” friendship was defined as two married people

When asked how important the “couple friendship” was with other couples, 75% of the participants stated the relationship was important to them. The study also asked if they had a “couple friendship” that got divorced and nearly 66% of the participants did.

What we found interesting was the number of “couple friendships” that ended. Nearly 50% of couples with an important “couple friendship” ended the relationship completely with both parties after a divorce occured.

Another surprising stat coming from the research was the impact of age. When reviewing this questions the assumption was the older people were when they got divorced the less impact it would have on other relationship. This, however, was not true, as age had no factor in the study.

Bottom Line

The bottom line was not only do the divorcing couples lose each other, but they also lose a significant portion of their social network.

Help Your Child Cope with Divorce

During a divorce something to keep in mind is you and your spouse are the most important part of your child's life. During this transition period, it is paramount to be mindful of their presence, and avoid saying hurtful or derogatory statements concerning your spouse. Although your feelings have changed, theirs likely has not.

Divorce will have an impact on your child, making it less stressful is a difficult, but important process.

Research on Children and Divorce

There is a myth those going through a divorce believe, “since I am unhappy, the kids are unhappy. Divorce will be good for everyone." There is over 30 years of research, which points to the unwanted truth: kids suffer when parents split up.

While it is true every child who goes through divorce is affected differently there are clear increases in negative behaviors. The following is what has been found to be areas children suffer:

  • Academically due to Disruptive Behavior
  • Decreased likelihood of High School Graduation
  • Increased likelihood of Juvenile Incarceration
  • Increased likelihood of Drug and Alcohol Abuse in Teens
  • Physiological Distress
  • Emotional Scars of Divorce leading to Increased likelihood of Child being Divorced as an Adult

Helping with Post-Divorce Child Emotions

The best way to help children passed the change is sitting down with them together; you, your spouse, and all your children.

Children know when something is going on, especially with their parents. Delaying the conversations, inevitability, will only make it harder for them to focus on what they need to be concentrating on now, like school and being a kid.

A major point of conversation when it comes to younger children is letting them know that it is not their fault, and other than the living arrangements, nothing will change.

By taking these steps right from the start, it will be an easier transition. Overall, it will assist in the post-divorce process by meeting these challenges head-on.

Child Emotions with New Relationships

New relationships also present challenges with children. Giving them appropriate time to deal with a parent living somewhere else is very important. Giving them space to come to grips with a new relationship is equally important.

The new relationship should not be put to vote, but giving children the respect of open communication is key to development and progress toward a new relationship. Listening to their concerns and or frustrations is a good way for them to learn how to express themselves and not bottle-up emotions.

Resources That Will Help

There are many resources at your disposal to assist children coping with a separation or divorce. Some very basic routes to help children is telling other people close to them, such as babysitters, teachers, or daycare providers about the divorce. These individuals play an important part of your child’s life and development. They can help alleviate some stress and or frustrations felt away from home.

If your budget allows, seeking counseling for children can help them cope and avoid the emotional symptoms of divorce.

Symptoms typically manifest in regression of learned or physical skills, poor eating habits like a loss of appetite, seclusion, or disciplinary issues in school. Events of severe outbursts or crying, physical ailments such as chronic illness or headaches, or the inability to accept the current situation are also symptoms of divorce on a child.

Recognize Emotions 

Finding support from others in similar circumstances often helps people cope with the emotions. Just conversing (or complaining) with others about the circumstances of their divorce is often a great strategy to help you deal the emotions of a divorce.

Get Active

There are volumes of science behind the benefits of exercise and physical activity to relieve and manage stress. Just a twenty-minute walk will help lessen anger, tension, and emotions. Physical activity releases natural chemicals, called endorphins, into the body helping to improve mood. If you are really ambitious, and can carve out the time, join a fitness class. This will get you active and connecting with new people.

Focus on Controllable Outcomes

Every divorce case has factors outside your control and your attorney’s control. If you find yourself in these situations, focus on something positive. Focusing on issues outside of your control will only further frustrate you and make the divorce more tenuous. Give your attention to the factors you can control and work towards a win in those areas.

Be Careful and Thorough 

A divorce is complex and at times the feeling of acting quickly may feel appropriate, but remember decisions made today will affect a lifetime. Think through a decision examine the details and be careful in the decision process. Attorneys are a great at giving a non-emotional, logic driven answer. Leverage the attorney; it is worth the time, they are happy to provide answers.

Live 

Another great way to get passed the emotions and disarray of a divorce is investing in a hobby. Some ideas: join a book club, join softball or kickball team, join a massage therapy studio, take cooking classes, or volunteer in the local community.

Stay Future Focused 

Learn from the experience and think about how to leverage the experience in the future. What can be learned, what can be avoided, what can be expressed differently, what can be used to have a better future. Don’t wait for the future to come, carve a path and make a future you always wanted.

How to Make Divorce Easier

There are times when you just want to scream at the top of your lungs until all the air in your lungs is expelled, call your spouse an expletive and give them the one finger salute. This may show your anger and truly show the soon to be ex your true feelings, but if want an easier divorce a change in tactics is required.

Take the High Road

We coach clients to take the high road. This is not as emotionally or immediately satisfying, but it is a guaranteed way to make your divorce easier.

  • Switch nights with your spouse they ask and you are not busy. Do it pleasantly without giving them a hard time.
  • Be nice when they drop off the kids. Say hi. Ask about their job.
  • Talk good about your spouse to your children. This will serve you if a guardian at litem gets involved with the case.
  • Stay positive even when others speak negatively about your spouse for your benefit. Hate sessions only bread discontentment and more anger. Talk about something interesting or current like a movie star.
  • Say, “I’m sorry.” If you do something that was wrong tell your spouse your sorry.
  • When your soon to be ex starts dating, say NOTHING. Just ignore the event and move on publically. It will only turn to fighting if it is discussed, making it harder to bare.
  • When your spouse gets a new job or promotions wish them luck. It is a good thing for your children.
  • When property division occurs spouses will typically do petty things to annoy the other. For instances if your ex writes a check to you slightly lower than what is owed be constructive and polite. Ensure to document all the instances if the issue persists.
  • Do NOT fight back. If your spouse says or acts mean leave it alone, especially if it is over something small. It will only make him mad you did not react and you will feel better.

These items can be easy to read and consider, but hard in the moment. Try the string trick, tie a string around your finger and when the time comes take the high road. Your divorce will be easier and you will benefit in the long run.

Dealing with Divorce During the Holiday Season

Regardless of marital status, the holidays are stressful. We eat too much, drive a ton, party too much, sleep just enough, and end the holiday season with credit card debt and deflated bank accounts.

This over-done holiday experience ends with a stressed out Christmas Scrooge.

When a family goes through a divorce or separation not only is the stress heightened, but there is a bit of sadness until the situation is normalized. Both, children and parents, spend the holidays having fun, creating new memories, and talking about the future.

When you witness other couples and parents enjoying the holidays it can become disheartening and depressing when thinking about what things used to be.

Parents going through the holidays after a divorce often try to help children get passed the sadness by spoiling the kids. This is especially true of non-custodial parent, who try to make up the lost time with more gifts.

This pushes the stress of the holidays through the roof, as expectations are unachievable.

These thoughts will pass your mind as the holidays approach each year.

Bottom Line

Managing expectations, planning where you and your children will be, and working with your ex spouse to avoid creating a spoiled child will help everyone enjoy the holidays, not just survive the holidays.

Cost of a Divorce

In the United States, the average cost of a divorce is about $15,000, or $7,500 per person. There are alternatives to the large price tag, such as limited scope representation and attorney coaching. Both of these options are cheaper methods of getting a divorce, while getting counsel without the large price tag.

Reasons for Divorce

In states where at-fault divorces are granted the typical reasons accepted by the court are as follows:

  • Insanity
  • Domestic Violence
  • Abandonment
  • Imprisonment
  • Alcohol or Drug Abuse
  • Misconduct by Spouse
  • Adultery

In a survey conducted by Tracy Achen she discovered a slightly different set of reasons. Below is what she found.

  • Infidelity – 26.7%
  • Grown Apart – 20.2%
  • Incompatibility – 17.1%
  • Domestic Violence – 8.6%
  • Financial Stress – 6.1%
  • Children – 1.0%
  • Other – 20.3%

Divorce Trends

Divorce has radically changed since we started keeping better records in 1858 when 24 divorces were filed in the entire country. Today more than 1,000,000 divorces are filed every year in the United States.

These are alarming numbers and may discourage people from marriage, particularly young people. When looking at well-being scores, individuals who are married are still the happiest people. See the chart below.

  • Married – 68.8
  • Single – 65.0
  • Windowed – 63.5
  • Domestic Partner – 63.3
  • Divorced – 59.7
  • Separated – 55.9

When digging into the numbers what is clear, a happy marriage is correlated to age and maturity at the time of marriage. Individuals who wait to get married after the age of 30 only get divorced 8.5% of the time compared to those who get married before age 24 who get divorced 38.8% of the time.

Another alarming statistic that goes against modern relationship norms is the rate of divorce of those who live together prior to marriage. According to dozens of studies dating from the 1970s to 2000s men and women who live together are 33 percent more likely to get a divorce than couples who move in together after the wedding.

Divorce is generational. Children of divorce have a higher risk of divorce when they get married. In a study conducted by the Journal of Marriage and the Family concluded when one party of a newly wed couple was from a divorced home the newly wed couple’s risk of divorce increased to 59 percent. If both spouses come from divorced homes the risk of divorce is 189 percent and nearly guaranteed to fail.

What can be learned here are many individuals make decisions without thinking about the future. People who are married are happier and find greater well-being than unmarried individuals. The path to a successful marriage is waiting to get married until full maturity, after age 30, and waiting to move in together, even though this sounds counter intuitive. Lastly, it is important to remember what divorce does to a child’s future risk of going through a divorce.

Divorce Statistics

What is the true value of expert testimony?

- from Michelle N. in Shorewood, WI

Question Details:

I am just beginning a divorce. My husband owns, and has partnerships in, several real estate companies. I am a homemaker. I have looked over his statements and have come up with a fair value for our marital estate, but he says he will bring in “expert” testimony that will show that my estimates are too high. What is the true value of expert testimony when the records plainly show income and worth?

Family Law Attorney Response:

This is a very good divorce question, but it cannot be answered definitively without further detail.

Expert testimony most likely means testimony from a certified accountant. This accountant will introduce variables such as future income taxes, minority partnerships, and fluctuations in the real estate market, or, market trends. Without contradictory testimony from an expert source it may be difficult to prove your estimates unless you have an accounting background. Even then, you would need testimony from an outside, independent source.

This is demonstrated in the case of Liddle v. Liddle 140 Wis. 2d 132, 410 N.W.2d 196 (Ct. App. 1987). The wife appealed the courts decision on similar merits. However, the court of appeals affirmed the decision based on a lack of contradictory testimony.

This is only an example, however. My advice is to seek legal counsel immediately before proceeding.

Dan Exner, J.D.- Dan Exner J.D.
Family Law Attorney

Can a family court commissioner force the separation of my family when no prior history of violence exists?

- from Justin I. in Wauwatosa, WI

Question Details:

My wife and I have been married for 13 years. We have two kids, ages 7 and 4. We decided to file a divorce. During the divorce, the family court commissioner entered a temporary order that physical custody of our kids and exclusive possession of our home should alternate every month. There has never been an issue of violence in the family and there has never been actual or threatened violence. I want to appeal this decision but I’m not sure if it is worth the money and time. What should I do?

Family Law Attorney Response:

First of all, it’s good to realize how much money and time an appellate court trial takes, especially for divorces. While we all want something, it is better to fiscally look at the options and decide if the risk is worth the reward.

Now looking at your question, it may be better to not appeal. In the case of Sandy v. Sandy, 106 Wis.2d 230, 316 N.W.2d 164 (Ct. App. 1982), the father decided to appeal the family court commissioner’s order based on no history of violence. The court of appeals ruled against him and affirmed the trial court judgment. The court said even if there is no actual or threatened violence between the parties of the divorce, Wisconsin law gives judges and family court commissioners the authority to order a spouse to vacate the home temporarily during a divorce action if the court determines it is in the best interest of a child or children.

I hope this answers your question. If not, give me a call and we can further discuss this.

Trisha Festerling, J.D.- Trisha Festerling, J.D.
Family Law Attorney

Can I change my mind about a divorce settlement before it is final?

- from Betty F. in North Prairie, WI

Question Details:

A few years ago, my husband and I decided to get a divorce. We went through most of the process, and I had agreed on a cash settlement instead of dividing the property. We ended up reconciling and did not go through with the divorce. Now, we have agreed that a divorce is in both of our best interests. He still has the document that I signed that stated I agree to a cash settlement instead of property, but I changed my mind. Is that document still valid? Will it be upheld?

Family Law Attorney Response:

I would need a little more detail as to the conditions and details of the contract. If you signed an agreement a few years ago, during the initial divorce proceedings that were never finalized, then it may be understood that your intentions were to settle that specific case and not any forthcoming cases. This would also depend on the wording in the contract. Also, was the contract made before a judge, or witnessed, or was it notarized? More than likely, that contract will not be admissible in these proceedings.

In the case of Thorpe v. Thorpe, 108 Wis. 2d 189, 321 N.W.2d 237 (1982), a similar situation occurred. The wife, however, had received the settlement during the first proceeding, but the divorce was never made final and the couple reconciled. The wife had spent most of the awarded settlement prior to reconciliation. When the couple decided to finalize their divorce sometime later, it was ultimately decided that the wife was entitled to the division of the marital property. This is one scenario. The outcome of your case would depend on the details of your contract.

My advice would be to seek the legal representation of a family law attorney right away to go over the details, and begin a beneficial course of action.

Dan Exner, J.D.- Dan Exner J.D.
Family Law Attorney

Can I appeal a judge's decision on attorney's fees?

- from Dorothy V. in Mukwonago, WI

Question Details:

My husband and I went through a divorce recently. After looking through all the required assets for the property division, the court decided to split the property 50-50. While I am not arguing the property division, I was curious if I can appeal the trial court’s decision regarding attorney’s fees. I was hoping my ex-husband would cover my attorney’s fees as he is better off financially.

Family Law Attorney Response:

Thank you for your question. After reviewing the details and looking over cases, it seems it would be difficult to appeal a trial court’s decision regarding divorce attorney’s fees.

In Kastelic v. Kastelic 119 Wis.2d 280, 350 N.W.2d 714 (Ct. App. 1984), a wife attempted to appeal a trial court’s decision regarding attorney’s fees. The court of appeals agreed with the trial court regarding the fees and also discussed how it is the duty of the trial court judge to assign these fees. Generally, assignments regarding attorney’s fees will only be altered if there is a clear abuse of discretion. Before a trial judge can even make a decision regarding attorney’s fees, he or she must consider the ability of the spouse ordered to pay and the reasonableness in making that spouse pay.

I hope this answers your question. Give me a call if there is any more details that could show there was an abuse of discretion.

Trisha Festerling, J.D.- Trisha Festerling, J.D.
Family Law Attorney

Can the court of appeals assign attorney's fees?

- from Ryan U. in Sussex, WI

Question Details:

During my divorce, I was hoping to have my wife pay my attorney’s fees. The trial court did not award attorney’s fees. Can I appeal?

Family Law Attorney Response:

Thank you for the question. Attorney’s fees for divorce are generally to the discretion of a trial court, and if the trial court judge decides against awarding attorney’s fees, the appellate court tends to let the trial court’s decision stand. However it is important to know if the court that awards attorney’s fees on appeal is the trial court or court of appeals.

In Hengel v. Hengel 120 Wis.2d 522, 355 N.W.2d 846 (Ct. App. 1984), a wife appealed a ruling on attorney’s fees and the trial court then awarded fees, however the court of appeals overruled this, saying a trial court does not have the authority to go back and change the original ruling on attorney’s fees, as it changes the subject matter jurisdiction.

If you have any more questions regarding this or any other matters involving family law, give me a call.

Trisha Festerling, J.D.- Trisha Festerling, J.D.
Family Law Attorney

Can I continue to represent my mother as guardian after she passes away?

- from Susan Q. in West Muskego, WI

Question Details:

My mother and father are getting a divorce after 30 years. My mother has been diagnosed with terminal cancer, and she can no longer proceed in the hearings. She has appointed me as her guardian and agent to represent her interests during the proceedings. However, she is not expected to make it through till the end. If she passes away during the court proceedings, can I continue representing her interests?

Family Law Attorney Response:

There are several factors involved here that the court will take into consideration. Although the primary factor is Section 880.34(1), which states that an individual may act as an agent or representative of the incompetent during the life of the incompetent.

This is demonstrated during the case of Pettygrove v. Pettygrove 132 Wis. 2d 456, 393 N.W.2d 116 (Ct. App. 1986). In this case the daughter was appointed guardian of her dying father, who did in fact pass away before the judgment of divorce was final. The wife of the deceased requested that the divorce judgment be vacated, and the court granted her request. The daughter appealed and the court of appeals affirmed.

I would advise you to contact a family law attorney right away to discuss the details of your mother’s divorce, and to see if further arrangements can be made.

Dan Exner, J.D.- Dan Exner J.D.
Family Law Attorney

Does the court have to honor our agreement?

- from Walter L. in Newburg, WI

Question Details:

When my wife and I divorced, the court awarded the joint custody we had both agreed to. I retained physical custody. Child support was not sought or awarded. About a year later, one of our children wanted to live with her mother, so I let it happen. Now, my wife says she is taking me to court for formal custody and child support despite me wanting her back. Can she do that? Doesn’t the court have to honor our agreement?

Family Law Attorney Response:

She absolutely can do that, unfortunately for your agreement. And no, the court does not have to honor divorce agreements made by you and your wife.

This is seen in the case of Abel v. Johnson 135 Wis. 2d 219, 400 N.W.2d 22 (Ct. App. 1986) (Overruled in part by Herrell v. Herrell 144 Wis. 2d 479, 424 N.W.2d 403 (1988)). In this case, the court transferred custody to the mother and granted her child support. This is due to the fact that the court does not have to honor agreements between two parties. The court must only ensure that the current arrangement is in the child’s best interest.

My advice is to contact a lawyer, discuss the details of your case, and bring legal representation with you to court.

Dan Exner, J.D.- Dan Exner J.D.
Family Law Attorney

Can I have a divorce judgment vacated if I was not served in time?

- from Timothy S. in Fox Point, WI

Question Details:

My wife and I have been separated for almost a year. I recently received notice that we are getting a divorce and she informed me that basically she is getting a larger share of our joint finances and property. She claims that she had me served notice at the last location she knew of, which is untrue. She knew where I was residing at the time and I believe she purposefully had the sheriff serve them at the wrong location. She then published a summons in the newspaper, which I also never saw. We are now days away from the divorce and final judgment being handed down. Can I have the divorce judgment vacated if I did not receive notice in time?

Family Law Attorney Response:

This is a difficult question to answer for divorce cases because it really could go either way. If somehow you were able to prove that she had you served at the wrong location purposefully, you may have a case. You would have to demonstrate to the court that she did not exercise reasonable diligence in attempting to affect personal service.

In the case of Emery v. Emery 124 Wis. 2d 613, 369 N.W.2d 728 (1985), the husband attempted to have the judgment vacated under similar circumstances. The trial court denied the motion. He appealed, and the court of appeals reversed the trial court’s decision. The wife petitioned the supreme court for review, and they reversed the decision of the appeals court, reinstating the trial court’s decision. In part, this decision was based on the husband failing to establish sufficient evidence that the wife did not exercise reasonable diligence. However, if this can be achieved, you stand a significant chance of the judgment being vacated.

My advice is to contact a family law attorney right away to discuss the details, and plan the best course in which to proceed.

Dan Exner, J.D.- Dan Exner J.D.
Family Law Attorney

How do I file for a divorce if my wife left the state?

- from Earl I. in Farmington, WI

Question Details:

My wife fled the state of Wisconsin after she found out I wanted a divorce. I still would like to file the divorce but I know Wisconsin does not have jurisdiction when she is not in the state. I found out she is now a resident of Michigan. We have two children together and both want to see their mother. Is it possible to still go through with the divorce?

Family Law Attorney Response:

You are right when you say you need your wife back in the state to file divorce, however you cannot force your wife to come back to the state in order to start the divorce. However, if your wife decides she wants to continue to see your children, then the divorce could happen.

In McCarthy v. McCarthy, 146 Wis.2d 510, 431 N.W.2d 706 (Ct. App. 1988), it was discussed that Wisconsin courts may exercise jurisdiction over a nonresident defendant if the defendant is engaged in substantial and not isolated activities’ within Wisconsin. The court’s inquiry into the nature of the defendant’s activities must be made in light of due process.

If your wife comes to Wisconsin on a regular basis to see your children, give me a call so we can set up the divorce process.

Dan Exner, J.D.- Dan Exner J.D.
Family Law Attorney

How do the courts determine if a divorce settlement is fair?

- from Louise L. in South Milwaukee, WI

Question Details:

My attorney said my divorce settlement ended fairly, but I feel my husband is better off than I am. How do the courts determine whether a modification of divorce settlement is proper?

Family Law Attorney Response:

Thank you for your question. There are two different tests set and discussed in Young v Young, 124 Wis.2d 306, 369 N.W.2d 178 (Ct. App. 1985) revolving the modification of a divorce settlement.

The first test revolves around where the modification rests on factual determination. The test is whether that determination is contrary to the great weight of the evidence. The second test revolves around where modification rests on an exercise of discretion. The test is if there was an abuse of discretion. Regardless of what test is used, the burden of proof rests on the party alleging the error.

If you have any more questions or want to set up a consultation, give me a call.

Dan Exner, J.D.- Dan Exner J.D.
Family Law Attorney

What is the best way to give proper notice?

- from Marilyn G. in West Allis, WI

Question Details:

I am looking to file a divorce against my husband. He recently has been on the move and has no permanent address. I know in order for a divorce to occur, proper notice of a court date must be given. He told me he plans to come back to Wisconsin for some bit of time, however he did not say if he would be seeing me or not. How should I attempt to give him notice of the hearing?

Family Law Attorney Response:

It is important to give someone proper notice of a legal action. If proper notice is not applied, a judge cannot have proper personal jurisdiction over a party. The best way to provide proper notice is in person. You can pay a sheriff to notify someone through a summons.

However, if you cannot give someone notice in person because you cannot reach them but you are aware of them being within a certain state or county, you can publish the summons in a newspaper that is easily accessible.

In the case of Emery v. Emery, 124 Wis.2d 613, 369 N.W.2d 728 (1985), a judge believed that if someone tells another he plans to come back to Wisconsin, and the moving around is only temporarily, it can be conceived posting a summons in a county publication is considered enough notice for personal jurisdiction.

I hope this answers your question, if you have any more, feel free to call.

Dan Exner, J.D.- Dan Exner J.D.
Family Law Attorney

Am I still responsible for support during separation?

- from Steve U. in Genesee, WI

Question Details:

My wife and I just separated after 10 years of marriage. I am using the guest house in the back of the main house until I find another place, so I am technically still at the house. The separation is not amicable. I need my money to find another place, but she is telling me that I still need to pay for the house, the kids, the bills, everything. Isn’t she responsible for all of that since she doesn’t want to move out? I haven’t been ordered to pay anything. Am I still responsible for supporting everyone even during separation?

Family Law Attorney Response:

First of all, I would like to say that I understand your frustration. I do not know the circumstances for your separation, but I do know that you are having a very tough time dealing with the emotional distress that comes with this situation.

There are several things that you should consider here; your children still need to be supported whether it is ordered, or not. They are not a part of this, and should be spared getting drawn into it any cost. You are separating from your wife, not your children. Another aspect, is the name(s) on the mortgage. If your name is on it, you are still responsible for it. The same thing goes for your bills.

In the case of Drier v. Drier, 119 Wis. 2d 312, 351 N.W.2d 745 (Ct. App. 1984), the husband was ordered to deposit his weekly paycheck into the couple’s joint checking account. He was also ordered to continue responsibility for all of the families pre-existing debts. This was all during the separation, while still awaiting a final order.

My advice to you is to talk to a lawyer who is experienced in family law. Tell him/her all of the details. You will get accurate advice, guidance, and representation during the trial and hearings.

Dan Exner, J.D.- Dan Exner J.D.
Family Law Attorney

Can I get a divorce if I don't know where my spouse lives?

Question Details:

My wife and I split years ago. At the time, neither of us wanted to go through the divorce court hassle, so I guess that means, legally, we’re still married. Problem is, now I want to get remarried but have no idea where my wife is. Do I still need to get a divorce? How?

Family Law Attorney Response:

More details are necessary for me to give a definitive answer regarding this question. However, the court has previous experiences with custody situations like yours.

In the case of Colby v. Colby, 102 Wis. 2d 198, 306 N.W.2d 57 (1981), the Supreme Court of Arizona ruled state courts have the ability to look at other decisions from different states when the case involved is related to both. The current state has the ability and discretion to rely on the decision from the past state if it seems a reasonable judge would come to that conclusion.

The details further needed regard your current filing and any new information since your last filing for divorce, as these are critical pieces to finding an answer. Give me a call so we can talk all of this over.

Jeff Hughes, J.D.- Jeff Hughes, J.D.
Family Law Attorney

If my husband is in prison, is that enough to divorce him?

 – from Nancy X. in Slinger, WI

Question Details:

I would like to file for a divorce with my husband who is currently serving time in prison. He doesn’t want to go through with the divorce but I have had enough. We don’t have any children and we don’t own a house or any vehicles together. I would think that this should be a pretty swift divorce process since we don’t have any shared major expenses. Can I go through with the divorce while he is still in prison?

Family Law Attorney Response:

I’m sorry to hear things didn’t work out. But to answer your question, you absolutely can go through with the divorce while he is in prison. In fact, with him being in prison it may actually make the process move faster than it normally would. It will be easier to serve him the papers and since Wisconsin is a no-fault case, you don’t have to worry about establishing a fault or cause for divorce.

I should note that although it seems like a rather cut and dry divorce case, I would not advise doing it on your own. You should still contact a Wisconsin divorce lawyer so that your rights are protected and receive all that you are entitled to. The judgment of a divorce trial has a huge impact on your future and I would not advise trying to do it without proper representation.

I wish you the best of luck to you with this matter. If you have any other questions, let me know. I would be happy to help you out.

Jeff Hughes, J.D.- Jeff Hughes, J.D.
Family Law Attorney

If I decide to remarry, how long after divorce can I?

 – from Mark C. in Addison, WI

Question Details:

After a very long divorce process – what seemed like forever – I have officially been divorced for 4 months. I’m not quite ready to take the marriage leap yet but I was wondering if there’s a certain amount of time that I have to wait before I do remarry?

Family Law Attorney Response:

Hi there. Thanks so much for visiting the site and asking quite the common question. I’m sorry to hear that your divorce lasted so long and hope that it wasn’t too trying on you and your family. Hopefully now that it’s over, things are much better for you.

Now to your question – the answer is yes, there is absolutely a time period that you have to wait after a divorce before remarrying. That time period is six (6) months from the date of your divorce and it is put in place with some pretty good intentions. This waiting period is in place – in case of reconciliation during that time period. Sometimes after a divorce has been finalized, spouses realize that they made a mistake and no longer wish to be divorced.

The waiting period makes things a lot easier if a change of heart were to occur. In instances like this – it is possible for the divorced couple to go back to the judge and have the divorce vacated.

Good luck with everything going forward, and if you need additional advice contact us via phone or email.

Jeff Hughes, J.D.- Jeff Hughes, J.D.
Family Law Attorney

How can I be officially divorced without signing anything?

 – from George D. in Barton, WI

Question Details:

My ex called me the other day to inform me that the divorce was completed. I don’t get how it can be official since I never saw any documents and certainly didn’t sign any paperwork. Doesn’t there need to be a court date? I haven’t been told about anything of that nature. I looked online at the court records and sure enough, it shows us as being divorced. How could this happen and what do I do? My “ex” wife hasn’t told me anything. Is there anything that can still be done?

Family Law Attorney Response:

I’m very sorry to hear that your ex wife has made this so difficult for you. But let me do my best to help you out.

Without knowing more, my best guess is that the divorce was granted by default, which occurs when the opposing party doesn’t show up for court. But as you stated, you were never served any notice of the court hearing. The first thing you need to do is contact a Milwaukee divorce lawyer and explain all the facts. There is a very limited time to have a default case set aside, so it is important you don’t delay. Most likely you’ll need to prove that you were not properly served in advance of the court date. It can be tricky proving such a thing, but an experienced divorce lawyer will be your best asset.

I hope this helps make this confusing situation a little more manageable. Give me a call if we can help you further.

Jeff Hughes, J.D.- Jeff Hughes, J.D.
Family Law Attorney

I was blindsided by divorce papers. How do I respond?

 – from Sandra H. in Waukesha, WI

Question Details:

I was rather blindsided with divorce papers. How do I respond?

Family Law Attorney Response:

First off, I’m sorry that you’re going through this. It must be difficult for you and your family. Thank you for allowing us the first chance to soothe some of the stress and get you a little information about the divorce process in Wisconsin. First and foremost, if you have been blindsided with divorce papers, it is good to note that Wisconsin is a “no-fault” divorce state. This means that as long as one spouse testifies that the marriage has dissolved beyond repair, that the divorce will most likely be granted. So, in most cases, even if one spouse doesn’t want the divorce, the court will usually grant the divorce.

Next – it is vital that you respond with a written response and counterclaim no later than 20 days from the date you received the divorce papers. To do this, your response should be sent to the court and your spouse’s attorney. You could also send a copy to your spouse but it is usually better to send/fax it their attorney. The reason it’s important that you ensure that this document was received, if the court were not to get it – simply stated, a default judgment would be filed against you.

You can visit the Wisconsin Court System website to find more answers and form that will assist you with the beginning stages of the divorce process.

That should help you respond to a divorce. But make sure that you act in a timely fashion. Be organized and keep copies of all of your paperwork. But also consider hiring a divorce attorney. You don’t want to go through the divorce process alone. It can be difficult enough going through the emotional stress. If you’re uneducated on certain aspects involving child or spousal support, or asset division – could result in you not getting treated fairly or keeping your fair share.

We’re here to help. Fill out the form or give us a call to schedule a free consultation. Best of luck to you.

Jeff Hughes, J.D.- Jeff Hughes, J.D.
Family Law Attorney

Do I need to have a reason to get a divorce?

 – from Michelle Q. in Mukwonago, WI

Question Details:

Things aren’t going well in our marriage. Can we just call it quits, or does one of us have to prove the other party violated the marriage agreement before we can get a divorce?

Family Law Attorney Response:

This is a good question as each state in America handles this differently.

Wisconsin is a no-fault divorce state, which means neither party needs to prove the other party failed to live up to the marriage agreement. As such, a divorce will be granted as long as both parties agree the marriage is irrevocably broken.

I hope this clears up your question and helps you move forward with your research process. Give us a call if we can help you further.

Dan Exner, J.D.- Dan Exner J.D.
Family Law Attorney

Do the court records from a divorce become public record?

- from Kevin T. in Delafield, WI

Question Details:

My wife and I have been married for nearly two decades. Within a few years of marriage we knew the marriage was bad, and we both started having affairs. Last year we finally decided to get a divorce. The proceedings were nasty and ugly. Fortunately we finally settled our case. This, however, did not happen until all the dirt about our affairs was spread all over the courthouse and all over town.

Additionally what also came out during the proceedings , was our private financial issues.  All these documents and records are included in the various court filings.

The only thing we finally agreed on is our want to get the records of our divorce case sealed. This process seems however to be very difficult. Why is it two adults cannot agree to make their dirt and finances off-limits to public record?

Family Law Attorney Response:

The federal courts of the United States as well as all of the state courts are open to public record. The First Amendment in the U.S. Bill of Rights as well as the various state constitutions give the public the right to read court records.

However individual states have addressed this issue by state legislation or court rule. Now, in certain states a judge can conduct a balancing test to protect both the public’s right to access court records as well as the rights of individuals’ privacy concerns.

What this process does is seals only those divorce documents containing truly private or proprietary information.

The following factors are considered by a judge when sealing documents in matrimonial actions

  • whether a lawsuit has significant public significance
  • whether asserted harm comes to the litigants should there be no disclosure
  • whether there are alternate methods of providing the same privacy
  • whether the public interest is served by sealing the documents
  • whether the documents contain information that could expose private financial issues and cause harm to the parties
  • whether the information in the court file adversely affects the interests of children

When elements exist, motions can be made to seal certain documents during the proceedings.

If you need help or have further questions please feel free to give us a call or fill out our contact us form.

Jeff Hughes, J.D.- Jeff Hughes, J.D.
Family Law Attorney

Can I make my spouse move out after divorce papers are served?

 – from Gary Y. in Wales, WI

Question Details:

I just served my spouse divorce papers. The relation is not the most amicable and I want to know if I can force him to leave the house. He does not want to leave, but I can not stand the situation currently. Is there anything special I need to make sure this happens? 

Family Law Attorney Response:

This is an unfortunate situation. The common legal way to force your spouse out of your home is to file an order to show cause. In this order you will be requesting for possession of the house during your dissolution of marriage.

To achieve this order your will need to have a good reason (frustration with the situation does not count). One of the most commonly accepted orders the court accepts is physical abuse to either you or children.

Once a good reason is established your spouse must be served with the order. If it cannot be proven the spouse was properly served the court will not hear the matter. At which time it can be proven your spouse was properly served there will be a hearing where the judge will either grant or deny your request.

This is a tough process to complete successfully by yourself. It would be most efficient to contact a family law lawyer to help you with this matter. To keep costs down you can request a fixed fee quote for the paper work and court appearance. Please let us know if we can help you further with this matter.

Jeff Hughes, J.D.- Jeff Hughes, J.D.
Family Law Attorney

What is the first step to get a divorce?

 – from Andrew R. in West Milwaukee, WI

Question Details:

I have been living apart from my wife since 2010. We now live in separate states and I want to get a divorce. Orignially when I left in 2010 it was a communicable separation.  We have no children and I do not want to spend a ton of money to restart my life. What is the first thing I need to do to get a divorce from my wife?

Family Law Attorney Response:

To directly answer your question, the first step is to check with your wife to ensure you have an agreement on all the issues relating to divorce. Below is a short list to get you thinking and started:

  • Distribution of Marital Property
  • Spousal Support & Maintenance
  • Asset Division (retirement benefits, pensions, stock portfolios, and 401Ks)

To keep the divorce inexpensive productive conversations between you and your wife should be conducted. If you can work out the separation of assets without mediation you will significantly reduce the amount of work a divorce lawyer will need to do for you.

If you are on talking terms and have discussed the separation agreement your first step will be to file a divorce petition with the family court in your jurisdiction. A divorce petition can be filed with, or without a lawyer this is up to you. If you are comfortable conducting the divorce without an attorney you will significantly reduce the cost of your divorce.

The risks associated with conducting a divorce without an attorney are dependant on your trust in your spouse. A divorce lawyer will ensure your best interests are always put first, saving you time and money in the future.

Best of luck to you. If you need further assistance please contact us or fill out our free case evaluation form.

Jeff Hughes, J.D.- Jeff Hughes, J.D.
Family Law Attorney

Who keeps the wedding ring in a divorce?

 – from Virginia S. in River West, WI

Question Details:

My husband and I have decided to file a no fault divorce. He is now requesting I give back to him all the jewelry he has given to me over the year as well as my wedding ring. I do not want anything from him except to keep the ring. How do gifts such as jewelry and wedding rings get handled when marital assets are divided?

Family Law Attorney Response:

This is a great question. We need to explore the difference between gifts and conditional gifts.

When two individuals are married as they receive gifts from others or give gifts to each other these assets and or property are gifts that belong to both you and your spouse.

The exceptions to this rule exist when a third party who gave the gift was explicit in saying the gift is for only one party. This also holds true when gifts are conditional gifts.

If you are working with a divorce lawyer they should explain a conditional gift is one that is not final until a condition is met. In the example of an engagement/wedding ring if  you got married the condition of the gift was met. If you did not get married you would not have met the condition of the gift and would need to return the wedding/engagement ring to the other person.

“Gifts” extend past traditional things. When one party deposits funds into a joint bank account the law will typically view the “joint account” as being owned by both spouses.

There are rebuttal presumptions allowing for exceptions. These bare the burden of proof that the asset was not intended to be jointly owned. However, if you get divorced, all assets will need to be split unless it can be proven some where never intended to be jointly owned.

Hope this helps clarify some things for you. Give us a call if we can help you further.

Jeff Hughes, J.D.- Jeff Hughes, J.D.
Family Law Attorney

What is the difference between no-fault and fault grounds for divorce?

 – from Raymond T. in Germantown, WI

Question Details:

I am in a situation that I can not live in anymore. I am going to file a petition for divorce, but I want to know what the difference is between fault and no-fault grounds for divorce. Are there advantages regarding child custody or property division. We live in Milwaukee, WI, not sure if the laws are different here, but I know have a legally recognized reason for filling for a divorce. Does it matter?

Family Law Attorney Response:

The difference between fault and no-fault grounds is dependant on the proof the petitioner must present to obtain a divorce decree.

With regard to the question about the advantages in property division, child custody, and child support the answer is basically there is no significant advantage.

Talking with an experienced divorce lawyer will help you understand why the least costly route to divorce is actually no-fault. There is no burden of proof placed on the petitioner of the divorce decree.

Jeff Hughes, J.D.- Jeff Hughes, J.D.
Family Law Attorney

Is there anything I can do to keep the costs of my divorce down?

 – from Dennis B. in Erin, WI

Question Details:

I’m going through a divorce and we do not have much. Other than our 3 children we have a savings with a few thousand and we each have a 401k through work. We live in Milwaukee county and are trying to avoid extra costs if possible. I am keeping a detailed list of all finances and documents relating to the divorce so keep a handle on the costs. What are my options to keep the costs of divorce down?

Family Law Attorney Response:

Divorce can be costly especially when a couple is not communicating. Where a divorce gets very expensive is when the two sides can not agree on property division and child custody. To avoid high costs in a divorce it is best to try to be reasonable and treat your spouse with respect and understanding. If you can get on good talking terms and communicate with your spouse the costs of divorce will significantly decrease.

Overall a good experienced divorce lawyer will help you think objectively about your divorce settlement to avoid high costs. Some battles are not worth the costs of winning and a good attorney will inform you when you may spend $500 to fight for something that will not mean much to you in the end.

Jeff Hughes, J.D.- Jeff Hughes, J.D.
Family Law Attorney

Is divorce the right choice or should we try a legal separation?

 – from Carolyn F. in Wayne, WI

Question Details:

Our marriage is not going well. My husband and I have talked about divorce, but we are unsure at this point. We live in Milwaukee, WI and we are unsure of the consequences for either a divorce or legal separation. Money is very tight for both of us right now, and divorce seems like a more expensive option. Are we missing something? 

Family Law Attorney Response:

Unfortunately there is little difference between a legal separation and divorce from the perspective of litigation. The same paper work and forms are required in both actions, and there is no difference in the filing fee.

If you contact a good divorce lawyer they can explain the tax advantages of a legal separation compared to a divorce. Also,medical benefits from an employers are typically still available to couples who are legal separated, but not divorced.

In all the cost of legal separation compared to a divorce are basically the same. Legal separation has tax and benefits advantages for the couple. A legal separation can be converted to a divorce in the future, but this will cost extra money.

Jeff Hughes, J.D.- Jeff Hughes, J.D.
Family Law Attorney

Articles


Article


Understand How to Divide Property & Assets

Learn the Wisconsin laws and requirements to when dividing assets during a divorce proceeding.

Read Now >


 

Learn how Child Custody is Determined

Review child custody laws and how to approach the topics of legal custody, primary placement and visitation.

Read Now >