File for Divorce in Wisconsin
The first step in obtaining a Wisconsin divorce is deciding which process is right for you
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1. Do you meet the residency requirements?
How many months have you been a Wisconsin resident?
How many days have you lived in your filing county?
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:
2. Do you have legal grounds to file 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.
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.
3. How and where do you file for divorce in Wisconsin?
If you were able to answer yes to both of the residency requirement questions and you have legal grounds to file, 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.
Things You Should Know Before You Proceed
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.
When is 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.
- 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.
- 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. UDRA helped prevent this action and the case was dismissed in Illinois and resumed in Wisconsin.
Court Ordered Mediation and or Counseling
In Wisconsin, couples going through a divorce may be forced to go to counseling and or mediation. Required mediation 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.
Minimum 120 Day 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.
In many cases the waiting period is much longer due to the number of cases going through the family court system. We typically see a minimum of a six month waiting period in Milwaukee County, which typically has the quickest turnaround times. Washington County and Waukesha County is typically longer. It is best if you can resolve issues prior to your first court date to avoid waiting another four to six months to appear before the judge for the second time.
Know Your Basic Rights
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
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
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.
This type of custody is oversight on major decisions in a child’s life. Such topics include education, religion and healthcare.
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 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:
- 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.
Pick a Filing Method to Begin the Wisconsin Divorce Process
Option#1: Hire a Divorce Litigator
Protect the long-term “big picture.” Right now you may be focused on “winning” your case. In every divorce both sides must compromise, but a litigation attorney can ensure you get more of your “must haves.” A good deal is one where you get more of your “must-haves,” and you can live with the rest of the settlement.
Divorce paperwork feels like being buried alive. A novice will find it a challenge to find the right form for each situation. Worse, a wrong form or incorrect information makes you appear careless and or unreasonable. An attorney knows the forms, procedures and officials increasing the likelihood of your requests.
A litigation attorney can evaluate your circumstances and tell you, based on experience with the judge and similar fact patterns, the likely outcomes. Based on your fact pattern a litigator can develop a personalized strategy, a judge will accept, allowing your argument appear more legally acceptable than your spouses.
Option #2: Hire a Divorce Mediator
Unlike trial, a mediator can assist spouses toward compromises. Mediation is not a litigious process. Mediation grants flexibility in the time tables, helping avoiding the overworked family court system. This means less fast paced hoops to jump through and a more through discussion about the issues.
Most, if not all, separated spouses are looking to close this chapter of their life, not a long court process. A divorce mediator is a neutral third party facilitating spouses toward closure and compromise. Mediators understand the law and help find compromises much quicker than the litigious, procedural court system.
Courtrooms and court records are typically open public records, putting your personal life out on display. The mediation process is private and kept confidential. You discuss private matters in private and without concern for what others may hear. The only thing filed with the court is the settlement agreement.
Option #3: Hire a Collaborative Divorce Coach
Collaborative divorce emphasizes reaching an agreement without costly court battles. Another difference is who is involved. A collaborative divorce, is comprised of a team; attorneys, psychologists, financial specialists and child specialists. This eliminates some emotion and allows for long-term, rational resolutions.
A divorce is hard on everyone. A long drawn out divorce can be even more damaging. Collaborative divorce is less subject to lawyers and judges schedules, typically progressing much faster. A 2010 IACP study show 58% of collaborative divorces concluded in 8 months compared to 12-18 months for a traditional divorce.
Divorce is like a pig, with the best makeup it still stinks. The best divorce will cost everyone something, but a collaborative divorce does cost less. As much as half as divorce litigation and a quarter versus a divorce trial. The collaborative process decreases time spent searching for hidden income, assets and or property.
Option #4: Start the Pro-Se Divorce Process
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"I thought I would be charged an arm and a leg for legal services, but Dan was understanding and helped me address the paperwork and process effectively. When we appeared in court for the final hearing I felt confident I knew what I was doing and did not feel nearly as scared as before."Sally J.
"My husband and I were in a situation where neither of us really needed a lawyer to sort things out, so I decided to file pro se. I was concerned about making a mistake in the paperwork and delaying the final separation, so I called Sterling Law. Attorney Festerling agreed to work w/me on a "consult only" basis...She was kind and helpful, and our case went through without a hitch. The overall outlay was very reasonable. I was very happy with the help I received and felt confident going to the court date, knowing all our ducks were in a row."Beth E.