How Does Abandonment Affect a Divorce in Wisconsin?
Wisconsin is a no-fault divorce state, but one spouse's abandonment or desertion can have a big affect on child custody. The person who abandons the marriage will still be financially responsible for child support, spousal maintenance, and any property that gets divided. The parent that didn't abandon the marriage will be given “de facto” custody by default.
Serving Divorce Papers During Abandonment
After one spouse files a Summons and Petition for Divorce to a Wisconsin court, the divorce papers should be served to the other spouse within a 90-day period–or at least attempts be made regardless of whether that person can easily be found.
Divorce papers can be served by:
- Admission of Service form signed by a spouse
- Process server
- Police officer
- Sheriff's department
The other spouse must then file a Response and Counterclaim within 20 days after being served. However, should the spouse not be served or refuse to send a written response, Wisconsin courts can enter a default judgment against the missing party.
The spouse who has abandoned the other party may risk the court not siding on his or her behalf should this person have a change of heart later–even in the case of the mandatory 120-day waiting period before the divorce can be finalized.
Abandonment is not an effective way to avoid getting a divorce. Because Wisconsin is a no-fault divorce state, grant for a divorce can be approved simply from one party saying there is an irretrievable breakdown or inability to repair the marriage.
Child Custody Risks for Disappearing Spouse
If both parties have children, and although abandonment may not affect the way property and finances are decided upon, the abandoning party could risk child custody and placement if this person cannot be found.
Child placement is decided by a family law judge, who looks out for the best interests of the child. If one spouse has disappeared during the court proceedings, this may alarm a judge when it comes to scheduling child custody visits and legal custody.
A couple who has been separated for 12 months can convert that legal separation into a divorce, if both parties agree to it. Neither party can remarry while legally separated or anywhere in the world six months after the divorce.
In the event that one party has purposely abandoned the other for safety concerns, it is in the abandoning party's best interest to share this information if the separation or abandonment would affect parental rights.
Even as a no-fault state, if a significant other of the disappearing spouse is the cause or initiator of the abandonment, Wisconsin courts may take that into account for child placement rights as well.
Am I Allowed to Refuse Being Served?
As discussed in Vause v. Vause, 140 Wis.2d 157, 409 N.W.2d 412 (Ct. App. 1987), a person cannot refuse to accept service and then object that the service and notice was incomplete. Once served, a person must decide whether to appear in court or not, however he will not have the defense of not being served.
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