Spousal Abandonment Laws in Wisconsin

In Wisconsin, an abandoned spouse does not need to prove abandonment has occurred in order to file for divorce. While abandonment does not typically have any influence over property or finance division, it may have an influence on child custody and placement if the spouse cannot be found.

What Is Spousal Abandonment?

Spousal abandonment, also known as desertion, is the intentional abandonment of a spouse, with no justification or explanation, in order to end a marriage. Typically, the spouse that remains did not consent to the separation. Abandonment isn't typically an issue that would have any ramifications for divorce proceedings in Wisconsin. 

There is a common misconception that spousal abandonment means the person who left forfeits their rights to the family home or the children's custody, but this is not the case.  If the spouse left or cannot be found, this could certainly influence the judge's decisions regarding child custody and placement, but abandonment cannot be claimed in order to sway decision-making for division of property or finances.

Wisconsin is known as a no-fault divorce state, which means that the circumstances behind the divorce have no legal bearing on filing for divorce. All that is required is that either one or both spouses acknowledge that the marriage is irretrievably broken.

Grounds for Abandonment

The requirements for what qualifies as spousal abandonment can vary for many states. In general, spousal abandonment is determined by a specified amount of time that the spouse has been gone, an acknowledgment by the abandoned party that their spouse left the home without their agreement, and that the departure was not caused by the abandoned spouse.

Since Wisconsin is a no-fault divorce state, these circumstances rarely hold any legal relevance and do not play any role in the divorce.[1]

How Does Abandonment Affect Divorce in Wisconsin?

In Wisconsin, spousal abandonment could have an effect on the financial security of dual-income homes and can cause emotional distress for spouses, spousal abandonment does not affect the final outcome of a divorce. However, during any judgments for child custody and divorce, spousal abandonment could influence the decision of the court. Decisions regarding a child or children are based on what's in the best interest of the child.

Considerations

Spousal abandonment is a very nuanced subject as far as how it will affect a divorce proceeding. These situations are unique and require careful consideration on an individual basis. To best understand whether your case would benefit from claiming spousal abandonment, it is best to contact a family law attorney such as Sterling Law Offices.

How to 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, if possible. If you are unable to serve them there needs to be proof of attempts made and those attempts must be thorough. 

Divorce papers can be served by:

  • Admission of Service form signed by a spouse
  • Process server
  • Police officer
  • Sheriff's department
  • Friend
  • Relative

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 spouse.

Abandonment is not an effective way to avoid getting a divorce because, as mentioned above, Wisconsin is a no-fault divorce state, and grounds for divorce are only that one party says the marriage is irretrievably broken.

Am I Allowed to Refuse Being Served?

As discussed in Vause v. Vause, a person cannot refuse to accept service and then object that the service and notice were incomplete. Once served, a person must decide whether to appear in court or not, but either way, the court will know they were served.[2]

How Does Abandonment Affect Child Custody and Visitation?

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. If the parent is aware of the location and contact information of the child but fails to visit or attempt any communication with the child for six months or longer, then the other party has grounds to file for a termination of parental rights.

Wisconsin treats this course of action very seriously and is only considered if all efforts are made to ensure that the parent whose rights could be terminated is given every fair opportunity to get in touch with the child.

In order to justify the termination of parental rights, the parent who wishes to terminate their spouse's parental rights must show clear and convincing evidence that their spouse is unfit to be a parent. Only after this proof is provided will the courts consider what is in the best interest of the child and make the determination.

Moving Out of the House During Divorce

When filing for divorce, you have the option to ask for a temporary order. A temporary order helps to establish where each spouse will live throughout the divorce process, the division of bill paying, any spousal support payments, and visitation for any children involved.

Temporary orders are most useful when there is a disagreement between spouses on one of the above issues. Moving out of the house during your divorce will not be considered spousal abandonment, so it will not impact the final divorce judgment regarding property division or child custody and placement.

Frequently Asked Questions

What is considered abandonment in Wisconsin?

Abandonment is when a spouse leaves with the intent to end the marriage without justification. Justification for a divorce in Wisconsin is easy to prove because one person only has to believe the marriage is unable to be fixed. However, leaving a situation when children are present can look bad for the leaving spouse.

How long does a spouse have to be gone for abandonment?

For courts to consider a spouse as abandoning a child, the parent would have to not see or contact the child for at least 6 months. The spouse with the child cannot be forcing this to happen by not letting the spouse see or contact the child.

Can you get your spouse for abandonment?

In Wisconsin, an abandoned spouse does not need to prove an abandonment has occurred in order to file for divorce. Abandonment does not typically have any influence over property or finance division, so even if you can prove abandonment, it will have little to no effect. What it may have an influence on is the child custody and placement if the spouse cannot be found.

Can I divorce a missing spouse?

It is possible to divorce a spouse that is missing, so long as a judge is satisfied that the divorcing spouse made every effort to serve the missing spouse. There are various ways that an effort can be made such s contacting relatives and even serving by publication. 

How long do you have to be married to get half of everything in Wisconsin?

Wisconsin is a community property state. This means that all assets are subject to 50/50 division in the event of a divorce. In marriages that are shorter in length, the likelihood of spouses having separate property, which is not subject to division, is higher than in long-term marriages.

How does one avoid getting a divorce?

The only way to avoid getting a divorce is by being in a marriage that both parties want to be in. In Wisconsin, the only requirement for filing for divorce is an acknowledgment that the marriage is irreparably broken. In the unfortunate situation where one spouse wants a divorce and the other doesn't, this is considered a broken marriage.

If your spouse files for divorce, they have the option to go back on it or keep it pending if parties want to try therapy or couples counseling. There is no legal way to prevent divorce, but there are preventative measures that can be taken such as having healthy communication. 

Should adultery be illegal?

Adultery is a moral question, not a legal question. In Wisconsin, adultery is a felony, but no one has been prosecuted for it since 1990. The likelihood of being charged with adultery is extremely low.

Is it cheating to date while separated from your spouse?

The idea of cheating is a moral question that individuals have to decide for themselves. Couples who are legally separated or informally separated are married in the eyes of the law. This means that an extra-marital relationship could be seen as adultery, but no one has been charged with adultery in Wisconsin in over 30 years. One place this could actually be relevant is the idea of marital waste. Marital waste is where one spouse uses shared assets for their sole benefit, so if one party spends shared money on another relationship, that could be viewed as marital waste. 


References: Video by youtube.com/c/sterlinglawyers | 1. Divorce: Answering Your Legal Questions. State Bar of Wisconsin. (2013, September). | 2. In re Marriage of Vause v. Vause. 140 Wis.2d 157 (1987).


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