Legal Separation in Wisconsin

Legal separation in Wisconsin allows couples to remain married and maintain the financial advantages of marriage, such as health insurance, but live separate lives, whereas divorce completely dissolves the marriage. If the couple reconciles, the court can set aside the judgment of legal separation and revoke legal actions in place relating to property division, child support, and custody.

When deciding on whether or not you and your spouse should file for legal separation, it is important to be clear on what a legal separation really is, and what it entails for you and your spouse moving forward.

What is Legal Separation

Legal Separation is a legal process that is similar to divorce. For a legal separation, one spouse will file a formal request with the court. After the spouses decide on the issues of property division, child custody, and support, the court will issue a judgement of legal separation. 

When legally separated, the couple will remain officially married in the eyes of the law but have legal grounds to continue with their lives separately.

Grounds for Legal Separation

When considering the grounds for divorce and legal separation, it's important to note that while the wording is only slightly different, the implication is huge. To file for divorce, one or both of the spouses need to identify their marriage as “irretrievably broken”. 

In the case of legal separation, according to Wisconsin Statute 767.315[1], one or both spouses need only identify that their marriage has “broken”, meaning there is still a possibility of reconciliation.

If one spouse were to identify that their marriage was broken, and the other were to identify it to be irretrievably broken, the court would need to hear testimony from both spouses. Based on those testimonies, a decision would be made on which motion to grant.

This means the court would also have to consider the chances of reconciliation between spouses, which may involve a delay of the case for up to 60 days while the couple attends counseling. At the end of those 60 days, the court would reconvene to make the decision on which motion to grant.  

What Are the Benefits of Legal Separation?

Legal separation is typically the best choice for couples that acknowledge that their marriage is broken, but they still consider the possibility of reconciliation. It's possible to vacate a legal separation simply by filing a revocation of the judgement[2].

Keep Your Spouse's Health Insurance

Once a couple is divorced, many employer health plans will preclude the coverage of the employee's ex-spouse. However, in the event of a separation, many times the spouse will be able to maintain the employment benefits of the other spouse. (If you go this route ensure you check the fine print in the employment benefit package. Some employers treat a legal separation the same as a divorce, denying benefits).

Possible Social Security Benefits at Retirement

Marriages exceeding 10 years entitle a divorced spouse who did not remarry to social security benefits equal to the greater of the following (for the lower wage earning spouse):

  • Social security benefits based on their own work record
  • Fifty percent of the ex-spouse social security benefits based on their work record

Due to this law, many people considering divorce, married for seven or eight years, will separate until they cross the 10-year threshold.

IMPORTANT – The total social security benefit amount will be lower if you start receiving them prior to retirement. What this means practically, even though eligibility starts at 62, if your circumstances allow, delaying your benefits until beyond 62 will allow you to receive more each year you delay until age 70.

Maintain the Advantage of Filing Joint Taxes

Many couples save money by filing joint tax returns. If you are married and decide on separation instead of divorce, you can preserve that right. (In our experience this works in Wisconsin legally when there is not a maintenance support order and the relationship is still amicable between the two parties).

Retention of Military Benefits for Spouses

Under the Uniformed Services Former Spouse Protection Act[3], if you are a military spouse and have been married for 10 years you are eligible for the benefits.

 Maintain a Higher Standard of Living

Maintaining two separate households is very expensive, at least for most couples. Due to this fact some couples will divide their home into “his” and “her” areas. What this does, in all practicality, is allow the couple to maintain a certain lifestyle.

This decision may seem straightforward, but, in fact, pooling resources can be complicated. For instance when spousal support is involved, tax law indicates:

“Spouses cannot be members of the same household. Payments to your spouse while you are members of the same household are not spousal support if you are legally separated under a decree of divorce or separate maintenance. A home you formerly shared is considered one household, even if you physically separate yourselves in the home. You are not treated as members of the same household if one of you is preparing to leave the household and does leave no later than 1 month after the date of the payment.”  [4] 

In practical terms, spousal support is not tax deductible for the payer, if the separated spouse is living in the same household.

Abide by Religious Rules and Beliefs

Every couple that chooses a legal separation instead of a divorce is not making the decision solely on financial reasons. Some couples will remain separated for religious reasons to abide by the religious rules and customs they hold dear in their heart.

Wisconsin Legal Separation Forms

Determining which legal separation forms you will need is the first step to filing for legal separation. Spouses will need to file a summons in order to notify their spouse that an action for divorce or legal separation has been filed. They will also need to file a petition in order to commence the filing for divorce or legal separation.

The summons and petition must be chosen based on whether or not you are filing jointly, and whether or not there are minor children involved. These forms can be found on our Wisconsin divorce and legal separation forms page, or the Wisconsin county court[5] forms website.

Considerations

The decision to separate rather than divorce is not a simpler decision, only an alternative. No matter what reasons you have for wanting to separate, weigh your options carefully and consider consulting with a qualified divorce attorney first. There are important distinctions that need to be kept in mind when you move forward with legal separation.

Legal Separation vs. Divorce

Legal separation and divorce follow very similar processes. They both financially separate the two spouses, and have orders for custody, placement, and child support. However, while separation leaves the marriage intact, a divorce completely dissolves the legal relationship between the two spouses. 

In order to file for separation or divorce, one of the spouses is required to have been living in Wisconsin for 6 months or more. Also similar to divorce, there is a 120 day waiting period between the time the action is filed and the final hearing. 

Legal Separation vs. Physical Separation

Legal and physical separation are often confused. Legal separation is a process that goes through the Wisconsin court system that results in a change in the marital status of both spouses. This means that, for purposes of marital property, accruing debt, and filing taxes, the couple is no longer considered to be married. 

Physical separation does not change a couples legal status, it is simply the act of moving out of the family home or into separate parts of the family home. This can be done without filing with the court system, and can be handled privately if the spouses can come to an amicable agreement. Physical separation is usually a precursor to legal separation, but this is not always the case.

Legal Separation Judgment Reversal or Conversion

In the event that a legally separated couple reconciles and makes the decision to reverse the separation judgment, it is possible to reverse a legal separation and return to being a joint status couple. 

In order to reverse a legal separation, you and your spouse must both agree to the reversal, and obtain a copy of the original Order of Separation if you do not already have one. If the judge has not entered the order yet, then you and your spouse are not legally separated at this time and cannot file for a reversal of the order.

At this time, you or your attorney will draft a Motion to Vacate Order of Legal Separation. Before doing this, be sure to review your local jurisdictions' rules for motions. You and your spouse will also need to draft an Order to Vacate Order of Legal Separation. 

You will then file the Motion and Order to Vacate at the same court that you had originally filed for separation. A copy of the Order of Legal Separation will need to be included, and a filing fee will need to be paid before your motion will be accepted. 

On the other hand, if a couple decides that they want a divorce after being granted a legal separation, this can be done one of two ways. The first option would have the couple convert their legal separation into a divorce through a joint stipulation, which is a more simple way that does not require any additional wait time.

The second option is useful when only one spouse wants to convert the separation into a divorce. That spouse would then file a petition for conversion. It should be mentioned that when only one spouse wants to pursue conversion, the paperwork cannot be filed until at least one year after the legal separation was granted. 

Dos And Don'ts Of Marital Separation

When going through a legal separation, it can be difficult to think clearly. The process can cause a lot of stress on the couple as a whole and as individuals. It is important to keep in mind that, while you go through the separation, there are steps that need to be taken, and there are definitive things that you should avoid. 

Do: 

  • Get familiar with the marital finances.
  • Establish credit by obtaining credit cards in your own name.
  • Close any joint credit card accounts that you currently hold with your spouse.
  • Consult a family law attorney to have a legally binding separation agreement drafted.
  • Keep copies of all personal and legal documents, as well as financial documents regarding property, debt, and income.

Don’t: 

  • As you are still legally married to your spouse, do not start a new relationship.
  • Keep your children from seeing the other parent.
  • Overshare your legal situation on social media.
  • Overspend on major purchases.

Frequently Asked Questions

Will legal separation protect my assets? 

During the process of legal separation, assets and debts are divided similarly to a divorce process. Couples may opt to separate in order to continue to file taxes jointly and receive military benefits for the spouse.

Marriages exceeding 10 years entitle a divorced spouse who did not remarry to social security benefits equal to the greater of the following (for the lower wage earning spouse):

  • Social security benefits based on their own work record
  • Fifty percent of the ex-spouse social security benefits based on their work record

Due to this law, many people considering divorce, married for seven or eight years, will separate until they cross the 10-year threshold. After the separation is final, you and your spouse can purchase property, acquire dept, and sign contracts as unmarried individuals.

Is it cheating to date while separated from your spouse? 

While a separation does mean that you and your spouse live your lives separately, you are still married in the eyes of the law. This means that if you enter into another relationship while separated from your spouse, it is still considered adultery. 

However, while adultery is technically a felony in Wisconsin, it has not been charged since 1990, and it is not considered in any divorce proceedings because Wisconsin is a no-fault divorce state. 

How can we divorce after a month of marriage? 

It’s possible to file for divorce after a month of marriage in Wisconsin. Depending on the situation behind the separation, an annulment may be something to talk through with your attorney. An annulment means that a judge has determined, whether due to information that was unknown at the time of marriage or the mental or physical state of a person at the time of marriage, the marriage never legally existed. 

How to divorce my wife without losing everything? 

Wisconsin is a community property state, meaning that all assets, debt, and property will be divided equally between the spouses at the time of the divorce. If any assets can be definitively proven to have been kept completely separate from marital assets, those could potentially be kept by the owning party. 

How to start a separation from your husband? 

In order to start the separation process in Wisconsin, one spouse must file a petition with the circuit court in the county where either you or your spouse lives. This can also be done jointly if both spouses are in agreement. 

How much does divorce cost in WI? 

Including filing and attorneys fees, the cost of a divorce in Wisconsin could be around $11,000. This is dependent on whether or not your attorney bills hourly or a flat rate, as well as the family situation. 

For example, a family with minor children could mean that the divorce is more expensive, due to child placement, child support, alimony, and property division issues. 

What is spousal maintenance? 

Spousal maintenance, otherwise known as alimony, refers to payment that one spouse provides the other after a divorce is finalized. Spousal maintenance exists to ensure that both spouses can retain their standard of living after the divorce. 

What does legal separation mean in Wisconsin? 

Legal separation allows a couple to remain married, maintaining the financial advantages of marriage while being able to live separate lives. An absolute divorce completely dissolves the marriage. Once a couple is divorced, many employer health plans will preclude the coverage of the employee's ex-spouse.

However, in the event of a separation, many times the spouse will be able to maintain the employment benefits of the other spouse. (If you go this route ensure you check the fine print in the employment benefit package.Some employers treat a legal separation the same as a divorce, denying benefits.)

If the couple reconciles, the court can set aside the judgment of legal separation and revoke any orders in place relating to maintenance, child support, and custody.

How long can you be legally separated in Wisconsin? 

Wisconsin does not have a limit on how long you can maintain your separate status. Once the separation is filed, the parties cannot convert it to a divorce for one year unless they mutually agree on it. After that time period, either party can transition the separation to a divorce without the permission of the other party.

However, you do not ever have to transition to a divorce. Many couples choose to continue as separated long-term and do not ever transition to a divorce in order to maintain some of the benefits of being married.

How do you get legally separated in Wisconsin?

Couples wishing to become legally separated must file paperwork with the court. The process for obtaining a legal separation is largely the same as the divorce process. Parties must file a Petition or Joint petition with the court for the separation. The courts will still issue a final judgement that addresses all aspects of dividing the marriage, very similar to a divorce.

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There are three basic legal paths. The first step in executing a legal action is deciding which process is right for you.

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