Divorce FAQ's

At least one of the spouses believes the marriage is irretrievably broken and that the spouses will not reconcile or mend their relationship.  A marriage is irretrievably broken even if one spouse does not want a divorce.

Divorce requires the marriage to be irretrivably broken and does not allow a party to remarry until six months.  A legal separation requires that a marriage is broken and does not allow the parties to remarry until the legal separation is converted to a divorce

An annulment means the marriage never legally existed.  There are limited reasons a marraige is not legal.  For example, one party may have been too young, unable to have sexual intercourse, incapable of consenting to the marriage or induced to marry by fraud or force

One spouse has to reside in Wisconsin six months before any divorce papers are filed

The first step in the divorce process is filing a petition for divorce.  The petition lets the court know that one or both parties want a divorce.  The petition provides the court basic information about when the spouses were married, where they live and work, if they own real estate and if they have any children.

There is a mandatory 120-day waiting period in Wisconsin during which your divorce can not be finalized.  If you and your spouse have a written agreement on all issues in your divorce you can finalize your divorce immediately following the 120-day waiting period.  If you and your spouse do not have an agreement than the time it takes to finalize your divorce will vary based on the county in which your divorce is filed and the complexity of the issues involved in your case

A temporary hearing will determine who is going to live where, who is going to pay what, and what kind of temporary placement schedule you will have, if children are involved.  This will be the Court Order both parties will follow until the final divorce hearing or unless you go back to Court to get the temporary order amended.  Temporary hearings are often held before a Court Commissioner and not a Judge.

No.  If both parties can come to an agreement, an agreement signed by both spouses can be filed with the Court thereby eliminating the need for a temporary hearing.

At the hearing you will tell the Court Commissioner what you want the court to order to handle the disagreements regarding children, use of property and financial issues until the divorce is finalized.

If you have children, the issues addressed are legal custody, placement and child support.  The Court will also address maintenance, debts, medical expenses, property (real estate, vehicles, and personal items), and taxes.

If you have children, there may be some limits on where you can move after a divorce with the children. There are important rules regarding: removing a child from the state for longer than 90 days (in some cases, for longer than 14 days); and establishing residence outside the state, or even 150 miles or more away from the other parent.If you want to move out of the state or more than 150 miles away and you provide notice by certified mail of your intent to do so, the other party may file an objection with the court. This must be done within 15 days of receiving the notice. The court will then refer you and your former spouse for mediation or other court services. It may appoint a guardian ad litem.

A guardian ad litem is an attorney appointed to represent the best interest of the child(ren) when- ever the courts are asked to make decisions that involve them. The guardian ad litem may fully participate in any hearing before the court and may make recommendations regarding custody, visitation and child support. His or her sole interest is to do “what is best for the child(ren)” and to represent those interests to the court and the parents.

Child support is usually set by applying percentage standards to the gross income of the parent who has placement less than 25 percent of the time (91 days) placement: 17 percent for one child; 25 percent for two children; 29 percent for three children; 31 percent for four children; and 34 percent for five or more children.

The court will use a shared-time payer formula if both parents have at least 91 days. You can determine child support as a shared-time payer by using a spreadsheet created by the family law section at dcf150sheets.com.

However, the court does not have to apply these standards if it determines they would be unfair in a particular case. If physical placement of the child or children is substantially equal, the child support will usually be reduced to reflect the additional placement time. If a payer has an existing obligation to pay support due to a prior divorce or paternity judgment, the gross income available for child support may be reduced by the previous order be- fore the percentage standards are applied to the payer’s income. Also, if the court believes that the current earnings are not accurate, the court can base the child support order on the payer’s earning capacity rather than the payer’s actual earnings. Violation of physical placement (visitation) rights by the parent with custody does not allow the non-custodial parent to stop child support payments

Maintenance, also referred to as alimony or spousal support, is a monthly payment of money from one spouse to the other during or after a divorce.  Maintenance can be ordered for a limited amount of time or it can be ordered with no specified end date.  A party can ask the court to change or terminate an order for maintenance but they have to show the court that there is a substantial change in the financial circumstances of one or both parties.

There is no formula for setting how much maintenance is ordered.  The court considers several factors in deciding whether maintenance can be awarded as well as the amount and long it will be paid.  The court will consider all information that is helpful in making a decision including how long the parties were married, if the parties are in good health, their ages and educational training, what a party earns or can earn as income, and how long it will take a spouse to support themselve without financial assistance from the other spouse.

Usually not. Under certain limited circumstances, however, the court may order a contribution from the other party.

A wage assignment is an order to an employer to deduct child support or maintenance payments from an employee’s check.Each time the court makes a support or maintenance order, the order includes a wage assignment order for the payor’s employer. However, if an order for wage assignment would cause the payor irreparable harm, the court may allow payment directly to the clerk of courts.

Most of a couple’s property, including assets such as pension plans, is subject to division. The only exception is property received either as a gift from a third party or an inheritance. Even gifts and bequests may be divided in some circumstances. If the couple can’t agree on how to divide the property, the court will usually divide equally the total of the divisible property. It may alter this division, however, by considering: the length of the marriage; the property brought into the marriage by either party; whether one of the parties has substantial assets not subject to division by the court; each party’s contribution to the marriage; .the age and physical and emotional health of the parties; the contribution by one of the parties to the increased earning power of the other; the earning capacity of each party; the desirability of awarding the family home or the right to live there to the party with more physical placement of the minor child(ren); tax consequences; agreements of the parties; and any other factor the court deems relevant.

If a woman wants to resume using her maiden name or a former legal name, the court will restore it. If she wishes to continue to use her married name, she may do so.

Ethical rules generally prohibit an attorney from representing both parties in a divorce. Occasionally an attorney will represent one spouse, and the other will choose to represent himself or herself. Divorces in which neither party uses an attorney also occur, particularly when there are no children and/ or little or no property. In mediation, the mediator is neutral and assists both parties in coming to an agreement. You should use extreme caution if you go through a divorce without a lawyer. Divorce is a lawsuit and it can have a number of hidden consequences. If you have little or no income, you may qualify for free help from a legal services agency.

If you aren’t satisfied, you can ask the court to reconsider its decision. You also can appeal to the Wisconsin Court of Appeals. There are very strict time limits for filing an appeal (usually 45 days). Certain issues can be reviewed by the trial court at any time. You will usually have to show a substantial change of circumstances before a trial court will revise a judgment. Very few cases succeed on appeal. It is important to make informed decisions before the final judgement. If you are dissatisfied with a decision about maintenance, however, you should be aware of certain limits. A judgment that waives maintenance cannot be revised. If you want the court to reconsider an award of limited-term maintenance, you must file a motion before the maintenance period ends.

Usually not. Under certain limited circumstances, however, the court may order a contribution from the other party.

A default divorce is one in which you and your spouse have no contested issues to be decided by the court. The date of a default hearing is usually soon after you file a Final Marital Settlement Agreement, which spells out all your arrangements for support, maintenance, and asset and liability distribution, as long as the 120-day statutory waiting period has expired. At the hearing, upon approval of your agreement, the court will grant an absolute judgment of divorce.If a spouse fails to respond to the petition for divorce, the case is legally considered a default action. For practical purposes, however, the absence of an agreement between the parties makes the matter a contested case.

If you can’t reach a final agreement after the fact- gathering process, your case must be scheduled for trial. The date is determined by the length of time needed for the hearing and the court’s other business. Contested trials are costly and involved. The rules of evidence will be enforced and contain many pitfalls for the unwary.

Yes. However, you’ll have to show the court that you’ve tried everything possible to locate your spouse. You’ll have to publish a notice in the local paper in an attempt to inform your spouse the divorce proceedings have been initiated.If it’s at all possible to find an address, then you must attempt to serve notice of the divorce action upon your spouse. The court has no power to order child support or maintenance unless your spouse personally is served.What action may be taken against a spouse who disobeys a court order regarding custody, visitation, debt payments or payments of support or maintenance? You must petition the court to enforce its order. This is known as a “contempt motion.” After receiving the court papers, your spouse must appear to explain whether he or she has followed the court’s orders. If not, the court will want to know why. After hearing the facts, the court decides whether your spouse willfully disobeyed. He or she may be found in contempt of court and given an opportunity to “purge” or correct the contempt. If he or she does not purge, then the court can impose punishment with a jail term of up to six months. The court may issue other orders as necessary to remedy the contempt.

Yes. The court’s order does not change the parties’ relationships with creditors. They may sue either spouse and may repossess any property in your possession that was pledged as security .If only one of you is sued, that spouse may bring the other into the lawsuit.

Mediation is a process to help parties resolve their issues. It is one of the family court’s counseling services that is intended to help you settle issues of child custody, physical placement or visitation. Mediation attempts to help you resolve such issues faster and at less cost.The family court commissioner or the court itself must refer you to the family court counseling services for mediation of custody, placement or visitation disputes. The same is true if one of you wishes to revise a final judgment and legal custody or physical placement is one of the contested issues. Property settlements, maintenance or child support usually aren’t addressed unless they relate directly to legal custody or physical placement. They may also be discussed if you both agree in writing to do so.When you are referred for mediation, both of you must attend at least one session. The court can make an exception to this rule if it determines that attending will cause undue hardship or endanger the health or safety of the other party. Your attorneys usually don’t attend.Mediation can continue if all parties (including the mediator) agree that further sessions may be useful. The court may delay your final hearing on legal custody or physical placement until mediation is completed or terminated.In all discussions, the mediator is guided by what’s best for your child(ren). If you reach an agreement, it’s made part of the final judgment. If you don’t, the court will appoint a guardian ad litem to help determine the child(ren)’s best interest.