The Basics Of Divorce
Facing the possibility of divorce can be extremely scary and emotionally devastating. If you have decided that it is in your and your children’s best interests to proceed with a divorce, I would be happy to meet with you for an initial free consultation to discuss the procedures followed by the Courts in Wisconsin for divorce, legal separation, child custody and child placement matters. I would also be happy to discuss with you the impact on your financial situation and how to protect your interests and those of your children.
What You Should Know
The following is some very basic information regarding family law and divorce in Wisconsin:
Wisconsin is a no-fault divorce state. There is only one ground for divorce in Wisconsin, which is that the marriage is irrevocably broken. Unlike the distant past in Wisconsin, and currently in some states, fault such as adultery, abandonment, mental cruelty, etc., need not be alleged or proven against a party in Wisconsin.
A Party Cannot Prevent Divorce
Unlike the murder mystery movies of the 1940s and 1950s where one party refused to grant the other a divorce, thereby leading to tragic consequences, a party cannot prevent a divorce in Wisconsin. If one party petitions the court for divorce and there is no possibility of reconciliation, the court will allow the divorce to proceed even though the other party objects to the divorce.
A divorce is started in Wisconsin with the filing of a Petition for Divorce. Either party may petition the court for divorce, or the parties may jointly petition the court. The petition is signed by the party or parties and filed with the court. If the petition is not a joint petition, the party filing the petition must serve the other party, normally utilizing either a private process server or the Sheriff’s Department. A petition for divorce must cite the requisite jurisdictional requirements for divorce in Wisconsin, allege that the marriage is irrevocably broken, and fully identify the parties, their addresses and whether either party has previously been married, and if so, how that marriage or marriages ended. There are simple online forms that you can review and use should you choose to do so, which provide the basic outline for the Petition for Divorce. If you expect the process to become complex or confrontational you may want to consider hiring experienced counsel.
In order to file for divorce in Wisconsin, at least one of the parties must be a resident of the state of Wisconsin for at least six months, and a resident of the county in which the divorce is filed for at least 30 days. If you do not meet these jurisdictional requirements, you may wish to consider filing for a legal separation, which can later be converted into a divorce. This process is a bit more complicated than a simple explanation on this website can provide, but I would be happy to discuss it with you.
120-Day Cooling Off Period
Once the petition for divorce is filed and served, you must wait at least 120 days before the court can grant you a divorce. This is a “cooling off” period provided by the Wisconsin statutes. During this 120-day period, however, you can request the court enter a Temporary Order which will address certain issues pending the final judgment of divorce as described below.
Temporary Order Hearing
You can file in conjunction with your petition for divorce, or thereafter, a motion requesting a Temporary Order hearing. The motion will ask the Court to address issues such as a temporary use of the marital home, temporary custody and placement of your children, temporary child support, and possibly temporary maintenance (which used to be called alimony). The request is made by a formal motion with a supporting affidavit.
The Court will assign a prompt hearing date on your request for a Temporary Order, generally within a matter of weeks. The hearing is normally conducted before a Court Commissioner who will address issues such as:
- Marital home. The court will determine who will have temporary use of the marital home – that is, who will move out of the marital home, unless you agree to continue to cohabitate.
- Granting of temporary custody of the children. Custody, simply stated, is who makes the major life decisions for your children. The law presumes that this custody is joint between the parents, unless there are issues of abuse or other factors that make joint custody impossible. An example is military service, which has taken one of the parties away from prompt communication. History of abuse toward a party or child can alter this determination.
- Placement of the children. Placement in simple terms means where the children sleep at night. This is critical not only for the time that you spend with your children, but also in the determination of the next issue, which is temporary child support.
- Temporary child support. Temporary child support will be considered based upon the Wisconsin statutory guidelines, which can, with proper basis, be deviated from either upward or downward. By way of example, if there is one child involved and one party has primary placement of the child, the other party would normally pay child support of 17% of that party’s gross income. Exceptions do apply for certain income levels.
- Asset assignment. The Court will temporarily assign certain assets to the parties. For example, the parties will normally have immediate access to their clothing and personal effects, which they need on an everyday basis. The Court will generally allocate the family’s automobiles. Each party who receives an automobile will be responsible for maintaining insurance on the vehicle, making the automobile loan payments and maintaining the vehicle. Again, exceptions do apply.
Meeting With Your Lawyer
Should you decide you want to retain an attorney, or at least have an initial consultation with one, you should bring some basic information with you. I generally ask people meeting with me for the first time to bring the following information so I can review it with them and discuss a general plan. These items are as follows:
- Date and location of your marriage
- Your last three years of federal and state income taxes
- Your most recent real estate property tax bill if you own the marital home
- Your last three paycheck stubs or printouts from your bank reflecting the automatic deposits of your payroll checks
- A listing of any assets that you received through inheritance or gift
- The full names of your children, their dates of birth and their Social Security numbers
- The year, make and model of your automobiles
- Identification of any pension, IRA, 401(k) or similar plan that you may have an interest in. If you can, provide the date when you began paying into the plan, and the current amount that either you or your spouse has vested in the plan
- Any restraining order or injunction, such as a harassment or abuse injunction that is currently in effect involving either you or your spouse
- The name of your bank or financial institution and all account numbers for your checking, savings, money market or similar accounts
- A listing of any investments you and your spouse have, such as stocks, bonds, real estate, etc.
- Each spouse’s date of birth and Social Security number.
Contact An Experienced Divorce Lawyer
I would be happy to discuss Wisconsin’s divorce procedure with you during your free initial consultation. If you are already divorced and are in need of post-divorce assistance regarding modification of custody, placement, child support or maintenance, I am also available to discuss your options with you.
Please contact my Wisconsin divorce law office online today to schedule your free initial consultation. You may also call my office at 800-837-6956 to learn more about my services. Major credit cards accepted.