Imagine this scenario: Years ago you married someone, and the marriage ended rather quickly for all practical purposes. You were young, you didn’t have a lot of money, and your spouse left your home and was no longer part of your life.
Although you were still legally married, that didn’t matter much in your day-to-day living circumstances. In addition, divorces are expensive and time-consuming. The forms are confusing, and you filed once but couldn’t afford an attorney, and the judge dismissed the case when you missed a court date because of work.
Now years later, you have more access to resources. You know where your spouse is, and they want the divorce, too. You manage to file your case with a joint petition and complete all the required forms for the judgment.
Neither party wants anything from the other, because you’ve been separated for years, and you just want your case to be over with. Why, you ask, do you have to wait 120 days – a full four months – for a final hearing?
The commissioner you’ve asked stammers a bit and then says, “Because that’s the law.”
Are you satisfied by that answer?
The statute, Wis. Stat. section 767.335, prohibits a divorce or legal separation action from proceeding to a final hearing or trial until 120 after service of a summons and petition or the filing of a joint petition.
Mark G. Schroeder, U.W. 2002, has been family court commissioner in Outagamie County Circuit Court since 2014, where he presides over family law actions as well as civil injunctions, small claims actions, guardianships and civil commitment hearings.
The statute includes a relatively narrow exception, sometimes expansively interpreted by courts, that allows the waiting period to be waived:
for the protection of the health and safety of either of the parties or any child of the marriage or for other emergency reasons consistent with the policies of the chapter.1
In my practice as family court commissioner, the vast majority of the divorce cases I encounter are not ready for final hearing at 120 days. That is certainly true of any case in which there is a substantial dispute of property division, of debt distribution, or over the custody and placement of minor children.
Among that subset of cases that are ready in advance of the 120 days – only a subset of which are represented by the fact scenario above – relatively few are able to articulate the sort of risk to health, safety, or “other emergency reasons” necessary to obtain the waiver. Thus, I find myself routinely having to recommend that the judge deny the request for waiver of the time period as a result.
The Original Reason
Looking into the history of Wisconsin’s 120-day waiting period suggests it is an artifact of a different era, when divorce was perhaps seen differently than it is now.
Passed in 1977, the 120-day waiting period was enacted in Wis. Stat. section 247.083 (1977). That same subsection of the statute required that the moving party has met the counseling requirement, if any, under Wis. Stat. section 247.081 (1977), which required, among other things, “counseling to explore the possibility of reconciliation.”
The 120-day waiting period has survived substantial revisions of the family code in the decades since. The intent of the legislature in 1977 was clearly articulated by the act itself:
This act is not intended to make a divorce, annulment or legal separation easier to obtain. Its sole purpose is to promote an equitable and reasonable adjudication of the economic and custodial issues involved in marriage relationships.2
The question that statement raises in my mind is this: if the parties have no disputes and are ready to proceed, why not make it easier?
Reasons For and Against
In exploring what purpose the 120-day waiting period serves now, I’ll admit I’ve encountered some resistance to suggestions that it should be shortened or eliminated.
Family Law attorneys have expressed concern that eliminating the cooling-off period discourages parties from seeking representation by building in an incentive to “just get it over with” by agreeing to what the other party wants.
Others have cited the 120-day period as providing some space for the parties to settle into the idea that their marriage is ending and to get enough distance from the hurt involved in that moment of realization to start to think about how things will work moving forward.
It is certainly not the goal of any commissioner, and I’m sure any judge, to discourage representation by counsel. Every commissioner or judge I’ve ever spoken to about the subject wants to see more of their family law litigants seek representation.
Studies have shown what most commissioners and judges have long observed on their own: most divorce actions include at least one unrepresented litigant3 – a reality that courts deal with on a routine basis and have done for years with the 120-day waiting period in place.
A review of other states with no-fault divorce proceedings reveals that Wisconsin’s 120-day period is relatively long, surpassed only by California (six months) and Louisiana (180 days). Many other states permit divorces judgments after shorter periods of 30 to 90 days.
Shortening Wisconsin’s waiting period to 60 days would bring it more in line with existing law in other states, and provide those parties who were married for relatively short periods, or who have been informally separated for a long period and have no disputes, to obtain judgements in an efficient fashion without harm to the parties.
Conclusion: Because Not All Parties Need to Wait
Most divorce cases are not prepared to go to a final hearing or trial in 120 days, and for most cases that’s probably preferable to a rush to a final hearing where the parties are unprepared to proceed. Certainly those cases where there are disputes over child placement or property are rarely ready to proceed to a final hearing or trial in less than 120 days.
There are, however, some limited circumstances in which notice is given, an agreement is reached, and neither party wants to wait. In that circumstance – why not make it easier?
The Family Law Section is offering scholarships to section members to attend the upcoming live webcast of Advanced Skills and Techniques in Family Law from State Bar of Wisconsin PINNACLE® on Dec. 2, 2020. For more information on the webcast, visit WisBar.org's Marketplace. To apply for the scholarship, visit the Family Law Section webpage on WisBar.org.
This article was originally published on the State Bar of Wisconsin’s Family Law Section Blog. Visit the State Bar sections or the Family Law Section web pages to learn more about the benefits of section membership.
1 Wis. Stat. section 767.355(2).
2 Section 1(4) of Chapter 105, Laws of 1977.
3 Judith G. McMullen, Divorce Wisconsin Style: Pro Se Trends, Wisconsin Lawyer, June 4, 2010.