What are my rights? How do I petition for divorce? How does child custody and/or support work?
Everyone hopes to never have to endure a divorce, one of life's most traumatic experiences. But some marriages deteriorate beyond repair. If you're facing a divorce, you need to know what lies ahead in the legal process. This pamphlet will answer many of your questions.
The only basis for divorce in Wisconsin is that the marriage is "irretrievably broken." This means the husband and wife can find no way to work out their differences. A judge usually will find a marriage irretrievably broken even if only one spouse wants a divorce.
Divorce ends a marriage. Legal separation involves the same procedures as divorce, but the separated spouses can't marry others. Legal separation is an alternative for people who wish to avoid divorce for religious or other reasons. The court grants a legal separation on the ground that the marriage relationship is broken.
Like a divorce, a legal separation requires property division and determination of child custody and placement. The court may order maintenance and child support payments. (More on these topics later in this pamphlet.)
After one year, either spouse can seek to have a legal separation converted into a divorce without the other spouse's consent. Spouses who reconcile after a legal separation may apply to have the separation revoked.
An annulment dissolves a marriage that was invalid from the beginning. For instance, one spouse may have been too young, unable to have sexual intercourse, incapable of consenting to the marriage, or induced to marry by fraud or force.
You must have been a Wisconsin resident for at least six months before filing for divorce here. Also, you must have lived at least 30 days in the county where you file.
Divorce usually begins with the filing of a
petition for divorce and a
summons. The petition for divorce gives the factual history of the marriage and states the desired outcome of the divorce. The summons states that a response must be filed within 20 days.
Sometimes the court finds it necessary to issue temporary orders, which are orders laying out the ground rules that each spouse must follow until the final divorce hearing. If temporary orders are necessary, two additional documents must be filed. The
affidavitfor temporary relief requests temporary arrangements for child custody, placement, or support, as well as any other needed provisions. The
order to show cause contains the time and date of the hearing before the family court commissioner, who establishes the temporary orders.
After one spouse files the petition and summons with the clerk of court, these documents are served upon the family court commissioner (in certain counties) and the other spouse. The person asking for a divorce is called the
petitioner, and the other spouse is the
respondent. Both spouses are
parties to the divorce action.
Yes, but you have to show the court that you made reasonable efforts to locate your spouse. You also must publish a notice in a local newspaper in an attempt to inform your spouse that you have started a divorce.
If it is at all possible to find an address, you must attempt to have notice of the divorce action served upon your spouse. The court has no power to order child support or maintenance unless your spouse has been personally served with notice.
Unless the court makes an exception for an emergency, at least four months (120 days) must pass between the serving of the initial papers and the final hearing. Most divorces take longer than four months. Several factors affect the length of the process: the complexity of the case, the ability of the spouses to agree on the issues, and the amount of other business before the trial court.
A divorce isn't effective until the final hearing. Once the divorce is final, both parties must wait at least six months before marrying other people.
The term
custody refers to the right to make legal decisions regarding a child, such as school choice, religious training, medical care, and so on. The court must presume that
joint legal custody is in the child’s best interests – that is, both parents have decision-making authority,
unless there is evidence of interspousal battery or domestic abuse.
The term
physical placement refers to how much time a child spends with each parent. You often hear of "visitation," but physical placement is now the correct legal term.
Many couples manage to work out their own agreement on child custody and physical placement. This is the best solution for all concerned. The two of you will no longer be spouses after divorce, but you still are parents of your children. By agreeing on custody and placement, you will be better able to communicate with each other for years to come. And your children are less likely to be caught in the middle of parental disputes, one of the worst after-effects of divorce.
When couples have trouble agreeing on custody or placement, the judge or family court commissioner refers them to family court counseling. If the spouses still fail to work out their differences, the judge decides on custody and placement based on the child's best interests.
To make this decision, the judge weighs several factors. The court may also appoint a guardian ad litem, an attorney who represents the child's interests. To learn more, see the State Bar's pamphlets,
Custody and Placement: Answering Your Legal Questions and
Guardians Ad Litem in Family Court: Answering Your Legal Questions.
If a parent has physical placement with the child less than 25 percent of the time, the court usually bases child support on a percentage of that parent's gross (pre-tax) income. The standard support percentages are: 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. However, these percentages may be reduced for higher income levels. In addition, the court may adjust the standard support percentages upward or downward, if it determines that applying the standard percentages would be unfair in a particular case.
If each parent has at least 25 percent physical placement with the child, which is known as shared placement, each parent's gross income is considered in setting child support. Though the standard support percentages discussed above are part of the equation, the calculation is much more complex because it also considers the amount of physical placement each parent has with the child. In addition to the child support amount set by this calculation, shared placement parents also are responsible for the child's variable costs (such as child care, tuition, and special needs) typically in proportion to the time that the parent has physical placement with the child.
Sometimes one or both parents are paying child support already due to a previous divorce or paternity judgment. Under those circumstances, the court may reduce that parent's gross income available for child support in this new case before applying the standard support percentages and calculations discussed above.
If the court believes that either parent is shirking his or her obligation, the court may use the shirking parent's earning capacity, instead of actual earnings, as the income from which to set child support.
Even if the parent who receives child support fails to follow the physical placement schedule, the parent paying child support may not legally reduce or stop payments, unless that modification is specifically approved and ordered by the court. Doing so only hurts the child.
Maintenance, formerly called alimony, is money one spouse pays to the other during or after a divorce. Maintenance, unless waived or denied, is subject to modification based upon changes in circumstance of either party.
A husband and wife may agree on whether maintenance is appropriate and, if so, what the maintenance amount and duration will be. If they don't agree, the judge decides these issues. The judge will consider:
- the length of the marriage;
- each spouse's age and physical and emotional health;
- how property was divided;
- each spouse's educational level;
- each spouse's earning capacity;
- the likelihood that the spouse seeking maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and how long it would take to achieve this goal;
- tax consequences;
- any agreement of the spouses;
- one spouse's contribution to the education, training, or increased earning power of the other; and
- any other factor the court finds relevant.
A wage assignment is an order to an employer to deduct child support or maintenance payments from an employee's pay.
When the court orders a person in a divorce to pay support or maintenance, the order includes a wage assignment order for his or her employer unless the person is self-employed. The court will allow the self-employed person to pay directly to the Wisconsin Support Collections Trust Fund (WI SCTF), which forwards the money to the other spouse.
Most of a couple's property, including assets such as retirement interests, can be divided in a divorce. One exception is property received either as a gift from a third party or as an inheritance, although even gifts and inheritances may be divided in some circumstances.
If the couple can't agree on how to divide property, the court decides. The court starts with the presumption that equal division is fair and proper. But the court may alter this by considering:
- the length of the marriage;
- the property owned by either spouse when they married;
- whether one spouse has substantial assets the court can't divide;
- each spouse's contribution to the marriage;
- each spouse's age and physical and emotional health;
- one spouse's contribution to the increased earning power of the other;
- each spouse's earning capacity;
- the desirability of awarding the family home, or the right to live there, to the parent with primary placement of minor children;
- tax consequences;
- agreements of the spouses; and
- any other factor the court finds relevant.
A default divorce is one in which you and your spouse have no contested issues for the court to decide. A default hearing can only occur after you file a final marital settlement agreement. This spells out all your arrangements for support, maintenance, and asset and liability distribution.
The default hearing cannot occur until after the 120-day waiting period expires, unless there is an emergency. At the hearing, upon approval of your agreement, the court will grant an absolute judgment of divorce.
Don't confuse "default divorce" with "no-fault divorce." A no-fault divorce means that the petitioner need not prove wrongdoing on the part of the other spouse in order to file for divorce. Wisconsin is a no-fault state. As noted earlier in this pamphlet, the only legal basis for divorce in this state is that the marriage is "irretrievably broken."
If you can't reach a final agreement, your case goes to trial. The trial date depends on the length of time needed for the hearing and the court's other business. Contested divorce trials are costly and involved. The court enforces rules of evidence, which contain many pitfalls for the unwary. The best way to avoid these is to hire an attorney.
Ethical rules prohibit an attorney from representing both spouses in a divorce.
Occasionally an attorney represents one spouse, and the other spouse chooses to represent himself or herself. Divorces in which neither spouse uses an attorney also occur, particularly when the couple has no children and/or little or no property.
Exercise caution if you go through a divorce without a lawyer. Divorce is a lawsuit, often having hidden consequences. If you have little or no income to pay for an attorney, you may qualify for free help from a legal services agency.
Under certain limited circumstances, the court may order your spouse to help pay your attorney fees. One example would be if your spouse violated a court order during the divorce. Usually, however, each party pays for his or her own lawyer.
If a woman wants to resume using her maiden name or a former legal name, the court restores it as part of the divorce action. Or she may continue to use her married name, if she wishes.
You can ask the court to reconsider its decision. You also can appeal to the Wisconsin Court of Appeals. Strict time limits exist for filing an appeal (usually 45 days).
If you are dissatisfied with a decision about maintenance, however, you should be aware of certain limits. The court can't revise a judgment that waives maintenance. If you want the court to reconsider an award of limited-term maintenance, you must file a motion before the maintenance period ends.
The trial court can modify certain orders, such as child support and physical placement, in the future, although usually you must show that a substantial change in circumstances has occurred since the current orders went into effect before a trial court can revise a judgment. In most cases, orders regarding property division cannot be changed, once the orders are approved by the court.
If you have children, you may face limits on where you can move after a divorce, just as you do during a pending divorce. If you want to move more than 100 miles away from the other parent, you must provide notice by mail of your plans at least 60 days before the planned move to the most current address on file with the Court unless the parent has a different address from the one on file. In that case, the motion shall be served by mail at both addresses. If the other parent objects that parent must file a written motion stating the objection five days prior to the initial hearing and appear at the hearing. The court then will refer you and your former spouse to mediation. The court also may appoint a guardian ad litem for your children.
You must petition the court to enforce its order. This is known as a
contempt motion. After receiving the court papers, your former spouse must appear in court to report whether he or she has followed the court's orders and to explain any lapses.
After hearing the facts, the court decides whether your former spouse willfully disobeyed. The court may find your former spouse in contempt and grant him or her an opportunity to correct the contempt. Failure to do so can result in as much as six months in jail. The court also may issue other orders as necessary to remedy the contempt.
If the other parent denies or substantially interferes with one or more periods of physical placement, you may bring a
petition for enforcement of physical placement order. Usually the court must hold a hearing on such a petition no later than 30 days after it is served on the other parent. If the court finds that your former spouse intentionally and unreasonably denied you of one or more periods of physical placement, the court can issue various orders. These might include granting additional periods of physical placement to replace those denied or hindered, as well as awarding you money and attorney fees.
Yes. The court's order doesn't change your relationship with creditors – that is, the parties to whom you owe money. Creditors may sue either spouse and may repossess any property pledged as security. If the creditor sues only one spouse, that spouse may bring the other into the lawsuit.
A mediator takes no one's side. His or her role is to help a couple to communicate and arrive at mutual agreements. Through mediation, you may be able to resolve disputes faster, with less bitterness, and at less cost than battling in court.
As mentioned earlier, the family court's counseling services provide mediation for couples needing help to settle child custody and placement issues. Family court counseling usually doesn't address property settlements, maintenance, or child support – unless these issues relate directly to child custody or placement. But you may discuss these issues if both of you agree in writing to do so.
Usually, the spouses split most of the family court counseling costs. For more information on family court counseling, see the State Bar's brochure,
Custody and Placement: Answering Your Legal Questions.
Private mediation services also are available. Here a couple can discuss any issues pertaining to their divorce, and they pay all the mediation costs. Your lawyer can refer you to an appropriate service. See also the State Bar's pamphlet,
Alternative Dispute Resolution: Answering Your Legal Questions.
In these processes, the focus is on settlement of issues. The goal is to reduce the emotional and financial effects of divorce by avoiding formal discovery and individual appraisal of assets. In a collaborative divorce, if the process fails, the attorneys for both spouses must withdraw and turn the case over to other attorneys. For more information on collaborative divorce in Wisconsin, go to
www.collabdivorce.com. In a cooperative divorce, although the emphasis is on settlement, court is still available as an option, but only if all efforts at settlement fail. For more information about cooperative divorce in Wisconsin, go to
www.cooperativedivorce.org.
Contrary to what many people believe, good divorce lawyers don't push their clients into full-scale war. This only leaves behind damage and resentments that can linger for years.
The best outcome is a divorce that allows two people to begin to heal and get on with their lives. Toward that end, divorce attorneys help their clients to settle their divorce, if at all possible, rather than to go to trial. As you ask for recommendations, you should seek a divorce lawyer who will:
- act as a problem-solver and peacemaker;
- be courageous enough to tell you things you may not want to hear; and
- be courteous and cooperative in working with your spouse’s attorney.
