Wisconsin Divorce

By WomansDivorce.com 

If you are getting a Wisconsin divorce or are just legally separating, you'll find the resources to help you get started on the right track. You can locate experienced divorce lawyers in your area or find do it yourself options, such as divorce forms and online divorce services. There is also information about WI divorce laws, child support guidelines, worksheets, and calculators. To help you recover from divorce, you can look up local divorce support groups as well as access information on the state's domestic violence hotlines and shelters.

Online Divorce Help

What can you do if you know the marriage is over and it's time to move on, but your economic situation means hiring a lawyer is out of the question? When both spouses can agree on everything, it costs a lot less to file your own paperwork. And using an online divorce service can make the process easy. Their system for completing the necessary paperwork is easy to use and walks you through every step of the process, including submitting all the required forms with the court. They offer detailed instructions and additional information if you have questions during the process. For a cost-effective alternative to hiring a lawyer, this Wisconsin online divorce service is worth checking out.

Parent Education Classes

Mandatory Parent Education Classes - All parents must take a divorce education class if they have minor children. These programs and classes help educate parents about how the dissolution of the family unit can affect children and how parents can help their children deal with the divorce or separation. You can contact your local Family Court Commissioner's office for more information regarding dates and locations of classes in your area. You can also use the links below to find out more:

  • Fond Du Lac County - (920) 929-3404 
  • Waukesha County - (414) 384-7900 

Additional Parenting Class Information 

Abuse Shelters & Resources

End Domestic Abuse WI 

Wisconsin Divorce Laws

Below is a general overview of the divorce process in Wisconsin and the main issues that will need to be addressed.

Residency Requirements for a Wisconsin Divorce

The state of Wisconsin has somewhat unique residency requirements for those wishing to terminate their marriage. One spouse must be a resident of the state of Wisconsin for at least six months, and a resident of the county where they are filing for divorce for at least 30 days prior to filing. 

There will be no hearing scheduled until 120 days have passed after the service of a summons and petition to the respondent, or 120 days after a joint filing for divorce. A Wisconsin driver’s license or state ID with a current address will prove residency. If there are issues with residency, an affidavit signed by a third party may be accepted by the court as proof of residency. 

Grounds for Divorce in Wisconsin

The state of Wisconsin is purely no-fault, meaning either spouse can request a divorce without going into the details as to why the marriage failed. If both spouses are willing to testify under oath that their marriage is irretrievably broken, with no hope for reconciliation, the court will approve the divorce. 

If the spouses disagree about whether the marriage is irretrievably broken, extra information might need to be provided to the judge before the divorce can be granted. As an example, suppose your spouse does not agree that your marriage is irretrievably broken, but you can prove the two of you have lived apart for at least a year. In this case, the judge will likely grant your divorce. 

If, however, your spouse objects to the divorce, and the two of you still share a home, the judge may delay your divorce, ordering counseling in an attempt to reconcile the marriage. The delay cannot be for more than 60 days; if that time goes by, and there is no reconciliation, the divorce can move forward. While it can seem unfair that your spouse can delay your divorce, in the end, he or she cannot prevent the divorce. 

Asset Division in a Wisconsin Divorce

Nine states operate under community property laws in the event of a divorce, and Wisconsin is one of those. Community property laws dictate that all marital property will be split exactly equally, regardless of which spouse made the majority of the money, or any other factors. 

Property division can involve many different marital assets, including the marital home, vehicles, bank accounts, retirement benefits, home furnishings, artwork, stocks, and stock options, and, of course, marital debts as well. The couple can either agree to a property division or, if no agreement is possible, the court will divide the property in a reasonable manner. 

Before asset division can occur, the distinction must be made between separate property and marital property. Separate property is not subject to division, meaning each spouse is allowed to keep his or her separate property following the divorce. 

Separate property can include gifts received from anyone other than the spouse, any property received after the separation, any property owned by a spouse prior to the marriage, and an inheritance. Marital property includes all property acquired by one or both spouses during the marriage, using marital funds. 

While community property laws require an equal division of marital properties, a court may deviate from such an equal distribution after considering the following factors:

  • How long the marriage lasted; 
  • The ages of each spouse; 
  • The properties brought to the marriage by each spouse; 
  • Whether either spouse has significant separate property, such as a large inheritance; 
  • The earning capacity of each spouse; 
  • The job skills and job history of each spouse; 
  • The physical and emotional health of each spouse, and 
  • The contributions to the marriage of each spouse. 

As an example, while the state favors an equal distribution of assets, if one spouse has a low future earning capacity because he or she gave up education, a career, or training to support the other spouse’s career advancement or pursuit of higher education, then a judge might deviate from the equal asset distribution rule. A prenuptial agreement could also have bearing on the property division in a divorce; if a valid prenuptial agreement awards certain property solely to one spouse, the property is no longer considered a marital asset. 

Spousal Maintenance in Wisconsin

Alimony is the term used in many states for monetary support paid to an ex, following the divorce. In the state of Wisconsin, the term “alimony” has been replaced with “Spousal Maintenance.”  Spousal maintenance provides financial support for a spouse until he or she becomes self-supporting or remarries. Marital fault can play a role in spousal maintenance awards in some states, but because Wisconsin is a no-fault divorce state, marital misconduct, such as abuse or infidelity, are not considerations when determining spousal maintenance obligations. 

Because there is no set formula in the state for determining spousal maintenance, the judge has wide discretion in deciding whether maintenance is appropriate, its duration and the amount. The judge is allowed to consider the following factors when determining spousal maintenance:

  • How long the marriage lasted; 
  • The physical and emotional health of each spouse; 
  • The age of each spouse; 
  • The earning capacity of the spouse seeking maintenance; 
  • The educational level of each party, both at the time of the marriage and the time the divorce begins; 
  • The division of property made in the divorce; 
  • The likelihood that the spouse seeking maintenance will become self-supporting at a standard of living which is reasonably comparable to that enjoyed during the marriage (and the length of time necessary to achieve this goal); 
  • The tax consequences to each spouse of an award of spousal maintenance; 
  • Whether there were any mutual agreements made regarding spousal maintenance, before or during the marriage; 
  • Whether one spouse contributed to the increased earning power, education or training of the other spouse, and 
  • Any other factors the court deems relevant. 

Shorter marriages are likely to result in lesser awards of spousal maintenance, or no award at all. A longer marriage is likely to result in a longer term of spousal maintenance or, in some cases, a permanent award. The standard of living enjoyed by the spouses during the marriage will also be a significant factor in the award of spousal maintenance. A starting point for spousal maintenance in a Wisconsin marriage of fifteen years or more is that a spouse who is dependent on the other for financial support is entitled to 50 percent of the earnings of both parties. 

Spousal maintenance awards could be temporary or rehabilitative, allowing the receiving spouse to become self-sufficient. Although the issue of spousal maintenance can be revisited at a later date, it would likely require a compelling circumstance—such as a critical illness—to change an original denial of spousal maintenance. Temporary awards of spousal maintenance are generally predicated on a specific goal, such as completing educational courses or finding employment. 

The only way to preclude a Wisconsin court from having jurisdiction over the award of spousal maintenance is when the spouses enter into a private agreement, such as a prenuptial or post-nuptial agreement. 

Child Custody in Wisconsin

Child custody laws in the state of Wisconsin allows for joint legal custody or sole legal custody, as well as joint physical custody or sole legal custody. Legal custody grants a parent the right to make major decisions for the child, such as educational decisions, religious decisions, and health decisions. Physical custody dictates where the child will physically live, allocating time spent with each parent. Wisconsin law refers to physical custody as “placement.” 

A Wisconsin court will consider the following factors when determining legal and physical custody:

  • The age of the child; 
  • The living situation of each parent; 
  • The relationship each parent has with the child; 
  • The preferences of the child, if the child is old enough and mature enough in the estimation of the court; 
  • The living situation which is most likely to promote stability and consistency for the child; 
  • The mental health of each parent; 
  • The physical health of each parent; 
  • How willing the parents are to cooperate and communicate as parents; 
  • How willing each parent is to help facilitate a loving relationship with the other parent; 
  • Whether there are any past allegations of domestic violence against either parent, and, 
  • The parent who has played a role as primary caretaker for the child. 

The parents should put together a parenting plan which will clearly detail the times the child will spend with each parent, as well as details regarding vacations, birthdays, holidays, pickups and drop-offs, and any other applicable information. 

A parent with custody and placement of a child who wants to move out of Wisconsin - or more than 150 miles from the home at the time the court order was put into place - must send notification to the other parent via certified mail. The other parent can agree to the move or can notify the court with an objection. If the other parent objects, you cannot move until the issue is resolved. 

In the end, custody will be determined using the “best interests of the child” standard, although today most judges believe there is more benefit to a child when both parents are involved. The “tender years” doctrine (the belief that a younger child should always be with the mother), is all but extinct in the state of Wisconsin, although some judges may still lean that way, particularly when a nursing baby is involved, or when the mother has been the primary caregiver. The parents’ living situations will have bearing on the determination of custody—often, the parent who will stay in the family home will be awarded primary custody, simply as a means of giving children stability during this unstable time. 

Child Support in Wisconsin

Wisconsin uses overnights - where the child sleeps - to determine how much child support will be paid by the non-custodial parent. For joint custody, the child support payment will vary, depending on the overnights, but for sole custody, a standard percentage model is used, based on the number of children. 

Once the income of both parents is established, the paying parent will pay 17 percent of his or her income for one child, 25 percent for two children, 29 percent for three children, 31 percent for four children and 34 percent for five children.

The court has discretion to vary from the standard child support formula for high income earning parents, serial-family situations, and split-placement (at least one child with each parent) cases.

Separation in Wisconsin

Legal separation and physical separation are not the same thing; legal separation is a legal process where one spouse files a formal request with the court. When a judge issues a judgment of legal separation, the couple’s legal status is altered. While the couple is still legally married, each spouse is allowed to acquire property and debt or enter into a contract as an unmarried person. Physical separation does not alter marital status, rather is an informal agreement between spouses in which the court’s permission is not required. 

Annulment in Wisconsin

An annulment ends a marriage which is considered invalid. The grounds for annulment in the state of Wisconsin include:

  • One or both spouses were too young to marry in the state of Wisconsin; 
  • One spouse was mentally incapacitated at the time of the marriage; 
  • The spouses are first cousins or closer; 
  • One spouse was so intoxicated at the time of the marriage that he or she did not understand the marriage; 
  • One spouse hid material facts prior to the marriage; 
  • One spouse was threatened coerced, or forced into the marriage; 
  • One spouse is impotent; 
  • One spouse had a wife or husband at the time of the marriage (bigamy); or 
  • One or both spouses married within six months of a divorce.

In order to file for an annulment the state of Wisconsin, you must have lived in the state for at least 30 days and file in the county where you or your spouse resides. To begin the process, a Petition for Annulment needs to be filed with the county circuit court clerk’s office, and a copy served on the other spouse. 

A hearing will then be held to determine whether the judge will grant the annulment. Evidence and witnesses which can help prove the legal grounds for the annulment to the judge can be brought to the hearing. If the judge grants the annulment, it will be as though the marriage never existed. If there were children of the marriage, they would still be considered legitimate, even following an annulment. 

Same-Sex Divorce in Wisconsin

Since same-sex marriage is now legal across the United States, one would assume a same-sex couple would expect the same legal process of divorce in the state of Wisconsin. Unfortunately, the laws applying to same-sex divorces remain somewhat unsettled. 

As an example, spousal maintenance is linked to the length of the marriage, which can be difficult to determine for a same-sex couple—will the date of the actual marriage, or the date in which Wisconsin recognized the legality of the marriage be used? It also remains a question as to whether children born to a same-sex married couple will be “presumed” by the state to be children of both parties. 

As the Wisconsin legal system attempts to determine the legal nuances of same-sex divorce, same-sex couples seeking a divorce must choose a Wisconsin divorce attorney who is well-versed in the unique issues involving same-sex divorce.  

Updated March 24, 2021