How to File for a Divorce In Wisconsin

REQUIREMENTS NECESSARY TO FILE FOR DIVORCE

  • In Wisconsin, the only grounds for divorce is an “irretrievably broken” marriage. In other words, if the wife and husband cannot resolve their differences, a divorce may occur.
  • Wisconsin judges will allow a divorce to proceed even if only one spouse desires a termination to the marriage
  • Under Wisconsin law, at least one spouse must have resided in the state for at least six months prior to filing for divorce.
  • In order to file a divorce petition in a Wisconsin county court, the petitioner must have resided in that county for at least 30 days prior to filing.
  • The minimum amount of time necessary to complete a divorce in Wisconsin is 120 days, but most divorces take longer than four months between initial service of divorce papers and the final hearing.

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  • Wisconsin offers mediation for couples who are considering divorce and require resolution of child custody issues. Both court-appointed and private mediation may help settle many conflicts without the need for a divorce.
  • When searching for a divorce attorney, you should choose a legal professional with the ability to effectively solve complex problems, speak honestly to you and work professionally with opposing counsel.

Grounds for Divorce in Wisconsin

  • Wisconsin is a “no fault” divorce state and only requires that the marriage cannot be repaired.
  • If both parties petition the court for a divorce based on the fact that the marriage is irretrievably broken; or
  • If both spouses have lived apart for at least 12 months and one party affirms that the marriage is irretrievably broken, that is sufficient grounds for the divorce.

 

STEP 1: HOW TO INITIATE A DIVORCE PROCEEDING

A divorce proceeding in Wisconsin begins with the submission of a completed Petition for Divorce (the actual name of the document may depend on the county) to a county clerk.

  • You must also provide the following documents
    • Summons
    • Confidential petition addendum
    • Proposed parenting plan (if child custody is at issue)
  • Make at least two copies of all submitted documents.
  • You must file the Petition with the Clerk’s Office of the Superior Court in the county of residence. You must also pay the appropriate fees at the time of filing.

STEP 2: LEGAL NOTICE

Under Wisconsin law, you must provide legal notice of the divorce petition within 90 days of the start of the divorce process.

  • Mail—divorce papers can be served through the mail if your spouse signs and submits to the court an Admission of Service. You may also prove you have completed service by mail by signing an Affidavit of Mailing in the presence of a notary public or providing a certified mail receipt to the court.
  • In person—any person other than you may serve the divorce papers in person as long as they are over 18 years of age, a resident of Wisconsin and not listed in any of the court documents. This means friend, family member, professional process server or county sheriff may provide them to your spouse.
  • If you are unable to reach your spouse, you may publish a notice of divorce if the court approves.
  • Once the divorce papers have been served, an Admission of Service signed by your spouse must be filed with the County Clerk within 90 days of filing the divorce petition.

Once your spouse has been served, they will have 30 days to respond to the Petition. These responses are classified as

Default

If your spouse does not provide any response to the divorce petition, then the judge will assume that the Respondent has abdicated any right to participate in the case.  The judge will probably grant many, if not all of the requests regarding child custody, support and property distribution in the petition.

Uncontested

If your spouse files a Response with the court within 20 days of service, but agrees with all of the details in the petition, this is considered an uncontested dissolution.

Contested

If your spouse files a Response and Counterclaim which disputes various aspects of the Petition, then the court will likely have to step in and make decisions regarding contested issues.  If you change your mind and withdraw your original Petition for Divorce, the judge may still grant a divorce based on the Counterclaim.

STEP 3: CONTESTED OR UNCONTESTED DISSOLUTION OF MARRIAGE?

Contested Divorce (High Cost)

If both parties cannot agree on the major issues in a divorce—property distribution, child custody or spousal support—you will probably need to hire an attorney to represent you in this complex divorce proceeding.

  • In contested divorce cases, you must attend a pre-trial hearing where the judge will determine the format of the trial, including major issues litigated and what evidence is admissible.
  • Contested divorces typically involve attorneys for both parties.
  • Most divorce attorneys charge substantial legal fees in a contested divorce procedure due to the added time and effort of participating in a trial.
  • Attorneys are likely to engage in a period of discovery where they will investigate your spouse’s claims. This may include document requests, subpoenas and witness interviews.
  • Contested divorces may cost several thousands of dollars in court and attorney fees.

Uncontested Divorce (Low Cost)

In Wisconsin, there are many low-cost alternatives to a contested divorce.

  • Joint petition—if you and your spouse agree on all of the issues involved in the divorce, the two of you can file a Joint Petition for Divorce. To qualify for a Joint Petition for Divorce, you must meet the following criteria:
    • Both spouses must sign the Joint Petition for Divorce
    • At least one spouse must have resided in the state for at least six months
    • One or both spouses must have resided in the county of jurisdiction for at least 30 days
    • Payment of the appropriate filing fee
  • A Joint Petition may be used even if minor children remain in the household
  • The judge will schedule a hearing to finalize the divorce at least 120 days following the initial filing.
  • In many cases, an uncontested divorce is considerably more inexpensive because there is no need to hire an attorney or complete a trial.

STEP 4: WHICH OPTION IS RIGHT FOR YOU?

Self-Representation (Lowest Cost)

If you and your spouse can agree to an amicable settlement before or during the divorce procedure, it will dramatically reduce the cost and emotional stress related to the divorce. That is why it is in your best interests to do everything possible to resolve any major conflicts with your spouse prior to engaging in a divorce.  By filing a Joint Petition for Divorce, you sidestep any expensive legal proceedings and can conclude the divorce without an attorney. MyDivorcePapers.com will provide the instructions and the forms necessary to complete this process with minimal cost and effort.

Mediation (Medium Cost)

The state of Wisconsin strongly encourages couples who are considering a divorce to use mediation services.  Mediators are independent, neutral professionals with expertise in resolving personal issues.  Although they may not have the legal authority to force a couple to forge an agreement, they are usually quite capable of providing useful information and solutions.  A court may appoint or recommend a mediator prior to or during a divorce proceeding. Mediation is typically more cost effective than a divorce trial.

Divorce Trial (Highest Cost)

In cases where you and your spouse cannot agree on major issues, the judge will proceed to a trial.  This trial may last a single morning or several days.

  • You should hire an experienced divorce attorney to defend you, as your spouse will probably do likewise.
  • In the discovery phase, both legal teams may conduct thorough investigations into the allegations made by each party. This process may take weeks or even months to complete.
  • At the trial, both sides will make their arguments using evidence and testimony.
  • Even with highly experienced legal representation, there is no assurance of a positive outcome.

STEP 5: RESOLVING THE MAJOR ISSUES

The major points of contention in most divorces involve issues of property division, child custody or spousal support.  If you and your spouse fail to come to an agreement on these issues, you should know how Wisconsin law often rules.

Property Distribution

Wisconsin is a community property state in which property acquired by both spouses during the marriage must be divided equally.  Separate property which belongs wholly to one spouse may have been acquired in the following ways:

  • Owned prior to marriage
  • Received as a gift or inheritance
  • Obtained following a separation but prior to divorce
  • Designated as separate through a prenuptial agreement

Once the community property and debts are identified, they must be assigned a monetary value, usually via an appraiser.

Division of property may occur in several ways. Although Wisconsin courts favor a 50/50 division when it comes to cash or multiple goods, they may use various methods to distribute other forms of property.  Indivisible assets may be provided to one spouse, while another asset of equivalent value is assigned to the other spouse. In some cases, a share of the property may be given to one party while providing the asset to the other, in essence, making both spouses co-owners.

Debts are also distributed in a similar manner to each spouse. While the judge may assign a debt to one party, the other spouse may still be responsible for a portion of repayment.

Child Custody

As in most states, Wisconsin determines child custody based on the best interests of the child, and, as such, usually awards joint custody to both spouses.  The judge will design a parenting schedule in joint custody situations that apportion each parent’s time with the child. Joint custody in Wisconsin grants both parents equal rights in making decisions regarding the child.

If one parent is deemed unfit, the court may assign one parent sole custody of a child. In this situation, the sole legal custodian possesses full authority to make decisions regarding the child.

In some rare instances in which spouses have trouble communicating, possess incompatible parenting styles or reside a long distance apart, Wisconsin courts may confer joint custody but grant authority over major decisions regarding health, welfare and education of the child to one parent.

Spousal Support

Spousal support is more commonly known as maintenance in Wisconsin and is dependent upon several factors:

  • Earning capacity of both spouses
  • Each spouse’s educational level
  • Standard of living during the marriage
  • Professional skills of both spouses
  • Sacrifices made by spouses during the marriage, particularly for the other’s education, career or training
  • Financial assets and income
  • Length of the marriage
  • Debts incurred during the marriage
  • Age and health of each spouse
  • Property division
  • Any agreements regarding maintenance made before or during the marriage

Maintenance in Wisconsin will usually have a start and termination date, although in cases of an extremely lengthy marriages of if one spouse is unable to work, maintenance may go on indefinitely. The spouse who is awarded maintenance may petition the court for an extension only before maintenance is terminated.

STEP 6: FINALIZING THE DIVORCE

If a trial is scheduled, then you and your spouse must attend the trial to resolve any ongoing disputes. Following these courtroom proceedings, the judge will issue a judgment.

If the divorce is uncontested, you must attend a hearing where the court will draw up a Marriage Settlement Agreement that must be signed by both spouses. You must also submit the following documents within 30 days of the final hearing:

  • Finding of Fact
  • Conclusion of Law
  • Judgment

After the trial or hearing, the judge will then enter into record the judgment, finalizing the divorce.

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