Whether you’re considering a Wisconsin divorce or trying to help a friend, divorce is a difficult topic with detailed laws surrounding it. In this guide we help you understand what you need to know about divorce in Wisconsin..
This article tells you about the laws in Wisconsin concerning divorce, property division, child custody and support. We let you know how you qualify to file and the steps you can expect during the divorce process.
What are the Different Kinds of Divorce in Wisconsin?
Wisconsin has both divorce and legal separation. The procedures for both are quite similar, and the results are also substantially the same. Whether you get a divorce or a legal separation, you need to work out all the same issues: division of finances and property as well as issues of child custody and support.
The difference is that a legally separated couple is still married while a divorced couple has their marriage dissolved. This means that a legally separated couple is not free to remarry even though they’ve gone through, essentially, the entire divorce process.
People opt for a legal separation for a variety of reasons. Some religious beliefs prohibit divorce, for example. Some people choose legal separation to be able to enjoy some financial benefits of marriage—legally separated couples can still use one another’s health insurance and benefit from filing taxes as a married couple.
Still others use legal separation when there’s a possibility of reconciliation. In Wisconsin, both spouses together can ask the court to set aside the legal separation and restore their marriage. On the other hand, after a year of legal separation, either spouse can petition the court to transition the separation to a divorce without the other spouse’s permission.
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How to File for Divorce in Wisconsin
In Wisconsin, you and your spouse can decide to file the petition for divorce together, called a joint filing. If you file an individual petition, you must legally serve your spouse with it. Once you file—whether solely or jointly—you can request a temporary hearing to settle outstanding issues until the divorce can resolve them permanently.
After you file and pay any fees, there is a 120 waiting period between the initial filing and a final divorce decree. In contested divorces, this waiting period will pass while other issues are addressed, but if your divorce is uncontested and uncomplicated, you may be just waiting during the waiting period.
Wisconsin Residency Requirement
In order to file for divorce or legal separation in Wisconsin, at least one of the two spouses must have lived in Wisconsin for six months before the date of filing. In addition, one of the two parties must have lived for at least 30 days in the county where the action is filed.
Grounds for Divorce in Wisconsin
Wisconsin is a no-fault divorce state and there is only one ground for filing. In Wisconsin, the only reason to file for divorce is that the marriage is irretrievably broken—there is no assignment of fault and one spouse can file for divorce even if the other doesn’t want to end the marriage.
Grounds for Legal Separation in Wisconsin
You don’t have to have a reason to get divorced in Wisconsin, but you will have to give a reason for legal separation. Before a legal separation can be granted, both spouses will have to testify that the marriage is broken and cannot be saved.
What is the Wisconsin Divorce Process?
During the legally-required waiting period of 120 days, there may be many steps in the divorce process you need to undertake. For example, if you and your spouse have minor children, some counties require you to file a parenting plan or complete classes or other programs on the impact of divorce on children.
After the 120 day waiting period, there will be a pre-trial conference with the court to determine if you can settle. If you and your spouse cannot come to an agreement, the court will refer you for mediation to try to reach an agreement that way. If you still cannot agree, your case will go to trial.
Before your final hearing, you’ll need to complete the following:
- Marital Settlement Agreement (if there are no contested issues) or a Proposed Marital Settlement Order (outlining your preferred outcome for contested issues)
- Financial Disclosure Statements
- Findings of Fact, Conclusions of Law and Judgment of Divorce
- Vital Statistics Form
At your final hearing, the judge will decide on any outstanding contested issues and grant the divorce. You may be required to complete further documents or sign over property depending on the final divorce decree.
Wisconsin Property Division and Spousal Maintenance
During the divorce, marital property is divided between the spouses. In Wisconsin, the division of property is done according to the community property rule. This means that all assets of the marriage—almost everything either spouse acquired during the marriage—is taken together regardless of how it’s titled and divided 50/50.
Only gifts or inheritance to one spouse are excluded from marital property, but only if that property was kept separate from the marital property entirely. For example, if one spouse inherits a house but later puts the other’s name on the deed, the house has been converted to marital property and is divided in the divorce.
If one spouse is given a cash gift and keeps it in a separate bank account, it will generally not be included in any property division during divorce. However, if they put that gift into a shared account, the money becomes marital property and will be part of the 50/50 split.
Property Division and its Impact on Spousal Maintenance
Wisconsin doesn’t require spousal maintenance—the term the court uses for alimony or spousal support. Instead, every case is considered on its own, and the court will consider a number of factors, including the property division in the case.
In addition, the court considers the length of the marriage, the earning potential of each party, the age and health of the parties, contributions to one-another’s earning power and any other factors the court deems relevant.
For longer-term marriages, usually longer than 20 years, the court can order maintenance payments indefinitely, and this is especially likely when one spouse has significantly less earning power than the other.
Child Custody in Wisconsin
Wisconsin law awards legal custody—authority to make major decisions concerning the child—and physical placement—the right to have a child placed with a parent—separately. Parents can be awarded sole legal custody and sole physical placement or parents can share one or the other type of custody. The court presumes that joint legal custody is appropriate in each case and it is up to the parents to prove otherwise.
Custody is determined based on the best interest of the child, but there is a strong preference for both parents to have a presence in the lives of their children.
Child Support in Wisconsin
Wisconsin requires parents to contribute to the support of their children. The state uses a formula based on the gross income of both parents, the amount of physical placement the child has with each parent and the number of children to determine child support.
If a parent has less than 92 overnight visits with a child per year, Wisconsin considers the other parent to have primary custody. In that case, the noncustodial parent will pay based on the following percentages.
- For one child, 17% of gross income
- For two children, 25% of gross income
- For three children, 29% of gross income
- For four children, 31% of gross income
- For five or more children, 34% of gross income
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Frequently Asked Questions (FAQs)
Is property always divided equally in Wisconsin divorce?
No.Though Wisconsin follows the community property rule for division, there are a number of ways that courts can deviate from a 50/50 division. If a judge considers a number of factors and determines an equal division to be unfair, they can order an unequal division of property.
Importantly, courts won’t divide property at all if you and your spouse can agree on how to divide things. The court will only weigh in on issues that remain contested at the hearing, so if the divorcing couple agrees to a property division, the court won’t get involved. However, the court must always approve any settlement and if it finds it to be inequitable it could reject it.
How long does it take to get divorced in Wisconsin?
There’s a 120 day mandatory waiting period in Wisconsin before the court can hold the final hearing. This means that it will take at least four months to get a divorce, but it can take substantially longer. The court’s calendar as well as the issues that must be resolved in your case can extend the time between filing and getting your final divorce decree.
How much does it cost to get a Wisconsin divorce?
The cost to file for divorce in Wisconsin will vary from county to county, but it’s usually around $200. If there are any minor children, the court will usually require a custody study, which also involves a $300 fee. There may be court costs and charges for having your spouse served, as well, but it’s possible to get a Wisconsin divorce for just a few hundred dollars.
However, the more complex and contentious your divorce is, the more likely it will be more expensive. Lawyers typically charge hundreds of dollars an hour or take on divorce cases for flat fees in the thousands. Different sources claim that the average Wisconsin divorce costs anywhere from $9,000 to more than $11,000
