- Legal Overview
- Divorce Process
- Residency Requirements
- Grounds for Divorce
- Division of Property
- Spousal Support
- Child Custody
- Child Support
- Taxes and Debts
Divorce in Wisconsin requires that one party be a resident of Wisconsin for at least 6 months prior to filing and a resident of the county in which you intend to file for at least 30 days prior to filing. Wisconsin is a no-fault divorce state; therefore, the only ground upon which to obtain a divorce in Wisconsin is an irretrievable breakdown of the marriage.
Wisconsin also allows a legal separation provided you or your spouse have been a resident of Wisconsin and a resident of the county in which you intend to file for at least 30 days prior to filing.
After a motion for divorce is filed a judge may determine that there is a chance of reconciliation and may order mandatory mediation or counseling for the spouses. Also one of the spouses may tell the court they think things can be worked out and may ask the court to have a hearing to see if the marriage is truly irretrievable. If the court concludes that there is a chance for the marriage to be repaired and there are minor children, the court may delay the proceedings not fewer than 30 nor more than 60 days for an attempt at reconciliation.
During the pendency of an action for divorce or legal separation, the parties can stipulate to a suspension of the proceedings for a period not exceeding 90 days to permit the parties to attempt at reconciliation.
Unlike a divorce that dissolves a valid marriage, an annulment is a legal decree that a marriage is void. In addition, an annulment proceeding can resolve some of the same issues that would be the subject of a divorce proceeding, such as child custody and support and alimony. Annulments are granted only in very limited situations and cannot be granted merely because the marriage is of short duration nor for “religious” reasons.
During the pendency of the action, either party may file an Order to Show Cause with the court and request temporary orders while the divorce is pending. The court may make orders relating to custody, placement, child support, maintenance, obligations to pay debts, and use of the marital residence during the pendency.
A majority of divorce cases resolve with the parties stipulating to a marital settlement agreement. A settlement agreement is a written contract between the parties that sets forth their rights, duties and obligations that arise out of their separation and divorce and may include such things as the division of their property, spousal support, attorney’s fees, custody of their children and child support. Such agreements are encouraged since they may amicably settle the rights of the husband and wife in the estate and property of the other.
If you seek to file a divorce in Wisconsin, it is important to be aware of the residency requirements prior to filing for your divorce. In order to file for divorce you or your spouse must have been a resident of the state for at least 6 months and a resident of the county where the divorce is filed for 30 days. If you or your spouse have not established residency in Wisconsin for at least 6 months, you may file for a legal separation provided you have resided in Wisconsin and the county in which you intend to file for at least 30 days prior to filing.
Grounds for Divorce
The only approved ground available to those seeking a divorce is based on irretrievable breakdown of the marriage (irreconcilable differences). A divorce based on irretrievable breakdown of the marriage can mean a multitude of things, but ultimately it means that there is no reasonable hope that the marriage can continue.
There are three separate ways to prove that the divorce has reached a point of no return: a joint petition by both spouse’s requesting a divorce on these grounds; living separate and apart for 12 months immediately prior to filing; or if the court finds an irretrievable breakdown of the marriage with no possible chance at reconciliation.
To receive a court-approved divorce it is not necessary to show that either one of the parties was at fault in the decline of the marriage. Rather, the petitioner must prove that there has been a breakdown in the marital relationship to the extent that the objects and goals of marriage have been destroyed and that no reasonable possibility remains that the marriage can be saved.
Division of Property
Wisconsin is a marital property state, therefore, any property acquired by either party prior to or during the marriage is considered marital property unless that property was acquired by gift or inheritance. The courts will, to the extent practicable, divide the marital property equally. However, if the case proceeds to trial, the division of assets is a discretionary decision that lies with the court.
There are a variety of factors that the court considers in determining whether or not to grant maintenance. These factors include: the length of the marriage, the age and health of the parties, the division of property, the education level of each party at the time of the marriage and at the time the action is commenced, the earning capacity of the parties, the feasibility that the party seeking maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage and the time needed to achieve this goal, the tax consequences to the parties, pre-marital and post-marital agreements, the contribution of one party to the education, training or increased earning power of the other and any other facts as the court may determine to be relevant.
The court may not base the decision of whether or not to award maintenance solely applying one factor. In addition, The court may not consider marital misconduct as a factor in determining whether or not to award maintenance. However, failure of a party to earn at his or her earning capacity is a consideration. Maintenance is not awarded to punish a guilty spouse but rather is to lessen the financial impact of divorce on the other spouse. In deciding a maintenance award, the court makes findings as to both the amount and term of maintenance. Maintenance is taxable income to the payee and tax deductible to the payor. If maintenance is ordered, either party may later petition the court to revise the maintenance order based on a substantial change in circumstances.
Custody and placement are the most crucial issues in most divorces. In determining the custody and placement of minor (under eighteen) children, the court is guided by one standard–the best interests of the child. Legal custody refers to the authority to make decision relative to the health, education , and welfare of your children. Custody will not be given to a parent as a reward or as punishment to the guilty parent but rather to the one most adaptable to the task of caring for the child and able to control and direct the child.
In addition, the court may not prefer one parent on the basis of sex or race. When the court orders sole or joint custody, the court must allocate periods of physical placement between the parties. Placement is the schedule which details when the children will be with each parent. Schedules of physical placement vary greatly and are dependent on the circumstances of each case and the ability of the parties to communicate and cooperate with one another. The placement schedule must allow the child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child may spend with each parent, taking into account geographic separation and accommodations for different households.
The following factors are considered by the court in analyzing all facts relevant to the best interest of the child in a determination for legal custody and periods of physical placement: the wishes of the parents, the wishes of the child either communicated by the child or through the guardian ad litem, the relationship the child has with each parent and siblings, the amount and quality of time that each parent has spent with the child in the past, reasonable life-style changes proposed by a parent to be able to spend time with the child in the future, the age and needs of the child, the child’s adjustment, mental or physical health of the parties or child, availability of child care services, the cooperation and communication between the parties, the need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child, whether one party unreasonably refuses to cooperate or communicate with the other party, whether each party can support the other party’s relationship with the child, whether a party has engaged in abuse of the child or the other party, criminal records of either party and those whom the party resides with or is in a relationship with and whether either party has had a significant problem with drugs or alcohol.
Placement schedules vary greatly. The schedule may be an equal shared placement schedule whether both parties have the children an equal amount of time or the court may order primary placement with one parent with a visitation schedule for the other parent.
If the parties cannot agree to custody and a placement schedule, the court will order the parties to attend mediation. If mediation fails, the court will appoint a guardian ad litem to determine what is the best interest of the child. The guardian ad litem is an attorney and he or she will meet with the child, the parties and those who are acquainted with the child and can lend insight into what is best for the child. The parties typically equally share in the fees incurred, however, the court may order one party to bare the total cost for the guardian ad litem.
Once custody and a placement schedule is determined, either party may petition the court to revise the order. If a party petitions the court within the first two years after the original order to change legal custody or to modify the placement schedule in a way which would substantially alter the time either parent may spend with the child, the burden is on the petitioning party to show by substantial evidence that the modification is necessary because the current custodial conditions are physically or emotionally harmful to the best interest of the child.
If a party petitions the court after the two year period, the burden is on the petitioning party to show that there has been a substantial change of circumstances since the entry of the last order. In this scenario, there is a rebuttable presumption that continuing the current allocation of custody and placement is in the best interest of the child.
Child support is determined by DCF 150. If the party with less placement has less than 25% of placement with the children, or less than 92 overnights per year, the party will pay child support to the other parent a percentage of his or her gross monthly income as follows: 17% for one child, 25% for 2 children, 29% for 3 children, 31% for 4 children and 34% for 5 or more children. If the party with less placement has more than 25% of placement or more than 92 overnights per year, support is determined by a shared placement formula which takes into consideration the earnings of both parties and the number of overnights.
Although typically the party with less placement pays support, in a shared placement scenario, the party with more placement may be the payor considering the formula is based on the earnings of both parties. DCF 150 also provides for alternative formulas in the event a payor is a high wage earner or earning below poverty. The use of DCF 150 provides an amount of child support that is presumed to be correct, but the court may deviate from these guidelines in appropriate circumstances. The award is subject to change so long as the obligation to support remains. It may be increased or decreased if a substantial change occurs in the circumstances of either or both of the parents of the child.
In addition to child support, the court may make orders relative to health insurance, uninsured medical expenses, variable expenses and daycare expenses for the minor child. The court may order the parties to share the expenses equally or may order the parties to pay proportionate to their respective placement percentage. The court may also order who gets to deduct the children for tax purposes on an annual or bi-annual schedule.
In cases for child support and maintenance, the court may impute income to a party if the court finds that he or she is not working to his or her earning capacity and such decision is unreasonable in light of the circumstances. The parties may combine maintenance and child support into one payment of family support. Although child support is not tax deductible, family support is tax deductible to the payor and taxable to the payee.
Taxes and Debts
There are a variety of factors that the court must consider which could result in an unequal division of the marital estate (assets and debts) including: the length of the marriage, the property brought to the marriage by either party, whether one of the parties has substantial gifted or inherited assets, the contribution of each party to the marriage also taking into consideration the value of homemaking and child care services, the age and health of the parties, the contribution of one party to the education, training or increased earning capacity power of the other, the parties’ respective earning capacities, the desirability of awarding the family home or the right to live there with the party who has more placement with the children, the amount and duration of maintenance payments to either party, tax consequences and other factors that he court may find relevant.
Under some circumstances, the court may put both parties back in the financial position that each was prior to the marriage while sharing in assets and debts acquired only during the marriage. However, the court may find that one party is in need of more support than the other and may award that party more than fifty percent of the marital property.