Wisconsin divorce lawyers provide answers to frequently asked questions about divorce in Wisconsin and Wisconsin divorce laws.
The court must find that the marriage is irretrievably broken. This finding is usually based on the petition for the divorce and one or both parties’ testimony at the final hearing.
If one party contests the grounds, the court is still required to make a finding that the marriage is irretrievably broken if it finds no reasonable prospect of reconciliation.
What is a divorce going to cost me? Can I afford it?
Since each case is different, the cost of each case varies significantly. The cost depends on many factors including the number of hearings, the types of issues included, the nature of assets of one or both parties, whether a guardian ad litem is appointed to represent the children’s best interests, and whether the parties have reached agreements on some or all issues.
Do I really need to hire an attorney?
Either or both parties may appear in court and get divorced pro se, or self-represented. Before making a decision, it is best to meet with an attorney and make an informed decision about whether to proceed on your own or with counsel. I have seen many cases come back after the divorce is finalized because a mistake was made or the final order was not actually what one party thought it was.
It is often significantly more expensive to hire counsel after the fact to try to fix a mistake than to hire an attorney at the time of the divorce to make sure all issues are addressed appropriately the first time.
Does Wisconsin grant divorces based on marital fault?
No, Wisconsin is a “no fault” state. While the basis of the divorce may not be based on finding fault, a party’s misconduct can affect the property division, maintenance award, and custody and placement determinations depending on how that misconduct affected the family.
Can I get maintenance or will I have to provide maintenance to my spouse?
Whether maintenance is appropriate in your case depends on many factors. Some of the most significant factors for the court often are the length of the marriage, the difference in earning capacities at the time of divorce, and the age and health of each of the parties.
Can I change my name at the time of divorce?
Yes, the court can order a name change as part of the judgment of divorce. Most often, this change is a return to the previous surname.
Legal annulments are granted only for very specific reasons. The court may grant an annulment if it finds:
- A party lacked capacity to consent to the marriage, because of age, mental incapacity, or the influence of drugs or alcohol;
- A party was induced to enter the marriage by force, duress or fraud within one year of obtaining knowledge of the fraud;
- A party lacks the physical capacity to consummate the marriage by sexual intercourse and this was not know by the other party; or
- The marriage is prohibited by law.
Even in cases where the court cannot grant a legal annulment, the parties may be able to pursue an annulment through their church in addition to the divorce.
When can I file for divorce in Wisconsin?
A divorce can be filed at any time when the residence requirements are met and the moving party can state under oath that the marriage is irretrievably broken.
The length of the case depends on many factors, most significantly the type and number of contested issues and the court’s calendar. By law, the parties have to wait 120 days after filing for the judgment to be entered.
While this is the minimum, it is unusual and only happens in cases where parties enter a complete agreement on all issues quickly.
Do I have to go to court?
The parties are ordered to appear, at a minimum, for the final hearing. There may also be temporary order hearings or other hearings or conferences where your appearance is necessary, depending on the facts of your case.
If you fail to appear at the final hearing, the court can proceed without you, which means they can also proceed without your input as to what the final order should be, and you would be in default.
If attempts to serve my spouse do not work, what is my next step?
If your process server has been unable to serve your spouse, you may be able to publish notice in a legal newspaper. The requirements of exactly how and what to publish are specific to each county and must be followed closely.
You should also watch the time frame that you have to serve, as you may need to request an extension or risk your case getting dismissed.
At what point during the process can a spouse remarry or start dating?
In Wisconsin, a party is not allowed to remarry within six months of getting a divorce. Any marriage within six months will be void.
As to dating, there is no law about when this can begin. However, before a new significant relationship begins, it is important to consider how dating may affect certain orders, such as placement of the children or maintenance.
What if my spouse does not want the divorce?
If one spouse wants to proceed with the divorce, the court will proceed. Both parties do not need to agree for the court to find that the marriage is irretrievably broken.
Do the other issues – child support, child custody, alimony, and property – have to be decided before the divorce is final?
The divorce is granted when the parties have reached an agreement on all issues or after a hearing and the court decides the contested issues, so all of the issues are resolved at one time.
In very rare instances, if trials last multiple days over a span of time, the court may grant the divorce following the testimony of both parties although the final order or decision on a complicated contested issue may not be completed yet.
How long do I have to live in Wisconsin to obtain a divorce?
At least one of the parties must be a resident of the state for 6 months prior to filing the action.
After I file for divorce, do I have to continue to live in Wisconsin?
No. The law does not have any residency requirements following the commencement of the action. However, the law does limit how far a party can move with minor children if the court has granted periods of placement to more than one parent.
What if I am in the military and out of state?
You would still meet the residency requirements based on where you are a legal resident.
Additionally, only one of the parties must meet the requirements. The Soldiers’ and Sailors’ Civil Relief Act provides additional protections to make sure that you have notice and the opportunity to respond.
What forms do I need to file for a divorce in Wisconsin?
A divorce commences with filing a petition requesting the divorce. Unless both parties sign the petition, a summons is also needed to notify the other party of the lawsuit. The social security numbers of the parties and any children are filed in a confidential addendum.
How and where is a divorce complaint filed?
The petition for divorce is filed with the clerk of court in the county in which you have been a resident for at least 30 days. The clerk will also require a filing fee, which varies based on the county.
How do I serve the divorce complaint on my spouse?
The petition is required to be served on the other party. This can be accomplished by having your spouse sign an admission of service, or by have a process server personally serve him or her. The process server may be any adult not related to the action. In some counties, the sheriff will serve the other party upon request.
The time a divorce takes varies based on the case, the contested issues, and the court’s calendar. At a minimum, the law requires parties to wait 120 days after the other party is served. Cases can last much longer if issues are contested, significant discovery needs to be done, or if the court’s calendar is full.
How is a divorce granted? Will I have to go to court?
The divorce is granted at a hearing. The parties either reach an agreement or the court will decide the contested issues and then grant the divorce. The judge will sign a written judgment after the divorce is granted orally.
This judgment incorporates the parties’ agreement and any orders issued by the judge. If one party does not appear at the hearing, the court may proceed without that party after making findings that the party had appropriate notice of the hearing.
The judge’s clerk will look to make sure all of the required documents are filed appropriately and see if you have an agreement or if issues are contested.
Assuming you have an agreement, the judge will likely review it and ask each of the parties questions both about themselves and about whether the terms of the agreement are appropriate. The court will the grant the divorce and give the parties instructions.
How do I prove fault for divorce?
It is not necessary to prove fault for a divorce is Wisconsin.
At any time can a parent change a minor child’s last name without the other parent’s permission?
No. In order to legally change a person’s name, a case must be brought in court. Additionally, any change for a minor is a custody decision that must be agreed to if the court has ordered joint custody.
Can a couple become legally married by living together as man and wife under the state’s laws (common law marriage)?
No. Wisconsin does not recognize common law marriages. But civil claims can arise from living together. If unmarried cohabitants engage in a joint venture to accumulate assets, one party may be entitled to relief through unjust enrichment and partition at the conclusion of the relationship where one party attempts to retain an unreasonable amount of the property.
It is inequitable for one party to retain an unfair amount of the property that both parties acquired together.