Law Office Report - Fall 2010
Frequently Asked Questions
About Wisconsin Divorce Law
Attorney Nadine I. Davy
1. How is a divorce action started? To begin a divorce, one of the parties to the marriage must file a Summons and Petition for Divorce. The party's spouse must be served with the paperwork within 60 days after the action has been started. There are two ways to serve your spouse with the Summons and Petition: (a) your spouse can sign an Admission of Service form, or (b) a process server or law enforcement officer can serve the papers.
2. What if a person does not want a divorce? Wisconsin is a "no fault" divorce state. This means that the Court does not look to whether one of the parties is at fault when granting a divorce. The only ground which must be shown for a divorce to be granted is an irretrievable breakdown of the marriage. The Court will likely grant a divorce, even if only one party wants the divorce, as long as one party testifies that he or she feels that the marriage is irretrievably broken.
3. How long does it take to get divorced in Wisconsin? A judge cannot grant a divorce until at least 120 days have passed from the date that both parties had notice of the divorce action. Most divorces take between six months and one year to finalize, although it can take longer if there are multiple contested issues, including disputes regarding custody and placement of minor children.
4. How do I support myself while I wait for the divorce to be completed? In most cases a temporary hearing will be held to decide issues of custody, placement, child support, maintenance, use of marital residence and allocation of debt, as well as temporary use and possession of personal property and bank accounts. The hearing is almost always scheduled before the Family Court Commissioner and is typically held within two to four weeks of the filing of the divorce action. Temporary orders remain in effect during the time that it takes to complete your divorce.
5. What is the difference between legal custody and physical placement? Legal custody refers to the allocation of decision-making authority among the parents with respect to major decisions affecting their children. Physical placement is the term used to refer to where the children physically live. Periods of physical placement refers to the time the children are placed with a particular parent.
6. How will legal custody and physical placement be determined? If either custody or placement is in dispute, the Court will order the parties to go to mediation. Mediation is a meeting between the parties with a neutral mediator who helps the parties reach an agreement on their own. If mediation is not successful, the Court appoints a guardian ad litem, who is an attorney charged with the responsibility of representing the best interests of the children. The guardian ad litem will conduct an investigation and make a recommendation as to what custody and placement arrangement is in the children's best interest. If the parties still cannot reach an agreement, the Court will decide the matter after a hearing is held, at which time each party must present evidence supporting his or her position to the Court.
7. What is maintenance and how will it be determined? Maintenance is spousal support. There is no standard formula for determining maintenance. It is based on a number of factors including length of the marriage, differences in income of the parties, earning capacity of the parties, and contribution by one party to the education, training or increased earning power of the other.
8. How does the Court divide property? Wisconsin is a community property state, and each spouse is typically entitled to 50% of the marital property. Marital property is usually any property acquired during the marriage. Gifts from third parties and inherited property are the individual property of the spouse who received the same and generally are not subject to division. If the couple cannot agree on how to divide marital property, the Court will decide. The Court starts with the presumption that an equal division of the marital property of the parties is fair and proper. The Court can alter the division after considering multiple factors which are set forth in the statutes.
9. How can we help you through the divorce process? We are here to advise and assist you in protecting your financial assets and income and reach fair and reasonable results on children's issues.