Legal Separation V. Divorce

Legal Separation V. Divorce

by | Apr 9, 2025 | 2025, Article, Family Law

Clients often ask what the difference is between a legal separation and a divorce. While the court process for both is similar, the legal consequences of each are significantly different. Below are some of the differences between these two judgments:

  1. Legal Definition and Consequences of Divorce: Divorce is defined as the dissolution of the marriage relationship. Once a judgment of divorce is entered, parties are free to remarry another individual after six months.
  1. Legal Definition and Consequences of Legal Separation: Legal separation does not terminate a marriage. Legally separated couples may reconcile without having to remarry.
  1. Grounds for Divorce and Legal Separation: The grounds for legal separation are that the marriage is “broken.”  Both parties must state that the marriage is broken for a court to grant legal separation. For a divorce, the court must find that the marriage is “irretrievably broken.”
  1. Property Division: Upon judgment of annulment, divorce, or legal separation, the court shall divide the parties’ property and transfer the title accordingly. Property acquired by a spouse by gift remains the separate property of that spouse and is usually not subject to division upon divorce.
  1. Jurisdictional Requirements: For legal separation, a court has personal jurisdiction over an individual after that person has been a resident for at least 30 days in the Wisconsin county in which the action is brought. For divorce, the court must have personal jurisdiction over one spouse, who must have lived in Wisconsin for six months and in the county of filing for 30 days.

There are several reasons why someone might choose to remain legally married, even if they are separated.

  • The marriage may remain intact to continue to receive health insurance benefits from the other spouse. However, some policies may make exceptions for separated couples.
  • The parties may choose to stay married for tax or citizenship reasons.
  • Religious beliefs may prohibit spouses from seeking a divorce, but not a legal separation.
  • Spouses may hope that there is a chance that they will be able to reconcile their marriage and get back together.
  • A legal separation severs the financial relationship between the parties, where they can no longer create marital debt or create marital property.

There are also reasons why a party may proceed with a divorce instead of a separation.

  • They would like to marry someone else and end their current marriage.
  • The chance of reconciliation is very low, and it may be more appealing to eliminate the stress and uncertainty by obtaining a final divorce.
  • If there are other complicating factors involved such as substance abuse or violence, it may be in the party’s best interest to file for a divorce to end the marriage.

Even if the parties are legally separated, they may convert that legal separation into a divorce by filing a motion with the court. Choosing which path to take requires some thoughtful analysis and a determination of what goals each spouse has, and whether or not they are truly interested in ending their marriage at this point, or keeping the door open for possible reconciliation.

If you have any questions on these topics our  skilled family law attorneys would be happy to meet with you.

Legal Custody vs. Placement

Legal Custody vs. Placement

by | Sep 16, 2024 | 2024, Article, Family Law

Two divorced parents talking to a child. Legal custody concept.

Wisconsin has two distinct concepts relating to minor children in family law cases: Legal Custody and Physical Placement. Many people use these terms interchangeably, but they have distinct legal meanings and implications in the State of Wisconsin.

A. Legal custody refers to the right and responsibility to make major decisions regarding a child’s life. Pursuant to Wisconsin statutes, major decisions include (but are not limited to) consent to marry, consent to enter military service, consent to obtain a motor vehicle operator’s license, authorization for non-emergency health care and choice of education or religion. When entering a judgment of divorce or judgment of paternity, the court must end an order regarding the allocation of legal custody between the parents. The two main options available to the court are joint legal custody or sole legal custody to one of the parents.

1. Joint Legal Custody: The law requires that the court presume (with limited statutory exceptions) that joint legal custody is in the child’s best interest. Joint legal custody is defined as “the condition under which both parties share legal custody and neither party’s legal custody rights are superior” to the other party. This is the most common arrangement, where both parents share the responsibility of making major decisions for their child. Joint legal custody does not necessarily mean equal time with the child, but rather equal say in important matters.

2. Sole Legal Custody: Sole legal custody provides one parent with the exclusive right to make major decisions for the child. The statute provides a rebuttable presumption that it is in a child’s best interest to award sole legal custody to a victim of domestic violence if the court finds that the other parent engaged in in a pattern or serious incident of domestic abuse. There are limited statutory requirements for that rebuttable presumption to be overcome. Sole legal custody is also permitted if the court finds any of the following:
One party is not capable of performing parental duties and responsibilities or does not wish to have an active role in raising the child
1. Condition(s) exist that substantially interfere with the exercise of joint legal custody
3. The court finds that the parties will not be able to cooperate in the future decision making required for joint legal custody.

3. Final Decision Making: The court may also award parties joint legal custody, but authorize one party to have final decision making over a category of legal decision making. For example, joint legal custody with one parent having final decision making for non-emergency medical care.

B. Physical placement refers to the time a child spends with each parent and involves the day-to-day care and supervision of the child. Physical placement is essentially about where and with whom the child lives. The child’s best interest is the overarching principle in determining physical placement. Although the statute requires that the court “set a placement schedule that allows 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.” It is important to note that “maximizing placement” does not equate to a presumption for equal placement.

1. Primary Physical Placement: Here, the child lives with one parent for the majority of the time, while the other parent has scheduled placement periods, such as every other weekend.

2. Shared Physical Placement: In a shared placement schedule, the child spends significant time living with both parents. The schedule can vary widely and shared placement is not always equal placement.
As noted above, the statute requires a schedule that maximizes the time the child spends with both parents based on what schedule is in the child’s best interest. This is based on a number of factors including, but not limited to:

  • The wishes of the parents and the child,
  • How well the parties communicate and cooperate with each other,
  • The degree to which each parent can support the child’s relationship with the other parent,
  • The child’s relationship with siblings and others in both parents’ households,
  • The amount of quality time that each parent has spent with the child and will likely be able to spend with the child in the future,
  • The child’s developmental and educational needs, along with issues related to mental health and drug and alcohol abuse.

Legal custody and physical placement issues in family court are often the most expensive issues for parties to litigate. They are also emotionally taxing for parents and children. Understanding the distinction between legal custody and physical placement is crucial for parents navigating the family law system as both aspects play significant roles in the child’s well-being and the parents’ responsibilities. When parents recognize these differences, they can better advocate for arrangements that serve the best interest of their children and ensure a stable, consistent supportive environment as they grow. If you find yourself in a legal dispute over custody and placement and are looking for legal representation, it is important to hire an attorney who fully understands the complex analysis of these issues. It is also advantageous to retain an attorney who you can be open and honest with because a full review of the factors that the court must consider in entering orders for custody and placement are fact driven and the details related to those factors matter. If you are in need of a Family Law Attorney please reach out to our law firm, we would be happy to assist you.

What is a Guardian Ad Litem?

What is a Guardian Ad Litem?

by | Jun 28, 2023 | Article, Family Law

A Guardian ad litem (GAL) is an attorney who is appointed by the Court to represent the best interests of a minor child. If the parties are represented by counsel, the attorneys often give their recommendation to the Court about who they think would be a good fit as GAL. The GAL is required to have had specific training and/or extensive experience in order to qualify. The Wisconsin State Bar has regular basic trainings for GALs with other more advanced trainings for things such as investigating domestic violence. Some Wisconsin counties keep attorneys on contract throughout the year to serve as GALs in cases.

An important distinction to make is that the GAL does not represent the minor child. Only the minor
child’s “best interests.” The main difference here is that a GAL is not bound to do what the minor child
asks them to do. By contract, an advocate attorney is more bound to do what their client asks them to. See Wis. Stat. § 767.407(4) for more information on this. Instead, the wishes of the minor child are one of the factors that a GAL takes into account when making their recommendation to the Court.

When a GAL is appointed, the parties may be ordered to pay a deposit toward the GAL’s fees. It is
typical for both parties to be responsible for paying one-half of the fees. Different counties
require different down payments and allow GALs to charge different rates.Once the GAL is appointed and any required deposits are paid, they will begin theirinvestigation. They mostly focus on custody and placement issues. They will likely want tospeak with any lawyers on the case, both parties individually, the minor child and other people who have relevant information (i.e., teachers, day care providers, relatives, medical and other treatmentproviders, or child welfare agencies). The GAL may see a need for further professionals to get involvedand conduct investigations such as custody studies or psychological evaluations. Additionally, GALs arerequired by law to investigate and report to the Court if there is any evidence of domestic abuse.

The GAL will prepare an official report to the Court which outlines their recommendation, taking
into consideration any and all evidence of the issues that they believe would be used at a potential trial.

They will include a proposed placement schedule that is in the best interests of the child. The GAL may participate in any depositions or contested hearings which involve custody and placement. They can cross-examine the parties’ witnesses and even call their own witnesses to introduce evidence to the Court.

If a GAL has been appointed to your case, you will want to cooperate with their investigation. If you have an attorney, you will want your attorney to communicate regularly with the GAL to make sure they have everything they need to determine what is in the best interest of the minor child.

May I Go to Another State to Get a Speedy Divorce?

May I Go to Another State to Get a Speedy Divorce?

by | Nov 14, 2022 | Article, Family Law

In Wisconsin, there is a 120-day waiting period for divorces. After the summons and complaint are served on you or your spouse, the earliest you could be divorced is roughly four months later. However, for most people, settling divorce issues takes significantly longer than 120 days.

Are you thinking that sounds like too long and you are wondering if you can get around that rule? There are drive-through marriage chapels in Las Vegas, are there drive-through divorce chapels? I won’t leave you in suspense on that one. No. There are no drive-through divorce locations in the U.S.

Each state has different rules when it comes to divorce procedures. A simple internet search “Where can I get divorced the fastest” will bring up an article that shows that Alaska requires a 30-day waiting period, which means theoretically you could get divorced four times faster in Alaska.

However, every state also has rules about who can get divorced in that state. In Wisconsin, to get divorced one of the spouses must have been a resident of Wisconsin for six months and a resident of the county where the divorce was filed for 30 days prior to filing for divorce. As the counter example, Alaska requires the couple to have lived in Alaska for at least six consecutive months within the six years before filing for divorce. As you can see, moving yourself to Alaska to get divorced faster is not a very good option.

If you get divorced in a different state in the U.S., your divorce is given “full faith and credit” here in Wisconsin unless there is an issue with how one of the parties was served. If you got divorced in Alaska and followed all the rules there, you are still divorced in Wisconsin. But what if your divorce happened in another country?

The rule in Wisconsin is that courts may recognize a divorce from another country under the legal concept of “comity.” There are two important things to note from this: First, the “may” recognize does not mean that courts have to recognize the foreign divorce. It would be hard to say with certainty if your divorce would “count” in Wisconsin. Second, the legal concept of “comity” is not an entirely clear area of the law, it basically means that courts should give credit to foreign courts unless it goes against the law, morals, or public policy of Wisconsin.

In the past, Wisconsin courts have looked at the circumstances of the divorce in a foreign country and decided if it undermines the states legal system. The classic example of this is a case where two Wisconsin residents traveled to Mexico for a divorce. They followed the Mexican laws and were able to get a very fast totally legal divorce in Mexico. However, because the Wisconsin court found that the Mexico divorce was done with the specific purpose of trying to circumvent Wisconsin laws, it was decided that the divorce should not be given full faith and credit.

If you were living overseas and got divorced according to the laws of that country, without doing it just to circumvent the laws of Wisconsin, it is likely that a Wisconsin Court would give your divorce full faith and credit. If you got divorced internationally but now live in Wisconsin, a Wisconsin court should have the ability to modify the judgement as long as the circumstances would allow for modification the same as if you had been divorced in Wisconsin.

If you are trying to figure out how to get divorced the fastest way possible, it’s likely that traveling to another state or country to get a quicky-divorce will not work.. At best it will leave you in a place of uncertainty as to whether or not you are actually divorced. In Wisconsin, getting divorced in the county that you have been a resident of for at least the last 30 days is the fastest and safest way to get divorced.

If you are ready to discuss the divorce process please reach out to one of our experienced family law attorneys. They have the experience and compassion to help you navigate this process.

 

Family Court is a Court of Equity

Family Court is a Court of Equity

by | Aug 16, 2022 | Article, Family Law

Often when trying to define what “equity” means in the legal context, people use words like “fair” or “equal” but neither of those really encompass what it means for the Court to be a “court of equity.” So, I am going to try and explain what it means without using ‘legalese’ or using the word in the definition. Even though this article will be mostly referencing family law or family court, this can apply to non-family law cases also.

Below is the Cornell Law School Legal Information Institute’s definition.

Equity: In law, the term “equity” refers to a particular set of remedies and associated procedures involved with civil law. These equitable doctrines and procedures are distinguished from “legal” ones. While legal remedies typically involve monetary damages, equitable relief typically refers to injunctions, specific performance, or vacatur. A court will typically award equitable remedies when a legal remedy is insufficient or inadequate. For example, courts will typically award equitable relief for a claim which involves a particular or unique piece of real estate, or if the plaintiff requests specific performance.[1]

This definition provides an interesting dividing line worth noting. Family Court is a court of equity and not a “court of law”, which means that there are not always hard and fast rules that the judge uses to make a ruling. In Family law there generally are not statements such as, “Well, Spouse A, because you did ‘X’ that means you get primary placement of the child.” Instead the court has a number of factors to consider when making most decisions.[2] Compare this to a court of law that says, “You were going one mile an hour over the speed limit, that’s illegal, here’s your fine.”

While there may be discretion as to whether to enforce the law, there are typically few factors that a court reviews to determine if someone actually broke the law. As a practical matter, most Family Law cases are difficult to appeal because the Family Court judge has discretion in making most decisions and two different judges might come to different decisions when looking at all the factors. On appeal, the court of appeals is only allowed to determine if the Family Court judge abused that discretion, which is rare.

Wisconsin courts have used a variety of phrases to describe the Court of Equity. “”A court of equity has inherent power to fashion a remedy to the particular facts.”[3] Other cases say that the court of equity has “wide latitude”[4] to provide both sides the relief they need. This means that a court could try to find a way to give both parties all, or a portion of, what the parties want, even if there is not a specific law that says that particular outcome is required. Courts get to “adapt,”[5] or “shap[e] [their ruling] . . . to fit the changing circumstances of every case and the complex relations of all the parties.”[6]

This type of court ruling is incredibly different from the “justice is blind” statue that we have heard about the court system. Courts of equity are not blind. Courts of equity have their eyes wide open, looking at all the circumstances they are allowed to look at. They try to mold and craft a ruling to the contours of the case.

You may be thinking, it seems that all courts should be like this. The issue is, this type of court ruling or procedure, where each case is treated as unique, becomes near impossible to predict. Different judges might look at the same facts and consider the same factors but come to different conclusions or rulings. We rely on our courts to interpret laws consistently so that there is predictability in our society. People want to know what the consequences of their actions will be. But, there are settings, like family law, where we realize that no two cases or families are similar enough that a one size fits all approach would work.

In Summary, the best way to describe the court of equity, is to say “it’s like a court of law and rules, but it is allowed to be more creative in finding a solution that is right for the specific case at hand and the court of equity can be less concerned about if that same ruling would work for the next case.”

[1] https://www.law.cornell.edu/wex/equity

[2] Wis. Stat. § 767.41(5)

[3] Town of Fond du Lac v. City of Fond du Lac, 22 Wis. 2d 525, 531-32, 126 N.W.2d 206 (1964).

[4] Beidel v. Sideline Software, Inc., 2013 WI 56.

[5] Am. Med. Servs., Inc. v. Mut. Fed. Sav. & Loan Ass’n, 52 Wis. 2d 198, 205, 188 N.W.2d 529 (1971).

[6] Ash Park, LLC v. Alexander & Bishop, Ltd., 2010 WI 44.