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Wisconsin Divorce Laws

Ten Divorce Mistakes to Avoid

  1. Failing to understand the divorce process
  2. Confusing your emotional needs with the business decisions of divorce
  3. Forgetting to weigh the cost the benefit of each contested issue
  4. Putting too much emphasis on “winning”
  5. Failing to be truthful
  6. Believing that the award of custody and placement means the children lose the other parent
  7. Deciding to fight every The greater the fight the more costly the divorce. Fighting over every issue will probably result in the sale of some assets to pay for the cost of litigation.
  8. Prolonging the Failing to divide your assets in a timely manner often means sharing the increased value of that asset with your spouse.
  9. Getting divorce advice from family and friends
  10. Not following your attorney’s advice


Jurisdiction and Filing for a Divorce

In the State of Wisconsin, a divorce action must be filed in the county where the person resides.  The person filing for divorce must be a resident of the State of Wisconsin for more than six months immediately proceeding the filing, and a resident of the county where the divorce will be filed for more than 30 days prior to the filing of the action.


Where should I file for my divorce?

You must file your Summons and Petition in the county where you reside.  The person filing for divorce must be a resident of the county where the divorce action is filed for at least 30 days and a resident of the State of Wisconsin for at least six months prior to filing an action.


Where can I find Wisconsin Divorce Forms?

Go to: www.wicourts.gov/forms1/circuit.htm#family or check out the Waukesha County, Wisconsin, Clerk of Courts website: www.waukeshacounty.gov


How Long Do You Have to Serve a Divorce Summons and Petition?

In Wisconsin, the Petitioner has ninety (90) days from the date of filing to serve the Summons and Petition on the opposing party.


How long does a divorce take in Wisconsin

After you file and serve the Summons and Petition for Divorce on your spouse, you have to wait at least another 120 days.  While by law a person may be divorced after 120 days, generally, it takes longer than 120 days to complete a divorce.  Parties may not be divorced until both parties agree on all issues or have a trial where the judge rules on each issue.


Types of Divorces in Wisconsin


What is the difference between a divorce and legal separation?

The process for both a legal separation and a divorce in Wisconsin is substantially the same. The main difference between the two is that with a legal separation you can not remarry. In a divorce action you may remarry after the required six month waiting period.


Why Choose a Legal Separation Instead of a Divorce?

One advantage is that the residency requirement is shorter for a legal separation and allows a spouse to start a legal separation more quickly than a divorce.  For a legal separation, you must be a residence of the county for at least 30 days.  But to file a divorce, you must be a resident of the county for 30 days and a resident of the State for at least 6 months.

Additionally, some health insurance plans, by their contractual language, only terminate coverage for “divorced” spouses, but not for “legally separated” spouses.  Therefore, the non-employee spouse may continue health care coverage on his/her legally separated employed spouse’s insurance.  In order to save money on obtaining new health care coverage, a non-employee spouse may pursue a legal separation instead of a divorce.


What is Collaborative Divorce?

Linda Vanden Heuvel answers the question, what is a collaborative divorce in the state of Wisconsin in this short video.


Joint Petition: How can my spouse & I file divorce papers so that neither one of us individually initiated the action?

In Wisconsin this can be accomplished by filing a Joint Petition for Divorce. With a Joint Petition both parties will be required to sign the document and each will be designated as a Joint Petitioner. The paperwork will need to be filed with the Clerk of Courts in the county where either of you (or both) reside. To file a divorce action you must be a resident of the State of Wisconsin for 6 months and a resident of your county for 30 days before filing.


How do I decide on the value of my residence in a divorce action?

There are generally four ways to value your home:

1.    Have your home valued by a professional appraiser.

2.    Ask a real estate agent to provide you with a market analysis using comparable real estate in your market area.

3.    Use the fair market value, as determined by your real estate taxes.

4.    Agree on a value between you and your spouse.

In today’s economy, it is important that you value your home as of the date of divorce.  Sometimes an appraisal is completed months before the actual divorce and the actual value of the real estate as of the date of divorce may change significantly.


How does property division work in Wisconsin

Wisconsin is referred to as an “equitable distribution” state.  Typically, the parties reach an agreement as to how assets should be divided.  If the parties are unable to reach a settlement, the court will distribute the marital assets between the two parties in an equitable fashion.  Equitable does not necessarily mean equal, but rather what is deemed fair and reasonable by the court.


Divorce-The House is in Just my Name, Does that Mean I Get It?

No, unless you inherited the house or received it as a gift, the house is subject to division.  You may be awarded the house, but you will have to “buy-out” your spouse’s interest in the
house.  The fact that the house is titled in just your name does not mean that your spouse has no marital interest in the property.Additionally, even if you inherited the house or received it as a gift, the property may have been transmuted from property not subject to division to property that is subject to division.  Please give us a call to discuss any of these issues.


I am divorced, do I have a right to my ex-husband’s social security?

If you were married ten years or longer, you may receive social security benefits as a widow or widower if your ex-spouse dies, even after your divorce and even after your ex-spouse remarries.  Benefits paid to a surviving, divorced spouse who is 60 or older will not affect the benefit rates for other survivors receiving benefits; meaning your children’s benefits won’t be affected if you are over 60.  If you remarry before you turn 60, you lose the entitlement to survivor’s benefits from your former spouse unless your later marriage ends before the death of your former spouse.  If you remarry after age 60, you may still collect benefits on your former spouse’s record.  For more information see:  www.ssa.gov.


What if my spouse is hiding assets in a Divorce – Business

If you believe that your spouse is hiding assets and he or she owns a business, your first step is to obtain a copy of the business’s income tax return.  Use IRS form 4506.  Your spouse must sign this form, but generally the court will compel the exeuction of this authorization.  There are a number of ways to hide money in a business setting, including, but not limited to: Paying a salary to friends or relatives, Delaying receipt or depositing of funds, Purchasing artwork, furniture or other valuable items in the name of the business to increase expense and depreciate write-offs, Inflating costs You should generally hire an accountant to help you ascertain the true value of the business and the actual income paid to your spouse.


Is Wisconsin a no-fault state, or do I need grounds for a divorce?

Wisconsin is a no-fault divorce state. This means that neither you nor your spouse are required to prove that the other is “at fault” in order to be granted a divorce. Proof of factors such as infidelity, cruelty, or desertion are not necessary to obtain a divorce in Wisconsin. The only requirement is that the marriage is irretrievably broken.

If either party testifies that the marriage is irretrievably broken, that testimony is generally sufficient for the court to grant the divorce. If one party testifies that the marriage is not irretrievably broken, the court will generally nevertheless grant the divorce, based on the premise that a marriage cannot continue if one party wants out of the marriage.


What is tracing in a divorce action?

Tracing is the exercise of following the asset trail.  If an asset can be traced to a particular source, the Court relies on other principal and rules to determine whether the traced asset is divisible or not divisible.  That the existence of subsequently purchased property can be traced to income generated by non-divisible property that is gifted or inherited does not mean that the purchased property is non-divisible.  Once property is transferred from separate property to joint ownership, the property becomes part of the marital estate subject to division.


If my spouse dies during the divorce, what happens?

In Wisconsin, the divorce is dismissed.


How does taxes effect my Divorce

The IRS provides a publication: Divorced or Separated Individuals. It’s IRS Publication 504, available at www.irs.gov or by calling 1-800-829-3676


What are the grounds for divorce in Wisconsin

In Wisconsin, the only necessary ground for divorce is that one party believes that the marriage is irretrievably broken.


How can Facebook effect my divorce?

Be careful what you place on Facebook.  In a recent divorce action, I was able to ascertain the other party’s income based on information he had placed on Facebook and on a dating service questionnaire.


On the Completion of your Divorce, Change Documents Used to Prepare for Death

Once divorced, review your wills, trusts, living will, life insurance, medical power of attorney, financial power of attorney, beneficiary designations, etc., to make sure that your estate planning is up to date.


What resources are there for Divorce and Child Support Cases in Wisconsin

  1. http://www.supportguidelines.com (collection of child support cases across the country)
  2. http://abanet.org/family (also provides links to military information for child support)
  3. http://www.ccap.courts.state.wi.us/internetcourtaccess (provides access to information on closed and pending cases
  4. Child Support Percentage Worksheet http://www.wisconsinforms.com/forms/cs3/pdf
  5. Child Support Calculators http://www.wisconsinfathers.org http://www.dwd40calculator.com


Will we still get divorced if my spouse will not agree that our marriage is irretrievably broken?

In order to get divorced in Wisconsin, only one party needs to testify that the marriage is irretrievably broken. In the eyes of the Court, if it is broken for one, it is broken for both.


Parents Not Yet Divorced, Not Separated Nor Living Apart for Last Six Months of Calendar Year

When neither of the above conditions are met, then the parent entitled to the dependency exemption is that parent with whom the child resided for the longest period of time during the taxable year.  Or if the child resides with both parents for the same amont of time during such taxable year, the parent with the highest gross income.  IRC Sec. 152(c)(4)(B)(1) and (2).


How do you divide the animals in divorce?

Dividing personal property is often difficult in a divorce. Dividing animals is painful! The reason it is painful is because our pets become family members. While they may be family members to us, the Court does not look at them that way. They are personal property that is either divided by the parties or they may be ordered sold and the proceeds divided by the parties. The moral of the story is . . . work it out.


Can my rights be protected between the start of a divorce action and the final hearing?

Yes. Every divorce includes an order that neither spouse can harass, intimidate, physically abuse, or impose restraints on the personal liberty of the other spouse or minor children (under age 18) of either spouse. In addition, neither spouse can encumber, conceal, destroy, damage, transfer, or otherwise dispose of property owned by either or both of the spouses, without the other spouse’s consent or a prior order of the court or family court commissioner. There are exceptions for actions taken in the usual course of business, in order to buy necessities, or to pay reasonable divorce expenses, including attorney fees.In addition, the judge or family court commissioner may issue other temporary orders that protect your rights during the divorce process. For example, temporary orders may determine child custody and physical placement, who lives in the family home, payment of maintenance and child support, and payment of debts.


Difference Between Domestic Abuse Injunction and Harassment Injunction in Wisconsin

Effective September 1, 2010, parties can stipulate to the issuance of a harassment injunction instead of a domestic abuse injunction.  If the parties agree to such a stipulation, the Court may not approve the stipulation unless the following factors are met:

  1. Either or both parties submit an oral request on the record for the conversion, explaining the reason why the conversion is requested; and
  2. The Court advises the petitioner personally and determines that the petitioner entered into the stipulation voluntarily and with an understanding of the differences between a domestic abuse injunction and a harassment injunction.

In a harassment injunction, the Court may order the respondent to avoid harassing the petitioner, avoid the petitioner’s residence or any premises temporarily occupied by the petitioner or any combination thereof.  A harassment injunction may only prohibit the conduct that has been actually proven in Court.  A harassment injunction only prohibits possession of a firearm if the petitioner has proven by clear and convincing evidence that the respondent may use a firearm to cause harm to another or public safety.

Under a domestic abuse injunction, any firearm the respondent owns or possesses must be surrendered and any domestic violence conviction prohibits return of the guns.


Hiring a Divorce Attorney

Can Spouses retain the same divorce attorney?

Generally, spouses should not use the same attorney.  Both spouses will have different interests.  Because an attorney’s ethical obligation belongs to only one client, the attorney is only able to advocate for one spouse.

What financial documents should I give to my divorce attorney?

The answer to this question varies with each attorney, but should always include the following:
1.    Personal tax returns for you and your spouse for the last five years;
2.    Books, records, financial statements and tax returns for any businesses in which you or your spouse has an interest;
3.    Banking and credit card statements;
4.    Mortgage statements;
5.    Telephone bills;
6.    Other records or major expenditures;
7.    Stocks, bonds, mutual funds and equities;
8.    Retirement plans;
9.    All insurance policies;
10.  Descriptions of your and your spouse’s employee benefits; and
11.  Your latest pay stubs.