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Ensure your rights are fully protected

No one ever wants to face a divorce. It is one of life’s most traumatic experiences. Have you and your spouse found there is no way to work out your differences? If only one spouse wants a divorce, a judge will usually find a marriage irretrievable broken.

A divorce will end a marriage. A legal separation involves the same procedures as divorce but the separated spouses can’t marry others. Legal separation is an alternative for those who wish to avoid a divorce.

 

If one spouse wants to seek having a legal separation converted into a divorce without the other spouse’s consent, they can do so after one year. If spouses reconcile, they may apply to have the separation revoked.

What is the difference between a divorce and a legal separation?

An annulment will dissolve a marriage that was invalid from the beginning. A marriage may be invalid because one spouse may have been too young, unable to have sexual intercourse, incapable of consenting to the marriage or they were induced to marry by fraud or force.  

What is an annulment?

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How long must I live in Wisconsin before filing for divorce?

You must be a resident of Wisconsin for at least 6 months before filing for divorce. You must also live in the county where you file for at least 30 days.

How long does it take to get a divorce?

Four months (120 days) must pass between serving of the initial papers and the final divorce hearing. Most divorces take longer than four months.  

 

Several factors may affect the length of the divorce process:

• Complexity of the case

• Ability of the spouses to agree on the issues

• Amount of other business before the trial court

 

A divorce will not be effective until the final hearing. Once a divorce is final, both parties must wait at least six months before getting married

to another person.

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

Yes, your rights can be protected throughout all aspects of a divorce action.

 

There are additional responsibilities for parents who have minor children together.

 

The judge or family court commissioner may issue temporary orders to protect your rights during the divorce process.

How does the court determine child support payments?

If a parent has physical placement with their child for less than 25% of the time, the court will usually base child support on a percentage of that parent’s gross (pre-tax) income.  

 

The standard child support percentages are:

• 17 percent for one child

• 25 percent for two children

• 29 percent for three children

• 31 percent for four children

• 34 percent for five or more children

There is a separate child support formula for shared placement.

What is maintenance?

Formerly known as alimony, maintenance is money one spouse pays to the other during or after a divorce. Child support is not tax deductable, maintenance payments are.

How does the court decide whether to award maintenance?

A husband and wife can make an agreement on whether maintenance is appropriate and what the amount and duration will be. If there is no agreement, the judge will decide these issues.

What is a wage assignment?

A wage assignment is a court order that directs an employer to deduct child support or maintenance payments from an employee’s pay.

How does the court divide property?

Most of a couple’s property, including assets such as retirement accounts and personal property, can be divided in a divorce. One exception to this division is property that has been received either as a gift from a third party or an inheritance. There are some circumstances in which even gifts or inheritances may be divided.

 

If the couple cannot agree on how to divide their property, the court will make the decision.

What is a default divorce?

A default divorce is one in which the spouses do not have any contested issues for the court to decide.

 

A “default divorce” should not be confused with a “no-fault” divorce. A no-fault divorce means that the petitioner does not need to prove wrongdoing on the part of the other spouse in order to file for divorce. Wisconsin is a no-fault divorce state. The only legal basis for divorce in this state is that the marriage is “irretrievably broken”.

What if my spouse and I can’t reach an agreement?

If you and your spouse cannot reach a final agreement, the case will go to trial. The trial date will depend upon the length of time needed for the hearing and the court’s other business. Contested divorce trials are generally costly and involved. The court will enforce rules of evidence which can contain pitfalls for the unwary. The best way to avoid protracted litigation is to hire an attorney.

Can spouses use the same attorney?

Will the court order my spouse to pay for my attorney?

Ethical rules prohibit an attorney from representing both spouses in a divorce proceeding.  

 

Occasionally, an attorney will represent one spouse while the other spouse chooses to represent himself or herself.

 

Representing yourself during the divorce process can have hidden consequences which you probably will not realize until your divorce is final and it is too late to change the judgment.

Generally, each party pays for his or her own lawyer.

May a woman use her former name after a divorce?

If a woman wants to resume using her maiden name or a former legal name after a divorce, the court can restore it as part of the divorce action. She may also continue to use her married name if she so wishes.

What can I do if I am dissatisfied with the final divorce judgment?

You may appeal to the Wisconsin Court of Appeals. There are strict time limits that exist for filing an appeal (usually 45 days). An appeal is expensive.

Can the final divorce judgment be changed in the future?

The trial court is able to modify certain orders, such as a child support and physical placement order, in the future. You must show that a substantial change in circumstances has occurred since the current orders have gone into effect before the trial court can revise the judgment. Once the property division order has been approved by the court, in most cases, it cannot be changed.

Can I move to a new location after the divorce?

You may face limitations on where you can move after a divorce just as you do during a pending divorce if you have children.

If my spouse fails to pay bills as ordered by the court, can the creditors sue both of us?

Yes, creditors may sue both of you for failure to pay bills.

What is mediation?

Through mediation, parties may be able to resolve their disputes faster, with less bitterness, at less cost than a battle in court. A mediator takes no one’s side. Their role is to help parties communicate and arrive at mutual agreements.

What are cooperative and collaborative divorce?

The focus of these processes is settlement of issues. Experienced family lawyers are essential to this process.

What should I look for in a divorce attorney?

Good divorce lawyers don’t push their clients into a full-scale war, contrary to what many people believe about divorce lawyers. This can only leave behind emotional and financial damage and resentment that can linger for years.  

 

The best outcome in a divorce is that both parties are allowed to begin to heal and get on with their lives. Experienced divorce attorneys will help their clients settle their divorce, if at all possible, rather than go to trial.  

 

As you ask family and friends for recommendations, you should seek the services of a divorce lawyer who will:

• Act as a problem-solver

• Be courageous enough to tell you things you may not want to hear

• Be courteous and cooperative in working with your spouse’s attorney