Wisconsin Divorce Procedures

Wisconsin Divorce Procedures

Complete overview of Wisconsin divorce laws for people considering a Wisconsin divorce or filing a Wisconsin divorce with issues to be resolved about child custody, child support, visitation and alimony.

Wisconsin Divorce Residency Requirements

In order to file your Petition for Divorce in Wisconsin, you must make sure the Circuit Court has jurisdiction over your case. The most common way spouses are eligible to use a specific court system is by meeting the residency requirements. Meeting the Wisconsin residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing requirements are as follows:

One of the spouses must a be a resident of the state of Wisconsin for at least 6 months and a resident of the county in which they file for at least 30 days immediately prior to filing for the divorce. A hearing will not be scheduled by the clerk until the expiration of 120 days after service of the summons and petition upon the respondent or the expiration of 120 days after the filing of the joint petition.

The divorce is typically filed with in county in which the filing spouse resides. (Wisconsin Statutes – Sections: 767.05, 767.083).

Wisconsin Grounds for Divorce

The Petition for Divorce is the initial document filed with the Wisconsin court. It is in this document that the filing spouse will request the court to terminate the marriage under certain specified grounds.

Irretrievable breakdown of the marriage.

The parties may mutully consent to the marriage being irretrievably broken, or if the parties must have lived separate and apart for at least 1 year without cohabitation.

If the parties have not voluntarily lived apart for at least 1 year immediately prior to commencement of the action and if only one party has stated under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to filing the petition and the prospect of reconciliation. (Wisconsin Statutes – Sections: 767.07).

Wisconsin Uncontested Divorce

This information is an overview of the uncontested Wisconsin divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Wisconsin.

To file for divorce in Wisconsin, one of the spouses must be a resident of the state for six months and a resident of the county of filing for 30 days prior to starting the action. There is a 120-day waiting period after the service of summons or after the filing of a joint petition before any hearing on the divorce can be scheduled.

No-Fault is the only grounds for divorce in Wisconsin. This means an irretrievable breakdown of the marriage demonstrated by 1) a joint petition of divorce on these grounds; 2) living separate and apart for a year before filing; or 3) a court finding that there has been an irretrievable breakdown with no possible reconciliation.

Actions are filed in the Circuit Court/Family Court of the county.

The spouse initiating the action is the Petitioner; the spouse responding is the Respondent. When the petition is jointly filed, the spouses are called Co-Petitioners.

Irretrievable breakdown is the only ground for a legal separation, and the residency requirements are the same as those for divorce.

Wisconsin offers a simplified divorce, wherein both spouses file a joint petition, consent to the personal jurisdiction of the court and waive service of process. In all cases, a financial disclosure form must be filed. If children are involved, an official child support form must be filed with the petition. In cases where both spouses agree the marriage is broken and have agreed on all issues, the case may be brought before a family court commissioner.

When a couple are in agreement, they can complete jointly, either a Joint Petition without Minor Children, FA-4111, or a Joint Petition with Minor Children, FA-4110. In either case, the parties must also complete a Confidential Petition Addendum, GF-179, which gives the court confidential information about the spouses and their children.

If one spouse files individually, he or she must also complete, depending upon the situation, a Petition with Minor Children, FA-4108, or a Petition without Minor Children, FA-4109 and a Summons with Minor Children, FA-4104, or a Summons without Minor Children, FA-4105. A Confidential Petition Addendum, GF-179 must also be completed when one spouse files individually.

When one spouse files individually, the Petitioner may decide he or she needs a hearing to handle temporarily such issues a debt and asset allocation and in families with children child support and visitation. If so, the Petitioner must also complete these forms:

> An Order to Show Cause and Affidavit for Temporary Order with Minor Children, FA-4128, or

> An Order to Show Cause and Affidavit for Temporary Order without Minor Children, FA-4129;

> A Financial Disclosure Statement, FA-4139, which gives the court a comprehensive disclosure of the spouses’ finances.

If, however, the couple reach an agreement on disputed issues at any time, they can file a Stipulation for Temporary Order, which reflects their consensus.

Five copies of the appropriate documents must be filed with the Clerk of the Courts, who assigns the action a number. The clerk then keeps the original and returns one copy of each to each of the spouses, one copy to the Family court Commissioner and one copy to the Child Support Agency, as the case may be.

When a couple does not file jointly, the following documents must be served on the Respondent spouse:

> The Summons, which gives the Respondent 20 days to file an answer;

> The Petition, which spells out the facts of the marriage and the ground for divorce;

> The Confidential Petition Addendum, which provides personal information;

> A Proposed Parenting plan, if there are minor children.

If the Respondent agrees, the Petitioner may personally serve these papers upon him or her. In this case, the Respondent must sign an Admission of Service, FA-4119, which the Petitioner returns to the clerk. The action can then move along the simplified route.

If not, the Petitioner must use one of these ways to service process on the Respondent:

> Service by a friend or relative who is 18 or over, a resident of Wisconsin and not a party to the action, who then completes an Affidavit of Service, FA-4120, which is returned to the Clerk of Courts;

> Service by a private process server, who returns a Proof of Service to the Court;

> Service by the sheriff of the county in which the Respondent resides.

> Service by Mail (for some actions). which requires the completion of an Affidavit of Mailing, FA-4121.

When the Respondent cannot be located or will not accept service, the Respondent, having exhausted all the above options, may serve process by Publication. After being given an Affidavit of Due Diligence/Not Found/Attempted Service stating that the Respondent cannot be found, the Petitioner may file the following:

> A Publication Affidavit of Mailing, FA-4123, which states that the Petitioner has also attempted to locate the missing Respondent by mail;

> A Publication Summons, FA-4122, which is a public notice of the divorce action stating that the Respondent cannot be personally served.

The Publication Summons can then be published in a newspaper in a municipality where the spouse lives or lived, once a week for three consecutive weeks. The Respondent is considered served on the first day of publication. The newspaper provides a document as proof of publication.

Upon receipt of service, the Respondent may file a Response and Counterclaim, FA-4113, in which he or she disputes or agrees with the allegations in the Petition. A Response and Counterclaim may signal the beginning of a contested divorce, which means the parties may continue to negotiate even as the action moves toward a trial.

If the action is not contested, the Petitioner (or parties who are filing jointly) must also prepare the following documents:

> A Marital Settlement Agreement with Minor Children, FA-4150, or

> A Marital Settlement Agreement without Minor Children, FA-4151.

The Marital Settlement Agreements, with or without Minor Children, memorialize the resolution of issues such as the division and distribution of assets and liabilities and spousal support, and in the case of children, custody and support.

> A Proposed Marital Settlement Order with Minor Children, FA-4152 or

> A Proposed Marital Settlement Order without Minor Children, FA-4153;

The Proposed Marital Settlement Orders are proposals for issues that might be in dispute.

> Findings of Fact, Conclusions of Law and Judgment with Minor Children, FA-4160, or

> Findings of Fact, Conclusions of Law and Judgment without Minor Children, FA-4161.

Findings of Fact, Conclusions of Law and Judgment set forth the court’s view of the dissolving marriage, the conclusions of law that apply, and the court’s judgment of divorce.

When one spouse files alone, he or she must also prepare an Order to Appear, FA 5005, which notifies the other party to appear at the final divorce hearing.

Wisconsin Simplified Divorce Procedures
 
The spouses may file a joint petition for divorce in which they both consent to personal jurisdiction of the court and waive service of process. A copy of a guide to Wisconsin Court procedures for obtaining a divorce is to be provided to the spouses upon filing for divorce. In all cases, a financial disclosure form must be filed. Also, if children are involved, an official child support form (which is available from the court clerk) must be filed with the petition. In addition, separation agreements are specifically authorized by law. Finally, in cases in which both spouses agree that the marriage is broken and have agreed on all material issues, the case may be held before a family court commissioner. [Wisconsin Statutes Annotated; Sections 766.58, 767.081, 767.085, 767.10, 767.13, and 767.27].

Wisconsin Property Division Factors

In Wisconsin, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the Circuit Court within the Decree of Divorce.

Wisconsin is referred to as an “equitable distribution” state. When the parties are unable to reach a settlement, the Circuit Court will take the following approach to dividing the assets; First, it will go through a discovery process to classify which property and debt is to be considered marital. Next, it will assign a monetary value on the marital property and debt. Last, it will distribute the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, but rather what is deemed by the Circuit Court to be fair.

The court shall consider the following, without regard to marital misconduct will consider all of the following: (1) The duration of the marriage. (2) The property brought to the marriage by each party. (3) Whether one of the parties has substantial assets not subject to division by the court. (4) The contribution of each party to the marriage, giving appropriate economic value to each party’s contribution in homemaking and child care services. (5) The age and physical and emotional health of the parties. (6) The contribution by one party to the education, training or increased earning power of the other. (7) The earning capacity of each party (8) The desirability of awarding the family home or the right to live therein for a reasonable period to the party having physical placement for the greater period of time. (9) The amount and duration of an order granting maintenance payments to either party, any order for periodic family support payments and whether the property division is in lieu of such payments. (10) Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests. (11) The tax consequences to each party. (12) Any written agreement made by the parties before or during the marriage concerning any arrangement for property distribution. (13) Such other factors as the court may in each individual case determine to be relevant. (Wisconsin Statutes – Sections: 766.01, 766.97, 767.255).

Wisconsin Spousal Support/Maintenance/Alimony Factors

In Wisconsin the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce. Keeping this in mind, if you and your spouse are unable to reach and agreement on this issue, the Circuit Court will order support from one spouse to the other on a case-by-case basis as follows:

The court may grant an order requiring one spouse to pay maintenance to the other party for a temporary or indefinite period of time after considering the following factors:

(a) The duration of the marriage. (b) The age and health of the parties. (c) The property award (d) The educational level of each party. (e) The earning capacity and the custodial arrangement if there are children. (f) The feasibility that the party seeking maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and, if so, the length of time necessary to achieve this goal. (g) The tax ramifications of the support order. (h) Any mutual agreements made by the parties. (i) The contribution by one party to the education, training or increased earning power of the other. (j) Such other factors as the court may in each individual case determine to be relevant. (Wisconsin Statutes – Sections: 767.26, 767.261, 767.29).

Wisconsin Child Custody Factors

In Wisconsin, the court will consider the following factors when making a custody decision that is best for the child(ren) involved:

1. The wishes of the child’s parent or parents, as shown by any stipulation between the parties, any proposed parenting plan or any legal custody or physical placement proposal submitted to the court at trial.

2. The wishes of the child, which may be communicated by the child or through the child’s guardian ad litem or other appropriate professional.

3. The interaction and interrelationship of the child with his or her parent or parents, siblings, and any other person who may significantly affect the child’s best interest.

4. The amount and quality of time that each parent has spent with the child in the past, any necessary changes to the parents’ custodial roles and any reasonable life-style changes that a parent proposes to make to be able to spend time with the child in the future.

5. The child’s adjustment to the home, school, religion and community.

6. The age of the child and the child’s developmental and educational needs at different ages.

7. Whether the mental or physical health of a party, minor child, or other person living in a proposed custodial household negatively affects the child’s intellectual, physical, or emotional well-being.

8. The need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child.

9. The availability of public or private child care services.

10. The cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party.

11. Whether each party can support the other party’s relationship with the child, including encouraging and facilitating frequent and continuing contact with the child, or whether one party is likely to unreasonably interfere with the child’s continuing relationship with the other party.

12. Whether there is evidence that a party engaged in abuse.

13. Whether there is evidence of interspousal battery.

14. Whether either party has or had a significant problem with alcohol or drug abuse.

15. The reports of appropriate professionals if admitted into evidence.

16. Such other factors as the court may in each individual case determine to be relevant. (Wisconsin Statutes – Sections: 767.24).

Wisconsin Child Support Factors
 
Either or both parents may be ordered to pay child support and health care expenses. The factors to be considered are: (1) the financial resources of the child; (2) the standard of living the child would have enjoyed if the marriage had not been dissolved; (3) the physical and emotional conditions and educational needs of the child; (4) the financial resources, earning capacity, needs, and obligations of the parents; (5) the age and health of the child, including the need for health insurance; (6) the desirability of the parent having custody remaining in the home as a full-time parent; (7) the cost of daycare to the parent having custody if that parent works outside the home or the value of the childcare services performed by that parent; (8) the tax consequences to each parent; (9) the award of substantial periods of physical placement to both parents [joint custody]; (10) any extraordinary travel expenses incurred in exercising the right to periods of physical placement; (11) the best interests of the child; and (12) any other relevant factors. There are official guidelines and percentage standards for child support are available from the Wisconsin Department of Health and Social Services. The court may require that child support payments be guaranteed by an assignment of income, that the payments be made through the clerk of the court, or that health insurance be provided for the children. The court may also order a parent to seek employment. The court may order spousal maintenance and child support payments be combined into a “family support” payment. [Wisconsin Statutes Annotated; Sections 767.10, 767.25, 767.261, 767.265, 767.27, and 767.29].

Wisconsin Grandparent’s Rights

Grandparent Rights to Visitation: Visitation may be granted if the grandparent has maintained a relationship with the child similar to the parent-child relationship; the court is to consider the best interest of the child and the wishes of the child. Visitation may also be granted to grandparents if one of the child’s parents is deceased and the court finds that the visitation is in the child’s best interest. W.S.A. §§880.155 and 767.245.

When Adoption Occurs: Adoption has no effect on the grandparent’s rights if the adoption is by the stepparent.

Child Custody Statutes: Referred to as “legal custody and physical placement.” Best interest of the child considering: (1) wishes of parties; (2) wishes of child; (3) interaction and interrelationship between child and the parties, siblings, and any other significant person; (4) child’s adjustment to home, school and community; (5) mental and physical health of all parties involved; (6) availability of public or private child care services; (7) whether one party is likely to unreasonably interfere with the child’s continuing relationship with the other party; (8) any evidence of child abuse; (9) any evidence of interspousal battery or domestic abuse; (10) whether either party has had a significant problem with alcohol or drug abuse; and (11) any other relevant factor. W.S.A. §767.24.

Parents May Choose: Yes

Wisconsin Military Divorce Laws

A Wisconsin military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.

Military Protection From Wisconsin Divorce Proceedings

There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.

Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local Wisconsin court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.

Serving an Active Military Spouse

The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a Wisconsin court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.

Residency and Filing Requirements

The typical military divorce filing requirements are as follows:

- You or your spouse must reside in Wisconsin
- You or your spouse must be stationed in Wisconsin

Grounds for Wisconsin Military Divorce

The grounds for a military divorce in Wisconsin are the same as a civilian divorce.

Dividing the Property

Along with the normal Wisconsin property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.

The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.

Child Support and Spousal Support

In Wisconsin, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal Wisconsin child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.

Wisconsin Child Support Guidelines

The Wisconsin child support guidelines “at a glance” provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate Wisconsin child support order.

Wisconsin Child Support Guidelines

Income Share Model *: NO
Percent of Income Model *: YES
Worksheets Available: YES
Extraordinary Medical Expenses Add on: YES
Childcare Add on: NO
Secondary Education Support: NO
UIFSA: YES

* Percent of Income Model: Wisconsin utilizes the percentage of income formula which determines the amount of child support as a percentage of the income of the parent obligated to pay the child support. This percentage is determined by factoring the number of children requiring support. This is the most basic or primitive method for calculating support. Many people believe that it does not take into consideration many important details, which makes this model of support calculation the least exact.

Wisconsin Child Support Definitions

In determining child support payments, the court may consider all relevant financial information or other information relevant to the parents earning capacity. The court shall determine child support payments by using the established percentage standard. Upon request by a party, the court may modify the amount of child support payments determined, after considering the following factors:

(a) The financial resources of the child.

(b) The financial resources of both parents.

(c) Maintenance received by either party.

(d) The needs of each party in order to support himself or herself.

(e) The needs of any person, other than the child, whom either party is legally obligated to support.

(f) If the parties were married, the standard of living the child would have enjoyed had the marriage not ended in annulment, divorce or legal separation.

(g) The desirability that the custodian remain in the home as a full-time parent.

(h) The cost of day care if the custodian works outside the home, or the value of custodial services performed by the custodian if the custodian remains in the home.

(i) The award of substantial periods of physical placement to both parents.

(j) The physical, mental and emotional health needs of the child, including any costs for health insurance.

(k) The childs educational needs.

(l) The tax consequences to each party.

(m) The best interests of the child.

(n) The earning capacity of each parent, based on each parents education, training and work experience and the availability of work in or near the parents community.

Wisconsin Divorce Definitions

This collection of definitions will help clarify some unique characteristics to the Wisconsin Divorce laws, process and paperwork which is filed with the court.

Filing Party Title:
Petitioner

The spouse who will initiate the Divorce by filing the required paperwork with the court.

Non-Filing Party Title:
Respondent or Joint Petitioner

The spouse who does not initiate the Divorce with the court.

Court Name:
State of Wisconsin: Circuit Court, ___________ County

The proper name of the court in which a Divorce is filed in the state of Wisconsin. Each jurisdictional court typically has a domestic relations or a family law department or division.

The state run office devoted to enforcing existing child support orders and collecting any past due child support.

Document Introduction:
In Re the Marriage of:

The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.

Initial Divorce Document:
Petition for Divorce or Joint Petition for Divorce

The title and name of the legal document that will initiate the Wisconsin Divorce process. The filing spouse is also required to provide the non-filing spouse a copy of this document.

Final Divorce Document:
Findings of Fact, Conclusions of Law, and Judgment

The title and name of the legal document that will finalize the Wisconsin Divorce process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.

Clerk’s Office Name:
County Clerk’s Office of the Family Court

The office of the clerk that will facilitate the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.

Legal Separation:

Irretrievable breakdown of the marriage is the only grounds for legal separation in Wisconsin. The residency requirements are the same as for divorce. [Wisconsin Statutes Annotated; Sections 767.05, 767.07, and 767.12].

Property Distribution:
Community Property

The applicable Wisconsin law that will dictate how property and debt is to be divided upon Divorce.

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