Wisconsin Divorce Law
Divorce and Legal Separation in Wisconsin
Divorce and Legal Separation in Wisconsin
Wisconsin Divorce Basics
To file for divorce or legal separation in Wisconsin either of the parties must be a bona fide resident of the state for at least six months prior to filing, and a bona fide resident of the county in which the action is brought for at least 30 days prior to filing
To file for an annulment or affirmance of marriage, one of the parties must have been a bona fide resident of the county in which the action is brought for at least 30 days prior to filing, unless the marriage was contracted in Wisconsin within one year prior to the commencement of the action.
The Petitioner (filing party) may file a Petition for Divorce in the circuit court. The Respondent (non-filing party) has 20 days to file a Response or Counter-Claim after being served.
Generally, an action for divorce or legal separation may not be brought to final hearing or trial before 120 days have passed since service of the summons and Petition on the Respondent, or filing of a Joint Petition.
This “waiting period” may be waived by an order of the court, after consideration of the recommendation of a circuit court commissioner, directing an immediate hearing on the Petition for the protection of the health or safety of either of the parties or of any child of the marriage or for other approved emergency reasons.
Suspension of Proceedings for Possible Reconciliation:
While an action for divorce or legal separation is pending, if both parties stipulate in writing that they desire to attempt a reconciliation, the court may enter an order suspending any and all orders and proceedings for a time period, not to exceed 90 days, that the court deems advisable to permit the parties to attempt a reconciliation without prejudice to their respective rights.
During the suspension period, the parties may resume living together as husband and wife and their acts and conduct do not constitute an admission that the marriage is not irretrievably broken or a waiver of the ground that the parties have voluntarily lived apart continuously for 12 months or more immediately prior to the commencement of the action.
Suspension may be revoked upon the motion of either party by an order of the court. If the parties reconcile, the court shall dismiss the action that was pending. If the parties have not reconciled after the period of suspension, the action shall proceed as though no reconciliation was attempted.
Upon granting a divorce, the court shall allow either spouse, upon request, to resume a former legal surname, if any; with the exception of a known sex offender.
Statute defines a domestic partner as an individual who has signed and filed a declaration of domestic partnership in the office of the register of deeds of the county in which he/she resides. A domestic partnership refers to the legal relationship that is formed between two individuals as described by law.
Criteria for forming a domestic partnership:
Two individuals may form a domestic partnership if they satisfy all of the following criteria:
- 1. Each individual is at least 18 years of age and capable of consenting to the domestic partnership;
2. Neither individual is married to, or in a domestic partnership with another individual;
3. The two individuals share a common residence, even if only one party has legal ownership of the residence, one or both parties have one or more additional residences not shared with the other individual, or one of the parties leaves the common residence with the intent to return;
4. The two individuals are not nearer of kin to each other than second cousins, whether half-blood, whole-blood, or by adoption; and
5. The individuals are members of the same sex.
A domestic partner may terminate the domestic partnership by filing a completed Notice of Termination of Domestic Partnership form with the county clerk who issued the Declaration of Domestic Partnership and paying the applicable fee. The notice must be signed by one or both domestic partners and notarized.
If the notice is signed by only one of the domestic partners, that individual must also file and affidavit with the county clerk stating either of the following:
- That the other domestic partner has been served in writing, as prescribed by statute, that a notice of termination of domestic partnership is being filed with the county clerk; or
- That the domestic partner seeking termination has been unable to locate the other domestic partner after making reasonable efforts and that notice to the other domestic partner has been made by publication.
Service by Publication:
If a domestic partner who is seeking termination of the partnership is unable to find the other domestic partner after making reasonable efforts, he/she may provide notice by publication in a newspaper of general circulation in the county in which the residence most recently shared by the domestic partners is located. The notice does not need to be published more than once.
The termination of a domestic partnership is effective 90 days after the Certificate of Termination of Domestic Partnership is recorded. However, if a party to a domestic partnership enters into a marriage that is recognized as valid in Wisconsin, the domestic partnership is automatically terminated on the date of the marriage.
Legal Grounds for Divorce
- 1. The marriage is irretrievably broken; and
2. Assertion of breakdown of marital relationship by both parties.
The court shall make a finding that the marriage is irretrievably broken, after hearing, if either of the following occurs:
- Both parties have stated by Petition or otherwise under oath or affirmation that the marriage is irretrievably broken; or
- The parties have voluntarily lived apart continuously for at least 12 months immediately prior to commencement of the action and one party has stated that the marriage is irretrievably broken.
- If the court finds no reasonable prospect of reconciliation, it shall make a finding that the marriage is irretrievably broken; or
- If the court finds that there is a reasonable prospect of reconciliation, it shall continue the matter for further hearing no sooner than 30 days, nor more than 60 days later, or as soon thereafter as the matter may be scheduled.
- a. Age;
b. Mental incapacity or infirmity;
c. The influence of alcohol, drugs, or other incapacitating substances;
d. The party was induced to enter into the marriage by force or duress; and
e. The party was induced to enter into the marriage by fraud involving the essentials of marriage.
3. A party was 16 or 17 years of age and did not have the consent of his/her parent or guardian, or judicial approval, and the underage party brings the suit prior to attaining the age of 18 years, or the parent or guardian brings the suit within one year of obtaining knowledge of the marriage and before the underage party reaches the age of 18 years;
4. A party was under 16 years of age, and the underage party brings the suit prior to attaining the age of 18 years, or the parent or guardian brings the suit within one year of obtaining knowledge of the marriage and before the underage party reaches the age of 18 years; or
5. The marriage is prohibited by the laws of the state, and no more than 10 years have passed since the marriage was solemnized, with the exception of bigamy, where the 10 year limitation does not apply.
- Either party already has a husband or wife living when entering into a new marriage contract;
- The parties are nearer of kin than a second cousin, unless they are first cousins and the female is at least 55 years old, or at the time of the application for a marriage license either party submits an affidavit signed by a physician stating that either party is permanently sterile;
- Either party is mentally incapable of assenting to marriage;
- It is unlawful for any person who is or has been a party to an action for divorce in Wisconsin or elsewhere, to marry again until six months after judgment of divorce is granted, and the marriage of any such person solemnized before the expiration of six months from the date of the granting of judgment of divorce shall be void.
If the validity of a marriage is denied or doubted by either of the parties, the other party may commence an action to affirm the marriage. The judgment in an action to affirm marriage shall declare the marriage valid or annul the marriage, and is conclusive upon all persons concerned.
The parties in an action for an annulment, divorce, or legal separation may, subject to the approval of the court, stipulate for a division of property, in case a divorce or legal separation is granted or a marriage annulled.
A court may not approve a stipulation for a division of property that assigns substantially all of the property to one of the parties in the action if the other party in the action is in the process of applying for medical assistance, or if the court determines that it can be reasonably anticipated that the other party in the action will apply for medical assistance within 30 months of the stipulation.
Separate property, which is not subject to community property division, is defined by statute as any property shown to have been acquired by either party prior to or during the course of the marriage in any of the following ways:
- As a gift from a person other than the other party;
- By reason of the death of another, including life insurance proceeds, payments made under a deferred employment benefit plan, or an individual retirement account, and property acquired by right of survivorship, by a trust distribution, by bequest or inheritance or by payable on death or a transfer on death arrangement; and
- With funds acquired from the funds described above.
Additionally, the court may alter its decision to divide marital property in a 50/50 manner after consideration of all of the following factors:
- The length of the marriage;
- The property brought to the marriage by each party;
- Whether one of the parties has sustained assets not subject to division by the court; and
- The contribution of each party to the marriage, giving appropriate economic value to each party’s contribution in homemaking and childcare services.
- The length of the marriage;
- The age and physical and emotional health of the parties;
- The division of property;
- The educational level of each party at the time of the marriage and at the time the action is commenced;
- The earning capacity of the party seeking maintenance, including educational background, training, employment skills, work skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to find appropriate employment;
- The feasibility that the party seeking maintenance can become self-supporting as a standard of living reasonably comparable to that enjoyed during the marriage, and, if so, the length of time necessary to achieve this goal;
- The tax consequences of each party;
- Any mutual agreement made by the parties before or during the marriage, according to the terms of which one party has made financial or service contributions to the other with the expectation of reciprocation or other compensation in the future, if the repayment has not been made, or any mutual agreement made by the parties before or during the marriage concerning any arrangement for the financial support of the parties;
- The contribution by one party to the education, training, or increased earning power of the other; and
- Any other factors that the court may determine to be relevant, on a case-by-case basis.
Child Custody, Child Support and Family Support
During the pendency of an action affecting the family in which a minor child is involved and in which the court determines that it is appropriate and in the best interest of the child, the court, on its own motion, may order the parties to attend a program specified by the court concerning the effects on a child of a dissolution of marriage as a condition to the granting of a final judgment or order in the action affecting the family.
If the court order the parties to attend a program and there is evidence that one or both of the parties have engaged in inter-spousal battery or domestic abuse, the court may not require the parties to attend the program together or at the same time.
The program shall be educational rather than therapeutic and may not exceed a total of four hours in length. The parties shall be responsible for the cost, if any, of attendance at the program. The court may specifically assign responsibility for payment of any cost. No facts or information obtained in the course of the program, and no report resulting from the program, is admissible in any action or proceeding.
Custody, Placement, and Visitation:
In rendering a judgment of annulment, divorce, or legal separation, the court shall make provisions that it deems just and reasonable, concerning the legal custody and physical placement of any minor child of the parties.
A party seeking sole or joint legal custody or periods of physical placement shall file a parenting plan if the following is true:
- The court does not find otherwise;
- Legal custody or physical placement is contested; and
- The court waives the requirement to attend mediation, or the parties attend mediation and the mediator notifies the court that the parties have not reached an agreement.
- What legal custody or physical placement the parent is seeking;
- Where the parent lives currently and where he/she plans to live during the following two years;
- Where the parent works and the hours of employment;
- Who will provide any necessary child care when the parent cannot and who will pay for the child care;
- Where the child will go to school;
- What doctor or health care facility will provide medical care for the child;
- How the child’s medical expenses will be paid;
- What the child’s religious commitment will be, if any;
- Who will make decisions about the child’s education, medical care, choice of child care providers and extracurricular activities;
- How the holidays will be divided;
- What the child’s summer schedule will be;
- Whether and how the child will be able to contact the other parent when the child has physical placement with the parent providing the parenting plan, and what electronic communication, if any, the parent is seeking;
- Whether equipment for providing electronic communication is reasonably available to both parents;
- How the parent proposes to resolve disagreements related to matters over which the court orders joint decision making;
- What child support, family support, and maintenance or other income transfer there will be; and
- When there is evidence that either party engaged in inter-spousal battery or domestic abuse regarding the other party, how the child will be transferred between the parties for the exercise of physical placement to ensure the safety of the child and the parties.
- The wishes of the child’s parent(s), as shown by stipulation between the parties, any proposed parenting plan or any legal custody or physical placement proposal submitted to the court at trial;
- The wishes of the child;
- The interaction and interrelationship of the child with his/her parent(s), siblings, and any other person who may significantly affect the child’s best interests;
- 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;
- The child’s adjustment to the home, school, religion and community;
- The age of the child and the child’s developmental and educational needs at different ages;
- 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;
- The need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child;
- The availability of public or private child care services;
- The cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party;
- 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;
- Whether there is evidence that a party engaged in abuse of the child;
- Whether a person with whom a parent of the child has a dating relationship, or a person who resides, has resided, or will reside regularly or intermittently in a proposed custodial household has a criminal record and whether there is evidence that any of those parties has engaged in abuse or neglect of the child, or any other child;
- Whether there is evidence of inter-spousal battery or domestic abuse;
- Whether either party has or had a significant problem with alcohol or drug abuse;
- The reports of appropriate professionals, if admitted into evidence; and
- Any other factors that the court may determine to be relevant, on a case by case basis.
- One party is not capable of performing parental duties and responsibilities or does not wish to have an active role in raising the child;
- One or more conditions exist at that time that would substantially interfere with the exercise of joint legal custody; or
- The parties will not be able to cooperate in the future decision making required under an award of joint legal custody. In making this finding the court shall consider any pertinent items, including any reasons offered by a party objecting to joint legal custody.
The court will not give sole legal custody to a parent who refuses to cooperate with the other parent if the court finds that the refusal to cooperate is unreasonable.
In determining the allocation of periods of physical placement, the court shall 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, taking into account geographic separation and accommodations for different households.
A child is entitled to periods of physical placement with both parents unless, after a hearing, the court finds that physical placement with a parent would endanger the child’s physical, mental or emotional health. No court may deny periods of physical placement for failure to meet, or grant periods of physical placement for meeting, any financial obligation to the child, or to the former spouse.
During the pendency of a divorce action, the court may order the parties to attend a class that is approved by the court and that addresses such issues as child development, family dynamics, how parental separation affects a child’s development, and what parents can do to make raising a child in a separated situation less stressful for the child.
The court may not require the parties to attend a parenting class as a condition to the granting of the final judgment or order in the divorce action. However, it may refuse to hear a custody or physical placement motion of a party who refuses to attend a court-ordered parenting class.
When the court approves a stipulation or enters a judgment for child support in an action for an annulment, divorce, or legal separation, the court shall do all of the following:
- Order either or both parents to pay an amount reasonable or necessary to fulfill a duty to support a child;
- Ensure that the parties have stipulated which party, if either is eligible, will claim each child as an exemption for federal income tax purposes, or as an exemption for state income tax purposes; and
- In addition to ordering child support for a child, assign as a support obligation responsibility for, and direct the manner of payment of the child’s health care expenses.
The court shall determine child support payments by using the percentage standard established by the department which uses a Flat Percentage of Income Model. The department shall promulgate rules that provide a standard for courts to use in determining a child support obligation based upon a percentage of the gross income and assets of either or both parents. The rules shall provide for consideration of the income of each parent and the amount of physical placement with each parent in determining a child support obligation in cases in which a child has substantial periods of physical placement with each parent.
The current percentages are as follows:
- 17% for one child;
25% for two children;
29% for three children;
31% for four children; and
34% for five children or more children.
- The financial resources of the child;
- The financial resources of both parents;
- Maintenance received by either party;
- The needs of each party in order to support him/herself at a level equal or greater than that established under the federal poverty guidelines;
- The needs of any person, other than the child, whom either party is legally obligated to support;
- If the parties were married, the standard of living the child would have enjoyed had the marriage ended in annulment, divorce or legal separation;
- The desirability that the custodian remain in the home as a full-time parent;
- The cost of child 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;
- The award of substantial periods of physical placement to both parents;
- Extraordinary travel expenses incurred in exercising the right to periods of physical placement;
- The physical, mental, and emotional health needs of the child, including any costs for health insurance;
- The child’s educational needs;
- The tax consequences to each party;
- The best interests of the child;
- The earning capacity of each parent, based on each parent’s education, training and work experience and the availability of work in or near the parent’s community; and any other factors which the court in each case determines are relevant.
In assigning responsibility for a child’s health care expenses, the court shall consider whether a child is covered under a parent’s health insurance policy or plan at the time the court approves a stipulation for child support, or enters a judgment of annulment, divorce, or legal separation; the availability of health insurance to each parent through an employer or other organization; the extent of coverage available to a child; and the costs to the parent for the coverage of the child.
The parties in an action for an annulment, divorce, or legal separation may, subject to the approval of the court, stipulate for periodic family support payments, in case a divorce or legal separation is granted or a marriage annulled.
The court may make a financial order designated as family support as a substitute for child support orders and maintenance orders. A party ordered to pay family support shall pay simple interest at the rate of 1% per month on any amount in arrears that is equal to or greater than the amount of child support due in one month.
If the party no longer has a current obligation to pay child support, interest at the rate of 1% per month shall accrue on the total amount of child support in arrears, if any.
A court may not approve a stipulation for expressing child support or family support as a percentage of the payer’s income unless all of the following apply:
- The state is not a real party in interest in the action, due to aid paid on behalf of a dependent child or custodial parent, or an application for legal services has been filed with the child support program;
- The payer is not subject to any other order, in any other action, for the payment of child or family support or maintenance; and
- All payment obligations included in the order, other than the annual receiving and disbursing fee, are expressed as a percentage of the payer’s income.
When a party requests a legal separation rather than a divorce, the court shall grant a judgment of legal separation unless the other party requests a divorce, in which case the court shall hear and determine which judgment shall be granted.
A judgment of legal separation provides that, if reconciliation occurs at any time after the judgment, the parties may apply for a revocation of the judgment.
The court may convert the judgment of legal separation to a judgment of divorce, if both parties file a motion by stipulation, and at least one year has passed since the entry of the judgment of legal separation.
Links to State Resources
- Divorce Forms
Links to information, guides and forms for Divorce and Legal Separation, provided by the Wisconsin State Law Library.
- Self-Help Family Web Site
A guide to divorce and legal separation provided by the Wisconsin Court System. Takes visitors through a series of questions, filling in forms necessary to start of finalize such an action.
- Wisconsin Statutes, Chapter 765 - Marriage
Links to texts of Wisconsin Statutes Regarding Marriage.
- Wisconsin Statutes, Chapter 767 – Actions Affecting The Family
Links to texts of Wisconsin Statutes Regarding actions to affirm marriage; annulment; divorce; legal separation; child custody, placement and visitation; support and maintenance; property division; and more.
- Wisconsin Statutes, Chapter 770 – Domestic Partnership
Links to texts of Wisconsin Statutes Regarding domestic partnerships: forming, terminating and more.