LEGAL RESOURCES
Mediation differs from divorces handled by attorneys in court because you and your spouse are the ones making all the decisions. You are the only one in your divorce with authority. The expectation is that both of you will have the information you need to make informed decisions. To help you make informed decisions, below is additional information regarding the laws in Wisconsin. Please keep in mind that this information is for informational purposes only. We want to be clear that we are not providing legal advice or creating a lawyer-client relationship.
THE WISCONSIN DIVORCE PROCESS
A divorce is a legal action filed by at least one married individual to dissolve the marriage relationship. Wisconsin is a “no fault” divorce state, which means that neither spouse needs to commit some kind of marital misconduct in order to petition for a divorce. The court only requires one spouse to claim the marriage is “irretrievably broken.” Like many actions affecting the family, a divorce action is extremely fact intensive, and the experience and outcomes vary on a case-by-case basis.
In broad terms, every divorce may involve four central issues: (1) child custody and placement, (2) child support, (3) maintenance (also known as alimony or spousal support), and (4) property division. Couples are free to settle these issues on their own and enter into a Marital Settlement Agreement. A Marital Settlement Agreement is a written document between the divorcing couples that sets out their agreements on these main issues. If both parties are in full agreement, the court typically approves their resolution in full and adopts it as the court’s judgment. If the parties cannot agree, the court will hold a trial and hear evidence on the disputed issues before making the final determinations. For instance, if the parties cannot agree on a placement schedule for the children, the court will hear evidence on what schedule is in the best interests of the children.
By law, couples cannot divorce until 120 days after filing the petition for divorce. When cases settle early on and the parties file a Marital Settlement Agreement during that 120 day waiting period, they can request a hearing from the Court for the soonest date available after their waiting period expires. If the parties are unable to reach an agreement and ultimately submit their case to the Court, it is not uncommon for the process to take two years or even longer when there are appeals involved.
Following a divorce, neither party is permitted to re-marry anywhere else in the world for six months. Any marriage during that time is deemed void in Wisconsin.
LEGAL SEPARATION
A legal separation is in many ways indistinguishable from a divorce. The grounds for legal separation are that the “marital relationship is broken.” Wis. Stat. § 767.07(2)(a). The grounds for a divorce are that the “marriage is irretrievably broken.” Wis. Stat. § 767.07(2)(b). In order to obtain a judgment of legal separation, all the procedures and substantive determinations required for a divorce must be complied with, such as obtaining appropriate orders as to custody and placement, determinations of child support and maintenance, and property division. Wis. Stat. § 767.07(3).
Why choose legal separation? Couples may opt for a legal separation for multiple reasons; some couples choose this option for jurisdictional, insurance, or religious reasons. To get divorced in Wisconsin, one spouse must have been a resident of a specific county for 30 days and the state for six months. To get legally separated, one spouse must only be a resident for 30 days. Couples may choose to be legally separated if they require family court orders (for example, custody and placement determinations) but have not lived in Wisconsin for half a year. Couples may also choose a legal separation if they do not plan on re-marriage in the near future and one spouse’s insurance company will continue to cover “legally separated” spouses but not divorced spouses. This can avoid or delay the expense of COBRA or obtaining private health insurance. Some religions also approve of legal separation but not divorce.
After a legal separation, if reconciliation occurs, the parties may apply for a revocation of the judgment at any time thereafter, in which event the court will make such orders as are just and reasonable. Wis. Stat. § 767.35(4). If the judgment is revoked, the couples resume their marriage. Alternatively, the separation may be converted to a divorce by motion or agreement. The couples may stipulate to convert the judgment of legal separation to a decree of divorce at any time, and the court must comply. Wis. Stat. § 767.35(5). Otherwise, one spouse may file a motion at least one year after the judgment has been entered, and the court must convert the separation to a divorce. Id.
CUSTODY & PLACEMENT
Legal custody is the right and responsibility to make major decisions concerning a child. In cases in which both parents are involved in the child’s life, courts start with the presumption that joint custody is in the best interests of the child. An order for joint custody gives both parents equal rights and responsibilities to make major decisions in areas like schooling, religion, and other major life areas. In certain circumstances, custody may be awarded solely to one parent as to one or more children.
Physical placement refers to a parent’s right to spend time with the child. A child is entitled to at least some periods of placement with both parents unless the court finds that placement with a parent would endanger the child’s health. While a court is required to issue a placement order that will maximize the amount of quality time a child spends with each parent, the court is not required to grant equal time to each parent.
Placement arrangements vary greatly depending on the circumstances of each case. In general, a court will review the following considerations when making a physical placement determination: (1) the wishes of the child’s parent(s); (2) the wishes of the child; (3) the cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party;(4) 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; (5) the interaction and interrelationship of the child with their parent(s), siblings, and any other person who may significantly affect the child’s best interest; (6) the amount and quality of time that each parent has spent with the child in the past and any change a parent may propose to spend more time with the child in the future; (7) whether a party, a person with whom a parent of the child has a dating relationship, or a person who resides with the child has a significant problem with alcohol or drug abuse; (8) the child’s adjustment to home, school, religion and community; (9) the child’s age and developmental needs; (10) the mental and physical health of any person exposed to the child that negatively affects the child's intellectual, physical, or emotional well-being; (11) evidence of abuse, criminal record, or any other neglect by a party, a person a party has a dating relationship, or a person who resides with the party; (12) evidence of interspousal battery or domestic abuse, and (13) professional reports. Wis. Stat. § 767.41(5).
CHILD SUPPORT
The purpose of child support is to provide for a child as if the parents had not separated. The Department of Children and Families created percentage standards for determining a parent’s child support obligation. DCF § 150. Which percentage applies depends on the number of children, the couples’ placement arrangement and, in some cases, each parent’s income. In general, support is based either on a primary placement schedule or a shared placement schedule. Wis. Stat. § 767.511.
Primary Placement
Primary placement occurs when one parent has placement of the child for less than 25% of the time. Time is based on how many overnights the child spends with each parent. If a parent has less than 92 overnights per year, the other parent has primary placement.
The child support calculation for primary placement is based on a straight percentage standard. The non-primary placement parent will usually pay a percentage of their gross income depending on the number of children. The percentages are currently set as follows: one child (17%), two children (25%), three children (29%), four children (31%), and five or more children (34%). These percentages are lowered if the payor parent earns more than $84,000 per year.
Shared Placement
Shared placement occurs when both parents have anywhere between 93 and 272 overnights with the child per year. If the parents have shared placement, the court utilizes a shared placement formula that assumes both parents pay for the child’s basic support costs in proportion to the time the parent has the child.
Variable Expenses
Variable expenses are defined as the reasonable costs above basic support costs incurred by or on behalf of a child, including but not limited to, childcare, tuition, special needs, and other activities that involve substantial cost. Under a primary placement schedule, the variable expenses are typically paid by the primary placement, though the Court could allocate the expenses differently. Under shared placement, the parents usually split the variable expenses equally or in proportion to the time they spend with the child. Typically, parents agree that both couples must consent to variable expenses, receive notice, and timely request compensation.
Deviating from the Guidelines
The guidelines are there but parents can agree to different terms that best fit their situation. While there are some restrictions as to what parties can agree to, the Court will generally accept the terms the parents agree to so long as the Court believes the parents understood what the guidelines are and agreed to the terms freely, knowingly, voluntarily, and that such terms are in the best interests of the child(ren).
MAINTENANCE
In any judgment of divorce or legal separation, the court may grant an order requiring maintenance (also called alimony or spousal support) payments to either spouse for a limited or indefinite length of time. Maintenance is ordered to further two objectives: to support the recipient spouse, and to ensure a fair and equitable financial arrangement between the parties. The fairness objective requires the court to ensure a fair and equitable financial arrangement between the couples in each individual case. The support objective recognizes the obligation to support a spouse in a manner in which that spouse was accustomed during the marriage.
In determining maintenance, the court frequently starts by equalizing the total income between the couples and then sets the amount at what it determines to be fair under the circumstances. Whether maintenance is appropriate depends on the facts of each case. Courts will typically consider: (1) the length of the marriage; (2) the age and physical and emotional health of the parties; (3) the division of property; (4) the educational level of each party at the time of marriage and divorce; (5) the earning capacity of the party seeking maintenance; (6) the feasibility that the party seeking maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage; (7) tax consequences; (8) any mutual agreements made by the parties either before or during the marriage; (9) the contribution by one party to the education, training, or increased earning power of the other; and (10) any other relevant factors. Wis. Stat. § 767.59.
Couples can always agree to hold maintenance open, waive maintenance, or set their own parameters. If maintenance is held open, the court retains jurisdiction over the issue and may order maintenance at a later time. If maintenance is waived, it cannot be requested for any reason in the future. Couples may also agree that maintenance will continue for an un-modifiable period of time or terminate at the occurrence of some condition (i.e. retirement, co-habitation, turning 65, etc.).
PROPERTY DIVISION
The property division in a divorce or separation divides the assets and debts between the couples. Because Wisconsin is a marital property state, the statutory presumption is that all property, both debts and assets, acquired prior to or during the marriage, are equally divided. The court may deviate from an equal division after considering: (1) the length 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; (4) the contribution of each party to the marriage, giving appropriate economic value to home-making 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) who retains the marital residence; (9) maintenance orders; (10) tax consequences; and (11) any written agreements made by the parties before or during the marriage. Wis. Stat. § 767.61.
The only property not subject to division is property that one party acquired (1) by a gift from someone other than the spouse; (2) by reason of the death of another (i.e. inheritance, life insurance proceeds, or trust distribution); or (3) with funds acquired by either of the first two methods. In order to keep this non-marital property exempt from the property division, the spouse must establish: (1) the original gifted or inherited status of the property; and (2) that the character and identity of the property has been preserved.
Couples can agree to divide the assets and debts in a way that they believe is fair and equitable which may or may not be an equal division. For example, couples may agree to an unequal division of the property in exchange for a waiver of maintenance.
SUPPORT MODIFICATION
To qualify for a child support or maintenance modification, the person filing the motion must demonstrate that there has been a substantial change in circumstances since the last order. A substantial change in circumstances can include a significant increase or decrease in income or expenses for either spouse. For instance, an individual may qualify for modification if they lose a job or becomes injured or infirm. The statutes also provide that a presumption to modify child support exists if it is has been more than 33 months since the date of the last order. To modify maintenance, a party must file a motion with the Court. Whether the court will modify support is largely dependent on the circumstances of each case. Wis. Stat. § 767.59. Parties can agree to modify support and any time by filing a stipulation and order to modify support with the Court.
CUSTODY & PLACEMENT MODIFICATION
The standard to modify custody and placement orders is different depending on whether two years have elapsed from the entry of the last order on custody and placement. The first two years following the divorce judgment is colloquially referred to as a “truce period.” As a result, it is very difficult to modify the placement schedule other than by stipulation within two years of the divorce. The only exception to this rule is if there is a substantial risk of harm to the child under the current placement schedule. Wis. Stat. § 767.451(1)(a).
The standard for modification if more than two years have expired from the last order on custody and placement is significantly different. The threshold question for the court to determine is whether the moving parent has shown that there has been a substantial change in circumstances since the entry of the last order affecting physical placement. If that burden is met, the court then proceeds to consider whether any modification would be in the best interest of the child. Wis. Stat. § 767.451(1)(b). The Court must presume however that the current placement schedule is in the best interests of the child. The moving spouse has the burden to prove that the change is in the best interests of the child.
Parents can agree to modify their placement schedule and any time by filing a stipulation and order to modify support with the Court.