Getting a Divorce in Wisconsin? Divorce Law Cheat Sheet for the State of Wisconsin
1. What are the residency requirements for filing for divorce in Wisconsin?
You or your spouse must have been a resident of the state for at least six months before filing for a divorce in Wisconsin. You must file in the county in which you or your spouse has been a resident for at least 30 days.
2. Does Wisconsin have a waiting period?
Yes. The court will not hold a final hearing or trial on your divorce until at least 120 days after you’ve filed, unless your health or safety is at risk.
If you and your spouse tell the court in writing that you want to try to reconcile, the court will suspend your case for as long as 90 days. During this time you and your spouse can try living together again without affecting your claim that your marriage is irretrievably broken or that you lived apart for at least 12 months. If you do get back together, the court will dismiss your case. If you and your spouse do not reconcile, the court will go ahead with your case.
3. Does the state have grounds for divorce?
Yes. In Wisconsin, you may file for divorce on the ground of irretrievable breakdown of your marriage. If you and your spouse both state this under oath, or if you’ve lived apart for 12 months, the court will, after a hearing, find your marriage irretrievably broken.
If you and your spouse have not lived apart for at least 12 months and if only one of you says under oath that your marriage is irretrievably broken, the court will consider your situation and take one of two actions:
- If the court finds there is no reasonable chance you and your spouse will reconcile, it will find your marriage irretrievably broken.
- Ifthe court thinks there’s hope for you and your spouse to get back together, it will continue your case for 30 to 60 days and may suggest that the two of you seek counseling. If you or your spouse still says your marriage is irretrievably broken after this delay, the court will rule on whether it is.
4. How does Wisconsin determine the division of property?
You and your spouse are encouraged to come up with a settlement on your own and present it to the court. If you can’t agree, the court will divide your property for you. Your individual property remains your own.
In Wisconsin, this means:
- Property that you acquired before you were married.
- Property that you acquired by gift or inheritance.
- Property that you received in exchange for your individual property.
- Any appreciation in your individual property, unless it’s a significant appreciation and the result of a significant contribution of effort or labor by you or your spouse. while you were married for little or no compensation.
- Property that is identified as your individual property in an agreement.
- Property that you received in return for damage to your individual property.
- Property that you were awarded for personal injuries except for the part that reimburses any expenses paid out of your marital property or that compensates you for loss of income during your marriage.
The court will divide all other property equally between you and your spouse. It will, however, take into consideration:
- How long you were married.
- The property you each brought into your marriage.
- Whether one of you has substantial assets that are not part of your property division.
- You and your spouse’s contributions to your marriage, including as a homemaker or caring for your children.
- You and your spouse’s ages and physical and emotional health.
- Whether one of you contributed to the education, training or increased earning power of the other.
- You and your spouse’s earning abilities, including your education, training, skills, work experience, whether you were out of the job market and what responsibilities you each have in caring for your children.
- How long it would take and how much it would cost for either of you to get the education or training necessary to find a job that would allow you to have the same standard of living as while you were married.
- Whether the custodial parent should have the family home or the right to live in it.
- Any award of alimony or other support, or whether a property award will take the place of alimony or support.
- You and your spouse’s economic circumstances, including pension and other future benefits.
- The tax situation you each will face after your division of property.
- Any written agreement between you and your spouse.
- Any other factor the court decides is relevant.
The court may set aside a portion of your property in a fund or trust for your child. The court does not factor any misconduct by you or your spouse during your marriage into its division of your property.
5. Does Wisconsin require mediation before a divorce is granted?
Mediation is not always required, but the court may order it in your case if you and your spouse disagree over child custody and visitation.
6. How does the state determine child custody?
Legal custody and physical custody are two different things. Legal custody outlines how involved each parent is in the major decisions of a child’s life — where a child goes to school, what faith he or she is raised in, and other biggies. Physical custody addresses where a child will live and with whom. Visitation is then negotiated based your physical custody arrangement.
If the court doesn’t require you and your spouse to attend mediation to negotiate your custody arrangements, or you do attend mediation and still can’t come up with an agreement, then within 60 days, you’ll each have to file a parenting plan with the court. If you don’t, you give up the right to object to your spouse’s parenting plan. Your parenting plan has to provide information about the following questions:
- What legal custody or physical placement you’re seeking.
- Where you live now and where you intend to live over the next two years (if there’s evidence of domestic abuse in your case, you don’t have to reveal your specific address).
- Where you work and when (again, if there’s evidence of domestic abuse in your case, you don’t have to reveal the specific address).
- Who will provide child care and who will pay for it.
- Where your child will go to school.
- What doctor and health care facility your child will use.
- How your child’s medical expenses will be paid.
- What your child’s religious commitment will be, if any.
- Who will make decisions about your child’s education, medical care, choice of child care providers and extracurricular activities.
- How the holidays will be divided.
- What your child’s summer schedule will be.
- Whether and how your child will be able to contact the other parent.
- Whether you each have access to equipment for electronic communication with your child.
- How you propose to resolve disagreements in joint decision-making.
- What child support, family support, maintenance (alimony) or other exchange of income there will be.
- If there is any evidence of domestic abuse, how your child will be transported between you and your spouse safely.
The court may order you and your spouse to attend a parenting class on child development, family dynamics, how parental separation affects your child’s development, and what you can do to make raising your child in a separated situation less stressful for your child. The court can’t make attending the class a requirement for your divorce, but if you refuse to go, the court may not hear your custody motion.
The court presumes that joint legal custody is in your child’s best interest, unless you both agree that one of you should have sole custody, or the court finds that:
- One of you is not capable of performing parental duties or doesn’t want to have an active role in raising your child.
- There is some situation that would substantially interfere with joint custody.
- You and your spouse won’t be able to cooperate in future decision-making (evidence of domestic abuse falls within this category). But the court won’t award sole custody to a parent whose refusal to cooperate is unreasonable.
Overall, the court’s decisions regarding custody and physical placement is guided by what would be in your child’s best interest. The court will consider these factors in determining what that is:
- You and your spouse’s wishes.
- Your child’s wishes.
- Your child’s relationship with each of you, his or her siblings and any other person who would be significant in his or her life.
- The amount and quality of time that each of you has spent with your child in the past, as well as any changes that you or your spouse plans so that you can spend more time with your child in the future.
- Your child’s adjustment to his or her home, school, religion and community.
- Your child’s age and developmental and educational needs.
- Whether the mental or physical health of you or your spouse, another child or other person in one of your households would negatively affect your child’s intellectual, physical or emotional well-being.
- The need for regularly occurring periods of physical placement to offer your child predictability and stability.
- The availability of public or private child care.
- You and your spouse’s cooperation and communication and whether either of you unreasonably refuses to cooperate or communicate.
- Whether each of you can support your child’s relationship with the other parent and encourage frequent contact.
- Whether there is any evidence of child abuse or domestic abuse.
- Whether a person whom either of you is dating or living with has a criminal record or a history of abuse.
- Whether you or your spouse has or had a significant problem with alcohol or drug abuse.
- Any reports from professionals if admitted into evidence.
- Any other factor the court deems relevant.
The court cannot consider whether you or your spouse might be called to active duty as a member of the armed services when weighing custody and visitation.The court will not award custody to a parent who has been convicted of trying to kill the child’s other parent.
Your child’s grandparent, great-grandparent or stepparent or any other person who has maintained a relationship similar to a parent-child relationship with your child also may file for visitation. The court will consider whether this is in the best interest of your child.
7. How does the state calculate child support?
The state determines child support by using a set of state guidelines based on you and your spouse’s gross incomes, how much time your child spends with each of you, and whether you or your spouse is supporting other children.
The basic child support guidelines are used when one parent cares for the child for more than 75 percent of the time (274 or more days per year). The other parent pays support based on these figures:
- 17 percent of gross income for one child.
- 25 percent of gross income for two children.
- 29 percent of gross income for three children.
- 31 percent of gross income for four children.
- 34 percent of gross income for five or more children.
The court will use shared-placement guidelines if you and your spouse each will care for your child at least 25 percent of the time (at least 92 days per year) and this placement time is specified in a court order. You and your spouse’s incomes are used to set the amount of support.
The court then will order each of you to assume your child’s basic support costs in proportion to the time that each of you cares for your child. Basic support costs are food, shelter, clothing, transportation, personal care and costs for activities.
The court also will assign responsibility for your child’s “variable” costs in proportion to you and your spouse’s share of placement (time as custodian of your child). Variable costs are reasonable costs above the basic support costs, including child care, tuition and any special needs.
Your final order will address who receives the federal and state income tax exemption for your child. And it will specifically assign responsibility for your child’s health care expenses.
Wisconsin allows for something called family support. Family support orders combine child support and spousal maintenance (alimony). The total amount will include at least as much as your child would receive for child support alone under the state guidelines.
Your child support may vary if you or your spouse is supporting more than one family (a serial family case). It also may vary if you or your spouse falls above or below the income levels specified in the guidelines.Other factors the court will weigh in considering whether the support amount resulting from the guidelines is appropriate:
- Your child’s financial resources, if any.
- You and your spouse’s financial resources.
- Any alimony you or your spouse is receiving.
- You and your spouse’s needs to support yourselves.
- The needs of any other person whom you or your spouse is legally obligated to support.
- The standard of living your child enjoyed while you and your spouse were married.
- Whether the custodial parent should stay home as a full-time parent.
- The cost of day care if the custodial parent works outside the home.
- Whether you and your spouse each have physical custody of your child for substantial amounts of time.
- Whether there are extraordinary expenses involved in transporting your child for visitation.
- Your child’s physical, mental and emotional health needs, including any costs for health insurance.
- Your child’s educational needs.
- The tax situation you each would face with a support award.
- Your child’s best interest.
- You and your spouse’s earning abilities, including your education, training and work experience, and whether work is readily available in your community.
- Any other factors the court considers relevant.
8. How does the state determine and calculate alimony?
Alimony, also known as maintenance, is not a given in divorce cases, but you or your spouse may request it. If you decide to seek alimony, the court will consider these factors in deciding whether to award it and, if so, how much and for how long:
- You and your spouse’s ages and physical and emotional health.
- How long you were married.
- How your property was divided in your divorce.
- You and your spouse’s educational levels, both at the time that you were married and at the time of your divorce.
- Your earning capacity, including your training, skills, work experience, whether you were absent from the job market, your responsibilities for your children, and how long it would take you and how much it would cost for you to get the education and training necessary to find a job.
- Whether it’s feasible to expect that you could be self-supporting with roughly the same standard of living as while you were married and, if so, how long it would take to achieve that.
- The tax situation you each would face if alimony were awarded
- Any agreement you and your spouse made before or during your marriage. This addresses any contributions, financial or otherwise, that you or your spouse made to the other with expectation of reciprocation or payment.
- Whether one of you contributed to the education, training or increased earning power of the other.
- Any other factor the court considers relevant.
An obligation to support children is a factor in determining the amount of maintenance payments. Any misconduct by you or your spouse while you were married is not factored in to the decision.
9. Is there a waiting period before remarriage in Wisconsin?
Yes. In Wisconsin, you are not allowed to marry again until at least six months after your divorce is final.
FOR MORE INFORMATION:
You can find Wisconsin’s state statutes online here.
The state offers child support information and calculators online here.
Please note: Local and state laws change constantly, therefore this information is for educational purposes only. We do our best to keep state-specific information up-to-date, but please contact us to discuss your unique situation.
