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Wisconsin Divorce Laws
Residency and Filing Requirements:In order to file for a divorce in Wisconsin, residency requirements must be met for the court to accept the case. If the court discovers it does not have jurisdictional rights to hear the case it will not be accepted or it will eventually be dismissed. The 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. (Wisconsin Statutes - Sections: 767.05, 767.083)
Grounds for Filing:The Petition for Divorce must declare the appropriate Wisconsin grounds upon which the divorce is being sought. The appropriate lawful ground will be that which the parties agree upon and can substantiate, or that which the filing spouse desires to prove to the court. The divorce grounds are as follows:
Irretrievable breakdown of the marriage.
If both of the parties by petition or otherwise have stated under oath or affirmation that the marriage is irretrievably broken, or if the parties have voluntarily lived apart continuously for 12 months or more immediately prior to commencement of the action and one party has so stated, the court, after hearing, shall make a finding that the marriage is irretrievably broken.
If the parties have not voluntarily lived apart for at least 12 months 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)
Filing Spouse Title:Petitioner. The Petitioner is the spouse who initiates the filing procedure with the family law or domestic relations court. The filing spouse can also be titled the Co-Petitioner is filing jointly.
Non-Filing Spouse Title:Respondent. The Respondent is the spouse who does not file the initial divorce papers, but rather receives them by service. The non-filing spouse can also be titled the Co-Petitioner is filing jointly.
Court Name:State of Wisconsin: Circuit Court, __________ County. This is the Wisconsin court where the divorce will be filed. The court will assign a case number and have jurisdictional rights to facilitate and grant the orders concerning, but not limited to: property and debt division, support, custody, and visitation. The name of the court is clearly represented at the top of all documents that are filed.
Primary Documents:Petition for Divorce and Decree of Divorce. These are the essential documents needed to start and finalize a divorce according to Wisconsin law. There are anywhere from ten to twenty other documents that may be required throughout the filing process. A few other documents that are typically filed during the process are: Marital Settlement Agreement, Proposed Parenting Plan, Financial Disclosure Statement, Request for a Status Conference and Finding of Fact, Conclusions of Law, and Judgment.
Court Clerk's Title:County Clerk's Office of the Family Court. The clerk or the clerk's assistants will be the people managing your paperwork with the court. The clerk's office will keep the parties and the lawyers informed throughout the process in regards to additional paperwork that is needed, further requirements, and hearing dates and times.
Property Distribution:Wisconsin is a "Community Property" state. Community property is all property that was acquired during the marriage. This property will be divided equally (50-50) by the court if the parties are not able to come to an agreement.
The court shall presume that all community property is to be divided equally between the parties, but may alter this distribution without regard to marital misconduct after considering all of the following: (a) The length of the marriage. (b) The property brought to the marriage by each party. (c) Whether one of the parties has substantial assets not subject to division by the court. (d) The contribution of each party to the marriage, giving appropriate economic value to each party’s contribution in homemaking and child care services. (e) The age and physical and emotional health of the parties. (f) The contribution by one party to the education, training or increased earning power of the other. (g) The earning capacity of each party, including educational background, training, employment 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 become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage. (h) 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. (i) 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. (j) Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests. (k) The tax consequences to each party. (l) Any written agreement made by the parties before or during the marriage concerning any arrangement for property distribution; such agreements shall be binding upon the court except that no such agreement shall be binding where the terms of the agreement are inequitable as to either party. The court shall presume any such agreement to be equitable as to both parties. (m) Such other factors as the court may in each individual case determine to be relevant. (Wisconsin Statutes - Sections: 766.01, 766.97, 767.255)
Restoration or Name Change:The court, upon granting a divorce, shall allow either spouse, upon request, to resume a former legal surname, if any. (Wisconsin Statutes - Sections: 767.20)
Spousal Support:Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court's discretion.
Upon every judgment of annulment, divorce or legal separation, the court may grant an order requiring maintenance payments to either party for a limited or indefinite length of time after considering:
(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 at the time the action is commenced. (5) The earning capacity of the party seeking maintenance, including educational background, training, employment 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. (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, and, if so, the length of time necessary to achieve this goal. (7) The tax consequences to each party. (8) 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, where such 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. (9) The contribution by one party to the education, training or increased earning power of the other. (10) Such other factors as the court may in each individual case determine to be relevant. (Wisconsin Statutes - Sections: 767.26, 767.261, 767.29)
Counseling or Mediation Requirements:During the pendency of any action for divorce or legal separation, the court may, upon written stipulation of both parties that they desire to attempt a reconciliation, enter an order suspending any and all orders and proceedings for such period, not exceeding 90 days, as the court determines advisable so as to permit the parties to attempt a reconciliation without prejudice to their respective rights. During the period of suspension the parties may resume living together as husband and wife and their acts and conduct shall 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 if such is the case. Suspension may be revoked upon motion of either party by order of the court. If the parties become reconciled, the court shall dismiss the action. If the parties are not reconciled after the period of suspension, the action shall proceed as though no reconciliation period was attempted. (Wisconsin Statutes - Sections: 767.081, 767.082, 767.083, 767.11)
Child Custody:When minor children are involved in a divorce, the Wisconsin courts will do everything possible to help lessen the emotional trauma the children may be experiencing. If the parents cannot come to an agreement regarding the issues involving the children, the court will establish the custody order at its discretion.
In determining legal custody and periods of physical placement, the court shall consider all facts relevant to the best interest of the child. The court may not prefer one parent or potential custodian over the other on the basis of the sex or race of the parent or potential custodian. The court shall consider the following factors in making its determination: 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)
Child Support:Wisconsin child support guidelines uses the Percentage of Income Formula which calculates the support obligation as a percentage of the income of the non-custodial parent who is obligated to support the child. This method simply applies a percentage to the income of the parent according to the number of children requiring support.
Upon request by a party, the court may deviate or modify child support payments determined by the child support guidelines and worksheet if, after considering the following factors, the court finds by the greater weight of the credible evidence that use of the percentage standard is unfair to the child or to any of the parties: (1) The financial resources of the child. (2) The financial resources of both parents (3) Maintenance received by either party. (4) The needs of each party in order to support himself or herself (5) The needs of any person, other than the child, whom either party is legally obligated to support. (6) 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. (7) The desirability that the custodian remain in the home as a full-time parent. (8) 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. (9) The award of substantial periods of physical placement to both parents. (em) Extraordinary travel expenses incurred in exercising the right to periods of physical placement (10) The physical, mental and emotional health needs of the child, including any costs for health insurance (11) The child's educational needs. (12) The tax consequences to each party. (13) The best interests of the child. (14) 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. (Wisconsin Statutes - Sections: 767.10, 767.25, 767.261, 767.265)
Copyright Notice: The above synopsis of Wisconsin divorce laws is original material which is owned and copyrighted by Divorce Source, Inc. This material has been adapted from applicable state laws and unauthorized reproduction is prohibited. Violation of this notice will result in immediate legal action.
In order to file for divorce in Wisconsin, one of the spouses must have been a resident of the state for six months, and in one county for 30 days, before filing for divorce in that county.
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