How to File a Divorce in Wisconsin

How to File a Divorce in Wisconsin

by Edward A. Haman, Esq., August 2015

In Wisconsin, as elsewhere, divorce for any married couple will accomplish two things: (1) severing the marital relationship, and (2) dividing assets and debts. The issue of alimony may also arise. If there are minor children, the issues of custody and support must be resolved.

Residency and Procedures

In order to file for divorce in Wisconsin, either you or your spouse must be a resident of Wisconsin for at least 6 months, and of the county in which you file for 30 days. You will file in the Circuit Court in the county where the residency requirement is met.

The simplest procedure is an uncontested divorce where you and your spouse can reach an agreement about all issues. You begin by filing a Petition for Divorce, along with various supporting documents, including a marital settlement agreement on the division of assets, and a parenting plan for any children. These documents are filed with the court, and copies of them are provided to your spouse. You will attend a court hearing, at which time the judge will make sure your paperwork is in order, perhaps ask you a few questions, and enter your Decree of Divorce.   

Grounds for Divorce

Grounds for divorce are legally recognized reasons to get a divorce. Wisconsin, like most states, has what are commonly called no-fault grounds for divorce. Unlike most states, there are no traditional fault-based grounds. One way to get a no-fault divorce in Wisconsin is to state in the Petition for Divorce that “the marriage of the parties is irretrievably broken.” Both parties must file a joint Petition or an affidavit stating that the marriage is irretrievably broken, or the judge must make a finding that the marriage is irretrievably broken. The other way is to state in the Petition for Divorce that “the marriage of the parties is irretrievably broken, and the parties have voluntarily lived apart continuously for 12 months or more.”

Property Division

A divorce involves dividing property and debts between you and your spouse. Generally, each party will keep his or her separate property, which is property acquired before marriage, at any time by gift or inheritance, or with funds obtained before marriage, or by gift or inheritance. However, separate property is subject to division if necessary to prevent hardship to a party.

All other property is community property. Absent an agreement of the parties, the judge will divide the community property equally, unless it is determined that an unequal distribution is warranted, after considering all relevant factors, including:

  • the length of the marriage,
  • the property brought to the marriage by each party,
  • whether one of the parties has substantial assets not subject to division by the court,
  • each party’s contribution to the marriage (including homemaking and child care),
  • each party’s age, and physical and emotional health,
  • any party’s contribution to the other’s education, training, or increased earning power,
  • each party’s earning capacity, 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 education or training to enable the party to become self-supporting,
  • the desirability of awarding the family home, or the right to live there for a reasonable period, to the party having physical placement for the greater period of time.
  • the amount and duration of maintenance (alimony), any order for family support payments, and whether the property division is in lieu of such payments,
  • any other economic circumstances of each party, including pension benefits, vested or unvested, and future interests,
  • the tax consequences to each party, and
  • any written agreement made by the parties concerning property distribution.

Alimony in Wisconsin

Alimony is referred to as maintenance in Wisconsin. Absent an agreement of the parties, the court will determine whether maintenance should be awarded, and if so, the amount and duration of maintenance, after considering all relevant factors, including:

  • the length of the marriage,
  • each party’s age, and physical and emotional health,
  • the division of property,
  • each party’s educational level at the time of marriage and at the present time,
  • the capacity of the party seeking maintenance to become self-supporting, including education, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquire education or training to enable the party to find appropriate employment,
  • the tax consequences to each party,
  • any agreement made by the parties, whereby one party has made financial or service contributions to the other with the expectation of reciprocation or other compensation in the future, or concerning any arrangement for the financial support of the parties, and
  • a party’s contribution to the other’s education or increased earning power.

Child Custody in Wisconsin

If you and your spouse have any minor children, there will have to be a custody determination. Following modern trends, Wisconsin child custody law uses the terms legal custody and physical placement. It still comes down to figuring out how the children’s time will be divided between the parents, and how decisions will be made. Unless there is an agreement, the parties are typically required to go to mediation. If mediation is unsuccessful, each party must submit a proposed parenting plan. Sole custody may only be awarded if:

  • both parties agree to sole custody with the same party, or
  • one party requests sole custody, and the other party is incapable of, or unwilling to, performing parental duties, conditions exist that would interfere with joint legal custody, or the parties will not be able to cooperate in decision making.

Absent an agreement, the judge will decide the issue, after considering the following factors:

  • the wishes of the parties,
  • the wishes of the child,
  • the child’s relationship with the parties, siblings, and any other significant person,
  • the time each party has spent with the child, any changes to the custodial roles, and life-style changes a party proposes to spend time with the child in the future,
  • the child’s adjustment to home, school, religion, and community,
  • the child’s age, and developmental and educational needs at different ages,
  • whether the mental or physical health of a party or other person living in a proposed custodial home negatively affects the child’s well-being,
  • the child’s need for predictability and stability,
  • the availability of public or private child care services,
  • the ability for cooperation and communication between the parties,
  • whether each party can support the other party’s relationship with the child,
  • whether there is evidence that a party engaged in abuse of the child,
  • if a person with whom a party has a dating relationship, or a person in the proposed custodial home, has a criminal record or has engaged in abuse or neglect of any child,
  • whether there is evidence of interspousal 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 the court determines to be relevant.

Child Support in Wisconsin

Child support is determined by reference to the Wisconsin Child Support Guidelines that may be found at the Wisconsin government website.

Filing a divorce can be a complex process, but if you and your spouse agree on the terms of the divorce you may be able to save time. Following these steps will help you get started.

If you and your spouse agree on the major issues, an uncontested divorce may be right for you. Otherwise, you can talk to an attorney to get advice or help filing for divorce with the LegalZoom personal legal plan.