Divorce – State FAQ – Wisconsin
Residency requirements, venue and procedures
Q: How long must I have lived in Wisconsin prior to filing for divorce in a Wisconsin court?
A: At least one of the parties to the divorce action must have resided in Wisconsin for at least six months and the county of filing for at least thirty days prior to the commencement of the action.
Q: What are the terms used to identify the parties in a divorce proceeding?
A: The party filing the action is called the Petitioner, while the other party to the divorce is referred to as the Respondent. If filing together the parties are known as the co-petitioners.
Q: What is “venue,” and what is the proper venue for a divorce case?
A: “Venue” refers to which type of court and in what locality the case is filed. In Wisconsin, proper venue for the divorce action is the Circuit Court. The petition for divorce may be filed in the county where either spouse resides.
Q: What is the title of the document initiating the action for divorce? The order granting the divorce?
A: The title of the document initiating the divorce proceeding is a Petition, while the title of the order granting the divorce is referred to as the Decree.
Q: Are there any waiting periods associated with a divorce action?
A: Wisconsin law provides that no divorce shall be issued until 120 days have elapsed from either the time the defendant was served with the summons, or from the date of filing a joint petition.
Grounds for Divorce
Q: What is meant by “grounds for divorce”?
A: A “ground” for divorce is a “reason” for divorce. A set of judicially recognized reasons for divorce exist in Wisconsin. You must use one or more of these reasons to justify your divorce.
Q: What are the recognized grounds for divorce in Wisconsin?
A: The only ground upon which divorce is granted in the State of Wisconsin is an irretrievable breakdown of the marriage of which there is no reasonable prospect of reconciliation.
Q: What does the term “spousal support” (or, “alimony”) mean?
A: “Spousal support” (sometimes called “alimony”) is money paid by one spouse to the other due to the payee spouse’s loss of the benefit of the payor spouse’s income due to the divorce.
Q: Is spousal support available while the divorce is pending in court, or only after the divorce has become final?
A: The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.
Q: What factors will the court consider when determining how much alimony to award to a party?
A: The court may order either party to pay the other spouse alimony without regard to fault. Factors the court will consider in determining the amount and duration of the award of support include such things as:
1. The financial resources of the party seeking support;
2. The time necessary to acquire sufficient education or training to enable the person seeking support to find appropriate employment;
3. The standard of living established during the marriage;
4. The duration of the marriage;
5. The contribution of each spouse to the marriage;
6. The age, physical and emotional condition of the spouse seeking support, and;
7. The ability of the payor spouse to meet his needs while meeting the needs of the spouse seeking support.
Q: On what basis does the court decide how marital property is divided?
A: In an action for divorce, the court will first set aside to each spouse that spouse’s separate property. The court will then distribute the marital property following the presumption that all marital property should be divided equally. Some of the factors the court will consider in altering the equal distribution of the marital property include:
1. The contribution of each spouse to the acquisition of the marital property;
2. The value of each spouse’s separate property;
3. The duration of the marriage and;
4. The age and health of the parties;
5. The amount and sources of income of each party;
6. The standard of living established during the marriage.
7. Any other relevant factor.
Q: Is the “separate property” of one spouse subject to being divided up?
A: The question here is whether property “belonging to” one of the parties should be included in the marital estate for purposes of an equitable division. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.
Q: What if the parties occasionally use an item of separate property (for example, silver table utensils inherited by the wife) for the benefit of both parties?
A: The property may be subject to division. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
Child custody and visitation
Q: What is child custody and visitation?
A: “Child custody” refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. “Visitation” is the topic of the non custodial parent’s ability to visit/spend time with the child(ren).
Q: If the parents cannot agree on child custody and visitation issues, on what basis will the court decide?
A: The court will determine custody based upon the best interests of the child. It is presumed that joint custody is in the child’s best interests. Some of the factors the court will consider in making the custody determination include:
1. The wishes of the child;
2. The wishes of the parents
3. The interaction of the child with his parents and siblings;
4. The child’s adjustment to his home, school and community,
5. Whether one parent is likely to unreasonably interfere with the child’s relationship with the other parent, and;
6. Any other relevant factor.
Q: Does a grandparent have any visitation rights with his or her grandchildren in Wisconsin?
A: Yes. A grandparent in Wisconsin does have visitation rights, and may be granted visitation with their grandchildren as long as it’s in the child’s best interest to have said visits, and it does not infringe on any parental rights.
Q: What is “child support”?
A: Child support is money paid by the non custodial parent to the custodial parent in order to meet the needs of the child(ren).
Q: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?
A: Either or both parents may be required to pay an amount reasonable to support a child of the marriage. Wisconsin has established child support guidelines which serve as the presumed correct amount of support to be paid. Some of the factors the court will consider in deviating from the guidelines include:
1. The financial resources of the child;
2. The financial resources of the parents;
3. The financial needs of each party;
4. The standard of living the child would have enjoyed had the marriage continued;
5. The age, education, and physical and mental health of the child, and;
6. Any other relevant factor. 767.25