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Henry Dahut, J.D.
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Divorce Law Summary
This divorce and family law summary provides an overview of Wisconsin’s divorce law, highlighting key aspects of the divorce law process such as:
- Residency Requirments
- Grounds for Divorce
- Property Division
- Child Custody
- Child Support
- Spousal Support
- Legal Separation
- Name Change
Whether you are considering divorce or simply seeking to understand the legal framework in Wisconsin, this article offers a foundational understanding of the state’s approach to marital dissolution.
Residency Requirments
One of the spouses must have been a resident of Wisconsin for six months and of the county for at least 30 days immediately before filing the divorce.
The residency requirement ensures that Wisconsin courts have the legal authority to hear and decide the divorce matter. Without meeting this requirement, the court may lack jurisdiction to issue orders over the parties and have the court’s rulings enforced.
Grounds for Divorce
No-Fault Divorce
In Wisconsin, the sole ground for divorce is the “irretrievable breakdown of the marriage.” This means that the marriage has broken down to the point where it cannot be repaired, and there is no requirement to prove that either spouse was responsible for the breakdown of the marriage.
Either party or both may assert the marriage is irretrievably broken.
Mutual Agreement or Unilateral Assertion:
Mutual Agreement: If both spouses agree that the marriage is irretrievably broken, this is sufficient grounds for the court to grant a divorce.
Unilateral Assertion: If only one spouse believes the marriage is irretrievably broken, the court may require a period of separation. Specifically, the court will consider the marriage irretrievably broken if the spouses have lived apart continuously for at least 12 months immediately before the commencement of the divorce action and there is no reasonable prospect of reconciliation.
Legal Separation
Filing for legal separation is not mandatory if both parties legally agree to end the marriage through the assertion process discussed above.
Conversion from Legal Separation to Divorce
If the spouses initially opted for legal separation, they can later convert their separation into a divorce. Either spouse can request the conversion, and if it has been one year since the legal separation judgment was entered, the court will grant the conversion to a divorce.
Distribution of Marital PropertyProperty
Wisconsin is a community property state. This means that marital property will generally be divided equally between the spouses.
Here are some essential points regarding property division:
Marital Property: This category of assets and debts are acquired during the marriage, regardless of whose on title
Separate Property: Assets and debts acquired before the marriage or after the date of separation are typically considered separate and are not subject to division.
Equitable Distribution: While the default is an equal split, the court can adjust the division based on various factors, including how long the spouses have been married, the age and health of the spouses, their respective earning capacities, and contributions to the marriage, including homemaking and childcare.
Property Division
The court may alter distribution based on these and other equitable factors:
- The length of the marriage.
- Whether either spouse has substantial assets that are not subject to division by the court.
- The contribution of each spouse to the marital estate while assigning appropriate economic value to each of their contributions, including homemaking and child care.
- The age and physical and emotional health of the spouses.
- The contribution by one spouse to the other in providing education, training, or increased earning power, whether there is a substantial change in circumstances, is a discretionary decision.
- The potential earning capacity of each party.
- Other economic circumstances of each spouse, including retirement benefits whether or not vested.
- The court may also divide any of the spouse’s separate property to prevent hardship on a spouse or the children of the marriage.
Alimony – Spousal Support
Under Wisconsin state law, a spouse may be ordered to pay spousal support, to the other spouse without regard to allegations of marital misconduct.
The factors the court will consider include:
- The age of the marriage.
- The age, as well as the physical and emotional health of the spouses.
- The property division.
- The education of each spouse at the time of marriage and at the time divorce action was filed.
- 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.
- 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.
- The tax consequences to each party.
- 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 further compensation in the future.
- The contribution by one party to the education, training, or increased earning power of the other.
- Any other relevant factors the court deems appropriate.
Legal Separation
Wisconsin also allows for legal separation. The grounds for legal separation are the same as for divorce—the irretrievable breakdown of the marriage.
Legal separation may be chosen for personal, financial, or religious reasons.
Child Custody
In rendering a divorce judgment, the court shall make whatever determinations it deems just and reasonable concerning the legal custody and physical placement of any minor children to the parties. Joint or sole child custody is based on the best interests of the child.
The court determines child custody based on these and other considerations:
- The preference of the child.
- The wishes of the parents.
- The child’s adjustment to their home, school, religion, and community.
- The mental and physical health of all individuals involved.
- The relationship of the child with parents, siblings, and other significant family members.
- Any findings or recommendations of a neutral mediator;
- The availability of childcare.
- Evidence of spouse or child abuse.
- Any significant drug or alcohol abuse;
- And any other factors the court deems necessary to be in the best interests of the child.
Child Support
When minor children are involved, child support is a crucial financial consideration.
Wisconsin uses specific guidelines to calculate child support based on:
- Income of Both Parents: The incomes of both parents are considered to determine the support amount.
- Custody Arrangements: The amount of time each parent spends with the child can affect the support calculation.
- Health Insurance and Childcare Costs: These expenses are factored into the support calculation.
- Special Needs of the Child: Any special needs or extraordinary expenses related to the child are taken into account.
Other factors to be considered by the court include but are not limited to:
- The financial resources of the child.
- The standard of living the child would have enjoyed if the marriage had not been dissolved.
- The physical and emotional conditions and educational needs of the child.
- The financial resources, earning capacity, needs, and obligations of the parents.
- The child’s age and health, including the need for health insurance.
- The desirability of the parent having custody remaining in the home as a full-time parent.
- The cost of daycare to the parent having custody if that parent works outside the home or the value of the childcare services performed by that parent.
- The tax consequences to each parent.
Watch divorce attorneys from Sterling Divorce discuss the Wisconsin divorce process:
Legal Name Change
In Wisconsin, a spouse can request a name change as part of the divorce proceedings by indicating this desire in the initial divorce petition or by informing the court at any time before the final judgment. During the final divorce hearing, the judge will review and typically approve the name change request, provided it is not for fraudulent purposes.
Make Sure To Update All Your Legal Documents:
The name change will be included in your finalized divorce decree. The divorce decree will serve as proof that your name has been legally changed.
You should request the court to provide you with certified copies of the divorce decree, which you will need to submit as proof to key governmental agencies and financial institutions.
Make sure to have your new name placed on your:
* Social Security Card
* Driver’s License
* Passport
* Bank Accounts and Credit Cards
* Employer Payroll Records
* Property Titles and Insurance policies
Sources and References
Cornell Law Information Institute – Divorce
Child Custody Laws Wisconsin – Child Custody Coach
Waukesha Alimony Attorneys | Karp & Iancu, S.C..
Wisconsin Divorce Law-DivorceMoms.com
Wisconsin Divorce | Wisconsin Family Lawyer | Wisconsin Parenting Time Factors
