10: Overview of Commencing a WI Divorce
- Page ID
- 121696
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Although each county in Wisconsin has its own procedures, there are procedures and considerations common to all counties. Below is an overview of those procedures, with links to Wisconsin’s Circuit Court Forms for divorce.
10 Basic Steps for Getting a Divorce or Legal Separation
Even though each county may do things a little differently, or call various hearings by different names, there is a basic structure to how a divorce or legal separation will proceed in Wisconsin.
- Decide How You Will File. You need to decide if you and your spouse will be signing the Petition together (filing jointly) (FA-4110V with Minor Children or FA-4111V without Minor Children) or if only one of you will be completing the forms to start the action (filing alone) (FA-4108V with Minor Children or FA-4109V without Minor Children).
- Decide If You Need a Temporary Hearing. You may request a temporary hearing before the Family Court Commissioner by completing an Order to Show Cause and Affidavit for Temporary Order (FA-4128VB & FA-4128VA with Minor Children or FA-4129VB & FA-4129VA without Minor Children) if you and your spouse cannot agree on any of the following issues:
- Child Custody
- Use of automobiles or other personal property
- Child Placement
- Payment of bills
- Child Support
- Payment of maintenance or spousal support
- Use of the family residence
- File the Action. The summons and petition (or joint petition) for divorce or legal separation and confidential petition addendum must be filed and a fee paid to the Clerk of Circuit Court. (Note: There is a mandatory 120-day waiting period before the court can hear the final hearing.)
- Deliver (or serve) copies of the documents to those who must receive them. In order for the court to hear the case, your spouse must be provided with copies of the summons, petition, confidential petition addendum, and proposed parenting plan. Proof of that service must be filed with the Clerk of Circuit Court.
- Obtain a Temporary Order (if needed). If you completed the Order to Show Cause and Affidavit for Temporary Order (see #2) you must attend the Temporary Hearing you requested to have a temporary order issued. If you and your spouse reach an agreement, you can complete and file a Stipulation for Temporary Order (FA-4126VA & FA-4126VB with Minor Children or FA-4127VA & FA-4127VB without Minor Children). If you and your spouse don't believe it is necessary to have a formal temporary order, you may ignore this step at this time. If the situation changes before the final hearing, either spouse may seek a temporary order.
- If there are minor children, complete any required parenting programs. If you do not reach an agreement in mediation, you must file a proposed parenting plan (FA-4147V) within 60 days of finishing mediation or as ordered by the court.
- Obtain a date and time for the next hearing. In some counties, the court automatically schedules the next hearing. In other counties, you may have to contact the court to schedule the next hearing. This next hearing, depending on the county, may be the final hearing.
- Complete your paperwork for the final hearing:
- Marital Settlement (FA-4150 with Minor Children or FA-4151V without Minor Children)
- Financial Disclosure Statements (FA-4139V)
- Findings of Fact, Conclusions of Law, and Judgment of Divorce (FA-4160VA with Minor Children or FA-4161VA without Minor Children)
- Vital Statistics Form (from the Clerk of Circuit Court office)
- Any other forms required by the Court
- Attend your final hearing. Arrive early, be prepared, bring your paperwork, and be polite.
- Complete any other documents required after the final hearing. Sign car titles and real estate deeds; complete documents to divide pension plans (QDRO); change beneficiaries on life insurance policies; revise your will, and other matters when appropriate.
Legal Issues to Consider
Jurisdiction: Where should you file?
Divorces and legal separations are filed in the county you currently reside, not where you were married.
To file for divorce in a County in Wisconsin, at least one of the parties must:
- Be a resident of the State of Wisconsin for at least 6 months immediately before the date the action is filed, and
- Be a resident of the County in which you are filing for divorce for at least the 30 days immediately before the date the action is filed.
To file for legal separation in a County in Wisconsin, at least one of the parties must:
- Be a resident of the State of Wisconsin for at least the 30 days immediately before the date the action is filed, and
- Be a resident of the County in which you are filing for legal separation for at least the 30 days immediately before the date the action is filed.
Divorce, Legal Separation, or Annulment?
Divorce
Divorce ends a marriage. The court rules on such issues as the division of property, maintenance (spousal support), and if necessary, arrangements for child support, legal custody, and physical placement. There is a 120-day waiting period to get divorced. Once the divorce is granted, the parties cannot remarry anywhere in the world for at least six months.
Spouses do not have to give reasons for wanting a divorce. Wisconsin is a "no-fault" divorce state, which means neither spouse must prove that the other has done anything wrong, and only one spouse must testify under oath that he or she believes that the marriage is irretrievably broken. A marriage is irretrievably broken when there is no chance for reconciliation.
Legal Separation
Legal separation does not end a marriage. The court rules on the same issues as for divorce. The forms, instructions, procedural information, and waiting period (120 days) for obtaining a legal separation are also the same as those for divorce. Spouses are free to reconcile at any time. Spouses cannot marry another person while they are legally separated. If the spouses agree, they may convert the legal separation to a divorce at any time. If they do not agree, either spouse may convert the legal separation into a divorce by filing a motion to do so after one year from the date the legal separation was granted. The parties may not remarry anywhere in the world for at least six months from the day the legal separation is converted to a divorce.
Spouses do have to give a reason why they are requesting a legal separation and not a divorce. Both of the spouses will have to give testimony under oath that the marital relationship is broken.
Annulment
An annulment is a court procedure that declares that a marriage never existed. However, a court may annul a marriage only under limited circumstances. A short term marriage IS NOT a legal reason for annulment. See Wisconsin Statute 767.313 for the acceptable reasons to request an annulment. The forms, instructions, and procedural information provided by the Wisconsin Court System are not designed to be used to request an annulment. You should seek legal assistance if you feel you qualify and would like to file an annulment.
Other Issues to Consider
Legal Custody
Legal custody refers to the major decision-making authority for a minor child, including but not limited to decisions regarding consent to marry, enter military service, obtain a driver's license, authorization for non-emergency healthcare, and choice of school and religion. Wisconsin law presumes that it is in the best interest of the minor child that the parents be granted joint legal custody. Joint legal custody means that neither parent's legal custody rights are superior, except as ordered by the court or agreed to by the parents. A court may find that awarding joint legal custody would be harmful to the minor child and order sole legal custody to one parent.
Physical Placement (Visitation)
Physical placement refers to the right to have a minor child physically placed with a parent. It gives that parent the right and responsibility to make, during that placement, routine daily decisions regarding the child's care. One parent may be awarded physical placement with the other parent having periods of physical placement (visitation), or the parents may be awarded shared physical placement. If either parent is awarded less than 25% placement, specific reasons must be given explaining why more placement with that parent is not in the child’s best interest.
Mediation
It is recommended that the parents come to an agreement as to the legal custody and physical placement of their children. If they cannot, and a dispute arises, the court will order that the parents attend a mediation session. Parents must submit parenting plans (FA-4147V) to the mediator 10 days before the initial mediation session. If the parents are still unable to come to an agreement, the court may make other orders, including the appointment of an attorney to represent the interests of a minor child (Guardian ad Litem), and the filing of a Proposed Parenting Plan with the court. In making a final decision on legal custody or physical placement, the court will consider all factors related to the best interest of the child, including those listed in WI Statute 767.41, which is available at the following website: https://docs.legis.wisconsin.gov/statutes/statutes/767/v/41
Personal Safety Issues
If your case involves minor children, and you have serious reason to believe that your health, safety, or liberty or that of a minor child would be jeopardized by the disclosure of certain identifying information both in paper and electronic records, you may request that identifying information be sealed from the public or the other party until a hearing is held. Once you have completed the forms (GF-177 and GF-178), the court will schedule a hearing. At that hearing, you will have to convince the judge that it is in the interest of justice for the information to continue to be sealed.
Child Support
The court may order either or both parents to pay child support for a child who is:
- Under the age of 18, or
- Age 18, but less than 19, and pursuing an accredited course of instruction leading to a high school diploma or its equivalent.
Payments for child support are generally intended to include basic support costs including food, shelter, clothing, transportation, personal care, and incidental recreational costs. Under a shared placement circumstance, parents may also be required to pay variable costs (reasonable expenses above basic support costs) in addition to child support, including child care, tuition, a child's special needs, or other activities that involve substantial costs.
Child support is calculated based on the percentage standard guidelines established by the State of Wisconsin Department of Children and Families (DCF). Not every family situation is the same, so the approach that applies to a specific situation may be somewhat different from the guidelines. The court may order an alternative that is greater or less than the guidelines if the use of the guidelines is unfair to one of the parents or children based on the circumstances, including but not limited to shared-placement, split-placement, low-income, high-income, or serial-family payer circumstances. The child support standard guidelines are based on the “gross” (pre-tax) income of the payer or both parties and the number of children they have in common. The designated percentage amounts are:
- 17% for one child
- 25% for two children
- 29% for three children
- 31% for four children
- 34% for five children
Maintenance (Spousal Support)
A spouse seeking support from the other spouse may request maintenance in the divorce or legal separation. The court may order maintenance for a limited or indefinite length of time. When considering whether to award maintenance, the court will look at all of the circumstances of the parties, including but not limited to, the factors listed in WI Statute 767.56. This statute is available at the following website: https://docs.legis.wisconsin.gov/statutes/statutes/767/vi/56
Property Division
Wisconsin presumes that all property, other than property that a party receives as a gift or through inheritance, will be divided equally (after considering all debts). To achieve an equal division of property, the judge may award property to one party and a cash payment to the other party. The judge may divide property unequally after considering the factors described in WI Statute 767.61, which is available at the following website: https://docs.legis.wisconsin.gov/statutes/statutes/767/vii/61
If the spouses agree on how to divide all their property, they must provide a description of which spouse will receive which property. This also applies to the property that may have already been divided. If the spouses have already divided the property, or it is only in one spouse's name, they must still tell the court which spouse will get what property and the value of that property.
Debts and Obligations
The spouses must disclose all debts, regardless of who they believe will be responsible for them. The judge will determine which spouse is responsible to pay the debts and other obligations after considering any agreements between the parties. Even if the judge orders one spouse to pay certain debts after divorce/legal separation, creditors are not bound by the court order established in Family Court and may seek payment from the other party if the party ordered to make the payments doesn't pay or files for bankruptcy. If this occurs, the party may request relief from the Family Court, but only if a specific order was established for payment of the debt or obligation.
(FA-4100; Basic Guide to Divorce - wicourts.gov)
As you can see, the process to begin the divorce action differs depending on whether both parties sign a Joint Petition for Divorce, or one party starts the action by filing a Summons and Petition for Divorce. The main differences are shown in the table below:
|
Type |
Joint Petition |
Summons & Petition |
|---|---|---|
|
Service of Process |
Not necessary; by signing the Joint Petition both parties are agreeing to the court having personal jurisdiction over them |
Personal service on the respondent is required within 90 days after the Summons & Petition are filed. Proof of service must be filed with the court Respondent may also sign and file an Admission of Service form. |
|
Waiting Period for Final Divorce Hearing |
120 days after the date on which the Joint Petition is filed |
120 days after the date on which Respondent is served with the Summons and Petition |
Service
“Service” or “service of process” are the legal terms used to describe the act of giving notice of a lawsuit or court hearing to another person. There are several different methods and very specific time limits by which you must have the other party served. The type of service you are required to use depends on the type of forms you are filing. If you do not have the other party served properly (within the correct time limits and using the correct method), the court cannot hear or decide your case.
Notice: This section describes only the most common methods of service available for use. Please seek legal assistance if you would like to explore additional/alternative methods or if the forms you are filing are not listed.
NOTE: If you are unable to serve the other party within the required time limits, you may write a letter to the court requesting a different court date.
Copies, NOT original documents, should only be given to the other party. The originals (if in your possession) and proof of service need to be returned to court after the other party has been served.
Personal Service
There are five basic ways to have the other party personally served:
Admission of Service by the State of Wisconsin / Child Support Agency
If the State of Wisconsin is a party to the action, you must serve your local Child Support Agency using the following steps below.
- Take a copy of the forms to be served and an Admission of Service form (FA-4119V) to the Child Support Agency.
- Give the papers to a representative from the Child Support Agency and ask him/her to “admit service”. He/she will complete the bottom portion of the Admission of Service form.
- Return the Admission of Service form to the Clerk of Courts Office as proof of service (keep a copy for your records).
Admission of Service for the other party
You may give the documents to the other party and ask that he/she voluntarily accept the papers from you. If the other party agrees to accept the documents, you need to:
- Complete the caption of the Admission of Service form (FA-4119V).
- Have him/her complete and sign the bottom.
- Return the Admission of Service form and a set of the documents served, as soon as possible to the Clerk of Courts. Remember to keep a copy for your records.
If the other party will not voluntarily accept the papers from you, or you do not wish to have contact with the other party, you must have the other party served using one of the other methods described below.
Sheriff’s Department
The Sheriff's Department, of the County in which the individual to be served resides, may serve the other party. Proof of service and a set of documents that were served must be returned to court as soon as possible. Remember to keep a copy for your records.
Private Process Server
You may make arrangements with a private process server to have the other party personally served. Contact individual companies for fees and procedural information. To find a private process server in your or the other party’s area, you may look under “Process Service” using a phone or internet directory or by going to http://www.iprocessservers.com. Proof of service and a set of documents that were served must be returned to court as soon as possible. Remember to keep a copy for your records.
Service by a Friend or Relative
A friend or relative who is over 18, is a resident of Wisconsin and is not a party to the action can also serve the other party.
- You: complete the caption of the Affidavit of Service form (FA-4120V).
- Friend or Relative: Gives a copy of the paperwork to the other party.
- Friend or Relative: Completes the bottom portion of the Affidavit of Service and signs it.
- You: Return the Affidavit of Service form and a set of the documents served, as soon as possible to the Clerk of Courts. Remember to keep a copy for your records.
Service by Publication
Before attempting this last resort, you should consider seeking legal assistance. There are specific and complicated rules that must be followed to successfully serve a party by publication.
Service by Publication is a last resort and can only be used if you failed to have the other party served by one of the methods above. You have a responsibility to make every effort to make personal service if possible, which includes gathering reasonably available information from family and friends to try and determine the other party’s location.
The option of Service by Publication is only available to you if you can answer yes to all of the following:
- You have tried personal service through the Sheriff's Department or a private process server.
- You have given them as much information as possible to help them find the other person.
- The Sheriff's Department or private process server cannot find the other person after a diligent search.
- You have been given an Affidavit of Due Diligence/Not Found/Attempted Service by the Sheriff’s Department or private process server stating that the other party could not be found. Keep this affidavit.
The Service by Publication Packet (FA-5001V) is available to assist individuals who are filing an action for divorce/legal separation.
Service by Mail
Serving documents to the other party by mail is allowed for certain types of forms. If service by mail is allowed, you must:
- Mail copies of the documents to the other party.
- Sign a sworn affidavit called the Affidavit of Mailing (FA-4121V).
- Return the Affidavit of Mailing and a set of the documents that were mailed to the Court as soon as possible. Remember to keep a copy for your records.
Judge: An elected public official with authority to hear and decide cases in a court of law. Municipal court judges preside over cases originating in their own city involving only local laws and traffic offenses. Circuit court judges are trial court judges with jurisdiction over all kinds of cases. There is a circuit court in each county. Appellate judges review the records of trial court proceedings to interpret the law and correct errors made by the trial courts.
Court commissioner: A lawyer appointed by the circuit judges of a county who, as a judicial officer, exercises many of the functions of a judge, by conducting hearings and making findings and recommendations. Commissioner duties vary from county to county but may include small claims, preliminary criminal proceedings, and other cases. Commissioners who hear family cases such as divorce, paternity, and child support are sometimes referred to as family court commissioners.
Court reporter: A person who makes a word-for-word record of what is said in court and produces a written transcript of the proceedings upon request.
Clerk of court: An elected county official who receives legal pleadings, issues subpoenas and warrants, enters judgments, collects fines, and keeps records of court proceedings.
Clerk: A member of the clerk of courts staff, who provides in-court assistance to the judge. The clerk keeps track of documents, exhibits, and scheduling, and keeps an abbreviated record of court proceedings.
Bailiff: A court officer who keeps order in the courtroom and has custody of the jury. The bailiff may be from the county sheriff's department.
Judicial Assistant: An administrative assistant to a judge who provides clerical support.
Interpreter: An officer of the court who interprets court proceedings between English and another language. Interpreters may work on contract with the court or as county employees.
Register in probate: A county official appointed by the circuit judges who keeps records of court proceedings in probate cases and oversees the administration of estates. Probate cases include wills, trusts, guardianships, and mental health commitment hearings. This position is similar to the clerk of court and sometimes part of the clerk of court's office.
Juvenile clerk: A county official appointed by the circuit judges who keeps records of court proceedings in juvenile cases, including juvenile delinquency, juveniles in need of protective services, and CHIPS (child abuse and neglect.) This position is usually combined with the Register in Probate, but sometimes is an employee of the clerk of court's office. Not all counties have a separately appointed juvenile clerk.
Sheriff: An elected county official responsible for law enforcement and public safety. The sheriff serves complaints, subpoenas, and warrants.
Attorney: A trained and licensed advocate, counsel, or agent who handles cases in the courts or manages the legal affairs of a client. Attorneys may be in private practice, work for the government, or work for a business or nonprofit group.
Prosecutor: A trial attorney representing the government in criminal cases and forfeiture cases. The prosecutor decides who and when to prosecute. Depending on the offense, cases may be prosecuted by an assistant attorney general who works for the state, by a district attorney elected at the county level, by a municipal attorney for violations of city or county ordinances, or by a corporation counsel who works for the county.
Defense attorney: An attorney who represents the defendant, usually in a criminal case. A public defender is an attorney employed by the state whose work consists primarily of defending people who cannot afford a lawyer. Defense attorneys may also be private attorneys appointed by the court or paid by the defendant.
Probation officer: A state official who supervises a criminal defendant placed on probation. The probation officer monitors the progress of a probationer and takes action if the probationer violates the conditions of release.
Guardian ad litem (GAL): An attorney appointed by the court to represent the best interests of a party or someone affected by the matter. A GAL is often appointed to represent the best interests of a child in child abuse and neglect, juvenile delinquency, and divorce cases. A GAL may also be appointed to represent the best interests of adults and children in guardianships, protective placements, and other matters.
Coroner: An elected county official who inquires into the causes of any death that occurs under unusual circumstances.
Chief judge: A circuit court judge appointed by the Supreme Court to oversee the administrative activities of a judicial district and provide judicial leadership within the district.
District court administrator: A professional court administrator hired by the state to oversee the administrative, and non-judicial activities of the courts in each judicial district. The DCA may be the person responsible for coordinating interpreter services within the district.
Wisconsin Court System - Court services - For the public - Self-help law center (wicourts.gov)
Paralegal Roles
When a client comes to the law office requesting a divorce, the paralegal’s role is to support the supervising attorney in providing legal services and acting as liaison between the client and the supervising attorney. Typical tasks include interviewing the client, requesting documents and other information from the client, conducting factual investigation and/or legal research, drafting documents as directed by the supervising attorney, facilitating the signing of documents, and filing documents with the court or other state agency.