Wisconsin Divorce Questions

Wisconsin Divorce Questions

1) How long does it take to get a divorce in Wisconsin?

    1. A divorce in Wisconsin takes at least 120 days.  Under Wisconsin law, a divorce cannot be finalized by the court until 120 days have passed since the other spouse was served with a copy of the divorce papers.
    2. The first step in filing a divorce in Wisconsin is to draft a divorce petition, a divorce summons, an order to show case, and a confidential petition addendum.  These forms can all be found online.  
    3. Once the divorce papers are filed, the next step is to serve the Wisconsin divorce papers on your spouse.  The best way to do this is to hire a process server to do this for you.  Once the Wisconsin divorce papers are served, the process server will provide you with an affidavit of service, which you then file with the court to prove that you properly served your spouse with the Wisconsin divorce papers.  Also, this starts the 120-day clock running.  
    4. Once the Wisconsin divorce papers are filed, the court will schedule a “first hearing,” which is also called a “temporary hearing.”  At this hearing, the court will make a “temporary order.”  A “temporary order” is a court order that addresses financial and child custody issues while the divorce is pending.
      1. Wisconsin Divorce Lawyer Expert Tip:  Never go to a “temporary hearing” without an experienced Wisconsin divorce lawyer.  Although the “temporary order” is supposed to be only temporary, it often becomes the final order of the court or at the very least strongly influences the court’s final decision on the divorce.  This is why it is very important to get the best possible temporary order for your situation and having an experienced Wisconsin divorce lawyer makes that outcome much more likely. 

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    5. At the “temporary hearing,” the court will schedule a “scheduling conference” on a date that is at least 120 days after your spouse was served with the divorce papers.  If the parties agree on all financial and child custody issues, the divorce can be finalized at the “scheduling conference.”  This means the parties will be divorced on that day.
    6. If the parties cannot agree on all financial and child custody issues, the court will schedule the matter for a trial.  The trial will be to a judge, not to a jury.  Both parties will have the opportunity to call witnesses and present evidence to persuade the judge.  Any issue the parties cannot agree on will be decided by the judge.
      1. Wisconsin Divorce Lawyer Expert Tip: The judge will almost always approve an agreement reached by the parties on any financial or child custody issue.  This is because the judge knows that the parties, rather than the judge, are in the best position to know what agreement is best for them and their situation.   Therefore, it is almost always better to reach an agreement on any issues you can rather than letting a judge decide the issue since the judge doesn’t know as much about the issues as you and therefore makes his or her decision based on very limited information.  

 

Wisconsin Divorce Questions:

2 ) How will our property be divided in a Wisconsin divorce?

    1. Generally, in a Wisconsin divorce, the court will presume that all property is “marital property,” meaning that each spouse is entitled to one-half of it.  This goes for everything – joint bank accounts, personal property, houses, cars, and retirement accounts.  There are exceptions to this rule.  For example, property that was inherited or property and was a gift may be considered something other than “marital property,” but the spouse asserting that the property is not “marital property” is required to overcome the presumption that the property is “marital property” by proving that the property is not “marital property.”

 

Wisconsin Divorce Questions:

3) Do I need a divorce lawyer for my Wisconsin divorce?

    1. Yes, unless you have no children and no assets.  But what if my spouse and I agree on all the issues?  Yes, you still need a Wisconsin divorce lawyer.  Before you agree with your spouse on anything, you need to know what you are entitled to under the law.  An experienced Wisconsin divorce lawyer can tell you what you are entitled to under the law.  
      1. Wisconsin Divorce Lawyer Expert Tip: You can always decide to accept less than you are entitled to under the law.  But knowing what you are entitled to under the law puts you in the best position to negotiate with your spouse to get what you really want.
    2. Also, divorces involve much more than simply dividing up property and deciding who the children will live with.  There are many issues in a divorce that many people need to consider, such as:
      1. What if my spouse files for bankruptcy after we get divorced, could I be required to pay my spouse’s debts?
      2. What if my spouse gets our house in the divorce but then can’t refinance it, am I still on the hook for our mortgage payments?
      3. What if I earn a lot more money in the future, can my spouse take me back to court for more maintenance?  
        1. Wisconsin Divorce Lawyer Expert Tip: The answer to all of these questions is yes.  And an experienced Wisconsin divorce lawyer can protect you against all of these things by including certain language in the marital settlement agreement.

 

 

Wisconsin Divorce Questions:

4) Do kids get a say in the custody decision in a Wisconsin divorce?

    1. To some extent, yes.
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      If the parties cannot agree on issues regarding child custody and placement in a Wisconsin divorce, the court will appoint a Guardian ad Litem.  The Guardian ad Litem is an attorney whose job is to represent the children in court and make a recommendation to the judge regarding the child custody and placement arrangement.  The guardian ad litem is required to consider the wishes of each child when making a recommendation to the court regarding child custody and placement.  Generally, the older the child is the more persuasive the child’s wishes will be to the Guardian ad Litem.  

 

Wisconsin Divorce Questions:

5) Can I receive maintenance in my Wisconsin divorce?

  1. Maybe.  In a Wisconsin divorce, the court will consider a number of factors to determine whether one spouse should be required to pay the other spouse maintenance, also known as alimony or spousal support.  The court considers the following factors, found in Wisconsin Statutes 767.56:
    1. The length of the marriage;
    2. The parties’ age and physical and emotional health;
    3. The division of property in the divorce;
    4. The educational level of each party at the time of the marriage and at the time the divorce was filed;
    5. The earning capacity of the party seeking maintenance;
    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 the length of time necessary to do so;
    7. The tax consequences to each party;
    8. Any mutual agreement the parties had before or during the marriage for financial support of the parties;
    9. The contribution by one party to the education, training or increased earning power of the other; and
    10. Other factors the court determines to be relevant.

Wisconsin Divorce Lawyer Expert Tip:  Individual court commissioners and judges weigh each of these factors differently when determining maintenance.  Consult with an experienced Wisconsin divorce attorney in your county to determine which of these factors your particular court commissioner and judge believe are the most important.

 

For more Wisconsin divorce questions, see “5 Things You Should Know about Divorce in Wisconsin.” You can also visit our divorce page.

 

Attorney Christopher Glinski of Glinski Law Office has been recognized as one of the top divorce lawyers in Racine, Wisconsin. Contact Glinski Law Office at (262) 632.1555 for a free consultation or send a text to (414) 313-7918.

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