Although each case is different and needs individual analysis by an experienced attorney, the following is general information about divorce or legal separation actions filed in Wisconsin. This information is offered as a general guideline only, and is not intended to be legal advice.

Can we both use the same attorney?

Because a divorce or legal separation action involves two people with conflicting interests, one attorney cannot represent both parties. However, the attorney can represent one spouse, leaving the other spouse unrepresented (pro se). This usually gives an advantage to the spouse who is represented.

Should I get an attorney?

A divorce or legal separation involves a number of complex issues. Once many of these issues are decided, they are final, and cannot be changed in the future. It is important that an attorney advise you of your rights before you enter into any agreement that may be detrimental to your long-term interests. Opposing attorneys are able to draft agreements that are subtly worded to benefit their client and to harm the other party (that is what they are paid to do). Without a trained legal professional to review these documents, you could miss the subtle wording, and put yourself at risk of long-term consequences.

What is the difference between divorce and legal separation?

The procedures for divorce and legal separation are essentially the same. The actions are filed in the same way and proceed the same way through the court's calendar. And, the end result for both will be a final judgment which divides assets and debts, determines financial obligations between the spouses, and establishes placement and custody rights to the children.

However, a legal separation is different from a divorce. If you are legally separated, you cannot marry anyone else until the legal separation is converted to a divorce, and then you must wait six months after this is done. Also, if you are legally separated and you reconcile with your spouse, you can dismiss the legal separation and thus restore the marriage. In contrast, if you divorce, you will have to remarry your spouse. Also, in some circumstances, one spouse may be eligible for continuing health coverage from the other spouse's employer, even after a legal separation is granted. The same is not true with a divorce.

How long does a legal separation last?

A legal separation can last forever. At some point, it may be dismissed, allowing the parties to be husband and wife again. Or, it may be converted to a judgment of divorce. This can be done at any time if both parties agree, or after one year has passed if only one party wishes to convert it to a divorce.

I've been married for a very short period of time. I Can I get an annulment?

A person is not entitled to an annulment just because of the short duration of a marriage. An annulment is a termination of a marriage that was invalid when it was entered into, for example, because one party was under the influence of alcohol or drugs, forced to get married, or lied to about an important aspect of the marriage. Consult an attorney with your specific fact situation to determine if you are entitled to an annulment.

What is the procedure for a divorce or legal separation?

The first step is to file a Summons and Petition. The Summons is the legal document that notifies the opposing party of the action and their responsibility to respond to it. The Petition sets out the facts of your case and what you are requesting from the Court. With these documents is an Order to Show Cause, a document providing notice of a hearing to determine the temporary issues, and an Affidavit if Support, which is signed by the petitioner (the spouse who has filed the action) and asks the court for certain temporary relief.

Once these documents are filed, they are served upon the other spouse (the respondent).

From that point, the court procedures may differ from county to county in Wisconsin, but the following description of Kenosha County procedures is similar to that used in other counties throughout Wisconsin.

The first hearing is known as a Temporary Order Hearing. Both parties must attend. The purpose of this hearing is to determine each spouse's rights and responsibilities while the action is pending. Such things as child custody and placement, child support, maintenance, debt payment, and use of the home, are determined on a temporary basis. Usually, this order continues until the action is finalized, unless it is modified by agreement or by court order.

The second hearing usually is a scheduling conference. The parties and their attorneys must sit down and decide which issues are in dispute and which are in agreement. Then, the court will schedule the case for either a final uncontested hearing (called a default hearing) or for a pretrial and trial, if there are issues in dispute.

If the parties have an agreement, their attorneys will reduce it to writing, called a Marital Settlement Agreement, which both parties must sign. If the Court approves the agreement, a default hearing is held to complete the action. This is a short hearing in which the Court takes testimony about the basic facts of the case, the parties' financial situations, and about the Marital Settlement Agreement. The divorce or legal separation is final on the date of the hearing.

If there is no agreement on some or all of the issues, the court holds a pretrial and trial. At the trial, the court will take testimony and exhibits about the issues in dispute, and will make a decision on those issues.

Within about a month after the final hearing, whether a default hearing or a trial, the parties will receive from the Court a document called the Findings of Fact, Conclusions of Law, and Judgment. This is your final paperwork proving that you are divorced or legally separated, and describing the terms of the divorce.

What are the issues involving children and how are they decided?

a. Custody and placement

Wisconsin defines custody as the power to make major decisions in a child's life, such as religion, education, and medical care. Joint custody involves both parents cooperating in making these decisions. Sole custody means only one parent makes these decisions.

Placement is how the child's time is divided between the parents. One parent usually has primary placement, meaning the child lives with that parent the majority of the time. The other has secondary placement, commonly referred to as visitation.

If either custody or placement are in dispute, the court orders that both parties go to mediation, which is a meeting between yourself, your spouse, and a neutral counselor who will help the two of you reach an agreement on your own. If this is successful, the counselor will reduce the terms of the agreement to writing, and will have both spouses sign it.

If mediation is not successful, the Court appoints an attorney to represent the children's best interests. This attorney is called a guardian ad litem. The attorney will do an investigation, sometimes assisted by a social worker, to determine what placement and custody arrangements will be best for the children. The guardian ad litem then makes a recommendation to the court.

If the parties still cannot reach an agreement on these issues, despite the guidance given by the guardian ad litem, the court will hold a trial, and the parties must present evidence to the court of why his or her position should prevail.

b. Child support

Normally, the court will order a spouse who does not have primary placement of the children to pay a certain percentage of his or her income to the spouse with primary placement. The percentages used are as follows:

17% for one child;
25% for two children;
29% for three children;
31% for four children;
34% for five or more children.

There are limited circumstances in which a court may impose a different obligation than the above. The most common are (1) if the payor has other children not of this marriage to whom he or she pays support; (2) if the payor has the child for more than thirty percent of the overnights per year.

c. Other financial issues

The court also has to determine who pays the uninsured medical expenses of the children, who must provide health insurance coverage for the children, and who gets to claim the children as dependents and exemptions for tax purposes.

How does the court divide property?

There is a presumption that all property of the parties shall be divided equally. The exception to this is property that is inherited or gifted to one of the spouses (provided that this property was not mixed with marital assets).

The court does have the discretion to divide the property unequally in special circumstances. An example is if one party owned certain assets before the marriage.

What is maintenance and how will it be determined?

Maintenance is spousal support, formerly called alimony. There is no clear formula for determining maintenance, as it is based upon a number of factors. Two of the most important factors are the length of the marriage and the disparity in the income of the parties. For example, if the parties were married for a long time and one spouse makes a lot more money then the other, it is likely that the court will order the higher-paid spouse to pay maintenance to the other spouse. The court will have to determine the amount of the maintenance, and the term. (The period of time it will it be paid.)

Can I get my spouse out of the house, or must I leave?

You will not be able to force your spouse to leave, unless he is violent, just by filing the divorce or legal separation action. You will have to wait until the temporary order hearing, at which time the court commissioner will determine who may live in the house and who must move out. If you cannot bear to live with your spouse and he/she refuses to leave, you may want to move out. You are not forfeiting anything by moving out. However, if you have children and you want primary placement of the children, make sure to take your children with you when you move out. Also, to avoid any dispute over household items that may turn up missing after you move out, you may want to take an inventory of the items that you are taking and those that you are leaving behind, and have your spouse sign it.

What if my spouse is violent?

By all means, get your children and yourself to a safe place immediately. Call your local sheriff or police as an immediate response to a violent situation. Then, file a temporary restraining order (call your local courthouse for instructions), which can get your spouse out of the house and get you back in. Take all violent actions seriously. However, do not make false accusations of violence to gain an advantage in your family court case! Not only is it unfair to your spouse, but it could also cause very negative consequences for you.

What happens if we reconcile?

If you want to attempt a reconciliation after a divorce has been filed, you can put the action on hold for a period of ninety days. Let your attorney know if you want to do this, as a paper has to be filed with the court. After this ninety days, you can dismiss the divorce action, or continue with it.

How do I get started?

Call Zamba Law Office at 262-843-3300 to set up a free, confidential consultation with Attorney Patricia Zamba.