Default Divorce in Wisconsin

Wisconsin is known as a “no-fault” divorce state. While this term gets thrown around a lot, all it means is that neither party has to prove anything against the other in order to get a divorce; you just have to state that the marriage is “irretrievably broken,” and then the divorce can be granted along with a division of the martial estate and any custody orders regarding minor children of the marriage. A Wisconsin “default” divorce occurs when there are no contested issues in the divorce process.   

Key Takeaways

• Wisconsin's "no-fault" divorce status means neither party needs to prove wrongdoing; they simply declare the marriage irretrievably broken, allowing for asset division and custody decisions.
• Filing for divorce in Wisconsin requires submitting a petition detailing marriage details and desired outcomes, initiating a mandatory 120-day waiting period post-service for divorce approval.
• Proper service of divorce papers is crucial in Wisconsin, ensuring due process; failure to serve can lead to alternative methods like publication, affecting the enforceability of court orders in default divorce cases.

Filing the summons and petition

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All Wisconsin divorces start out the same way, one or both parties file a petition for divorce giving basic information about their marriage (i.e. date and location of marriage) and that they want a divorce and which party should get which asset or debt. 

Wisconsin has a minimum waiting time for a divorce to be granted. The law states that after service is properly completed, 120 days must pass before the court will grant you a divorce. This is important for a few reasons: you are given time to work out any issues related to things like property, debt, and placement of the children if you need to, and it gives people a cooling-off period in case they reconsider making the decision to divorce. The 120-day waiting period is also important because it is when the period actually starts to run. The 120-day period until divorce can be granted does not start until proper service to the responding party has been completed. If you cannot serve the other party  

(referred to as “respondent”) then you cannot begin the clock on getting a divorce. Naturally, not being able to serve the other party presents a significant problem that will be addressed later in the article.  

Service Must Be Proper

Service on the other party must be proper in order for the divorce process to move forward. Service of process is a constitutionally protected right in a divorce (along with other types of legal actions). Every citizen is protected by the due process clause included in the federal constitution. If someone is suing you for divorce or another civil lawsuit, you have a right to be notified of it and time to get yourself legal counsel and prepare and file an answer in civil lawsuits or a response with potential counterclaims in a divorce proceeding.  

Service can be done via a process server, which is the standard surefire way to make sure that the other party is served and that there is an independent and unbiased third party swearing to that service. Sometimes, when there are a lot of bad feelings around a pending divorce or the other party thinks that they can avoid going to court by just evading service, the process server is the right way to go. The process server will locate the other party and physically hand them the file-stamped paperwork and then complete and file an affidavit of service, which the court will accept as good service.  

What is a Default Divorce in Wisconsin? 

There are really two ways that you can get a default divorce in Wisconsin, but they are essentially for the same reason: the other side takes no action. The first way is when the other party doesn’t contest anything the petitioner asks for in the divorce petition and simply does not file a response. When service is complete, the respondent has 20 days to file a response with any counterclaims they have. This is the opportunity for the respondent to ask for a different division of assets and debts, child placement, spousal support, and all the other issues that arise in a divorce. If the respondent is properly served and chooses not to file an answer, they are not contesting anything, and the petitioner can get a default judgment at the final hearing. 

The other time a default can be granted is when the respondent simply cannot be located for personal service. It is not unusual for a petitioner to file for divorce after the respondent has simply disappeared from the petitioner’s life. Respondents may originally be from a foreign country and return there, or they simply moved far enough away and cut enough contacts that they cannot be located by a reasonable search. The key here is a reasonable search. The court will not take “I don’t know how to find them,” at face value. Proper service must be attempted prior to other arrangements being made to achieve due process.  

When a party cannot be located, the first move is to try and serve them at their last known home address and or the last known place of employment. The magic number here is three, three attempts at proper service must be made.  

If three attempts are made, then you can request permission from the court to serve via publication. Publication is accomplished by running the summons in a local newspaper or magazine (the court usually has one they approve in that county) for three weeks in order to give the respondent a reasonable chance to see it. If, after the publication has run and an affidavit of publication is filed, then the court will consider service proper. 

The reason that the court will allow publication in some cases is either the respondent is literally gone and cannot be found or they are dodging the situation to create trouble for the petitioner. Publication is a last resort that must be properly completed.  

The Outcome of a Default Divorce

In some ways, a default might feel like a win, and it certainly can be. The petitioner gets a signed court order giving them exactly what they asked for in the divorce. If there are minimal and simple assets and debts or no children, this is fine. In situations where the other party truly cannot be located, it can be tough if you are awarded child support or spousal maintenance. Getting a court order awarding you something is one part of the process. Getting the court order enforced can be a whole separate problem. How could you have the respondent found in contempt of an order when you cannot locate them? A default divorce can be a blessing or a curse, depending on your individual circumstances. If you think that there will be problems related to proper service and enforcement of any court order, you should consult with an experienced Wisconsin family law attorney to assist you.