Are you facing divorce in the state of Wisconsin? Read on to be thoroughly equipped for what you may face during a divorce proceeding. We cover the divorce process, filing the Petition of divorce, legal separation, marital property, and everything else you need to consider.
How Do I Start the Divorce Process in Wisconsin?
A divorce is the end of a legal marriage in Wisconsin. The court will then rule on legal issues such as the division of marital property, spousal support, child support, legal custody of the child or children, and legal placement.
Spouses do not have to give a reason as to why they want to get divorced in Wisconsin. There is a 120-day waiting period to get a divorce, and once the divorce is granted, the parties cannot remarry for at least 6 months. This is known as a "no-fault" divorce, which means that one spouse does not have to prove that the other spouse wronged them in any way, just that the marriage is irretrievably broken. There is no chance that the parties can reconcile their marriage.
The first step to divorce is filing the Petition of divorce or legal separation. You first need to figure out how you will be filing you and your spouse can:
- File the Petition together - Joint Petition for Divorce
- File the Petition alone.
What If I Have Legal Issues That Need to Be Addressed Before the Filing of The Petition of Divorce?
If you and your spouse cannot agree on any of the following issues, you may request a hearing in the Wisconsin Family Court:
- Child Custody
- Child Placement
- Child Support
- Use of the family home
- Use of automobiles or other personal property
- Payment of bills
- Payment of maintenance or child support
Filing Of the Petition for Divorce or Legal Separation in Wisconsin
The next step is to prepare and file the summons and Petition for divorce or legal separation, the confidential petition addendum, and the proposed parenting plan. The following documents must be delivered or served to the other party, and proof of service must be filed with the court. Usually, a process server is hired to serve the legal documents of the other party. At this point, it is a good idea to consult with an attorney to represent your interest in the divorce proceedings.
If both parties agree on a divorce, it is considered an uncontested divorce in Wisconsin.
What is the Marital Property Act in Wisconsin?
The Marital Property Act "Act" in Wisconsin was passed so that the law could recognize that both spouses contribute to the marriage financially and in other ways. If both spouses make an income, they are both contributing to the marriage. The Act says that whatever the spouses acquire during the marriage is the marital property and belongs to the spouses equally. There are some exceptions to this, but generally speaking, all property acquired during the marriage is marital property under Wisconsin law.
What is the Property Division in Wisconsin?
In Wisconsin, the court will assume that all property obtained during the length of the marriage is marital property. All other property, such as property gifted to a spouse, given through inheritance, or property acquired before the marriage, is separate or individual property. The court will divide the property through equitable distribution. The court seeks to divide the property into fair and equal to both parties.
In their own discretion, the judge may divide the property unequally after looking at the totality of the circumstances and all of the evidence and the facts of the case. The judge will do so in accordance with WI Statue 767.61, which can be found in its entirety here.
Spouses can come to an agreement on how to divide their marital property, and they can do so by providing the court with a description of the property that each spouse will receive. This applies to property that may already have been divided. If the spouses already divided the property, they must inform the court of the spouse that will obtain the property, along with the description and the value of the property.
What Is Considered Marital Property Under Wisconsin Law?
Marital property is all income possessions from the spouse's marriage date moving onwards. The exceptions to this property are an inheritance to one spouse, property acquired before the marriage, and gifts to one spouse during the marriage.
There are two different types of marital property:
- Survivorship Marital Property - Personal or real property passes directly to the spouse upon the other spouse's death. A great example of this is real property with each spouse's name on the deed. This type of property does not pass under a will.
- Deferred Marital Property - This property would have been determined to be marital property, but it was acquired before the marriage.
I Live in Wisconsin; Can I Still Have My Own Separate Property?
Yes, a personal gift to one spouse, an inheritance to one spouse, or a gift is individual property, no matter when it was received by the spouses. There must be evidence/records that are presented that show that the item in question is actually individual property. If not, then the law assumes that all property owned by the spouses is marital property that belongs to both spouses in equal shares.
The law in Wisconsin says the titled spouse must treat the property and the spouse who does not have title to the real property as if the property or real property is marital. Solely having title to an item on the property does not make the property individual property. The spouse named on the title does have the right to control the property.
Can Individual Property Become Marital Property in Wisconsin?
There can be an individual property in Wisconsin that belongs solely to one spouse. Usually, one spouse's personal property before marriage becomes marital property after marriage. Under Wisconsin law, each spouse gains rights or access to this property. This property is converted from individual property to joint marital property.
It is unfortunate, but property between spouses tends to get comingled together, and lines get skewed on individual property vs. marital property.
For example, the husband had a checking account at Bank A before the wife and husband were married. As time went on, the couples did not open up separate accounts for their own affairs. The spouses did have joint bank accounts, but the checking account from Bank A had continuous amounts of the husband's checks deposited into the account in Bank A. The account in Bank A earns interest during the marriage. The Bank A account now has commingled or mixed property. Since the interest with the money before the marriage, there is individual property mixed with marital property.
Further, you withdraw that interest to pay for family expenses for your children and wife during the marriage. This is further evidence that the bank account has been converted to a marital joint bank account that is marital property.
Another example is if a house owned by a wife individually is used for vacation purposes in Florida. The husband and wife build a swimming pool outside the home during the marriage. The property was owned by the wife individually. Still, since the upgrade of adding the swimming pool increased the value of the real property, it is now considered marital property.
Last example: Spouse 1 owned 150 shares of Stock A before the marriage and left the stock alone and did not buy anymore or sell any stock. That stock remains individual property. Something like this could also be known as financial infidelity.
If you want to prove that a piece of property individually belongs to you and is not marital property, keep evidence that the property is separate.
What Are The Credit Ramifications Of The Wisconsin Marital Property Act?
The Act makes it very easy for spouses who do not have an income to get a credit line. When deciding whether or not to grant the spouse that does not have an income credit, the creditor must look at the other spouse's income and all other marital property.
Under the Act, debts incurred during the marriage by both spouses are considered to be of the marriage, meaning that the debt will be allocated between both spouses. For a creditor to collect on a marital debt, the creditor can go after all marital property and the debtor's individual property.
For example, a creditor gives Spouse A a credit line, and Spouse A is not employed. Spouse A maxes out the $5,000 credit line and does not pay it. The creditor can go after Spouse B's paycheck and have their wages garnished to pay for the $5,000 credit line that Spouse A did not pay.
If your spouse disagrees on credit matters, you and your spouse can enter a marital property agreement. This works to limit the "innocent" spouse's liabilities for the other spouse's debts. The only issue with this is that the creditor must be given a copy of the marital property agreement before the credit line is established.
How Does The Wisconsin Marital Property Act Affect My Will?
Upon your death, the estate will contain all the individual property plus all of the marital property. You can set up your will to whomever you wish. If you leave your property to charity, the charity will receive all of your individual and marital property. This will cause issues with your surviving spouse as they will co-own all of the marital property with charity.
How Does The Wisconsin Marital Property Act Affect My Life Insurance, Pension, And Retirement Benefits?
Life insurance is tricky in Wisconsin. People pay for life insurance and retirement or pension plans before, during, and after marriage; thus, unique formulas exist to calculate which portions are marital or individual property.
When setting up your retirement or life insurance, you should name beneficiaries. The assets pass directly to your life insurance beneficiaries. This is done outside of a will. Suppose you name someone as a life insurance beneficiary that is not your spouse. In that case, your surviving spouse still has a martial property claim to part of the life insurance death benefit.
Can I Give Away Marital Property Under The Wisconsin Marital Property Act?
A spouse can give away marital property to a 3rd party if both spouses agree to the gift and if the giving spouse's name is on the property's title. If one spouse disagrees and disputes the gift and the value of the gift is $1000 or more, the disagreeing spouse can go to court to get the gift voided.
I Am In Disagreement With My Spouse Regarding Our Marital Property What Can I Do?
If there are disagreements present amongst the spouses that pertain to marital property, the spouses can bring each other to court to do any of the following:
- Recover the property that the one spouse gifted away to a 3rd party if the amount exceeds the $1000.00 threshold
- You can seek to have your name added to the title of the property so that both spouses have joint management and control over the property.
- You may remove a spouse from a title to limit her management or control of the property.
- You may ask for an accountant.
What Is A Marital Property Agreement, And Should My Spouse And I Consider A Marital Property Agreement?
As stated earlier, a marital property agreement is well suited for when spouses disagree with credit matters where one spouse takes out a credit line without the other authorization. Then the innocent spouse faces repercussions such as wage garnishment.
With a marital property agreement, you can keep some or all of your property as separate or individual property. You may also add the property as marital property in the marital property agreement.
A marital property agreement allows the spouse to accept or reject the law. Deciding whether to reject or accept the Wisconsin Marital Property law depends on many factors, such as your tax and estate planning situations. It is a wise decision to consult with an attorney regarding these legal issues.
Legal Custody of the Minor Children
Legal custody in Wisconsin simply means the decision-making authority over a child. This includes a parent's decisions relating to the child or children, such as consent to marry, enter military service, obtain a driver's license, health care decision making, educational decision making, religious decision making.
Wisconsin law presumes that it is in the best interests of a child that the parents be granted joint legal custody or decision-making over their child or children. The only reason the court will depart from this is if it is not in the child's best interest or it would put the child in danger of being harmed or injured. If the court finds that the child would be in danger of being harmed, the court will award sole legal custody to one parent.
For more in-depth information on Wisconsin child custody laws, read our recent article.
Physical Visitation of Children
Under Wisconsin law, one parent may be awarded physical placement with the other parent having visitation of the child or children. The court may award one parent shared physical placement. If either parent is awarded less than 25% of physical placement because the court finds that it is not in the child's best interest, the court must explain its reasons for doing so.
Wisconsin Divorce Mediation
Wisconsin courts recommend mediation during divorce cases. It is a wise decision that the parent agrees regarding child custody and physical placement of the children. If they cannot, the court will order a mandatory mediation session where parents submit parenting plans 10 days before the initial mediation session. If the parents cannot come to an agreement through mediation, then a guardian ad litem may be appointed to represent the child or children's interests, and the case proceeds down the litigation path. It must be noted that mediation is the best way to come to a resolution on a divorce case. It saves both parties money and speeds up the divorce process.
Read our article, 5 Things to Know About Wisconsin Divorce Mediation to learn more about mediation during a divorce.
Wisconsin Child Support Laws
The court can order both parents to pay child support for a child under the age of 18 or up to age 19 if the child is pursuing their high school diploma. Child support aims to provide financial support for the child or children's personal care, educational costs, food, shelter, clothing, personal care, economic costs, and extracurricular activities costs.
Child support is calculated using the percentage guidelines adopted by the State of Wisconsin Department of Children and Families (DCF). Sometimes the situation is different, so the court may depart from the guidelines. The designated percentage amounts of child support are the following:
For more information on Calculating Child Support in Wisconsin, read our recent article.
What Do I Do If I Feel Like Mine Or My Children's Personal Safety Is At Risk During The Divorce Process?
Suppose either party believes that their life safety, health, or welfare is threatened by either party or the children's life safety health or welfare. Either party may file a personal protection order. In that case, these orders restrain the other parties from committing acts of violence against the named individuals in the Petition.
Spousal Support Or Spousal Maintenance In Wisconsin
A spouse involved in a divorce or legal separation proceeding can seek maintenance or spousal support (alimony) from the other spouse. Alimony in Wisconsin is essentially financial support from one spouse to the other spouse. At its own discretion, the court may order spousal support for a limited amount of time or a fixed period or a permanent amount of time. When the court looks to award spousal support, the court will look to all of the facts and circumstances when awarding spousal support.
Spousal support (alimony) terminates when the court decides that the spousal support should end. This usually occurs if the spouse receiving the spousal support remarries or moves in with another love interest.
Assets, Debts, and Obligations in Wisconsin Divorce
The parties must disclose all debts of the marriage even if they do not know who will be responsible for paying the debts. The court and judge will determine which spouse is responsible for paying the debts after considering any agreement amongst the parties. Creditors are not bound by the judge's decision. They may seek reimbursement from the other party if the party is ordered to make payment and does not pay the debtor files for bankruptcy.
Read our article, 5 Things to Know About Debt After Divorce in Wisconsin, to learn more about this.
If you need help with your Wisconsin divorce case, please give us a call at (630)-324-6666 or fill out our confidential contact form, and a member of our team will reach out to you.
.avif)
.svg){kind=small}
