Do you have questions and concerns regarding your legal rights in a divorce?
Are you uncertain whether to hire an attorney to handle your divorce?
Are you confused about how attorneys charge for services in a divorce case?
If you are thinking about a divorce or are currently going through a divorce, it is vitally important that you understand your rights.
The following are commonly asked questions that should help you to better understand the process of divorce:
- What are the grounds for divorce in Wisconsin?
- How long must you live in Wisconsin before you can file for divorce?
- How is a divorce action started?
- How long does it take to get a divorce?
- How does the court decide the issue of child support?
- How does the court decide who gets custody and physical placement of a child?
- What is maintenance?
- How does the court divide the property of the parties?
- May a woman use her former name after a divorce?
- How is custody determined?
- What action may be taken against a spouse who disobeys a court order regarding custody, visitation, debt payments or payments of support or maintenance?
- If your spouse fails to pay bills as ordered by the court, can the creditor sue both of you?
- Why should I hire a lawyer to handle my divorce?
- Why should I have Karp & Iancu, S.C. handle my divorce case?
What are the grounds for divorce in Wisconsin?
The basis for divorce in Wisconsin is that the marriage is “irretrievably broken.” This means there is no chance for reconciliation. A judge may find a marriage “irretrievably broken” even if only one of the spouses wants a divorce. The fact that a husband and wife have lived apart continuously for 12 months is one form of evidence that there is no chance for reconciliation.
You do not have to prove misconduct such as adultery, mental cruelty, incompatibility or any other such reason for divorce in Wisconsin.
How long must you live in Wisconsin before you can file for divorce?
Before you can file for divorce, one spouse must have been a resident of Wisconsin for at least six (6) months and either spouse must have been a resident of the county where the action is started for at least 30 days.
How is a divorce action started?
Divorce usually begins with the service of four legal documents:
- the Summons, the filing of which starts the “legal” action;
- the Petition for Divorce, which gives the legal and factual history of the marriage and states the desired outcome;
- the Affidavit for Temporary Relief, which requests temporary provisions for child custody, visitation or support and any other provisions needed. The court uses the Affidavit as the basis for issuing temporary orders, which are ground rules by which both spouses must abide until the final divorce hearing;
- the Order to Show Cause, which contains the time and date of the hearing before the Family Court Commissioner who will establish the temporary orders.
The divorce action begins when the Summons and Petition are filed with the Clerk of Courts and served upon the Family Court Commissioner and the spouse.
On legal documents relating to the divorce, the person who asks for the divorce is called the “petitioner.” The other spouse is referred to as the “respondent.”
How long does it take to get a divorce?
There is a mandatory 120-day waiting period before you can be divorced in the State of Wisconsin, but most divorces take more than four months. The complexity of your case, the ability of you and your spouse to agree on property division, child support, maintenance, and other issues, plus the backlog of the particular trial court to whom your case is assigned all affect how long the divorce will take.
Your divorce is final and effective when the judge pronounces you divorced at the final hearing. Both parties, however, must wait at least six months before remarrying, anywhere in the world. Any marriage within six months would be null and void.
How does the court decide the issue of child support?
Child support is usually set by applying percentage standards to the gross income of the parent without custody: 17 percent for one child; 25 percent for two children; 29 percent for three children; 31 percent for four children; and 34 percent for five or more children. However, the court does not have to apply these standards if it determines they would be unfair in a particular case.
Occasionally, the parent without custody must also pay support for other children born before the marriage. In such a case, his or her gross income will be considered and reduced accordingly before the percentage standards are applied.
Violation of physical placement (visitation) rights by a parent with custody does not allow the non-custodial parent to stop child support payments.
In shared placement arrangements, there can be a deviation from the percentage standards to a different formula to calculate child support. This formula compares both parties’ incomes and considers the appropriate percent of time that the children are with both parents. This provision is known as Wisconsin DWD.40, Support Guidelines.
How does the court decide who gets custody and physical placement of a child?
Often a husband and wife agree on custody and placement. If not, the judge determines custody and placement in light of the best interests of the child(ren). In making this decision, the judge considers testimony and other evidence presented in trial. Important considerations include:
- reports of appropriate professionals, such as counselors and physicians;
- the wishes of the child and the parents;
- the relationships among the child, the parents, brothers and sisters, and others who may affect the child’s best interest;
- the child’s adjustment to the home, school, religion, and community;
- the mental and physical health of the parties, the minor children, and other persons living in a proposed custodial household;
- availability of child care services;
- the amount and quality of time that each parent has spent with the child in the past, any necessary changes to the parents’ custodial roles, and any reasonable lifestyle changes that a parent proposes to make to be able to spend time with the child in the future;
- the age of the child and the child’s developmental and educational needs for now and in the future;
- whether each parent can support the other parent’s relationship with the child, including encouraging and facilitating frequent and continuing contact with the child, or whether one parent is likely to unreasonably interfere with the child’s continuing relationship with the other parent; and
- any other factor the judge deems relevant.
There is also a new custody law in the state of Wisconsin that allows the court to consider periods of shared placement between parents. There has been a developing national trend during the past 5-10 years that when a couple gets divorced, rather than one parent having primary custody (placement) the children are not divorcing their parents, and therefore it is better for both parents to have actual equal or periods of shared placement with the children.
The current Wisconsin custody law does not presume equal placement or make it automatic in every case. Every divorce and every family is different and what may be best for one family in having shared placement may not be suitable or appropriate for another family. Every case has to be individually considered.
There is no constitutional or automatic statutory rights to have equal placement of children.
Lastly, Wisconsin also requires both parents to attend a mandatory parenting class to learn how divorce impacts on children before they can proceed to a final divorce. This is not marriage counseling.
What is maintenance?
“Maintenance,” formerly called “alimony,” is payment of money from one spouse to the other during or after a divorce. Maintenance differs from child support in its tax implications. A parent paying child support can’t deduct it and a parent who receives it doesn’t report it as income. Maintenance, on the other hand, can be deducted by the person who pays it and it must be reported as income by the recipient.
How does the court divide the property of the parties?
All of a couple’s property, including assets such as pension plans, is subject to equal property division. The only exception is property received either as a gift or an inheritance, except as between the parties. Even gifts and bequests may be divided in some limited circumstances where a “hardship” can be shown. If the couple can’t agree on how to divide the property, the court will usually divide equally the total of the divisible property. It may alter this division, however, by considering certain factors:
- the length of the marriage;
- the property brought into the marriage by either party;
- whether one of the parties has substantial assets not subject to division by the court;
- each party’s contribution to the marriage;
- the age and physical and emotional health of the parties;
- the contribution by one of the parties to the increased earning power of the other;
- the earning capacity of each party;
- the desirability of awarding the family home or the right to live there to the party with physical placement of the minor child(ren);
- tax consequences;
- agreements of the parties; and
- any other factor the court deems relevant.
May a woman use her former name after a divorce?
Yes. If a woman wants to resume using her maiden name or a former legal name, the court will restore it. If she wishes to continue to use her married name, she may do so.
How is custody determined?
There are two types of custody: sole and joint. Under sole custody, the custodial parent makes all major decisions involving the children’s upbringing, such as health, school and religious issues. Under joint custody, both parents make decisions and have equal input regarding the children on major issues. Absent abuse concerns, such as domestic violence or alcohol or drug abuse, most parents have a joint custodial relationship.
What action may be taken against a spouse who disobeys a court order regarding custody, visitation, debt payments or payments of support or maintenance?
You must petition the court to enforce its order. This is known as a “contempt motion.” After receiving the court papers, your spouse must appear to explain whether he or she has followed the court’s orders. If not, the court will want to know why. After hearing the facts, the court decides whether your spouse willfully disobeyed. He or she may be found in contempt of court and punished with a jail term or other court sanctions. The court may issue other orders as necessary to remedy the contempt.
If your spouse fails to pay bills as ordered by the court, can the creditor sue both of you?
Yes. The court’s order does not change the parties’ relationships with creditors. They may sue either spouse and may repossess any property in your possession that was pledged as security. If only one of you is sued, that spouse may bring the other into the lawsuit.
Why should I hire a lawyer to handle my divorce?
The termination of a marriage, even a short one, produces complicated legal issues involving support, custody, maintenance, property division and tax consequences. Attempting to resolve your case without proper legal representation is very risky.
- The courts are not under any duty to protect your legal rights and cannot give you legal advice.
- Your spouse’s attorney is an advocate for him or her only and cannot ethically protect your legal rights or give you legal advice.
- Your spouse’s attorney may attempt to persuade you into accepting a settlement which is totally lopsided and advantageous only to your spouse. A litigant in any lawsuit, including a divorce, who is not familiar with the substance and procedure of the law is doomed to make mistakes and jeopardize his or her rights.
- People who attempt to handle their divorces on their own (pro se) often end up in a legal mess which later requires retaining an attorney anyhow. Often, it will cost much more in both time and money to correct the errors made by a pro se litigant.
The bottom line is whether you can afford to trust your legal rights, your children’s future, your property, and everything you have worked for, to your own limited knowledge of family law or to your spouse’s attorney, who is paid to protect his or her rights, but not yours?
Why should I have Karp & Iancu, S.C. handle my divorce case?
- The attorneys at Karp & Iancu, S.C. have represented over a thousand divorce clients since 1977. We have vast trial experience and if your case cannot be resolved through a negotiated settlement, we are prepared to try your case before the court and be as tough and aggressive as necessary;
- We have a network of experts who are available to work with us in the resolution of your case. If it is necessary, we have access to psychologists, physicians, marriage counselors, accountants, property appraisers, actuaries, and others;
- We handle cases in all Southeastern Wisconsin counties including Milwaukee, Waukesha, Ozaukee, Racine, Jefferson, Sheboygan, Walworth, and Washington counties, and others on a regular basis. All of the local judges and family court commissioners know and respect us and this gives us the ability to handle your case quickly, efficiently, and fairly.
- We at Karp & Iancu, S.C. pride ourselves on personal service, attention to your needs, and open communication with our clients. Your case will be handled by an experienced divorce attorney. Your telephone calls will be promptly returned and you will receive periodic correspondence to bring you up to date on your case. We are always available for in‑office meetings to answer any questions or address any concerns you may have.