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How to File for Legal Separation in Wisconsin

What is legal separation?

A legal separation is a proceeding that dissolves a marriage. It is an independent proceeding and is not merely one step on the way to a divorce. Parties who legally separate may or may not decide to seek a formal divorce. Nonetheless, parties who are legally separated are NOT married.

Being physically separated (living apart) is not the same as being legally separated. An informal separation does not dissolve a marriage. A legal separation ends a marriage and creates a new legal status for the parties.

Reasons for Legal Separation

There are only one or two reasons people typically choose a legal separation over a divorce.

One reason is that the parties may have personal, moral, or religious objections to getting “divorced.” A legal separation has the same effect as a divorce without using the word “divorce.”

Another reason is that sometimes (very rarely) one party may be able to continue the other party’s health insurance if they are legally separated, but not if they are divorced. However, most insurance companies are now aware of this semantic loophole and no longer continue coverage for divorced OR legally separated spouses.

Sometimes, if the parties do not meet the jurisdictional requirements for filing a divorce (but do meet the requirements for filing a legal separation), they will start the action by filing a Petition for Legal Separation (but will then convert it to an action for divorce once they meet the jurisdictional requirements).

Legal Separation vs Divorce

There is virtually no difference between a legal separation and a divorce in Wisconsin.

• The laws for custody, placement, child support, maintenance and property division are the same for both.
• The factors a court must consider when making final orders are the same for both.
• The waiting period between the time of filing and the time of finalizing the action are the same for both (120 days).
• The county residency requirements are the same for both (30 days).

The only differences are procedural:
One party must have been a bona fide resident of Wisconsin for at least 6 months prior to the commencement of a divorce; there is no similar waiting period to file a legal separation.

And although a divorce ends a marriage forever, a legal separation is only guaranteed for one year because after that, either party can convert it to a divorce by filing a simple letter request with the court. However, if neither party requests the matter be converted to a divorce, the legal separation can last indefinitely.

One other major difference between legal separation and divorce is that six months after a divorce is finalized, the parties can get remarried to new spouses. After a legal separation, neither party can get remarried.

The Legal Separation Process in Wisconsin

Filing for Legal Separation

Filing a legal separation is identical to filing for divorce except that the case will be assigned a “legal separation” case code and in your initial filing you will ask for a judgment of legal separation instead of a judgment of divorce.

To file a legal separation you must:

• Step 1: File a Petition for Legal Separation with the clerk of courts in the county where you or your spouse have lived for at least 30 days.
• Step 2: Serve your spouse with the paperwork (a private process server, Sheriff’s deputy, or your attorney can help you with this step).
• Step 3: Wait 120 days.
• Step 4: Finalize your legal separation.

In between steps 3 and 4 (during the 120-day waiting period) you will have an opportunity to negotiate or mediate disputed issues with your spouse and to reach a final settlement agreement on all issues. If you cannot agree on how the issues should be settled, at the 120-day mark the court will set your matter for trial. Depending on which county you live in, you could have to wait an additional two to six months for the trial date. In he meantime, you can continue to try to resolve the issues with your spouse.

Cost of Legal Separation

The total cost of a legal separation depends on many factors such as whether you and your spouse both have attorneys, whether you both cooperate with the process, and whether you have disputed issues that will be difficult to resolve (such as child custody).

For an estimate as to how much a legal separation might cost, it is important to know which county you live in and what your personal circumstances and case facts are.

The cost to file a legal separation varies by county, however, the initial filing fee is approximately $200.

Other Legal Separation FAQs

How long can you be legally separated?

Short answer: Somewhere between one year and forever.
A legal separation lasts a minimum of one year. After that, either party can submit a letter request to the court to convert the matter to a divorce. The court will convert the legal separation to a divorce without the need to file or litigate a separate divorce action.

However, if neither party requests that the separation be converted to a divorce, the legal separation can last indefinitely.

Can you get legally separated without a lawyer?

Short answer: Yes.

Of course. In American courts, litigants have a constitutional right to represent themselves.

Talk to a Legal Separation Lawyer

Schedule a free consultation with a legal separation attorney at Karp & Iancu today.