Waiver of the 120 day waiting period in Wisconsin
I am a huge Tom Petty & the Heartbreakers’ fan and they have a song entitled, “The Waiting (is the hardest part).” What I really want to focus on in today’s blog, is the fact that under Wisconsin law, an individual has to wait 120 days before they can be divorced and under what circumstances, if any, can it be waived.
The 120 days doesn’t start running when you decide you want a divorce, or even when you file the papers at the court house. The 120 days starts running only when the other party is served with the divorce papers, or in case of a joint petition, on the date the joint petition is filed. Sec. 767.335 of the Wisconsin Statutes reads as follow; WAITING PERIOD FOR FINAL HEARING OR TRIAL. “An action for divorce or legal separation may not be brought to final hearing or trial until the first of the following occurs:
(1) GENERALLY. The expiration of 120 days after service of the summons and petition upon the respondent or the expiration of 120 days after the filing of the joint petition.”
I know what you are going to ask me; Can the 120 days ever be waived? I have been asked this question numerous times in my career and the answer is generally no, but there are some exceptions. There basically has to be an “emergency” type of situation for the trial court to consider waiving the 120 day waiting period and proceeding to an immediate final divorce hearing. If the courts were to start considering waiving the 120 day waiting period in non-emergency situations, everyone going through a divorce would start lining up at the court house to obtain to have their 120 day waiting period waived. Don’t think the courts aren’t aware of this, which is why they seldom grant the wavier. The procedure is outlined in Sub. (2) of sec. 767.335 of the Wisconsin Statutes;
(2) EMERGENCY. “An order by the court, after consideration of the recommendation of a circuit court commissioner, directing an immediate hearing on the petition for the protection of the health or safety of either of the parties or of any child of the marriage or for other emergency reasons consistent with the policies of this chapter. The court shall, upon granting the order, specify the grounds for the order.”
It would be hard to answer the question as to “what constitutes an emergency,” sufficient that the court would consider the waiver. I can think of a couple of quick examples; (1) where perhaps, someone has a serious medical issue and may be at risk of dying while the divorce is pending or (2) where someone is in the military and may be deployed overseas into a war zone or battle area where their life may be at risk. Of course, there may be other less urgent situations that may still fall within the confines of the statute.
If you have any questions about divorce or the statutory 120 day waiting period, contact our attorneys.