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Frequently asked questions about Wisconsin Divorce Law:

Wisconsin’s divorce law is what is referred to as a “no-fault law.”  That means that the court does not look to whether one of the parties is at fault when granting a divorce.

The judge’s only concerns are custody and physical placement of the children, and financial issues such as division of estate, child support and maintenance (alimony).  It is immaterial whether either party is guilty of marital misconduct or has been a perfect spouse, unless it affects the children or involves economic waste.  There are a number of options for resolving issues that arise in a divorce case including traditional litigation, collaborative law, cooperative law and mediation, which can be discussed with our office.

“Wisconsin’s divorce law is what is referred to as a ‘no fault law.’
This means that the court does not look at whether one of the parties
is at fault when granting a divorce.”

The following are frequently asked questions from clients about Wisconsin divorce law:

General Questions

Custody and Placement

Financial Issues

Questions About the Office

General Questions

How long does it take to obtain a divorce?

Wisconsin law requires a four month “cooling off” period to allow parties time to make sure that they want the divorce.  Although the statue refers to a four month period, divorces take longer to finalize.  If the parties settle the case with an agreement called a “stipulation” or “Marital Settlement Agreement,” their case is placed on what is called a “default” calendar, and they can generally obtain a divorce approximately five to six months after the divorce is filed.  If they do not agree, they are placed on what is called a “contest” calendar, generally resulting in a ten to fourteen month wait before the trial is held.

Can one attorney represent both of us?

It is unethical for an attorney to represent both parties in a divorce action.  The attorney owes an undivided duty to his or her client, and cannot represent both parties.  If an attorney is retained on behalf of one party, the other party may decide not to hire his or her own attorney, and may try to negotiate with the other attorney alone.  Because the legal issues may become quite complex, you should think twice before attempting to proceed without an attorney.  However, in some situations it does work.

What if we are not 100% sure about the divorce?

We realize that you want to learn about a divorce action and not necessarily about reconciliation.  However, we suggest that you consider what you really want from the  representation.  Do you want the divorce, or would you rather have a reconciliation if you and your spouse can work out your problems?  If you would really prefer a reconciliation, the case would be approached in a different manner.  In either case, we suggest that you – and your spouse, if he or she is willing – go to counseling.  We believe that it is always worthwhile to try one last time to save the marriage.  Given the financial and emotional aspects of a divorce, it is wise to think twice about the situation before commencing a divorce action.

If you wish to discuss the emotional aspects surrounding your marital problems, the best people to talk to are mental health professionals, such as psychologist, psychiatrists or social workers.  Attorneys can only deal with legal problems.  If you would like a referral to a mental health professional, please mention this.

“We suggest that you – and your spouse if he or she is willing –
attend counseling.  We believe that it is always worthwhile to try
one last time to save the marriage.”

Will my case be like others I've heard of?

Your divorce is unique.  Thus, trying to compare what is happening in your case to what happened in cases involving friends, family members, or acquaintances can lead to frustration and misunderstanding.  Many people need emotional support as they go through the divorce process.  Friends and family members can be a good source of this support.  However, the legal aspects of your case need to be discussed with an attorney familiar with the law and the facts of your case.

How do I know which documents to sign?

Sometimes during the course of the divorce action, people are asked to sign documents by their spouse.  Examples of these documents are tax returns, deeds, offers to purchase, or other types of agreements.  Do not sign any document without first discussing it with your attorney.

Can I date while the divorce is pending?

Under our no-fault laws, there is no legal impediment to dating while the divorce is pending.  However, you must remember that you are still married, and we certainly do not encourage your dating another person while you are married.  If nothing else, it often stirs up emotions in the other spouse.  If you want to date, use discretion.  In other words, do not openly flaunt your dating in front of your spouse, your children or others.  Each situation is unique, and each Judge views dating in a different manner.  Thus, it is important to discuss this issue with your attorney.

If child custody or placement are issues in your divorce, we strongly urge you to refrain from dating without first discussing it with your attorney to learn all of the implications.

“If child custody or placement are issues in your divorce,
we strongly urge you to refrain from dating without first
discussing it with our attorney to learn all of the implications.”

What is the waiting period before remarriage?

After the divorce is obtained, each party must wait six months before he or she may remarry.  We realize that you are probably not thinking of remarriage at this time.  However, often during the pendency of a divorce action the individuals meet other people, and in some instances would like to marry as soon as possible after the granting of their divorce.

One of the purposes of the six month waiting period is to allow the parties to make absolutely sure that they want the divorce.  If for any reason they desire that the Judge set aside the divorce during this period, all they need to do is return to court and the Judge will automatically vacate the divorce.

Custody and Placement

How is child custody determined?

In resolving a divorce involving children, the first issue we look at is child custody.  Under Wisconsin law, a Judge cannot prefer one parent over the other on the basis of the sex of the parent.  When we are talking about custody, it is important to understand certain definitions:  legal custody, sole legal custody, joint legal custody, and physical placement.

“Legal custody” generally means the right and responsibility to make major decisions concerning the child.  “Major decisions” include, but are not limited to, decisions regarding authorization for non–emergency health care, and choice of school and religion, consent to marry, consent to enter military service, consent to obtain a motor vehicle operator's license.

“Sole legal custody” means one person has legal custody and the sole right and responsibility to make major decisions.

“Joint legal custody” means the parents share legal custody (the right and responsibility to make major decisions) and neither parent's rights are superior, except with respect to specified decisions as set forth by the court or the parents in the final judgment or order.

Under Wisconsin law, which is different from the joint custody laws of many other states, a Judge may order joint legal custody if it is in the child's  best interest and  if either of the following applies:  1) both parties agree to joint legal custody; or 2) the parties do not agree to joint legal custody, but one party requests joint legal custody and the court specifically finds that: a) both parties are capable of performing parental duties and responsibilities and wish to have an active role in raising the child; b) no conditions exist at the time which would substantially interfere with the exercise  of joint legal custody; and c) the parties will be able to cooperate in the future decision making required under an award of joint legal custody.

Wisconsin law allows some flexibility in ordering joint legal custody by permitting the Judge to give sole power to one of the joint legal custodians to make certain major decisions concerning the child, while both parties retain equal rights and responsibilities for other decisions.

“The granting of periods of physical placement
is a separate issue from legal custody.”

“Physical placement” means the conditions under which a parent has the right to have a child physically placed with that parent and the right and responsibility to make, during that placement, routine daily decisions regarding the child's care.  Routine daily decisions have to be consistent with the major decisions made by the person having legal custody.

Whenever the court orders either sole or joint legal custody, the court must allocate periods of physical placement between the parents.  The granting of periods of physical placement is a separate issue from legal custody; whether the parties have joint legal custody or one party has sole legal custody is immaterial to the issue of periods of physical placement.  The parties might have joint legal custody, but the child will spend most of his or her time with one of the parents.  In some situations, the child will spend nearly equal time with each parent.

“Periods of physical placement may not be denied for
failure to meet, or granted for meeting, financial obligations
to the child or the former spouse.”

Am I required to attend a parental education program?

In all actions affecting the family involving minor children the parents are required to attend a parental education program of not more than 4 hours concerning the effect of divorce on a child.  Attendance at such a program is mandatory.  Failure to attend may result in delaying the divorce case, because the case will not be scheduled for any further court or mediation proceedings until at least one party meets this requirement.

Statistical data indicates that such programs are effective in reducing tension and in aiding settlements surrounding issues relating to minor children.  Further, such programs are even more effective if attended by the parties early in a pending divorce case.

How is mediation used in child custody?

Mediation is intended to afford the parties an opportunity to participate in a problem-solving and decision-making process when confronted with custody/placement issues.  Ideally, this affords the parties an opportunity to reach their own resolution.  The role of mediator is to help the individuals resolve misunderstandings, communicate clearly with each other and develop a plan with which each can live.

Wisconsin's child custody law contains a provision for “mediation.”  Parties may agree to go to their own private mediator, at their own expense, if they so desire.  If not, and there is a dispute regarding legal custody or physical placement, then the parties are required to attend an initial session with a county–provided mediator.  This initial session is a screening and evaluation session to determine whether mediation is appropriate and whether both parties wish to continue in mediation.  The Family Court Commissioner may refer persons to mediation if they wish to have joint legal custody but need assistance resolving problems relating to joint legal custody or physical placement or both, or if they are having difficulty in the exercise of their rights.

Agreements reached in mediation are reduced to writing and submitted to the court in a stipulation for inclusion in a court order.  The judicial officer may only approve or reject the agreement; not modify the agreement.  A written reason must be given for rejecting any such agreement.

Prior to submitting the agreement to the court, the agreement must be reviewed by each party's attorney if they are represented by an attorney, and if appointed, by the guardian ad litem, who is an attorney appointed to represent the child or children. If an agreement is not reached in mediation, the court must be notified and a guardian ad litem must be appointed.

What if we can not agree on legal custody or physical placement?

If the parties cannot resolve the question of custody or placement, Wisconsin Statues require that a guardian ad litem (GAL) be appointed for the minor child or children.  A GAL is a lawyer who is appointed by the Judge to represent the minor child or children in that specific case.  Upon appointment of the GAL, one or both parties will generally be required to deposit a sum of money towards the GAL's anticipated fees.

The GAL may hire an expert, such as a psychologist, for assistance in making a decision as to which parent the GAL will argue should receive legal custody and/or primary physical placement of the minor child or children.  Depending upon who is appointed as GAL and the circumstances of the case, the GAL may or may not attempt to settle the child–related issues.  Each GAL has a different personality and treats each case differently.

It is important to understand that a GAL must act as an attorney and not a social worker.  That means that the GAL should not make a recommendation, but rather should examine and cross-examine witnesses and argue his or her position just like any other attorney.

Although the GAL is appointed to represent the minor child or children, one or both parents will ultimately beordered to pay the fee of the GAL.

Financial Issues

Who will live in the house while the divorce is pending; who will pay the expenses?

Attempts are made to try to negotiate answers to questions such as “will either or both of you live in the home while the divorce is pending,” “with whom should the child or children live and what placement arrangements should there be for the other spouse,” “how much temporary maintenance should one spouse pay to the other, if any,” and “should there be temporary child support?”  It is important to note that all of these questions concern temporary arrangements, not the final resolution of these matters.

If the parties cannot resolve these temporary issues between themselves or with the help of their attorneys, then either party can request the Family Court Commissioner to hold a hearing and decide the issues that remain unresolved.  The hearing generally, but not always, takes place approximately three or six weeks after the filing of the divorce action.

How is child support determined?

Wisconsin law requires that child support usually be calculated by what is refereed to as the Percentage Standards.  An order of joint legal custody does not, by itself, affect the amount of child support ordered.  If the Standards are used and one of the parents has less than 25% of the placement time, his or her support will be calculated as a percentage of his or her gross income. If there is one child, the percentage is 17%, two children 25%, three children 29%, four children 31% and 34% percent for five or more children. If both parents have court–ordered periods of placement of at least 25%, or 92 days a year, the shared–placement formula may be applied. If that formula is applied, each parent is ordered to assume the child's basic support cost in proportion to that parent's placement time with the child and there can be a comparison of the parents' monthly income in the calculation of support.

There are special rules that can be applied in the case of someone identified as a “low-income payer”, or a “high-income payer”. In addition, there are special rules that are applicable for what is referred to as a “serial-family payer”, which is an individual who has an existing obligation for child support and then incurs a subsequent child support obligation for a different child. Deviation from the application of the Percentage Standards can occurred in limited, specific circumstances.

“The issues of support and periods of physical placement
are entirely separate”

The issues of support and periods of physical placement are entirely separate.  If your spouse restricts or withholds your periods of physical placement with your children, you cannot unilaterally refuse to pay child support.  Similarly, if your former spouse is not paying child support, you cannot restrict or withhold his or her periods of physical placement.  If an order of the court is not being complied with, the attorney representing you should be contacted in order to discuss whether or not to bring a motion before the court.

How is maintenance determined?

In some other states, maintenance is referred to a spousal support or alimony.  Wisconsin courts use the term maintenance.

There are two distinct but related objectives in the award of maintenance.  The first objective is to support the recipient spouse in accordance with the needs and earning capacities of the parties; the second objective is to ensure a fair and equitable financial arrangement between the parties.

“There are two distinct but related objectives in the
Award of maintenance: support and fairness.”

Several cases have held that in long-term marriages the starting point for maintenance (alimony) is 50% of the family's total income.  However, the key words are “staring point.” There are a number of factors that go into a decision regarding the amount of maintenance.  In addition, what may be ordered on a temporary basis during the pendency of the case may or may not reflect the amount ordered when the divorce is granted.

The length of time the court will require that maintenance be paid varies depending on the facts of each case.  In a longer marriage, where the non-earning or lower–wage earning spouse is in his or her 50's or older, the probability is high that he or she will receive maintenance over substantial period of time, and perhaps even “permanent” maintenance.  On the other hand, if the marriage is short–term, the recipient spouse will probably receive maintenance for only a few years.  Often this period is about one–third to one–half the length of the marriage.

Often, the non-earning spouse will receive what is called “rehabilitative maintenance.”  Sometimes rehabilitative maintenance will be paid over a period of three to five years.  The three year period is often utilized in part because of provisions of the Internal Revenue Code which, in effect, require a payout of at least three years for deductibility of payments under certain circumstances.  Furthermore, in many cases, a three to five year period is the time necessary to allow the recipient spouse to become self-supporting at a standard of living reasonably similar to that enjoyed before the divorce.  If the parties cannot agree as to the length of time or amount of rehabilitative maintenance, the court must balance the goal of allowing the recipient spouse to become self-supporting with a consideration of the ability of the payer spouse to continue the obligation of support for an indefinite term, and the need for the court to continue jurisdiction regarding maintenance.

“Generally, the payments for maintenance are deductible
by the payer, and are income to the payee, the one who receives
the payments.  Child support and division of estate payments are
not deductible to the payer nor taxable to the recipient.”

When discussing financial matters, it is important to consider the tax implications.  Generally, the payments for maintenance are deductible by the payer, and are income to the payee, the one who receives the payments.  On the other hand, child support and division of estate payments are not deductible by the payer nor taxable to the recipient.  However, the manner in which the documents are drafted will affect the tax consequences, and must carefully be considered.

What is wage assignment?

In most cases a person required to pay maintenance or child support is required to do so by wage assignment.  The wage assignment requires the employer to withhold the court-ordered payment from the employee's wages, and pay it directly to the Wisconsin Support Collections Trust Fund (WSCT).  WSCT, in turn, issues a check to the party who is to receive the support.  There will be a delay of several days between the time the money is received by WSCT through the wage assignment and the time the payee receives a check.  The employer may withhold a service charge each time money is withheld and sent to the court.  WSCT will keep a record of payments received and disbursed on any maintenance or child support order.

How is the division of estate determined?

Prior to the granting of the divorce, each party is required to disclose all of his or her assets and liabilities.  This is done in order to help determine the division of property.  If either party does not provide this financial information, or if either attorney wishes to further explore the financial aspects of the case, the attorney may make formal written requests for information or may schedule a “deposition.”  In a deposition, the party and his or her attorney appear before the other attorney, who asks questions.  The questions and answers are taken down by a court reporter, who then types a transcript of the deposition.  In some situations, depositions are taken of witnesses such as accountants, appraisers, and/or mental health professionals

When the divorce is granted, the marital estate will be divided.  The marital estate generally includes all of the assets and liabilities accumulated by either the husband, the wife, or both of them.  Such assets include real estate, bank accounts, stocks, bonds, mortgages and notes, cash surrender value of life insurance, interests in a partnership or corporation, personal property, future interests including retirement benefits (whether vested or non-vested), and any other financial interest or source.  Property brought to the marriage by either party may or may not be included in the division depending on the facts of the case.

The starting point in most situations is that property that has been gifted to or inherited by either of the parties and whose character and identity have been preserved and the intent to share that property with the other person is not established is returned to the party who received the property by gift of inheritance.  This is a very fact-sensitive issue and the outcome would depend on what facts could be established.

All of the other assets are generally divided equally between the parties.  This does not mean that each asset is divided.  The net marital estate, which is the total value of all divisible assets minus liabilities, is divided equally.  However, the court may deviate from this 50/50 division based upon certain factors, which include the length of the marriage; the property brought to the marriage by each party; the age, physical and emotional health of the parties; the contribution by one party to the education, training or increased earning power of the other; the earning capacity of each party; the amount and duration of any order for maintenance payments; the tax consequences to each party; and other similar factors.

Questions About the Office

How can you help me during my divorce?

We are here to help you by giving you advice, helping you to select the divorce process that is best suited to your needs and goals and by representing you in negotiations with the other attorney and appearing before the court if necessary.

Once retained, we tell our clients to call if they have questions regarding the divorce.  We suggest, however, that whenever possible the questions should be grouped and put into a letter or an appointment should be made in order to discuss important questions.  By doing this, we can take the time to fully address the individual's concerns.

Divorce is an emotional process, and individuals going through a divorce may have psychological as well as legal needs.  This is natural.  We encourage our clients to ask for a referral to a mental health professional if they feel that it would be beneficial for them in dealing with the emotional aspects of the process.  Even if reconciliation is out of the question, it can be helpful for the individual's own personal growth.  In addition, many couples in the process of divorce attend joint counseling not to save the marriage, but rather to help them cooperate in raising their children after the divorce.

“We are here to help you by giving you advice, helping you
to select the divorce process that is best suited to your
needs and goals and by representing you in negotiations with
the other attorney and appearing before the court if necessary.

What dispute resolution options do you offer?

Our office provides representation in the forms of traditional litigation, collaborative law, cooperative law, and mediation.  Not every option is appropriate for everyone.  Through our discussions with you, we attempt to find the option that is comfortable for you and appropriate under the circumstances.

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Contact Us

Peggy L. Podell,
Attorney at Law
Suite 111, Coventry Office Building
250 West Coventry Court
Milwaukee, WI 53217

Fax: 414.228.5815

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