One of the hardest decisions you will ever make is choosing to get a divorce. Not only are you dealing with the emotional turmoil, but you now have to navigate an intimidating legal process. You are faced with a ton of questions: How much will this cost? How long will this take? Should I get an attorney? How will our property be divided? Who gets the house? What will we do with the kids? These are all valid questions.
Each divorce is different. Some are extremely high conflict. Others move along smoothly. Regardless if your divorce is high conflict or smooth sailing, every divorce moves through the same process before it can be finalized by a judge. This article is meant to help you understand the Wisconsin divorce process in 4 easy steps.
- The Summons and Petition
You or your spouse begin the divorce process by filing a “summons” and “petition” for divorce in the county where you have resided for at least 30 days. You must also have resided in the state of Wisconsin for at least 6 months. These documents, and all other documents filed in your divorce, are called “pleadings.” The “summons” puts the court and the other party on notice that a divorce action has been started. The “petition” states the biographical information of the marriage. Wisconsin is a “no fault” divorce state, meaning either party can ask for a divorce for any reason, and the petition does not need to state grounds for the divorce (i.e. infidelity, abuse, desertion). The filing person is called the “petitioner.” The other party is referred to as the “respondent.” Parties can file jointly and are referred to as “joint petitioners.”
Once the summons and petition have been filed with the court, they need to be served on the other party. This can be accomplished by having a process server physically serve the papers on the other party. The other party can admit service by signing a document called an “admission of service.” The “admission of service” gets filed with the court. The date of service is very important because it triggers the divorce timeline. In Wisconsin, a court will not grant you a divorce until 120 days have passed since the service of the “summons” and “petition.”
Once the respondent has been served, he or she has 20 days to file an answer. If he or she fails to respond, the court may eventually grant you a “default judgment.”
After these initial pleadings have been filed with the court, the process will remain stagnant unless you ask the court to do something. This moves you into Step 2.
- The Interim Stage
Once your divorce gets started, there will be a number of things you and your spouse will want to address such as who is paying what bills, who has the kids and when, is anyone paying child support, and who is living in the house. If you and your spouse can agree on these items, you draft and sign a Stipulation for Temporary Order to temporarily handle various issues such as asset allocation, debt payments, maintenance payments and similar matters.
If you and your spouse cannot agree, you can ask the court for a hearing regarding these issues by filing an Affidavit to Show Cause and Request for Temporary Order. These hearings typically occur in the front of the court commissioner. The court commissioner will listen to each party’s position regarding the various issues and then make a decision regarding those issues. This order will remain in effect during the pendency of your divorce unless either party can show there has be a change in circumstances which warrants changing the temporary order. The party requesting the change will need to file a motion with the court to request another hearing.
If you and your spouse cannot agree regarding custody and placement of the minor children, the court will order you and your spouse to attend mediation (if there is not a history of domestic violence). If mediation fails, the court will appoint a guardian ad litem. This is an attorney who will do an investigation and make a recommendation to the court regarding the custody and placement arrangement that is in the best interest of your children.
- Financial Disclosure and Discovery
The divorce process is meant to be transparent and fair. Wisconsin requires that each party make a full financial disclosure to the other party. Each of you will be required to file a financial disclosure with the court before your divorce can be finalized.
While you are waiting for 120 days to pass, you may wish to engage in discovery. Discovery is done to get more information about the other party. You can serve the other party with interrogatories and request for production of documents. The other party will then need to provide you with answers and the requested documents within 30 days. If they refuse, you can request a hearing in front of the judge who will then likely order that party to provide the requested information. The parties may also engage in depositions.
- Finalizing Your Divorce
After 120 days has lapsed, the court can grant you a divorce. If you have an agreement with your spouse, you will need to file the Marital Settlement Agreement which will outline the division of property and debt, custody and placement of any minor children, child support, spousal support or maintenance and attorney fees. You will also need to file a proposed Findings of Fact, Conclusions of Law and Judgment of Divorce for the judge to sign. You will then appear with your spouse in front of the judge or court commissioner for a short hearing. The judge will review your agreement, ask if you are each in agreement with it, and will grant you a divorce.
If you and your spouse cannot reach an agreement, your divorce will be set for a trial in front of the judge. Each of you will be able to present evidence, call witnesses and make arguments to the court as to why the court should follow what you want. If custody and placement are an issue, the guardian ad litem will also be able to present evidence, call witnesses and make arguments to the court regarding your children’s best interest. The court will make a decision regarding any issues that you and your spouse cannot agree.
Although divorce can be emotionally draining and confusing, the legal process does not have to be. Educate yourself so you understand what you are doing each step of the way. Knowledge is power.