Family Law Divorce FAQ

Can my spouse and I use one attorney?

No. State law and ethical rules prevent one attorney from representing two parties with conflicting interests. Sometimes in other types of cases this can be waived by the parties, but not in a divorce. You may file a Joint Petition for Divorce; however, one attorney cannot represent both parties in a divorce case.

How long do we have to be separated before one of us can file for divorce?

You don't have to be separated before you file for divorce. In fact, most people are not and some people even continue to live together until the granting of the divorce, although that is something to discuss with your attorney.

Who is eligible to get a divorce in the state of Wisconsin?

In order to get a divorce in Wisconsin, either you or your spouse must have been a resident of the state for six months prior to filing your petition for divorce, and either you or your spouse must have been a resident of the county in which the case will be filed for at least 30 days prior to the filing of the divorce action.

What are the grounds for divorce in the state of Wisconsin?

Wisconsin is a "no fault" divorce state. An "irretrievable breakdown" in the relationship in the opinion of one of the two parties is the only grounds needed for a divorce to be granted in Wisconsin.

Should I file first?

There are few advantages to filing first. Perhaps the only advantage would be to start the action as soon as possible.

How long will my case take?

It depends. In Wisconsin you have to wait at least 120 days from the date of service of the Petition for Divorce until you can be granted the actual divorce.

How much will my case cost?

It depends. At the start of your case, your attorney can estimate how much your case might cost based on the facts you provide but no one can predict the way the other party will react to a divorce or who that party chooses as an attorney for their interests. Simple uncontested cases obviously cost less than a case that involves a lot of issues.

How can I keep my costs down?

Be a conscientious client. Gather records and documents and get them to us promptly and in an organized way. Do not withhold facts. Many things you may believe are too sensitive to tell can haunt you if you do not bring them up right away. Negative things can be dealt with early and the effect minimized and advantages learned early can be maximized. Make a list of things to talk about before your call that will help to keep communication organized and productive. Don't bring your attorney into emotional contests with your spouse. Consider counseling to help you adjust to the end of the marriage.

Can I keep using the credit cards?

Yes, but be reasonable. Use the credit cards for necessities and utilities. Don't go on a spending spree that will only hurt you later.

My spouse has a lot of credit card debt. Will I have to pay any of it?

In all likelihood credit card debts will be considered marital debts. An important exception is "marital waste". Ask your attorney about this. Sometimes specific charges are assigned to one spouse because of waste or for other reasons but if the cards were used for everyday necessities (food, gas, etc.), the debt is simply another form of marital debt.

Can I cancel the credit cards?

Yes. If your spouse is running up a lot of debt, but canceling the credit cards is only a good idea if done fairly and with warning. The court will not look favorably on any party who acts in a way the court sees as vindictive.

What is the difference between legal custody and physical placement?

"Legal custody" means making major decisions affecting your child(ren), such as medical care, education, and religion. "Physical placement" means the amount of time your child(ren) spends time with each parent.

Who has custodial rights while the divorce is being completed?

Temporary orders regarding both parents' time with children during the divorce process will be issued at an initial hearing before a family court commissioner. The parties can reach agreement on temporary custody and present it to the court. If the parties cannot reach agreement, the court likely will issue temporary orders and instruct the parties to attend mediation.

In Wisconsin, the court is required to start from a presumption that joint legal custody is in the best interest of the child as long as both parents are fit and up to the role of responsible parenting. If the paternity of a child is in question, Wisconsin law states that the mother will have sole legal custody until paternity is determined unless the courts rule otherwise. It is important that parents not use children as a weapon in divorce. All actions regarding parenting should be done with a child's best interest in mind.

Can I move with my minor child(ren)?

The rule is different before a divorce and after the divorce is final. In either case, distance and state lines matter. As long as you are not moving out Wisconsin or more than 150 miles away from your spouse it is easier. If, however, you are seeking to establish residency with your child(ren) outside of the state of Wisconsin or more than 150 miles away from your spouse within the state, then you must follow very specific rules including notifying the ex-spouse and giving time to object and obtaining a court order. Absent your ex-spouse's agreement, you will need to obtain permission from the court to move.

How old does a child(ren) have to be before he/she can decide where to live?

The answer to this question is 18. Before that, the child(ren)'s wishes matter, but the parents decide and if they do not agree, a court makes a ruling while considering the child(ren)'s wishes along with many other factors. The maturity of the child(ren) matters as well as what you and your spouse are like. Child(ren) can make their wishes known to the court through their guardian ad litem or other court-appointed experts, who will convey the important issues and ideas to the judge. Your attorneys should not meet with your child(ren).

Are the child support percentage guidelines written in stone?

No, they are guidelines. Courts sometimes deviate from the guidelines, depending on the circumstances. However, the guidelines for a payer who has the child(ren) less than 25 percent of the time set forth in the Wisconsin Statutes are as follows:

1 child — 17 percent 
2 children — 25 percent 
3 children — 29 percent 
4 children — 31 percent 
5+ children — 34 percent

All amounts are percentages of gross income. These percentages are used to reach a set money figure on a monthly basis when each parent has the child(ren) for at least 25 percent of the time, the child support will be based on a calculation that includes both parents' incomes.

For parents with shared placement, that is each parent has the child for 25 percent of the time or more, support is determined using a mathematical formula that takes into account basic support costs in proportion to the amount of time each parent spends with the child. It is important to work with a knowledgeable family law attorney who understands Wisconsin child support guidelines and who will protect your rights.

Do I have to pay support even if the child(ren) are with me part of the year?

Everyone pays to support their children whether it is court ordered or not. Child support is based on a series of complicated formulas that require an attorney's assistance to properly evaluate. If you are already divorced, there are many reasons the support formula can change based on changes of placement, income, your health, the children's health or other circumstances. If you have placement of your child(ren) at least 25 percent of the time, the child support calculation may result in a lesser amount of support paid to the other parent. You must abide by the language of your most recent court order as it pertains to child support. If you think the order warrants a modification, you can go back to court to change it. Until it is changed, you must obey it.

My ex-spouse doesn't let me see my child(ren). Do I still have to pay support?

Of course. You can enforce your rights to see your child(ren) (any the child(ren)'s right to see you). However, you must still obey the court's child support order regardless of whether you see your child(ren).

When does child support end?

On the child's 18th birthday or if your child will still be in high school on his or her 18th birthday, then child support is extended until graduation or 19, whichever comes first. Remember: child support won't automatically cease. It is the payer's obligation to notify the child support agency of such change or it will just go on until the state gets notice.

Can I change the locks on the house?

Only after the court has issued an order giving you exclusive use of the home or ordered the other spouse to avoid your residence because of domestic violence.

How is the property divided?

With several important exceptions, you will in all likelihood receive all of your nonmarital property. Nonmarital property is limited to property that is gifted to you or inherited from someone other than your spouse. The court begins its analysis of property division with the assumption that it will be equal. However, there are many factors that can and do cause and unequal property division. However, some circumstances allow for an unequal property division (e.g. marital waste).

Can I get a portion of my spouse's pension?

Yes. Generally, contributions made during the marriage to any retirement account are marital property. The amount which each party is entitled to upon divorce must be determined by the court in each individual case. Retirement benefits earned before the marriage or after the divorce is finalized may form the basis of an unequal award of debt or assets based on fairness.

How do I get part of my spouse's 401(k) or IRA without paying the 10 percent penalty for early withdrawal?

Transfers between spouses incident to a divorce are nontaxable events. For pensions, special court orders entitled qualified domestic relations orders (QDRO) are put in place that will divide the pension when it vests.

How much maintenance (alimony) will I get, and how long will it last?

The ward of maintenance depends on a court determination that it is needed for either fairness or support. Many cases result in no maintenance being awarded because the marriage is of short duration. In a longer term marriage, the court considers numerous factors that are laid out by statute to determine the amount and duration of maintenance. It depends on the circumstances of your case. There is no magic formula. The court must consider many factors in determining whether to award maintenance and, of so, the amount and duration of maintenance to be paid.

Can the amount of maintenance ever be changed?

Yes, by showing that there has been a substantial change of circumstances.

If my spouse files for bankruptcy, will I be responsible for our joint debts?

The answer to this question is very complicated, but generally, yes, you will be encouraged to file along with your spouse in most cases to save money and problems. After the divorce if an ex-spouse files, you will be protected in most cases if your divorce decree is properly drafted.

How soon after my divorce can I get married again?

Under Wisconsin law, it is illegal to marry again until six months after the judgment of divorce is granted. This is true even if you marry outside Wisconsin. Any marriage before six months is "void" and will cause a major headache for you.