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FAQ's

  1. Where can I file for divorce?
  2. What is the difference between a divorce and legal Separation?
  3. What is an annulment?
  4. Do I need my spouse's consent to get a divorce?
  5. Do I need an attorney to file for divorce?
  6. How long does it take to get a divorce in Wisconsin?
  7. What is the difference between Legal Custody and Physical Placement of my minor child?
  8. What are the factors for determining Physical Placement of my minor child?
  9. What are the factors for determining Maintenance (alimony)?
  10. What is meant when people say Wisconsin is a Community Property State?
  11. What are prenuptial and postnuptial agreements?
  12. When can I remarry after a divorce?
  13. What is a Guardian ad Litem?
  14. How much will it cost me to hire an attorney for my divorce or family law matter?


1. Where can I file for divorce?

Any individual can file for divorce in any state court, provided that individual or the spouse has satisfied that state's residency requirements. The Wisconsin divorce residency requirements are as follows: one of the spouses must be a resident of the State of Wisconsin for at least 6 months and a resident of the county in which they file for at least 30 days immediately prior to filing the divorce.

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2. What is the difference between a divorce and legal separation?

A divorce ends a marriage while a legal separation does not. The same issues addressed during the divorce process are also addressed in a legal separation action. During a legal separation, you have a court order that outlines the rights and responsibilities of each spouse while they are living apart; you remain legally married while choosing to live separate lives. Issues that can be addressed in either a divorce or separation are the division of assets and debts, child custody and child support, child placement schedules and spousal maintenance (alimony).

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3. What is an annulment?

An annulment is a legal procedure for declaring a marriage null and void. Unlike divorce, it is retroactive: an annulled marriage is considered never to have existed. Annulments are rare and only granted in unusual circumstances. Even if a court grants an annulment, the court is required to divide the parties debts and assests, make orders on child custody and placement, and address financial support matters.

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4. Do I need my spouse's consent to get a divorce?

People do not need to receive their spouse's permission in order to obtain a divorce. Wisconsin, like most states, is a no-fault based divorce state. That is, neither party need be at 'fault' in order for the court to grant dissolution of the marriage. Not long ago, many states were fault based and courts would not grant an individual a divorce unless he or she could show that the other person was "at fault".

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5. Do I need an attorney to file for divorce?

You do not need an attorney to file for divorce. However, filing a divorce petition and going through the entire divorce process on your own are two different things. Divorce proceedings can become emotionally taxing and extremely time consuming depending on the amount of assets involved, whether children are involved and whether the other party is being cooperative.

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6. How long does it take to get a divorce in Wisconsin?

Unless there are unique circumstances, 120 days must pass between serving the initial pleadings and the final divorce hearing. Depending on the complexity of the issues, it is not unusual for divorces to take longer to be finalized.

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7. What is the difference between legal custody and physical placement of my minor child?

Legal custody refers for the child allocation of decision-making authority among the parties with respect to major decisions. Physical placement is terminology used to refer to where the children are to physically live. Periods of physical placement refers to the time the children are placed with a particular parent or custodian

In Wisconsin, courts determine child custody and placement in a dispute by using a "best interests of the child" standard. To decide what your child's best interests are, judges look at a series of factors. These factors look at the history of the parent/child relationship and how the child is doing in the parent's care and in the community.

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8. What are the factors for determining physical placement of my minor child?

The court shall consider the following ten factors in making its determination:

  • The wishes of the parents.
  • The wishes of the children.
  • The relationships of the children with the parents and other significant persons.
  • The children's adjustments to home, community, school and religion.
  • The mental and physical health of the parties and the children.
  • The availability of child care services.
  • Whether one party is likely to unreasonably interfere with the children's relationships with the other party.
  • Whether there is evidence that a party has engaged in child abuse.
  • Whether there is evidence that a party has engaged in interspousal battery.
  • Whether either party has a significant problem with alcohol or drug abuse.


In addition to the above ten factors, the court may consider such other factors as the court may in each case determine to be relevant.

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9. What are the factors for determining maintenance (alimony)?

Maintenance awards are granted pursuant to Wisconsin Statutes § 767.26. Under this law, the courts are guided by ten factors that should be considered in determining a spousal maintenance award. The factors include:

  • The length of the marriage.
  • The age and physical and emotional health of the parties.
  • The division of property made in the divorce.
  • The educational level of each party at the time of marriage and at the time the action is commenced.
  • The earning capacity of the party seeking maintenance, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to find appropriate employment.
  • The feasibility that the party seeking maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and, if so, the length of time necessary to achieve this goal.
  • The tax consequences to each party.
  • Any mutual agreement made by the parties before or during the marriage, according to the terms of which one party has made financial or service contributions to the other with the expectation of reciprocation or other compensation in the future, where such repayment has not been made, or any mutual agreement made by the parties before or during the marriage concerning any arrangement for the financial support of the parties.
  • The contribution by one party to the education, training or increased earning power of the other.
  • Such other factors as the court may in each individual case determine to be relevant.

 

No single factor is dispositive and the Courts must weigh all factors giving appropriate weight to each.

One important factor in determining whether spousal maintenance is paid and for how long is the length of the marriage. Shorter marriages often result in no award of spousal maintenance or lesser awards. Longer marriages may result in long term or even permanent awards. A second important factor in determining the level of spousal maintenance is the standard of living the parties enjoyed during the marriage.

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10. What is meant when people say Wisconsin is a community property state?

There are two different theories on divorce property distribution (1) Community Property and (2) Equitable Distribution. Both of these theories are used to address the issue of dividing marital property between the divorcing spouses. Most states utilize the equitable distribution approach; however, Wisconsin is a Community Property state. Community property theory says that each spouse is entitled to 50% of the parties' property. There are two (2) exceptions to the rule that property of the parties is subject to equal division: (1) property received as gift and (2) inherited property. However, property received as a gift or an inheritence can lose its protection if it loses its "identity" (example: party inherited $10,000 three years ago and placed that money into the parties' joint checking account that has been continually used by both parties for deposits and withdrawals).

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11. What are prenuptial and postnuptial agreements?

Prenuptial (before marriage) and postnuptial (after marriage) agreements are contracts entered into and between spouses. These contracts define what property each spouse will get should they get divorced. Most often, prenuptial/postnuptial agreements are utilized when one spouse enters the marriage with substantial assets and the other with minimal.

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12. When can I remarry after a divorce?

Wisconsin law requires that individuals wait a period of six (6) months after a judgment of divorce before they can legally remarry.

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13. What is a Guardian ad Litem?

In a divorce action involving children, if the parties are unable to reach an agreement on the legal custody and physical placement of their minor child(ren), the Court will appoint a Guardian ad Litem. A Guardian ad Litem is an attorney who does not represent either party and does not represent the minor child(ren). The Guardian ad Litem represents the concept of what is in the "best interests of the minor child(ren)". The Guardian ad Litem is meant to be an independent, neutral party, who investigates what is in the best interests of the child(ren) and recommends to the Court what he or she believe to be in the best interests of the child(ren).

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14. How much will it cost me to hire an attorney for my divorce or family law matter?

The cost of hiring an attorney will vary based on the complexity of your case, such as the length of the marriage, child custody/placement disputes, a spouses request for maintenance, and need for property valuations. Contact Kaehne, Cottle, Pasquale & Associates, S.C. today to schedule a free initial consultation to review your case and learn your options.

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