DIVORCE PROCEDURE:
How does it work?
For additional information: link to Radosevich, Mozinski, Cashman & Olson LLP
Divorce is an extremely difficult process for anyone. It requires major changes and adjustments in people's lives. A common question is 'How is divorce handled in Wisconsin?'. A divorce begins by either the husband or wife filing a Summons and Petition for Divorce. The Petition contains basic information such as date of the marriage, children's names, etc. The Summons and Petition must then be served on the other party.
In most instances, shortly after the divorce action is begun, a Temporary Order hearing will be held before a Family Court Commissioner. As a result of that hearing, the Court Commissioner enters an Order dictating what will occur while the divorce process is pending. The Temporary Order commonly addresses things such as who stays in the marital residence and who leaves, how legal custody and physical placement of any minor children will be handled, which debts are to be paid by whom, and whether any child support or maintenance must be paid.
After the Temporary Order is issued, there is a waiting period to allow the parties to adjust to the new arrangement. By statute, at least 120 days must pass from the time the Summons and Petition is served until the earliest time that a Court is permitted to grant a divorce. During this time both sides will be obtaining financial information regarding assets and liabilities, pension or 401(k) values, etc. If there are any disputes as to property value, such as what is the equity in the marital residence, appraisals may be done.
If minor children are involved in the divorce, several concepts are present. Both legal custody and physical placement must be determined. Legal custody simply means which parent has the right to make major decisions affecting the child's life. These major decisions are relatively limited. The parent with legal custody has the right to decide whether a child is allowed to join the military before the age of 18, obtain a driver's license, marry before the age of 18, receive or not receive elective medical treatment such as orthodontics, etc. Quite commonly legal custody is granted jointly to both the husband and the wife.
Physical placement is where disputes more commonly arise. The physical placement decision addresses what amount of time the children spend with each parent and when. Flowing from the physical placement decision will be a child support determination.
Maintenance, which was formerly known as alimony, may also be an issue. The Court will take several factors into consideration when determining if maintenance is appropriate in a given case. Some of those factors include the length of the marriage, the income and earning capacity of the parties, and the health and ability of each spouse to support him or herself.
Wisconsin is a marital property state. This means that, unless the husband and wife have entered into something such as a pre-nuptial agreement, all debts, assets, and earnings, no matter who accumulates them, are considered 50% owned by each spouse. For example, even though a wife may earn $80,000 per year and her husband only $20,000, each is credited with half of the total earnings. There are some exceptions to this rule, such as for gifts to a spouse individually by a third party. This may occur in a situation such as an inheritance. If the husband's parents will their cottage to the husband, the cottage may remain the separate property of the husband and not be subject to division in a divorce. However, if this separate gift was commingled with marital assets, the cottage could lose its identity as a separate possession.
Once financial information has been obtained and exchanged between the parties, negotiations on an overall agreement for the divorce will begin. If it appears that one or more issues cannot be resolved by agreement, a pre-trial conference will be scheduled with the Circuit Court Judge assigned to the case. At the pre-trial, which involves only attorneys and the Judge, the Judge is informed of the remaining disputes. Sometimes the Judge will give an indication of how he or she may rule on a particular issue, depending upon the actual evidence presented in court. Such an indication, if it occurs, may be helpful to the parties and attorneys in coming to a final resolution. At the pre-trial conference, a final trial date will also be set.
If the parties are able to reach final resolution on all matters, a Marital Settlement Agreement will be drafted. A short default hearing will then be held before either a Court Commissioner or a Judge. Provided the Judge or Court Commissioner finds the agreement to be in the best interests of any minor children, the Marital Settlement Agreement will be approved and the divorce granted. If there is no complete agreement, issues which are disputed will be decided at trial before the Circuit Judge. Divorce trials do not involve juries: the Judge will make all decisions.
Negotiating the twists and turns of the divorce process in Wisconsin can be difficult, both from a legal and emotional perspective. A support network, ranging from a competent attorney to family and friends, is extremely important.
For additional information: link to Radosevich, Mozinski, Cashman & Olson LLP