Attorneys: Renee Read, Jolene Schnieder, Mark Tyckowski
What is divorce?
Divorce is the legal dissolution of a marital relationship. Our attorneys at Remley & Sensenbrenner assist will all divorce and family law issues that follow from that dissolution.
Divorce involves a number of issues, including: property division, maintenance, custody and placement of children, and child support. In Wisconsin, divorce is governed by chapter 767 of Wisconsin Statutes.
Is there a difference between divorce and legal separation?
The process for obtaining a legal separation is similar to that of a divorce. However, if divorce is not right for you, either for religious or other reasons, you may choose to file a legal separation. To obtain a legal separation, child custody, placement, child support, maintenance and the division of property, must all be determined, just as they would in a divorce. The primary difference is that with a legal separation you are unable to marry someone else afterward.
What is my first step for divorce?
In order to begin the divorce process, certain documents need to be filed with the court. The initiating party (the petitioner) commences the action by filing a summons, petition and confidential petition addendum. Collectively, these documents indicate the parties that are involved in the case (including minor children), put the other party (the respondent) on notice that they are now a party to a lawsuit, and outlines what relief the petitioner is seeking.
How long should I expect this process to take?
Under Wisconsin law, there is a mandatory 120 day waiting period from the time you file for divorce until the day your divorce can be finalized. While 120 days is the minimum amount of time it can take to get divorced, most divorce cases take longer than that. The process may range from period of six months to a year. However, the time it takes to get divorced varies greatly between cases and largely depends on how contested certain issues are.
Is there anything I cannot do while the divorce is pending?
Yes. For example, you cannot harm your spouse, damage or sell property without your spouse’s consent, remove minor children from the state for more than 96 hours without permission, or change beneficiaries on life, medical, auto or other insurances. Additionally, in many divorce cases, a temporary order is put into place which further details what individuals are obligated and prohibited from doing while the divorce is pending.
Custody And Placement Of Children
What is the difference between legal custody and physical placement?
Contrary to the general public’s assumption, custody in Wisconsin does not refer to the time a parent has with a child. Instead, legal custody is “the right and responsibility to make major decisions concerning the child.” Wis. Stat. § 767.001(1s). Major decisions include, but are not limited to, “decisions regarding consent to marry, consent to enter military service, consent to obtain a motor vehicle operator’s license, authorization for non-emergency health care and choice of school and religion.” Wis. Stat. §767.001(2m). In most cases, it is presumed that joint legal custody is in the best interest of the child. Nonetheless, it is possible for the court to grant sole legal custody in certain circumstances.
In contrast, under Wisconsin law, “placement” refers to the time that a child physically spends with a parent. Many individuals associate this meaning with visitation, which is a term used in some other states. During periods of physical placement, that parent has the right and responsibility to make routine daily decisions for the child, so long as they do not interfere with the major custodial decisions. Wisconsin law directs the court to set a placement schedule that “maximizes the amount of time the child may spend with each parent” and allows for the child to have regularly occurring and meaningful periods of placement with each parent. When determining placement, the best interest of the child is paramount, and certain statutory factors aid the court in determining what is best for the child.
My spouse and I cannot agree on custody or physical placement, what will happen?
If custody or physical placement is contested, you may be directed to possible mediation. Mediation is an opportunity for the parties to sit down with a third-party mediator to see if they can reach an agreement on child custody and placement. If mediation is not successful, then the next step is generally the appointment of a guardian ad litem (GAL). The GAL is an attorney whose role is to advocate for the best interest of the child. The GAL investigates the circumstances and issues a recommendation on custody and placement issues to the court. You may also need to file a parenting plan providing information on the questions outlined in Wisconsin Statutes section 767.41(1m).
What will the court look at when determining custody and/or physical placements?
Pursuant to Wisconsin Statutes section 767.41(5)(am), the court will consider a multitude of factors when determining the custody and placement of a child.
These factors include but are not limited to: the wishes of parent(s), the wishes of the child, interaction and interrelationships with parents, siblings and significant others, the amount of quality time that each parent has spent with the child in the past, any changes to parents custodial roles, children’s adjustment to home, school, religion, and community, childcare, a child’s physical and mental needs and health, and other such factors that the court may deem relevant. Wisconsin Statutes section 767.41(5)(am) outlines a full list of factors that the court may consider.
How will child support be determined?
The child support guidelines are based on: the income of each parent, the time a child spends with each parent, and whether a parent is supporting their child. The amount of placement time a parent has with their child impacts how much child support they pay or receive. In a situation where parent A has primary placement, meaning that parent B has placement less than 25% of the time, then parent B will pay child support to parent A regardless of parent A’s income. The standard guidelines will be used to calculate parent A’s child support obligation.
Based on the guidelines set out in DCF 150, a parent owes:
○ 17% of income for one (1) child
○ 25% of income for two (2) children
○ 29% of income for three (3) children
○ 31% of income for four (4) children
○ 24% of income for five (5) children
Child support payments are based on the gross income of the paying parent. When determining a parent’s income the court not only considers wages earned, but also takes into account things like: interest in assets, bonuses, workers compensation benefits, unemployment insurance, etc. If there is a situation where a parent is not employed, this does not mean that the parent is exempt from paying child support. The court can impute an income based on other factors if it is reasonable and fair to do so.
After income is determined, then Wisconsin has guidelines set out to help determine what a child support payment should be. These guidelines are set out in Wisconsin Department of Children and Families Chapter 150. The standard that is established is known as the “percentage standard” and it is generally applied unless the court determines that its application would be unfair to either the child or the parties. The standard provides guidelines that are based on the belief that both parents are responsible for supporting their children, whether they live together or not.
The court may deviate from the standard guidelines under certain circumstances. For instance, if a paying parent makes less than 1,350 per month, then another percentage table called “the low income payer table” is used. On the other hand, if a parent makes more than $7,000 a month, then “the high income payer table” will be utilized.
Further, there are other additional instances in which the court may deviate from the standard guidelines. The “serial family calculator” is used for calculating child support when the parent is paying to support more than one family. The “shared placement formula” is used when each parent has placement at least 25% of the time. In a shared placement situation, the amount of child support is determined based on the percentage of time a child has with each parent. Additionally, there is a “split-placement formula” used when parent have two or more children and each parent has placement of one or more, but not all of the children.
What is maintenance?
Maintenance, sometimes referred to in the general public as alimony, is financial support that is given to a spouse after divorce.
Am I entitled to maintenance?
There is no required formula used for determining maintenance like there is for child support. However, maintenance is usually not awarded unless there is a long-term marriage and a substantial disparity among spouses in earnings/earning capacities.
How will maintenance be determined?
The court will consider the factors outlined in Wisconsin Statutes section 767.56 to determine whether maintenance will be granted. Among such factors are: the length of the marriage, age and physical and emotional health of the parties, division of property, education level of each party, earning capacities, custodial responsibilities for children, feasibility of party seeking maintenance to be self supporting, etc.
What happens if the party receiving maintenance starts cohabitating with another individual?
In a divorce, if one spouse is awarded maintenance and that receiving spouse gets remarried, the maintenance payments will automatically stop per Wisconsin Law. No equivalent provision exists for when the receiving spouse starts cohabitating with another individual.
However, Wisconsin law has adapted and allows for cohabitation to be a factor that is considered to the extent that it changes the economic status of a payee spouse sufficiently to allow for termination or alteration of maintenance. The court has made it clear that it is the receiving spouse’s financial circumstances, not their living arrangements, that dictate the appropriate level of maintenance. When cohabitation enhances a recipient spouse’s financial condition, payment may no longer be needed for support.
How will your property be divided?
Wisconsin is a marital property state. This means that all income and possessions that are acquired by either spouse during the course of the marriage is considered to shared equally among spouses. There is a presumption that all property that is in the marital estate is to be divided equally between the parties. However, the court will consider other factors in determining if such equal distribution should be altered, and parties may agree to their own property division. Wisconsin Statutes section 767.61(3).
What property may be excluded from the marital estate?
A popular question in divorce law is what assets may be argued for exclusion from the marital estate, and therefore equal division of that asset avoided. Generally speaking, there are three circumstances that merit further evaluation: (1) property that is acquired by gift, (2) property that is inherited, and (3) property that is brought into the marriage.
Wisconsin law states that property that is a gift from a person other than the spouse, or that is received by reason of death of another, shall remain the property of that party. So although there is a presumption for equal division or property in Wisconsin divorce law, that presumption does not apply to gifts or inheritance.
Property division becomes complicated when an individual asset get commingled with a couples’ marital assets. If the individual asset can be easily traced back to the individual, and separated from martial property, then courts may be more inclined to deviate from equal division. However, if there are tracing issues, the once individual asset may be considered marital property and subject to equal division.
Divorce and other family law matters are frequently emotional. Our lawyers can help resolve your divorce issues efficiently and cost-effectively. Call our Neenah office at 920-725-2601 or use our online form to make an appointment.