This page is strictly legal RECOMMENDATIONS to give you some guidance and offer ideas that may benefit you. This is for informational purposes only, NOT LEGAL ADVICE. Discuss these ideas with your own attorney. Divorce laws differ from state to state.
This is going to be a very difficult time for you. Each case is unique, so don’t always believe what you hear from other people.
The following information and instructions apply to divorce cases in WISCONSIN:
WHAT HAPPENS IN A DIVORCE?
1. First papers which are filed are the Summons and Petition which set forth the material statistics (names, birthdates of parties, date of marriage, children’s names and birthdates); the assertion that “the marriage is irretrievably broken”; the petitioner (party who started the case) wants a divorce and certain other legal relief (such as court orders for custody, visitation, property division, maintenance, etc.).
2. First Hearing In the event the parties cannot work out their situation, they may have to attend a First (or temporary) Hearing at which a commissioner will set the rules by which the parties will conduct themselves until the judge decides the case. These rules will involve: occupancy of the home, custody/visitation of children, division of debts, child support, maintenance (alimony) etc. Sometimes an order may be made for a short time - 30 to 90 days - and the parties have to return to the commissioner’s office for a review and if necessary, a revision of the order. [For example, if one party has become temporarily unemployed, the commissioner can order a “job search” with a checkup in 30 to 90 days to see about employment and then order child suport, debt division, etc.]
3. Waiting Period Wisconsin law requires at least 120 days to pass between the date the Respondent/spouse received the First Papers and the earliest date for a final hearing. (In cases where there are disputes this can be much longer.) To receive First Papers your spouse can be served or they can be voluntarily sign and date an Admission of Service form.
4. Marital Settlement Agreement If the parties can work out their differences, they can prepare a written agreement or Marital Settlement Agreement setting forth details of who gets what, which is proposed to the court at a default final hearing.
5. Pretrial Conference If there is no agreement, the parties will have to appear before the Court for a Pretrial Conference at which the court will be advised of the nature of the parties’ disagreements and will schedule a trial (contested final hearing).
6. Default (or Uncontested) Final Hearing Parties with a written Marital Settlement Agreement can have their case heard in a 10 or 15 minute Default Hearing by the Court. The judge will review the agreement and may accept it or reject it (Usually these are accepted with little change, but the judge must independently review and approve them.)
7. Contested Final Hearings (Trials) Parties without written agreements have trials to the Court (no juries in divorce cases).
Even when parties agree on everything, the law requires a 4 month (120 day) wait. If there are disputes, there can be multiple court appearances and the case will take far longer. This time gives the parties an opportunity to work out their disputes. You will save great emotional and financial costs if you can work out your differences with minimal lawyer involvement. You and your spouse (and their attorney) write the ultimate bill. A quick “no hassle” case where the parties divide their property and debts, and organize their children’s future will cost far less than one where they disagree on trivial matters. DON’T argue over Tupperware (this actually happens).
TELL YOUR ATTORNEY IN WRITING:
To avoid confusion, notify your attorney in writing if any of the following occur
A. You and your spouse wish to reconcile (including cancelling a scheduled court date).
B. Your address or your spouse’s address and/or phone number (home or work) changes.
C. Wife becomes pregnant.
D. Either party starts receiving welfare, W-2, unemployment or worker’s compensation.
E. If you receive any court papers - IMMEDIATELY mail them to your attorney.
A. Follow all court orders exactly as stated, even if you personally disagree with it. (You can be punished - even imprisoned - for failure to follow a court order.)
B. Make all debt payments as ordered.
C. If you are making support payments, pay promptly and as ordered. Send payments to the address the Court orders. Do NOT make payments directly to your spouse (if there is a court order). If your employer is supposed to take money from your paycheck and does not do so, YOU MUST PAY IT YOURSELF. Mark your case number on your check or money order.
D. If a change in circumstances occurs such as a layoff, a substantial reduction in pay, an accident, an emergency, or unexpected medical problems, contact your attorney immediately in writing. If you have a court order such as a child support order, no oral agreement between parties can change that. You must go to court and get the order changed by the Court; side deals or understandings with your spouse do not affect or change written court orders.
A. If you have custody of your children, have them appropriately dressed and ready for visitation at the arranged times.
B. If you have visitation rights, be there to pick up your children and return them at the time agreed.
C. Do not alienate the children from your spouse. This is a most trying time for the children as well. Do not discuss your marital problems with them. They should not feel a necessity to “side” with either parent. Children should love both parents. Anything that you can do to make visitation more pleasant is for their benefit. Don’t use the occasion for conflict.
D. Interference by a parent with the parental rights of the other parent may be considered a Class F felony punishable by a fine of up to $25,000 and/or imprisonment for up to twelve years and six months.
E. If you have custody of the children, do not prevent visitation because your spouse is not making payments.
F. Do not withhold or delay payments because of visitation problems.
G. A visitor to the site brought the following information to my attention. This information may be of some use to you if you have children. As always, check with your attorney as to whether this applies to you.
"You should mention that child support does not have to be a percent of gross. The percent gig is not the law but merely a suggested amount (17% for 1 child, 25% for 2 (of gross, not net, with no deduction of dependents) that lawyers suggest to the wife. The best is to communicate and cut a deal of a flat amount, $300 - 1000(max) per child. You can say this in a more casual manner but the idea is simple "don't fall for the suggested percent of gross" for child support. The ex does not work on commission nor should she ever. Also; alimony is virtually not awarded anymore unless marriage over 10 years and she never worked. The above has not always been the case but attorneys (particularly if two involved) rarely have any incentive to end divorce promptly or efficiently. "Thanks Randy" - M.A.T.
Relations with your (ex) spouse and others:
A. Do not argue with your spouse. Any important problems should be brought to your attorney.
B. Discuss your divorce problems and legal issues with your attorney, NOT with others, although they may inquire. Their advice is without proper training and likely to be inaccurate even when based upon personal experiences. Their circumstances may have been far different from yours or the laws may have changed.
HOW LONG WILL IT TAKE? It usually takes about five to six months to get a judgment of divorce if the parties are in full agreement. If your case becomes complicated, or if one party wants to fight about something, it will take longer. A judgment of divorce is effective the day it is granted, but Wisconsin law (and many other states) prevent you from re-marrying anywhere in the world for six months afterward.
HOW MANY TIMES WILL I HAVE TO GO TO COURT? You will have to go to the courthouse at least once to a courtroom for your hearing. First Hearings and Pre-Trials are additional court appearances required in more complex cases.
WHAT HAPPENS AFTER I GET MY DIVORCE GRANTED BY THE JUDGE? In about 4 to 6 weeks you should receive a copy of the Findings of Fact, Conclusions of Law and Judgment of Divorce in the mail. These are your final papers and if there is a Marital Settlement Agreement between you and your spouse, a copy of that will be attached to the final papers.
If things change, particularly relating to children, you can return to court and have your judgment of divorce changed. For example, if the paying parent gets a new job with significantly higher wages, there is what is called a “change of circumstances” and child support can be adjusted upward. Child support can be “held open” in the event the payor loses their job. Nothing is automatic! Whenever there is a change, you must go to court and get the order changed. Courts DO NOT have the power to retroactively reduce support. Thus, if you are responsible for paying child support and you lose your job and fail to come to court, you will be charged for that child support even though you are not working. It may seem unfair, but that IS the law.
If you receive child support, the person who pays that support must give you a copy of their income tax return PLUS their last 8 pay stubs each year by May 15. This is required by law. If their income has increased or decreased, either party may go back to court for an annual adjustment of child support.
PERSONAL RECOMMENDATIONS & TIPS:
1. DEPARTING THE HOME: If you leave the marital home, you should take absolutely everything that you cannot replace in the future. By this I don’t mean Tvs and couches, but I do mean your personal items, things you received as gifts from your family, memorabilia, etc. If your mother’s wedding picture is important to you, you better take it with you on the way out. You may never get back in. The one there will say “you took it with you” and you know you don’t have it, but you will never be able to prove a negative. Take personal items with you on your way out!
2. MEDICAL INSURANCE: If your spouse provides medical insurance for you, you have rights to continue that insurance under a Federal law called COBRA. You will have to pay the premiums after divorce and it only lasts for a certain number of months but it is better than nothing at all. Generally, insurance is kept in place during the divorce but after the divorce you are off your spouse’s insurance unless you have applied for COBRA benefits. You must do this through your spouse’s Human Resource department and you must make the initial contact and get the forms before the divorce. If you sit around after the divorce and the right number of days pass, you will never be able to get this insurance.
3. CREDIT PROBLEMS: If you are worried about your credit after the divorce, or your spouse is not paying their fair share of the bills, you have two choices: pay the creditors directly yourself or leave them go and let the creditors come after both of you. Under Wisconsin law, bills incurred during a marriage (with very limited exceptions), belong to both parties 100%. Creditors will collect from whoever is handiest. You have a right to file a statement concerning your bills with the credit bureau (“all my bills are handled timely and properly - then I got involved in a divorce and my ex refused to pay their fair share and we got behind”) but that is after the fact and your credit may still be damaged.
4. 401K CONTRIBUTIONS: Unless you plan on giving up half of every $1.00 you contribute to your 401(K), it is wise for you to stop making 401(K) contributions after you decide to get a divorce (or after your spouse decides to get a divorce from you).
5. TAX ISSUES: You should speak with a tax expert if you are considering splitting the tax exemptions for children. There is the possibility of filing as “head of household”, earned income credit, etc. Use a CPA or independent tax accountant. Don’t use a franchise operation. Find someone that you can come back to speak with individually in the future.
Child support payments are not tax deductible, but maintenance (alimony) and family support payments are deductible to the payor and taxable to the payee. These however are also matters that should be discussed fully with your tax expert.
6. PREOWNED PROPERTY: The mere fact that property is owned prior to the marriage by one or the other does not exempt it from division in divorce. The shorter the marriage, the more likely it is that the court will give the property back to the person who owned it before the marriage. In a 20 year marriage, it will be subject to the 50/50 division rules utilized by the courts. In shorter marriages, it is up to the court’s discretion as to how to divide the property and it is difficult to predict the outcome.
The only items specifically exempt from the 50/50 presumption in the law are items that have been inherited by or gifted (by someone other than a spouse) to the recipient. Also, after an inheritance or gift, the property has to be retained separately. The easiest example is a $10,000 inheritance from one’s grandmother. If that money is put into a separate savings account in which no other money is placed in the name of the inheriting spouse and retained there, it will not be subject to division by the court. On the other hand, if the inheriting spouse puts the money down on a house in both parties’ names, the inheritance (or gift) can be said to be “transmuted” from individual property to marital property. The longer the property is retained that way, the less likely it will be that it be exempted from division by the court in a future divorce.
7. CUSTODY AND PLACEMENT OF CHILDREN: If the children’s living arrangements are an issue (physical placement) you must keep an independent record of where the children are at any given time. This has a direct impact on child support. The mere fact that children spend ½ of the time with Dad does not automatically mean there is no child support. If the parties have seriously different incomes, the higher earning party will be paying something to the lower earning party. The courts however, look to the best interests of the children in such matters, not merely the wishes of a parent who wants to reduce a support obligation. These are tough cases and usually end up being negotiated because of the cost of a true custody dispute costs thousands and thousands of dollars plus untold amounts of time.
8. CHANGING BENEFICIARIES: After the divorce: unless restricted by the judgment of divorce saying that you must retain your ex-spouse as a beneficiary on your pension, life insurance, etc., you have the obligation of changing beneficiaries on life insurance policies, pensions, etc. if that is what you want. Most typically, minor children are retained as beneficiaries on life insurance policies (you can set up a trust for the benefit of your minor children - see your insurance agent about that). Barring some other requirement of the judgment of divorce, if you are awarded an insurance policy or pension, you get the right to re-designate the beneficiary. If you leave your ex-spouse as beneficiary after the divorce and you die, your ex-spouse will inherit the benefit. Some pensions don’t allow re-designation of survivorship after retirement or the commencement of benefits. You have to check with your Human Resources department or insurance agent. Check these items before the divorce.
9. SEPARATION OF FUNDS: At the earliest point possible, all the parties’ funds should be separated. Close and split all joint accounts and charge cards (if creditors will allow it). Open your own checking, savings and credit accounts. If there is a claim of waste (of assets), it must be organized thoroughly. This is up to you. If you are getting a divorce, separate money and credit immediately.
These are only examples, suggestions and recommendations. We disclaim this as factual legal advice, implied or otherwise. Retain a competent and credible divorce attorney and always consult with your attorney before taking any action.
I welcome your questions. I do NOT offer factual legal advice - I am not qualified in this area. I do offer a compassionate ear and can give some constructive feedback to problems.
All information, names and email addresses are kept strictly confidential. You will NEVER receive junk mail from me. If you want an email response, be sure to add my email to your address book - otherwise overzealous spam blockers may delete me.Mark@freedivorcesupportfor men.com
Living Sober Sucks
In Stock - Buy now
Just by following one of my strategies in Chapter #13, you will end up with over $3,600.00 in the bank after 1 year of sobriety.
Buy Securely through PayPal
Or Buy on Amazon.com
Published by: CW Media, Inc.
Whether you're a full blown raging alcoholic or just feel like alcohol is complicating your life and relationships, you will get something out of this book.
Do you or someone you know have an alcohol or substance problem? Please visit my other site: