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This article will give you an overview of Wisconsin Family law for 2022. There have not been many changes for the upcoming year of 2022.
This article will give you an overview of Wisconsin Family law for 2023. There have not been many changes for the upcoming year of 2023.
Grounds for Divorce in Wisconsin
In the state of Wisconsin there are only two (no-fault) legal grounds for divorce:
- The marriage is irretrievably broken.
- Assertion of breakdown of marital relationship by both parties
If the parties both have stated in their petition or otherwise under oath that the martial relationship is irretrievably broken the court after a hearing shall make a factual finding that the marital relationship is irretrievably broken.
The Court will make a finding the marriage is irretrievably broken if the following events occur:
- Both parties stated under oath by petition or otherwise that the marriage is irretrievably broken
- The parties have lived apart voluntarily for 12 months prior to the commencement of the dissolution of marriage proceedings.
- If the parties have not lived apart for at least one year prior to the commencement of the dissolution of marriage action and only one party has stated under oath that the marriage is irretrievably broken, the court shall consider all relevant factors including the facts and circumstances that lead to the dissolution of marriage petition being filed and the possibility of the parties reconciling their marriage and continue as follows
- If the court finds that there is no chance of reconciliation between the parties it shall make a finding that the marriage is irretrievably broken
- If the court finds that there is a reasonable likelihood that the marriage can be reconciled between the parties it shall continue the hearing for 30 to 60 days
- If the court case is continued the court may suggest that each party seek counseling and at the next hearing if one party states under oath that the marriage is irretrievably broken the court shall make a finding on whether that is true or not.
Residency Requirement for Dissolution of Marriage in the State of Wisconsin
To File for legal separation or dissolution of marriage in the state of Wisconsin either the Plaintiff or the Defendant must be a resident of the state of Wisconsin 6 months prior to the filing of the dissolution of marriage petition.
After the Dissolution of Marriage Petition is Filed
After the Plaintiff files the Petition for Dissolution of Marriage in the Wisconsin Circuit Court the Defendant has 20 days to file an Answer to the petition or Counterclaim after being served. A final hearing on the dissolution of Marriage petition in the state of Wisconsin cannot be brought to a final hearing or trial unless 120 days have passed since the service of summons and petition for dissolution of marriage was served on the Defendant.
Waiver of Waiting Period
The 120-day waiting period until a final judgment can be brought, can be waived by an Order of the court, but there will need to be compelling circumstances such as the protection of the health safety and welfare of the parties or children.
Holding off on the Dissolution of Marriage Proceedings for a Possible Reconciliation of the Parties
If during the pendency of the Dissolution of Marriage proceedings in a Wisconsin court both parties stipulate in writing that they would like to attempt to reconcile their marriage, an Order suspending all order proceeding shall be issued but not to exceed 90 days in length.
During the reconciliation period the parties may resume living together again as husband and wife and their actions to not prove that the marriage is not irretrievably broken, and the parties do not waive other grounds i.e., that the spouses out of their own free will lived apart from one another.
Property Division in the State of Wisconsin
In Wisconsin upon entry of judgment for annulment, dissolution, or legal separation the court shall divide the property of the parties 50/50 Wisconsin is a community property state. Separate property shall remain for each individual spouse.
Separate property is defined by Wisconsin statute as any property shown to give been acquired by either party prior to or during the marriage in any of the following ways
- As a gift from a person other than the spouse
- Life insurance proceeds, payments made under an employment retirement account, property acquired by right of survivorship, employment benefit plan, trust distribution, an inheritance or transfer on death account or payable on death account.
- If the court finds that refusal to divide separate property will create an undue hardship on the other party or the children, then the court may divest the party of that property in a fair and equitable manner.
The Court may change its decision to divide marital property in a 50/50 manner after considering all the following factors:
- The duration of the marriage
- The amount of property that each spouse brought into the marriage
- Whether one of the spouses has assets not subject to division by the court
- The contribution of each party to the marriage giving appropriate economic value to each party’s contribution in homemaking and childcare services.
What is a Domestic Partnership in Wisconsin?
In Wisconsin, the Wisconsin legislature, has defined a domestic partner as an individual who has signed and filed a declaration of domestic partnership in the office of the register of deeds in the county where the person resides. A domestic partnership is a legal relationship that is formed between two people.
Criteria For Forming A Domestic Partnership:
- Each person is over the age of 18 and can consent to the domestic partnership.
- Each person is not in a domestic partnership with anyone else.
- The two people share the same residence.
- The two people are not family other than second cousins whether half blood, whole blood, or by adoption.
- The two people are of the same sex.
Terminating a Domestic Partnership in the State of Wisconsin
In order to terminate a domestic partnership, there needs to be a notice of termination of Domestic partnership form filed with the county clerk who issued the declaration of the domestic partnership there is a fee that needs to be paid and the notice must be signed by one or both domestic partners and also must be notarized.
If the Notice of termination of Domestic Partnership Form is signed by one of the domestic partnership the person who signed must file an affidavit with the county clerk stating either of the following:
- That domestic partner who has not signed had been served in writing as set out in Wisconsin statute and that notice of termination of the domestic partnership has been filed with the county clerk
- That the domestic partner that has signed cannot located the other domestic partner after making diligent efforts and notice to the other domestic partner has been made by publication or otherwise.
- Once the county clerk receives a completed signed notarized notice of termination of domestic partnership the affidavit and the fee the county clerk will issue a certificate of termination of domestic partnership the domestic partner will then submit the Certificate termination of domestic Partnership to the register of deeds in the county in which the declaration of domestic partnership was recorded.
Annulment In the State of Wisconsin
A Wisconsin court may annul a marriage upon any of the following grounds.
- One of the parties to the Wisconsin marriage lacked the mental capacity to consent to the marriage at the time the Wisconsin marriage was entered into, the petitioner gained knowledge of the described condition, and this was found out within one year of the marriage: age, mental incapacity, was under the influence of drugs or alcohol, entered into the marriage by force or duress, party was fraudulently induced into the marriage.
- A party of the marriage lacked the physical capacity to consummate the marriage by the inability to have sex.
- A party to the marriage was age 16 or 17 and did not have consent of their parents or approval of the court and the underage spouse brings the suit prior to turning age 18.
- The marriage violated the laws of the state of Wisconsin and no more than 10 years have passed since the marriage was consecrated except for cases of bigamy the 10-year bar does not apply to those instances
Legally Void Prohibited Marriages
The following are examples of legally prohibited marriages in the state of Wisconsin:
- Either party already has spouse and then proceeds to marry someone else.
- The parties involved are kin as close as a second cousin, a first cousin may marry if the female is 55 years old, or at the time for the application for marriage either part submits an affidavit from a signed doctor stating that either party is permanently infertile
- Either party is mentally inept of assenting to marriage
- It is unlawful in the state of Wisconsin for any person who has been a party to a divorce action to marry again until 6 months after the judgment for divorce is granted and any marriage entered into will be void if the 6-month waiting period was not satisfied.
Note that an action for an annulment of marriage must be brought in the state of Wisconsin to annul a legally prohibited void marriage. On the other hand, if one of the parties commences an action to affirm the marriage a judgment to affirm the marriage will make the marriage valid.
What is Maintenance in Wisconsin?
Upon a judgment of annulment, dissolution, legal separation, the court many order requiring maintenance payments to be made by one party to the other for a limited or indefinite period of time considering the following factors:
- The duration of the marriage
- The ages physical health and emotional health of the spouses
- The result of the division of property of the divorce
- The educational level of each spouse at the time of the marriage and at the time the divorce action was commenced
- The earning capacity of each party seeking maintenance including training educational degrees employment skills employment experience length of absence from the job market custodial responsibilities for child rearing time and expenses necessary to acquire sufficient education and or training to enable a party to find employment.
- The likelihood that the party seeking maintenance can become self-supporting to a standard comparable to the marriage and the length of time necessary to accomplish this goal
- The tax consequences of each party
- Any agreements made between the spouses during the marriage before the marriage in which one spouse has made financial or service contributions to the other spouse with the expectation that there would be compensation in the future
- The contribution by one's spouse to the other for education training or increased earning power or the other.
- And any other factors that the court may deem to be relevant under the facts and circumstances of each case.
Child Custody in Wisconsin
A parent seeking sole or joint custody of the child or children shall file a parenting plan if the following is true:
- The Court does not find otherwise
- Legal Custody is and or physical placement is contested
- The court waived the requirement to attend mediation, or the party's attended meditation and the mediator noticed the court that the parties have not reached an agreement
A Parenting Plan Should Address The Following Issues:
- The physical placement and legal custody that each parent is seeking
- Where the parent currently lives and where the parent plans to live during the next two years
- Where the parent works and hours of employment
- Who will provide the childcare necessary when parent cannot and who will pay for said childcare
- Where the child or children will attend school
- What doctor or healthcare facility will care for the child
- Through what means will the child’s medical expenses be paid
- What the child or children’s religious background will be if any
- Which parent will make the important decisions about the child or children’s educational decisions health care decisions child care providers and extracurricular activities
- How will the vacations be divided between the parents
- How will the child’s summers be divided between the parents
- The means of communication the child will have with the other parent when the child is residing or staying with the other parent.
- Whether both parents have access to providing their children with electronic or telephonic communication so that they may communicate with the other parent.
- How the parents propose to resolve disagreements related to future issues where the court orders joint decision making
- What maintenance child support and family support or income transfer will take place
- Where there is evidence that one parent engaged in abuse of the other parent how the child or children will be transferred between the parties for the exercise of physical placement to ensure the child’s safety and wellbeing.
Determining Legal Custody and Physical Placement in Wisconsin
When determining legal custody and physical placement, the state of Wisconsin will look to the following factors which look to the best interest of the child:
- The wishes of the parents any proposed parenting plan and as shown by stipulation by the parents or any legal custody or physical placement proposal submitted to the court at trial
- The child’s wishes
- The relationship between the child and his or her parent siblings and any other person who may significantly affect the child’s best interest
- The amount of time that each parent has spent with the child in the past and any necessary changes to the parent’s custodial roles and any reasonable life style changes that a parent plans to make to be able to spend more time with the child in the future
- The child’s adjustment to the community home school and religion
- The age of the child and the child’s developmental and educational needs
- Whether the mental or physical health of a parent child or other person living in a proposed custodial household negatively affects the child’s mental physical or emotional well-being
- The availability of public or private childcare services
- The needs for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child or children
- The cooperation and communication between the parents and whether either parent unreasonably refuse to cooperate or communicate with the other parent.
- Whether each parent can support the other parent’s relationship with the other parent.
- Whether there is evidence that that a parent engaged in abuse of the child or children.
- Whether there is evidence of domestic or spousal abuse amongst the parents
- Whether a person whom a parent is in a relationship with or whom a parent resides has a criminal record and whether that person has engaged in abuse or neglect of the child
- Whether a parent has a problem with drug or alcohol abuse
- Reports of professionals
- Any other factors the court may determine to be relevant on a case-by-case basis
After looking to all of these factors the Wisconsin Courts will prefer to give joint legal custody amongst the parents. The court in its discretion may decide to award sole legal custody if it finds that doing so would be in the child's best interest.
If both parents agree to sole legal custody with the same parent or if one parent does not agree with sole legal custody with the same parent but at least one parent requests sole legal custody the court will award sole legal custody if it finds any of the following:
- One party is not capable of performing parental duties and responsibilities and or does not wish to have an active role in parenting the child
- One or more conditions exist at the time that would substantially interfere with the exercise of joint legal custody or
- The parties will not be able to come to agreement about future decision making required under an award of joint legal custody in making this finding the court shall consider any pertinent items including any reasonable offered by a party objection for joint legal custody.
It will be evidence that either party engaged in child and spousal abuse creates the presumption that the parties will not be able to cooperate in the required future decision making. The court will not give sole legal custody to a parent who refuses to cooperate with the other parent.
In Wisconsin the Court shall set a placement schedule that allows the child or children to have regular periods of physical placement with each parent that maximizes the amount of time that each child or children will spend with each parent. This will take into account the distance between where each parent resides and the accommodations of each parents’ household. A child will always be entitled to spend time physically with both parents unless doing so would place the child’s physical mental or emotional health in jeopardy.
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