Basic Guide to Divorce/Legal Separation

Table of Contents

Overview

• Self-Representation
• Jurisdiction: Who Can File in Waukesha County, Wisconsin?
• Divorce, Legal Separation, or Annulment

Legal Issues to Consider

• Legal Custody & Physical Placement
• Child Support
• Maintenance
• Family Support
• Division of Property & Debts

Basic Procedure

• Step 1: Choosing the Correct Forms to Use
• Step 2: Completing the Forms
• Step 3: Filing the Papers
• Step 4: Serving the Other Party(s)
• Step 5: After Service
• Step 6: The Temporary Hearing
• Step 7: Preparing for the Pre-Trial Conference
• Step 8: Completing the Divorce/Legal Separation

OVERVIEW

Representing Yourself in Family Court

While there is an absolute right to represent one’s self in court, there are certain significant risks and responsibilities attached to that right.  Before starting, parties should explore those risks and determine if they can fulfill the responsibilities of proceeding without an attorney.  Many cases are too complex for individuals to handle on their own, and sometimes, when people represent themselves under those circumstances, they eventually need to hire an attorney to "fix" some mistakes.  Often times, it costs litigants more to have the attorney "fix" the problem than it would to have hired the attorney to handle it from the beginning.  To determine if parties should represent themselves in a divorce/legal separation case, they may take the "Should I Represent Myself" quiz.

The Family Division of the Circuit Court offers a comprehensive website which offers forms, instructions and procedural information regarding family court cases. 

The following information will help individuals file and complete a divorce or legal separation case without the help of an attorney.  It is strongly recommended that all parties at least consult with an attorney to discuss the legal issues involved in a divorce or legal separation action. 

Family Division staff can answer questions about procedures, but they cannot give legal advice or recommend would be the best option to use to proceed through a court process. 

Divorce, Legal Separation & Annulment

Procedurally, the three do not differ much, however, it is important to understand the difference before filing and understand what they will provide to you in terms of relief.

Divorce

Divorce ends a marriage.  The court rules on the division of property, maintenance (spousal support), and if necessary, arrangements for child support, legal custody, and physical placement.  There is a statutory 120-day waiting period to get divorced. Once the divorce is granted, the parties cannot remarry anywhere in the world for at least six months. 

Parties do not have to give reasons for wanting a divorce.  Wisconsin is a "no fault" divorce state, which means neither party must prove that the other has done anything wrong, and only one party must testify under oath that he or she believes that the marriage is irretrievably broken.  A marriage is irretrievably broken when there is no chance for reconciliation. 

Legal Separation

Legal separation does not end a marriage.  The court rules on the same issues as for divorce.  The forms, instructions, procedural information, and waiting period (120 days) for obtaining a legal separation are also the same as those for divorce.  Parties are free to reconcile at any time. The parties cannot marry another person during legal separation.  If the parties agree, they may convert the legal separation to a divorce at any time.  If they do not agree, either party may convert the legal separation into a divorce by filing a motion to do so after one (1) year from the date the legal separation was granted.  If the parties convert the legal separation to a divorce, the parties may not remarry anywhere in the world for at least six months from the day the legal separation is converted to a divorce.

Annulment

An annulment is a court procedure that declares that a marriage never existed.  However, a court may annul a marriage only under limited circumstances. A short term marriage is NOT a legal reason for annulment. See Wisconsin Statute 767.313 for the acceptable reasons to request an annulment.  The forms, instructions, and procedural information provided by the Family Division Self-Help Program are not designed to be used to request an annulment.  Please seek legal assistance if you feel you qualify and would like to file for annulment.

Jurisdiction

Who can file for Divorce or Legal Separation in Waukesha County, WI?

Divorce

To file for divorce in Waukesha County, at least one of the parties must:

• Be a resident of the State of Wisconsin for six months immediately before the date the action is filed, and
• Be a resident of Waukesha County for 30-days immediately before the date the action is filed.

For example, if a party files for divorce on July 1, one party must have lived in Wisconsin from at least January 1 through June 30 and in Waukesha County from at least June 1 through June 30 of the same year.

Legal Separation

To file for legal separation in Waukesha County, at least one of the parties must:

• Be a resident of Waukesha County for 30-days immediately before the date the action is filed.
• No state residency requirement exists for legal separation.

LEGAL ISSUES TO CONSIDER

Legal Custody and Physical Placement (visitation)

Legal Custody
Legal custody refers to the major decision-making authority for a child.  Wisconsin law presumes that joint legal custody is in the best interest of the child unless the court finds that awarding legal custody to a parent would be harmful to the child. In making an order of joint legal custody, the court may specify what decisions are considered to be “major decisions.”   The court may give one parent some responsibilities and give the other parent different responsibilities, or the parents may be required to agree on all major decisions.   

Physical Placement
Physical placement refers to the right to have a child physically placed with a party.  It gives that party the right and responsibility to make, during that placement, routine daily decisions regarding the child’s care, consistent with major decisions made by a person having legal custody.  One party may be awarded primary physical placement with the other party having periods of physical placement (visitation), or the parties may be awarded shared physical placement.

It is recommended that the parties come to an agreement as to the legal custody and physical placement of the children.  If they cannot, and a dispute arises, the court will order that the parties attend Mediation with Family Court Counseling Services.  If the parties are still unable to come to an agreement, the court may order a Physical Placement Study or appoint a Guardian ad Litem.  In making the final decision, the court will consider all factors related to the best interest of the child.  The court will consider many factors that are listed in WI Statute 767.41. 

Personal Safety Issues
If your case involves minor children, and you have serious reason to believe that the health, safety, or liberty of you or a child would be jeopardized by the disclosure of certain identifying information both in paper and electronic records, you may request that identifying information be sealed from the public or the other party until a hearing is held.  Once you have completed the forms, the court will schedule a hearing.  At that hearing you will have to convince the judge that it is in the interest of justice for the information to continue to be sealed.

Note: For more information related to Legal Custody and Physical Placement issues you may review Subchapter V of Wis. Stat. 767 and the Family Legal Research section of this site.

Child Support

The court shall order either or both parties to support a child who is:

• Under the age of 18, or
• Age 18, but less than 19 and pursuing an accredited course of instruction leading to a high school diploma or its equivalent. 

Payments for child support are generally intended to include basic support costs including food, shelter, clothing, transportation, personal care, and incidental recreational costs.  Under certain circumstances, parents may also be required to pay variable costs (reasonable expenses above basic support costs) in addition to child support, including child care, tuition, a child’s special needs, or other activities that involve substantial cost.

Child support is calculated based upon the percentage standard guidelines established by the State of Wisconsin Department of Children and Families' (DCF) Chapter 150.  Not every family situation is the same, so the approach that applies to a specific situation may be somewhat different from the guidelines.  The court may order an alternative that is greater or less than the guidelines if the use of the guidelines is unfair to one of the parents or children based on the circumstances, including but not limited to shared-placement, split-placement, low-income, high- income, or serial-family payer circumstances.  The percentage standard guidelines have been in effect since January 1, 2004 and are based on the payer’s “gross” (pre-tax) income or earning capacity and the number of children in the payee’s care.  The guideline percentage amounts are:

• 17% for one child
• 25% for two children
• 29% for three children
• 31% for four children
• 34% for five or more children

Note: We recommend that you consult with a tax professional to review the tax consequences related to child support payments.

To view the statutes, administrative code, and calculators for child support you may refer to the Family Legal Research section of this site.

Maintenance (Spousal Support)

A party seeking support from the other spouse may request maintenance in the divorce or legal separation.  The court may order maintenance for a limited or indefinite length of time.  When considering whether to award maintenance, the court will look at all of the circumstances of the parties, including but not limited to, the factors listed in WI Statute 767.56.   Note: We recommend that you consult with a tax professional to review the tax consequences related to maintenance payments.

Family Support

Family support is a substitute for child support and maintenance combined. Calculating can be more complicated than child support or maintenance independently.  We recommend that you seek Legal Assistance if you are considering Family Support as an option.

Note: We also recommend that you consult with a tax professional to review the tax consequences related to family support payments.

Divison of Property & Debts

Property Division

If the parties agree on how to divide their marital and non-marital property (real estate, vehicles, and other personal items), they must provide a description of which party will receive which property. This also applies to property that may have already been divided.  If the parties have already divided the property, or it is only in one party’s name, they must still tell the court which party will get what property.

If the parties cannot agree to a division of their personal property and real estate, the judge will divide the property after considering its value.  Valuation of property is often the subject of testimony by expert witnesses.  To achieve an equal division of property, the judge may award property to one party and a cash payment to the other party.  Wisconsin presumes that all property, other than property that a party receives as a gift or through inheritance, will be divided equally.  The judge may divide property unequally after considering certain factors.

Debts and Obligations

The judge also determines which party is responsible to pay the debts and other obligations.  If the parties have already divided the debts and obligations, or they are only in one party’s name, they must still tell the court which party is responsible for each payment.  Even if the judge orders one party to pay certain debts after divorce/legal separation, creditors are not bound by the court order established in Family Court and may seek payment from the other party if the party ordered to make the payments doesn’t pay or files for bankruptcy.  If this occurs, the party may request relief from the Family Court, but only if a specific order was established for payment of the debt or obligation.  It is critical that the court is made aware of all the parties’ debts and obligations.

Note: Specific information about Property and debt division can be found in Subchapter VII of Wis. Stat. Ch. 767. 

Procedural Overview

8 Steps to a Basic Divorce/Legal Separation

Below you will find general information about the process for filing for divorce or legal separation.  It describes the minimum requirements that must be met for all divorces and legal separations to be granted no matter how "simple" you believe your case may be.  In other words, even if you have already divided your property, debts, assets and/or made arrangements for your children and may be living separately (for any amount of time) you must proceed through all steps and complete the required forms.

Step 1: Choosing the Correct Forms to Use

Choosing the correct forms to use is a very important task.  The forms are divided into packets based on the following three questions:

1. Do you and your spouse have minor children together or is the wife pregnant?
2. Will you be filing independently (separately) from your spouse or will the two of you be filing together (jointly)?
3. Will you need a temporary hearing or not?

Parties may obtain the forms one of three ways:

• Purchase (see fees) them from the Family Court Office
• Download the forms from the website
• Complete and download the forms using the Self Help Law Center Forms Assistant

Step 2: Completing the Forms

Once the party(s) determines which set of forms to use, the forms must be completed and filed in the correct order.  Parties should not fill out all the forms in the packet and then try to figure out what to do with them.  Only certain forms are due at certain points in time, and if completed too soon, parties may have to redo a form that was completed too early.  A checklist will be provided to describe the procedure, and detailed instructions are provided on each form.  If there are still questions about a form or procedure, parties may contact the Family Division and a customer service representative will try to assist.  When completing the forms by hand, parties should always print the answers using black ink.

• The Petitioner is the party starting and filing the divorce/legal separation.
• The Respondent is the spouse.
• Joint Petitioners are parties that start and file the divorce/legal separation together.

The Papers to Start the Divorce/Legal Separation

Considering the Need for a Temporary Order:
Parties must decide how they are going to handle things between the time they file and the time their divorce/legal separation is granted (during the 120-day waiting period).  Decisions must be made about issues such as:

• Maintenance (spousal support)
• Whether one of the parties should be ordered out of the home
• Who should have the use (not ownership) of certain property (bank accounts, vehicles, etc.)
• Who should make various payments on debts (mortgage payment, car loan, etc.)
• Child support, legal custody, and physical placement of any marital children
• Other issues that need court orders before the trial 

Parties have three (3) options:

1. If the parties CAN agree on the above issues, they may write their agreements on a form called the Stipulation for Temporary Order form to request that the Family Court Commissioner make their agreements an order of the Court.  Once signed by the Family Court Commissioner, the Stipulation for Temporary Order must be followed until the divorce/legal separation is granted or there is a new order of the court.
2. If the parties CANNOT agree on the above issues, either party may request to have the Family Court Commissioner make decisions for them at a Temporary Hearing by completing and filing the Order To Show Cause and Affidavit for Temporary Order.
3. Do nothing if the parties are able to work things out informally.

NOTE: Determining the need for a Temporary Hearing at this point, and not after the Summons and Petition have been filed and served, will save the cost of serving the other party twice.

State of Wisconsin as a Party to the Action
Has either party or the child(ren) ever received or applied for public assistance? If so, the State of Wisconsin may have an interest in the divorce/legal separation action and is therefore a party to the case.  In Waukesha County, the Child Support Division represents the State for all such court actions.  If the State is found to have an interest, there are additional requirements the parties must follow. 

Step 3: Filing the Papers

Once all the necessary forms to start the action are completed, the party(s) may take them to the Family Division, Monday through Friday between 8:30 am and 4:00 pm to have them reviewed for completeness and copied(if necessary for a fee). Once reviewed, the forms and all necessary copies are filed by the party(s) at the Customer Service window of the Family Division Office. It is at this point that a case number and judge are assigned to the case.  All future documents that are completed must have this case number on them, and must be filed with the Family Division Office. 

Filing Fees
With minor children or Request for Maintenance $194.50
NO minor children or Request for Maintenance $184.50

Waiver of Court Costs and Service Fees
Payment of filing fees are required unless a party(s) can show that he/she is low income and considered indigent by the court.  To make that determination, the court requires that the Petition for Waiver of Filing and Service Fees form be completed.  Please be aware that the rules to qualify as indigent are very strict, and it is difficult to receive a waiver of fees.  If granted, the waiver may also be used in the Waukesha County Sheriff’s Department to waive service fees.

Step 4: Serving the Other Party(s)

See the Service Packet for specific options for how to have the other party served.

Financial Disclosure Statements: Parties must either download from the website (for free), or request from the Court Self-Help Center, two Financial Disclosure Statements.

Step 5: After Service

Step 6: The Temporary Hearing

*If a Temporary Hearing was NOT requested, skip to Step 7.*

If it no longer becomes necessary, and the parties are in agreement on how to handle things, they may request in writing that the court cancel the hearing.  That request is to be mailed to 515 W. Moreland Blvd., Waukesha, WI 53188, and to the other party.

If a party requested a Temporary Hearing, the party who requested the hearing should have served the other party with the Order to Show Cause and Affidavit for Temporary Order, which contains the date, time, and place of the Temporary Hearing.  He/she should also have served a blank Financial Disclosure Statement on the other party.  Both parties must complete and take this document and required attachments to the Temporary Hearing.

Parties should arrive at the courthouse at least one (1) hour before the scheduled hearing and SHOULD NOT bring any minor children (even if there are issues regarding placement or custody).  This time should be used for the parties to meet to attempt to make agreements about the disputed issues.  The more issues on which the parties can agree, the fewer decisions that will have to be made by the commissioner and imposed on the parties.

During the temporary hearing, the commissioner will ask each party for his/her requests.  After hearing both parties, the commissioner will make decisions and prepare a Temporary Order.  Each party is required to follow the Temporary Order until the divorce/legal separation is final or the order is changed by the court.

If either party is unhappy with the outcome and would like a new Temporary Hearing with the Judge, he/she may request a new hearing by filing a Request for and Notice of De Novo Hearing within 10 days of the first temporary hearing.

Step 7: Preparing for the Pre-Trial Conference

The parties will receive the Notice of Pre-Trial Conference, which contains the Pre-Trial Conference date. The clerk will also attach to the Notice a Pre-Trial Order, and if minor children are involved, information on the Helping Children Cope with Divorce seminar.  All parties with minor children are required by statute to complete the seminar before the court can grant a divorce/legal separation.

Once the parties have received these documents from the court, they must do the following tasks or consider the following issues:

Order to Appear

We Changed our Minds: If the parties want to try to reconcile and need more time (up to 90 days) or want to dismiss the divorce/legal separation…
The parties have two options that they may use at any point up until the divorce/legal separation is granted: suspend the proceedings or dismiss the divorce/legal separation.  A suspension is a delay in the process. The Stipulation and Order Suspending Proceedings to Effect Reconciliation is the form used to suspend a divorce/legal separation action (proceedings and orders) for up to 90 days.  Both parties must agree.  Once the divorce/legal separation is suspended, the following options apply:

1. Stop the delay and continue with the divorce/legal separation: Either party may request at any time that the suspension of divorce/legal separation proceedings be withdrawn by completing the Motion and Order to Revoke Suspension of Proceedings to Effect Reconciliation form.
2. Reconcile: If at any point during the delay the parties agree to reconcile, they may complete the Stipulation and Order Dismissing Divorce/Legal Separation form (see below) to end the divorce/legal separation proceedings.
3. Do nothing: If the parties take no action and the 90 days pass, the divorce/legal separation action will proceed.

The parties may also dismiss (end) the pending divorce/legal separation action without first suspending it by completing the Stipulation and Order Dismissing Divorce/Legal Separation.  Both parties must agree.  If the parties dismiss and later choose to divorce or legally separate, they must start the divorce/legal separation process over and must again pay all the required fees.

See the Suspension and Dismissal Packet for the forms and instructions.

Step 8: Completing the Divorce/Legal Separation

From this point, divorces/legal separations can take three different paths: Stipulated, Contested, or Default. 

The Stipulated Divorce/Legal Separation is one in which the parties are in agreement about ALL the issues and do not need the court to make any decisions for them.  If the parties have prepared all the necessary documents, stipulated divorces/legal separations are typically granted at the time of the Pre-Trial Conference.  

A Contested Divorce/Legal Separation is one in which at least one matter remains disputed and the court will have to make a decision.  These cases take longer because a trial is necessary. Cases may begin as Stipulated Divorces/Legal Separations, and a dispute may occur that would cause the case to have to go to trial.  Or, parties that have a case that has many disputes to begin with, may find that after communicating, they are able to work things out and finalize their divorce/legal separation at the Pre-Trial Conference.  If parties need assistance working out some issues, they may wish to seek legal advice or contact a mediator.  If parties are not able to reach complete agreement, the case will have to be scheduled for a contested trial at the time of the Pre-Trial Conference.

A Default Divorce/Legal Separation is one in which the petitioner is unable to find the respondent, or the respondent is unwilling to participate in the proceedings.  In this type of divorce/legal separation, only the petitioner is present in the hearing and provides a proposal to the court that includes how he/she would like the judge to rule on the issues.

Financial Disclosure Statements:
A statement of all income, expenses, assets, and liabilities.  This form is exchanged between spouses to verify full disclosure and is filed with the court no later than 10 days before the Pre-Trial Conference to assist the judge in making decisions.

Before the Pre-Trial Conference, the parties need to read and follow the instructions on the Pre-Trial Order and complete their own Financial Disclosure Statement.  This statement must include each of the party's debts and assets.  The value to be included is "fair market value," that is, what the item could be sold for.  It is generally not purchase price or replacement value.  In addition to disclosing all assets and liabilities, parties must also disclose income from all sources and monthly living expenses.  Parties must attach copies of their state and federal income tax returns from the last two taxable years and wage statements from their employers from the last 12 weeks.  See Wisconsin Statute 767.27 for further information.

Note: If either party does NOT file the completed Financial Disclosure Statement within 10 days before the Pre-Trial Conference, the court may accept as accurate any information provided in a statement of the other party or other related agencies. 

Marital Settlement Agreement (MSA):
The form that contains all of the issues that have been agreed to or requested by the party(s), which becomes part of the final divorce/legal separation papers.

After both parties are satisfied that the other has fully disclosed their finances, they should try to complete the Marital Settlement Agreement form.

Stipulated
The parties agree to all issues related to the divorce/legal separation, have completed all sections of the Marital Settlement Agreement, signed it, and are ready for the court to grant the divorce/legal separation at the Pre-Trial Conference.

Contested
The parties do not agree to all issues related to the divorce/legal separation.  Parties must complete every section that applies to the case on which they have reached an agreement.  They must leave blank those sections on which they cannot agree, and the court will need to make a decision.   As the parties agree to additional issues, they should complete the corresponding sections of the Marital Settlement Agreement. 

If parties do not agree to any issues or are unable or unwilling to communicate, see the section below for Default.

Default
Only one party is participating either because the petitioner was unable to find the respondent, or the respondent is not willing or able to participate.  If this is the case, each party who will be appearing at the hearing must prepare a Marital Settlement Agreement Proposed by One Party.

Divorce with Children Educational Seminar: Required by WI Stat. 767.115.

If there are minor children involved, both parties are required to attend the Helping Children Cope with Divorce seminar, which is a 4-hour educational seminar about the needs of children during and after the divorce/legal separation of their parents. 

Proposed Parenting Plan

Not required if the parents agree to legal custody and physical placement of the child(ren).

Required if the parents cannot agree on how to share the physical placement or legal custody of the child(ren).

Findings of Fact, Conclusions of Law and Judgment:
Often referred to as the “Findings”, it is the document that the judge signs to grant the divorce/legal separation and incorporate the terms of the Marital Settlement Agreement.  The Findings and the Marital Settlement Agreement or Proposed Marital Settlement Order become the final divorce/legal separation papers.

The Petitioner should complete as much as possible of the Findings of Fact, Conclusions of Law and Judgment form before the Pre-Trial Conference. 

Pre-Trial Conference

Stipulated
If the parties have completed and signed a Marital Settlement Agreement by the date of the Pre-Trial Conference, and the judge approves the agreement, the court may grant the divorce/legal separation at the time of the Pre-Trial Conference.  If so, there will be no trial.

Contested
At the Pre-Trial Conference, the judge will ask both parties to identify the issues that remain unresolved.  If there are unresolved issues concerning physical placement or legal custody, the court may order both parties to Family Court Counseling Services for mediation or a physical placement study, and/or assign a Guardian ad Litem to represent the interests of the child(ren). 
The judge may order that the parties exchange various documents relating to the value of assets or debts, and/or how they were acquired, and may order appraisals or valuations be done by a specific date.  The court will want to be sure that all of the information is available to place values on all assets and liabilities at the time of trial. 

Default
Because only one party is participating in the Pre-Trial, the party appearing must prepare the Marital Settlement Agreement Proposed by One Party.  If the court approves the proposal, the divorce may be granted and there will be no trial.

Divorce/Legal Separation Trial

Stipulated
If the parties have come to an agreement, the court will proceed with a stipulated divorce/legal separation hearing instead of a trial.

Contested
Parties must bring with them any evidence or documents to help them make their case.  Parties should be prepared to present to the court at trial all other documents requested by the court relating to their debts and assets.  The party presenting documents in court must also have enough copies for distribution to all parties, including the judge.

All witnesses must appear in person in court at the time of trial.  They can either appear voluntarily, or parties may force witnesses to appear or bring documents by using a Subpoena form.  If you need more information about how to subpoena individuals to appear or present certain documents in court, see the Subpoena Packet.

At the trial, the parties will be required to simply and clearly explain to the Judge their positions on all of the disputed issues.

Default
If the other party is not present, the court may proceed with a default divorce/legal separation hearing instead of a trial.

After the Divorce/Legal Separation Has Been Granted

Stipulated, Contested, or Default
During the pre-trial or trial, the judge may make decisions on new issues that arise, change decisions on which the two parties had already agreed, or change the petitioner’s proposed orders. Those changes must either be written into the Findings of Fact, Conclusions of Law and Judgment form, or the parties may request a transcript of the hearing from the Court Reporter to attach to the Findings (in the case of a default, the judge may require a transcript be attached).  

The Findings must also be “approved as to form,” which means that the respondent or both joint petitioners must sign to verify that it was completed accurately.  Once the Findings are complete, the original and copies of it must be filed along with the Marital Settlement Agreement or transcript, in the Family Court Office.   If the party appearing at the hearing is unable to obtain the signature of the other party(s) for approval, he/she must file the Findings with a cover letter under the ten-day rule to the judge, with copies of both to the other party(s).  Once submitted, the court will hold the Findings for ten days to give the other party(s) time to object to the accuracy of how the individual completed them.  Once the ten days passes, the judge will review and may sign if approved.

Parties must also complete the Divorce/Annulment Worksheet.  It is recommended that the parties complete these tasks the day the divorce/legal separation is granted; however, the parties do have 30 days from the date the divorce/legal separation is granted. 

Note:  If the parties fail to meet the deadline, they risk having their divorce dismissed and having to start over.

If you need to exchange certain types of property you may be required to follow up with different government offices and business with certain paperwork.  For example, you may need to sign car titles and real estate deed, complete documents to divide pension plans (QDRO), change beneficiaries on life insurance policies, revise your will, and other matters when appropriate.