Divorce Procedure

What follows is a very brief and general discussion. Divorce law is complex and the following information is not complete and is no substitute for consultation with an experienced divorce attorney.

Filing a summons and petition commences divorce actions. This can be done by one person filing alone or with both parties filing a joint petition for divorce. Wisconsin is a “no-fault” divorce state. That means that neither party has to allege that there has been misconduct on the part of the other in order to obtain a divorce.

In order to file for divorce, one party must reside for at least 30 days in the county where the divorce is sought and one party must be a Wisconsin resident for six months. If one party starts the divorce by filing a petition, the other party, designated as the respondent, must be served with an authenticated copy of the summons and petition within 90 days. Usually, that means that someone has to physically hand the documents to the served party. If the parties are not on bad terms, the respondent may be willing to waive personal service and sign an acknowledgment of service that can be filed with the court. Sometimes the court will grant a 60-day extension of the time to serve the respondent under certain circumstances.

In most cases, the petitioner files a request for a temporary order with the petition for divorce. At the temporary order hearing, the court will enter an order determining what actions the party must take while the case is pending. The order will address issues such as custody and placement of children, use of the marital home, who uses any vehicles the parties own or lease, who pays for the debts and obligations of the parties, who gets the use of specific property and whether one party will pay child support or maintenance  (previously called alimony) to the other. In Dane County, a Family Court Commissioner will conduct the temporary order hearing and enter the temporary order. If either side is dissatisfied with the order, that party may request a review by the circuit court who will make a new, independent decision regarding the terms of the temporary order. After the time limit for requesting review by the circuit court, a party may request that a temporary order entered be modified under certain circumstances.

By statute a divorce may not be granted until a minimum of 120 days has passed since service of the summons and petition. During that time period, the parties will engage in the discovery process. Discovery consists of gathering the information necessary for the parties and the court to address all the issues that must be resolved in a divorce.

In most cases, the parties will come to a settlement agreement that disposes of all the issues. In those cases, the parties will present the marital settlement agreement document to the court and request that the court adopt the terms of the agreement in the divorce decree. In some cases the parties cannot agree on all the issues but can resolve some of the issues through a partial marital settlement agreement. Any remaining unresolved issues are presented to the court for a decision on the issues at or after trial. Reaching an agreement on any or all the issues is usually the best outcome in a divorce. Reaching an agreement can save the parties a considerable amount of money, resolve the divorce more quickly and save the parties from unnecessary emotional strain. That can be especially important when the parties have children.

An agreement does not mean that one party will get everything that they want. It will usually represent a compromise. At least one judge has described it as a deal that you may not be happy with, but that you can live with.

At the conclusion of a divorce hearing the petitioners’ attorney is usually called upon to draft the final documents for the court. Additional steps are usually necessary after the parties are divorced in order to put into effect the parties’ agreement or the courts’ order. The most common steps to be taken involve division of property and continuation of insurance.

After the parties are divorced, neither party may marry for a period of six months.