Under Wisconsin law, a married couple can cooperate to begin a divorce or legal separation by filing a joint petition. With a joint petition, neither spouse has to be served with papers, and neither has to file a response. The parties to the case are referred to as the “Joint-Petitioner Husband” and the “Joint-Petitioner Wife”.
If the parties can’t cooperate to file a joint petition, either one may start a divorce or legal separation by filing a Summons and a Petition with the Clerk of Court, and by having these documents served on their spouse. When a Summons and Petition are used, the parties to the case are referred to as the “Petitioner” and the “Respondent.”
- The Summons and Petition must be served within 90 days after they are filed. “Serving” the documents means that a process server or law enforcement officer gives the documents to the spouse. You cannot serve the documents yourself. An extension for 60 days may be granted, but only under very specific circumstances. If the documents are not served within these time frames, the court does not have jurisdiction over the case and it must be dismissed.
- The spouse could sign an admission of service if he or she is willing to accept the papers without being formally served. Some people are embarrassed by having papers served on them, and the admission of service is one way to avoid this.
- If your break-up is not a friendly one, you may be tempted to try to embarrass the other person by having them served at an inconvenient place and time, but in the long run this is rarely to your advantage, and may end up costing you more money in legal fees by raising the level of conflict in your case.
A person who is served (or who accepts service), must file a written Response to the Petition. They can include a counterclaim. This Response must be filed within 20 days from the date that person is served or accepts service. The original Response is filed with the Clerk of Court, and a copy is sent to the person who started the action or to their attorney. If the Response is not filed, the Court can enter a default judgment after the minimum waiting period has passed.
After the service of the Petition and Summons, or the filing of a Joint Petition, there is a minimum waiting period of 120 days before a final judgment of divorce or legal separation can be granted. During this waiting period, the Wisconsin Statutes create some automatic restrictions on what parties can do. The parties are automatically restricted from:
- Harassing, intimidating, physically abusing or imposing any restraint on the personal liberty of the other party or a minor child of either of the parties.
- Encumbering, concealing, damaging, destroying, transferring or otherwise disposing of property owned by either or both of the parties, without the consent of the other party or an order of the court or family court commissioner, except
- In the usual course of business,
- In order to secure necessities, or
- In order to pay reasonable costs and expenses of the action, including attorney fees.
- Without the consent of the other party or an order from the Court, establishing a residence with a minor child of the parties outside the state or more than 150 miles from the residence of the other party within the state, removing a minor child of the parties from Wisconsin for more than 90 consecutive days or concealing a minor child of the parties from the other party.
These restrictions apply until the action is dismissed, until a final judgment in the action is entered or until the Judge or Family Court Commissioner orders otherwise. Violation of any of these restrictions may result in a finding of contempt, unless the Court decides that:
- the action was taken to protect a party or a minor child of the parties from physical abuse by the other party, and
- that there was no reasonable opportunity under the circumstances for the party to obtain an order authorizing the action.
In addition to the automatic restrictions, during the waiting period either party can ask the Commissioner to make temporary orders to control how things happen until the final divorce hearing. Temporary orders usually deal with child custody, child placement (primary placement and periods of temporary placement), and child support.
Temporary orders may also include orders related to spousal maintenance (alimony), family support, use of the marital residence, use of personal property and payment of debts. No division of property is made at the temporary hearing; only the issue of use is decided.
If there is disagreement as to issues of custody or placement of minor children, the Commissioner may refer the parties to mediation. The first mediation session is free to the parties.
If mediation is unsuccessful, the Commissioner may appoint a Guardian ad Litem to represent the best interests of the children. In Green County, each party is required to pay a $500 deposit to the Guardian ad Litem’s trust account as advance payment of fees. They are also required to provide information and documents to the Guardian ad Litem so he or she can understand what the parties disagree about and how this affects the children. The Guardian ad Litem will investigate the case and file a position statement with the Commissioner and the parties, setting forth what custody and placement the Guardian ad Litem believes is in the best interest of the children.
In any case where there are issues surrounding the children, the Family Court Commissioner will refer the parties to parental education classes to help the parents to learn about the effect the case can have on their children. Attendance at these classes is mandatory. While many people are frustrated by having to go to the classes, the vast majority of those who have completed them feel they were very worthwhile.
If both parties agree on all issues in a divorce action and have provided all of the necessary documentation, the Family Court Commissioner certifies the case as ready for hearing and the Circuit Court Judge assigned to the case holds a final hearing. If the parties don’t agree on all issues, or if one party does not cooperate in the action, the Family Court Commissioner does a “scheduling order”, which sets deadlines for actions to be taken in preparation for trial, and the final hearing is scheduled to be heard by the Circuit Court Judge.