Alternative Dispute Resolution (ADR)
Child Custody In Wisconsin
Wisconsin Child Support
Asset and Debt Division
- ADR Available: Yes
- Fault or No Fault: No Fault
- Parenting Plan Required: Yes
- Property Distribution: Community
Grounds For Divorce
In Wisconsin, no-fault laws apply to couples filing for divorce. This means it is not necessary to prove a spouse’s behavior is the reason for the demise of the partnership. On the paperwork for divorce, the official ground is that the relationship is “irretrievably broken.”
The Types Of Divorce
The type of divorce that is filed will depend on whether or not spouses agree on all matters. There are two types of divorce in the Wisconsin court system:
- Joint Petition – In this type, the petitioner and the respondent agree on property division, custody arrangements and alimony, among other aspects.
- Contested Petition – When only one spouse wants the divorce, or issues are not agreed upon, a contested petition is the format that needs to be filed with the court.
When one party doesn’t want the divorce and has no interest in participating in the legal process, a default proceeding may be necessary. In a default divorce, the filing spouse will be awarded all of the terms that were originally requested in the petition.
Divorce Waiting Period
There is a 120-day waiting period from the time the divorce is filed to when a decree can be finalized. One of the parties must have been a resident of the state six months prior and also have lived in the respective county for 30 days before filing.
Wisconsin courts use alternative dispute resolution as a method to help couples reach consensus on divorce issues. In ADR, the goal is to avoid a lengthy court process, which will typically save time and money. In this approach a mediator can help to promote effective communication between the spouses, explore options to resolve differences and facilitate solutions that work for the family involved. Some of the common types of Wisconsin ADR are:
- Arbitration – A neutral third party, often a judge, will listen to both sides and then decide on the outcome. Spouses have the option of having legally binding results or can participate in ADR that ends in only a recommendation. In nonbinding ADR, a court trial is often needed.
- Mediation – In mediation, a neutral third party will help spouses communicate in a productive manner to achieve agreements on divorce issues.
- Collaborative Divorce – When a couple chooses a collaborative process, each party enlists his or her own attorney. Both parties must agree to avoid a trial and, if the collaborative format doesn’t work, each spouse must start again with different legal representation.
When a partnership is over, a divorce is not the only option. The path that is chosen will depend on the circumstances of each situation and the goals of the parties involved. Although more uncommon, an annulment can be filed to end a marriage. A legal separation may serve the needs of some couples better than a divorce can.
In Wisconsin, the residency requirements are the same for a legal separation as for a divorce – six months of residency in the state and 30 days in the county in which the petition is filed. Although divorce-related issues like child custody and property allocation are settled in a legal separation, the parties remain married. This might be a good option for those not wanting to end the marriage for religious, financial or personal reasons.
If spouses are interested in reconciling the marriage, they may do so at any time while being legally separated. However, if the relationship remains broken and only one spouse wants a divorce while in a legal separation, the waiting period is one full year from the time the petition to separate was filed.
An annulment is a possible way to way to end a marriage; however, Wisconsin courts have limited grounds to be eligible for this action. Some of the common conditions that allow for an annulled marriage are:
- A person was lacking in capacity to consent to the marriage due to mental illness, age, drugs or alcohol.
- A person was forced into marriage.
- A person committed fraud.
- A person was lacking in physical capacity and unable to have sexual intercourse.
- In instances of incest or bigamy, a Wisconsin marriage is never legal and, therefore, treated as a “voided” union. In seeking an annulment, it’s important to be aware that in some cases, a petition has to be filed within one year of obtaining knowledge of a condition or incapacity.
Child Custody Determinations
The court system in Wisconsin starts with the assumption that having both parents in the lives of the children is the best outcome. If a parent is not a good influence on a child, however, due to illegal drug use or another behavior, custody will be denied. Because children are affected by a divorce, the courts require a parenting plan to be filed when ending a marriage.
A parenting agreement will address specific issues, such as how the children will share time with each caregiver and living arrangements. Other parts to the plan address religious affiliations of children, childcare and expenses not covered by support payments.
There are four possible custody arrangements in a Wisconsin divorce, including:
- Legal sole custody
- Legal joint custody
- Physical sole custody
- Physical joint custody
Legal custody is defined as the right to make important life decisions regarding children, such as where they attend school and the type of medical care they receive. Physical custody, or residential custody, refers to where children live.
Visitation, or parenting time, is granted to the noncustodial parent and generally works on a specific schedule. When parents know in advance what days each person will have the children, it can make the process clearer and easier for the whole family. A flexible visitation schedule requires that parents have a solid working relationship and productive communication.
The court’s position is parents should be able to raise their children as they choose and without outside interference. The only way in which grandparents can gain rights over their grandchildren is when a parent is proven to be unfit to the court. Situations that involve the death of a parent or another significant family event may give grandparents a stronger case to seek visitation.
Child support is treated on a case-by-case basis and factors in the gross income of each parent and the number of children. While a basic formula calculates child support for sole custody situations, a different mathematical method is used in joint caregiving cases. In Wisconsin, if you make $84,000 per year or more, a special child support calculator is used.
The court has discretion in the amount a parent will pay and can lower or increase the payments as needed. Some of the factors that will contribute to determining child support are:
- The cost of health care premiums for the children
- Travel expenses to see children when parents live in different states
- Other child-related costs
Child Support Enforcement
Enforcement measures are in place on a state and federal level to protect the interests of children. When a parent falls behind on support payments, or stops contributing altogether, he or she will face serious consequences. Individuals that are delinquent on child support may be subject to:
- Passport denial
- Revocation of driver’s, professional and recreational licenses
- Property liens
- Credit agency reporting
- Bank account levees
- Income withholding
Establishing paternity of children is important for several reasons, particularly as it gives allows for financial support for dependents. Once paternity is determined, important medical history becomes known, and this information can be used to properly diagnose and treat children in life-threatening situations. Establishing paternity can also be important toward obtaining life insurance and medical benefits for the children.
Having the emotional support of two parents can enable children to have more stability in life. Paternity can give fathers certain privileges, such as allowing them to provide input on significant matters concerning their children.
Property division among spouses can lead to frustration. Wisconsin property allocation is governed under community laws. This means that anything that was accumulated in the marriage belongs to both parties. Upon a divorce, the Wisconsin courts will work to divide assets and debts between spouses in equal halves. There are some exceptions to this rule, including:
- If a prenuptial agreement is in place
- If the debt is a school loan
- If the property was owned before the marriage
- If the property was a gift or an inheritance
Division Of Property
Dividing property can be complicated when separate property has been mixed with community items. In circumstances such as this, the court will want to see proof that establishes the true owner of the property. If separate property becomes commingled in community assets, proper evidence needs to be supplied to the court or the item will likely be divided between both parties. Some of the assets and debts that are typically divided include:
- Property and business investments
- Household items including furniture and clothing
- Automobiles, boats and planes
- Retirement assets
- Stocks, bonds, 401(k)s and similar accounts
- Collectibles items such as baseball cards and artwork
- Bank accounts, stocks and bonds
- Credit card debt and loans
In the case of debts accrued from gambling or illegal drug use, the court often labels this type of spending as an unreasonable liability and therefore not shared by both parties; however, this is not always the case as the court can rule either way. It’s important to seek the advice of an experienced divorce lawyer before starting the process to end a marriage.
Alimony, or spousal support, refers to providing income to a former partner after a marriage is over or the couple has legally separated. Spousal support is awarded, for example, when an individual will have a hard being financially independent after a marriage because he or she stayed home to care for the children. The court has a great deal of discretion in alimony rulings and assesses many factors, such as:
- The length of the marriage
- The age, physical well-being and emotional health of each party
- The property division outcome
- The educational level of each party
- The earning capacity of each spouse
- The time required for a divorcing spouse to become financially sufficient without the help of the other person
Prenuptial and Postnuptial Agreements
A divorce can create financial instability. Prenuptial and postnuptial agreements often safeguard the interests of spouses in the event a marriage ends. Despite what many may think, a prenuptial or postnuptial agreement is not just for those with a mass of wealth and real estate. Both agreements are planning tools for those with property or children from other relationships.
When a divorce is officially granted and life moves forward, sometimes-significant changes happen that can affect previously constructed settlements. Some of the modifications may involve the amount of alimony or child support payments to which an individual is obligated. If a parent has to relocate for an employment opportunity, child custody or visitation could be affected and require a modification. Other instances that could change previously arranged contracts include:
- Loss of employment
- A debilitating injury