Under Wisconsin law, a married couple can begin a divorce or legal separation by filing a Summons and Petition or by filing a Joint Petition. When a Summons and Petitioner or Joint Petition is filed it is assigned to a Circuit Court Judge.
If the husband and wife can cooperate, they file a joint petition. When using a joint petition, neither spouse has to be served with papers and neither spouse 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 cannot cooperate to file a joint petition, either one may start a divorce or legal separation by filing a summons and petition with the Clerk of Court and having these documents served on their spouse. The summons and petition must be served within 60 days after they are filed. Serving the documents usually requires that a process server or law enforcement officer serving the documents to the spouse. The spouse can also sign an admission of service if he or she wants to do so. The parties to the case are referred to as the Petitioner and the Respondent.
A person who is served with a summons and petition for divorce or legal separation must file a written response, which may 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 of the Judge or Family Court Commissioner, 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 the state 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 Family Court Commissioner to make temporary orders to control how things happen until the final divorce hearing. Temporary orders usually deal with legal custody and physical placement, child support and health insurance coverage.
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 using the property is decided.
If there is disagreement as to issues of custody or placement of minor children, the Commissioner must refer the parties to mediation. If mediation is unsuccessful, the Judge or Family Court Commissioner may appoint a Guardian ad Litem (GAL) to represent the best interests of the children. Typically, each party is required to pay a $250 deposit to Rock County as advance payment of fees. The Guardian ad Litem will investigate the case and make a recommendation to the court and the parties on the issues of legal custody and physical placement.
Once the 120-day waiting period has expired the judge can grant a divorce or legal separation. If the parties do not have an agreement, the judge will schedule the matter for a pre-trial conference. At the conference the judge will schedule the final divorce trial. At the trial the parties will have to present all the information needed for the judge to decide all the issues. If the parties have reached an agreement on all the issues, the judge will schedule the matter for a stipulated divorce.
Once the judge has granted the divorce, the petitioner must submit Findings of Fact, Conclusions of Law and Judgment of Divorce for the judge to sign.