Overview of Divorce Laws in Wisconsin
At its core, divorce is a legal process.
So, it’s critical to understand the divorce laws and how they apply to your situation.
This guide addresses some of the most common legal issues that people face when getting a divorce in Wisconsin.
Let’s jump in…
- Equitable Distribution & Asset Division
- Spousal Support & Child Support
- Child Custody & Visitation
- Divorce Process
- Other Divorce Issues
Equitable Distribution & Asset Division
Marital Property and Division of Assets in Wisconsin
Wisconsin is an equitable division state which means property is divided fairly and equitably, but necessarily equally. Before it can be divided, property must either be classified as marital or separate.
Separate property can include inheritances left to one spouse, any real or personal property acquired before the marriage, certain kinds of passive income, any property acquired after a legal separation, any property excluded by a pre- or post-nuptial agreement, and any gifts that are clearly proven to be given to only one spouse.
According to state laws, the court must consider the following factors when ruling on a division of property:
- the duration of the marriage
- the property brought to the marriage by each party
- whether one of the parties has substantial assets not subject to division by the court
- the contribution of each party to the marriage, giving appropriate economic value to each party’s contribution in homemaking and child care services
- the age and physical and emotional health of the parties
- the contribution by one party to the education, training or increased earning power of the other
- the earning capacity of each party
- the desirability of awarding the family home or the right to live therein for a reasonable period to the party having physical placement for the greater period of time
- the amount and duration of an order granting maintenance payments to either party, any order for periodic family support payments and whether the property division is in lieu of such payments
- other economic circumstances of each party, including pension benefits, vested or unvested, and future interests
- the tax consequences to each party
- any written agreement made by the parties before or during the marriage concerning any arrangement for property distribution
- such other factors as the court may in each individual case determine to be relevant
Businesses are also considered marital property, but may be difficult to divide, although still subject to equitable distribution. In cases such as this, it may be possible to award the business to the spouse who is more involved in the business and make up the difference with other marital property going to the other spouse.
Some asset values are easy to determine such as bank accounts or stocks and bonds. Other asset valuations may be more difficult, and it might be necessary to retain an expert to help place the appropriate value on one or more assets.
Read More: Who Gets the House in a Divorce?
All debts incurred during a marriage are presumed to be shared debts and both spouses can be held liable for them, regardless of whose name is actually on the debt.
Because Wisconsin is a community property state, all marital property acquired during the marriage will be divided evenly in a divorce, legal separation or an annulment.
However, property inherited by each spouse or a gift given exclusively to one spouse or the other is excluded from community property division laws.
Inherited property given to one spouse or the other is exempt from a division of assets in Wisconsin.
However, if the inheritance is commingled with marital assets, it can be considered marital property and subject to equal property division laws in the state.
Pensions, IRAs, 401Ks and Retirement Plans
All pensions, IRAs, 401Ks and retirement plans are treated as marital property in Wisconsin. This means that they must be divided equally but it may be possible to keep the entire amount of your pension in exchange for giving up the rights to other assets, such as a home.
Legally splitting pensions and other retirement funds is a multiple step process. After the divorce decree or dissolution of marriage has been issued, an attorney or a specialized firm must create a qualified domestic relations order, more commonly referred to as a QDRO.
The QDRO must be approved by the courts and then it can be submitted to the plan administrator who must also approve it. This establishes that a spouse can be considered an alternate payee, and the retirement vehicle is then divided according to the specifics contained in the QDRO.
Wisconsin courts recognize separate property that belongs to only one spouse. It is not subject to a division of assets as long as it is not commingled with marital assets.
Separate property is defined as assets that were owned or acquired before a marriage, inheritances and gifts made exclusively to one spouse only.
To prove that an asset is a non-marital asset, it is best to have written documentation to substantiate a claim. With only oral testimony to go on as evidence, a final decision will rest with a judge.
Spousal Support and Child Support
Spousal Support in Wisconsin
Alimony is officially referred to as spousal support in Wisconsin. It is a payment from one spouse to the other as a means of lessening the impacts of divorce on a financially dependent spouse.
In some instances, spouses can work out spousal support agreements on their own, determining the amount of length of such payments and then formalizing them in a marital settlement agreement. But when couples can’t agree, courts will step in and make the determination instead.
In cases where children are involved, spousal support and child support may be rolled into a single payment known as family support.
Several factors will determine if a spouse should be awarded support or not. These factors include:
- The income of both spouses
- The relative earning abilities of both spouses
- The ages and the physical, mental, and emotional conditions of the spouses
- Retirement benefits
- The duration of the marriage
- Financial agreements made before or during the marriage
- Is one spouse going to have trouble working because that party will be custodian of a minor child of the marriage
- The standard of living established during the marriage
- The extent of education of both spouses
- The assets and liabilities of both spouses
- The contribution of each spouse to the education, training, or earning ability of the other party, including, but not limited to, any party’s contribution to the acquisition of a professional degree of the other party
- The time and expense necessary for requesting spouse to acquire education, training or job experience so he/she will be qualified to obtain appropriate employment, proved the education, training, or job experience, and employment is actually sought
- The tax consequences for each spouse in an award of spousal support
- The lost income production capacity of either spouse that resulted from his/her marital responsibilities
- Any other factor that the court expressly finds to be relevant and equitable
Child Support in Wisconsin
Wisconsin uses child support guidelines to set the amount of payments required to care for children in a divorce. Payments are set based on the Percentage of Income Standard which considers the income of the parent, how much time a child spends with each parent and if the parent is supporting other children.
The standard percentage of income guideline in Wisconsin for child support is:
- 17% of income for 1 child
- 25% of income for 2 children
- 29% of income for 3 children
- 31% of income for 4 children
- 34% of income for 5 or more children
Wisconsin courts can determine a different child support amount based on the circumstances of the case at the discretion of the judge.
These factors can include:
- special or unusual needs of a child
- obligations for other minor or handicapped children
- other court-ordered payments
- extended visitation or extraordinary costs for visitation
- disparity in income between the parents’ households
- benefits that either parent receives from remarriage or sharing living expenses with others
- the amount of taxes paid by a parent
- significant contributions from a parent [including lessons, sports equipment, or clothing]
- the financial resources and earning capacity of the child
- the standard of living and circumstances of each parent and the standard of living the child would have enjoyed if the marriage had not been dissolved
- the physical and emotional conditions and needs of the child
- the medical and educational needs of the child
- the need and capacity of the child for an education and the educational opportunities of the child
- the age of the child
- the earning ability of each parent
- the responsibility of each parent for the support of others
- the value of services contributed by the custodial parent
- any other relevant factor.
In addition to paying monthly child support, both parents will be responsible for other expenses such as healthcare, childcare, education and other related expenses that may not take place every month.
Child Custody and Visitation
Child Custody in Wisconsin
Wisconsin courts follow guidelines laid out in the Uniform Child Custody Jurisdiction and Enforcement Act when it comes to determining child custody issues.
In all cases, decisions will be made based on the best interests of any children involved in a divorce.
In most cases, courts prefer that parents work out a suitable arrangement that involves both by creating a parenting plan, but when this does not happen, the courts will step in and make decisions for them.
Custody is dictated by determining who has legal custody and who has physical custody. By law, the court is not permitted to favor one parent over the other because of gender.
Legal custody means that a parent has the right to make important decisions about how the child is raised and cared for, including religious upbringing, medical care and other similar issues.
A judge may choose to grant joint legal custody and when this happens both parents make these kinds of decisions for the child together. If the judge grants sole legal custody to one parent, then that parent is the only one responsible for making important life decisions for the child.
Physical custody defines which parent the child lives with. This dictates who is responsible for the day-to-day physical care and supervision of a child.
A judge may choose to grant joint physical custody in which case the child will live with each parent a specified amount of time. Some issues that may impact how custody is granted can include things such as each parent’s ability to care for the child, mental health of each parent, substance abuse, domestic violence or criminal activity issues.
Because Wisconsin is a no-fault state, substance abuse does not need to be proven for a spouse to file for divorce.
However, substance abuse does play a critical role in child custody issues.
If it can be shown that one spouse abuses drugs or alcohol, this can be introduced as a possible danger to the child and could limit or prevent a parent from having visitation or custody privileges.
Substance abuse also affects a division of assets as well. Marital waste can be claimed when a spouse wastes assets worth $500 or more that would otherwise be a part of the marital property to be divided among the spouses.
Spousal maintenance is also an issue as well, but not as clear cut.
Some courts may rule that a spouse should not be required to provide support to a former spouse who cannot hold down a job due to addiction.
Bifurcation of marital status
Bifurcation means that both parties in a divorce can legally declared as a single person while the other issues in their divorce are still being worked out. It does not affect things such as child custody, visitation, child support, alimony or other contentious issues that may have stalled or become major sticking points that are keeping the divorce from being finalized.
Bifurcation of marital status is allowed in Wisconsin, but courts are generally not in favor of the bifurcation process because it removes incentives to finalize a divorce. This creates a lack of judicial efficiency because courts may have to deal with the same case more than once.
Couples may also want to consider the cost implications as well if they must go through two court proceedings instead of one.
Financial disclosure documents are used to support the division of assets process in Wisconsin.
Disclosures of assets are used to assist in determining how much, if any, spousal support and child support may be ordered by the courts.
Some spouses may attempt to hide assets which is not only unethical, it is also illegal. If a spouse hides or fails to disclose an asset worth more than $500, the court can impose penalties including awarding that asset to the other spouse in its entirety.
When a spouse files a petition for divorce in Wisconsin, the other spouse must file a written Response and Counterclaim with 20 days after being served. If this is not done, the court can enter a default judgment against the spouse without their input.
When a spouse does not respond, they forfeit their right to contest any terms of the divorce, including important issues such as child custody, support, alimony and a division of assets and debts.
Other Divorce Issues
As it is when drug or alcohol abuse are present, domestic violence will have an impact on a divorce in Wisconsin.
This can include physical abuse, emotional abuse, stalking, or any other kind of harassment including those made through phone calls, mail, or social media inflicted on one spouse by the other. However, the most important immediate need when domestic violence is present is to protect the safety of spouses and children who may be at risk or in danger.
A restraining order will prohibit the alleged abuser from committing any additional acts of domestic abuse, order him or her to stay away from the petitioner’s residence and avoid contacting him or her, plus any additional restrictions that might be required to ensure everyone’s safety.
Temporary restraining orders generally last for up to two weeks. During that time, a hearing will be scheduled to determine if a long-term order should be put in place which can be valid for several years.
If domestic violence is present, it can have an impact on child custody and visitation rights. If one parent has a history of domestic violence, the law states that it may not be in the child’s best interests to award custody or visitation rights, or only allow them on a restricted and limited basis.
While a divorce is pending in Wisconsin, spouses do not have the ability to remove a spouse’s name from insurance policies, including home, auto, life and health insurance. Wisconsin courts will generally prevent removals by entering an order that all policies existing at the time the couple files for divorce remain in effect until the divorce is final.
After a divorce is granted, a spouse may no longer remain on the other’s health insurance plan and they must seek out their own healthcare coverage. As part of a settlement, a judge may order one spouse to pay for the other’s health insurance.
A spouse can also apply for COBRA benefits which is a law that protects people from losing health coverage during major life transitions. It allows a person to continue with their spouse’s current coverage for up to 18 months as long as they pay the full premium amount.
However, this can be a very cost prohibitive option since the spouse is required to pay the full premium not underwritten by the employer.
Infidelity and Adultery
Infidelity and adultery take place when a spouse has sex voluntarily with someone other than their spouse while they are still married.
In Wisconsin, when two people commit adultery, they are both guilty of committing a class 1 felony and can be punished with a fine of up to $10,000 and more than 3 years of prison, or both. However, it is rare that adultery is charged in the state.
Adultery may have an impact on child custody. The court will need to decide if this new relationship is in the best interests of the child.
A spouse who does cite adultery will be expected to prove that it took place during the course of the marriage. This proof can come from documents, emails and text messages, or by having someone provide testimony as a witness.
Military Divorces in Wisconsin
Your or your spouse must be either live in Wisconsin or be stationed in the state to meet residence requirements under the laws governing military personnel who are seeking a divorce.
The grounds for a military divorce are the same as they are for a civilian divorce. The no-fault rule applies to military divorces in Wisconsin as well.
Child support and spousal support are determined by state guidelines, but federal law dictates that child and spousal support awards may not exceed 60% of a servicemembers pay and allowances if they are single.
Once paperwork has been filed to begin a divorce, copies must be served on a spouse to give him or her a chance to respond. When that spouse is in the military, they have certain protections afforded to them by the Servicemembers Civil Relief Act.
This allows them to postpone the divorce while they are overseas or otherwise not able to adequately respond to the petition due to military service commitments. The Servicemembers Civil Relief Act eases many legal and financial burdens of military personnel and their families who face the added challenges of active duty.
In addition to Wisconsin property division laws, the federal government also protects military personnel through the Uniformed Services Former Spouses Protection Act that governs how military benefits are calculated when a divorce takes place.
Federal laws will not allow a military members retirement to be distributed to a spouse unless the couple has been married for 10 years or more while the service member was on active duty.
The U.S. government will not recognize a division of a military pension if those terms are not met, but what may happen in Wisconsin is that courts will assign other assets to a spouse that has an equal value to what the military pension may be worth.
Looking for more advice about divorce? Here are a few of our favorite resources:
- 101 Financial Pitfalls of Divorce
- What is a Certified Divorce Financial Analyst? (and why you need one)
- How to Protect and Rebuild Your Credit in a Divorce
- How to Value the House and Split Home Equity in a Divorce