Legal Separation and Divorce in Wisconsin
Separation and divorce are both legal options in Wisconsin when marriage has become unsustainable. A legal separation sets forth both parties’ rights and responsibilities, and is legally recognized so long as the conditions set forth in the decree are followed. Unlike divorce, it does not terminate a marriage.
In Wisconsin, legal separation may be pursued for any reason, or for no reason at all. An action for legal separation must be filed with the same documents as a divorce filing, in the same county as the residency county requirement for divorce. The residency requirement for separation is identical to divorce, requiring that one party reside in Wisconsin for at least the past six months, or that an action be filed in a different county if necessary.
When a legal separation action is filed, the petitioner is requesting the court to determine the terms of the parties’ relationship going forward, including provisions for payment of debts, division of assets, custody and support of children, and insurance coverage . The court may allow the couple to live apart but access medical insurance plans as a family, accumulate property, file income taxes jointly and stay automatically eligible for Medicare.
An action for legal separation in is substantively similar to divorce. Unlike divorce, however, a legal separation does not sever marital ties and return the parties to single status. It is more of issuance of a judicially manageable state of living apart than an end to a marriage. Because a legal separation does not affect marital status, health care benefits continue, estate planning provisions are not necessarily triggered, and assets are not necessarily treated as divided.
Divorce in Wisconsin terminates marital status and generally terminates any rights that would stem from a marital relationship. It is a much more final action than separation. Divorce divides property, creates future obligations like alimony and child support, and returns spouses to their status as legal strangers. In short, a divorce irreversibly will impact a person’s life and circumstances. Separation is far more likely to be temporary, and provides the opportunity for reconciliation.
Separation Versus Divorce and Legal Process
The initial step in pursuing either a legal separation or divorce is the filing of documents with the court. For married couples, the legal process begins by filing a Petition and Summons for Legal Separation. Once filed, your spouse will be notified through a service of process. Although there are several options to formally notify your spouse of the pending action, the primary methods are personal service and mail service. If service is completed by mail, the receiving spouse must file a Response in 60 days (if within the state) or 90 days (if outside the state) from the date of service. If your spouse signs the Waiver of Personal Service and then files a Response, you may avoid having to appear in court. In most circumstances where a spouse admits to serving the other spouse with divorce papers, the case is typically considered uncontested. This means that the terms of the Separation Agreement are accepted by both parties and the process goes smoothly. If your spouse does not file a Response, you may ask the court for a default judgment. If granted, this means the action will proceed as requested. A default judgment will materialize after a court hearing if your spouse fails to respond in a timely manner. If the non-responding spouse does show up at the hearing, they will usually be asked to sign a Waiver of Personal Service, which will then allow the matter to go forward. If there is a response, you and your spouse will be given a Conference or Scheduling Order Hearing so each party can list their grievances. If you are not satisfied with the proposed terms from this meeting, the court may schedule a Pretrial Hearing. A Family Court Commissioner will preside, and both parties will have an opportunity to present facts concerning the matter. The commissioner will then make a recommendation, which will allow your legal separation proceeding to move forward to a Trial Date.
Money Matters
Financially, both divorce and legal separation have distinct implications. As both methods divide the couple’s assets, it is more common to see people apply for a legal separation on an interim basis, even though they plan to turn that into a divorce. A court order outlines the division of assets, debts, and maintenance support for either a legal separation or divorce. The most significant difference in this division is the legal separation can be modified before it is turned into a divorce.
In Wisconsin, a divorce or legal separation will see the division of property, which includes both financial assets (e.g., bank accounts, retirement savings) and physical property (e.g., real estate, cars). The property will be divided because both divorce and legal separation are no-fault actions. Thus, the actions are not based on the behavior of one spouse. The distribution is based instead on the economic status of the family and other circumstances. Wisconsin courts will usually divide property on an even 50-50 basis, but there are exceptions to this general rule, such as in cases of marital misconduct that disadvantages either of the spouses.
Marital misconduct by either spouse can influence the judge in deciding custody of the children, asset division, and whether spousal maintenance support is necessary. Because marital misconduct is a no-fault action, the judge is only looking for the potential negative impact of the offending spouse on the children.
The judge can deviate from the equitable distribution if ordering a legal separation or divorce would be unfair to either spouse. For example, one spouse is entitled to a larger share of the property due to his or her superior health care costs.
Debts are divided up in the same manner as the assets, as a no-fault action. Again, the judge can deviate from the law if one spouse is unable to work, before or after the final divorce judgment, due to factors beyond his or her control. Other contributing factors include a significant time spent outside the home or health considerations.
Home equity allows the property owners to get cash for a portion of the home’s value. Home equity is usually part of the division of properties in a divorce or legal separation. Courts will divide between 50 and 60 percent between both spouses.
Likewise, tax returns are also evaluated during a divorce or legal separation. If the tax returns are high or low, the court may award the tax returns in their entirety. Courts will examine both the income and the expenses of the marriage.
One of the more popular alimony models is considering how much money the economically disadvantaged spouse sacrificed during the marriage. Basically, the judge orders maintenance payments for a significant period of time or until the economically disadvantaged spouse can re-enter the workforce.
In Wisconsin, support can be ordered as either maintenance support (alimony) or family support (like alimony but includes child support) payments. Courts will also consider what the spouses were used to during the marriage when deciding whether to award support. In many situations, women do not re-enter the workforce until they reach the age of 55. The parties’ combined monthly income can also impact maintenance support awards.
Impact on Your Children and Child Custody
Both legal separation and divorce can have significant implications for children, particularly regarding child custody, child support, and parenting plans. In Wisconsin, a court will always make custody and placement determinations based on the best interests of the child. Therefore, it is essential to work with an experienced divorce or family law attorney to devise an agreement or a strategy that minimizes the impact on your children, while still protecting your own rights and interests.
Custody and placement
In Wisconsin, there are two types of child custody:
The court will determine whether sole or joint custody is most appropriate based on what is in the child’s best interests. Generally, courts will favor joint custody as long as both parents agree to it and have been able to communicate effectively since the child’s birth regarding the child’s welfare. If there has been domestic abuse or child abuse, then the court may award sole custody to the non-abusive parent.
When it comes to placement, the court can award either sole or joint placement. Joint legal custody can be awarded when the parties can get along reasonably well and are committed to being involved in the child’s everyday life. If there is evidence of abuse, neglect, or general problems between the parents, the court may award just one parent physical placement of the children. Much like custody, courts will tend to favor liberal placement opportunities for both parents, and the following factors will be considered:
Child support
The court will also determine the amount of child support that is appropriate in a legal separation or divorce. In general, child support is established based on the "Percentage of Income" standard. Under this standard, the non-custodial parent must pay 17 percent of his or her gross monthly income for a one-child support order. This percentage increases for each additional child. However, the court also has discretion to decrease child support if it would be in the child’s best interests. Therefore, a child support order may allow for some deviation from the formula if the circumstances warrant it.
Of course, the court may also use the "Shared-Placement Percentage Formula" when determining child support. Shared-placement determination applies when both parents have at least 25 percent of their physical placement per year. Under this formula, the parents share financial responsibility as follows:
While legal separation may not involve​ specific child support requirements, it might involve a parent providing temporary child support to another, depending on the situation and circumstances of the separation.
Pros and Cons of Either Separation or Divorce
When choosing a marital status, there are both pros and cons to consider. The decision to obtain a legal separation instead of a divorce is based on both emotional and practical factors. Here are some pros and cons of each.
Legal Separation
Having a legal separation means you are still married, but have a court judgment confirming that the separation is valid. You and your spouse have the same rights and responsibilities as filing for divorce, such as custody, child support, spousal support, debt division and property division. Health care benefits can remain in place. Without divorce, there is no requirement for a waiting period between separation and divorce.
Pros
Federal tax treatment: Filing taxes as married and earning a joint credit toward Social Security is still an option.
Health care: Health insurance benefits are often based on marital status. Until you are legally divorced, you remain on your spouse’s health insurance plan. You may be covered under your employer’s plan.
Estate planning: You will maintain your legal status in estate plans as a spouse, unless changed by will, trust, retirement plan or health care proxy.
Cons
Maintenance is an issue: If you are the dependent spouse with few assets or future earnings, you may be denied maintenance. Even though you are in a gray divorce , you may not be able to obtain an award of maintenance from the court.
The marriage still exists: The decision to file for divorce is filled with emotional upheaval. You still have many of the same responsibilities as if a marriage still existed, including comfort, love and support.
Guilt: In some circles, divorce is still considered to be an immoral act. A separation may garner the same reproach. Will a legal separation somehow impact your spiritual life, or cause you problems in your local social network?
Divorce
A final divorce agreement has the same legal authority as a legal separation agreement. Your decision to move forward with a divorce will impact your tax rate, status of health insurance and health savings accounts, plaintiff status in lawsuit filings, and debt responsibility.
Pros
Financial assets: Hidden financial assets are not an issue, which could be better for you from a purely financial point of view.
Emotional closure: There is a definitive end to the marriage. Separations can go on for years, sometimes indefinitely. Untangling the details of your financial and legal status takes much longer with a separation than a divorce.
Cons
Financial impacts: More money goes to lawyers because there is no final agreement. Petty arguments can continue for years.
Estates: Separation becomes a factor in estate planning, even after the divorce, especially if you reunite.
Debunking Common Legal Separation and Divorce Myths
Legal separation is not the same as a divorce, but many people make that assumption. Maybe it is because of the phrase "what’s in a name," but the reality is that there are some very important differences between the two concepts that you should be aware of. One of the biggest misconceptions with legal separation is that it is for people whose marriages are just barely hanging on. There are people who think that getting a legal separation will give them time to save their marriage. Legal separation is not a way to save a marriage. It is a way to preserve certain legal rights that are available to persons who are married but who are living separately. If you want to save your marriage, you should do so outside of a legal separation agreement.
Another misconception is that legal separation in Wisconsin is very similar to legal separation in other states. While there are other states where legal separation fills a gap between divorce and marriage, the situation is entirely different in Wisconsin. In Wisconsin, legal separation is only recognized after you have filed a legal separation action with the Court. It has specific requirements, and those requirements are informed by the law that governs divorce in Wisconsin.
Some people think that with a legal separation you can still be covered under your spouse’s health insurance plan. Given changes to the law, it is generally true that if you are not on a person’s health plan at the time of a break-up, there are no further obligations to provide for the person’s health coverage. However, pursuant to the Affordable Care Act, you can remain on a person’s policy until the end of the calendar year during which the separation or divorce has occurred. In other words, even if a person enters into a legal separation agreement with a spouse, the spouse generally has obligations to provide health coverage to the other spouse if the other spouse is covered under their policy on the date the legal separation is filed. The person has to be removed from the policy by the end of that calendar year.
You do not get a legal separation just by filing papers with the Court. You have to go through all of the steps and time frames required in order to have an actual legal separation. There is no "automatic" legal separation, and the legal separation does not happen just because one person filed papers with the Court. There is at least a 120 day waiting period before you have a legal separation, and it can take longer than that if the person files a response to the separation action.
Many people think that the person who files the legal separation is the "aggressor," or otherwise "at fault" for the break. That is not necessarily true. Many people file legal separations for reasons having nothing to do with the actions of a spouse. Sometimes legal separation is the best option.
Choosing the Right Path for You
When considering the differences between legal separation and divorce, it’s important for individuals or couples to determine what is best for their unique circumstances. While every situation is different and must be examined on a case-by-case basis, understanding some basic guidelines can help. For couples without children and no financial complications, legal separation can often be a good alternative to divorce. In many cases, couples can remain legally married so they can continue to share health insurance policies and Social Security benefits, for example. It also allows each spouse to identify themselves as married for the purpose of taxes, and since most individuals do not need court approval to return to their homes or their spouse’s home, the legal separation process may be more straightforward than divorce. On the other hand, the potential cons of pursuing legal separation include: – Limited enforcement powers: Parents more easily ignore a legal separation agreement because they are not required to go through the court to make changes or to enforce the separation terms. – The process for dissolution of marriage is lengthier for those who have undergone legal separation . This is because the same issues as divorce have to be resolved in court if the couple wants to dissolve their marriage. – You cannot remarry unless you obtain a divorce. A common reason couples seek out legal separation is to make a period apart from one another while determining whether they want to move forward with a full divorce. When both spouses have determined they want to proceed with a divorce, however, they have to go through the lengthy legal separation process to obtain a legal dissolution rather than go through a simple divorce. Ultimately, individuals or couples who are trying to determine whether legal separation or divorce is right for them will want to speak with an attorney about the differences between the processes. In many cases, individuals may want to consult with a therapist to begin working through any deeper-seated issues affecting their marriage. Legal separation can often be the best path for those couples who are hesitant to move forward with an actual divorce. If you’re thinking about moving forward with either of these options, contact our firm for guidance in your case.