Defining Wisconsin Legal Separation
What is legal separation in Wisconsin? Legal separation, like divorce, is one method for ending a marriage. In Wisconsin, legal separation results in most of the same legal implications as divorce. Like divorce, legal separation ends the legal marital status of the separating couple. In fact, it the same legal process, but "separation" allows you to keep the emotional and psychological aspects of the marriage intact. So, while many people pursue legal separation as an alternative to divorce, for some it serves as a bridge between reconciliation and divorce. A certain amount of hope for a future reunification is typically required , and legal separation is reversible at any time. Like divorce, separation requires either mutual or one-sided consent, although it requires no specific reason. Like divorce, legal separation does not require that people with kids try to live together for six months, although that "reconciliation period" is also required for divorce suits. Although divorce requires the petitioning spouse to live in Wisconsin for six months prior to bringing the action, the residence period is only 30 days for legal separation. Also, a legal separation is only terminable by agreement or on grounds that would justify a decree of divorce.
How Legal Separation Works in Wisconsin
The process of obtaining a legal separation in the state of Wisconsin is similar to that of divorce, but with some differences in terms of documentation and proceedings. The first step is the filing of a summons and petition for legal separation with the court; this should be accompanied by a copy of a family court cover sheet and a summons for minor children, if any exist. Filing fees will need to be paid, which vary by county, and you or your attorney must also prepare a verified witness list with your submission.
After filing, a court date will be set to identify who in the family still lives in the state and who falls under jurisdiction. A child support conference is set to order temporary child support payments and, when appropriate, or a mediation appointment in order to create a temporary parenting plan. The Good Cause hearing for temporary steps takes place after the implementation of temporary orders. When children are not involved, the court will set the legal separation date before the final hearing.
The final hearing is scheduled roughly three weeks after the Good Cause hearing and is generally set several months out in the future. If the judge approves the separation, there is a 120 day period between the time the judge signs the final judgment and the final separation date; if you are looking for divorce, does not apply to you.
Once the separation is finalized, you are free to remarry, but you must wait to obtain your final divorce until 6 months after the "waiting period"; essentially, you are divorcing your spouse a second time. While there is no minimum or maximum waiting period, you should expect anything from hours to days to weeks between the final hearing and final judgment, depending on the judge’s caseload and availability.
Advantages of Legal Separation
There are several potential advantages of choosing legal separation over divorce for a Wisconsin couple. Those advantages are as follows in no particular order of importance.
Spousal maintenance. Couples who are legally separated can agree to terms regarding spousal maintenance. Those terms could remain in effect beyond the FINANCIAL divorce date and continue during a specified period of separation where people reconcile and omit litigation as there is no interest in a "divorce." The spousal maintenance amount may be less than if the couple was divorced.
Health Insurance. Wisconsin law allows a person to stay on their spouse’s health insurance plan for up to 3 years after the couple is legally separated. Health insurance may be extremely affordable or available through an employer. Obviously, it will not be free if you are not married.
Retirement Accounts. One spouse may choose to stay on another spouse’s retirement account or pension plan while they are legally separated in order to accumulate more funds for retirement without having to dip into their own. The spouse accumulating more in his/her retirement could use that amount to offset a claim for spousal maintenance at a later date during financial divorce litigation.
Reconciliation. Judges are allowed to require a couple to stay separated for a period of time after petition filing for the purpose of reconciliation. The meeting and status hearings that the court would hold serve as a counseling appointment of sorts.
Timing. The filing of a petition for legal separation by one spouse buys the time needed for the other spouse to line up finances, employment, insurance, apartment rentals and more before filing for divorce. Conversely, an ambush divorce filing could be devastating on the weaker economically spouse, especially if the lack of cash to secure an attorney is a key issue.
Estate Planning. There are many unintentional consequences of remarriage or divorce. A person does not want their estate, bank accounts and securities accounts to go to a spouse who they do not really want them to inherit. For example, let’s say a former spouse kills their ex-spouse. A divorce would bar the ex-spouse from inheritance. Not so for a legal separation.
Child Support. Absent an agreement, a judge cannot grant child support for a child who has reached the age of majority in Wisconsin. If the payer of future support suffers a sudden decline in income, he/she may be entitled to an adjustment in the amount of child support they are paying. Or, if employment turns more lucrative with increased bonuses and commissions, a separated person can seek a raise in child support. Mediation of this issue is often more palatable than litigation.
Decisions and Rights. A separated person is authorized to make medical and financial decisions for a spouse just as if the couple was still married. For example, if you suffer a heart attack, your spouse will have the ability to have doctors treat you, make medical decisions and sign on your behalf with health care facilities.
Further, you can file tax returns as married persons for the year of separation and the next 2 years. This may provide you with greater tax benefits.
Custody and third party visitation can be ordered prior to a divorce, under certain circumstances. If you think you have a potential child custody issue, legal separation can be the first step in getting this in front of the court for a judicial remedy.
There may be other benefits if certain circumstances apply to you. Consultation with a family law attorney will get you the specific advise that is most relevant to you.
Finances Between Separating Spouses
The legal aspects of your separation will lay the groundwork for your divorce. Information regarding each spouse’s rights to property and how matters like alimony (spousal maintenance) and debts are handled are critical to a fair and equitable settlement.
Assets
Whether you have lots of assets or none at all, it’s important to go through the painstaking process of confirming what "marital" property is owned by both parties. If there is any disagreement on property classification, Wisconsin courts will look to the date of acquisition, the donor (if property is in joint names) and the length of the marriage to determine ownership. During a legal separation in Wisconsin, though it is not a divorce, division of property is handled like a divorce.
Spousal Support (Alimony)
Just like in the case of a divorce, a legal separation can involve spousal support. Generally, when a separated couple decides that they want to get back together, the spousal support order may be revoked. At the end of a legal separation, if the spouses choose to end the marriage, an alimony determination will presumably become final.
Debt
A legal separation covers the debt obligations of the marriage. Agreements can be made about responsibility for debts such as mortgage payments and loans that were taken out by either spouse. Careful attention needs to be paid to how commitments are structured, because if debt is left unresolved, a legally separated spouse may still be held responsible, and that debt could outlive the separation.
The bottom line is that a legal separation can help determine your rights and responsibilities in a marriage that is going off course. You should view the process with a view toward the divorce that typically follows. As such, you should get legal help to make sure your interests are protected.
Legal Separation Agreements Explained
A legal separation agreement in Wisconsin must address a number of critical issues. These include the division of marital property, child custody and placement, and potentially, spousal maintenance (also called "alimony"). These topics are addressed briefly, below.
Divorce and Legal Separation
Similar to a divorce, the marital property division in a legal separation depends on whether the couple can agree to the terms or whether they must have a judicial forum decide such terms. For purposes of a legal separation, the court will divide the couple’s marital property by following the same guidelines used for a divorce. Marital property is defined, under Wis. Stat. Sec. 767.61(2) as follows:
"Marital property" means all property, except property described under s. 766.31, acquired before, during and after the marriage by one or both spouses who are otherwise qualified, but does not include property that is acquired by gift from a third party, or by devise or descent, or is a product of a spouse’s individual labor or sacrifice.
If a divorce is filed, the marital property division would take effect as of the date of the divorce. Sometimes, however, a couple is able to agree to a property division for the time prior to the eventual divorce, and sometimes even through the divorce itself.
Child custody and placement in a divorce or legal separation is generally determined by the best interests of the children. Depending on the circumstances, the parties may wish to enter into a joint legal custody arrangement in which the decision-making authority is split on certain areas of the children’s lives. There may also be a recommendation for sole custody in one parent . Physical placement (sometimes called residence or parenting time), can vary greatly based upon the circumstances of the family. Sometimes, joint placement is best, with the children spending equal time with both parents. On the other hand, physical placement may be more appropriate on a per-night basis, allowing a child to sleep with their mother a few nights per week, and the same with their father.
Generally, either spouse may ask the court for a temporary order regarding child custody and placement at any point during the legal separation proceedings, until the final hearing is held. Temporary orders can be granted at any time throughout the case, including during the pendency of the legal separation action and until the final hearing. Temporary orders are not the same as temporary orders in a divorce action, but the process is similar. Unlike divorce actions, the court can also order child custody and placement in a legal separation action, if the parents are able to reach an agreement. A temporary order on child custody and placement is not permanent, and either party may ask the court to change its decision at any time throughout the pendency of the separation. The separation, however, is not final unless and until there is a judgment of legal separation.
Spousal maintenance, in a legal separation agreement, is not mandatory, but not uncommon. There are factors that could affect the award of maintenance. For example, most notably, the duration of the marriage will be taken into account. In a long-term marriage, maintenance is more likely to be awarded. Whether either party needs specific retraining for a particular need or whether either party has been a stay-at-home spouse that would be eligible for some maintenance.
Representation and Resources
For those considering legal separation in Wisconsin, having reliable legal representation is essential. The complexities of a legal separation agreement encompass not only the division of assets and debts, but also child custody and parenting plan matters. Because legal separation may have implications for taxation, credit, and estate planning, individuals need to ensure their agreement is in their best interests to protect their financial future.
A family law attorney with experience in advising clients on legal separation understands the process. They will help you understand the specific advantages that legal separation may bring to your situation. There are several reasons a spouse may choose to separate rather than divorce. For some, religious beliefs may prevent divorce or create barriers to remarriage. In other cases, spouses need more time apart to evaluate whether they want to move forward with ending their marriage. Separation may provide the necessary space to reduce tension between parties and give them a chance to seek counseling or resolve other issues.
Your attorney will help you to explore the benefits and challenges of separation and then represent your interests during the legal proceedings. A legal separation agreement is necessary for any couple to be legally separated, even if there are no contested issues. A legal separation agreement creates a legally binding contract between the spouses. Your attorney will negotiate the terms of separation on your behalf and prepare the documentation needed for court filings.
Even uncontested legal separations in Wisconsin require the assistance of the family court commissioner. Because the process is so complex, retain an experienced family law attorney who can either assist you directly or match you with a qualified Wisconsin family law attorney.
Pitfalls of Legal Separation
There are several challenges and considerations that a couple should think about now to help them make the decision about whether or not to pursue a legal separation, especially if the couple is considering staying married in order to have the legal benefits of a legal separation. The following are discussions to have now, while in the process of a legal separation, so that you and your spouse can really assess your feelings and decide on what is best for you and your family going forward.
You and your spouse would need to discuss and decide how the information will be divided between you and your spouse and how you will coordinate schedules and information so that nothing is held back. More importantly, you should consider what may happen if, after the legal separation is finalized, you are unable or unwilling to provide the information requested by the other party in order for them to get a loan, a mortgage etc.
Even though you are legally separated and are not pursuing a divorce at this point, you should be mindful of how it appears to others especially financial institutions, landlords, etc. A legal separation cannot be used as a waiting period for a divorce because a legal separation is not predicated on any legal grounds that would allow a court to grant a divorce (only a divorce can under certain circumstances such as a 120 days refusal to reconcile). Therefore, you should be mindful of how it appears to others while you are legally separated. It is also important that you decide together what status you want your mortgage company, landlord etc. to be aware of during the legal separation proceeding and thereafter.
This is one of the most important questions to consider before deciding to pursue a legal separation . Until the legal separation is filed with the courts, you and your spouse can represent yourselves so long as there are no minor children. However, the moment the petition is filed, both spouses need to obtain representation. Both parties must also have representation at the final hearing unless there is a specific exception that allows the court the ability to waive that requirement. This is the most important reason to evaluate as early as possible the decision whether or not pursue representation or try to resolve the case without representation, making sure that you understand now that once the petition is filed, representation is mandatory if you want to move forward with the separation.
It is important to note that from the moment the petition is filed, you and your spouse are legally separated. There are many steps and documents to complete in the legal separation process, but every step beyond filing the petition takes a court filing fee. If you are sure that you are going to end up pursuing a divorce and that you no longer want to be married to each other, and therefore filing the petition for legal separation is not critical simply to allowing the parties to separate, then it is worth discussing the circumstances where you might want to wait to file the petition until right before the 120 days has run, at which point both parties can agree to have the legal separation converted into a divorce.
This issue is more complex than it sounds because if you are sure that you are going to move forward with a divorce, then you may find that some things you did or agreed to do while you were legally separated are not applicable or agreed to now that you know you are going to divorce.