The Divorce Process
Starting the Divorce
Before the divorce can be started, you or your spouse must have lived in the State of Wisconsin for at least six (6) months, and also must have lived in Racine County for at least thirty (30) days. Once this requirement is met, then the action may begin. The filing fee is $184.50; however, if there are children of the marriage or if maintenance is requested, the filing fee is $194.50. Filing fees are subject to change.
The action starts when the summons and petition signed by the person seeking the divorce are filed with the family court and served on the spouse. In divorce actions, the party seeking the divorce is the petitioner, and the other spouse is the respondent.
Service of the summons and petition occurs when someone, usually the sheriff or private process server, delivers the papers to the respondent spouse. This must be done by someone other than the petitioner.
If the papers cannot be served on the respondent personally, then the court may permit the papers to be published in the newspaper.
If both spouses want the divorce, they may complete and each sign the joint petition and they will be referred to as joint petitioners. Service of a summons is not required when a joint petition for divorce is filed because the parties are filing together.
How to Request an Adjournment
Before you can appear at any hearing by telephone, you need to contact the Family Court Commissioner’s Office to request permission in writing. You will need a good reason to appear by telephone. In most cases, parties are expected to be present for their hearings.
If you receive permission to appear by telephone, you will need to provide a phone number that the court can call. Please be available 10 minutes prior to and up to 1 hour past your scheduled time as the courts may be running behind.
Deadlines for Service
- Summons and Petitions – Service must be made within 90 calendar days from the date the documents were filed with the Court. For initial paternity actions, service must be made 30 days before the court hearing.
- Order to Show Cause – Service must be made at least 5 business days before the date of the court hearing.
- Notice of Motion and Motion – Service must be made at least 5 business days before the date of the court hearing, or if by mail, mailed at least 8 business days before the date of the court hearing.
- Petition of Enforce Placement – Service must be made at least 5 business days before the date of the court hearing
First Hearing/Temporary Order
The local rules of the Circuit Court of Racine County provide that in each action affecting the family, parties must appear for a first hearing before the Family Court Commissioner or enter into a stipulation for temporary order. If the parties filing for divorce do not schedule a first hearing, the Family Court Commissioner's office will schedule one.
The first hearing will be held at either the Racine County Courthouse (730 Wisconsin Avenue) or at the Burlington Police Department (224 E Jefferson Street).
Parties must bring completed financial disclosures and a temporary order form to the hearing. The basic information about each party required on the first page of the temporary order form should be filled in by the petitioner prior to the hearing.
Temporary Order Form
The Family Court Commissioner will make temporary orders at the first hearing, including orders regarding custody and placement of any children; payment of child support, family support or maintenance; payment of debt; and use of the marital residence. The result is a written temporary order, which remains in effect until the judgment of divorce is granted or the case is dismissed.
The temporary order restrains the parties from harassing or molesting each other and from interfering with each other's life. The parties are ordered not to sell any property and not to change medical or life insurance coverage during this time. The order also directs the parties not to borrow money or use credit cards during this time.
The parties and their attorneys will each receive a copy of the temporary order and a notice of scheduling conference. The scheduling conference is calendared for 120-days after the date of service or the date of filing of a joint petition.
Preparation for the First Hearing
Both parties must make a full disclosure of all assets owned and debts owed in full or part by either party separately, or by the parties jointly. This includes any assets and debts that may have been acquired prior to the marriage, after any separation of the parties and regardless of whose name they are in.
You may be asked to bring to the attorney's office, and possibly to the first hearing, the following information:
- Wage statements for the previous eight (8) weeks
- Two (2) years income tax returns
- Life insurance policies
- Last bank statements for all accounts—including checking and savings accounts
- Copy of your records for IRA's, CD's, stock certificates, bonds, savings accounts, and any other evidence of the value of your assets
- If you own a home, bring in the last notice from your mortgage company showing balance due, a copy of the deed, and last real estate tax bill
- Any pension information, including any pamphlets or information supplied by the employer
- Latest bills showing balances owed to each creditor, including credit card bills, whether individually or jointly owed
- Total utility costs for the last twelve (12) months.
- If necessary, call gas and electric company and ask what your monthly payment would be on a budget plan
- Interest in any partnerships, limited liability company or corporation; Future interests, whether vested or non-vested
- Any other financial interest or source of income.
You may compile an inventory of your household furniture, equipment, appliances, tools, etc., providing a monetary value for each item. The value should be based upon the fact that the items are now used.
You may be asked to sign and return releases allowing your spouse and/or their attorney to obtain information concerning your pensions, 401(K), profit sharing plans or other retirement benefits, bank and stock accounts and cash values of insurance policies.
Information gathering and organizing is the most essential part of the divorce process. While it may be tedious, the work you do will make it easier for you to understand and participate in the divorce process.
Period of Time Between First Hearing & Scheduling Conference
Between the first hearing and the scheduling conference, the parties live separately under the terms of the temporary order. Child support, family support or maintenance is paid (if ordered), a placement schedule for the children is implemented and the parties begin to lead separate lives. During this time, and while the divorce is pending, the parties may choose to live together and try reconciliation without dismissing the action. This is known as a 90-day suspension.
To enter into a 90-day suspension, you must file a written document which will be prepared by your attorney or is available online at wicourts.gov. It must be signed by both parties and filed with the court.
Once the 90 days has passed, the parties must decide whether they are going to dismiss the divorce or proceed with the action.
- If the parties decide to proceed with the action, then the matter is placed on the court's calendar for further proceedings as if the suspension had not occurred.
- Either party may revoke the 90-day suspension at any time and the action will proceed. A second suspension will only be granted if parents are engaged in counseling. The suspension will not cause the case to exceed one year in duration. If reconciliation occurs, the divorce action can be dismissed.
Scheduling Conference and Final Disclosure
A divorce may not be final until 120-days have passed from the time the respondent in the action was served with the summons and petition, or 120-days from the filing of the joint petition. After the 120-days has passed, the first scheduling conference will take place at the Racine County Courthouse (Racine), or at the Burlington Police Department (Burlington). This scheduling conference determines if one (or both) of the parties wish to proceed with the divorce and if so, to discuss a settlement and schedule further hearings as may be necessary in each case.
If both parties wish to be divorced at this first scheduling conference, a stipulated or default divorce may occur. A stipulated divorce means that there is an agreement on all issues.
If the parties fail to reach an agreement on all issues in their divorce, the matter will be set for trial before the Judge. Only a Circuit Court Judge can enter judgments on actions for legal separation or annulment and divorces where only one party appears (when both parties have previously participated in the divorce) or only one party believes the marriage is irretrievably broken.
Divorces are usually settled by an agreement known as a stipulation or marital settlement agreement. The stipulation contains the agreement of the parties on any child custody, primary placement and periods of placement (formerly known as visitation), child support, division of property, payment of debts, maintenance, and any other matters which relate to the divorce.
If a divorce is settled by a stipulation, the matter can be heard in a very short time after agreement has been reached and the 120-day waiting period has passed. The divorce can be granted either by the Family Court Commissioner or Circuit Court Judge.
Stipulated Final Hearing
The parties have the option of having their divorce completed by a stipulated final hearing. This process is completed before the Family Court Commissioner if all of the following occur:
- Both parties appear in person
- Both parties testify that the marriage is irretrievably broken
- Both parties state that the terms of the marital settlement agreement (or stipulation) are fair and reasonable
- Both parties wish to incorporate the terms of the marital settlement agreement into the judgment of divorce.
The Family Court Commissioner may also conduct the final hearing if one party has never participated in the divorce proceeding.
The marital settlement agreement must be in writing for the matter to be completed before the Family Court Commissioner.
If sole custody of a child(ren) is being awarded to one parent in the agreement, the law requires the parent without custody to disclose their medical and medical history information on a form provided by the court. The court will order that the information must be sent to the child's physician, as designated by the parent who has custody of the child.
If the Family Court Commissioner does not approve an agreement between the parties on material issues, the matter will then be certified to be heard by the Circuit Court Judge.
If neither party has an attorney, the following documents must be filed with the Family Court Commissioner's Office at least 30 days before the stipulated final hearing. Please provide an original and three copies (total of four) of each document.
- Typed marital settlement agreement (stipulation);
- Updated financial disclosure statements;
- DHSS original certificate of divorce or annulment; (only need 1, no copies)
- Completed Findings of Fact, Conclusions of Law and Judgment of Divorce;
- Completed Family Medical History Questionnaire (in sole custody cases only).
At the trial before the Judge, the parties will submit information that the court needs to decide on the case. Things that will be presented and discussed include: property, assets, benefits, etc.
Issues of Property
The evidence presented to the court may include: appraisals of personal property and real estate, statements of income, and valuations of any retirement benefits. Pension and profit sharing accounts must be valued and are subject to division by the court as assets even though they are not available until a future date.
Federal law permits a court to divide the proceeds of a pension or profit-sharing plan between the parties by use of a qualified domestic relations order (QDRO) which provides for a division of pension benefits at the time the pension is received or sooner depending on the terms of the pension or profit sharing plan.
Division of Assets
The assets of the marriage are divided on an equal basis, although a court does have discretion to deviate from an equal division of property. Gifted or inherited property is generally not subject to division.
Custody & Placement
The court will decide the difficult matters of child-related disputes such as custody and placement after considering the recommendations of the Guardian ad Litem and Family Court Worker, and the testimony of any other witnesses.
The divorce judgment consists of a single document entitled Findings of Fact, Conclusions of Law and Judgment. If either party is represented, the attorney will prepare this document for the Judge's or Court Commissioner's signature.
This document may be submitted by the attorney at the time of the hearing or within 30-days after the hearing. The marital settlement agreement will be attached to this document; any changes made to it orally at the time of the hearing will be stated in writing in the judgment.
If neither party is represented, the petitioner will be required to prepare and submit this document at least 30-days in advance of the final hearing. If the divorce is after trial rather than by agreement, the transcript of the Judge’s decision is attached.
It is important that you read the Findings of Fact, Conclusions of Law and Judgment of Divorce and understand your rights and responsibilities under the divorce judgment. Please refer to your divorce judgment and your attorney for any questions you may have about your divorce once it is final.
The divorce is final the day it is granted in court by the Judge or the Family Court Commissioner. However, you cannot remarry in Wisconsin or elsewhere until six (6) months after the divorce is granted.
Judgment of Legal Separation
If one of the parties has petitioned for a legal separation, the law requires that the specific reasons for requesting a legal separation be listed in the document. While the court has the power to grant a legal separation, if one party wants a divorce and the other party wants a legal separation, the court will generally grant a divorce.
Once married, in order to marry again in the State of Wisconsin, or elsewhere, a person must be divorced or widowed. If you are legally separated, the only person you may marry is your spouse. A judgment of legal separation can be converted into a judgment of divorce. This may be accomplished as follows:
If in the first 12 months following the granting of a legal separation
- Both parties wish to convert the judgment of legal separation to one of divorce, they may file a stipulation requesting conversion with the court; or;
- After 12 months, either party may file a motion requesting conversion and the court is then required by law to grant the conversion. After conversion you must still wait six (6) months before marrying.
WI Court System’s Self-Help Family Website: https://myforms.wicourts.gov
Some people choose not to hire an attorney and choose to represent themselves during the divorce process. "Pro-se" is Latin and means "by one's self". A person who is involved in litigation and has not retained an attorney is said to be appearing "pro-se". If there are any disputes about child custody, support, maintenance or property division, most people find that it is best to have an attorney.
Even if both parties are in full agreement on all issues, and neither party chooses to retain an attorney, the basic divorce procedures still apply.
The Family Court and Office of the Family Court Commissioner is not able to give legal advice to pro-se litigants. Pro-se litigants are held to the same standards a lawyer is held to and must follow the same procedures that a lawyer must follow.