Legal Separation in Wisconsin FAQs

Learn about legal separation as an alternative to divorce in Wisconsin.

By , Attorney · Cooley Law School
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Divorce, Legal Separation, or Physical Separation?

Divorce isn't a new concept, especially to those couples experiencing marital troubles. If your relationship has reached a breaking point, and there's no chance you can reconcile, either party can file a motion (request) for divorce with the court. Typically, couples will work out an agreement on property division, custody, and financial support, before the judge gets involved. However, in cases where the couple has outstanding issues, the judge will resolve the disputes before finalizing the divorce. Once the couple is divorced, both are free to remarry (but, in Wisconsin, not until six months after the judgment), and live life independent from each other. (W.S.A. 767.35.)

Many couples confuse physical separation with a legal separation, but the two are not the same. Legal separation is a legal process where one spouse files a formal request with the court. In the end, the judge will issue a judgment of legal separation, which changes the couple's legal status. Although you're still legally married, the court will identify you as legally separated, meaning you can acquire property and debt and enter into contracts as an unmarried individual.

On the other hand, a physical separation doesn't alter your marital status, nor does it give you guidance on property division, child custody, or support issues. You don't need the court's permission to participate in a physical separation (also called trial separation), because it's an informal agreement between the spouses. You can decide how to handle critical issues like using the marital home, visitation with the children, and spousal support, but if you'd like the court to enforce your agreement, you'll need to file for divorce or formal legal separation.

Are There Benefits to a Legal Separation?

If you're not sure that you want a divorce because reconciliation is still a possibility, legal separation might be the best choice for you. If you and your spouse reconcile at any point after the separation is final, all you need to do is file a simple document asking the court to vacate the order. (W.S.A. 767.35.) On the other hand, if either spouse wants to convert the separation into a divorce, you must wait at least one year after the final judgment before you ask the court (unless you both agree to the divorce.)

Divorce, however, is permanent. If you reconcile after the judge terminates your marriage, you'll need to go through the standard steps of getting married, including obtaining a marriage license (unless it's been less than 6 months since the final divorce judgment.) (W.S.A. 767.35.)

For some self-employed or unemployed spouses, the fact that divorce terminates employer-sponsored health insurance can be catastrophic. Many couples choose legal separation to prevent one spouse from losing essential coverage, but it's important to confirm in advance that a legal separation will not trigger termination of coverage in the same way a divorce will.

There may be other reasons why couples choose legal separation instead of divorce. If you practice a religion that prohibits divorce, or you'd like to avoid the social stigma of divorce, legal separation might be a more attractive option for your marriage.

Does Wisconsin Recognize Legal Separation?

Yes, and the process is nearly identical to divorce. If you have lived in Wisconsin for at least 60 days, you may file a petition for legal separation with the court. It's important to submit the documents with the court in the county where you have lived for at least the past 30 days. (W.S.A. 767.301.)

The petition must include a legal reason—or, grounds—for your request. Wisconsin is a no-fault divorce state, meaning the couple only needs to state that the marriage is irretrievably broken for the court to grant the divorce. Legal separation is a little different because the couple just needs to explain to the court that the marriage is "broken," which leaves the possibility of reconciliation. (W.S.A. 767.315.)

Wisconsin imposes a 120-day waiting period before the judge can finalize your legal separation. Couples should use this time to negotiate the terms of the separation. If you're concerned that your spouse won't support you during the waiting period, you can ask the court to issue temporary orders for support and custody. (W.S.A. 767.335.)

It's important to understand that if one spouse files for a legal separation and the other requests a divorce, the court will hear testimony from both spouses before deciding which motion to grant. The judge will evaluate whether there's a chance for reconciliation between the spouses. If there is, the court may delay your case for up to 60 days while you attend counseling to determine if you can repair your relationship. At the end of the 60 days, the court will decide how to proceed with your case.

Does Separation Affect Custody?

It can, so parents should be cautious with how they proceed during a legal separation. In every case involving minor children, the court's primary concern is to protect the children's best interest and promote their well-being. If one parent disappeared after physically separating from the other and didn't visit the children or provide financial support, the court might use those actions when deciding custody in the legal separation.

If you and your spouse decide to divorce later, the court will reevaluate custody based on each parents' actions during the legal separation.

What's a Separation Agreement?

We've all seen the courtroom reality show where one person sues the other for breaking an agreement. It's no surprise that the judge dismisses nearly every case where there's no written contract, and the importance of a contract doesn't diminish just because you're dealing with a separation or divorce.

A separation agreement is a legally-binding contract, signed by both parties and the judge, that details the terms and conditions for the separation. The agreement should contain information on how the couple will divide marital property and debt, handle custody and visitation, and resolve financial disputes. If the couple can't create a contract together, the court will decide the specific terms, and both spouses must follow it.

If you're facing divorce or legal separation, contact an experienced family law attorney near you for assistance.

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