Wisconsin is a no-fault divorce state, which means one spouse doesn't have to prove infidelity, desertion, or some other significant failing by the other spouse to get a divorce. If one or both parties have decided the marriage is no longer working, they can get a divorce. Here, we provide some answers to frequently asked questions about how the divorce process works in Wisconsin, including how finances and child custody are sorted out while the divorce is pending. To learn more about divorce generally, see our articles on the Divorce Process; for more information on Wisconsin divorce law, see our Wisconsin Divorce and Family Law page.
To begin a divorce, you must file a Summons and Petition for Divorce in court. Your spouse must be served with these papers within 90 days after you file them. You can file a motion with the court asking for an extension of the deadline, but it will be up to the judge assigned to your case whether or not to grant it. There are several ways to serve papers on your spouse:
You must file a written Response and Counterclaim within 20 days after you are served with the Summons and Petition for Divorce. You must file your response with the court and send a copy to your spouse or his or her attorney. If you do not file a written response, the court could enter a default judgment against you. If you also want to divorce, you should also file a Counterclaim for Divorce. In this situation, if your spouse has a change of heart in the future and asks that the divorce be dismissed, the court could deny that request and grant you a judgment of divorce based on your counterclaim.
See our article on Filing for Divorce in Wisconsin for more detailed information.
Wisconsin is a "no-fault" state. The only grounds required for divorce are irretrievable breakdown or an inability to repair the marriage. Because it takes two willing people to have a marriage, the court will generally grant a divorce even if one spouse still wants to continue the marriage, as long as the other spouse testifies that he or she feels that the marriage is irretrievably broken and cannot be repaired.
Wisconsin imposes a 120-day waiting period before your divorce cannot be finalized. Most divorces take between six months and a year to finalize, although it might take longer if there are contested issues.
In most cases, the court issues temporary orders that are effective during the divorce process. These temporary orders could cover custody, placement, support, maintenance, temporary use of personal property and bank accounts, temporary use of the marital home, and temporary allocation of debts. Although these orders are temporary and should have no bearing on the final outcome of your divorce, many courts simply make temporary orders permanent if they appear to be working. For example, if a temporary placement schedule for the children is successful, the court may decide to continue it rather than disrupting everyone's routine.
To request temporary orders, you must file an Order to Show Cause for Temporary Orders and an Affidavit for Temporary Orders. These documents require your spouse to appear at a first or temporary hearing, which is almost always scheduled before a court commissioner rather than a judge. This first or temporary hearing is usually scheduled within four to six weeks of the date you request a hearing.
If you do not agree with the court commissioner's orders at this first or temporary hearing or any other hearing before a court commissioner, you may request a "hearing de novo" before the judge assigned for your case. A hearing de novo is one in which the judge decides the issue afresh, as if it had not been heard before, and is not supposed to give any deference to the court commissioner's decision.
Because Wisconsin is a no-fault state, a spouse's infidelity has no bearing on how the court deals with the couple's property and finances. The court cannot consider this fact in dividing property, awarding maintenance, setting support, or other financial matters. Infidelity can be considered in determining child custody and placement, however, if this significant other has a negative or harmful impact on the minor children.