The following is a summary of the procedures and laws relating to divorces in Wisconsin. If you have questions regarding your rights and obligations in a divorce, we encourage you to contact an attorney. The following is provided for general informational purposes only, and is not a substitute for the advice of an attorney.
Residency Requirements For Divorce Actions: You or your spouse must have been a resident of Wisconsin for 6 months and of the county in which you file for 30 days immediately prior to filing where the divorce is filed. No hearing on the divorce will be scheduled until 120 days after the defendant is served the summons or after the filing of a joint petition. [Wisconsin Statutes Annotated; Sections 767.05 and 767.083].
No-Fault Divorce — Requirements: The irretrievable breakdown of your marriage may be established by: (1) a joint petition by both spouses requesting a divorce on these grounds; (2) living separate and apart for 12 months immediately prior to filing; or (3) if the court finds an irretrievable breakdown of the marriage with no possible chance at reconciliation.
Joint Petition For Divorce: You and your spouse may file a joint petition for divorce, in which you both consent to personal jurisdiction of the court and waive service of process. A copy of a guide to Wisconsin Court procedures for obtaining a divorce is to be provided to the spouses upon filing for divorce. In all cases, a financial disclosure form must be filed. Also, if children are involved, an official child support form (which is available from the court clerk) must be filed with the petition. In addition, separation agreements are specifically authorized by law. Finally, in cases in which both spouses agree that the marriage is broken and have agreed on all material issues, the case may be held before a family court commissioner. [Wisconsin Statutes Annotated; Sections 766.58, 767.081, 767.085, 767.10, 767.13, and 767.27].
Community Property: Wisconsin is a “community property” state. There is a presumption that all marital property should be divided equally. Marital property is all of the spouse’s property except separate property consisting of: (1) property inherited by either spouse; (2) property received as a gift by either spouse; or (3) property paid for by funds acquired by inheritance or gift. The equal distribution may be altered by the court, without regard to marital misconduct, based on the following factors: (1) the contribution of each spouse to the acquisition of the marital property, including the contribution of each spouse as homemaker; (2) the value of each spouse’s separate property; (3) the length of the marriage; (4) the age and health of the spouses; (5) the occupation of the spouses; (6) the amount and sources of income of the spouses; (7) the vocational skills of the spouses; (8) the employability and earning capacity of the spouses; (9) the federal income tax consequences of the court’s division of the property; (10) the standard of living established during the marriage; (11) the time necessary for a spouse to acquire sufficient education to enable the spouse to find appropriate employment; (12) any premarital or marital settlement agreements; (13) any retirement benefits; (14) whether the property award is instead of or in addition to maintenance; (15) any custodial provisions for the children; and (16) any other relevant factor. The court may also divide any of the spouse’s separate property in order to prevent a hardship on a spouse or on the children of the marriage.
Under the Wisconsin Statutes, spouses are permitted to enter into agreements in which they resolve their property issues in connection with the dissolution of their marriage. However, they may not adversely affect the rights of the children of the marriage to receive child support to which the children would otherwise be entitled.
766.58 Marital property agreements.
(3m) Chapter 854 applies to transfers at death under a marital property agreement.
History: 1983 a. 186; 1985 a. 37, 403; 1991 a. 301; 1993 a. 160, 213; 1995 a. 201; 1997 a. 188; 2005 a. 443 s. 265.
NOTE: 1991 Wis. Act 301, which affected this section, contains extensive legislative council notes.
Whether property agreements are inequitable under s. 767.255 (11) [now s. 767.61 (3) (L)] is discussed. Button v. Button, 131 Wis.2d 84, 388 N.W.2d 546 (1986).
An annuity that transferred ownership from the owner to a “co-annuitant” on the owner’s death was a joint account under s. 705.04 (1) and a contractual agreement that creates a nonprobate transfer under s. 705.20 (1). Both will defeat a marital agreement that does not make the transfer. Reichel v. Jung, 2000 WI App 151, 237 Wis.2d 853, 616 N.W.2d 118, 99-1211.
Spouses may affirmatively waive the homestead protection in s. 706.02 (1) (f) in a premarital agreement. Jones v. Estate of Jones, 2002 WI 61, 253 Wis.2d 158, 646 N.W.2d 280, 01-1025.
No provision of sub. (3) or 705.20 permits parties to ignore ch. 854, or to agree to prohibit court involvement in implementing a marital property agreement. That “Washington Will” provisions permit transfer of property without probate does not mean the legislature allowed parties to agree to no court involvement in implementing transfer of ownership and creating a reliable and public record of transfer. Maciolek v. City of Milwaukee Employes’ Retirement System Annuity and Pension Board, 2006 WI 10, 288 Wis. 2d 62, 709 N.W.2d 360, 04-1254.
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