Getting divorced can be a confusing and overwhelming time. Every day we get phone calls and emails from individuals with questions regarding the divorce process. There are several misconceptions that people have when it comes to divorce. These are some of the common misconceptions or myths we hear from individuals.
Myth 1: In order to get a divorce someone has to be at fault.
Wisconsin is a no fault state. The Court is only going to inquire whether or not the marriage is irretrievably broken, or whether or not there is a reasonable chance that the spouses can reconcile their differences. This means the court wants to know if there is a reasonable chance the spouses will overcome the obstacles in their marriage. The Court is not going to investigate what those obstacles are or why they cannot be overcome.
Myth 2: I have to file for divorce where I got married.
You do not have to file for divorce in the state and county where you were married. Each state has its own jurisdictional requirements to file for a divorce. In order for a Wisconsin court to have jurisdiction over your divorce action one of the parties must have lived in Wisconsin for six months prior to filing the petition, and in the county you are filling in for 30 days prior to filing the petition.
Myth 3: My spouse and I have to complete marriage counseling before we can get a divorce.
You do not have to complete marriage counseling before you file for divorce. This is a personal choice which should be decided between you and your spouse. If there is a reasonable chance that you and your spouse could reconcile through counseling it might be an option the two of you choose to pursue. You should know that a Judge does have the ability to order marriage counseling in limited circumstances. This authority is very rarely used.
Myth 4: If my spouse and I have separate residences and separate bills we are legally separated.
In order to be legally separated you have to commence a court action by filing a petition and paying a onetime filing fee. Much like a divorce action, a final order will be entered addressing the following areas: custody, placement, child support, maintenance, property division. If you and your spouse are maintaining separate residences and separate lives, a legal separation can be an important step in insuring a plan is in place for the custody and placement of your children, and that you are protected financially from for your spouse’s actions.
The major difference between a legal separation and divorce is that in a legal separation the parties are still married. A legal separation can be converted to a divorce by motion of either party one year after the entry of the legal separation.
Myth 5: My spouse does not agree to the divorce. He/she can prevent me from getting a divorce.
Your spouse cannot prevent you from filing for a divorce or the court from granting a divorce. In granting a divorce the court can make a finding that the marriage is irretrievably broken if one party states under oath that the marriage is irretrievably broken and the court finds there is no reasonable prospect of reconciliation.
Myth 6: Placement will be shared equally.
There is no presumption of equal placement. The court is required to set a schedule that allows for regularly occurring, meaningful periods of physical placement with each parent, and that maximizes the amount of time the child may spend with each parent consistent with the best interest of the child. In setting the placement schedule there are several statutory factors the court must consider in determining what is in the best interest of your child.
Myth 7: At a certain age my children will get to choose where they want to live.
There is no magic age at which a minor child gets to decide where or with what parent they would like to live. If you and your spouse cannot agree on a placement schedule this decision will be made by the court. The wishes of your child are just one of many factors the court must consider in determining placement.
Myth 8: If we have equal placement child support will not be ordered.
In Wisconsin child support is based on the income of the parties, the number of overnights each party has with the child/children, and the number of children. When the parties have an equal placement schedule they have what is considered a shared placement schedule for purposes of support. Under the shared placement formula the court will consider the income or earning capacity of both parties in setting a support order.
Myth 9: All property is split equally.
In Wisconsin there is a presumption that a marital estate should be divided equally or split 50/50. The marital estate consists of all assets and debts at the time of the divorce except gifts, inheritances, and property designated individual property in a marital property agreement. The court can deviate from the presumption of a 50/50 property division. In deviating from this presumption the court will consider several factors including but not limited to: length of the marriage, the property each party brought to the marriage, whether one party has substantial property that is not subject to division, the age and health of the parties, the contribution of one party to the education or training of the other party, the earning capacity of each party, and the tax consequences to each party. When there are substantial assets that have been gifted or inherited, or there are facts that may warrant a deviation from the presumption of an equal division, it may be necessary to hire an attorney and other financial experts.
Myth 10: I will be divorced in 120 days.
In Wisconsin there is a mandatory waiting period of 120 days after the service of the summons and petition upon the respondent or the filing of a joint petition. This does not mean that your divorce will be completed on the 120th day. The length of the divorce process is very fact specific and depends on the complexities of your case, the ability to reach agreements, and the court’s calendar.
If you have questions regarding your divorce or any family law matters contact one of the experienced family law attorneys at Lawton & Cates.