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FAQs About Family Law in Wisconsin

What is a default divorce?
A default divorce is one in which you and your spouse have no contested issues for the court to decide. A default hearing usually occurs soon after you file a final marital settlement agreement. This spells out all your arrangements for support, maintenance, and asset and liability distribution.
The default hearing cannot occur until after the 120-day waiting period expires, unless there is an emergency. At the hearing, upon approval of your agreement, the court will grant an absolute judgment of divorce.
Don't confuse "default divorce" with "no-fault divorce." A no-fault divorce means that the petitioner need not prove wrongdoing on the part of the other spouse in order to file for divorce. Wisconsin is a no-fault state. As noted earlier in this pamphlet, the only legal basis for divorce in this state is that the marriage is "irretrievably broken."
What if my spouse and I can't reach an agreement?
If you can't reach a final agreement, your case goes to trial. The trial date depends on the length of time needed for the hearing and the court's other business. Contested divorce trials are costly and involved. The court enforces rules of evidence, which contain many pitfalls for the unwary. The best way to avoid these is to hire an attorney.
Can spouses use the same divorce lawyer?
Ethical rules prohibit an attorney from representing both spouses in a divorce.
Occasionally an attorney represents one spouse, and the other spouse chooses to represent himself or herself. Divorces in which neither spouse uses an attorney also occur, particularly when the couple has no children and/or little or no property.
Exercise caution if you go through a divorce without a lawyer. Divorce is a lawsuit, often having hidden consequences. If you have little or no income to pay for an attorney, you may qualify for free help from a legal services agency.
Will the court order my spouse to pay for my attorney?
Under certain limited circumstances, the court may order your spouse to help pay your attorney fees. One example would be if your spouse violated a court order during the divorce. Usually, however, each party pays for his or her own lawyer.
May a woman use her former name after a divorce?
If a woman wants to resume using her maiden name or a former legal name, the court restores it as part of the divorce action. Or she may continue to use her married name, if she wishes.
What can I do if I'm dissatisfied with the final divorce judgment?
You can ask the court to reconsider its decision. You also can appeal to the Wisconsin Court of Appeals. Strict time limits exist for filing an appeal (usually 45 days).
If you are dissatisfied with a decision about maintenance, however, you should be aware of certain limits. The court can't revise a judgment that waives maintenance. If you want the court to reconsider an award of limited-term maintenance, you must file a motion before the maintenance period ends.
Can the final divorce judgment be changed in the future?
The trial court can modify certain orders, such as child support and physical placement, in the future, although usually you must show that a substantial change in circumstances has occurred since the current orders went into effect before a trial court can revise a judgment. In most cases, orders regarding property division cannot be changed, once the orders are approved by the court.
Can I move to a new location after the divorce?
If you have children, you may face limits on where you can move after a divorce, just as you do during a pending divorce. If you want to move out of state or more than 150 miles away from the other parent, you must provide notice by certified mail of your plans at least 60 days before the planned move. The other parent may file a written objection within 15 days of receiving the notice. The court then will refer you and your former spouse to mediation. The court also may appoint a guardian ad litem for your children.
What can I do if my former spouse disobeys a court order regarding custody, physical placement, child support, maintenance, or debt payments?
You must petition the court to enforce its order. This is known as a contempt motion. After receiving the court papers, your former spouse must appear in court to report whether he or she has followed the court's orders and to explain any lapses.
After hearing the facts, the court decides whether your former spouse willfully disobeyed. The court may find your former spouse in contempt and grant him or her an opportunity to correct the contempt. Failure to do so can result in as much as six months in jail. The court also may issue other orders as necessary to remedy the contempt.
If the other parent denies or substantially interferes with one or more periods of physical placement, you may bring a petition for enforcement of physical placement order. Usually the court must hold a hearing on such a petition no later than 30 days after it is served on the other parent. If the court finds that your former spouse intentionally and unreasonably denied you of one or more periods of physical placement, the court can issue various orders. These might include granting additional periods of physical placement to replace those denied or hindered, as well as awarding you money and attorney fees.
If my spouse fails to pay bills as ordered by the court, can the creditor sue both of us?
Yes. The court's order doesn't change your relationship with creditors – that is, the parties to whom you owe money. Creditors may sue either spouse and may repossess any property pledged as security. If the creditor sues only one spouse, that spouse may bring the other into the lawsuit.
What is mediation?
A mediator takes no one's side. His or her role is to help a couple to communicate and arrive at mutual agreements. Through mediation, you may be able to resolve disputes faster, with less bitterness, and at less cost than battling in court.
As mentioned earlier, the family court's counseling services provide mediation for couples needing help to settle child custody and placement issues. Family court counseling usually doesn't address property settlements, maintenance, or child support – unless these issues relate directly to child custody or placement. But you may discuss these issues if both of you agree in writing to do so.
Usually, the spouses split most of the family court counseling costs. For more information on family court counseling, see the State Bar's brochure, "Answering Your Legal Questions About Custody and Placement."
Private mediation services also are available. Here a couple can discuss any issues pertaining to their divorce, and they pay all the mediation costs. Your lawyer can refer you to an appropriate service. See also the State Bar's pamphlet, "Answering Your Legal Questions About Alternative Dispute Resolution."
What is a cooperative and collaborative divorce?
In these processes, the focus is on settlement of issues. The goal is to reduce the emotional and financial effects of divorce by avoiding formal discovery and individual appraisal of assets. In a collaborative divorce, if the process fails, the attorneys for both spouses must withdraw and turn the case over to other attorneys. For more information on collaborative divorce in Wisconsin, go to www.collabdivorce.com. In a cooperative divorce, although the emphasis is on settlement, court is still available as an option, but only if all efforts at settlement fail. For more information about cooperative divorce in Wisconsin, go to www.cooperativedivorce.org.
What should I look for in a divorce lawyer?
Contrary to what many people believe, good divorce lawyers don't push their clients into full-scale war. This only leaves behind damage and resentments that can linger for years.
The best outcome is a divorce that allows two people to begin to heal and get on with their lives. Toward that end, divorce attorneys help their clients to settle their divorce, if at all possible, rather than to go to trial. As you ask for recommendations, you should seek a divorce lawyer who will:
  • act as a problem-solver and peacemaker;
  • be courageous enough to tell you things you may not want to hear; and
  • be courteous and cooperative in working with your spouse's attorney.
This is one in a series of consumer information pamphlets sponsored by the State Bar of Wisconsin. This pamphlet, which is based on Wisconsin law, is issued to inform and not to advise. No person should ever apply or interpret any law without the aid of a trained expert who knows the facts, because the facts may change the application of the law.
6/08. © State Bar of Wisconsin
When your marriage ends, your role as a parent does not — and neither does your former spouse's. Both of you love your children and want what's best for them.
Now that you're divorcing, you must decide child custody and placement arrangements. How well the two of you handle these arrangements will have an enormous impact on how well your children cope and their emotional well-being during and after your divorce.
The basic assumption behind child custody and placement laws is that children are healthiest and happiest when they have good relationships with both parents. When parents divorce, the law requires the court to make provisions in the final judgment for parental decision-making and allocating periods of physical placement with each parent. In most cases, the parents reach their own agreements that the court approves.
Legal processes and terminology come into play throughout the process of creating a custody and placement agreement. This pamphlet answers common questions you may have.
What is legal custody?
This is the legal right to make major decisions about your children. Major decisions cover such matters as nonemergency health care and choice of school and religion. Others include parental consent to marry, obtain a driver's license, or join the military. Additional matters also could be major decisions, if the court so determines or the parents agree. Legal custody can be joint or sole, and it's different from physical placement (see below).
How do joint legal custody and sole legal custody differ?
Joint legal custody means both parents have equal rights to make major decisions about their children. Sole legal custody means only one parent has the right to make such decisions. The court also may order that one parent or the other has the sole right to make certain types of major decisions, such as health care. Joint legal custody is presumed unless there is an agreement otherwise or specific reasons for a court to grant sole custody, such as domestic violence.
What is physical placement?
This is the time your children are in each parent's care. During physical placement, you have the right to make routine daily decisions about your children's care.
Most court orders provide a placement schedule of the times the children are to be with each parent. Placement schedules can vary from brief time with one parent and the remainder with the other to the same amount of time with each parent. Placement schedules also provide for placement on holidays and for vacation periods.
Court orders can be general or specific. Very general court orders (such as "reasonable times on reasonable notice") can be hard to follow or enforce. This can create conflict for the parents and stress for the children. Orders that specify periods of placement with each parent can be helpful and can provide a safety net for parents and children to rely on if parents are not communicating well. It is best for children if each parent is flexible to account for unpredictable events.
Is it true that the law gives each parent equal placement?
No. The law provides that the children should have a schedule that allows them to have regularly occurring, meaningful periods of placement that maximizes the time the children spend with each parent, considering the geographical distance between the parents and each parent's household accommodations. Factors in the statute to be considered in determining what schedule is in a child's best interests include each parent's availability to provide care for the children, each parent's wishes, family and other significant relationships, past parenting time and proposed changes, individual adjustment and needs of each child, availability of child care, communication and cooperation between parents, and support or interference of each parent with the other's relationship with the children. A maximized schedule is not the same as an equal placement schedule.
Which decisions are considered routine daily decisions?
These include decisions such as bedtime, study time, diet, extracurricular activities, social activities, and discipline. The right to make routine daily decisions belongs to the parent during his or her placement time. Any routine daily decision must be consistent with major decisions made under the legal custody provisions and must not break any laws about safety.
Whatever the parents' legal rights are, children do best when their parents agree to similar rules and routines in both households. Also, many daily decisions, such as extracurricular activities, overlap periods of placement and require parental communication and coordination.
It's helpful for everyone if you respect each other's right to know about your children. Both parents need to know the children are safe and well cared for. Children benefit when their parents work together.
How do custody and placement issues get resolved?
It's best for children if their parents try to resolve disagreements about custody and placement. You should first try to come to an agreement with the other parent; then put your agreement in writing and ask the court to approve it. Parents may work with family counselors or child specialists to get professional assistance in creating plans that best meet their children's needs. The court usually approves a placement agreement if it is reasonable and voluntarily agreed to by both parents. You can go to www.wicourts.gov for forms to assist putting your agreements in writing. Parents can reach agreements by direct discussion, mediation (joint sessions with a neutral mediator), or collaboration (each parent hires a lawyer and all four commit to an out-of-court settlement process).
Parents who are unable to reach agreements must meet at least once with a mediator. For information about court services for mediation, call your county's family court commissioner or clerk of court. Parents also may retain private mediators to assist them in reaching parenting agreements.
If you're unable to reach an agreement in mediation, you ask the court to decide. The court will appoint an attorney (called a guardian ad litem) to investigate and represent the best interests of your children. Some counties also have court social workers who conduct studies and recommend allocation of custody and a specific placement schedule. The social worker and guardian ad litem process may take several months to a year. Some parents reach agreements, with the approval of the guardian ad litem, after receiving such input. If no agreement is reached, the court schedules a hearing. The parents and guardian ad litem present their evidence at the hearing, and the court decides the issues you and your spouse could not agree on.
Most parents prefer not to have the court make decisions about their children. Going to court is costly and time-consuming for both of you and takes an emotional toll on the whole family. Alternatives to the court process that may assist you in reaching agreements include hiring a mediator and/or hiring a lawyer. Collaborative practice is a popular process to resolve issues. Information on using the collaborative process in divorce cases is available on the Internet. For example, visit www.collabdivorce.com.
What are my rights to information about my children?
All parents have a right to their children's school, medical, and dental records. The only exception is if the court denies a parent any visitation or physical placement with the children.
You may contact the school or health care provider directly to get school, medical, and dental records (including report cards, notices of parent/teacher conferences, health notices, prescription information, and so on). Wisconsin statute 767.41(7) requires schools and health care professionals to give you this information. You may want to provide a self-addressed, stamped envelope to make it easier for the school or clinic to send you copies of records. You also may need to pay a fee for copying records.
What happens if the other parent won't let me see our children?
First, check your court order. Does it state specific times the children are to be with you? If it does, you may want to remind the other parent of this order and give the other parent a copy of the order.
If the order states no specific placement times, you may want to ask the court to change the order. The court could add specific times and thus clarify your right to see your children.
If the other parent still won't let you have the children during your placement times, you may ask the court for help in enforcing the order. You would file a "petition to enforce physical placement orders" or an "order to show cause and affidavit for finding of contempt."
These procedures provide significant consequences if the parents do not follow the court order. The court can provide make-up time, and order the losing party to pay the other party's attorney fees. If the court finds a party in contempt, the court then decides what sanction is appropriate which can include fines, jail time, or anything else the court finds appropriate.
Neither parent should ignore a court order, and neither party should use either proceeding unless necessary. You may ask your county family court commissioner or clerk of court for more information. You also can obtain some forms online at www.wicourts.gov.
What if I don't think it's good for the children to be with the other parent or a stepparent?
Start by discussing your concerns with the other parent. Try to work out something mutually acceptable. It's better for children when their parents work together to share concerns, information, and decision-making.
That's not saying it's easy to do, especially if one or both of you have new partners. But making the effort definitely will help your children. If you've talked things over and you still have concerns, you can pursue family counseling. You also could agree to obtain a mediator's assistance or contact your county's family court commissioner or clerk of court for court-referred mediation. When mediation doesn't resolve your concerns, you may file a motion to change placement. But a motion based solely on the fact that you don't like the other parent's parenting style will not support a change. Unless there's evidence of actual harm to the children, the court generally will rule it's best for them to have a substantial relationship with each parent.
What happens if I refuse to let the other parent see our children?
Violating a court order that states certain times for the children to be placed with the other parent could lead the court to hold you in contempt or grant the other parent relief under a "petition to enforce physical placement." Withholding children also can result in criminal charges.
Certain situations might justify violating a court order — for example, to protect you or your children from immediate abuse or harm. Before intentionally disobeying any court order, talk to an experienced family law attorney.
What happens if the other parent refuses to take our children as provided in the order?
It's difficult to force an unwilling parent to spend time with his or her children. If your children's other parent fails to take them for placement as provided in your order, try to discuss the problem. Could the order be revised to better suit the other parent's scheduling or other needs? Consider co-parent or family counseling.
If the other parent still refuses to take your children as provided in the order — and if you're losing money as a result — you may file a request with the court to force the other parent to pay you for money lost (such as for added child care expenses). You'll need to prove three points to the court: (l) how much money you lost; (2) that the other parent intentionally failed to take the children as ordered and this failure was unreasonable; and (3) that the parent didn't give you adequate notice, given your circumstances.
If a parent repeatedly and unreasonably fails to take the children as provided in the court order, you may ask the court to modify the placement schedule. You could ask the court to order a schedule consistent with what's actually happening.
Taking legal action can be appropriate when a child support order was reduced based on the children spending significant time with the child support payer. If the placement order is changed, you can (with a properly filed motion) ask the court to change the child support order accordingly.
Can I move with the children?
If you have physical placement of the children and you wish to move the children out of Wisconsin, or move the children more than 150 miles from your home at the time the court order was made, you must provide certified notice to the other parent. If the other parent notifies you and the court of an objection, the court orders mediation and, if still no agreement, a guardian ad litem will be appointed and a hearing held to determine what is in the children's best interests. No move may occur until the issue is resolved.
The court has the power to allow the children to move and to adjust the schedule with the other parent or order the children to stay with the other parent if you move. The court will consider various factors in making decisions that reflect the best interests of the children. The decision to move with the children can have a major impact on your children and their relationship with each parent and on other aspects of the children's lives such as school, extended family, and friends. It may be helpful to obtain professional input and explore the impact of such an action before proceeding.
How do I change an existing order?
Changes may occur anytime by mutual agreement of both parents. To be legally binding, the agreement must be submitted to the court for approval. If the court doesn't approve the agreement, the agreement is not an order, and the parents aren't required to follow it. Either parent may bring a motion to return to court and request a change in a custody or placement order if there is a substantial change in circumstances that supports the parent's claim that a change would be in the children's best interests. If it is within two years of the first placement order, the court will not order a change unless there is a showing that the current conditions are physically or emotionally harmful to the child. The procedure for resolving issues about changing orders is the same as for resolving original orders as discussed above.
Where can I get more information?
Perhaps you want to learn more about how to raise your children in cooperation with their other parent. One common term for this is co-parenting. Effective co-parenting helps promote healthy outcomes and development for your children. You might want to work with a private counselor or child specialist trained in divorce and separation issues. If you have disputes, you could obtain information about private mediation or collaborative practice. You also could request information through your county's family court commissioner office or clerk of courts.
To learn more about custody/placement law, see a family law attorney experienced in children's issues. Attorneys can discuss options and the potential legal consequences of different decisions and process choices. Only an attorney can review the facts of your situation and give you legal advice. Some county courthouses have papers for filing on your own and most regularly-used forms are available online at www.wicourts.gov.
Introduction
Deciding how your family will be restructured to best meet the needs of your children during and after divorce is perhaps the most important decision you, as a parent, will make. Legal custody, physical placement, and child support issues must be decided to ensure that your children's needs continue to be met. "Legal custody" means making major decisions affecting your children, such as medical care, education, and religion. "Physical placement" means the amount of time your children will live with each parent. "Child support" means providing for your children's financial needs.
Parents sometimes are unable to agree on these issues, even with the help of a mediator. When this happens, the judge will appoint a guardian ad litem (GAL) to assist the judge in making custody, placement, and support decisions.
This brochure answers commonly asked questions about the guardian ad litem's role in the divorce process.
What is a guardian ad litem (GAL)?
A GAL is an attorney, licensed to practice law in Wisconsin. The GAL's role is to represent the best interests of the children as determined by the GAL through the investigation and court process.
The GAL will investigate the facts and take a position in court on legal custody and placement. The GAL also may become involved in the financial issues of a case when those issues affect the children. The GAL does not have any of the rights or duties of a parent or general guardian. Although the GAL may be incorrectly referred to as the children's attorney, the GAL's role is to advocate for the best interests of the children. This may not be the same as advocating for what the child wants.
What determines whether a GAL becomes involved in a case?
When parents cannot agree on custody or placement, the court must appoint a GAL. The exception is in a modification proceeding if the proposed modification would not substantially alter the placement times. In that situation, the court may find that a GAL would not assist it in making its orders. Usually, the parties first must try mediation to reach an agreement. If mediation fails or is inappropriate for some legal reason, the court will appoint a GAL to assist the court in deciding custody or placement. The court also will appoint a GAL if the court has special concern for the welfare of a minor child. Although the GAL generally is appointed in the beginning of a case, the court can appoint a GAL any time in the proceeding when the best interests of the children are at issue.
How is a GAL appointed?
A GAL is appointed by a family court commissioner or judge, acting alone or when asked by one of the parents. The procedure varies – some counties have lists of attorneys who take GAL appointments, other counties have contracts with specific attorneys for GAL appointments.
What is the GAL's role?
In representing the best interests of the children, the GAL may negotiate settlements, conduct formal and informal discovery, hire experts, interview witnesses, investigate whether there has been interspousal battery or domestic abuse, comment on any parenting plan filed by any party or any stipulation or mediation agreement reached by the parties, and participate in all court proceedings. Any time after 120 days from the GAL's appointment, either party may request a status hearing before the court on the actions taken and work performed by the GAL. A second status hearing can be requested after an additional 120 days from the first status.
Will the GAL meet with my child and me?
The GAL will meet with both parents, usually separately and in the GAL's office. The GAL also will decide whether and when to meet with your child, which could be in the GAL's office, each parent's home, the child's school, or another location.
How does the GAL investigate issues that affect my child?
Because the GAL is an attorney, the GAL investigates facts that are relevant to the issues in your case. Much of the investigation is called "informal discovery," which is conducted through interviews with both parents, the child, or other people with significant information. The GAL also may review relevant records, such as school, medical, or mental health records for which you may be asked to sign a release.
The GAL may ask other experts, such as a social worker or a psychologist, to provide input and possible future testimony regarding the case. If there are problems with alcohol or drugs, the GAL may ask the judge to order a parent to have screening tests.
The GAL also may use the "formal discovery" process to assist in the investigation, including interrogatories, requests for document production, or conducting a deposition.
What factors does the GAL consider in the investigation?
In investigating and developing input for the court's consideration, the GAL must consider: the wishes of your child and both parents; whether a parent has engaged in a pattern or serious incident of interspousal battery; the safety and well-being of the child and the safety of the parent who was the victim of the battery or abuse; your child's interaction and relationship with you and other family members; the amount and quality of time you have spent with your child in the past; any necessary and reasonable custodial and life-style changes you propose to make to spend time with your child in the future; your child's adjustment to home, school, religion, and community; your child's age and developmental and educational needs at various ages; the mental or physical health of a parent, the child, or other person living in the proposed custodial household; the need for regularly occurring and meaningful placement to provide predictability and stability for your child; availability of child care services; the cooperation and communication between parents and whether either one unreasonably refuses to cooperate or communicate with the other; a parent's likelihood to interfere in the other parent's continuing relationship with the child; any physical abuse or problems with alcohol or drugs; the reports of appropriate professionals; and other significant factors that would affect your child's well-being.
What happens when the GAL completes the investigation?
The GAL will give the parents and/or attorneys a preliminary summary of what the GAL will present to the judge. The summary could change depending upon additional evidence or facts that are uncovered. Generally, the parents' attorneys will discuss the GAL's preliminary recommendations with their clients. Frequently, settlement proposals are exchanged and the case may be resolved by agreement. If the parents cannot agree, the case is prepared for trial before the judge, who will make the final decision.
Who pays for the GAL?
The judge decides who pays for the GAL's services. The requirements vary from county to county. Generally, each parent is responsible for one-half of the GAL's total costs, including the GAL's time and investigation costs, such as tests and experts. The court also may require the parents to pay an initial deposit and periodic payments to the GAL during the case. If the judge decides that a parent is unable to pay for the GAL's services immediately, the judge may have the county pay that parent's portion of the GAL bill. However, that parent is still responsible for the GAL fees and the county may require the parent to reimburse the county.
Can I change GALs?
There are very limited circumstances in which a new GAL would be assigned to your case. Only the judge can remove a GAL.
How long will the GAL be involved in my case?
By statute, the GAL serves in a case until either the parents reach a written agreement resolving the issues and the judge approves it, or there is a hearing and the judge decides the case. The judge can discharge the GAL if one is no longer necessary. If your case is appealed, the GAL is involved in the appeal process unless the court orders otherwise. If a new motion is filed in your case in the future, the judge may reappoint the same or a different GAL as an advocate for your child's best interests.
This is one in a series of consumer information pamphlets sponsored by the State Bar of Wisconsin. This pamphlet, which is based on Wisconsin law, is issued to inform and not to advise. No person should ever apply or interpret any law without the aid of a trained expert who knows the facts, because the facts may change the application of the law.
6/08. © State Bar of Wisconsin