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Divorce laws are enacted and interpreted by each of the respective states. This means your state and local family law court determines such things as divorce case filing and pleading procedures, spousal and child support payments, custodial rights of parents and the division of community property. Since laws get amended and new ones get made with some frequency, consult with an experienced family lawyer in your county for the most current status of the law. The family lawyer you choose should also be knowledgeable with the local courts and jury sentiment.

RESIDENCY REQUIREMENTS AND WHERE TO FILE:

One of the spouses must have been a resident of Wisconsin for 6 months and of the county 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.

GROUNDS FOR DIVORCE: Irretrievable breakdown of the marriage is the only grounds for divorce in Wisconsin. The irretrievable breakdown of the marriage may be shown 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.

LEGAL SEPARATION: Irretrievable breakdown of the marriage is the only grounds for legal separation in Wisconsin. The residency requirements are the same as for divorce.

MEDIATION REQUIREMENTS: If custody of a child is a contested issue, mediation is required. If joint custody is requested, mediation may be required. In addition, the court may order parents in any child custody situation to attend an educational program on the effects of divorce on children. [Based on Wisconsin Statutes; Sections 767.401].

PROPERTY DISTRIBUTION: Wisconsin is a "community property" state, with the presumption that all marital property should be divided equally. Marital property is all of the spouse's property except separate property inherited by either spouse, property received as a gift by either spouse, or 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: (a) The length of the marriage; (b) The property brought to the marriage by each party; (c) Whether one of the parties has substantial assets not subject to division by the court; (d) The contribution of each party to the marriage, giving appropriate economic value to each party’s contribution in homemaking and child care services; (e) The age and physical and emotional health of the parties; (f) The contribution by one party to the education, training or increased earning power of the other; whether there is a substantial change in circumstances, is a discretionary decision; (g) The earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage; (h) The desirability of awarding the family home or the right to live therein for a reasonable period to the party having physical placement for the greater period of time; (i) The amount and duration of an order granting maintenance payments to either party, any order for periodic family support payments, and whether the property division is in lieu of such payments; (j) Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests; (k) The tax consequences to each party; (l) any premarital or marital settlement agreements; and (m) 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. [Based on Wisconsin Statutes; Sections 766.61]

ALIMONY/MAINTENANCE/SPOUSAL SUPPORT: Either spouse may be ordered to pay maintenance to the other spouse, without regard to marital misconduct. The factors for consideration are as follows: (1) The length of the marriage; (2) The age and physical and emotional health of the parties; (3) the property division; (4) The educational level of each party at the time of marriage and at the time the action is commenced; (5) The earning capacity of the party seeking maintenance, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to find appropriate employment; (6) The feasibility that the party seeking maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and, if so, the length of time necessary to achieve this goal; (7) The tax consequences to each party; (8) Any mutual agreement made by the parties before or during the marriage, according to the terms of which one party has made financial or service contributions to the other with the expectation of reciprocation or other compensation in the future, if the repayment has not been made, or any mutual agreement made by the parties before or during the marriage concerning any arrangement for the financial support of the parties; (9) The contribution by one party to the education, training or increased earning power of the other; (10) Any other relevant factors the court deems relevant.

The court may combine maintenance and child support payments into a single "family support" payment. The maintenance payments may be required to be paid through the clerk of the court. [Based on Wisconsin Statutes; Sections 767.56]

SPOUSE'S NAME: Upon request, either spouse's former name may be restored. [Based on Wisconsin Statutes; Section 767.395].

CHILD CUSTODY: Joint or sole child custody, "legal custody and physical placement," may be awarded based on the best interests of the child and the following: (1) the preference of the child; (2) the wishes of the parents; (3) the child's adjustment to his or her home, school, religion, and community; (4) the mental and physical health of all individuals involved; (5) the relationship of the child with parents, siblings, and other significant family members; (6) any findings or recommendations of a neutral mediator; (7) the availability of childcare; (8) any spouse or child abuse; (9) any significant drug or alcohol abuse; (10) whether 1 parent is likely to unreasonably interfere with the child's relationship with the other parent; (11) any parenting plan or other written agreement between the spouses regarding the child; (12) the amount of quality time that each parent has spent with the child in the past; (13) any changes that a parent proposes in order to spend more time with the child in the future; (14) the age of the child and the child's developmental and educational needs; (15) the cooperation and communication between the parents and whether either parent unreasonably refuses to cooperate with the other; (16) the need for regularly-occurring and meaningful periods of physical placement in order to provide predictability and stability for the child; and (17) any other factors [except the sex and race of the parent]. [Based on Wisconsin Statutes; Section 767.41].

CHILD SUPPORT LAWS: Wisconsin uses the "Percentage of Income" standard to determine the level of child support. Either or both parents may be ordered to pay child support and health care expenses. The factors to be considered are: (1) the financial resources of the child; (2) the standard of living the child would have enjoyed if the marriage had not been dissolved; (3) the physical and emotional conditions and educational needs of the child; (4) the financial resources, earning capacity, needs, and obligations of the parents; (5) the age and health of the child, including the need for health insurance; (6) the desirability of the parent having custody remaining in the home as a full-time parent; (7) the cost of daycare to the parent having custody if that parent works outside the home or the value of the childcare services performed by that parent; (8) the tax consequences to each parent; (9) the award of substantial periods of physical placement to both parents [joint custody]; (10) any extraordinary travel expenses incurred in exercising the right to periods of physical placement; (11) the best interests of the child; and (12) any other relevant factors. The support amount must be expressed as a fixed sum unless the parties have stipulated to expressing the amount as a percentage of the payer’s income. The court may require that child support payments be guaranteed by an assignment of income, that the payments be made through the clerk of the court, or that health insurance be provided for the children. The court may also order a parent to seek employment. The court may order spousal maintenance and child support payments be combined into a "family support" payment.

HOW TO ENFORCE CHILD SUPPORT IN THE STATE OF WISCONSIN – THE FEDERAL OPTION

Federal Options Enforcement (CSE) Program is a federal/state/local effort to locate parents, their employers, and/or their assets; establish paternity if necessary; and establish and enforce child support orders. The federal role is to provide funding, issue policies, ensure that federal requirements are met, and interact with other federal agencies that help support the CSE program.

How and where do I apply?

In most states, CSE offices are listed under the human services agency in the local government section of the telephone directory. If there is not a separate listing, the human services agency information operator should be able to give you the number. State CSE agencies are listed at the end of this brochure; they also can provide telephone numbers for local offices.

Call your Child Support Enforcement office to learn how to apply for enforcement services and what documents (birth certificates, financial statements, etc.) you should provide.

What are the steps to collecting support?

The first step, if a child was born out of wedlock, is to establish paternity - or make a legal determination of who fathered the child. Many men will voluntarily acknowledge paternity. Either parent can request a blood test in contested paternity cases. Your caseworker will help you to establish paternity for your child.

Establishing the obligation is the next step. The fair amount of child support that the non-custodial parent should pay is determined according to state guidelines. Your CSE office will be able to tell you how support award amounts are set in your state. Your CSE office can also request medical support for your child.

The last step is enforcement of the child support order. The CSE office can help with collecting the money due no matter where the non-custodial parent lives.

At any of these steps, the CSE office may need to know where the non-custodial parent is living or where he/she is working. When a parent has disappeared, it is usually possible for the CSE office to find him/her with the help of state agencies, such as the Department of Motor Vehicles, or the Federal Parent Locator Service. Your caseworker can tell you what information is needed to find an absent parent or his/her employer.

The most successful way to collect child support is by direct withholding from the obligated parent's paycheck. Most child support orders require the employer to withhold the money that is ordered for child support and send it to the CSE office. Your Child Support Enforcement office can tell you about this procedure.

Federal and State Income Tax refunds may be withheld to collect unpaid child support. States also have laws, which allow them to use: liens on real and personal property; orders to withhold and deliver property; or seizure and sale of property with the proceeds applied to the support debt. Many states routinely report child support debts to credit bureaus and smart parents are bringing their payments current so that their credit won't be affected.

For More Information write for the 2008 Handbook on Child Support Enforcement by contacting:

ACF OCSE National Reference Center

370 L'Enfant Promenade, S.W.

4th Floor Washington, DC 20447

(202) 401-9383

IS A LAWYER NECESSARY FOR MY CASE?

If the marriage was less then a year, you have no children, if there is no real estate, and if a marital settlement has been reached, the spouses may and should consider a fast and simplified divorce solution.

No person seeking a divorce is actually required by law to use an attorney. If a person does plan to represent themselves (not recommended) during the proceedings, they should not expect the court clerks, bailiff and/or judge to assist them or provide legal advice in any way. Most spouses do however, at least at some point, consult with an attorney before proceeding with doing the divorce themselves.

Under most circumstances, a lawyer is ethically prohibited from representing both parties in a case. This is called a legal conflict of interest. Lawyers should only represent one party. Notwithstanding, in practice many people choose to have just one lawyer handle most of the paperwork such as the legal documents, including a separation agreement. In this situation, you must keep in mind that the lawyer who drafted the documents should and usually is only be representing one party. In some states, they follow a collaborative divorce process in which the mediator/lawyer works with both parties to achieve one common goal: to reach agreement on settlement of the issues and to have that agreement reduced to a writing and then into a court order.

Most lawyers do not charge a flat fee for a divorce unless the divorce is very simple, and both parties have agreed to the division of property and custodial issues at the outset. Instead, a lawyer will usually request a cash retainer from the client, not unlike a security deposit and charge for the lawyer’s time as the case moves forward. The amount of lawyer fees is one very important factor to consider. However you should also take into account the attorney’s legal experience and the complexity of the case. Lawyers are prohibited from charging a contingent fee for a divorce. Once a fee arrangement has been made, the lawyer is in most cases must prepare a written contract reflecting the agreement if full.

If there is a great disparity of income with regards to payment of the attorney fees, a judge may determine that one person should pay for the other person’s attorney fees. Most often however, a judge determines that each party has the ability and should to pay his or her own fees.

CHOOSING THE RIGHT FAMILY LAWYER

If you have chosen to go with a lawyer you have a very important choice to make.

You could think of the process of choosing a lawyer like any other significant purchase. The same kind of careful consideration you put into a major purchase is not unlike the kinds of considerations you need to make when you are looking for the right divorce and family lawyer.

Before you start, you’ll need to choose what qualities you want in your family lawyer. There are a number of qualities that you should expect your lawyer to have. These basic qualities include:

Good standing with their state bar: In other words, the bar association which licenses the attorneys in your state considers this lawyer is fit to practice law.

No disciplinary sanctions: A disciplinary sanction is an action taken against a lawyer by the state agency that regulates lawyers. If a lawyer has a sanction, be sure to investigate, taking into account the severity of the sanction and how long ago it occurred. A sanction can be a minor reprimand, or it can be a very serious punishment like suspension or disbarment from practicing law.

Experience with cases like yours: Most lawyers concentrate in a few areas of the law such as adoption and mediation. Once you know what these areas are, it’s easier to find lawyers with the experience and skills that are relevant to your situation.

Good communication skills: Regardless of your family law case issues, you want someone who keeps you informed and stays in touch, every step of the way. Legal matters can be confusing and your attorney is your advocate and guide. Don’t settle for anything less.

Once you’ve covered the basics, you may think of other qualities you’d like your lawyer to have. A few questions to consider:

Is this lawyer’s office convenient to your home or office?

How much does the lawyer charge?

GET CURRENT WITH THE 2008 FAMILY LAW CODE OF WISCONSIN:

http://wsll.state.wi.us/