Child Support
Residency Requirements and Grounds for Divorce
You or your spouse must be a Wisconsin resident for six months before filing for divorce, and a county resident for at least 30 days in the county where the divorce is filed.
Irretrievable breakdown of the marriage is the only grounds for divorce in Wisconsin. You show this by filing a joint petition in which you and your spouse request a divorce or you've lived separate and apart for 12 months before filing.
If you and your spouse haven't been separated for a year, and only one of you seeks the divorce, a judge must find the marriage is irretrievably broken, with no chance for reconciliation.
A divorce case begins when one spouse files a petition for divorce with the circuit court. The divorce can be finalized without a trial if you and your spouse agree on property and debt division, child custody and child support matters.
After the divorce complaint has been filed, either spouse can request temporary assistance from the court in the form of temporary custody and child support orders, and orders to determine who pays community debts on a temporary basis.
Dividing the Property
Wisconsin is a "community property" state, which means any property acquired during your marriage is treated as being owned by both you and your spouse. The courts try to divide the community property equally.
The equal distribution may be altered by the court, without regard to marital misconduct, based on the following factors:
- Marriage length
- Property brought to the marriage by each spouse
- One spouse owns substantial separate property
- Contribution of each spouse to the marriage, including homemaking
- Age and health of the spouses
- Contribution by one spouse to the education or training of the other spouse
- Earning capacity of each spouse
- Amount and duration of any maintenance payments
- Pension benefits
- Tax consequences to each spouse
- Written agreement made before or during marriage regarding property distribution
Generally, you and your spouse keep your "separate property," which is property you acquired before the marriage, or by gift or inheritance. Also included are insurance payments. However, it's possible for a court to order division of separate property to avoid hardship on a spouse or a couple's children.
Be prepared with information on your property, including when you purchased it, an estimate of value, and details such as account numbers, serial numbers and so forth. You'll be ready to meet with a Wisconsin divorce lawyer and it can save you a lot of time and money.
Alimony
A court can order alimony to either spouse, regardless of marital misconduct. In awarding alimony, courts look at many factors, including:
- Marriage length
- Property division
- Education level of each spouse
- Age and health of the spouses
- Contribution by one spouse to the education or training of the other spouse
- Earning capacity of the recipient
- Feasibility of the recipient becoming self-supporting with a standard of living similar to that enjoyed during the marriage, and the time needed to do so
- Tax consequences
- Mutual agreement made before or during marriage regarding financial support
- Other factors the court finds relevant
Child Custody and Visitation
Generally, the parents agree upon decisions about parenting and custody. If there is no agreement, the courts will make these decisions. The court may grant joint or sole child custody. State law directs courts to presume joint custody is in the best interest of the child. Joint custody includes legal custody, or the power to make child-rearing decisions, and physical joint custody.
In making a custody decision, the court will consider the best interests of the child and several factors, including the following:
- Parents' wishes
- Child's wishes
- Interaction and interrelationship of the child with his or her parents, siblings and significant others
- Amount and quality of time each parent spent with the child in the past
- Child's adjustment to the home, school, religion and community
- Age of the child and differing needs based on age and development
- Whether the mental or physical health of a person living in a proposed custodial household could have a negative impact on the child
- Need for regularly occurring and meaningful periods of physical placement
- Availability of public or private child care services
- Cooperation and communication between the parents
- Whether each parent can support the other parent's relationship with the child
- Evidence of domestic abuse
- Parent's history with drug or alcohol abuse
State law uses the term "physical placement" to describe parenting time instead of visitation. A court can grant a parent contact with his or her child via electronic communication outside that parent's allotted physical placement time. Terms for electronic communication depend on the facts of your case. Courts look at the desire to use such methods and practical matters such as whether the families have devices available for staying in touch.
Child Support
In Wisconsin, either parent may be ordered to pay child support, health care expenses and insurance for each child. The amount is based on a state formula, also called the percentage of income standard. This amount is presumed correct.
A court can deviate from the formula and order a different amount based on these factors:
- Child's financial resources
- Standard of living the child would have enjoyed but for the divorce
- Physical, mental, emotional and educational needs of the child
- Parent's financial resources, income, earning power, needs and obligations
- Age and health of the child
- Best interest of the child
- Maintenance received by either parent
- Desirability of the custodial parent to stay at home and not work outside the home
- Cost of day care if the custodial parent works outside the home, or the value of parent-provided child care
- Tax consequences
- Any joint custody arrangements
Child support may be modified based on a substantial change of circumstances. Examples include a change in the payer's income or earning capacity, a change in the child's needs, or any other factor the judge finds relevant.
Generally, parents must support their children until age 18, or age 19 if the child is still in high school or working on a "GED" or high school equivalency course.
Questions for Your Attorney