Pursuant to Wisconsin statutes, except for certain emergencies, a final hearing cannot be held for a minimum of 120 days.  However, the divorce process may, in fact last much longer depending on the complexities of the case.  Divorces are concluded mist rapidly when the parties are able to agree upon the issues related to debt and property division, child support, and spousal maintenance.

Once the divorce is final, both parties must wait at least six months before remarrying.

Temporary Hearings

Since the divorce process may span many months, either party may schedule a temporary hearing in order to resolve urgent issues on a temporary basis such as the issue of temporary custody, physical placement,   child support, spousal maintenance, and payment of debt. Such temporary orders remain in effect until the divorce is finalized.  Temporary orders may be reviewed during the process if there is a change in circumstance.  To commence a temporary hearing the following documents must be served and filed: 

• An Affidavit for Temporary Relief sets out the facts on which a party will rely to support his or her request for relief. Relief requested may include temporary arrangements for child custody and placement, visitation, support, maintenance, division of debt and assets or spousal maintenance. 
• An Order to Show Cause  or a Motion for Temporary Relief informs the other party of  the time and date of the hearing before the family court commissioner who will establish the temporary orders and compels that party's appearance at the hearing.

  A Family Court Commissioner will generally preside at a temporary hearing. The Family Court Commissioner is essentially an assistant judge with the same broad authority of a Judge to make orders in the divorce on a "temporary basis."  At a temporary hearing the Court Commissioner will wish to see  a completed financial statement from each party.  The financial statement provides the commissioner with a summary of each party's income, assets and liabilities.  You should also bring to the hearing any information that is critical to the issues in dispute. 

  Temporary orders are not supposed to have "precedential" value at the final hearing.  This means that a temporary order should not be considered by the Court when making a final ruling on the issues. Unfortunately, that is not always the case in practice.  Often Judge's lean toward preserving the status quo which means that a party that receives a favorable temporary order may have obtained a significant strategic advantage over the other party at the time of the final hearing. Any decision that is made by a family court commissioner may be appealed to a Judge of the  circuit court. At the new hearing, the Court must hear the issues "de novo." This means that the issue is hear new without giving any weight to the prior decision by the Court Commissioner.

Child Custody: 

Child custody is one of the most contentious issues in a divorce proceeding.  It is important to remember that there are two kinds of custody 

• Legal custody refers to the right of the parents to participate in important decisions in the lives of their child(ren). This specifically includes decisions related to schooling, medical care, religion, extra-curricular activities and other important events. There is a very strong presumption under Wisconsin law that these responsibilities should be shared by the parties. The only time that legal custody is not shared is when the parties demonstrate a complete inability to communicate or where there has been domestic abuse.
• Physical Placement is what most people think of when they hear the term custody. It refers to the primary physical residence where the child will live. What used to be referred to as visitation with the other parent, is now called "periods of temporary placement". There is a presumption under Wisconsin law that each party is entitled to the maximum period of physical placement.  This means the mother and the father are equally entitled to the custody of the child. However, in making a determination regarding physical placement, the court must determine what is in the "best interest of the child."  This determination is made, in part, by considering all facts relevant to the best interest of the child including the following statutory factors:
  • The wishes of the child's parent or parents. 
  • The wishes of the child, which may be communicated by the child or through the child's guardian ad litem or other appropriate professional;
  • The interaction and interrelationship of the child with his or her parent or parents, siblings, and any other person who may significantly affect the child's best interest;
  • The child's adjustment to the home, school, religion and community;
  • The mental and physical health of the parties, the minor children and other persons living in a proposed custodial house-hold;
  • The availability of public or private child care services;
  • Whether one party is likely to unreasonably interfere with the child's continuing relationship with the other party;
  • Whether there is evidence that a party engaged in abuse, as defined in s. 813.122 (1) (a), of the child, as defined in s. 48.02 (2). 
  • Whether there is evidence of interspousal battery as de-scribed under s. 940.19 or 940.20 (1m) or domestic abuse as de-fined in s. 813.12 (1) (a). 
  • Whether either party has or had a significant problem with alcohol or drug abuse;
  • Such other factors as the court may in each individual case determine to be relevant.

Where custody and placement disputes exist, the parties may be ordered to participate in mediation. If mediation fails, the Court appoints a Guardian Ad Litem to represent the interest of the children and to make recommendations related to custody and physical placement. The Court may also require a custody evaluation performed by court services. 

Guardian Ad Litem & Custody Evaluations

If custody cannot be resolved in mediation, then the court must proceed with a custody determination. To facilitate the process and evaluate the allegations of each of the parties, the court will appointment a guardian ad litem to represent the interests of the children. The Guardian Ad Litem operates, to an extent, as a legal counsel for the children and is charged with seeing to their best interest in the legal proceeding. The Court may also require a custody evaluation performed by the county social service agency. As part of a “Custody Evaluation” an evaluator meets with the parties and evaluates the custody issues based on the factors for determining custody that are spelled out by Wisconsin Statutes. Once the custody evaluation is complete the evaluator submits a report to the Court which will recommend a custody and visitation schedule that the evaluator believes is in the child’s best interests.

This report is a critical element of your case. Although custody studies may be challenged in court, many Judge’s defer to the recommendations of the evaluator because, unlike the parties, they are deemed to be an independent witness without any personal Interest in the outcome. As a result how you relate your case to the evaluator is very important.

To learn more about custody evaluations, Click Here.
 

Child Support in Wisconsin

In Wisconsin, child support is based on a percentage of the gross (pre-tax) income of the parent without primary physical  placement.  The percentages applied are as follows: 17 percent for one child; 25 percent for two children; 29 percent for three children; 31 percent for four children; and 34 percent for five or more children. 

These percentages form a presumption that may be rebutted. This means that the Court will generally follow the guidelines unless it makes specific findings that the guidelines should not apply because they are overly burdensome and unfair in a particular case.

As previously stated, there is a presumption that each parent's time with the children should be maximized. Often this equates to joint physical placement.  If a Court awards joint physical placement, that is the children live about equally with each parent, child support is usually reduced to reflect the shared placement time. The court may also require each parent to pay child care costs as additional child support in proportion to the number of days each parent has the child in his or her care. Child care costs may encompass many thins including food, school expenses, sports activities, clothing and day care.

After child support has been set, it may always be modified if there is a change in circumstance. Since child support is based on a percentage of gross income, it may be reduced if income decreases or increased if income rises.  This does not occur automatically, however, and must be commenced by filing a motion with an affidavit supporting the modification request.  If there is a change in circumstance (increased or decreased earnings), you must act quickly. Remember child support cannot be forgiven except from the day  that you file your motion for a change in child support.  Make sure that you provide the Court with documents demonstrating the  increased or decreased earnings such as paystubs, tax returns or with other important evidence.

Child support ends at age 18 if your child is out of high school. If your child is over 18 but still in high school, child support can continue to age 19. 
 

Alimony/Spousal Maintenance

Either spouse may be ordered to pay alimony, without regard to marital fault, if it finds that the spouse seeking maintenance: (a) lacks sufficient property, including marital property apportioned to the spouse, to provide for reasonable needs of the spouse considering the standard of living established during the marriage, especially, but not limited to, a period of training or education, or (b) is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment, or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.