Divorce and Legal Separation

Divorce in Wisconsin is governed by Chapter 767 of the Wisconsin Statutes. Whether you plan to represent yourself or hire an attorney to represent you, it will be useful to familiarize yourself with these statutes, and particularly the substantive subsections that are relevant to your circumstances: Child Custody, Placement, and Visitation (subsections 767.401 through 767.481); Support and Maintenance (subsections 767.501 through 767.59); and Property Division (subsections 767.61 through 767.63).

Even the most amicable divorce inevitably involves intense emotions. We encourage you to click on the “Preparing for your Family Court Case” tab above and utilize the resources cited there to help you prepare emotionally for the process of divorce. The attorneys at Wessel, Lehker & Fumelle are always willing to listen, and we do our best to help our clients with the emotional adjustment, but counseling (often paid for by insurance) can provide more assistance and can save you legal fees.

Below are discussions of topics that are relevant specifically to divorce. We invite you to click on other sections of this website that also may be relevant to your case, such as maintenance, child support, and custody and placement.

A legal separation is nearly identical to a divorce. The court divides the parties’ property, determines whether one party must pay maintenance to the other, and if there are minor children decides the issues of custody, placement, and child support, all in the same manner as a divorce. The major difference is that the parties to a legal separation cannot remarry. Also, if legally separated parties reconcile, they can ask the court to revoke the judgment of legal separation. Wis. Stats. Sec. 767.35(4).

Why, then, do people seek a legal separation rather than a divorce? Some people seek a legal separation for religious reasons. Sometimes getting a legal separation rather than a divorce allows one party to continue to provide group health insurance for the other party, depending upon the terms of the health insurance policy. Wis. Stats. Sec. 632.897(2)(a). This can be financially beneficial for both parties because a party who is able to continue health insurance for a legally separated spouse might have a reduced exposure to making maintenance payments. In this situation Attorneys Wessel, Lehker, and Fumelle advise our clients to insist on an order that holds open maintenance and requires a review of maintenance if the legal separation is converted to a divorce.

The court must convert a legal separation to a judgment of divorce if both parties agree. Alternatively, the court must convert a legal separation to a judgment of divorce if one party requests it more than a year after the judgment of legal separation. Wis. Stats. Sec. 767.35(5).