What Does it Mean to Legally Separate?
Legal separation is a common form of relief in Wisconsin where the parties to an action have determined they do not wish to proceed with a divorce but wish to live separately and apart and yet maintain some aspects of a married relationship. The period of time in which parties live "separate and apart" is a critical element of a legal separation. That period of time creates a critical distinction between a legal separation and temporary order in divorce action. Temporary orders refer to those orders which are granted in a divorce action prior to the entry of a judgment of divorce between the parties. In a legal separation, on the other hand, no divorce is ever started; no grounds for divorce or annulment exists or is ever alleged in a legal separation. Parties will typically cite "irretrievably broken" as the basis for their legal separation just as they would in a divorce action.
The primary distinction between legal separation and divorce, however , is that at the conclusion of the legal separation neither party is to remarry. The parties remain legally married and continue to enjoy the benefits of the married status as do other couples who are legally married. The distinction between legal separation and divorce is an important one as neither spouse can remarry during the pendency of a legal separation or after the judgment of legal separation is entered. To remarry in those circumstance is considered a crime of bigamy under Wisconsin law. A person convicted of bigamy can be punished by imprisonment not to exceed seven years or fine not to exceed $10,000.00 or both. Wis. Stats. sec. 765.30.
A legal separation involves the entry of a judgment by the court. The categories of relief available to the court are identical to those to be found in a judgment of divorce. The Court can divide property subject to a just and equitable distribution. The Court can determine custody and placement of a party’s minor children. The Court can award maintenance. No less than one year has to elapse between the date of a legal separation and the date of the divorce should the parties choose to ultimately proceed with a divorce.
Why Couples Opt for a Legal Separation Instead of Divorce
Couples may opt for legal separation in Wisconsin for a variety of reasons. Some people object to the concept of divorce on religious grounds, seeking an arrangement that provides them with some measure of separation without the finality of divorce. For many, separation is only a temporary measure while they determine whether separation will lead to the reconciliation or termination of marriage. Others choose legal separation over divorce because of concerns about finances or property rights.
The following factors may influence your decision about whether to consider legal separation or divorce in your particular circumstances: Your faith or belief system forbids divorce. If you and your spouse would like to remain married but plan to live apart, or if divorce is not an option because it violates your beliefs, you may want to consider legal separation. You should be aware that you will not be able to remarry until after you have finalized your divorce. You would prefer to remain legally married. Sensitive to the cultural stigmas associated with divorce, some couples today prefer legal separation as the solution to a deteriorating marriage. Divorce entails a very public admission of failure. Because legal separation does not terminate your marriage, neither spouse must contend with the negative publicity and social pressure often directed at divorced people. You would like to remain eligible for spousal benefits. Legal separation will allow either spouse to maintain eligibility for health benefits, retirement, pension and disability plans. Some insurance policies include coverage for the spouse of a qualified plan member, provided the couple submits an approval agreement. Instead of a divorce, legal separation provides a way to live apart for the purpose of obtaining spousal benefits. You could benefit from the financial safeguards of a legal separation. Placing a financial distinction between you and your spouse reduces the risk of losing assets or incurring debt that belongs to the person completing the paperwork. Legal separation preserves certain assets and protects you from financial threats such as addiction or physical abuse.
Starting Legal Separation in Wisconsin
The process of filing for legal separation in order to obtain a divorce from bed and board requires both spouses to be a resident of Wisconsin for at least six months prior to filing. Then, you must:
- File a Petition for Legal Separation. All forms may be downloaded from the court website. The completed form must be filed with the circuit court in the county where at least one spouse resides. A filing fee is required, and fee waivers are available for those who qualify. If the spouses have minor children, they are required to file a Petition for Custody and Placement as well. Neither court nor filing fees are required when filing a joint petition. However, in that case, the spouses must also file a Notice of Joint Petition for Divorce Without Children with the court within 20 days after the joint Petition for Legal Separation is filed.
- Serve Papers on Your Spouse. Under Wisconsin law, the legal process of having specific family law documents delivered to your spouse is called "service." You may accomplish this either in person or through a third party such as a private process server or sheriff’s department. Service may need to be accomplished in the county where the Petition is filed, in the county where your spouse resides or in another state where the respondent lives.
- Response. If you filed the Petition for Legal Separation on your own, your spouse has 20 days to respond if served in state or 90 days if out of state. If the spouses filed a joint petition, your spouse has no response time because a response is not necessary. In the case of court-approved service via private process server or sheriff’s department, the server must provide a signed affidavit to the court or clerk of courts site where the case is filed proving that service occurred within the allotted time period.
- Complete a Financial Disclosure Statement. Within 4 months after the service of the Petition for Legal Separation is completed, both spouses should fill out a Financial Disclosure Statement and file it with the court. Again, there is no fee associated with this filing.
The financial disclosure allows the court to determine the true financial status of each spouse and is required if you desire the court to enter a final decree of legal separation or divorce. The court may not hear the case until 120 days after the petition is filed; however, it can be heard sooner if each spouse files a waiver and stipulation.
On the day of the hearing, both spouses are required to appear in court. At this time, the judge will inquire into the residency requirements, financial disclosures, grounds for separation and other relevant data. If the judge finds that the separation request fulfills the legal criteria, a legal separation order will be granted. Both spouses are then free to pursue a divorce if desired.
Rights and Obligations
Once an individual decides to file for legal separation, the parties are bound by a number of rights and responsibilities. The obligations you have will depend on how contentious or conciliatory the process is. For those separating amicably, it may be possible to agree on many aspects and simply submit the necessary documentation to the court to consider. However, in high-conflict cases where one party is pushing back, it may become a long, drawn-out affair with many issues that must be resolved in mediation, and potentially through a contested hearing. The amount of financial support either party must provide the other is usually the most highly-contested issue of a separation. This encompasses spousal support (maintenance), child support, and how property will be divided during the legal separation process. A temporary order allowing maintenance is only permitted during a review hearing. An agreement of both parties will be required. In Wisconsin, there are specific guidelines used to determine who pays child support and how much. The percentage guide applies only if there is shared placement of the child. If custody is split, the formula is: ● The non-custodial parent pays 17 percent for 1 child ● The non-custodial parent pays 25 percent for 2 children ● The non-custodial parent pays 29 percent for 3 children ● The non-custodial parent pays 31 percent for 4 or more children If it is determined that your child benefits from having both parents involved as much as possible, then split custody is typically awarded. That could mean the child spends alternating weeks with the parents, or simply a percentage of days with each parent. This has nothing to do with marital assets or income; both parents share equal rights and responsibilities of the child. Visitation and placement, however, are two separate legal issues tentatively granted while a couple is separated. They do not become permanent until the divorce is finalized. There are several conditions that courts impose on parties prior to and during separation. For example: The circumstances surrounding each couple and their ability to communicate and reach an agreement, as well as the financial situation of each party, will determine the likelihood of being able to separate amicably.
Time Frame & Modification
Generally speaking, a legal separation in Wisconsin will continue for an indefinite period of time unless the parties agree to shorten the separation period or the court finds reason to modify the terms of the judgment. If the legal separation was based on an irretrievable breakdown of the marriage, however, the court may not modify the terms of the separation without finding that there has been a change in circumstances since the date of the judgment .
If it was the intent of the parties that they would eventually reconcile, the terms of the judgment should include a provision that both parties agree that they will consider the possible reconciliation to be in their best interests and in the interests of the minor children. If both parties make efforts toward reconciliation, the court’s findings will be limited to the specific issue of whether such efforts have been made. Neither party will be allowed to argue that the facts that provided the basis for the legal separation should not be taken as true when addressing the need to make fact determinations regarding the marital settlement agreement and its implementation.
Effect on Children and Family
When a couple legally separates, their children can be profoundly affected by the step. The circumstances around a divorce can lead to emotional adjustment in children, and if their parents choose to reconcile this can have an effect on the family dynamics. Of course, for some families, the impact of the change leads to final dissolution. A legal separation entitles a couple to enter into a binding contract settling many of the important issues of the divorce. The couple is still married, but all items that would ordinarily be items of negotiation in divorce are resolved in the separation. These include property division, debt responsibility, spousal support, and parental responsibilities. Because the separation is subject to the jurisdiction of the family court, the family court may modify the legal separation based upon any changes in circumstances, such as the ill health of one of the parties or a change in employment status. Even if parents do not retain the services of a child specialist, a legal separation is a time of transition for children, who will benefit from the knowledge that they will continue to have both parents in their lives. A parenting plan will be developed for the resolvement of day-to-day caretaking responsibilities for children, which includes a time-share schedule. A separation agreement can also set forth reasonable limits on the children, such as not consuming alcohol during parenting time with the children until a certain age, not introducing the children to new partners until a certain yew of dating has been accomplished, or obtaining approval before moving out of state. There are a number of advantages to separating before divorce. As mentioned above, in matters of child custody and placement, the legal separation agreement will serve as a parenting plan. In a divorce, the same terms will have to be agreed upon again. Thus, the timeline from legal separation to divorce is generally shorter than that for those who do not separate before the divorce process.
Consult a Wisconsin Family Law Attorney
If you are thinking about legal separation in secret or have already begun the process, it’s a good idea to consult with a family lawyer as soon as possible. Wisconsin has a very complicated family law code and your family may have various legal issues that a qualified family law attorney can help you understand. Any seasoned divorce lawyer will likely tell you that the most common reason he or she has seen clients fail to settle their divorce cases is because the client did not consult with a lawyer early enough. While it is not essential to fight over every issue, it is crucial to address each issue in your case, even if it is minor. A few hundred dollars spent with an attorney in the beginning can potentially save tens of thousands of dollars in court costs.
These minor issues may include how the parties and their children will handle the holidays, special birthdays, how to address household repairs, how to pay tax liabilities, how to file taxes, or how much child support can the parties afford to pay. Even the simplest of family law cases can become very contentious. Some of the best legal research helps lower the temperature and emotional content in family law cases, and this can be best done with a family law lawyer.
An experienced family lawyer will know that there is almost always more than meets the eye. For example, many clients do not understand that child support and maintenance (alimony) are paid with after-tax dollars, and that the money available for support is thus less than the gross amount of monthly income. Further, the parent paying child support may pay on net income which is far less than the gross wages from employment . Experienced attorneys know that a 20 percent reduction in gross income can account for tax withholding, health insurance premiums, retirement contributions, and other mandatory payroll deductions. So, someone working overtime may have only a small increase in cash flow in terms of additional funds available for alimony or child support.
Other common issues involve which party will claim a child on their taxes, even though the tax law provides specific criteria for who can claim the dependent child. Again, a few minutes spent with an experienced lawyer can help reduce the emotional strain placed on children by the parties. Lawyers who address these issues early can save their clients a lot of heartache in the future.
Another significant area of law that requires an understanding of a client’s finances is dividing a retirement account. Most laypersons do not know that lawyers and financial professionals need to divide a retirement account in a very specific manner. A retirement account cannot simply be divided in half pursuant to a divorce decree or property settlement agreement. A lawyer needs to apply to the court for a Qualified Domestic Relations Order (QDRO) or other Order addressing the division of the retirement account. These QDRO’s or Orders must be prepared in very specific fashion so that they are accepted by a third-party administrator and by the custodian of the account. If improperly drafted, a lawyer’s work can be essentially worthless. So, a thousand-dollar mistake at the beginning of the case, could affect a retiree’s cash flow for the rest of his or her life.