Requirements for Service in Family Law in Wisconsin

In the law, “service” is a term for providing formal notice of a lawsuit, court hearing or document to another person. Depending on the action that is being filed, there are different methods and very strict time limits by which you must have the other party notified, or served.

Service is critical in all cases, because if you do not serve the other party within the correct time limits and using the correct method, the court cannot hear or come to a decision on your case. There are two types of service: personal service and service by mail.

Personal service can be accomplished by the following methods:

(1) Admission of Service– a form where the other party may admit that they were served once they receive a copy of the forms

(2) Service by the Sheriff’s Department

(3) Service by the Private Process Server

(4) Service by someone who is over 18, a resident of Wisconsin and is not a party to the action.

(5) As a last resort, you can complete service by Publication. You MUST show that you have attempted one of the four methods above before resorting to publication and usually the court must approve this method first.

If you are serving something by mail, you must provide proof by either signing a sworn Affidavit of Mailing in the presence of a Notary Public and giving a copy to the Court OR by some type of mail receipt such as certified mail.

Below are some of the different family court actions that are filed, the type of service required for each action, and the time limits in which the action must be served:

1. Summons and Petition for Divorce/Legal Separation:  Must have personal service and must be served within 90 calendar days from the date the divorce/legal separation was filed

2. Order to Show Cause and Affidavit (i.e. for Temporary Order): Personal service is required and must be served not less than 5 business days before the date of the hearing or as otherwise ordered by the court.

3. Response and Counterclaim:  Can be served by mail and must be filed within 20 calendar days after the date of service.

4. Order to Appear:  Must be personally served and not less than 24 hours if the other party lives within the county the action is filed OR not less than 72 hours if the other party does not live in the county the action is filed, but in the State of Wisconsin.

5. Notice of Motion and Motion:  Contempt motions must be personally served but all other motions can be served by mail.  Service must be not less than 5 business days before the date of the hearing.

6. Petition to Enforce Placement:  Personal service is required not less than 5 business days before the date of the hearing.

If the other party is represented by an attorney, copies of all documents must be sent to the attorney.  If service by mail is required, the document is to be mailed to the attorney, not to the party.

What is the Difference Between a Petition for Divorce and Joint Petition for Divorce?

In a Wisconsin divorce action, there are two potential options when filing for divorce, one of which being more common than the other.

  1. Petition for divorce: This, being the most common action, is when one party (the petitioner) files an action against the other (the respondent).  The Petitioner is the only one who signs the paperwork.   Once the petitioner has filed for the papers, he/she must serve those papers on the respondent.
  2. Joint Petition for Divorce: In the event both you and your spouse agree that a divorce is the best option you may both file for a joint petition.  By filing a joint petition, both spouse sign the paperwork alleviating the need for service of process.

It cannot be stressed enough the importance of good counsel throughout this process. Make sure to seek qualified and experienced family law practitioners to ensure all your legal needs are met and that no stone has been left unturned. Too often during this process details are lost in the fine print of legal documents, creating a potential for more suffering and even financial loss.

To schedule a free initial office consultation to discuss your options for divorce, please contact us at 414-258-1644 or visit our website for further information.

Where Do I File for Divorce in Wisconsin?

When the frustration, hopelessness, and pain you’re experiencing in your marriage have become too much, and a divorce is unavoidable, it’s time to take the first step and file for divorce.  Before you can do this, however, you need to consider the residential requirements.

In order to file for a divorce in Wisconsin, you must be a resident of your current county for at least thirty (30) days, and a resident of Wisconsin for at least six (6) months.

In the event you have resided in your current county for over thirty (30) days but have not been a resident of Wisconsin for at least six (6) months, you can file a petition of legal separation which only requires 30 days of residency. Since the procedure for divorce takes at least four months, it is likely that you will meet the six (6) month requirement prior to the final hearing.   When you meet six (6) month requirement, you are then eligible to have your legal separation converted to a petition for divorce.

Here are some different scenarios to illustrate the jurisdictional requirements for divorce in Wisconsin:

Example 1:  If you have been living in Wisconsin for more than six months and West Bend for more than thirty days, you are able to file a petition for divorce in the Washington County Courts immediately.

Example 2:  If you moved out of the home you shared with your spouse in Waukesha County and changed to a Dodge County address, you can file for divorce in Washington County immediately. Or, you can wait for thirty days and then file in Dodge County.

Example 3:  If you have moved to Wisconsin from out of state and will be seeking a divorce in the near future, it will take thirty days of residency in order for you to file a petition of legal separation. Once you have been in the state for six months the petition of separation can be changed to a petition for divorce.

If you find yourself in a situation where you have a choice of venue (where you can file), you should consult with an attorney to determine which place will be more beneficial to you.  Counties have different rules, procedures and judges which may make a difference in your case.  The laws in various states are also very different, which you may want to take into consideration.

As if divorce isn’t hard enough, the frustration brought on by the legal “hula-hoops” one has to jump through only makes it worse. By being knowledgeable about where and when the process can begin, you will save you unnecessary headaches.

If you have any questions about where to file for divorce and would like to meet with one of our lawyers for a free initial office consultation, please call us at 414-258-1644.  You can also visit our website for more information.

Can I File a Divorce Myself in Wisconsin?

I am sure a lot of divorce lawyers would be unhappy with me if they read this but the answer is YES!  Now, that doesn’t mean you don’t need a lawyer to represent you in your divorce.  But filing the paperwork is easy and will save you some money off the top.  See our next post for information about whether you need to hire a divorce attorney.

Many counties in Wisconsin have self-help centers or volunteer lawyers or paralegals who come In for limited hours to assist people.  Notably, Waukesha and Milwaukee County have wonderful self-help centers with all of the forms and instructions that you need.

The Wisconsin Court Access system also has an Online Family Law Forms Assistant which will direct you to the correct forms after you answer certain questions (do you have children, etc.).  This will walk you through the process and give you different options such as printing out blank forms or having the forms completed for you after answering certain questions.  There are also tutorials for certain counties which explain exactly what you need to do.

These forms are fill in the blank and check the box. There is nothing complicated about them.  As long you file the correct forms, which basically differentiate between children or no children, and answer the questions correctly, there are not too many mistakes you can make on these forms.  Even if you do, an attorney can always amend them later for you.

There is some time involved.  You need to make several copies and take them to the courthouse which can be intimidating or inconvenient, especially in Milwaukee.  Unless you are filing jointly with your spouse, you also need to arrange for services of the papers on your spouse.  Given that, most people simply would rather have an attorney take care of this for them.  That is perfectly fine and we are happy to do that.

However, if you can navigate through the forms and have some time to take care of this yourself, you certainly can save yourself some attorney fees by doing so.  After filing, simply call or visit us and we can pick up your case from there.

The Wisconsin Coalition Against Domestic Violence created a very helpful flowchart which tells you all of the steps you must take to file for divorce.  Click here for this helpful tool.

Whether you choose to file the papers yourself or have us prepare them for you, please contact us for your free initial office consultation at 414-258-1644 or visit our website for more information.

What To Expect From Your Divorce Consultation

In researching potential blog topics, I ran across an excellent article written for the State Bar of Michigan: The Initial Consultation with Your Divorce Attorney: What to Expect When You Don’t Know What to Expect .   This article is so well written and so thorough that I really don’t have much to add.  But, I will summarize and comment.  I will also discuss in terms of our office and our procedures at Nelson & Davis, LLC.

The first topic discussed is the article is the initial contact and information you need to provide.  When you call our office, we will ask for some basic information such as what type of action you have or may have, what county you reside in and whether an action has already been started.  This is important because it assists our intake coordinators in determining whether we can help you at all.  We do not practice in certain counties and people sometimes are confused as to what constitutes a “family action”.  Our office only handles divorce and paternity cases.

If we determine that your case is something we can help you with, we will tell you what our retainer is and ask you whether you would like to schedule an office appointment.  We don’t want you to be surprised by our retainer only after you take the time to come to our office and we don’t want to waste your time or ours if you don’t want to, or can’t, pay our fees.  We also will only do in-office appointments and not telephone consultations except in rare cases.  There are some attorneys who will do telephone consultations but we find it works best if we meet potential clients in person.

If you decide you want to schedule an appointment, we then ask your name and the name of your spouse or other party.  This is crucial information and sometimes people do not want to give it to us but we will not schedule an appointment without it.  We keep that information confidential but we must determine if we have a conflict of interest.  The most common conflict is that we have already met with the other party.  In that case, we cannot meet with you.  We do not disclose that fact (nor will we ever disclose that to the other party if he/she contacts us) but simply will tell you that we cannot meet with you because we have a conflict.  However, there may be other conflicts.  One of our attorneys may know you or your spouse/the other party in another way and may feel it would be a conflict to represent you.  Or, we may have represented someone connected to you such as your employer, an employee, a relative or a business associate.  Those individuals are a great source of referrals for us and it usually is not a problem but, depending on the facts, we also may consider it a potential conflict.  Whenever there is a potential ethical issue for us, we try to err on the side of caution.

When you come in for your appointment, we will also ask you to fill out an intake questionnaire.  We will ask you to provide more specific information including your income and assets.  The reason for this is so we can provide you more detailed information about what to expect in your case.  All of this information is kept strictly confidential.  The article does a very good job in describing the type of information you will be asked to provide and why.  Keep in mind, if you are uncomfortable in providing any of this information, simply discuss that with the attorney you are meeting with.

The one difference or problem I have with the article is that it indicates that the attorney will be giving you advice at your initial consultation.  This is not true! Until we are actually retained, we cannot provide you with legal advice.  However, what we will do is review the facts of your case, tell you what the law is, what the process is, what you might expect to happen and what we can do for you.

In our firm, it is our goal to provide you with realistic expectations about your case.  Keep in mind, we may tell you things that you are not going to be happy with.  However, we are going to give you an honest evaluation of your case.  It does not help you if we fill you with unrealistic expectations only for you to lose or be disappointed later.  If you want the kind of attorney who is simply going to do whatever you want, then we are not the firm for you.  Be forewarned though – hiring that kind of attorney is only going to cost you attorneys fees and disappointment later.

We have some other blog posts which you may find helpful which discuss what type of attorney to look for, when to start looking for a divorce attorney and what questions you can ask at you initial consultation (Archives – May, 2012).

If you have any questions or would like to meet with one of our lawyers for a free initial office consultation, please call us at 414-258-1644.  You can also visit our website for more information.

Does It Matter Who Files For Divorce in Wisconsin?

Wisconsin is a no fault state.  This means that the only ground for divorce is irretrievable breakdown and all fault issues are largely irrelevant as to the divorce itself.  Therefore, it does not matter who files or initiates the divorce action in Wisconsin.

Further, there is really no advantage as to who files a divorce action.  There are consequences, however.  For example, the person who files the action, known as the Petitioner, has to pay the court filing fee which is close to $200.00.  Furthermore, the Petitioner is typically responsible for the preparation of the majority of the paperwork throughout the action which could possibly result in additional attorneys fees.

However, sometimes there is no choice but to file.  If a spouse is disposing of assets, refusing to pay bills, being verbally or physically abusive or engaging in other harmful activities, it is time to consult an attorney to discuss filing for divorce.

To schedule a free initial office consultation to discuss filing for divorce, please contact us at 414-258-1644 or visit us at Nelson, Krueger & Millenbach, LLC  for further information.


Should I File for Divorce?

Whether to file for divorce is one of the most difficult decisions you could ever face. There are no easy answers. If you are asking yourself this question, your marriage is probably already in serious trouble. You should give careful consideration to all of the consequences a divorce could have for you and your family. Here are some thoughts that may help you to decide.

The most important part of this question has to do with why you are thinking about a divorce. There are some serious problems that simply cannot be solved such as physical abuse, child abuse, mental illness, criminal activity, fraud, etc. If you find yourself in one of these situations, there is very little you can do to resolve them especially if your partner is the one who has the problem. For your safety or your child’s safety, you may not have a choice but to seek a divorce to get protection from the legal system.

There are other reasons you may be thinking about a divorce that are not so clear cut but still very serious. For example, drug or alcohol abuse or another addiction could be the issue. Of course, your spouse can seek treatment and if he or she does, this could save your marriage. Unfortunately, many of these people will not seek treatment unless they truly want to and/or until they “hit rock bottom”. Sometimes, the “rock bottom” doesn’t happen until they are charged or convicted of a crime or being in a serious accident. However, sometimes the impetus for change is a divorce – the loss of their marriage or family. In that case, filing for divorce could actually help the person get their life back on track and seek treatment. In either case, if the situation becomes dangerous or unbearable for you or your family, you may need to file for divorce.

Money issues sometimes trigger this question. If you have a spouse who gambles, for instance, or, if your spouse simply cannot manage money or stop spending, you may need to seek some financial orders from the court to protect your assets. If your spouse is making poor financial decisions such as bad business decisions, refusal to pay debts or disposing of assets, then you also may need to file for divorce to prevent a waste of marital money. We are now seeing a lot of cases which involve the loss of a job where the spouse either cannot or will not get a job. They become depressed and sit home doing nothing. This may not arise to the level of having to file for divorce but perhaps talking about it will motivate them to get off the couch.

Infidelity or cheating is a common cause for the question of whether you should get a divorce. The answer varies extremely based upon the individual – can you move past this issue or do you want to? Some people can forgive and move on. To some people, this is an unforgivable offense. Before you make the decision, however, you may want to attempt counseling. Divorce is not an easy answer to marital problems. Cheating is usually a symptom of problems in an individual or a marriage – not necessarily the cause of the problems. If you can resolve the underlying problems, perhaps your marriage can be saved.

There are a variety of other reasons for divorce – growing apart, changes in personality, changes in life views and goals, incompatibility, control issues, verbal abuse and emotional abuse are all common themes. The real question you have to ask yourself is whether these problems can be resolved and, if not, whether you can live with them. As to whether they can be resolved, this is a two-way street. If your spouse is willing to try to resolve them, you should obtain professional help to assist the two of you in working through these issues. If your partner refuses to acknowledge or work on them, then they cannot be fixed. At that point, you need to decide how you want to live the rest of your life.

Divorce is a deeply personal and difficult decision and not something you should rush into. Absent safety issues or financial emergencies, there are not necessarily any legal reasons why you would need to file. You should seek the advice of an attorney so that you are aware of all of the consequences of a divorce to you and your family. Most attorneys offer free initial consultations. If you do decide to file for divorce, make sure you have all of the information you need and are as prepared as possible. Often, a little pre-divorce planning goes a long way in saving you time, money and stress.