Legal Separation v. Divorce in Wisconsin

Separation agreement

When you are married and seeking a separation from your spouse, you can either file for legal separation or for divorce in Wisconsin.

Regardless of which action you decide to file, the same issues are addressed and the same “120-day waiting period” is present in both actions before a judgment can be granted. The issues addressed in both actions are custody of the children (if any), physical placement of the children (if any), child support (if there are any children of the marriage to support), property and debt division, and maintenance.  In order to file for divorce, you must be a resident of the State of Wisconsin for six (6) months.  For a legal separation, the residency requirement is thirty (30) days.

The main difference between the two actions is that a divorce ends a marriage and a legal separation does not end a marriage. When a divorce is granted, the marriage ends and the parties are advised that they cannot remarry anywhere in the world for at least six months. When a legal separation is granted, the parties are cannot marry another person while they are legally separated.

All assets and debts are still divided in either action and that division is considered final.  For all intents and purposes, a legal separation severs the financial relationship between the parties.  Therefore, after a legal separation is granted, the parties cannot create marital property or debt and they are not able to file their taxes as a married couple.

It is important to know, however, that either party may convert the legal separation into a divorce after one year from the date the legal separation was granted or sooner if both parties agree.

For all of the reasons stated above, it is also important, in both a divorce and a legal separation, to be sure that you have fully considered all of the issues and what the effect of either action will be, both financially and as it concerns your children. Finding an experienced family law attorney is the first step in that process.

If you wish to speak with an attorney about filing for legal separation or divorce, please call our office at (414) 258-1644 for a free consultation.

Types of Family Actions of Wisconsin – Divorce and Alternatives

In Wisconsin, there are three actions that affect a marriage: divorce, legal separation and annulment.  All three actions serve to end or separate a marriage.

The legal basis for a divorce is that one or both of the parties must testify that the marriage is “irretrievably broken.”  Once a 120 day waiting period passes, a Judgment of Divorce can be granted that terminates the marriage.  After six months, the divorced parties are free to remarry.  In a divorce case, property and debt is divided, maintenance (alimony) is determined, and if there are minor children, custody, placement and child support is decided.

A legal separation is similar to a divorce, except that the legal basis is that there is a “substantial breakdown of the marital relationship.  Parties must also wait 120 days before a Judgment of Legal Separation can be granted.  Like a divorce case, property and debt is divided, maintenance (alimony) is determined, and if there are minor children, custody, placement and child support is decided.  The significant difference is that a legally separated couple cannot ever remarry, unless the Judgment of Divorce is granted at a later date.

An annulment may be granted if the Court determines that the marriage was prohibited from the start (due to age of a party, incompetence, influence of drugs/alcohol, one party was already married) or that there was a “fraud to the essentials of the marriage.”  An annulment means that the marriage never occurred.

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

Alison H.S. Davis