no fault divorce

What If My Spouse Won’t “Give” Me a Divorce?

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“My spouse won’t give me a divorce”.  Whenever I read advice columns in newspapers or magazines, I often run across this question or statement.  I have even heard it in my practice in Wisconsin.

There are two parts to the answer to this question. The first is legal.  In Wisconsin, we have a no fault state.  This means it does not matter if both parties want the divorce or not.  It takes two people to be married so only one person has to testify that the marriage is over and the court will grant a divorce.  This is true in many other states as well.  In fact, some form or the other of a no fault divorce is available in all 50 states at the present time.

Some states require a waiting period in order to obtain a no fault divorce.  In order to avoid the waiting period, those states still require a proof of fault to obtain a divorce.  However, in many of those states, the level of fault necessary is so low or minimal that it is not very difficult to get divorced at all.  The government (courts) simply cannot force people to stay married to one another.

The second part to this answer to this question relates to power and control.  Often, as a threat, a controlling or abusive spouse will say whatever necessary to keep their spouse from leaving.  It is most often in this context that I hear this question.  Again, be assured that if you no longer want to be married, the courts will honor this request.  It is true that your spouse can make the divorce difficult. They can delay and be disagreeable.  They can refuse to cooperate or drag their feet.  There are ways to address these situations.  However, many divorces are difficult for a variety of reasons. That is the nature of the process and the people going through it.

But, if you are asking this question, there are significant problems in your marriage.  Either way you are facing difficulty. At least with a divorce, there is light at the end of the tunnel and an eventual end to this painful situation.

For the best possible result in your divorce, you should always at least consult with an experienced divorce attorney.  Most divorce attorneys offer free initial consultations.  Take advice from and listen to someone who knows the law and the process, rather than listening to your spouse who is simply trying to threaten or control you.

Does It Matter Who Files For Divorce in Wisconsin?

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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.

 

About Divorce in Wisconsin

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WISCONSIN DIVORCE FAQ’S

HOW DO I BEGIN DIVORCE PROCEEDINGS?

To begin a divorce, you must file with the Court a Summons and Petition for Divorce (generally referred to as the divorce pleadings). Your spouse must then be served with this Summons and Petition for Divorce within 90 days after filing. You can file a motion with the Court asking that this 90-day deadline be extended; however, it would be up to the Judge assigned to your case to decide whether or not to extend this deadline. There are two ways you can serve the Summons and Petition for Divorce on your spouse: (1) your spouse can sign an Admission of Service at our office or his/her attorney’s office, or (2) our process server or a sheriff’s deputy can personally serve the pleadings upon your spouse.

WHAT DO I DO IF I AM SERVED WITH DIVORCE PAPERS?

After you are served with divorce pleadings, call Nelson, Krueger & Millenbach, LLC to schedule a complimentary consultation. Once you retain our legal services, we will review the pleadings with you and prepare a Response and Counterclaim on your behalf for filing with the Court. You must file a written Response and Counterclaim within 20 days from the date you are served with the Summons and Petition for Divorce. This must be sent to the Court with a copy sent to your spouse or his/her attorney. If you do not file a written Response, the Court could enter a default judgment against you in the future.

If you also want the divorce, you should also file a Counterclaim for Divorce. This means that if your spouse changes his/her mind in the future and asks that the divorce be dismissed, the Court could deny that request and grant you a judgment of divorce instead based on your counterclaim.

WHAT IF I DON’T WANT A DIVORCE?

Wisconsin is a “no fault” divorce state. The only basis for a divorce in Wisconsin is that the Court finds that your marriage is irretrievably broken and that there is no likely possibility of reconciliation. Because it takes two willing people to have a marriage, the Court will most likely grant a judgment of divorce even if only one party wants the divorce as long as one party testifies that he or she feels that the marriage is irretrievably broken and that the marriage cannot be repaired.

HOW LONG DOES A DIVORCE TAKE?

There is a mandatory 120-day waiting period in Wisconsin during which your divorce cannot be finalized. Most divorce cases take between six months to one year to finalize. The time period can vary based on the County in which your divorce is filed and the issues involved in your case. The specific facts of your case will determine the timetable for the completion of your case. However, our goal is to complete your divorce as quickly as possible. We understand that you need to move on with your life and that you do not need a long and protracted court action.

HOW DO I SUPPORT MYSELF OR SEE MY CHILDREN WHILE THE DIVORCE IS PENDING?

In most cases, Temporary Orders are needed to determine where each party will live, when each party will see the children, and how each party will be financially supported and pay bills. These Temporary Orders are Court Orders and can be determined by the Court’s decision or upon an agreement (called a Stipulation) between the parties. These Temporary Orders remain in effect during the time it takes to complete your divorce case.

Temporary Orders could cover the issues of temporary custody, placement, support, maintenance, temporary use of personal property and/or bank accounts, temporary use of the marital residence, and temporary allocation of debts. While these orders are temporary and should have no bearing on the final outcome of your divorce, in reality, many courts continue temporary orders as permanent orders if they are appropriate in your case, especially orders regarding custody and placement of your children.

HOW DO I OBTAIN THESE TEMPORARY ORDERS?

To request Temporary Orders, you must file an Order to Show Cause for Temporary Orders and an Affidavit for Temporary Orders. These documents compel your spouse’s appearance at a first or temporary hearing which is almost always scheduled before a court commissioner rather than a judge. This temporary hearing is usually scheduled within three to six weeks of the date you request a hearing depending on the County in which your case in pending.

Prior to the hearing, you and your spouse can negotiate terms of a Temporary Stipulation. These stipulated orders are done without the need for you to appear in Court and, when filed with the Court, carry the same legal protection as if you personally appeared in Court.

WHAT IF I DON’T LIKE THE COURT COMMISSIONER’S DECISION?

If you do not agree with the court commissioner’s Orders at this first or temporary hearing or any other hearing before a court commissioner, you may request a Hearing De Novo before the judge assigned to your case. A Hearing De Novo is a hearing where the judge hears the matter as if it had not been heard before and is not supposed to give any deference to the court commissioner’s decision. A Hearing De Novo must be scheduled promptly after the hearing before the court commissioner’s (7 – 15 days in most counties).

WHAT IF MY SPOUSE LEAVES ME FOR SOMEONE ELSE OR IS LIVING WITH SOMEONE ELSE?

Because Wisconsin is a “no-fault” divorce state, one party’s infidelity is irrelevant in most cases. The court cannot consider this fact in dividing property, awarding maintenance, setting support or other financial matters. It can impact on custody and placement issues, however, if the significant other has a negative or harmful impact on the minor children.

HOW ARE PROPERTY AND DEBT DIVISION, SUPPORT, CUSTODY AND PLACEMENT DETERMINED AT THE END OF MY DIVORCE CASE?

Please see our other FAQ’s for additional information on these issues. Your attorney at Nelson, Krueger & Millenbach, LLC will work with you throughout your case to provide educated and experienced guidance to assist you in making good legal decisions for yourself in your divorce action.

WHAT OPTIONS ARE AVAILABLE TO AVOID A TRIAL IN MY DIVORCE CASE?

Your attorney at Nelson, Krueger & Millenbach, LLC will suggest options to the successful resolution of the issues in your divorce without the need for a court trial. For example, settlement negotiations at a parties-and-counsel meeting, mediation and arbitration are all alternative measures that are common in divorce cases to help resolve conflicts.

Although most cases are resolved without the need for a trial, at Nelson, Krueger & Millenbach, LLC, our experience litigating cases provides our clients the best possible legal representation. We will make every effort to minimize the emotional and financial cost of a trial, yet we are prepared to litigate your case in court if a settlement cannot be reached.