Legal Separation vs. Divorce in Wisconsin

Legal Separation vs. Divorce in Wisconsin

Oftentimes, the terms “separated”, “legally separated: and “divorced” are used interchangeably. However, living apart, legal separation and divorce in Wisconsin are, in fact, very different things. If you and your spouse are contemplating a legal separation, physical separation, or divorce, it is important to know the distinction.

Legal separation is different from physical separation

A legal separation is a formal legal process that is very similar to divorce. Unlike a legal separation, physical separation is not a legal process and it does not change the marital status of the couple. Spouses may choose to physically separate and can decide for themselves how to address critical issues such as spousal support, placement of the couple’s children and the division of property and debt.  The spouses remains subject to Wisconsin’s marital property laws no matter how long they remain apart. This may cause some hardship.

Understanding legal separation

A legal separation does not end a marriage, but otherwise does many of the same things as a divorce. With a legal separation neither spouse may marry another person while the couple is legally separated. However, under a legal separation, property and debt is divided, custody and placement of any minor children are determined, support is ordered and so forth.  Even though the spouses are not divorced, they file taxes separately, hold property separately, and are entitled to keep their own property and income.  Wisconsin’s marital property laws no longer apply.

Couples may remain legally separated as long as they both choose.  The spouses may undo and dismiss the legal separation by agreement if the couple chooses.  If the couple is unable to reconcile, they may convert the legal separation into a divorce at any point by agreement. Following one year after the legal separation, either spouse may ask the court to convert it to a divorce.  No additional court process is required, and the legal separation document becomes the divorce judgment.

Filing for a legal separation

In a legal separation, one or both spouses file a formal legal request with the court. In order to file for legal separation in Wisconsin, at least one of the spouses must be a resident of both the state and the county in which they are filing for a period of at least 30 days immediately before the date the action is filed.

Legal separation requires a 120 day waiting period and the couple can reconcile at any point in time. As part of the legal process, a judge issues a judgement of a legal separation, which alters the couple’s legal status. While they are still legally married, each spouse can acquire property, accrue debt, and enter into legal contracts as an unmarried individual.

Divorce in Wisconsin

Wisconsin is a “no fault” state, meaning that neither spouse is required to prove that the other spouse has committed any wrongdoing in order to file for divorce or legal separation. Only one spouse is required to testify that they believe the marriage is broken. To file for divorce in Wisconsin, at least one of the spouses must be a resident of the state for the six month period prior to filing, and a resident of the county in which they are filing for the 30 days immediately prior to filing.  Legal separation only requires 30 day residency.

Skilled family law counsel with decades of experience

At Bandle & Zaeske, LLP, our skilled Wisconsin divorce and legal separation attorneys have in-depth knowledge of Wisconsin family law, sharing more than 50 years of legal experience. Attorney Eric Zaeske was named a top divorce and family law attorney by Wisconsin’s M Magazine for four consecutive years. Attorney Christie Bandle received the prestigious Rising Star designation by Super Lawyers, an honor awarded to less than 2.5% of Wisconsin lawyers each year, as well as named top divorce attorney by MKE Lifestyle magazine. Our dedicated team works tirelessly on your behalf to reach the best possible outcome in all family law matters. To schedule a consultation with a member of our team, contact us online or reach the office directly at 414-359-1424. Our office is easily accessible and conveniently located at the corner of the 4 counties. We help clients in Milwaukee, Washington, Ozaukee and Waukesha counties. We also practice in Dodge, Racine, Fond du Lac and Sheboygan counties.

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