BASIC GUIDE TO DIVORCE – Washburn Packet

BASIC GUIDE TO DIVORCE/LEGAL SEPARATION TABLE OF CONTENTS  HOW YOU WANT TO FILE  LEGAL ISSUES TO CONSIDER  COUNTY CHECKLIST FOR EACH TYPE OF DIVORCE /LEGAL SEPARATION DECIDE HOW YOU WILL FILE You need to decide if you and your spouse will be signing the Petition together (filing jointly) or if only one of you will be completing the forms to start the action (filing alone) LEGAL ISSUES TO CONS IDER SELF - REPRESENTATION (PRO SE) Pro Se means to represent yours elf in court without an attorney. There are significant risks and responsibilities to doing so. You should explore the risks and determine if you can fulfill the responsibilities required. Your case may be too complex to handle on y our own. Sometimes when people represent themselves, they have to hire an attorney to "fix" their mistakes. It may cost mor e to hire an attorney to "fix" the mistake than it would to have hired the attorney to handle it from the beginning. Court staff cannot give legal advice to you. Court staff can provide general information about court rules, procedures, practices, and ter ms. JURISDICTION: WHERE SHOULD YOU FILE? Divorces and legal separations are filed in the county you currently reside, not where you were married. To file for divorce in a County in Wisconsin, at least one of the parties must:  Be a resident of the State of Wisconsin for at least 6 months immediately before the date the action is filed, and  Be a resident of the County in which you are filing for divorce for at least the 30 days immediately before the date the action is filed. To file for legal separation in a County in Wisconsin, at least one of the parties must:  Be a resident of the State of Wisconsin for at least the 30 days immediately before the date the action is filed, and  Be a resident of the County in which you are filing for legal separation for at least the 30 days immediately before the date the action is filed. DIVORCE, LEGAL SEPAR ATION, OR ANNULMENT? Divorce Divorce ends a marriage. The court rules on such issues as the division of property, maintenance (spousal support), and if necessary, arrangements for child support, legal custody, and physical placement. There is a 120 - day waiting period to get divorced. Once the divorce is granted, the parties cannot remarry anywhere in the world for at least six months. Sp ouses do not have to give reasons for wanting a divorce. Wisconsin is a "no fault" divorce state, which means neither spouse must prove that the other has done anything wrong, and only one spouse must testify under oath that he or she believes that the ma r riage is irretrievably broken. A marriage is irretrievably broken when there is no chance for reconciliation. Legal Separation Legal separation does not end a marriage. The court rules on the same issues as for divorce. The forms, instructions, procedural information, and waiting period (120 days) for obtaining a legal separation are also the same as those for divorce. Spouses a re free to reconcile at any time. Spouses cannot marry another person while they are legally separated. If the spouses agree, they may convert the legal separation to a divorce at any time. If they do not agree, either spouse may convert the legal separation into a di vorce by filing a motion to do so after one year from the date the legal separation was granted. The parties may not r emarry anywhere in the world for at least six months from the day the legal separation is converted to a divorce. Spouses do have to give a reason why they are requesting a legal separation and not a divorce. Both of the spouses will have to give testimon y under oath that the marital relationship is broken. Annulment An annulment is a court procedure that declares that a marriage never existed. However, a court may annul a marriage only und er limited circumstances. A short term marriage IS NOT a legal reason for annulment. See Wisconsin Statute 767.313 for the acceptable reasons to request an annulment. The forms, instructions, and procedural information provided by the Wisconsin Court System are not designed to be used to reque st an annulment. You should seek legal assistance if you feel you qualify and would like to file an annulment. OTHER ISSUES TO CONS IDER Legal Custody Legal custody refers to the major decision - making authority for a minor child, including but not limited to decisions regarding consent to marry, enter military service, obtain a driver's license, authorization for non - emergency healthcare and choice of sc hool and religion. Wisconsin law presumes that it is in the best interest of the minor child that the parents be granted joint legal custody. Jo int legal custody means that neither parent's legal custody rights are superior, except as ordered by the court or agreed to by the parents. A court may find that awarding joint legal custody would be harmful to the minor child and order sole legal custody to one pare nt. Physical Placement (visitation) Physical placement refers to the right to have a minor child ph ysically placed with a parent. It gives that parent the right and responsibility to make, during that placement, routine daily decisions regarding the child's care. One parent may be awarded physical placement with the other parent having periods of physic al placement (visitation), or the parents may be awarded shared physical placement. If either parent is awarded less than 25% placement, specific reasons must be given explaining why more placement with that parent is not in the child’s best interest. Med iation It is recommended that the parents come to an agreement as to the legal custody and physical placement of their children. If they cannot, and a dispute arises, the court will order that the parents attend a mediation session. Parents must submit pa renting plans (FA - 4147V) to the mediator 10 days before the initial mediation session. If the parents are still unable to come to an agreement, the court may make other orders, including the appointment of an attorney to represent the interests of a minor child (Guardian ad Litem), and the filing of a Proposed Parenting Plan with the court. In making a final decision on legal custody or physical placement, th e court will consider all factors related to the best interest of the child, including those listed in WI Statute 767.41, which is available at the following website: http://www.legis.state.wi.us/Statutes/Stat0767.pdf Personal Safety Issues If your case involves minor children, and you have serious reason to believe that your health, safety, or liberty or that of a minor child would be jeopardized by the disclosure of certain identifying information both in paper and electronic records, you may request that identifying information be sea led from the public or the other party until a hearing is held. Once you have completed the forms ( GF - 177 and GF - 178 ), the court will schedule a hearing. At that hearing you will have to convince the judge that it is in the interest of justice for the information to continue to be sealed. Child Support The court may order either or both parents to pay child support for a child who is:  Under the age of 18, or  Age 1 8, but less than 19 and pursuing an accredited course of instruction leading to a high school diploma or its equivalent. Payments for child support are generally intended to include basic support costs including food, shelter, clothing, transportation, pe rsonal care, and incidental recreational costs. Under a shared placement circumstance, parents may also be required to pay variable costs (reasonable expenses above basic support costs) in addition to child support, including child care, tuition, a child's special needs, or other activities that involve substantial cost. Child support is calculated based upon the percentage standard guidelines established by the State of Wisconsin Department of Children and Families (DCF). Not every family situation is the same, so the approach that applies to a specific situation may be somewhat different from the guidelines. The court may order an alternative that is greater or less than the guidelines if the use of the guidelines is unfair to one of the parents or childr en based on the circumstances, including but not limited to shared - placement, split - placement, low - income, high - income, or serial - family payer circumstances. The child support standard guidelines are based on “gross” (pre - tax) income of the payer or both parties, and the number of children they have in common. The designated percentage amounts are:  17% for one child  25% for two children  29% for three children  31% for four children  34% for five children Maintenance (Spousal Support) A spouse seeking support from the other spouse may request maintenance in the divorce or legal separation. The court may orde r maintenance for a limited or indefinite length of time. When considering whether to award maintenance, the court will look at all of the circumstances of the parties, including but not limited to, the factors listed in WI Statute 767.56. This statute is avai lable at the following website: http://www.legis.state.wi.u s/Statutes/Stat0767.pdf Property Division Wisconsin presumes that all property, other than property that a party receives as a gift or through inheritance, will be div ided equally (after considering all debts). To achieve an equal division of property, t he judge may award property to one party and a cash payment to the other party. The judge may divide property unequally after considering the factors described in WI Statute 767.61, whi ch is available at the following website: http://www.legis.state.wi.us/Statutes/Stat0767.pdf If the spouses agree on how to divide all their property, they must provide a description of which spouse will receive which property. This also applies to the proper ty that may have already been divided. If the spouses have already divided the property, or it is only in one spouse's name, they must still tell the court which spouse will get what property and the value of that property. Debts and Obligations The spous es must disclose all debts, regardless of who they believe will be responsible for them. The judge will determine which spouse is responsible to pay the debts and other obligations after considering any agreements between the parties. Even if th e judge ord ers one spouse to pay certain debts after divorce/legal separation, creditors are not bound by the court order established in Family Court and may seek payment from the other party if the party ordered to make the payments doesn't pay or files for bankrupt cy. If this occurs, the party may request relief from the Family Court, but only if a specific order was established for payment of the d ebt or obligation. WASHBURN COUNTY FILING FOR DIVORCE OR LEGAL SEPARATION WITH MINOR CHILDREN Use these forms if the parties do not have an agreement or are filing alone . For easy online assistance and to print forms go to: www.wicourts.gov Click on:  E - filing  Forms Assistant  Start Forms  Complete an online interview process and answer a series of questions. After completing the question and answer portion, print completed forms and bring to the Clerk of Courts Office for fili ng as directed below. Need further assistance ? Contact the FAMILY CLERK #715 - 468 - 4677 CHECKLIST To open a case, you will need to provide the Clerk of Courts Office with: FA - 4104 V Summons with Minor Children FA - 4108V Petition with Minor Children GF - 179 Confidential Petition Addendum WORKSHEET Divorce/Annulment Worksheet - Attached FEE Filing fee of $194.50 You may request a temporary hearing before the Family Court Commissioner by completing the listed forms if you and your spouse cannot agre e on any of the following issues: CHILD CUSTODY USE OF AUTOMOBILES OR OTHER PERSONAL PROPERTY CHILD PLACEMENT PAYMENT OF BILLS CHILD SUPPORT PAYMENT OF MAINTENANCE OR SPOUSAL SUPPORT USE OF THE FAMILY RESIDENCE FA - 4128VA Affidavit to Show Cause and Request or Hearing for Temporary Order with Minor Children FA - 4128VB Order to Show Cause with Minor Children OR if you and your spouse have an agreement the following forms need to be filed: FA - 4126VA Stipulation for Temporary Order with Min or Children FA - 4126VB Temporary Order with Minor Children Complete and file the following forms within 90 days of opening your case: FA - 4119 V Admission of Service - If other party voluntarily accepts service OR FA - 4120 V Affidavit of Service - If se rved by Sheriff’s Department or processed server OR Certificate of Service provided by the Sheriff’s Department FA - 4139 V Financial Disclosure Statement – Each party must file their own form FA - 4147 V Proposed Parenting Plan – Each party may fill their own out or fill it out together FA - 4150 V Marital Settlement Agreement with Minor Children – Full Agreement if parties ARE in agreement OR Proposed by One Party if Parties are NOT in agreement Children in Between Certificate FA - 4160VA Findin gs of Fact, Conclusions of Law and Judgment with Minor Children FORMS MAY BE FOUND AT: WWW.WICOURTS.GOV FORMS CIRCUIT COURT FAMILY ALL FAMILY FORMS WASHBURN COUNTY FILING FOR DIVORCE OR LEGAL SEPARATION WITH OUT MINOR CHILDREN Use these forms if the parties do not have an agreement or are filing alone . For easy online assistance and to print forms go to: www.wicourts.gov Click on:  E - filing  Forms Assistant  Start Forms  Complete an online interview process and answer a series of questions. After completing the question and answer portion, print completed forms and bring to the Clerk of Courts Office for fili ng as directed below. Need further assistance ? Contact the FAMILY CLERK #715 - 468 - 4677 CHECKLIST To open a case, you will need to provide the Clerk of Courts Office with: FA - 410 5 V Summons with out Minor Children FA - 410 9 V Petition with out Minor Children GF - 179 Confidential Petition Addendum WORKSHEET Divorce/Annulment Worksheet - Attached FEE Filing fee of $18 4.50 You may request a temporary hearing before the Family Court Commissioner by completing the listed forms if you and your spouse cannot agree on any of the following issues: USE OF AUTOMOBILES OR OTHER PERSONAL PROPERTY PAYMENT OF BILLS PAYMENT OF MAINTENANCE OR SPOUSAL SUPPORT USE OF THE FAMILY RESIDENCE FA - 4129 VA Affidavit to Show Cause and Request or Hearing for Temporary Order with out Minor Children FA - 412 9 VB Order to Show Cause with out Minor Children OR if you and your spouse have an agreement the following forms need to be filed: FA - 4127 VA Stipulation for Temporary Order with out Minor Children FA - 4127 VB Temporary Order with out Minor Children Complete and file the following forms within 90 days of opening your case: FA - 4119 V Admission of Service - If other party voluntarily accepts service OR FA - 4120 V Affidavit of Service - If served by Sheriff’s De partment or processed server OR Certificate of Service provided by the Sheriff’s Department FA - 4139 V Financial Disclosure Statement – Each party must file their own form FA - 415 1V Marital Settlement Agreement without Minor Children – Full Agreement i f parties ARE in agreement OR Proposed by One Party if Parties are NOT in agreement FA - 416 1 VA Findings of Fact, Conclusions of Law and Judgment with out Minor Children FORMS MAY BE FOUND AT: WWW.WICOURTS.GOV FORMS CIRCUIT COURT FAMILY ALL FAMILY FORMS WASHBURN COUNTY FILING FOR DIVORCE OR LEGAL SEPARATION WITH MINOR CHILDREN Use these forms if the parties have an agreement and filing together . For easy online assistance and to print forms go to: www.wicourts.gov Click on:  E - filing  Forms Assistant  Start Forms  Complete an online interview process and answer a series of questions. After completing the question and answer portion, print completed forms and bring to the Clerk of Courts Office for fili ng as directed below. Need further assistance ? Contact the FAMILY CLERK #715 - 468 - 4677 CHECKLIST To open a case, you will need to provide the Clerk of Courts Office with: FA - 4110V Joint Petition with Minor Children GF - 179 Confidential Petition Addendum WORKSHEET Divorce/Annulment Worksheet - Attached FEE Filing fee of $194.50 You may request a temporary hearing before the Family Court Commissioner by completing the listed forms if you and your spouse cannot agree on any of the following iss ues: CHILD CUSTODY USE OF AUTOMOBILES OR OTHER PERSONAL PROPERTY CHILD PLACEMENT PAYMENT OF BILLS CHILD SUPPORT PAYMENT OF MAINTENANCE OR SPOUSAL SUPPORT USE OF THE FAMILY RESIDENCE FA - 4128VA Affidavit to Show Cause and Request or Hearing for Temporary Order with Minor Children FA - 4128VB Order to Show Cause with Minor Children OR if you and your spouse have an agreement the following forms need to be filed: FA - 4126VA Stipulation for Temporary Order with Minor Children FA - 4126VB Temporary Order with Minor Children Complete and file the following forms within 90 days of opening your case: FA - 4139 V Financial Disclosure Statement – Each party must file their own form FA - 4147 V Proposed Parenting Plan – Each party may fill their own out o r fill it out together FA - 4150 V Marital Settlement Agreement with Minor Children – Full Agreement if parties ARE in agreement OR Proposed by One Party if Parties are NOT in agreement Children in Between Certificate FA - 4160VA Findings of Fact, Conclusions of Law and Judgment with Minor Children FORMS MAY BE FOUND AT: WWW.WICOURTS.GOV FORMS CIRCUIT COURT FAMILY ALL FAMILY FORMS WASHBURN COUNTY FILING FOR DIVORCE OR LEGAL SEPARATION WITH OUT MINOR CHILDREN Use these forms if the parties have an agreement and filing together . For easy online assistance and to print forms go to: www.wicourts.gov Click on:  E - filing  Forms Assistant  Start Forms  Complete an online interview process and answer a series of questions. After completing the question and answer portion, print completed forms and bring to the Clerk of Courts Office for fili ng as directed below. Need further assistance ? Contact the FAMILY CLERK #715 - 468 - 4677 CHECKLIST To open a case, you will need to provide the Clerk of Courts Office with: FA - 4111 V Joint Petition with out Minor Children GF - 179 Confidential Petition Addendum WORKSHEET Divorce/Annulment Worksheet - Attached FEE Filing fee of $1 8 4.50 You may request a temporary hearing before the Family Court Commissioner by completing the listed forms if you and your spouse cannot agree on any of the following iss ues: USE OF AUTOMOBILES OR OTHER PERSONAL PROPERTY PAYMENT OF BILLS PAYMENT OF MAINTENANCE OR SPOUSAL SUPPORT USE OF THE FAMILY RESIDENCE FA - 4129 VA Affidavit to Show Cause and Request or Hearing for Temporary Order with out Minor Children FA - 4129 VB Order to Show Cause with out Minor Children OR if you and your spouse have an agreement the following forms need to be filed: FA - 4127 VA Stipulation for Temporary Order with out Minor Children FA - 4127 VB Temporary Order with out Minor Children Complete a nd file the following forms within 90 days of opening your case: FA - 4139 V Financial Disclosure Statement – Each party must file their own form FA - 4151V Marital Settlement Agreement with out Minor Children – Full Agreement i f parties ARE in agreement OR Proposed by One Party if Parties are NOT in agreement FA - 4161 VA Findings of Fact, Conclusions of Law and Judgment with out Minor Children FORMS MAY BE FOUND AT: WWW.WICOURTS.GOV FORMS CIRCUIT COURT FAMILY ALL FAMILY FORMS