The following information and instructions apply generally to divorce cases in Wisconsin. They are provided for your personal use during this case. Please read them carefully. Please be aware that that this is NOT the process for a Collaborative Divorce. Please visit the Collaborative Pages of this website for information on Collaborative Divorce.
STARTING THE ACTION
The divorce usually begins with the service of two legal documents:
- The Summons, the filing of which legally starts the case. It includes statutory language regarding child removal and custody interference where minor children are involved, and
- The Petition for Divorce, which sets forth the legal and fractual history of the marriage and the relief requested.
RESPONSE AND COUNTERCLAIM
The respondent may reply to the divorce petition with a document called the Response. This document will state the respondent's position as to each of the claims made in the petition. The respondent may also take this opportunity to initiate a claim in opposition to the petition, such as a claim for custody. This document is called a Counterclaim.
If there is no response to the petition, the case is legally considered a default action. For all practical purposes, however, in the absence of an agreement between the parties and attorneys, it continues to be a contested case.
This office's practice is to respond to all petitions. If an agreement is negotiated as to all disputed matters, a default trial date can currently be obtained within approximately thirty (30) days; however, no case can be tried (with rare exceptions) until: (1) a minimum of four months after the commencement of the action; and (2) a financial disclosure statement has been filed with the
court. A financial disclosure statement must be exchanged between the parties within 90 days after the commencement of the action.
Other documents that may be filed at the time of filing the Summons and Petition will ask for a temporary hearing date. Those documents are:
- The Affidavit For Temporary Order, which is the basis for obtaining a court order setting forth the terms and conditions during the pendency of the case while awaiting trial. The order may include temporary provisions for the following relief: maintenance for either party; support for the minor children; removal of a spouse from the home; determination of who shall have temporary custody of the minor children and determination of who shall make mortgage payments and meet other obligations while the action is pending.
- The Order To Show Cause For Temporary Order, which contains the date of the hearing before the Family Court Commissioner and the request for terms during the pendency of the action based upon the affidavit for the temporary order. The hearing is usually held within one month after the first papers are signed. At the temporary hearing it will be necessary for you to furnish a wage statement from your employer for a period of 12 weeks prior to the hearing setting forth your actual gross and net earnings. You will also be required to produce copies of your income tax returns for the last two years. I would remind you to have this information available and forwarded to me in advance of the hearing so that we can properly present your interests and also be able to properly estimate your needs during such period.
Before your case comes on for any hearing or trial, you will be acquainted with and prepared for the same at this office in advance of the hearing.
If you and your spouse disagree regarding the legal custody and physical placement of your child or children, the court or family court commissioner will refer you to the director of family court counseling services for possible mediation of the contested issues. You will be required to attend an initial session with the mediator unless the court finds that attending the session will cause undue hardship or endanger the health and safety of either you or your spouse.
The initial session will be a screening and evaluation session to determine whether mediation is appropriate and whether you and your spouse wish to continue in mediation. If you, your spouse, and the mediator determine that continued mediation is appropriate, no court may hold a trial or a final hearing on legal custody or physical placement until after the mediation is completed or terminated.
If both you and your spouse want joint legal custody and either of you asks for a referral, the court or family court commissioner will refer the two of you for mediation or other appropriate counseling services for assistance in resolving problems relating to joint legal custody and/or physical placement.
If there is no agreement negotiated between the attorneys and the parties, then the matter is considered a contest. A pretrial hearing will be scheduled by the court to narrow the issues, at which time the court will probably schedule the case for trial. Such an unsettled divorce action generally does not get scheduled for a pretrial hearing for at least six months or more after the initial papers are served.