May 09, 2014

Are you thinking about getting a divorce or have you recently been served with divorce papers? No one plans on getting divorced when they get married. The truth is that sometimes marriages fail and the parties have to deal with the court system whether they like it or not. This article will help you understand the divorce process from start to finish

The Start

The first step in a divorce is for one or both of the parties to file papers at the county courthouse asking for a divorce. This is done by first meeting with your attorney so they may take down the relevant information to draft the necessary papers:

Summons and Petition are the court forms where you ask the court to start the divorce, tell them what the family structure is in your case (number of children, types of assets, etc.), and show the court that they have jurisdiction over your divorce. Included in the Petition is a statement concerning prohibited action by the parties during the divorce process. This includes a restriction on harassing the other party or the children, selling or disposing of property of the parties, or moving the children’s residence more than 150 miles from the other party or out of state.

Financial Disclosure Statement is a document where you list all of your assets, debts, income, and expenses under oath. This is what the court uses when it is determining factors such as child support, property division, and alimony.

Order to Show Cause and Affidavit are documents where you ask the court to schedule a hearing very shortly after the divorce is filed where the court will create temporary rules for the parties. These rules are usually about child placement/custody, child support, alimony, and use of property.

Once these papers are prepared by your attorney and reviewed with you, they are filed with the court and served on the other party. Traditionally, your spouse will be served by a process server, but If possible, your attorney will attempt to serve your spouse in a way that is not embarrassing to them or will cause them to get angry.

The Temporary Order Hearing

Divorce cases tend to take anywhere from 6 months to 2 years to complete depending on the complexity of the case. Because of this, most divorce cases require a temporary order of some sort stating the rules while the case is pending. Some parties will agree on these rules in writing and ask the court to make that agreement an official order. In most case, the parties cannot agree on all the rules and must go in front of a court official to let them decide what the rules are. The name for this is a Temporary Order Hearing. These hearings are different for every case because every case is different, but they all cover the same following issues:

Temporary Property Division. While the divorce is pending each party will need use of marital property. The court will order who has the use of what property and who is responsible for what debts until the final judgment.

Maintenance/Alimony. If appropriate, the court may order a party to pay the other maintenance. The court looks into the length of the marriage and the individual income of the parties to make this determination.

Temporary Child Placement/Custody . If the parties have made an agreement on placement of the children, the court will enter it as an order. If the parties cannot agree, the court will order the parties to attend mediation and may issue a temporary placement order until the mediation is completed.

Child Support. The State of Wisconsin uses a mathematical equation to calculate child support. It is based on each party’s income and the amount of placement each party has. However, if the parties agree to a different amount and neither party is receiving government assistance, the court will allow it.

Custody & Placement

When children are involved in the divorce process the biggest concern is the placement schedule. Who will have placement of the children, when and for how long? This is one of the most difficult issues in a divorce if the parties cannot come to a conclusion on their own. The court has two different ways to deal with the problem.

Mediation. Under the Wisconsin divorce process, if the parties cannot agree on placement the court orders mediation. The parties will be required to meet with a professional mediator who will try to help the parties come to an agreement on placement. Sometimes the mediation is successful and sometimes it fails. If the mediation does not work, the court will appoint a Guardian Ad Litem.

Guardian Ad Litem. If necessary, the court appoints an attorney to represent the best interest of the children. This attorney investigate the circumstances of the parties to determine the best interest of the children. Once the Guardian Ad Litem has concluded his research he will make his recommendation to the court at a hearing.

Property Division and Maintenance

Wisconsin is a joint marital property state, which means that all property of parties should be split 50/50, unless there is a good reason not to. The most common reasons the court looks at are what each party brought into the marriage and what property the parties received through inheritance or gift during the marriage. The court ignores whose income was used to buy the assets or the name the assets are titled under when making its decisions.

Maintenance is spousal support. Unlike child support, there is no set guideline for maintenance. The judge has the discretion to set the amount and length of the maintenance or deny it completely. An experienced Attorney will know the tendencies of the judges in your area and can tell you the likelihood of you receiving maintenance.

Negotiations

Unfortunately no one gets everything they want in a divorce; they need to negotiate. The first step in negotiation is sending the other party a proposal for the final decision. From here, the parties will go back and forth with proposals until they reach an agreement. The major issues are child placement, child support, property division and maintenance/alimony. The items not agreed upon will be decided by the court.

Final Divorce Hearing

The last step in the divorce process is the final divorce hearing. If all issues were agreed upon before the hearing, it is considered to be a stipulated divorce and goes smoothly. On the other hand, if the parties were unable to resolve all issues, the court will hear arguments and will make a final decision.

Stipulated Divorce. If all issues in the case have been agreed upon, the parties will provide the court with an outline of the agreement and ask the court to enter it as a final judgment. The parties will also go through the formalities necessary to receive a divorce. A stipulated divorce hearing is ideal because the parties know what to expect and can elevate some of the stress in an already difficult situation.

Contested Divorce. If the parties cannot agree on all or some of the issues, the court will make the final decision. First, the parties will inform the court of what matters are agreed upon. Next, they will inform the court what issues are still unresolved. The court will hear the arguments of the parties and make a decision. This hearing could take hours or even days depending on the issues that need to be resolved. The decision the court makes is final.

As you can tell, there is a lot of work that goes into a divorce. An experienced attorney can help guide you through the process, resolve as many issues as possible before the final hearing eliminating some of the stress involved, and correctly draft the appropriate court documents The attorney at Pedersen Law Office will fight for what is important to you. We offer free consultations in all of our areas of practice and would be more than happy to meet with you and see how we can help you. Our law office serves the communities of Appleton, Neenah, Menasha, Oshkosh, Green Bay and their surrounding areas.