Wisconsin divorce vs. legal separation

Wisconsin divorce vs. legal separation

The differences between Wisconsin divorce and legal separation can be subtle and sometimes hard to figure out. Both require filing similar paperwork with the court, notice to the other party, and a 120-day waiting period.  At the end of the process, you receive a court order that outlines custody and placement of minor children, support, and property division. Overall, the separation process deals with the same issues and follows many of the same steps as divorce. However, the results of Wisconsin divorce differ substantially from legal separation. Knowing which path is best for your particular circumstances requires an investigation of these differences.

One of the key things that differentiates Wisconsin divorce from legal separation is that, at the end of legal separation, the parties are still married. At the end of the divorce process, the marriage is ended. There are many reasons why someone might choose to remain legally married, even though they are living separate lives. For example:

  1. The marriage may remain intact in order to continue to receive health or insurance benefits through the other spouse. This can be tricky, as some policies make exceptions for separated couples.
  2. The parties may choose to stay married for tax or citizenship reasons.
  3. Religious beliefs may prohibit spouses from seeking a divorce but not legal separation.
  4. Spouses may hope that there’s a chance they will eventually get back together. If you don’t think that you are ready to permanently call it quits with your spouse, separation may be a good option. Spouses are free to reconcile at any time.

It is also very easy to convert a separation into a divorce, should the parties choose to do so. This may be done by filing a motion with the court one year after the separation was granted. However, one thing to bear in mind is that, whereas neither party needs to tell the court why a divorce is sought, it is necessary to provide a reason as to why the parties seek to separate.

A judgment of divorce means that the marriage is actually over. Just as there are reasons for wanting a legal separation, there are also reasons why a divorce might better suit your needs:

  1. You want to marry someone else. Although you cannot marry anyone for six months after being granted a Wisconsin divorce judgment, at the end of that waiting period, you may remarry. This is unlike a separation in that legally separated parties are still married and, therefore, cannot marry another person.
  2. The chances of reconciliation are very slim. If you know that there is relatively little chance that you and your spouse will want to remain together as a married couple, it might be, ultimately, less stressful for you to obtain a divorce.
  3. There are complicating factors, such as alcohol and/or drug abuse, or domestic violence in your relationship. In these situations, it is important to fully consider the effect of this process on your family, whether you want to maintain a relationship with your spouse, and what kind of role you see for your spouse as a parent.

To summarize, a Wisconsin divorce filing requires you to tell the court that your marriage is irretrievably broken. Filing for a legal separation only requires you to admit that your marriage is broken—but not “irretrievably!” Feel free to contact Dave or Emily to set up a free consultation, to talk about which option is best for your needs.

Published by David Kowalski

Attorney David Kowalski is the founding owner of Kowalski, Wilson & Vang, LLC, handling all family law cases from divorce, paternity, child custody, termination of parental rights, restraining orders, and guardianships.

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