Friday, December 26, 2008

I know I need to get Divorce, but How?

Before Filing the Initial Paperwork
Before filing the divorce action, you need to decide if you want an attorney to represent you or if you feel comfortable representing yourself, also called going "pro se." There is no magic formula to know when it is okay to represent yourself. The State of Wisconsin has provided all the basic forms you need for a divorce on under "Forms." There is also a link for "Self-Representation (pro-se)."

If you do decide to represent yourself and find it is too much, you can hire an attorney later on. However, it is never a good idea to wait until a week before a hearing or a deadline to retain an attorney. The attorney you want may be booked weeks in advance and unable to assist you.

Filing the Initial Paperwork
In Wisconsin, the first step in a divorce action is to file a Summons, Petition, and Confidential Addendum in the county you and your spouse live in. If you do not know where your spouse lives, if they are alive, or you and your spouse live in different counties, it is best to ask an attorney or call the Clerk of Courts in the county you live in. Many county courthouses have self-help clinics that are open a few hours a week to help with these types of questions.

You may also need to file an Order to Show Cause for a Temporary Hearing, if you and your spouse do not agree on who lives where, who sees the kids when, or who's paying what during the divorce. If you think you may need a Temporary Hearing, you may want to consult with an attorney. Just because you want something, doesn't mean that you are legally entitled to it. An attorney cannot guarantee an outcome, but they can give you a general idea of how things such as child support, mortgage contributions, and maintenance are calculated based on your income.

Service of Process
If you and your spouse file as joint petitioners, you do not need to have your spouse served with the Summons, Petition, Confidential Addendum, and any other paperwork that the Clerk of Courts gives you to have served. Filing a Joint Petition signals that you and your spouse are going pro se and agree to the filing of the divorce. It doesn't necessarily mean that the two of you will come to an agreement in the end.

Typically, one party is the Petitioner and the other party is the Respondent. When you file a Divorce Petition that is not joint, you need to serve your spouse. Ask the Clerk of Courts for the Sheriff's Department information or for process servers in the area your spouse lives or works. If you do not have your spouse served properly within the time limits, your divorce can be dismissed.

Mandatory Waiting Period
Once your spouse is served, the time clock starts. There is a mandatory 120-day waiting period before your divorce can be finalized. There are exceptions for members of the active military.

Temporary Hearing
A temporary hearing is also called a first hearing in some counties. Usually, it is your first appearance in court. People often say it is the worst day of the divorce emotionally, because you do not know what to expect. Typically, a commissioner holds the Temporary Hearing and does not rule on only one issue. For example, you may only want child support started. However, the Court will determine, placement, custody, payment of debts, how taxes will be filed, etc. while the divorce is pending. By putting these temporary orders in place, the Court prevents you from having to come back for another Temporary Hearing next month when a new issue arises.

Pretrial or Scheduling Conference
Some counties call it a pretrial, others a scheduling conference, both often refer to your first opportunity to get in front of a judge and get divorce. The pretrial/scheduling conference will be held after the 120-days waiting period has passed. How you get a pretrial or scheduling conference depends upon your county.

If you have a completed Marital Settlement Agreement and the judge approves, you can finalize your divorce that day. Many counties encourage people to file their Marital Settlement Agreement in advance of the pretrial/scheduling conference. By doing so, you may get a hearing date sooner in front of a commissioner, or the judge can read the agreement before the hearing to make your appearance in court quicker.

If you do not have a completed and signed Marital Settlement Agreement, the judge will want to know what issues you and your spouse disagree about. If you do not have an agreement, the judge will direct the next step in your divorce. The next step may be an appraisal of a home, mediation of children's issues, or the appointment of a guardian ad litem. Assuming no agreement is reached, the judge will order a trial. Very few cases go to trial and divorces are not tried in front of a jury. It is highly recommended that you retain an attorney before the judge chooses the trial date, because of the amount of time and effort that goes into preparing for a divorce trial.

The Divorce in Wisconsin Blog is not a substitute for legal advice. No attorney/client relationship is formed by the reading of this website. Use the information on this blog at your own risk.

If you need assistance with your divorce or family action, feel free to contact me to discuss your situation.

Attorney Katie E. Babe
Lakeland Law Firm, LLC
N27 W23957 Paul Road
Suite 206
Pewaukee, Wisconsin 53072
(262) 347-2000