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Legal Information: Wisconsin

Wisconsin Divorce

Laws current as of
June 10, 2024

Below you will find basic information about divorce in Wisconsin.

What are the residency requirements to get a divorce in Wisconsin?

To file for divorce in Wisconsin, either you or your spouse must:

  • be a resident of the state of Wisconsin for at least six months; and
  • be a resident of the county you file in for at least 30 days before filing.1

A judge cannot grant a divorce in Wisconsin until it has been 120 days since:

  • you or your spouse received notice of the divorce that one of you filed; or
  • you both filed a joint petition together.2

However, a judge can grant you a divorce before 120 days pass if there are “emergency reasons” to do so. A judge can grant you a divorce for emergency reasons if:

  1. you filed a petition for protection for yourself or your children and:
    1. the circuit court commissioner makes a recommendation to the judge for an immediate hearing on your petition for protection; and
    2. the judge holds an immediate hearing on the petition; or
  2. the judge decides to grant a divorce for other emergency reasons.2

1 Wis. Stat. § 767.301
2 Wis. Stat. § 767.335

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What are the grounds for divorce in Wisconsin?

A judge may grant a divorce on the grounds of the “irretrievable breakdown” of the marriage if one of the following is true:

  • both you and your spouse tell the judge, either by petition or under oath/affirmation, that the marriage is irretrievably broken; or
  • one of you tells the judge, either by petition or under oath/affirmation, that the marriage is irretrievably broken and you and your spouse have lived apart by choice for at least 12 continuous months immediately before filing for divorce.1

If you and your spouse have not lived apart by choice for 12 months, and only one of you has told the judge, either by petition or under oath/affirmation, that the marriage is irretrievably broken, it could still be possible to get a divorce. The judge will consider all relevant factors, including why you filed the petition, and then do one of the following:

  • The judge can decide that there is no reasonable possibility of you and your spouse getting back together (reconciling) and grant the divorce; or
  • If the judge believes there is a reasonable possibility of you and your spouse getting back together, s/he may continue your case for 30-60 days and suggest or order you both receive counseling. You or your spouse can also ask the judge to order counseling. If after 30-60 days, you or your spouse still tells the court under oath that the marriage is irretrievably broken, the judge can grant a divorce.1

1 Wis. Stat. § 767.315; “Divorce: Answering Your Legal Questions,” State Bar of Wisconsin

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Can I get alimony/maintenance?

Alimony, called “maintenance” in Wisconsin, is financial support paid by one spouse to the other. A judge can order maintenance in Wisconsin after considering:

  • how long the marriage lasted;
  • your and your spouse’s ages and health conditions;
  • the division of property in the divorce;
  • your and your spouse’s education levels both when you got married and at the time you filed for divorce;
  • your ability to earn money, including your educational background, training, skills, work experience, time away from the job market, responsibility for the custody of children, and the time and money required to get education and training to find employment;
  • the likelihood you will be able to support yourself so you can live in the way you did while married, and if possible, the time needed to do so;
  • the tax consequences to you and your spouse;
  • any agreement you and your spouse made either before or during the marriage to contribute financially or through service to the other, and if any repayment or agreement for financial support has been made;
  • whether one of you contributed to the education, training, or ability to earn money of the other; and
  • any other factor a judge decides is relevant.1

Maintenance in Wisconsin ends either when a judge orders it to end, or when either you or your spouse dies.2

1 Wis. Stat. § 767.56(1c)
2 Wis. Stat. § 767.56(2c)

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How will a judge decide what is separate property and what is marital property?

Separate property is any property obtained before or during the marriage that was:

  • a gift from anyone other than your spouse;
  • an inheritance because of a death, including life insurance proceeds; or
  • purchased with money that was received in either of the ways explained above.1

Marital property is all other property that either spouse got (acquired) during the marriage that does not meet the definition of separate property.1

Note: If a judge finds that failure to divide separate property will create a hardship on the other spouse or the children of the marriage, a judge may divide the property fairly between spouses.2

1 Wis. Stat. §767.61(2)(a)
2 Wis. Stat. § 767.61(2)(b)

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How will a judge divide marital property?

A judge is supposed to divide marital property equally; however, a judge can divide property differently after considering the following factors:

  • the length of the marriage;
  • property brought to the marriage by each spouse;
  • whether a spouse is separately wealthy because s/he has “substantial assets” that are considered separate property;
  • the contribution of each spouse to the marriage, including homemaking and childcare services;
  • the age and physical and emotional health of each spouse;
  • the contribution made by either spouse to the education, training, or increased earning power of the other;
  • how much each spouse has the ability to earn, which takes into consideration the following factors:
    • educational background;
    • training and employment skills;
    • work experience;
    • length of absence from the job market;
    • custodial responsibilities for children; and
    • if applicable, what is necessary to get the education or training needed to allow a spouse to enjoy a standard of living similar to what was enjoyed during the marriage;
  • whether it’s best to give the family home to the spouse who has physical custody of the children, or perhaps to just allow the spouse to live there for a reasonable period of time;
  • the amount and length of spousal maintenance and child support payments;
  • other economic circumstances of each party, including pension benefits;
  • the tax consequences to each party;
  • any written agreement made by the parties before or during the marriage regarding property distribution; and
  • any other relevant factors.1

Note: The judge cannot consider marital misconduct when deciding how to divide property.1

1 Wis. Stat. § 767.61(3)

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Is my spouse allowed to give away or transfer property so that I don’t get a portion of it?

When dividing property, the judge will look back to see if either spouse transferred or gave away property within one year before filing a petition for divorce. If the length of the marriage was shorter than one year, the judge will look back only the number of months the marriage lasted. During this look-back period, anything owned by either spouse worth $500 or more is understood (“rebuttably presumed”) to be property that is to be divided between spouses. Therefore, if your spouse gave away property valued at $500 or more, you can still be given a portion of the value of that property during the property division.1

1 Wis. Stat. § 767.63

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What are the basic steps for filing for divorce?

While divorce laws vary by state, here are the basic steps:

  • First, you must meet the residency requirements of the state in which you wish to file.

  • Second, you must have “grounds” (a legally acceptable reason) to end your marriage.

  • Third, you must file divorce papers and have copies sent to your spouse. (To learn more about filing a summons, preparing a petition, and service of process, go to the Starting the Court Case page in our Preparing for Court - By Yourself section.)

  • Fourth, if your spouse disagrees with anything in the divorce papers, s/he will then have the opportunity to file papers telling his side. This is called “contesting the divorce.” In this case, you will have to attend a series of court appearances to sort the issues out. If your spouse does agrees with everything in the petition, s/he should sign the papers and send them back to you and/or the court. This is called an “uncontested divorce.” If a certain period of time passes and your spouse does not sign the papers or file any papers of his/her own, you may be able to proceed with the divorce as an uncontested divorce anyway. You should speak to a lawyer in your state about how long you have to wait to see if your spouse answers the divorce papers before you can continue with the divorce.

  • Fifth, if there is property that you need divided, or if you need financial support from your spouse, you will have to work that out in an out-of-court settlement, or in a series of court hearings. Custody may also be decided as part of your divorce.

You can find more information about service of process in our Preparing for Court – By Yourself section, in the question called What is service of process and how do I accomplish it?

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Where can I find additional information about divorce?

We hope the following links to outside sources may provide helpful information.

State Bar of Wisconsin provides answers to many common questions about divorce, including questions about grounds for divorce, residency requirements, and maintenance.

Wisconsin Court System also has a number of divorce resources, including:

  • court forms that you may need if you wish to get a divorce; and
  • the family law forms assistant, an automated program you can use to fill out and generate forms related to divorce and separation.

WomensLaw.org is unrelated to the above organizations and cannot vouch for the accuracy of their sites. We provide these links for your information only.

You will find more information about divorce, including the risks of taking your children out of state while a divorce is pending, on our general Divorce page. To watch brief videos about divorce in Spanish with English sub-titles, go to our Videos page. Lastly, learn more about the court process on our Preparing for Court – By Yourself page.

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