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Legal Separation v. Divorce in Wisconsin

by | Jun 6, 2018 | Divorce, Family

When you are married and seeking a separation from your spouse, you can either file for legal separation or for divorce in Wisconsin.

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 before a judgment can be granted.  At the end of the process, you receive a court order that outlines custody and placement of minor children (if any), child support (if there are any children of the marriage to support), property division, debt division, and maintenance. 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. In order to file for divorce, you must be a resident of the State of Wisconsin for six (6) months.  For a legal separation, the residency requirement is thirty (30) days. Knowing which path is best for your particular circumstances requires an investigation of these differences.

The main difference between the two actions is that at the end of the divorce process, the marriage is ended, while at the end of a legal separation the parties are still technically married.

All assets and debts are still divided in either action and that division is considered final.  For all intents and purposes, a legal separation severs the financial relationship between the parties.  Therefore, after a legal separation is granted, the parties cannot create marital property or debt and they are not able to file their taxes as a married couple.

It is important to know, however, that either party may convert the legal separation into a divorce after one year from the date the legal separation was granted or sooner if both parties agree. There are a number of reasons why someone might choose to remain legally married, even though they are living separate lives. Some examples are as follows:

  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.

 

As noted above, 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 divorce judgment 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!”

For all of the reasons stated above, it is also important, in both a divorce and a legal separation, to be sure that you have fully considered all of the issues and what the effect of either action will be, both financially and as it concerns your children. Finding an experienced family law attorney is the first step in that process.

If you wish to speak with an attorney about filing for legal separation or divorce, please call our office at (608)782-1469.

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Bosshard | Parke Ltd. in La Crosse serves clients throughout the Coulee Region, western Wisconsin, southeastern Minnesota and beyond, including many in the Onalaska and Sparta, Wisconsin, and La Crescent, Minnesota, areas.