WHAT IS A DIVORCE?
People have many questions about divorce, what it involves, how to proceed with one, etc. so I will try to answer some of the most common questions.
What is a divorce?
A divorce is a legal action between married people to terminate their marriage relationship.
What is 'no fault' divorce?
In Wisconsin we have 'no fault' divorce. This means that the court does not get in to the reasons for the divorce. It used to be that the person starting the divorce had to prove certain reasons for getting the divorce like adultery or abuse. This often required difficult and embarrassing questions of what the parties had been doing in private. Now the law allows one of the parties to get a divorce if he or she states in court that the marriage is 'irretrievably broken.' The judge will not ask any further questions about the what or why of the failure of the marriage.
What is a legal separation?
A legal separation is very much like a divorce. It involves the same process of filing papers with the court to start a legal action and the court has to make the same decisions about children, debts and assets as in a divorce. However at the end of the process the parties are legally separated instead of being divorced. That means they are still married but not responsible for each other.
Can a separation be turned in to a divorce?
One year after the judgment of separation is granted, one of the parties can petition the court to convert the separation to a divorce without further hearing and the other party does not have the right to prevent the conversion. People sometimes prefer a separation instead of a divorce for religious reasons or to preserve the right of one spouse to continue to receive health insurance coverage under the other spouse's insurance plan.
What happens in a divorce?
The purpose of a divorce is to terminate the parties' marriage. In order to do that the parties and the court must decide how to handle the questions of the custody and placement of the minor children and how to divide the property and debts of the parties. The law presumes each party is entitled to one half of the marital property. Each party is also responsible for one half of the marital debts. Non-marital property would be property inherited by one of the parties or given to just one of the parties by a third person if it has been kept separate.
What is marital property?
The court presumes all the property of the parties is marital unless shown otherwise. It does not matter necessarily in whose name the property is held or who actually purchased it. Such things as pensions, bank accounts and stocks and bonds are marital property even if held in the name of only one of the parties. Property brought in to the marriage is still marital although depending on the length of the marriage and the nature of the property the court can decide to award it back to the party who had it before the marriage. The court will try to be fair to both parties and each party is responsible for making a full disclosure to the court and the other party of all assets and debts.
What about spousal support?
In a divorce one of the questions is spousal support or what was called alimony. Depending on the length of the marriage, the age and health of the parties and each parties' ability to earn an income and maintain the marital standard of living, the court may order support paid by one spouse to the other. This is a different question from child support. Spousal support can be for a limited period or for an indefinite period depending on circumstances. It can be reviewed if there is a significant change in the circumstances of either former spouse. If it is waived at the final hearing then the party giving up support may not ever come back to ask the court to award it.
Do I need an attorney to get a divorce?
Individuals are always allowed to represent themselves in a court action. However, if there are any serious questions involving the children, property, debts or spousal support, it is better to have the assistance of an attorney. The attorney can represent only one of the parties. Sometimes the parties use the assistance of one attorney but that attorney can represent the interests of only one person and must tell the other person he or she has the right to their own attorney.
What happens to pensions and retirement accounts?
Pensions and retirement accounts are marital property to be divided in a divorce. They can be given a present value based on the kind of pension and the parties' rights to receive an income from the pension. They typically are divided by what is called a Qualified Domestic Relations Order (QDRO) which allows the court to separate the pension into accounts or portions for each party without incurring penalties or income tax.
What if I am dissatisfied with my attorney?
You should certainly talk to your attorney to resolve the problems but each person is entitled to change attorneys if he or she wishes to.
What about my will?
In the context of a divorce it is a good idea to consult an attorney about changing your will to reflect the changed circumstances due to the divorce.
