In the Wisconsin courts, two options are available for spouses who wish to separate and obtain a court order regarding the spouses' children, finances, or property. Divorce is the obvious first option, and legal separation is the second. Both options will provide spouses with some court oversight of custody and placement of any minor children and property division. Procedurally, divorce and legal separation are very much the same. However, there are a few important differences between divorce proceedings and legal separation proceedings:
- Legal separation proceedings conclude with a court order obligating each spouse to take certain actions (just like divorce,) however, there is no final judgment of divorce that legally dissolves the marriage. The spouses are still married at the end of the legal separation proceeding, therefore it may be an attractive option to individuals who desire a court order but disagree with divorce on moral or religious grounds. Because the legally separated spouses are still married, it follows that neither spouse can marry anyone else unless they are divorced. Additionally, the court can set aside the judgment of legal separation at any time if the spouses reconcile.
- For a court to enter a legal separation, it must find that the marriage is "broken," unlike divorce where a marriage must be "irretrievably broken." A chance of reconciliation of differences is what sets legal separation apart from divorce.
- In the petition for legal separation, the party or parties (if filing jointly) must state the specific reasons for requesting a legal separation instead of a divorce.
If one spouse requests a legal separation and the other spouse requests a divorce, the court will hear from both spouses and decide whether it will grant a legal separation or divorce. If the court grants a legal separation, a spouse who desired a divorce can unilaterally convert the legal separation to a divorce one year from the date the judgment of legal separation was entered. If both spouses agree to convert the legal separation to a divorce before one year has passed, the court must convert the judgment to one of divorce.
If you have questions regarding divorce or legal separation, or any other family law matter, contact one of the experienced family law attorneys at Lawton Cates.
Sources: Wis. Stat. Chapter 767