Legal separation in Wisconsin allows couples to remain married and maintain the financial advantages of marriage, such as health insurance, but live separate lives, whereas divorce completely dissolves the marriage. If the couple reconciles, the court can set aside the judgment of legal separation and revoke legal actions in place relating to property division, child support, and custody.
When deciding on whether or not you and your spouse should file for legal separation, it is important to be clear on what a legal separation really is, and what it entails for you and your spouse moving forward.
Legal Separation is a legal process that is similar to divorce. For a legal separation, one spouse will file a formal request with the court. After the spouses decide on the issues of property division, child custody, and support, the court will issue a judgement of legal separation.
When legally separated, the couple will remain officially married in the eyes of the law but have legal grounds to continue with their lives separately.
When considering the grounds for divorce and legal separation, it's important to note that while the wording is only slightly different, the implication is huge. To file for divorce, one or both of the spouses need to identify their marriage as “irretrievably broken”.
In the case of legal separation, according to Wisconsin Statute 767.315 [1] , one or both spouses need only identify that their marriage has “broken”, meaning there is still a possibility of reconciliation.
If one spouse were to identify that their marriage was broken, and the other were to identify it to be irretrievably broken, the court would need to hear testimony from both spouses. Based on those testimonies, a decision would be made on which motion to grant.
This means the court would also have to consider the chances of reconciliation between spouses, which may involve a delay of the case for up to 60 days while the couple attends counseling. At the end of those 60 days, the court would reconvene to make the decision on which motion to grant.
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Legal separation is typically the best choice for couples that acknowledge that their marriage is broken, but they still consider the possibility of reconciliation. It's possible to vacate a legal separation simply by filing a revocation of the judgement. [2]
Once a couple is divorced, many employer health plans will preclude the coverage of the employee's ex-spouse. However, in the event of a separation, many times the spouse will be able to maintain the employment benefits of the other spouse. (If you go this route ensure you check the fine print in the employment benefit package. Some employers treat a legal separation the same as a divorce, denying benefits).
Marriages exceeding 10 years entitle a divorced spouse who did not remarry to social security benefits equal to the greater of the following (for the lower wage earning spouse):
Due to this law, many people considering divorce, married for seven or eight years, will separate until they cross the 10-year threshold.
IMPORTANT – The total social security benefit amount will be lower if you start receiving them prior to retirement. What this means practically, even though eligibility starts at 62, if your circumstances allow, delaying your benefits until beyond 62 will allow you to receive more each year you delay until age 70.
Many couples save money by filing joint tax returns. If you are married and decide on separation instead of divorce, you can preserve that right. (In our experience this works in Wisconsin legally when there is not a maintenance support order and the relationship is still amicable between the two parties).
Under the Uniformed Services Former Spouse Protection Act [3] , if you are a military spouse and have been married for 10 years you are eligible for the benefits.
Maintaining two separate households is very expensive, at least for most couples. Due to this fact some couples will divide their home into “his” and “her” areas. What this does, in all practicality, is allow the couple to maintain a certain lifestyle.
This decision may seem straightforward, but, in fact, pooling resources can be complicated. For instance when spousal support is involved, tax law indicates:
“Spouses cannot be members of the same household. Payments to your spouse while you are members of the same household are not spousal support if you are legally separated under a decree of divorce or separate maintenance. A home you formerly shared is considered one household, even if you physically separate yourselves in the home. You are not treated as members of the same household if one of you is preparing to leave the household and does leave no later than 1 month after the date of the payment.” [4]
In practical terms, spousal support is not tax deductible for the payer, if the separated spouse is living in the same household.
Every couple that chooses a legal separation instead of a divorce is not making the decision solely on financial reasons. Some couples will remain separated for religious reasons to abide by the religious rules and customs they hold dear in their heart.
Determining which legal separation forms you will need is the first step to filing for legal separation. Spouses will need to file a summons in order to notify their spouse that an action for divorce or legal separation has been filed. They will also need to file a petition in order to commence the filing for divorce or legal separation.
The summons and petition must be chosen based on whether or not you are filing jointly, and whether or not there are minor children involved. These forms can be found on our Wisconsin divorce and legal separation forms page, or the Wisconsin county court [5] forms website.
Are you ready to move forward? Call (262) 221-8123 to schedule a strategy session with one of our attorneys.
The decision to separate rather than divorce is not a simpler decision, only an alternative. No matter what reasons you have for wanting to separate, weigh your options carefully and consider consulting with a qualified divorce attorney first. There are important distinctions that need to be kept in mind when you move forward with legal separation.
Legal separation and divorce follow very similar processes. They both financially separate the two spouses, and have orders for custody, placement, and child support. However, while separation leaves the marriage intact, a divorce completely dissolves the legal relationship between the two spouses.
In order to file for legal separation, one spouse is required to have been living in a Wisconsin county for 30 days. However, in a divorce, one party must be a legal resident of WI which is established by residing in WI for 6 months. In either situation, to file in a specific WI county, a spouse needs to have been living in that county for 30 days. Also similar to divorce, there is a 120 day waiting period between the time the action is filed and the final hearing.
Legal and physical separation are often confused. Legal separation is a process that goes through the Wisconsin court system that results in a change in the marital status of both spouses. This means that, for purposes of marital property, accruing debt, and filing taxes, the couple is no longer considered to be married.
Physical separation does not change a couples legal status, it is simply the act of moving out of the family home or into separate parts of the family home. This can be done without filing with the court system, and can be handled privately if the spouses can come to an amicable agreement. Physical separation is usually a precursor to legal separation, but this is not always the case.
In the event that a legally separated couple reconciles and makes the decision to reverse the separation judgment, it is possible to reverse a legal separation and return to being a joint status couple.
In order to reverse a legal separation, you and your spouse must both agree to the reversal, and obtain a copy of the original Order of Separation if you do not already have one. If the judge has not entered the order yet, then you and your spouse are not legally separated at this time and cannot file for a reversal of the order.
At this time, you or your attorney will draft a Motion to Vacate Order of Legal Separation. Before doing this, be sure to review your local jurisdictions' rules for motions. You and your spouse will also need to draft an Order to Vacate Order of Legal Separation.
You will then file the Motion and Order to Vacate at the same court that you had originally filed for separation. A copy of the Order of Legal Separation will need to be included, and a filing fee will need to be paid before your motion will be accepted.
On the other hand, if a couple decides that they want a divorce after being granted a legal separation, this can be done one of two ways. The first option would have the couple convert their legal separation into a divorce through a joint stipulation, which is a more simple way that does not require any additional wait time.
The second option is useful when only one spouse wants to convert the separation into a divorce. That spouse would then file a petition for conversion. It should be mentioned that when only one spouse wants to pursue conversion, the paperwork cannot be filed until at least one year after the legal separation was granted.
When going through a legal separation, it can be difficult to think clearly. The process can cause a lot of stress on the couple as a whole and as individuals. It is important to keep in mind that, while you go through the separation, there are steps that need to be taken, and there are definitive things that you should avoid.