Wisconsin Laws on a Divorce With Kids Involved
By Heather Frances J.D.
Family law issues are primarily governed by state law. When you divorce in Wisconsin and have minor children with your spouse, Wisconsin law requires that both you and your spouse attend a parental education class. The court will also look to the Wisconsin statutes when determining custody, child support and even whether you can move with your child once the divorce is finalized.
If you and your spouse cannot agree on a custody arrangement for your children, you can hire a private mediator to help you work out a solution, or attend at least one session with a mediator provided by the county. If you are able to reach a custody agreement with your spouse, the court can either accept or reject it. When divorcing parents can’t reach an agreement regarding custody, courts typically appoint a guardian ad litem to represent the child’s interests throughout the divorce process. Parents must pay for the services of the guardian ad litem as well as for any experts the guardian ad litem might hire to help him determine which parent should receive custody. The guardian ad litem is an attorney; he does not work as a social worker or make recommendations, but rather examines witnesses and argues his position - on behalf of the child and his or her best interests - before the court.
When it comes to custody, a Wisconsin court cannot prefer one parent over the other based on gender. The court can award sole or joint legal custody, which refers to a parent's right to make major decisions concerning the child -- such as medical and educational decisions. A Wisconsin court can only award joint legal custody if it is in the child’s best interest and both parents agree, or when one parent requests it and the court determines that it is appropriate. To determine what is in the best interests of the child, Wisconsin courts consider several factors, including the wishes of the parents and child, the mental and physical health of the parents, and the child’s adjustment to the community. A Wisconsin court also has the flexibility to give the sole right to make specific major decisions to one of the joint legal custodians, while giving both parties equal rights for other decisions. In Wisconsin, physical placement refers to the physical residence of the child, commonly known as physical custody, and is a separate issue from legal custody. In some situations, the child will spend nearly equal time with each parent, while in other situations, a child might spend most of his time with just one parent.
Wisconsin uses a “percentage of income” model to calculate child support. Under this model, a court sets support based on a percentage of the noncustodial parent’s income without regard to the custodial parent’s income. The court also considers the number of children involved. A Wisconsin court can choose to use the noncustodial parent's gross income, the income the parent has the ability to earn, or the income the parent has available for support. As of 2012, the noncustodial parent must pay 17 percent of his income for one child and 34 percent for five or more children.
Section 767.327 of the Wisconsin statutes addresses moving a child out of state once the court establishes a custody arrangement. Moves in excess of 150 miles and moves out of state, even if they are temporary but last longer than 90 days, require special procedures. The parent intending to move the child must send a notice to the other parent by certified mail, describing the proposed move including the date and location of the proposed move. If the other parent objects, the court will refer the parents to mediation and might appoint a guardian ad litem. The court will order a modification of the existing custody order if it is in the best interests of the child.
- Peggy L. Podell: Frequently Asked Questions About Wisconsin Divorce Law
- Minnesota Lawyers: Wisconsin Custody and Physical Placement
- National Conference of State Legislatures: Child Support Guideline Models by State
- Legal Resource Center on Violence Against Women: Wisconsin Relocation Statute
- Wisconsin Legislative Documents: DCF 150.03
- WI Bureau of Child Support: Your Guide to Setting Support Amounts
Heather Frances has been writing professionally since 2005. Her work has been published in law reviews, local newspapers and online. Frances holds a Bachelor of Arts in social studies education from the University of Wyoming and a Juris Doctor from Baylor University Law School.