If you are ending your relationship with your spouse, you may wonder whether legal separation or divorce is the right choice. You may be surprised to learn that the process is virtually the same for both legal actions: both actions sever the financial relationship between the parties and result in an order regarding custody, placement, and child support if the parties have children together. However, there are also important differences between the two alternatives.
Legal Separation and Divorce Actions Follow a Substantially Similar Process
To file a petition for divorce or legal separation in Wisconsin, one of the spouses must have resided in the state for at least 6 months and within a particular county for at least 30 days. Then, at least 120 days must pass following the service of the summons and petition on the non-petitioning spouse before the court will hold a final hearing to grant the divorce or legal separation. During the interim, either spouse may ask the court for a temporary order concerning matters that must be resolved before the final hearing, such as who should be responsible for making debt payments or who should remain living in the marital home.
With both divorce and legal separation actions, the court will facilitate an appropriate outcome regarding the following matters:
- Division of property and debts
- Spousal support (or alimony)
- Child custody and physical placement of any children
- Child support
In both cases, a separating couple may choose to resolve these matters in a variety of ways, including traditional litigation, a collaborative process, or mediation.
Divorce Is Most Common, But Legal Separation May Be Preferable For Some Couples
The primary difference between legal separation and divorce is that legal separation leaves the marriage intact. This may be the preferred outcome if, for example, the parties do not want to divorce for religious or spiritual reasons, if the parties may reconcile in the future, or if one spouse needs to remain covered by the other spouse’s insurance plan.
Furthermore, because legal separation leaves the marriage intact, an individual who is legally separated from their spouse cannot remarry. In Wisconsin, a divorced individual may remarry if at least 6 months have passed since the date on which the divorce was granted.
Legal Separation Judgment May Be Revoked Upon Reconciliation or Converted To Divorce
Another important difference is that a legal separation judgment may be revoked if the parties reconcile. A divorce judgment may only be revoked if the parties subsequently remarry.
A legal separation may be converted into a divorce judgment one year after the legal separation was granted based on the request of either party, or sooner if the parties agree.
If you are contemplating a divorce or legal separation from your spouse, contact our family attorneys in Madison or Milwaukee to schedule a consultation.
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