When a couple is considering taking time apart or ending their marriage, they often presume that divorce is the only option available to them. But Wisconsin law allows couples to consider two options: legal separation or divorce. While these two options are similar in many ways, and both are supervised by the courts, they have some important distinctions that all couples should carefully evaluate. At Reddin & Singer, LLP, our Milwaukee family law attorneys have years of experience helping Milwaukee residents to carefully weigh the pros and cons of legal separation versus divorce proceedings.Both Legal Separation and Divorce Follow the Same General Process
Both legal separation and divorce are remedies that must be requested from a Wisconsin court. They require the parties to, jointly or separately, request that the court help them to unwind their marriage and then wait the applicable 120-day waiting period. After that period is up, the court may deal with legal separation just as it would deal with divorce, including determining issues such as child custody, spousal maintenance, and division of property. Like a divorce, a legal separation, for all intents and purposes, usually ends a marriage. After a legal separation is granted, a couple cannot obtain new marital property, or enter into new marital debt. The two individuals are treated as being legally distinct. Just as with a divorce, the two spouses may attempt to reach settlement, or mutually agree, on many of the aspects of their separation, or may seek the input of the court if issues are contentious.
Where one spouse seeks a legal separation and the other seeks a divorce, the court will carefully consider the circumstances of their separation to determine which remedy is more appropriate for their specific case.The Important Differences Between Legal Separation and Divorce
Although much of the process is the same, there are some very important differences between the two procedures that may make one more appealing than the other. First, and most importantly, unlike a divorce, a legal separation does not result in a final order dissolving the marriage. The spouses are still legally married, although separated, after a legal separation order is entered. This means that they cannot marry another individual without first converting their legal separation into a divorce.
It also leaves open the possibility that the two spouses can eventually reconcile and reenter their marriage. For couples who think separation is the right thing but aren’t completely committed to the idea of a divorce, legal separation can be a good option. Likewise, if you have religious or ethical concerns that prohibit divorce, legal separation is a solution to that problem as well. If a couple ultimately decides that divorce is their best option, legal separation can be converted into divorce by either party after one year of legal separation, or earlier if both parties agree to the divorce.
Several other smaller differences between legal separation and divorce include the fact that the standard for establishing legal separation is lower than the standard for divorce, thereby allowing for the possibility of reconciliation. While in divorce, the parties must show that their marriage is “irretrievably broken,” in legal separation, they must only show that the marriage is broken at the time. Additionally, while parties seeking divorce in Wisconsin must have been residents of the state for at least six months, legal separation only requires that a spouse be a resident for 30 days or more.Discuss Your Options with a Milwaukee Divorce Lawyer
Ultimately, the question of whether to proceed with legal separation or divorce depends on the objective of the couple, or individuals, and what they hope to accomplish. If the finality of divorce seems too drastic for your situation, or offensive to your beliefs, legal separation may be a good option. If you are hoping to close the door on this chapter of your life and move on, divorce may better meet that goal. If you would like to know more about these options in Wisconsin, the Milwaukee divorce attorneys at Reddin & Singer, LLP are available to assist you. If you live in Port Washington, Mequon, West Bend, or nearby counties such as Ozaukee or Racine, contact our office online or at (441) 271-6400. We also provide representation to clients in criminal defense matters, including DUI, identity theft, homicide, and federal crimes.