Legally Speaking

While many married persons choose to physically separate prior to the commencement of a divorce action, that separation does not have the same ramifications as a legal separation. A legal separation is a court proceeding by which a husband and wife obtain a Court Judgment with respect to property division, maintenance, child support and child placement, but do not become divorced.

To commence an action for legal separation one party must file a summons and petition with the Court and pay the appropriate filing fee. At least one of the parties must be a resident of the county where the action is filed for 30 days prior to starting the action. After a legal separation is commenced, the parties have to wait at least 120 days before they are able to appear before a Judge and have the legal separation granted. However, a party may request a Temporary Order in regard to any issue, and appear before the Family Court Commissioner to argue his or her position with respect to the Temporary Order.

A legal separation can be converted to a divorce at the request of either party if that party has stated under oath that the marriage is irretrievably broken, or if the parties have lived apart for at least 12 months. The procedure for divorce is similar to that of legal separation; however, the two procedures have several different implications.

For example, a person who is legally separated cannot remarry, whereas a divorcée can remarry after a period of six months from the date of the judgment of divorce. Further, most health insurance providers will not extend coverage for a divorced spouse, but will do so for a spouse that is legally separated. Additionally, a person who is legally separated may not experience complete insulation from the threat of subsequent creditors of his or her former spouse, while a divorced person will be free from any responsibility for a new debt taken on by the former spouse.

If you are considering a legal separation or divorce, you should contact an attorney to discuss your options based upon your unique factual situation.

This column is based on general legal principles of Wisconsin law, is for informational purposes only, and is not intended to provide legal advice. Each legal matter must be judged on the merits of its unique circumstances. If you have a legal problem, consult an attorney.