The decision to file for divorce is very difficult. The spouse who is filing knows that the entire family’s lives will be fundamentally changed. The family is also entering a specialized legal system that they probably know very little about. Certainly, the spouses have heard horror stories about friends’ and family members’ divorces. So it is only natural to be extremely nervous about the future. A good divorce attorney who provides clear information about the process and possible outcomes can be a great help in easing his client’s anxiety. In my experience, especially in the beginning of a divorce, this is perhaps the lawyer’s most important job.
The court system does not leap into action when a divorce is filed. In fact, Wisconsin law does not permit a judge to grant a divorce until at least 4 months after the petition is filed. So what happens in the meantime? Usually, a spouse will request a temporary order. This is an order made by a judge or court commissioner that sets out rules for the spouses before the judge will grant the final divorce. The order will set a placement schedule for the children, specify who pays which bills and maintains health insurance, set child and spousal support, and award the use of the home, cars, etc. Unless the spouses are cooperating extremely well, I usually recommend a temporary order because it gives my client clear rules to follow. These rules usually decrease the client’s anxiety and fear of the unknown. If circumstances change while the divorce is pending, either spouse can request a change in the temporary order.
After the temporary order, there is a longer period while the parties exchange information on finances. Also, if they cannot reach a placement agreement for the children, they will be referred to the county family court service for a custody/placement study with a social worker. A guardian ad litem (a lawyer for the children’s interests) may also be appointed . This study takes 3-4 months, then the social worker will provide a recommendation to the judge. The spouses then can accept or reject the recommendation. If both accept it, the child-related part of the case is complete. If one spouse rejects it, the judge schedules a full trial.
Usually, after both spouses have exchanged enough information, there will be some settlement discussions. I estimate that over 90% of divorce cases settle before trial. It just takes a little while to get there, like any negotiation. It is not always pleasant, and sometimes emotions play a larger role than they probably should. But as long as the result is fair, it is almost always better to negotiate a settlement than have a trial.
If the spouses reach full agreement, the judge will usually accept the agreement and the final divorce hearing will take 10 minutes. It is largely a formality. If one of the issues of child placement, support, or property division is not resolved, the judge will hold a trial on that issue.
Depending on the circumstances, this process can change. But this is the basic track that all divorces will follow. The more the client can understand about the process, the less anxious he will be. The client and lawyer can then work together more efficiently to achieve the client’s goals. If you are considering a divorce, or have already filed and are confused or anxious about the process, I encourage you to give me a call or comment to this blog.
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