Divorce or Legal Separation: Which Option Is Right for You?

ByRyan Kautzer

Understand the key differences between divorce and legal separation in Wisconsin, including filing requirements, legal rights, and what each option means for your future.

There are many reasons an individual may be interested in a legal separation over a divorce, or vice versa. Factors such as religious or personal beliefs, the possibility of reconciliation, or the desire to maintain certain financial or insurance benefits may lead someone to choose a legal separation rather than a divorce. On the other hand, the desire for a fresh start, financial independence, or plans to remarry may make divorce the better option.

But what is the difference between the two? And how do I know which is right for me?

What is a Divorce?

Divorce is a court action which completely and permanently dissolves the marriage and legal relationship between two parties. In doing so, the court will create orders on legal custody and physical placement of any minor children and division of the marital assets and debts. 

Once the divorce is finalized, the parties become legally single and may remarry after Wisconsin’s six-month waiting period. Similarly, they will be required to file state and federal tax returns as single individuals, since the marriage has ended. Any next of kin rights under probate law would also no longer apply. Likewise, the parties will no longer be able to provide health insurance coverage to one another after the court grants the divorce.

Divorce Residency Requirements in Wisconsin

Given that a divorce permanently dissolves the legal relationships of the parties, the filing requirements in Wisconsin are more strict. When filing for divorce one of the parties must be a resident of the state for at least six months and a resident of the county in which they intend to file for at least 30 days prior to filing for divorce.

Simplified Divorce Options

Divorce does not have to be a drawn-out courtroom battle. If your divorce is uncontested, options such as divorce by affidavit or mediation may be the more efficient and less stressful path.

Divorce by Affidavit

  • Instead of appearing in court, eligible spouses submit a written statement (an affidavit) asking the court to approve their divorce based on the terms they have already agreed upon.
  • Interested in a Divorce by Affidavit? Watch this video to learn more about the requirements and process in Wisconsin.

Mediation For Divorce

  • Mediation is another option for an uncontested divorce. It can be especially helpful for spouses who agree on many of the major issues but need guidance to reach a final agreement.
  • During mediation, a neutral attorney helps you and your partner explore your options, reach agreements together, and prepare the necessary documents for court approval. Working with a lawyer mediator also provides professional support to avoid the risks of a ‘do-it-yourself’ divorce.
  • Interested in Mediation for Divorce or Legal Separation? Click here to learn more about the mediation process with HKK Law Offices. 

Legal separation is a court action in which the marriage and legal relationship between the parties remains intact, but the Court still creates orders on legal custody and physical placement of any minor children. The Court will also make orders on the division of marital assets and debts in a legal separation action, just as in a divorce action. 

Because the parties remain married, they cannot lawfully remarry under Wisconsin law. Similarly, IRS rules do not allow legally separated couples to file a joint tax return. However, legally separated individuals may be allowed to remain on their family health insurance plans, depending on the rules of the policy.

The filing requirement for legal separation in Wisconsin is less strict than when filing for divorce. In order to file for legal separation, one of the parties must reside in the county in which they intend to file. There is no residency requirement for either spouse to have lived in the state. 

One of the significant disadvantages to being legally separated is that third party creditors can continue to seek payment from the spouse after non-payment on a debt. Although you may be able to seek relief in court in this event, such recourse is not necessary after a divorce action, because the legal relationship has already been severed.

A legal separation can be converted to a divorce under certain circumstances. Both parties can agree to convert the legal separation to a divorce at any time during or after the conclusion of the case. After one year following the granting of the legal separation, either party individually can request the matter be converted to a divorce, without cause.

Final Thoughts 

Deciding on whether to file for divorce or legal separation is an important decision. Be sure to consider all the factors and requirements of each action and what goals you wish to achieve with your divorce or legal separation.

We believe in protecting what matters most—your family, your finances, and your legacy. If you have questions about the divorce process or other family law and estate planning matters, we are here to help. Contact HKK Law Offices today to schedule a complimentary consultation.

Our attorneys are available to meet by phone, video conference, or in person at our offices in Sheboygan, Mequon, and Random Lake. We also share educational content on TikTok, YouTube, LinkedIn, Facebook, and Instagram to help Wisconsin families better understand estate planning and family law. We encourage you to follow along for legal updates, practical guidance, and educational resources.

Disclaimer 

This article is provided for general educational purposes only and should not be considered legal advice. Reading this article does not create an attorney-client relationship. Because every situation involves unique facts and circumstances, you should consult a qualified attorney regarding your specific legal needs.

Ryan Kautzer

Attorney at Law | Partner

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