15850 W. Bluemound Rd. Suite 304 • Brookfield, WI 53005

15850 W. Bluemound Rd. Suite 304 • Brookfield, WI 53005 • 262-788-5335

What if my spouse/children and I live in different states, and I want a divorce?

When marriages end, it’s not usually a simple matter of filing a few documents with the local court and making a clean break. Sometimes, husbands and wives separate hoping to reconcile later, but later realize the relationship is over. What can complicate matters is when your ex has moved to another state and you are ready to move forward with your divorce. Now that you live in different states, what can you do?

Legal Separation

In Wisconsin, parties can legally separate before going through a divorce. Like divorce, legal separation involves going before a family court and making decisions about dividing property and income, child custody and placement, and child support. Once the court issues a judgment of legal separation, you will no longer accrue community income and debt. You will also be able to make decisions about your kids as if you were divorced.

Without children

If one of you moves out of state after a formal separation and you don’t have children, getting divorced may be a matter of one side returning to court. After one year, either party can ask the court to convert the separation to a divorce.

With children

If your ex moved out of state with your children and more than six months have passed, there may be an issue. If your children are primarily placed with you, jurisdiction is likely to remain with the Wisconsin court that issued the separation order.

However, if your kids live in another state most of the time, that state’s court will probably now have jurisdiction over them. In either scenario, you are going to need to go back to court to make changes that reflect your children’s current circumstances before you can divorce.

Informal Separation

In many cases, couples separate without going through a formal process. If your ex moves out of state and you have no idea where he or she has gone, it can be complicated, but not impossible, to move forward with a divorce.

If a Wisconsin resident wants to get divorced, he or she must serve their ex with the divorce paperwork. This is done by either having a process server give the individual the divorce papers or by them “admitting” personal service by signing a receipt for the documents. The process server needs to make several attempts to show reasonable and diligent efforts. You should give the process server all known information you have on your ex’s whereabouts, such as the names and contact information of family members, and where he or she last worked and lived. If your ex cannot be located, you can ask the court for permission to serve them by publication, or by posting a notice in a newspaper.

Once your ex has been served, you can schedule hearings and proceed with your case. However, if you have children and they are living elsewhere, the court may not be able to make decisions about them. Generally, where the children have been living for six months is the locale with jurisdiction. In some cases, the divorce will be in name only, meaning that the marriage is legally over, but the court will not be able to divide property or decide on placement or custody. This may be true if your ex never resided in Wisconsin and has no ties to the state.