When the COVID-19 pandemic first started, no one could have anticipated the extent to which it would impact our lives. Practically overnight, the ways in which we work, attend school, socialize and conduct business went from being in-person to remote. The Wisconsin legal system has also had to adapt to these rapidly changing circumstances. For example, before the pandemic, most parties who wanted to divorce in a Wisconsin court had to appear in person. However, today, someone seeking a Wisconsin divorce may have the choice to divorce by affidavit. If you are considering your Wisconsin divorce options, you will want to know: What is divorce by affidavit, and can I get one in Wisconsin?

Wisconsin Divorce

To file for a Wisconsin divorce, one or both parties must be a state resident for six months and have lived in the county where they file for thirty days before initiating the case. Depending on the circumstances, the parties may file jointly or as petitioner and respondent. Once the case is filed and both sides are properly notified, other processes may take place. For instance, the parties may need to get temporary orders while the case is pending. They may also want to serve one another with discovery. Additionally, the two sides may engage in negotiations in an attempt to settle their disputed issues. The two may attend Divorce Mediation as well. If they cannot reach an agreement, the parties can have their case decided by a Wisconsin divorce court. Wisconsin law provides that divorce hearings and trials “shall be before the court.” Unless a party is shown not to be in Wisconsin or the court orders otherwise, that law requires that “both parties in actions affecting the family shall appear upon the final hearing or trial.”

What is Divorce by Affidavit?

Divorce “by affidavit” is the term used to describe a process where one or both parties use a sworn document to establish the legal requirements to be granted a divorce rather than appearing in court in person. To initiate a divorce by affidavit, a party files an “Affidavit for Request for Granting of Divorce.” This document will include details such as where the person lives if they or their spouse have resided in Wisconsin for the requisite amount of time to file for divorce, and information about their kids, property, and debt. The request will also usually contain language that establishes that an attorney represents the affiant, that the affiant agrees not to have an in-person trial or hearing, and that they understood what they were signing. In addition, the affidavit is usually accompanied by a Marital Settlement Agreement. The Marital Settlement Agreement is a separate document that will state the specific details of the parties’ agreed upon divorce terms.

In the past, when both parties to a divorce were located in Wisconsin, divorce by affidavit was not an option. However, the outbreak of the coronavirus pandemic has led to changes in some Wisconsin courts. To resume operations, several Wisconsin courts have been scheduling hearings via phone and video conferencing. Additionally, some courts, such as those in the Metro Milwaukee area, have been allowing parties who are represented by counsel and have reached an agreement on their divorce terms to divorce by affidavit. This marks a significant departure from the usual requirement that parties appear in person for divorce hearings and trials in these counties.
The question of whether or not divorce by affidavit will be available during your Wisconsin divorce depends on the circumstances of your case and the circuit court where you are filing for your divorce. Additionally, as pandemic conditions and guidelines shift, Wisconsin court practices may also change. The best way to determine if divorce by affidavit is available for your case is to consult with an experienced Wisconsin divorce attorney. Your counsel can review your case with you and discuss your Wisconsin divorce options.

Attorney Karyn Youso of First Look Family Law is an experienced Wisconsin divorce Attorney and Mediator who has extensive experience helping clients understand their options before, during, and after divorce and can assist you in determining your next steps. If you have a divorce case in the Metro Milwaukee area, contact us today and let us take a “first look” at your situation.