The State Bar of Wisconsin Family Law Section is moving forward with seeking an amendment to Wis. Stat. chapter 767 to permit divorces to be granted without a final hearing.
The proposed amendment language has been approved by the section board and circulated with key stakeholders in family law matters. We are in the process of seeking a bill sponsor and hope to have the bill introduced at some time in the next session.
The Family Law Section Legislation Committee is interested in the views of State Bar members on this proposal.
Some Background
At least two counties, Milwaukee and Waukesha, experimented with “paper only” divorces during the COVID-19 pandemic. They proved popular and workable.
Some questioned whether Wisconsin statutes permitted such a practice. Many judges believe that it does, or at least in the face of the pandemic, could be justified. Now that the pandemic has waned, we are not aware of any counties still approving divorces without a final hearing.
Our Proposal
In order to remove any legal doubt and make this option available, the Family Law Section Legislative Committee tackled the idea by developing language for chapter 767 that would permit the option of divorce by affidavit.
Here’s a brief summary:
- The process would only be available where both parties are represented by attorneys or have worked with an attorney mediator who has electronically registered and filed the parties’ Marital Settlement Agreement. Having attorneys involved received positive reviews from interest groups and their colleagues.
- Parties involved in domestic abuse proceedings (criminal charges or civil restraining orders) must disclose the existence of those other cases. Although the original proposal excluded such cases from divorce by affidavit, we received feedback that excluding domestic abuse cases is not preferred and permitting divorces in this fashion is trauma-informed because survivors often wish to face their abusers as little as possible.
- The affidavits must include attestations to all of the usual information that is covered in a final hearing.
- The affidavit option is just that – an option. Any attorney or court official can request a final hearing where a record can be made. It does not mean divorces will necessarily occur faster or allow people to take divorce lightly.
While developing this proposal, we learned that many other states offer even more relaxed procedures for having a divorce finalized. For example, Minnesota offers a “summary dissolution” in certain limited cases (no children, shorter marriage, etc.). Other states permit any divorce to be finalized without court hearing.
The legal (and political) culture in Wisconsin may not be ready for such a dramatic change.
The Benefits
Our proposal is a modest step that will accomplish several positive outcomes:
- frees up court time for other matters;
- lets divorcing parties avoid the further stress of what is usually of very minimal legal value, but demanding on the parties themselves;
- recognizes the evolution of legal practice to toward efficiency: remote appearance, eFiling, and eSigning – which all in their own way acknowledge a warranted relaxation of being “in person;” and
- permits domestic abuse survivors to conclude their divorce without the trauma of being required to face their abuser.
Let Us Know Your Thoughts
We are sharing this update because this is potentially an important change in the law. The Family Law Section Legislation Committee believes State Bar members should have the opportunity to voice their views on this change.
If you have views you’d like to share on this matter, please contact either of the co-chairs of the Family Law Section Legislation Committee: Paul Stenzel and Jolene Schneider.
This article was originally published on the State Bar of Wisconsin’s Family Law Section Blog. Visit the State Bar sections or the Family Law Section web pages to learn more about the benefits of section membership.
