Divorce or Legal Separation? 

 The Wisconsin Family Code (Chapter 767, Stats.) permits a person to file a petition seeking annulment, divorce, or legal separation.   Many times, persons are confused about the differences between these three family law judgments.

An annulment is a judgment dissolving the marriage as though it never occurred.   There must be grounds for an annulment, though.  Generally, a person may seek annulment when, for various reasons, he or she lacked the capacity to consent to the marriage (mental incapacity, age, intoxication, etc.); or where one of the parties lacks the physical capacity to consummate the marriage through sexual intercourse; or where the marriage is otherwise prohibited by law.

Grounds for divorce or legal separation are identical, but the effect of the final judgment is different.  A person is entitled to a divorce or legal separation if he or she establishes that the marriage is irretrievably broken.   The court will find that the marriage is irretreivably broken if one of the parties testifies under oath that this is the case.   Whether the demand is for divorce or for legal separation, the procedure is identical.  The court must decide the issues of property division, child support, custody of children, placement of children, and maintenance.

There is, however, a difference between a final judgment of divorce, and a final judgment of legal separation.  Once granted, a judgment of legal separation must provide that, if a reconciliation of the parties occurs at any time after the judgment, the parties may apply for a revocation of the judgment.  In other words, the parties may become "married" again by revoking the judgment of legal separation, rather than by going through a marriage ceremony. 

Similarly, after one year has passed from the entry of the judgment of legal separation, either party may move the court to convert the judgment to a judgment of divorce.

So which judgment is right for you?  Some persons, because of religious beliefs, prefer to have a judgment of legal separation rather than a judgment of divorce.  Additionally, some insurance companies will permit a person to continue to insure his or her spouse after a legal separation, but not after a divorce.   Finally, some persons will seek a judgment of legal separation because they hold out hope that the couple can reconcile (which is somewhat inconsistent with the idea that the marriage is "irretrievably broken")

The best way to decide is to seek the guidance of a family law professional.