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How Does Abandonment Affect Divorce in Wisconsin

Spousal abandonment occurs when one spouse leaves the marriage without justification, consent, or any intention of renewal. For a divorce in Wisconsin, only one party must believe a marriage is broken beyond repair. Because Wisconsin is a no-fault, 50/50 state, spousal abandonment or desertion seldom affects property division or support.

While there is a common misconception that spousal abandonment offsets asset division, spousal abandonment can affect child custody and visitation rights.

How is Spousal Abandonment Determined

Spousal abandonment grounds vary from state to state. Usually, spousal abandonment is determined by:
  • The amount of time the spouse has been gone.
  • An acknowledgment that the spouse left without consent.
  • An acknowledgment that the abandoned spouse was not creating an unsafe space.

What are the Legal Grounds for Abandonment?

Due to Wisconsin being a no-fault state, there are no grounds for abandonment. The reason for the divorce does not impact the divorce process. The circumstance of one party leaving the marital home rarely holds any legal relevance for property division or finances.

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Moving Out of the House During a Pending Divorce

During a divorce, there is often a concern about who "gets" the house. Regardless of who moves out of the marital home during a pending divorce, neither party gives up any interest or equity in the home.

Can I Have Access to the Home if I Leave?

If the court makes temporary order that grants one party exclusive use of the marital home, the other party may not enter the home without the permission of the residing spouse.

Legally, there is nothing wrong with coming and going, provided there are no orders barring it. However, parties need to weigh the potential consequences of returning to the marital home when not welcome.

Should I take My Things When I Leave?

Before moving out, it is smart to create an inventory of all of the property in the house. This way the moving spouse can recall what they may want in the final property division. Unless parties agree, the moving spouse can only take personal belongings like clothes and jewelry when they leave.

If a party has moved out and wants access to the home to retrieve personal property, the best path forward is to work with an attorney to schedule a date and time that is agreeable for all involved. An agreement should be set forth to decide which items can be removed from the home to minimize future conflict.

Will Moving Out Affect Child Custody or Visitation Rights?

If a party leaves the home and does not have contact with the children, that certainly could play into a judge's decision as to custody and placement. A parent can file for termination of parental rights after 6 months if:

  1. The abandoning parent was aware of the child/children's location.
  2. There were no communication or visitation attempts.
  3. Abandonment was not due to safety concerns.*

Alternative to Moving Out of the Home During a Pending Divorce

For couples that are more amicable in the divorce process and want to keep things as normal as possible for the kids, there are some creative short-term options other than moving out:

Nesting

An arrangement where the children remain in the marital home, and each parent stays there for alternating periods, typically a week or a month. This arrangement can offer more stability for the children if the parents have the means to stay elsewhere on their off weeks or months.

House Splitting

If the marital home is big enough, the parents can divide the house into separate areas of occupancy. The parties will then decide whether they want to share the common areas as needed or place a schedule for the use of common areas.

How to Serve Divorce Papers During Abandonment

After the Summons and Petition for Divorce are filed, divorce papers must be served on your spouse within 90 days. Thorough attempts must be made even if the spouse is "missing." A judge will not move the process forward until every effort has been made to serve the missing spouse. Document every attempt thoroughly and enlist the help of a police officer. Sheriff department, process server, friend or relative.

*Once the papers are served, the other spouse must file a response within 20 days. Wisconsin courts can enter a default judgment if the spouse fails to respond.

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