Wisconsin
Legal Separation in Wisconsin: Grounds, Residency and Divorce (2026)
Independently fact-checked against primary sources (last audited October 10, 2026). · 16 primary sources cited on this page. How we verify our legal content
Yes, Wisconsin has a legal separation action. Chapter 767 lists "Legal separation (formerly divorce from bed and board)" as an action affecting the family (Wis. Stat. § 767.001(1)(d)), and § 767.35 governs the judgment. The spouses remain married, and either can later ask the court to convert the judgment to a divorce under § 767.35(5).
Information last verified on 2026-10-10. This article has not been reviewed by a licensed lawyer.
Jurisdiction scope: This article covers legal separation under Wisconsin Statutes chapter 767, mainly §§ 767.001, 767.301, 767.315, 767.335, 767.35, 767.385, 767.56, 767.61 and 767.375. History notes on §§ 767.315, 767.335 and 767.35 list 2025 Wisconsin Act 40, which created the judgment-on-affidavits option described below; quotations are from the text published on the Wisconsin Legislature's website when this page was verified. It does not cover maintenance amounts, child support calculation, inheritance or tax effects, court form numbers or other states' law.
What is legal separation in Wisconsin?
Legal separation is a court judgment that settles property, support and parenting issues while the spouses stay married. Section 767.001(1)(d) lists it as "Legal separation (formerly divorce from bed and board)," so older documents may use the bed-and-board name.
The decision in Kemper Independence Ins. Co. v. Islami, 2021 WI 53, is summarized in the Legislature's annotation to § 767.35 this way: "A judgment of legal separation does not terminate a marriage--only divorce proceedings do. There are rights and obligations remaining in the marriage after a legal separation."
Grounds for legal separation in Wisconsin
A legal separation can rest on either of two findings under § 767.315 and § 767.35(1)(b):
- The marriage is irretrievably broken. This finding is available in both divorce and legal separation. It is supported where both parties state under oath or affirmation that the marriage is irretrievably broken, or where the parties voluntarily lived apart for 12 months or more before the action began and one party says so (§ 767.315(1)). If only one party says so and they have lived apart less than 12 months, the court considers all relevant factors, including the prospect of reconciliation. If it finds no reasonable prospect of reconciliation, it must find the marriage irretrievably broken; if it finds a reasonable prospect, it continues the matter 30 to 60 days, may order counseling, and decides at the adjourned hearing (§ 767.315(1)(b)).
- The marital relationship is broken. This ground applies to legal separation only. Section 767.315(2) provides:
"(2) BREAKDOWN OF MARITAL RELATIONSHIP. If both of the parties to a legal separation or divorce action by petition or otherwise have stated under oath or affirmation that the marital relationship is broken, the court, after hearing, shall make a finding that the marital relationship is broken for purposes of s. 767.35 (1) (b) 2. This subsection may be satisfied by an affidavit under s. 767.235 (1) (b)."
If one spouse asks for a legal separation and the other asks for a divorce, the court hears the matter and decides which judgment to grant (§ 767.35(2)).
Section 767.317 abolishes traditional defenses such as condonation and recrimination.
Residency and waiting period
Section 767.301 sets the residency rule for legal separation:
"No action for divorce or legal separation under s. 767.001 (1) (c) or (d) may be brought unless at least one of the parties has been a bona fide resident of the county in which the action is brought for not less than 30 days next preceding the commencement of the action."
Divorce has further residency language in the same section, covered on the Wisconsin divorce laws page.
Section 767.335 sets a waiting period:
"An action for divorce or legal separation may not be brought to final hearing or trial or granted based on an affidavit under s. 767.235 (1) (b) until the first of the following occurs: (1) GENERALLY. The expiration of 120 days after service of the summons and petition upon the respondent or the expiration of 120 days after the filing of the joint petition."
Subsection (2) of § 767.335 contains an emergency exception, which this page does not detail.
Since 2025 Wisconsin Act 40, a judgment of legal separation may be granted without a court hearing, on affidavits, if both parties are represented by lawyers (or worked with a registered lawyer mediator who drafted and filed their signed stipulation), have filed a court-approved stipulation and a stipulation for judgment upon affidavit, and meet the other conditions in § 767.235(1)(b). The 120-day waiting period still applies (§ 767.335).
What a Wisconsin court can order in a legal separation
A legal separation judgment can resolve the same money and parenting issues as a divorce:
| Issue | What the statute provides | Statute |
|---|---|---|
| Property | "Upon every judgment of annulment, divorce, or legal separation ... the court shall divide the property of the parties," with a presumption of equal division | § 767.61(1), (3) |
| Maintenance | The court "may grant an order requiring maintenance payments to either party for a limited or indefinite length of time" | § 767.56(1c) |
| Children and overall terms | Section 767.35(1)(c) refers to the court having "considered and approved or made provision for legal custody and physical placement, the support of any child of the marriage entitled to support, the maintenance of either spouse, and the disposition of property" | § 767.35(1)(c); § 767.511(1) |
| Family home | Awarding the family home, or the right to live in it for a reasonable period, to the party with physical placement for the greater period of time is a factor in dividing property, not a separate order | § 767.61(3)(h) |
If the court denies the legal separation, it can still enter orders. Under § 767.385, "the court may make such order as the nature of the case renders just and reasonable for the legal custody of and periods of physical placement with any of the minor children, and for the maintenance of either spouse and support of the children by either spouse."
For how maintenance and support are set, see Wisconsin alimony laws, Wisconsin child custody laws and Wisconsin child support laws.
Converting a legal separation to divorce
Section 767.35(5) provides:
"By stipulation of both parties, or upon motion of either party not earlier than one year after entry of a judgment of legal separation, the court shall convert the judgment to a judgment of divorce."
The one-year wait is attached to a motion by either party, not to a stipulation of both parties. Separately, voluntarily living apart for 12 months before a divorce action begins supports a finding that the marriage is irretrievably broken (§ 767.315(1)(a)).
If the spouses reconcile instead, § 767.35(4) requires the legal separation judgment to provide that the parties may apply to revoke it.
Effects of a legal separation
The spouses remain married after a legal separation (Kemper Independence Ins. Co. v. Islami, 2021 WI 53, as annotated). Two effects on death-related transfers appear in § 767.375:
- "Unless the judgment provides otherwise," a judgment of legal separation revokes a provision in a marital property agreement under § 766.58 that provides for dispositions at death (§ 767.375(1)).
- Revocation of other revocable transfers at death to the other spouse, or to the other spouse's relatives, "is governed by s. 854.15" (§ 767.375(2)). This page does not cover § 854.15 or other inheritance effects of a legal separation.
Where to find official help
The Wisconsin State Law Library's divorce research page links to guides on divorce or legal separation and on converting a legal separation to a divorce. The Wisconsin court system's online forms assistant walks through the forms for a new divorce or legal separation case. The clerk of circuit court in your county can explain local filing procedures.
Disclaimer: This article provides general legal information about legal separation under Wisconsin Statutes chapter 767 as verified on 2026-10-10. It is not legal advice. For advice about your situation, consult a lawyer licensed in Wisconsin or contact the Wisconsin State Law Library or your county's clerk of circuit court.
Related
- Legal separation laws in every state
- Wisconsin divorce laws
- Wisconsin alimony laws
- Wisconsin child custody laws
- Wisconsin child support laws
Last updated: 2026-10-10.
Frequently Asked Questions
Does Wisconsin recognize legal separation?
Yes. Wis. Stat. § 767.001(1)(d) lists legal separation, formerly called divorce from bed and board, as an action affecting the family, and § 767.35 governs the judgment.
Are you still married after a legal separation in Wisconsin?
Yes. As annotated under § 767.35, Kemper Independence Ins. Co. v. Islami, 2021 WI 53, states that a judgment of legal separation does not terminate a marriage; only divorce proceedings do.
How long does a legal separation take in Wisconsin?
Under § 767.335(1), the case generally cannot go to final hearing or be granted until 120 days after the respondent is served or a joint petition is filed, subject to the emergency exception in § 767.335(2).
Can a legal separation be turned into a divorce in Wisconsin?
Yes. Under § 767.35(5), the court shall convert the judgment to a divorce on the stipulation of both parties, or on either party's motion made no earlier than one year after the judgment was entered.
Do both spouses have to agree to a legal separation in Wisconsin?
The 'marital relationship is broken' ground requires both parties to state it under oath or affirmation (§ 767.315(2)). The irretrievable-breakdown ground can rest on one party's statement: after 12 months of voluntarily living apart, or otherwise if the court finds no reasonable prospect of reconciliation (§ 767.315(1)). If one spouse asks for a legal separation and the other asks for a divorce, the court hears the matter and decides which judgment to grant (§ 767.35(2)).
What is the residency requirement for legal separation in Wisconsin?
Under § 767.301, at least one spouse must have been a bona fide resident of the filing county for at least 30 days before the action begins.
Updates
Independently fact-checked against the cited primary sources
The Law Behind This Article
This article rests on the statutory provisions below, held in our own legal record and retrieved from the official source. Tap a section to read the operative text.
Wisconsin Statutes, Chapter 767: Actions Affecting The Family
§ 767.35Judgment of divorce or legal separation.In force
(1) When granted. A court shall grant a judgment of divorce or legal separation if all of the following conditions are met: (a) The requirements of this chapter as to residence and attendance at an educational program under s. 767.401 have been complied with. (b) 1. In connection with a judgment of divorce or legal separation, the court finds that the marriage is irretrievably broken under s. 767.315 (1) (a) or (b) 1. or 2., unless subd. 2. applies. 2. In connection with a judgment of legal separation, the court finds that the marital relationship is broken under s. 767.315 (2). (c) To the extent that it has jurisdiction to do so, the court has considered and approved or made provision for legal custody and physical placement, the support of any child of the marriage entitled to support, the maintenance of either spouse, and the disposition of property. (2) Granting divorce or legal separation. When a party requests a legal separation rather than a divorce, the court shall grant a judgment of legal separation unless the other party requests a divorce, in which case the court shall hear and determine which judgment shall be granted. (3) When divorce judgment effective.
Official text (excerpt) · last checked 2026-07-29 · Read the full text in our law library · Verify at docs.legis.wisconsin.gov
§ 767.315Grounds for divorce and legal separation.In forcecited in 2 of our articles
(1) Irretrievable breakdown. (a) If both of the parties to a legal separation or divorce action by petition or otherwise have stated under oath or affirmation that the marriage is irretrievably broken, or if the parties have voluntarily lived apart continuously for 12 months or more immediately prior to commencement of the action and one party has so stated, the court, after hearing, shall make a finding that the marriage is irretrievably broken for purposes of s. 767.35 (1) (b) 1. This paragraph may be satisfied by an affidavit under s. 767.235 (1) (b). (b) If the parties to a legal separation or divorce action have not voluntarily lived apart for at least 12 months immediately prior to commencement of the action and if only one party has stated under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to filing the petition and the prospect of reconciliation, and proceed as follows: 1. If the court finds no reasonable prospect of reconciliation, it shall make a finding that the marriage is irretrievably broken for purposes of s. 767.35 (1) (b) 1. 2.
Official text (excerpt) · last checked 2026-09-05 · Read the full text in our law library · Verify at docs.legis.wisconsin.gov
Also relied on in: Wisconsin Divorce Laws (2026): Grounds, Residency, and Process
§ 767.301Residence requirements.In forcecited in 3 of our articles
No action to affirm marriage or for annulment under s. 767.001 (1) (a) or (b) may be brought unless at least one of the parties has been a bona fide resident of the county in which the action is brought for not less than 30 days next preceding the commencement of the action, or unless the marriage has been contracted within this state within one year prior to the commencement of the action. No action for divorce or legal separation under s. 767.001 (1) (c) or (d) may be brought unless at least one of the parties has been a bona fide resident of the county in which the action is brought for not less than 30 days next preceding the commencement of the action. No action for divorce under s. 767.001 (1) (c) may be brought unless at least one of the parties has been a bona fide resident of this state for not less than 6 months next preceding the commencement of the action. 767.301 Note
Official text (excerpt) · last checked 2026-07-29 · Read the full text in our law library · Verify at docs.legis.wisconsin.gov
Also relied on in: Wisconsin Annulment Laws: Grounds, Deadlines and How to File (2026)
§ 767.335Waiting period for final hearing or trial.In forcecited in 2 of our articles
An action for divorce or legal separation may not be brought to final hearing or trial or granted based on an affidavit under s. 767.235 (1) (b) until the first of the following occurs: (1) Generally. The expiration of 120 days after service of the summons and petition upon the respondent or the expiration of 120 days after the filing of the joint petition. (2) Emergency. An order by the court, after consideration of the recommendation of a circuit court commissioner, directing an immediate hearing on the petition for the protection of the health or safety of either of the parties or of any child of the marriage or for other emergency reasons consistent with the policies of this chapter. The court shall, upon granting the order, specify the grounds for the order.
Official text (excerpt) · last checked 2026-07-29 · Read the full text in our law library · Verify at docs.legis.wisconsin.gov
Cited in 1 court opinions in our collectionLatest citing opinion in our collection: 2012
Opinions citing this section in our collection:
- Appling v. Doyle (Court of Appeals of Wisconsin 2012, 345 Wis. 2d 762)“…67.215 . After service, there is a 120-day waiting period. Wis. Stat. § 767.335 (1). A court-ordered or approved divisi…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
§ 767.61Property division.In forcecited in 5 of our articles
(1) Division required. Upon every judgment of annulment, divorce, or legal separation, or in rendering a judgment in an action under s. 767.001 (1) (h), the court shall divide the property of the parties. (2) Property subject to division. (a) Except as provided in par. (b), any property shown to have been acquired by either party prior to or during the course of the marriage in any of the following ways shall remain the property of that party and is not subject to a property division under this section: 1. As a gift from a person other than the other party. 2. By reason of the death of another, including, but not limited to, life insurance proceeds; payments made under a deferred employment benefit plan, as defined in s. 766.01 (4) (a), or an individual retirement account; and property acquired by right of survivorship, by a trust distribution, by bequest or inheritance or by a payable on death or a transfer on death arrangement under ch. 705. 3. With funds acquired in a manner provided in subd. 1. or 2. (b) Paragraph (a) does not apply if the court finds that refusal to divide the property will create a hardship on the other party or on the children of the marriage.
Official text (excerpt) · last checked 2026-07-29 · Read the full text in our law library · Verify at docs.legis.wisconsin.gov
Cited in 11 court opinions in our collectionLatest citing opinion in our collection: 2025
Opinions citing this section in our collection:
- Marriage of McReath v. McReath (Wisconsin Supreme Court 2011, 335 Wis. 2d 643)“…deviate from the presumption of equal property division in Wis. Stat. § 767.61 (3) (2009-10). 9 It then combined the…”
- Jezeski v. Jezeski (Court of Appeals of Wisconsin 2008, 316 Wis. 2d 178)“…and would have been excluded from the marital estate under Wis. Stat. § 767.61 (2)(a)l. if he had revealed his ownersh…”
- Marriage of Seng Xiong v. Vang (Court of Appeals of Wisconsin 2017, 378 Wis. 2d 636)“…cknowledged the presumption of equal division set forth in Wis. Stat. § 767.61 (3). After considering the factors list…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
Also relied on in: Wisconsin Maintenance (Alimony) Laws: How It Works (2026), Wisconsin Prenuptial Agreement Laws: Rules and Enforceability (2026)
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Sources and References
- Wisconsin Statutes Chapter 767, Actions Affecting the Family (Wisconsin State Legislature)(docs.legis.wisconsin.gov).gov
- Wisconsin State Law Library: Divorce research guide(wilawlibrary.gov).gov
- Wis. Stat. § 767.001, Definitions (Wisconsin State Legislature)(docs.legis.wisconsin.gov).gov
- Wis. Stat. § 767.35, Judgment of divorce or legal separation (Wisconsin State Legislature)(docs.legis.wisconsin.gov).gov
- Wis. Stat. § 767.315, Grounds for divorce and legal separation (Wisconsin State Legislature)(docs.legis.wisconsin.gov).gov
- Wis. Stat. § 767.317, Defenses abolished (Wisconsin State Legislature)(docs.legis.wisconsin.gov).gov
- Wis. Stat. § 767.301, Residence requirements (Wisconsin State Legislature)(docs.legis.wisconsin.gov).gov
- Wis. Stat. § 767.335, Waiting period for final hearing or trial (Wisconsin State Legislature)(docs.legis.wisconsin.gov).gov
- Wis. Stat. § 767.235, Trial or hearing on judgment (Wisconsin State Legislature)(docs.legis.wisconsin.gov).gov
- 2025 Wisconsin Act 40, optional final hearing by affidavit (Wisconsin State Legislature)(docs.legis.wisconsin.gov).gov
- Wis. Stat. § 767.61, Property division (Wisconsin State Legislature)(docs.legis.wisconsin.gov).gov
- Wis. Stat. § 767.56, Maintenance (Wisconsin State Legislature)(docs.legis.wisconsin.gov).gov
- Wis. Stat. § 767.511, Child support (Wisconsin State Legislature)(docs.legis.wisconsin.gov).gov
- Wis. Stat. § 767.385, Maintenance, legal custody, and support when divorce or separation denied (Wisconsin State Legislature)(docs.legis.wisconsin.gov).gov
- Wis. Stat. § 767.375, Effect on transfers at death (Wisconsin State Legislature)(docs.legis.wisconsin.gov).gov
- Wisconsin Court System: Divorce and family law self-help(www.wicourts.gov).gov