The question a client asks on the first call about a Wisconsin divorce is almost never about the divorce. It is about the next six weeks. Who stays in the house. When he sees the children. Whether the mortgage gets paid on the first. Whether she can empty the joint account before anyone looks. Those are not questions a final judgment answers, because the final judgment is months away. They are answered by a temporary order, and in most cases a temporary order is the first and most consequential thing that happens in the case.
It is also the part of a Wisconsin divorce that clients understand least. The hearing is short, it is usually not held before a judge, and it produces an order that the statute expressly declines to make binding on the final outcome. All three of those facts are true, and none of them means the hearing does not matter.
Why the temporary order governs for so long
Wisconsin will not let a divorce be finished quickly. Under Wis. Stat. § 767.335, an action for divorce or legal separation may not be brought to final hearing or trial until the expiration of 120 days after service of the summons and petition on the respondent, or 120 days after the filing of a joint petition. The only way out is § 767.335 (2): an order of the court, after consideration of a circuit court commissioner’s recommendation, directing an immediate hearing to protect the health or safety of a party or a child of the marriage, or for other emergency reasons consistent with the policies of ch. 767. If the court grants that order, it must specify the grounds for it.
One hundred twenty days is the floor, not the average. Add contested custody, a required mediation session, a guardian ad litem, a placement study, and a court calendar, and the span between filing and judgment can run well past four months. Whatever the temporary order says is what the family actually lives under for that whole stretch.
And then there is the part nobody mentions at the temporary hearing. Section 767.225 (1) (a) says plainly that a temporary legal custody order “is not binding on a final custody determination.” That is a statement about legal effect, and it is accurate. But when the court later decides custody and placement for good, § 767.41 (5) (am) 6. directs it to consider the interaction and interrelationship of the child with each parent and the amount and quality of time that each parent has spent with the child in the past. The temporary order does not bind the final decision. It does manufacture the history the final decision gets to look at. A parent who accepts a thin temporary schedule because it is “only temporary” has spent several months building the record against himself.
What already binds you, before any hearing at all
Some restrictions attach by operation of statute, with no motion, no hearing, and no order. Under § 767.117 (1), the petitioner is bound upon filing the petition, joint petitioners upon filing the joint petition, and the respondent upon service of the petition. The prohibitions are three:
- Paragraph (a). Harassing, intimidating, physically abusing, or imposing any restraint on the personal liberty of the other party or a minor child of either party.
- Paragraph (b), which applies where the action is one under § 767.001 (1) (a), (b), (c), (d), (h), or (i) — to affirm marriage, annulment, divorce, legal separation, property division, or to enforce or modify a judgment or order. In those actions: encumbering, concealing, damaging, destroying, transferring, or otherwise disposing of property owned by either or both parties, without the other party’s consent or a court order — except in the usual course of business, in order to secure necessities, or in order to pay reasonable costs and expenses of the action, including attorney fees.
- Paragraph (c), which applies unless the action is one under § 767.001 (1) (g) or (h) — that is, unless it is an action for maintenance payments or for property division. Otherwise, without consent or a court order: relocating and establishing a residence with a minor child of the parties more than 100 driving miles from the other party’s residence; removing a minor child from the state for more than 90 consecutive days; or concealing a minor child from the other party. “Driving miles,” per § 767.001 (1fm), means the actual distance traveling by road required to get from one location to another — not the distance as the crow flies.
These run until the action is dismissed, until final judgment, or until the court orders otherwise, under § 767.117 (2). A party who violates any of them may be proceeded against for contempt under ch. 785. Section 767.215 (2) (i) and (2) (j) require that the petition itself notify the parties of the property and child-related prohibitions, so the warning is in the paperwork you were handed.
There is one narrow safe harbor, and it exists for a reason. Under § 767.117 (3) (b), an act violating the child-relocation and concealment prohibitions is not contempt if the court finds the action was taken to protect a party or a minor child from physical abuse by the other party and that there was no reasonable opportunity under the circumstances to obtain a court order authorizing it. Note how that is built: the safe harbor is for physical abuse, it requires a judicial finding after the fact, and it does not cover the property prohibitions at all.
Read § 767.117 (1) (b) against the carve-outs before you move any money. Paying the mortgage and the utilities is securing necessities. Paying a retainer is paying a reasonable cost of the action. Moving a brokerage account to an institution your spouse cannot see is none of those things.
Who actually hears it
Temporary hearings are usually held before a circuit court commissioner rather than a judge, and that is not an accident of docket pressure — it is what the office exists for. Under § 757.68 (2m) (a) 1., in every county except one with a population of 750,000 or more, the chief judge of the judicial administrative district appoints a circuit court commissioner to supervise the office of family court commissioner for the county, by order filed with the clerk of circuit court. Milwaukee County has its own arrangement under § 757.68 (2m) (b). The old phrase “family court commissioner” survives as the name of the office; the officer is a circuit court commissioner assigned to assist in matters affecting the family.
That is also the answer to a question the statutes otherwise make confusing. Section 767.225 (1) says “the court may” make temporary orders, yet a commissioner routinely makes them. The reconciliation is in § 767.001 (1b): throughout ch. 767, “court” includes the circuit court commissioner where the commissioner has been authorized by law to exercise the authority of the court or has been delegated it as authorized by law. When you read “the court shall” in a temporary-order provision, read it as including the commissioner.
Section 757.69 (1) (p) sets out what that commissioner may do: preside at a hearing on whether a divorce or legal separation judgment should be granted where both parties state the marriage is irretrievably broken and all material issues are resolved; conduct hearings and enter judgments in actions to enforce or revise maintenance, custody, physical placement, or visitation; and, except where prohibited by the chief judge of the district, conduct hearings and enter orders in paternity and child support matters. A commissioner who does not approve the parties’ agreement on material issues must certify the action to the court for trial.
How you ask, and what you have to file with it
Section 767.225 (2) is short and routinely ignored. Notice of motion for a temporary order, or an order to show cause, may be served at the time the action is commenced or any time after — and it shall be accompanied by an affidavit stating the basis for the request for relief.
That affidavit is the case. A temporary hearing is usually brief, frequently has no live testimony, and is decided largely on the papers. The party whose affidavit sets out dates, balances, schedules, and specifics tends to prevail over the party whose affidavit sets out adjectives. If you are responding, the response affidavit is your only reliable opportunity to put your own version in front of the commissioner before the order issues.
What a temporary order can cover
The authority is § 767.225 (1), which permits “just and reasonable temporary orders” during the pendency of an action affecting the family, except as provided in ch. 822. The list is broader than most people expect:
- Legal custody, jointly or solely, or to a relative or agency specified under § 767.41 (3) — par. (a).
- Periods of physical placement, and periods of electronic communication — pars. (am) and (ap).
- Prohibiting removal of the children from the court’s jurisdiction — par. (b); or, conversely, allowing a party to relocate and reside with a child pending a final hearing under § 767.481 (3) — par. (bm).
- Child support — par. (c); and maintenance for the other party — par. (d).
- An assignment of income under § 767.75, or an authorization for transfer under § 767.76 — par. (f).
- Requiring either or both parties to pay debts or perform other actions in relation to the persons or property of the parties — par. (g).
- Prohibiting either party from disposing of assets within the court’s jurisdiction — par. (h). This is the order you seek when the automatic prohibition in § 767.117 (1) (b) is not enough, and § 767.225 (1) (h) is written to operate notwithstanding it.
- Requiring counseling of either or both parties — par. (i).
- Requiring the children to be maintained as beneficiaries on a health insurance policy or plan, and an assignment of income for their health care expenses — pars. (k) and (L).
Two structural points about that list. First, under § 767.225 (1n) (a), before making any temporary order the court must consider the same factors ch. 767 requires it to consider before entering a final judgment on the same subject matter. Temporary maintenance is therefore decided against the § 767.56 (1c) factors — length of the marriage, age and health, the property division, educational level, earning capacity, feasibility of becoming self-supporting, tax consequences, and the rest — and temporary custody and placement against the § 767.41 (5) (am) factors, subject to § 767.41 (5) (bm). A temporary hearing is a short hearing on the full statutory standard, not a lighter one.
Second, § 767.225 (1) (c) requires that temporary child support be expressed as a fixed sum, unless the parties have stipulated to a percentage of the payer’s income and the conditions in § 767.34 (2) (am) 1. to 3. are met. If the order deviates from the percentage standard established under § 49.22 (9) by the department — which § 767.001 (1d) defines as the Department of Children and Families, § 767.225 (1n) (b) 1. pulls in § 767.511 (1n), which requires the court to state — in writing or on the record — the amount the percentage standard would produce, the amount of the deviation, why the standard is unfair to the child or the party, and the basis for the modification. If you are asking for a deviation, you are asking for findings, and you need to hand up the facts that support them. (For how the percentage standard works, see our post on how child support is calculated in Wisconsin.)
The custody shortcut, and the thirty-day clock
Three features of temporary custody and placement are worth knowing precisely.
Sole legal custody is easier to get temporarily than finally. For a final order, § 767.41 (2) (am) presumes joint legal custody is in the child’s best interest, and § 767.41 (2) (b) 2. permits sole legal custody over objection only on a specific finding that a party is not capable of or does not wish an active parenting role, that conditions exist that would substantially interfere with joint legal custody, or that the parties will not be able to cooperate in future decision making. Section 767.225 (1) (a) dispenses with that: the court “may order sole legal custody without the agreement of the other party and without the findings required under s. 767.41 (2) (b) 2.” The same paragraph is what makes the order non-binding on the final determination. The two halves go together — a lower threshold, and correspondingly less weight.
There is a deadline on placement. Under § 767.225 (1) (am), the court shall make a determination on a temporary placement request within 30 days after the request is filed. Section 767.225 (1) (ap) sets the same 30-day limit for electronic communication, and names both the court and the circuit court commissioner.
A thin schedule requires written reasons. Also in § 767.225 (1) (am): if the court grants physical placement to one parent for less than 25 percent of the time, as determined under § 49.22 (9), the court shall enter specific findings of fact as to the reasons a greater allocation with that parent is not in the child’s best interests. That is a real lever for the parent on the short end of a proposed temporary schedule, and it is almost never invoked. Ask for the findings.
Where the court finds by a preponderance of the evidence that a party has engaged in a pattern or serious incident of interspousal battery or domestic abuse as defined in § 813.12 (1) (am), § 767.225 (1n) (b) 2. requires the court, in making a temporary order awarding that party joint or sole legal custody or periods of physical placement, to comply with § 767.41 (6) (f) and, if appropriate, § 767.41 (6) (g). And under § 767.225 (3m), a circuit court commissioner who believes a restraining order or injunction under § 813.12 may be appropriate must inform the parties of the right to seek one and the procedure, and must submit any motion for one to the court within five working days. A domestic abuse injunction is a separate proceeding from the divorce; the commissioner cannot grant it at the temporary hearing. (For the custody vocabulary itself, see legal custody versus physical placement.)
Two rules that cut in both directions
These come up at nearly every temporary hearing, and clients on both sides of them are usually wrong.
Section 767.41 (4) (c): no court may deny periods of physical placement for failure to meet, or grant periods of physical placement for meeting, any financial obligation to the child or to the former spouse. Placement is not for sale and it is not forfeited by arrears.
Section 767.511 (3): violation of physical placement rights by the custodial parent does not constitute reason for failure to meet child support obligations. The remedy for a withheld weekend is a motion, not a withheld payment.
Financial disclosure, and the perjury warning in the fine print
Section 767.127 (1) requires each party to furnish, on standard forms, full disclosure of all assets owned in full or in part, separately or jointly — real estate, accounts, stocks and bonds, mortgages and notes, life insurance, retirement interests, partnership and company interests, tangible personal property, vested and nonvested future interests, and any other financial interest or source — along with all debts and liabilities. The form must carry, in conspicuous print, a statement that complete disclosure is required by law and that deliberate failure to provide it constitutes perjury. Each party must attach a statement of income earned to date for the current year and the most recent statement under § 71.65 (1) (a) that the party has received. The court may on its own initiative, and shall at the request of either party, require copies of all state and federal income tax returns filed for the past two years — and may require earlier years.
The forms are due within 90 days after service of the summons or the filing of a joint petition, or at a time the court orders, under § 767.127 (2), and the information must be updated on the record to the date of hearing. Two consequences follow. Under § 767.127 (4), if a party fails to file a complete disclosure on time, the court may accept as accurate the information in the other party’s statement. And under § 767.127 (5), if a party intentionally or negligently fails to disclose and an asset worth $500 or more is as a result left out of the final property division, the aggrieved party may petition at any time for a constructive trust over all undisclosed assets, with the concealing party as trustee — and the court shall grant the petition on a finding of nondisclosure. Nondisclosure has no statute of limitations here. (On what gets divided and how, see dividing property in a Wisconsin divorce.)
Who pays the lawyer while the case is pending
Clients with no access to the marital income assume they cannot afford to litigate. Two provisions say otherwise. Section 767.225 (1) (d) authorizes temporary maintenance and specifies that it “may include the expenses and attorney fees incurred by the other party in bringing or responding to the action affecting the family.” Separately, § 767.241 (1) (a) permits the court, after considering the financial resources of both parties, to order either party to pay a reasonable amount for the other’s cost of maintaining or responding to the action and for attorney fees; § 767.241 (2) allows the award to include fees and costs incurred before the proceeding commenced or after judgment was entered; and § 767.241 (3) permits payment directly to the attorney. A contribution request belongs in the temporary motion, not saved for the end. (See also spousal maintenance in Wisconsin.)
Mediation does not pause any of this
Under § 767.405 (5) (a), in any action affecting the family in which legal custody or physical placement appears to be contested, the court shall refer the parties to the director of family court services for possible mediation. Section 767.405 (8) (a) requires the parties to attend at least one session, and provides that where the parties and the mediator agree continued mediation is appropriate, no court may hold a trial or a final hearing on legal custody or physical placement until mediation is completed or terminated. Section 767.405 (8) (b) gives the court discretion to proceed without the session on a finding of undue hardship or endangerment to a party’s health or safety, considering evidence of abuse of the child, interspousal battery or domestic abuse, a significant problem with alcohol or drug abuse, or any other evidence of endangerment.
Two deadlines inside that process are easy to miss. Under § 767.405 (8) (d), at least 10 days before the initial mediation session each party must submit a proposed parenting plan containing everything required by § 767.41 (1m). And if mediation does not produce agreement, § 767.41 (1m) requires a party seeking sole or joint legal custody or periods of physical placement to file a proposed parenting plan — unless the court orders otherwise — within 60 days after the mediator notifies the court that no agreement was reached — and provides that, except for cause shown, a party who does not timely file one waives the right to object to the other party’s parenting plan. That is among the harshest default consequences in ch. 767.
None of it stalls the temporary order. Section 767.405 (13) says expressly that referring parties to mediation does not affect the power of the court to make any necessary order relating to the parties during the course of the mediation. The mediation track and the temporary-order track run at the same time.
If the commissioner gets it wrong: de novo review, and the twenty-day clock
This is the single most valuable thing in this post, and it is the thing clients most often learn too late.
Section 767.225 (1n) (c) provides that temporary orders made by a circuit court commissioner may be reviewed by the court. Chapter 767 has its own review statute for exactly this, and it is more specific than the general provision at § 757.69 (8). Under § 767.17 (1), any decision of a circuit court commissioner under ch. 767 shall be reviewed by the judge of the branch to which the case is assigned upon motion of any party, and any determination, order, or ruling may be certified to that branch upon a party’s motion for a hearing de novo.
De novo means what it says. A hearing de novo requires the circuit court to take a fresh look at the issues, including the taking of testimony. Jahimiak v. Jahimiak, 2024 WI App 5, 410 Wis. 2d 557, 2 N.W.3d 756. Construing the parallel general statute, the court of appeals has held that a party requesting a de novo hearing is entitled to one that includes testimony from the parties and their witnesses, Stuligross v. Stuligross, 2009 WI App 25, 316 Wis. 2d 344, 763 N.W.2d 241, and that a de novo hearing is a new hearing of the matter conducted as if the original hearing had not taken place, Nehls v. Nehls, 2012 WI App 85, 343 Wis. 2d 499, 819 N.W.2d 335. You are not arguing that the commissioner abused his discretion. You are trying the question over, in front of the judge, with live witnesses.
The deadline is twenty calendar days, and it is statutory. Under § 767.17 (2), a party seeking a de novo hearing on a commissioner’s determination, order, or ruling in an action affecting the family must file the motion within 20 calendar days of the commissioner’s oral decision — or within 20 calendar days of the mailing of a written decision or order, if the commissioner did not rule orally at the hearing. The statute removes any doubt about the count: as set forth under § 801.15 (1), the 20 calendar days are counted consecutively and include weekends and holidays. This is not a local-rule question and it is not a thirty-day deadline you can approximate. Calendar it from the day of the ruling.
Then three limits built into § 767.17 (1) that cost people their review:
- You must have been there. “A party is required to be present at the hearing in order to seek a de novo review.” A party who skips the commissioner’s hearing has not merely lost that hearing; he has forfeited the right to have a judge redo it.
- Stipulations are excluded. “The right to seek a de novo review does not apply to stipulations entered into between the parties.” Section 767.225 (1n) (c) permits a temporary order to be based on the parties’ written stipulation, subject to the court’s approval. Put the two together and the consequence is concrete: if you stipulate to the temporary order in the hallway, you have given away your de novo review along with it. Hallway stipulations are often the right call — faster, cheaper, and less destructive than a contested hearing. But they should be made knowing what is being traded, not because nobody said anything was.
- Filing does not stop the order. “Notices requesting a hearing de novo will not stay the order unless the trial court specifically grants a stay of the order.” The support keeps running and the placement schedule keeps operating while your motion is pending. If you need the order suspended in the meantime, you have to ask for a stay and the court has to grant it.
On timing at the other end, § 767.17 (3) directs the court to hold the de novo hearing no later than 60 days from the filing of the motion, except as otherwise required under § 767.481. That 60-day limit is directory rather than mandatory. Jahimiak, 2024 WI App 5. Your 20 days are hard; the court’s 60 are not.
What to do before the temporary hearing
Write the affidavit first and write it with specifics. Dates, account numbers, balances, pay stubs, the actual school pickup schedule for the last six months. The commissioner has a crowded calendar and your affidavit is most of your case.
Read the papers you were served. Under § 767.215 (2m) (a), where the parties have minor children the summons must be accompanied by a document setting out the percentage standard under § 49.22 (9) and the § 767.511 (1m) deviation factors, and by a copy of § 767.41 (1m) or the county’s standard parenting plan form — furnished by the clerk at no charge. The playbook is stapled to the summons.
Calendar the real deadlines the day you are served: 20 days to serve a response or counterclaim under § 767.215 (3); 90 days for the financial disclosure forms under § 767.127 (2); 10 days before the mediation session for the proposed parenting plan under § 767.405 (8) (d); 60 days after a failed mediation to file the parenting plan under § 767.41 (1m). And the moment any temporary order is entered, calendar the 20 calendar days under § 767.17 (2) — weekends and holidays included — whether or not you think you will use them.
Ask for a placement schedule you can live with for a year, not one you can tolerate for a month. Section 767.41 (4) (a) 2. directs the court to set a schedule that gives the child regularly occurring, meaningful periods with each parent and that maximizes the time with each, accounting for geographic separation and different households. That standard applies at the temporary stage through § 767.225 (1n) (a). Ask for it then.
And do not self-help. Every impulse the first week of a divorce produces — moving the money, changing the locks, taking the children to your mother’s in another state — is addressed by § 767.117 (1), is enforceable by contempt under ch. 785, and will be the first thing the commissioner hears about.
Talk to a New Berlin family law attorney
Carson Law Office represents parents and spouses in divorce, legal separation, custody, placement, support, and maintenance matters in New Berlin, Waukesha County, Milwaukee, West Allis, Wauwatosa, and the surrounding communities — including temporary-order motions, hearings before circuit court commissioners, and de novo review before the assigned judge. If you have been served, or you are about to file, the temporary order is the part of the case that is decided soonest and lived with longest. Call (262) 860-8932 or email christopher@carsonlawoffice.com. You can also read more about our family law practice and our post on how divorce actually works in Wisconsin, or contact us to arrange a consultation.
Carson Law Office · 15350 West National Avenue, Suite 101, New Berlin, WI 53151 · (262) 860-8932
This article is general information about Wisconsin law and family court practice, and is not legal advice. Statutes are amended from time to time, local court rules vary by county, and every case turns on its own facts. Read the papers you were served and speak with an attorney about your own situation.