Starting a Case

Print
Press Enter to show all options, press Tab go to next option

             A divorce or paternity case is started by filing the original Summons and Petition with the Clerk of Courts and paying the filing fee.  The fee can be waived by the Court if you file a written request which shows that you are indigent.  Those forms can be obtained at the Clerk of Courts office.

            When you file the original Summons and Petition, the copies must be authenticated, which means stamped by the Clerk of Courts. Authenticated copies must be served on each party not later than 90 days after filing (Sec. 801.02, Wis. Stats.).

            You should keep a copy of all documents pertaining to your case.

            The Summons and Petition should be prepared with at least four copies. The originals are always filed with the Court.  Copies must be served on all other parties.  Two copies should be delivered to the Sheriff for service of one copy on the other party. The second copy is used by the Sheriff for the proof of service so that the sheriff can file it with the Court.  In any case in which state or federal aid is being received, the Child Support Agency should be served a copy also.

            Personal service means actually delivering a copy to the person served. The only time you can use the mail for personal service of the Summons and other first documents is if the person served signs a written receipt admitting that he or she received the paper and stating when it was received.  The receipt is called an Admission of Service. You must then file that receipt or Admission of Service with the Court. Unless the other party admits service, personal service cannot be made by a party (Sec. 801.10).  That means you cannot personally serve the summons or petition on the other party to start the divorce.

            Generally, personal service is done by the Sheriff or local police. However, any adult except a party may also serve papers. There are some persons called process servers who make a living serving papers. A process server will generally charge about $35 to serve a document, but it could be more depending on how many attempts they have to make and how far they have to travel.

            If the Sheriff cannot find the other party or cannot make substituted service on a competent member of the family at least 14 years of age, he will sign a certificate so stating. The Court will want to be sure that a diligent effort was made to serve the respondent. Therefore, you must file the certificate from the Sheriff or other process server showing that the other party could not be found and that you have tried diligently to locate the other party and were not successful.  You may then publish the summons in a newspaper (Sec. 801.11(1)(c) and 801.02(3)(a)).  The Summons to be published is different from the regular Summons - make sure you publish the right form. You must pay the cost of publication. The Court cannot waive the newspaper's publication fee.

            Service by mail, certified, registered, or otherwise, even with a return receipt, does not constitute personal service. However if service is by publication, you must mail a copy of the summons and petition to the respondent at least by the date of the first publication (Sec. 801.11(1)(c)).

            Once a party is served with a Summons and Petition, he or she has 20 days to answer. (Respondent has 40 days to demand a copy of complaint if service is by publication.)  If the respondent also wants a divorce, he or she should file a counterclaim. If respondent does not file a counterclaim, respondent cannot get divorced if the petitioner fails to appear at the final hearing, or dismisses the case.

            Once a party is personally served with a Summons and Petition, the Court has personal jurisdiction and that party or their attorney may be served by mail with other papers such as notices for hearings (Sec.801.14).  However, there are several exceptions in which personal service is required.  For example, enforcement of placement orders specifically requires personal service of the notice of hearing (Sec. 767.471).

 

If you have any other questions about starting a family case, please speak with an attorney.  The Clerk of Courts can assist you with forms and service information, but Court staff cannot give legal advice.