Divorce by affidavit is a new Wisconsin procedure that allows certain fully agreed-upon divorces and legal separations to be finalized without the parties appearing for a final court hearing. The procedure was created by 2025 Wisconsin Act 40 and is now found primarily in Wis. Stat. § 767.235(1)(b).
Traditionally, even when spouses had resolved every issue in their divorce, Wisconsin generally required a final hearing before the court. Divorce by affidavit creates an exception: when all statutory requirements are satisfied, the judge may grant the divorce based upon the parties' written stipulation and affidavits rather than requiring them to appear and provide testimony in person.
Who Can Use Divorce by Affidavit?
Not every Wisconsin divorce qualifies. Among other requirements:
Both spouses must be represented by attorneys, or the parties must have worked with a lawyer-mediator with special dispute-resolution skills and training who is registered in the case and prepared and filed their signed stipulation;
all required parties must have signed and filed a court-approved stipulation resolving the divorce;
both spouses must file a stipulation for judgment upon affidavit; and
both spouses must submit the affidavits required by § 767.235(1)(b).
Consequently, divorce by affidavit is not presently a procedure for two entirely self-represented spouses who simply reach their own agreement. Attorney involvement, or qualifying lawyer-mediator involvement, is one of the statutory requirements.
What Must the Affidavit Address?
The affidavits essentially provide the court with information and assurances that would otherwise be addressed at the final divorce hearing. Among other things, the affidavits must:
affirm or appropriately update the information in the divorce petition;
establish that Wisconsin's residency requirements have been satisfied;
establish the grounds necessary for divorce;
address military-service and public-assistance status;
confirm that the required financial disclosures have been made;
confirm that the parties understand their agreement and entered into it freely;
request incorporation of their stipulation into the judgment;
expressly waive the right to an in-person final hearing;
address any requested restoration of a former surname;
disclose specified domestic-abuse or interspousal-battery proceedings;
acknowledge Wisconsin's restriction on remarriage following divorce; and
contain the other statements required by § 767.235(1)(b)4.
Do the Parties Still Need a Marital Settlement Agreement?
The affidavit procedure does not eliminate the need to resolve the substantive issues in the divorce. The parties must still reach and file a court-approved stipulation addressing the applicable issues, which may include property division, maintenance, child support, legal custody, and physical placement. The agreement remains subject to court approval. See Wis. Stat. § 767.34.
In other words, divorce by affidavit changes how an agreed divorce reaches judgment; it does not eliminate the legal requirements governing the terms of the divorce.
Does Divorce by Affidavit Eliminate Wisconsin's 120-Day Waiting Period?
No. Wisconsin's normal 120-day waiting period still applies. Generally, a divorce cannot be granted until at least 120 days after service of the summons and petition on the respondent, or 120 days after filing a joint petition. The affidavit procedure eliminates the need for a qualifying final hearing; it does not eliminate the statutory waiting period. Wis. Stat. § 767.335.
Is Divorce by Affidavit the Same as an Uncontested Divorce?
Not exactly. An uncontested divorce simply means that the spouses have resolved the issues necessary to obtain their divorce. Divorce by affidavit is a particular statutory procedure through which a qualifying uncontested divorce can be finalized without the ordinary final court appearance.
An uncontested divorce that does not satisfy the requirements of § 767.235(1)(b) can still proceed through the traditional final-hearing process.
Why Might Parties Choose Divorce by Affidavit?
For spouses who have resolved all issues and satisfy the statutory requirements, divorce by affidavit can eliminate the need to schedule and attend an otherwise relatively brief final divorce hearing. It may therefore make the final stage of an agreed divorce more convenient and efficient.
The court, however, retains its judicial oversight. The parties' agreement must still satisfy Wisconsin law, and submitting an agreement and affidavits does not turn the divorce into a purely administrative process.
