767.471 Enforcement of physical placement orders. (1) DEFINITIONS. In this section: (a) “Moving party” means the parent filing a motion under this section, regardless of whether that parent was the petitioner in the action in which periods of physical placement were awarded under s. 767.41. (b) “Responding party” means the parent upon whom a motion under this section is served, regardless of whether that parent was the respondent in the action in which periods of physical placement were awarded under s. 767.41. (2) WHO MAY FILE. A parent who has been awarded periods of physical placement under s. 767.41 may file a motion under sub. (3) if any of the following applies: (a) The parent has had one or more periods of physical placement denied by the other parent. (b) The parent has had one or more periods of physical placement substantially interfered with by the other parent. (c) The parent has incurred a financial loss or expenses as a result of the other parent’s intentional failure to exercise one or more periods of physical placement under an order allocating specific times for the exercise of periods of physical placement. (3) MOTION. (a) The motion shall allege facts sufficient to show the following: 1. The name of the moving party and that the moving party has been awarded periods of physical placement. 2. The name of the responding party. 3. That one or more of the criteria in sub. (2) apply. (b) The motion shall request the imposition of a remedy or any combination of remedies under sub. (5) (b) and (c). This paragraph does not prohibit a court from imposing a remedy under sub. (5) (b) or (c) if the remedy was not requested in the motion.
May 22, 2026, are designated by NOTES. (Published 5-22-26)
767.471
ACTIONS AFFECTING THE FAMILY
(c) A court shall accept any legible motion for an order under this section. (d) The motion shall be filed under the principal action under which the periods of physical placement were awarded. (e) A motion under this section is a motion for remedial sanction for purposes of s. 785.03 (1) (a). (4) SERVICE ON RESPONDING PARTY; RESPONSE. Upon the filing of a motion under sub. (3), the moving party shall serve a copy of the motion upon the responding party by personal service in the same manner as a summons is served under s. 801.11. The responding party may respond to the motion either in writing before or at the hearing under sub. (5) (a) or orally at that hearing. (5) HEARING; REMEDIES. (a) The court shall hold a hearing on the motion no later than 30 days after the motion has been served, unless the time is extended by mutual agreement of the parties or upon the motion of a guardian ad litem and the approval of the court. The court may, on its own motion or the motion of any party, order that a guardian ad litem be appointed for the child prior to the hearing. (b) If at the conclusion of the hearing the court finds that the responding party has intentionally and unreasonably denied the moving party one or more periods of physical placement or that the responding party has intentionally and unreasonably interfered with one or more of the moving party’s periods of physical placement, the court: 1. Shall do all of the following: a. Issue an order granting additional periods of physical placement to replace those denied or interfered with. b. Award the moving party a reasonable amount for the cost of maintaining an action under this section and for attorney fees. 2. May do one or more of the following: a. If the underlying order or judgment relating to periods of physical placement does not provide for specific times for the exercise of periods of physical placement, issue an order specifying the times for the exercise of periods of physical placement. b. Find the responding party in contempt of court under ch. 785. c. Grant an injunction ordering the responding party to strictly comply with the judgment or order relating to the award of physical placement. In determining whether to issue an injunction, the court shall consider whether alternative remedies requested by the moving party would be as effective in obtaining compliance with the order or judgment relating to physical placement. (c) If at the conclusion of the hearing the court finds that the moving party has incurred a financial loss or expenses as a result of the responding party’s failure, intentionally and unreasonably and without adequate notice to the moving party, to exercise one or more periods of physical placement under an order allocating specific times for the exercise of periods of physical placement, the court may issue an order requiring the responding party to pay to the moving party a sum of money sufficient to compensate the moving party for the financial loss or expenses. (d) Except as provided in par. (b) 1. a. and 2. a., the court may not modify an order of legal custody or physical placement in an action under this section. (e) An injunction issued under par. (b) 2. c. is effective according to its terms for the period of time that the moving party requests, but not more than 2 years. (6) ENFORCEMENT ASSISTANCE. (a) If an injunction is issued under sub. (5) (b) 2. c., upon request by the moving party the court shall order the sheriff to assist the moving party in executing or serving the injunction. (b) Within 24 hours after a request by the moving party, the
Updated 23-24 Wis. Stats.
26
clerk of the circuit court shall send a copy of an injunction issued under sub. (5) (b) 2. c. to the sheriff or to any other local law enforcement agency that is the central repository for orders and that has jurisdiction over the responding party’s residence. If the responding party does not reside in this state, the clerk shall send a copy of the injunction to the sheriff of the county in which the circuit court is located. (c) The sheriff or other appropriate local law enforcement agency under par. (b) shall make available to other law enforcement agencies, through a verification system, information on the existence and status of any injunction issued under sub. (5) (b) 2. c. The information need not be maintained after the injunction is no longer in effect. (8) PENALTY. Whoever intentionally violates an injunction issued under sub. (5) (b) 2. c. is guilty of a Class I felony. History: 1999 a. 9; 2001 a. 61, 109; 2005 a. 443 s. 100; Stats. 2005 s. 767.471. NOTE: 2005 Wis. Act 443 contains explanatory notes. A successful party in a proceeding under this section is entitled to recover the guardian ad litem fees attributable to the party as part of the cost of maintaining an action under sub. (5) (b) 1. b., insuring that the full cost of enforcing physical placement rights falls on the interfering parent, not on the aggrieved parent. Under s. 767.045 (6) [now s. 767.407 (6)], a circuit court may allocate guardian ad litem fees between the parties when it makes a finding that a respondent has intentionally and unreasonably denied physical placement or interfered with the petitioner’s periods of physical placement. When it makes one or both of those findings, the court must then award the petitioner whatever amount it has allocated to the petitioner. Bernier v. Bernier, 2006 WI App 2, 288 Wis. 2d 743, 709 N.W.2d 453, 04-0625. The award “of a reasonable amount for the cost of maintaining an action under this section and for attorney fees” under sub. (5) (b) is mandatory. Sub. (5) (b) does not require that documentation of attorney fees must be received into the evidentiary record of a hearing on the merits of a petition filed under that section in order for a court to make an award of attorney fees. Other cases establish that it is common practice for parties to litigate the amount of attorney fees in proceedings that follow a court’s determination of the substantive issues. Borreson v. Yunto, 2006 WI App 63, 292 Wis. 2d 231, 713 N.W.2d 656, 05-0190. A parent cannot delegate physical placement rights to another in the parent’s absence. Thus a father could not seek to enforce his physical placement with his son by transferring that placement to his current spouse. Lubinski v. Lubinski, 2008 WI App 151, 314 Wis. 2d 395, 761 N.W.2d 676, 07-1701. Wisconsin’s Custody, Placement, and Paternity Reform Legislation. Walther. Wis. Law. Apr. 2000.
767.481 Relocating a child’s residence. (1) MOTION; FILING AND SERVING. (a) Except as provided in par. (d), if the court grants any periods of physical placement with a child to both parents and one parent intends to relocate and reside with the child 100 driving miles or more from the other parent, the parent who intends to relocate and reside with the child shall file a motion with the court seeking permission for the child’s relocation. (b) The motion under par. (a) shall include all of the following: 1. A relocation plan including: a. The date of the proposed relocation. b. The municipality and state of the proposed new residence. c. The reason for the relocation. d. If applicable, a proposed new placement schedule, including placement during the school year, summers, and holidays. e. The proposed responsibility and allocation of costs for each parent for transportation of the child between the parties under any proposed new placement schedule. 2. If applicable, a request for a change in legal custody. 3. Notice to the other parent that, if he or she objects to the relocation, he or she must file and serve, no later than 5 days before the initial hearing, an objection to the relocation and any alternate proposal, including a modification of physical placement or legal custody. 4. An attached “Objection to Relocation” form, furnished by the court, for use by the other parent if he or she objects to the relocation. (c) The parent filing the motion shall serve a copy of the motion by mail on the other parent at his or her most recent address
May 22, 2026, are designated by NOTES. (Published 5-22-26)
27
Updated 23-24 Wis. Stats.
on file with the court. If the parent filing the motion has actual knowledge that the other parent has a different address from the one on file, the motion shall be served by mail at both addresses. (d) The requirement to file a motion under par. (a) does not apply if the child’s parents already live more than 100 driving miles apart when a parent proposes to relocate and reside with the child. If the parents already live more than 100 driving miles apart, the parent who intends to relocate with the child shall serve written notice of his or her intent to relocate on the other parent at least 60 days before relocation. Such written notice shall include the date on which the parent intends to relocate and the parent’s new address. (2) INITIAL HEARING. (a) Upon the filing of a motion under sub. (1) (a), the court shall schedule an initial hearing to be held within 30 days after the motion is filed and shall provide notice to the parents of the date of the initial hearing. The child may not be relocated pending the initial hearing. (b) If the court finds at the initial hearing that the parent not filing the motion was properly served and does not appear at the hearing, or appears at the hearing but does not object to the proposed relocation plan, the court shall approve the proposed relocation plan submitted by the parent filing the motion unless the court finds that the proposed relocation plan is not in the best interest of the child. (c) If the parent not filing the motion appears at the initial hearing and objects to the relocation plan, the court shall do all of the following: 1. Require the parent who objects to respond by stating in writing within 5 business days, if he or she has not already done so, the basis for the objection and his or her proposals for a new placement schedule and transportation responsibilities and costs under sub. (1) (b) 1. d. and e. in the event that the court grants the parent filing the motion permission to relocate with the child. The parent who objects shall file the response with the court and serve a copy of the response by mail on the other parent at his or her most recent address on file with the court. If the parent filing the response has actual knowledge that the other parent has a different address from the one on file, the response shall be served by mail to both addresses. 2. Refer the parties to mediation, unless the court finds that attending mediation would cause undue hardship or endanger the health or safety of a party as provided in s. 767.405 (8) (b). 3. Except as provided in s. 767.407 (1) (am), appoint a guardian ad litem for the child. The court shall provide in the order for appointment, however, that if a mediator is ordered under subd. 2. the guardian ad litem is not required to commence investigation on behalf of the child unless the mediator notifies the court that the parties are unable to reach an agreement on the issue. 4. Set the matter for a further hearing to be held within 60 days. (3) RELOCATION PENDING FINAL HEARING. (a) At the initial hearing, or at any time after the initial hearing but before the final hearing, the court may issue a temporary order under s. 767.225 (1) (bm) to allow the parent proposing the relocation to relocate with the child if the court finds that the relocation is in the child’s immediate best interest. The court shall inform the parties, however, that approval of the relocation is subject to revision at the final hearing. (b) If a court commissioner makes a determination, order, or ruling regarding relocation pending the final hearing under par. (a), either party may seek a review by hearing de novo under s. 757.69 (8). The motion requesting the de novo hearing must be filed with the court within 10 days after the court commissioner orally issues the determination, order, or ruling. The judge shall
ACTIONS AFFECTING THE FAMILY
767.481
hold the de novo hearing within 30 days after the motion requesting the de novo hearing is filed, unless the court finds good cause for an extension. (4) STANDARDS FOR DECIDING RELOCATION MOTIONS. At the final hearing, the court shall decide the matter as follows: (a) If the proposed relocation only minimally changes or affects the current placement schedule or does not affect or change the current placement schedule, the court shall approve the proposed relocation, set a new placement schedule if appropriate, and allocate the costs of and responsibility for transportation of the child between the parties under the new placement schedule. (b) In cases other than that specified in par. (a), the court shall, in determining whether to approve the proposed relocation and a new placement schedule, use the following factors: 1. The factors under s. 767.41 (5). 2. A presumption that the court should approve the plan of the parent proposing the relocation if the court determines that the objecting parent has not significantly exercised court-ordered physical placement. 3. A presumption that the court should approve the relocation plan if the court determines that the parent’s relocation is related to abuse, as defined in s. 813.122 (1) (a), of the child, as defined in s. 813.122 (1) (b); a pattern or serious incident of interspousal battery, as described under s. 940.60 or 940.61 (1) or s. 940.19, 2023 stats., or s. 940.20 (1m), 2023 stats.; or a pattern or serious incident of domestic abuse, as defined in s. 813.12 (1) (am). (c) If the objecting parent files a responsive motion that seeks a substantial change in physical placement or a change in legal custody, the court shall, in deciding the motion of the objecting parent, use the following factors: 1. The factors under s. 767.41 (5). 2. A presumption against transferring legal custody or the residence of the child to a parent who the court determines has significantly failed to exercise court-ordered physical placement. 3. A presumption that the court should approve the plan of the parent proposing the relocation if the court determines that the parent’s relocation is related to abuse, as defined in s. 813.122 (1) (a), of the child, as defined in s. 813.122 (1) (b); a pattern or serious incident of interspousal battery, as described under s. 940.60 or 940.61 (1) or s. 940.19, 2023 stats., or s. 940.20 (1m), 2023 stats.; or a pattern or serious incident of domestic abuse, as defined in s. 813.12 (1) (am). (d) The court shall decide all contested relocation motions and all related motions for modification of legal custody or physical placement in the best interest of the child. The movant bears the burden of proof in a contested relocation motion or a related motion for modification of legal custody or physical placement except in cases involving a presumption under par. (b) 2. or 3. or (c) 2. or 3. In cases involving a presumption under par. (b) 2. or 3. or (c) 2. or 3., the parent objecting to the relocation shall have the burden of proof in demonstrating the proposed relocation is not in the child’s best interest. (e) If the objecting parent files a responsive motion that seeks a substantial change in physical placement or a change in legal custody, and the parent proposing the relocation withdraws or otherwise fails to pursue his or her relocation motion or the court does not allow the relocation, the court shall proceed on the objecting parent’s responsive motion under s. 767.451. (5) STIPULATIONS. At any time after a motion is filed under sub. (1), if the parties agree that one parent may relocate more than 100 driving miles away from the other parent, the parties may file a stipulation with the court that specifies that neither parent has any objection to the planned relocation and that sets out any agreed upon modification to legal custody or periods of
May 22, 2026, are designated by NOTES. (Published 5-22-26)
767.481
ACTIONS AFFECTING THE FAMILY
physical placement, including responsibility and costs for transportation of the child between the parties under a proposed new placement schedule. The court shall incorporate the terms of the stipulation into an order for the relocation or a revised order of legal custody or physical placement, as appropriate, unless the court finds that the modification is not in the best interest of the child. (6) OTHER NOTICE REQUIRED FOR REMOVALS. Except as otherwise provided in an order or judgment allocating periods of physical placement with a child, a person who has legal custody of and periods of physical placement with the child shall notify any other person who has periods of physical placement with the child before removing the child from the child’s residence for a period of more than 14 consecutive days. (7) APPLICABILITY. (a) The requirements and procedures under this section apply to relocations with or removals of a child in any of the following cases: 1. Cases that are originally commenced on or after April 5, 2018. 2. Cases that were originally commenced before April 5, 2018, but in which a legal custody or physical placement order is modified on or after April 5, 2018. (b) Except as provided in par. (a) 2., the requirements and procedures under s. 767.481, 2015 stats., apply to moves with or removals of a child in cases that were originally commenced before April 5, 2018. History: 1987 a. 355, 364; 1991 a. 32, 269; 1995 a. 70; 1999 a. 9; 2001 a. 61; 2005 a. 174; 2005 a. 443 s. 164; Stats. 2005 s. 767.481; 2017 a. 203; 2021 a. 238; 2025 a. 24 s. 93; 2025 a. 81. The trial court may not order a custodial parent to live in a designated part of the state or else lose custody. Groh v. Groh, 110 Wis. 2d 117, 327 N.W.2d 655 (1983). The sub. (5) factors are an addenda to the best interest of the child considerations under s. 767.24 [now s. 767.41] and are a reminder to the court to tailor the best interest of the child standard to problems unique to a removal situation. Kerkvliet v. Kerkvliet, 166 Wis. 2d 930, 480 N.W.2d 823 (Ct. App. 1992). Sections 767.325 and 767.327 [now s. 767.451 and this section] do not conflict. If one party files a notification of intent to move under s. 767.327 [now this section], the other parent may file a motion to modify placement under s. 767.325 [now s. 767.451], and the court may consider all relevant circumstances, including the move. Hughes v. Hughes, 223 Wis. 2d 111, 588 N.W.2d 346 (Ct. App. 1998), 973539. There is no law prohibiting a parent with joint legal custody and physical placement from taking a child outside the state, including to a foreign country, for less than 90 days. When parents agree that one parent must move the court to prohibit the other from taking a particular trip with the children, the moving party has the burden of producing evidence and persuading the court that prohibiting the trip is in the children’s best interests. Long v. Ardestani, 2001 WI App 46, 241 Wis. 2d 498, 624 N.W.2d 405, 00-1429. Groh, 110 Wis. 2d 117 (1983), is still good law, subject to the expanded authority granted over intrastate moves of 150 or more miles. Accordingly, the circuit court in this case had no authority to prospectively order a parent not move beyond 45 miles from the marital home. By its enactment of this section, the legislature has made a judgment that moves of less than 150 miles are not subject to the best interests of the children standard. Rather than providing a court authority to prohibit geographical separation, s. 767.41 (4) (a) 2. presumes such separation exists and directs the court to consider the separation when establishing a placement schedule. Derleth v. Cordova, 2013 WI App 142, 352 Wis. 2d 51, 841 N.W.2d 552, 12-2018. The circuit court’s factual determination that the parents’ homes were less than 150 miles apart, by considering a usual and direct route, was not clearly erroneous. Derleth v. Cordova, 2013 WI App 142, 352 Wis. 2d 51, 841 N.W.2d 552, 12-2018. Based on the unique facts of this case, the court did not err in ordering that the children be re-enrolled in specific schools and that the mother return to that district so their enrollment could be accomplished while continuing their primary placement with her. Shulka v. Sikraji, 2014 WI App 113, 358 Wis. 2d 639, 856 N.W.2d 617, 13-2080. Airing the Controversy: Wisconsin’s Child Removal Law. Herman, Cooper, & Melli. Wis. Law. June 1993. Dissecting the New Family Relocation Statute. Krimmer. Wis. Law. July/Aug. 2018.
SUBCHAPTER VI SUPPORT AND MAINTENANCE 767.501 Actions to compel support. (1) DEFINITIONS. In this section: (a) “Nonlegally responsible relative” means a relative who as-
Updated 23-24 Wis. Stats.
28
sumes responsibility for the care of a child without legal custody, but is not in violation of a court order. “Nonlegally responsible relative” does not include a relative who has physical custody of a child during a court-ordered visitation period. (b) “Relative” means any person connected with a child by blood, marriage or adoption. (2) WHO MAY COMMENCE; SUPPORT DETERMINATION. (a) If a person does not provide for the support and maintenance of his or her spouse or minor child, any of the following may commence a court action to compel the person to provide support and maintenance: 1. The person’s spouse. 2. The minor child. 3. The person with legal custody of the child. 4. A nonlegally responsible relative. (b) The court in the action shall, under s. 767.511 or 767.56, determine the amount, if any, that the person should reasonably contribute to the support and maintenance of the spouse or child and how the sum shall be paid. The amount shall be expressed as a fixed sum unless the parties have stipulated to expressing the amount as a percentage of the payer’s income and the requirements under s. 767.34 (2) (am) 1. to 3. are satisfied. The amount ordered to be paid may be modified by the court under s. 767.59 upon sufficient evidence. (c) The determination may be enforced by contempt proceedings, an account transfer under s. 767.76, or other enforcement mechanisms under s. 767.77. (d) In an action under this section, no filing fee or other costs are taxable to the person’s spouse, the minor child, the person with legal custody, or the nonlegally responsible relative, but after the action has been commenced the court may order that all or part of any fees and costs incurred be paid by either party. (3) PUBLIC ASSISTANCE RECIPIENTS; ACTION BY STATE. If the state or any subdivision of the state furnishes public aid to a spouse or dependent child for support and maintenance and the spouse, person with legal custody, or nonlegally responsible relative does not commence an action under this chapter for support or maintenance, the person in charge of county welfare activities, the county child support agency under s. 59.53 (5), or the department is a real party in interest under s. 767.205 (2) and shall commence an action under this section. An attorney employed by the state or a subdivision of the state may commence an action under this section. The title of the action shall be “In re the support or maintenance of A.B. (Child)”. (4) LEGAL CUSTODY AND PHYSICAL PLACEMENT. Upon request of a party to an action under this section, the court may make orders concerning the legal custody and physical placement of any minor child of the parties in accordance with s. 767.41. History: 1971 c. 220; 1971 c. 307 s. 116; 1973 c. 237; 1975 c. 82; 1977 c. 105, 271; 1979 c. 32 ss. 50, 92 (4); Stats. 1979 s. 767.08; 1981 c. 317; 1983 a. 27; 1985 a. 29, 176; 1987 a. 413; 1989 a. 212; 1993 a. 481; 1995 a. 27 s. 9126 (19); 1995 a. 201, 404; 1997 a. 27, 35; 1999 a. 162; 2001 a. 16; 2005 a. 443 ss. 42, 216, 217; Stats. 2005 s. 767.501. NOTE: 2005 Wis. Act 443 contains explanatory notes. To find a party estopped from seeking a revision of a stipulation incorporated into a divorce judgment: 1) both parties must have entered into the stipulation knowingly and freely; 2) the overall settlement must be fair and equitable and not illegal or against public policy; and 3) one party subsequently seeks to be released from its terms on grounds that the court could not have entered the order it did without the parties’ agreement. Nichols v. Nichols, 162 Wis. 2d 96, 469 N.W.2d 619 (1991). County child support agencies can initiate actions to compel support under this section without payment of a filing fee. 72 Atty. Gen. 72.
767.511 Child support. (1) WHEN ORDERED. When the court approves a stipulation for child support under s. 767.34, enters a judgment of annulment, divorce, or legal separation, or enters an order or a judgment in a paternity action or in an action under s. 767.001 (1) (f) or (j), 767.501, 767.804 (2), or 767.805 (3), the court shall do all of the following:
May 22, 2026, are designated by NOTES. (Published 5-22-26)
29
Updated 23-24 Wis. Stats.
(a) Order either or both parents to pay an amount reasonable or necessary to fulfill a duty to support a child. The support amount must be expressed as a fixed sum unless the parties have stipulated to expressing the amount as a percentage of the payer’s income and the requirements under s. 767.34 (2) (am) 1. to 3. are satisfied. (b) Ensure that the parties have stipulated which party, if either is eligible, will claim each child as an exemption for federal income tax purposes under 26 USC 151 (c) or as an exemption for state income tax purposes under the laws of another state. If the parties are unable to reach an agreement about the tax exemption for each child, the court shall make the decision in accordance with state and federal tax laws. In making its decision, the court shall consider whether the parent who is assigned responsibility for the child’s health care expenses under s. 767.513 is covered under a health insurance policy or plan, including a self-insured plan, that is not subject to s. 632.897 (10) and that conditions coverage of a dependent child on whether the child is claimed by the insured parent as an exemption for purposes of federal or state income taxes. (c) In addition to ordering child support for a child under par. (a), assign as a support obligation responsibility for, and direct the manner of payment of, the child’s health care expenses under s. 767.513. (1g) CONSIDERATION OF FINANCIAL INFORMATION. In determining child support payments, the court may consider all relevant financial information or other information relevant to the parent’s earning capacity, including information reported under s. 49.22 (2m) to the department or the county child support agency under s. 59.53 (5). (1j) PERCENTAGE STANDARD GENERALLY REQUIRED. Except as provided in sub. (1m), the court shall determine child support payments by using the percentage standard established by the department under s. 49.22 (9). (1m) DEVIATION FROM STANDARD; FACTORS. Upon request by a party, the court may modify the amount of child support payments determined under sub. (1j) if, after considering the following factors, the court finds by the greater weight of the credible evidence that use of the percentage standard is unfair to the child or to any of the parties: (a) The financial resources of the child. (b) The financial resources of both parents. (bj) Maintenance received by either party. (bp) The needs of each party in order to support himself or herself at a level equal to or greater than that established under 42 USC 9902 (2). (bz) The needs of any person, other than the child, whom either party is legally obligated to support. (c) If the parties were married, the standard of living the child would have enjoyed had the marriage not ended in annulment, divorce or legal separation. (d) The desirability that the custodian remain in the home as a full-time parent. (e) The cost of child care if the custodian works outside the home, or the value of custodial services performed by the custodian if the custodian remains in the home. (ej) The award of substantial periods of physical placement to both parents. (em) Extraordinary travel expenses incurred in exercising the right to periods of physical placement under s. 767.41. (f) The physical, mental, and emotional health needs of the child, including any costs for health insurance as provided for under s. 767.513. (g) The child’s educational needs.
ACTIONS AFFECTING THE FAMILY
767.511
(h) The tax consequences to each party. (hm) The best interests of the child. (hs) The earning capacity of each parent, based on each parent’s education, training and work experience and the availability of work in or near the parent’s community. (i) Any other factors which the court in each case determines are relevant. (1n) DEVIATION FROM STANDARD; RECORD. If the court finds under sub. (1m) that use of the percentage standard is unfair to the child or the requesting party, the court shall state in writing or on the record the amount of support that would be required by using the percentage standard, the amount by which the court’s order deviates from that amount, its reasons for finding that use of the percentage standard is unfair to the child or the party, its reasons for the amount of the modification and the basis for the modification. (2) SEPARATE FUND OR TRUST. The court may protect and promote the best interests of the minor children by setting aside a portion of the child support which either party is ordered to pay in a separate fund or trust for the support, education and welfare of such children. (3) EFFECT OF PHYSICAL PLACEMENT VIOLATION. Violation of physical placement rights by the custodial parent does not constitute reason for failure to meet child support obligations. (4) AGE OF CHILD ELIGIBLE FOR SUPPORT. The court shall order either party or both to pay for the support of any child of the parties who is less than 18 years old, or any child of the parties who is less than 19 years old if the child is pursuing an accredited course of instruction leading to the acquisition of a high school diploma or its equivalent. (5) LIABILITY FOR PAST SUPPORT. Subject to ss. 767.804 (4), 767.805 (4m), and 767.89 (4), liability for past support is limited to the period after the birth of the child. (6) INTEREST ON ARREARAGE. Subject to sub. (6m), a party ordered to pay child support under this section shall pay simple interest at the rate of 1 percent per month on any amount in arrears that is equal to or greater than the amount of child support due in one month. Subject to sub. (6m), if the party no longer has a current obligation to pay child support, interest at the rate of 1 percent per month shall accrue on the total amount of child support in arrears, if any. Interest under this subsection is in lieu of interest computed under s. 807.01 (4), 814.04 (4), or 815.05 (8) and is paid to the department or its designee under s. 767.57. Except as provided in s. 767.57 (1m) and except as required under federal statutes or regulations, the department or its designee shall apply all payments received for child support as follows: (a) First, to payment of child support due within the calendar month during which the payment is received. (b) Second, to payment of unpaid child support due before the payment is received. (c) Third, to payment of interest accruing on unpaid child support. (6m) PILOT PROGRAM ON INTEREST RATE. The department may conduct a pilot program under which the interest that accrues on the amounts in arrears specified in s. 767.531, 2019 stats., and in sub. (6) shall be at the rate of 0.5 percent per month instead of 1 percent per month. If the department conducts a pilot program under this subsection, the program may begin at any time after December 31, 2013, and the new rate shall apply to interest that accrues during that time. (7) EFFECT OF JOINT LEGAL CUSTODY. An order of joint legal custody under s. 767.41 does not affect the amount of child support ordered. History: 1971 c. 157; 1977 c. 29, 105, 418; 1979 c. 32 ss. 50, 92 (4); 1979 c. 196; Stats. 1979 s. 767.25; 1981 c. 20; 1983 a. 27; 1985 a. 29; 1987 a. 27, 37, 355, 413;
May 22, 2026, are designated by NOTES. (Published 5-22-26)
767.511
ACTIONS AFFECTING THE FAMILY
1989 a. 31, 212; 1991 a. 39; 1993 a. 481; 1995 a. 27 ss. 7101, 7102, 9126 (19); 1995 a. 201, 279, 404; 1997 a. 27, 35, 191; 1999 a. 9, 32; 2001 a. 16, 61; 2005 a. 253, 342; 2005 a. 443 ss. 103, 105, 219; Stats. 2005 s. 767.511; 2009 a. 185; 2011 a. 32; 2013 a. 20; 2017 a. 366; 2019 a. 95; 2021 a. 35, 127. Cross-reference: See also ch. DCF 150, Wis. adm. code. Cross-reference: See also Wisconsin Administrative Code Citations published in the Wisconsin Administrative Code for a list of citations to cases citing chs. DCF 150, HSS 80, HFS 80, and DWD 40, the child support percentage of income standard. Cross-reference: See also notes to s. 767.59 for decisions regarding postjudgment modifications. A provision in a judgment as to the education of children past the age of majority, inserted pursuant to a stipulation of the parties, cannot later be challenged and can be enforced by contempt proceedings. Bliwas v. Bliwas, 47 Wis. 2d 635, 178 N.W.2d 35 (1970). When parents each own a one-half interest in future proceeds of real estate and the state contributes to child support, the court may not order the custodial parent to pay child support in the form of an accumulating real estate lien in favor of the state. State v. Reible, 91 Wis. 2d 394, 283 N.W.2d 427 (Ct. App. 1979). The trial court abused its discretion by setting child support payments without considering the needs of the children or the payer’s ability to pay. Edwards v. Edwards, 97 Wis. 2d 111, 293 N.W.2d 160 (1980). A personal injury damage award to a noncustodial spouse can be considered as a change of circumstances justifying increased support. Sommer v. Sommer, 108 Wis. 2d 586, 323 N.W.2d 144 (Ct. App. 1982). Sub. (6) imposes interest on arrearages existing on July 2, 1983, as well as on those accruing afterward. Greenwood v. Greenwood, 129 Wis. 2d 388, 385 N.W.2d 213 (Ct. App. 1986). Federal Supplemental Security Income may not be considered to be an economic resource for purposes of computing a child support obligation. However, a seekwork order may be appropriate. Langlois v. Langlois, 150 Wis. 2d 101, 441 N.W.2d 286 (Ct. App. 1989). Educational grants and loans, AFDC, and other child support are not economic resources for purposes of computing a child support obligation. Thibadeau v. Thibadeau, 150 Wis. 2d 109, 441 N.W.2d 281 (Ct. App. 1989). Consideration of expenses incurred by a child as an adult, including education expenses, is error. Resong v. Vier, 157 Wis. 2d 382, 459 N.W.2d 591 (Ct. App. 1990). A divorce stipulation waiving or setting a ceiling on child support and preventing modification is against public policy and will not be enforced. Ondrasek v. Tenneson, 158 Wis. 2d 690, 462 N.W.2d 915 (Ct. App. 1990). The trial court’s use of a computer program to analyze financial evidence was not error. Bisone v. Bisone, 165 Wis. 2d 114, 477 N.W.2d 59 (Ct. App. 1991). In a joint custody situation, the parent with primary physical custody may be ordered to pay child support. Matz v. Matz, 166 Wis. 2d 326, 479 N.W.2d 245 (Ct. App. 1991). A stepparent has no legal obligation to support a stepchild. Under appropriate circumstances the theory of equitable estoppel may apply to cases involving child support. Ulrich v. Cornell, 168 Wis. 2d 792, 484 N.W.2d 545 (1992). The absence of a mortgage obligation is relevant to the assessment of a party’s economic circumstances but does not translate into imputed income under the applicable administrative rule. Zimmerman v. Zimmerman, 169 Wis. 2d 516, 485 N.W.2d 294 (Ct. App. 1992). A support order against actual AFDC grants is prohibited by Thibadeau, 150 Wis. 2d 109 (1989), but an order against earned income of one who also receives AFDC is not. State v. Rose, 171 Wis. 2d 617, 492 N.W.2d 350 (Ct. App. 1992). No matter how corporate income is labeled, a family court may pierce the corporate shield if it is convinced the obligor’s intent is to avoid financial obligations. Evjen v. Evjen, 171 Wis. 2d 677, 492 N.W.2d 361 (Ct. App. 1992). The parties’ extrajudicial agreement that child support payments be discontinued was enforceable via the doctrine of equitable estoppel. Harms v. Harms, 174 Wis. 2d 780, 498 N.W.2d 229 (1993). Discussing the “serial family payer” rule adopted under the percentage standards referred to in sub. (1) [now sub. (1j)]. Brown v. Brown, 177 Wis. 2d 512, 503 N.W.2d 280 (Ct. App. 1993). The mandatory percentage standards for determining support do not allow for deferred payments. Kelly v. Hougham, 178 Wis. 2d 546, 504 N.W.2d 440 (Ct. App. 1993). An AFDC recipient assigns all rights to child support payments to the state. As such the payments may not be held in trust for the child under sub. (2). State v. William W., 180 Wis. 2d 708, 510 N.W.2d 718 (Ct. App. 1993). A lump sum separation benefit received upon termination of employment was properly considered to be income subject to the percentage standards for support. Gohde v. Gohde, 181 Wis. 2d 770, 512 N.W.2d 199 (Ct. App. 1993). In deciding not to apply the percentage standard, the court erred when it compared the parties’ available incomes after deducting the percentage amount from the payer’s income, but failed to consider the assumed contribution of the same percentage by the payee. Kjelstrup v. Kjelstrup, 181 Wis. 2d 973, 512 N.W.2d 264 (Ct. App. 1994). A trial court could not set child support at zero, convert post-divorce income to marital property, and order that income to be held in trust to be distributed to the child when AFDC benefits ended. Luna v. Luna, 183 Wis. 2d 20, 515 N.W.2d 480 (Ct. App. 1994). If the interests of the children and custodial parent are protected, parties are free to contract in a settlement agreement that the primary custodian will not have spending discretion over child support. Jacquart v. Jacquart, 183 Wis. 2d 372, 515 N.W.2d 539 (Ct. App. 1994). An asset and its income stream may not be counted both as an asset in the property division and as part of the payer’s income from which support is paid. State v. Maley, 186 Wis. 2d 125, 519 N.W.2d 717 (Ct. App. 1994).
Updated 23-24 Wis. Stats.
30
A minimum fixed child support amount, rather than the percentage standard, based on the payer’s “potential income” was appropriate when the court found that the payer had a substantial potential to manipulate the amount of support. Doerr v. Doerr, 189 Wis. 2d 112, 525 N.W.2d 745 (Ct. App. 1994). Trust income that is income to the beneficiary under federal tax law is subject to a child support order regardless of whether a distribution is made to the beneficiary. Grohmann v. Grohmann, 189 Wis. 2d 532, 525 N.W.2d 261 (1995). The trial court may consider the amount of time a child is placed with the paying parent and that parent’s second family in setting support. Molstad v. Molstad, 193 Wis. 2d 602, 535 N.W.2d 63 (Ct. App. 1995). The percentage standards may be used to generate future as well as present support. Mary L.O. v. Tommy R.B., 199 Wis. 2d 186, 544 N.W.2d 417 (1996), 931929. The percentage standards presumptively apply in the case of a high income payee absent the payer’s showing of unfairness by the greater weight of the credible evidence. Luciani v. Montemurro-Luciani, 199 Wis. 2d 280, 544 N.W.2d 561 (1996), 93-2899. Sub. (6) makes interest on child support arrearages mandatory. A trial court has no discretion in awarding interest, even if it determines that to do so would be inequitable. Douglas County Child Support Enforcement Unit v. Fisher, 200 Wis. 2d 807, 547 N.W.2d 801 (Ct. App. 1996), 95-1960. A court may consider earning capacity rather than actual earnings in determining child support and maintenance if it finds a parent’s job choice voluntary and unreasonable. Sellers v. Sellers, 201 Wis. 2d 578, 549 N.W.2d 481 (Ct. App. 1996), 952730. The fact that a party, by deliberate conduct, frustrates an accurate calculation of the party’s income does not prevent the trial court from making the appropriate finding of fact. The court may make its findings based on the available evidence. Lellman v. Mott, 204 Wis. 2d 166, 554 N.W.2d 525 (Ct. App. 1996), 96-0618. The court did not abuse its discretion in ruling against a request in a high income payer case for an increase in support according to the percentage standards when the court believed that the request was really a disguised claim for extra money to support the custodial parent’s own lifestyle. Nelsen v. Candee, 205 Wis. 2d 632, 556 N.W.2d 784 (Ct. App. 1996), 95-2208. In certain cases, such as with military retirement pay, an asset may be divided in the property division and its income stream considered as income in determining child support. Cook v. Cook, 208 Wis. 2d 166, 560 N.W.2d 246 (1997), 95-1963. When a noncustodial parent seeks to impose a trust on arrearages owed under a pre-August 1, 1987, support order, that parent must demonstrate that the trust is in the child’s best interest and, when the custodial parent does not agree to the trust, that the primary custodian is unwilling to or incapable of managing the support money. Cameron v. Cameron, 209 Wis. 2d 88, 562 N.W.2d 126 (1997), 95-0311. Income disparity resulting from applying the percentage standards is only relevant if the payer can show inability to pay or that the income disparity will adversely affect the children or payer. Equalizing lifestyles between parents is not a support objective. The amount of discretionary income either parent will have to spend on their children is a secondary consideration. Raz v. Brown, 213 Wis. 2d 296, 570 N.W.2d 605 (Ct. App. 1997), 96-1997. The repayment to the payer spouse of a loan made by him to a company that he owned was a proper addition to the payer’s income available for support. It was properly found to be deferred compensation, which is included within the applicable definition of income. Raz v. Brown, 213 Wis. 2d 296, 570 N.W.2d 605 (Ct. App. 1997), 96-1997. A stipulation for child support with no time limit or opportunity for review was against public policy, and the payer was not estopped from seeking a modification due to a material change in circumstances. Krieman v. Goldberg, 214 Wis. 2d 163, 571 N.W.2d 425 (Ct. App. 1997), 96-3489. Absent a finding that an individual partner has authority to unilaterally control a partnership asset, partnership assets will be imputed as available income only in accordance with the partnership agreement. Health insurance premiums paid by a partnership are included in the partners’ income available for child support. Weis v. Weis, 215 Wis. 2d 135, 572 N.W.2d 123 (Ct. App. 1997), 96-3576. The trial court properly exercised its discretion under sub. (1m) (i) by excluding from the application of the percentage standards the value of nonassignable trips received by the paying spouse as employment bonuses although the trips constituted taxable income. State v. Wall, 215 Wis. 2d 595, 573 N.W.2d 862 (Ct. App. 1997), 97-0826. In concluding that a deviation from the percentage standards is warranted, all listed factors need not be applied. State v. Alonzo R., 230 Wis. 2d 17, 601 N.W.2d 328 (Ct. App. 1999), 98-3333. The percentage standards under sub. (1j) include the shared-time payer formula in s. DWD 40.04 (2) [now s. DCF 150.04 (2)], Wis. Adm. Code, as well as the straight percentage standards in s. DWD 40.03 (1) [now s. DCF 150.03 (1)]. The sharedtime formula applies if the payer will be assuming costs in proportion to the number of days the court is ordering placement with the parent. Randall v. Randall, 2000 WI App 98, 235 Wis. 2d 1, 612 N.W.2d 737, 99-0531. Incarceration is a valid factor for a court to consider in setting child support because of the impact it may have on the payor’s employability due to what may be voluntary and unreasonable acts. It was proper to base child support on earning capacity and to provide for an offset against the payor’s property division payout to provide for payment of the support obligation. Modrow v. Modrow, 2001 WI App 200, 247 Wis. 2d 889, 634 N.W.2d 852, 00-1868. Subs. (1j), (1m), and (1n) give the court authority to determine and order some amount for child support. While that authority implicitly includes the authority to determine the amount to be zero, it does not implicitly include the authority to order the parents to divide expenses for the children among themselves in particular ways as an alternative to ordering one parent to pay child support to the other. Zawistowski v. Zawistowski, 2002 WI App 86, 253 Wis. 2d 630, 644 N.W.2d 252, 010655.
May 22, 2026, are designated by NOTES. (Published 5-22-26)
31
Updated 23-24 Wis. Stats.
This section makes no provision as to splitting child care costs beyond what is provided in the child support payments. The trial court erroneously exercised its discretion when, without addressing the sub. (1m) factors, it deviated from the child support percentage standards by ordering one party to pay one-half of the daycare expenses in addition to support required by the percentage standards. McLaren v. McLaren, 2003 WI App 125, 265 Wis. 2d 529, 665 N.W.2d 405, 02-2451. A trial court may establish a trust from funds paid for child support for the purpose of funding a child’s postminority educational expenses. Because the percentage standards presume a higher standard of living commensurate with the payer’s higher income, a child is entitled to the money over and above the child’s needs. A trust is in the child’s best interests and puts the child in the same position as if in an intact high-income family. Further, consideration of “educational needs” under sub. (1m) (g) is broad enough to encompass the higher educational needs of the child. Kowalski v. Obst, 2003 WI App 218, 267 Wis. 2d 400, 671 N.W.2d 339, 03-0573. Sub. (6) does not limit the authority a trial court would otherwise have to consider imposing interest on unpaid maintenance arrears. Cashin v. Cashin, 2004 WI App 92, 273 Wis. 2d 754, 681 N.W.2d 255, 03-1010. When a spouse presented a challenge to the application of the percentage standards on fairness grounds and presented a developed argument based on evidence in support of that challenge, the trial court was required to perform the analysis of the relevant statutory factors in answer to that challenge. Maritato v. Maritato, 2004 WI App 138, 275 Wis. 2d 252, 685 N.W.2d 379, 03-2074. When information the payer spouse supplied did not permit more than an approximate determination of the payer’s true gross income, the court was not required to precisely subtract the amount the payer alleged the payer would have to pay to service a new debt. Derr v. Derr, 2005 WI App 63, 280 Wis. 2d 681, 696 N.W.2d 170, 03-2181. The trial court erred when it ordered that child support be held open based upon the asset of the wife’s Ph.D. in psychology and upon her imputed enhanced education income upon her expected, but as yet unattained, licensure to practice. Child support determinations are to be made upon the basis of the circumstances existing at the time of the divorce and a held-open determination indicates that an order for child support is not necessary based upon current circumstances. Weiler v. Boerner, 2005 WI App 64, 280 Wis. 2d 519, 695 N.W.2d 833, 03-2606. When undistributed company earnings are at issue, the court must: 1) ascertain whether the child support payer has the ability to individually control or access the undistributed earnings; and 2) determine whether there is a valid business reason for the company’s decision to retain the earnings. If the payer has the ability to individually control or access earnings and the company has no valid reason for retaining its earnings, the undistributed income can be considered when calculating the payer’s child support obligation. Winters v. Winters, 2005 WI App 94, 281 Wis. 2d 798, 699 N.W.2d 229, 04-0747. A lump sum payment as the result of a pension plan enhancement was gross income subject to the child support standards. There is no windfall exception to the application of child support to gross income. Absent a finding of unfairness, grounded in the specific facts of the case, and after considering all enumerated factors in sub. (1m) and any other factors relevant to the particular case, a trial court is not authorized to deviate from the percentage standards. Winkler v. Winkler, 2005 WI App 100, 282 Wis. 2d 746, 699 N.W.2d 652, 04-1231. The circuit court erred when it upheld the court commissioner’s decision to exclude overtime pay as a general policy without exception when applying the percentage standard. Overtime income clearly constitutes a portion of salary and wages, and Wisconsin law does not exclude overtime income in the application of the percentage standard. Jarman v. Welter, 2006 WI App 54, 289 Wis. 2d 857, 711 N.W.2d 705, 05-1616. A provision providing that neither parent could request a change in the amount of child support payments for a period of at least seven years from the date of the judgment entered, except in catastrophic circumstances, was unenforceable. As is implicit from Ondrasek, 158 Wis. 2d 690 (1990), any marital settlement agreement entered into by divorcing parties that purports to limit a child support payee’s ability to seek a support modification upon a substantial change in circumstances is against public policy and cannot provide a basis to estop the payee from seeking a modification. Ondrasek is not limited to unilateral waivers of a payee’s right to obtain increased child support. Wood v. Propeck, 2007 WI App 24, 299 Wis. 2d 470, 728 N.W.2d 757, 05-2674. In not revealing that he was a trust beneficiary, a father failed to make proper financial disclosure at the time of a divorce as was required by s. 767.127. The rationale of Grohmann, 189 Wis. 2d 532 (1995), is applicable to both grantor and nongrantor trusts if there is an obligation to report that trust’s income as one’s own because it is the obligation to report the income that makes the income reachable for calculations of a child support obligation. Stevenson v. Stevenson, 2009 WI App 29, 316 Wis. 2d 442, 765 N.W.2d 811, 07-2143. There is no basis upon which a trial court can reduce that support owed to a payor spouse’s marital child based on nonchild-support amounts paid to the payee spouse’s nonmarital child. However, the benefit received by the nonmarital child for amounts received from the payor spouse would be appropriately accounted for in the maintenance award or property division. Ladwig v. Ladwig, 2010 WI App 78, 325 Wis. 2d 497, 785 N.W.2d 664, 09-1202. Ordinarily bonus income should be considered income when setting a child support order. In this case, the trial court made the necessary findings to deviate from the child support guidelines when the court awarded a percentage of a future bonus to make up for a gap in support when no order was in effect, rather than applying the bonus to current support. Tierney v. Berger, 2012 WI App 91, 343 Wis. 2d 681, 820 N.W.2d 459, 11-0565. While the statute suggests that child support orders be expressed as a fixed sum, it does not completely prohibit percentage orders. Permitting percentage orders on unknown future bonus income is an exception to the preferred method of having percentage orders expressed as a fixed sum. Tierney v. Berger, 2012 WI App 91, 343 Wis. 2d 681, 820 N.W.2d 459, 11-0565. Federal preemption doctrine does not prohibit states from requiring payment of child support out of veterans’ disability benefits. Rose v. Rose, 481 U.S. 619, 107 S. Ct. 2029, 95 L. Ed. 2d 599 (1987).
ACTIONS AFFECTING THE FAMILY
767.513
Poor Little Rich Kids: Revising Wisconsin’s Child Support System to Accommodate High-Income Payers. Dodd. 83 MLR 807 (2000). No-Fault Divorce: Tax Consequences of Support, Maintenance and Property Settlement. Case. WBB Dec. 1977. A practitioner’s approach to child support. Bailey. WBB June 1987. HSS 80: New Rules for Child Support Obligations. Hickey. Wis. Law. Apr. 1995. Which Came First? The Serial Family Payer Formula. Stansbury. Wis. Law. Apr. 1995.
767.513 Child health care expenses. (1) DEFINITION. In this section, “health insurance” does not include medical assistance provided under subch. IV of ch. 49. (2) RESPONSIBILITY AND PAYMENT. In addition to ordering child support for a child under s. 767.511 (1), the court shall specifically assign responsibility for and direct the manner of payment of the child’s health care expenses. In assigning responsibility for a child’s health care expenses, the court shall consider whether a child is covered under a parent’s health insurance policy or plan at the time the court approves a stipulation for child support under s. 767.34, enters a judgment of annulment, divorce, or legal separation, or enters an order or a judgment in a paternity action or in an action under s. 767.001 (1) (f) or (j), 767.501, 767.804 (2), or 767.805 (3), the availability of health insurance to each parent through an employer or other organization, the extent of coverage available to a child, and the costs to the parent for the coverage of the child. A parent may be required to initiate or continue health care insurance coverage for a child under this section. If a parent is required to do so, he or she shall provide copies of necessary program or policy identification to the custodial parent and is liable for any health care costs for which he or she receives direct payment from an insurer. This section shall not be construed to limit the authority of the court to enter or modify support orders containing provisions for payment of medical expenses, medical costs, or insurance premiums that are in addition to and not inconsistent with this section. (2m) HEALTH INSURANCE IDENTIFICATION CARD. (a) The court shall order a parent who is required to provide health insurance coverage for a child under this section to provide to the other parent a health insurance identification card evidencing the child’s health insurance coverage. (b) If the parent ordered to provide a health insurance identification card for the child fails to do so, the other parent may attempt to obtain a card for the child by presenting to the health insurance provider or to the employer through which the insurance is provided a copy of the order requiring the provision of a card. (c) If the other parent is unable to obtain a health insurance identification card for the child in the manner provided in par. (b), the intentional failure to comply with the order to provide the card by the parent so ordered constitutes a contempt of court, punishable under ch. 785. (3) INCOME WITHHOLDING AND ASSIGNMENT. (a) In directing the manner of payment of a child’s health care expenses, the court may order that payment, including payment for health insurance premiums, be withheld from income and sent to the appropriate health care insurer, provider, or plan, as provided in s. 767.75 (3h), or sent to the department or its designee for disbursement to the person for whom the payment has been awarded if that person is not a health care insurer, provider, or plan. If the court orders income withholding and assignment for the payment of health care expenses, the court or county child support agency under s. 59.53 (5) shall send notice of assignment in the manner provided under s. 767.75 (2r) and may include the notice of assignment under this paragraph with a notice of assignment under s. 767.75. The department or its designee shall keep a record of all moneys received and disbursed for health care expenses that are directed to be paid to the department or its designee. (b) If the court orders a parent to initiate or continue health in-
May 22, 2026, are designated by NOTES. (Published 5-22-26)
767.513
ACTIONS AFFECTING THE FAMILY
surance coverage for a child under a health insurance policy that is available to the parent through an employer or other organization but the court does not specify the manner in which payment of the health insurance premiums shall be made, the court or county child support agency under s. 59.53 (5) may provide notice of assignment in the manner provided under s. 767.75 (2r) for the withholding from income of the amount necessary to pay the health insurance premiums. The notice of assignment under this paragraph may be sent with or included as part of any other notice of assignment under s. 767.75. A person who receives notice of assignment under this paragraph shall send the withheld health insurance premiums to the appropriate health care insurer, provider, or plan, as provided in s. 767.75 (3h). (4) HEALTH BENEFIT PLAN; EMPLOYER OBLIGATION. If the court orders a parent to provide coverage of the health care expenses of the parent’s child and the parent is eligible for family coverage of health care expenses under a health benefit plan that is provided by an employer on an insured or on a self-insured basis, the employer shall do all of the following: (a) Permit the parent to obtain family coverage of health care expenses for the child, if eligible for coverage, without regard to any enrollment period or waiting period restrictions that may apply. (b) Provide family coverage of health care expenses for the child, if eligible for coverage, upon application by the parent, the child’s other parent, the department, or the county child support agency under s. 59.53 (5), or upon receiving a notice under sub. (6) (a). (bm) Notify the county child support agency under s. 59.53 (5) when coverage of the child under the health benefit plan is in effect and, upon request, provide copies of necessary program or policy identification to the child’s other parent. (c) After the child has coverage under the employer’s health benefit plan, and as long as the parent is eligible for family coverage under the employer’s health benefit plan, continue to provide coverage for the child unless the employer receives satisfactory written evidence that the court order is no longer in effect or that the child has coverage of health care expenses under another health insurance policy or health benefit plan that provides comparable coverage of health care expenses. (5) RECOVERY BY STATE OF 3RD PARTY PAYMENTS. (a) If a parent who has been ordered by a court to provide coverage of the health care expenses of a child who is eligible for medical assistance under subch. IV of ch. 49 receives payment from a 3rd party for the cost of services provided to the child but does not pay the health care provider for the services or reimburse the department or any other person who paid for the services on behalf of the child, the department may obtain a judgment against the parent for the amount of the 3rd-party payment. (b) Section 767.75 (4) applies to a garnishment based on a judgment obtained under par. (a). (6) CHANGE OF EMPLOYMENT; NOTICE. (a) If a parent who provides coverage of the health care expenses of a child under an order under this section changes employers and that parent has a court-ordered child support obligation with respect to the child, the county child support agency under s. 59.53 (5) shall provide notice of the order to provide coverage of the child’s health care expenses to the new employer and to the parent. (b) The notice provided to the parent shall inform the parent that coverage for the child under the new employer’s health benefit plan will be in effect upon the employer’s receipt of the notice. The notice shall inform the parent that he or she may, within 10 business days after receiving the notice, by motion request a hearing before the court on the issue of whether the order to provide coverage of the child’s health care expenses should remain in ef-
Updated 23-24 Wis. Stats.
32
fect. A motion under this paragraph may be heard by a circuit court commissioner. If the parent requests a hearing and the court determines that the order to provide coverage of the child’s health care expenses should not remain in effect, the court shall provide notice to the employer that the order is no longer in effect. History: 2005 a. 443 ss. 104, 220; 2007 a. 96; 2019 a. 95. NOTE: 2005 Wis. Act 443 contains explanatory notes. Orders assigning health care responsibility pursuant to s. 767.25 (4m) [now this section] are subject to revision under s. 767.32 [now s. 767.59]. Kuchenbecker v. Schultz, 151 Wis. 2d 868, 447 N.W.2d 80 (Ct. App. 1989).
767.521 Action by state for child support. The state or its delegate under s. 49.22 (7) shall bring an action for support of a minor child under s. 767.001 (1) (f) or for paternity determination and child support under s. 767.80 if the child’s right to support is assigned to the state under s. 48.57 (3m) (b) 2. or (3n) (b) 2., 48.645 (3), 49.145 (2) (s), 49.19 (4) (h) 1. b., or 49.775 (2) (bm) and all of the following apply: (1) The child has been deprived of parental support by reason of the continued absence of a parent from the home. (2) A court has not issued an order under s. 767.511 requiring the parent who is absent from the home to support the child. History: 1987 a. 27; 1995 a. 289, 404; 1997 a. 27, 105; 2005 a. 443 s. 38; Stats. 2005 s. 767.521; 2007 a. 20.
767.531 Family support. Subject to s. 767.511 (6m), a party ordered to pay family support under this section, 2019 stats., shall pay simple interest at the rate of 1 percent per month on any amount in arrears that is equal to or greater than the amount of child support due in one month. Subject to s. 767.511 (6m), if the party no longer has a current obligation to pay child support, interest at the rate of 1 percent per month shall accrue on the total amount of child support in arrears, if any. Interest under this section is in lieu of interest computed under s. 807.01 (4), 814.04 (4), or 815.05 (8) and is paid to the department or its designee under s. 767.57. Except as provided in s. 767.57 (1m), the department or its designee shall apply all payments received for family support ordered under this section, 2019 stats., as follows: (1) First, to payment of family support due within the calendar month during which the payment is received. (2) Second, to payment of unpaid family support due before the payment is received. (3) Third, to payment of interest accruing on unpaid family support. History: 1977 c. 105; 1979 c. 32 ss. 50, 92 (4); Stats. 1979 s. 767.261; 1983 a. 27; 1985 a. 29; 1993 a. 481; 1995 a. 279; 1997 a. 27, 191; 1999 a. 9, 32; 2005 a. 443 s. 111; Stats. 2005 s. 767.531; 2013 a. 20; 2021 a. 35. This section does not limit the authority a trial court would otherwise have to consider imposing interest on unpaid maintenance arrears. Cashin v. Cashin, 2004 WI App 92, 273 Wis. 2d 754, 681 N.W.2d 255, 03-1010. Under former s. 767.531, 2019 stats., the circuit court must separately calculate child support and maintenance as a condition precedent to calculating family support. If the court applies the percentage guidelines when setting child support, it must set family support at an amount that results in a net payment, after state and federal taxes are paid, of no less than the child support as calculated under the guidelines. Even if a court makes detailed findings as to all of the factors for family support, the court erroneously exercises its discretion if it neglects to provide a rational explanation of how its findings lead to the support award. Vlies v. Brookman, 2005 WI App 158, 285 Wis. 2d 411, 701 N.W.2d 642, 04-0315. It is evident from the statutory framework and the purpose of family support that at least a portion of family support ordered in any case involving minor children is child support. With respect to child support, any provision in a marital settlement agreement that purports to limit a child support payee’s ability to seek a support modification upon a substantial change in circumstances is against public policy and cannot provide a basis to estop the payee from seeking a modification. Huhn v. Stuckmann, 2009 WI App 127, 321 Wis. 2d 169, 772 N.W.2d 744, 08-3102.
767.54 Required exchange of financial information. (1) In an action in which the court has ordered a party to pay family support under s. 767.225, 2019 stats., or s. 767.531, 2019 stats., or child support or maintenance under this chapter, including an action to revise a judgment or order under s. 767.59, the court shall require the parties annually to exchange financial information. Information required under this section shall be ex-
May 22, 2026, are designated by NOTES. (Published 5-22-26)
33
Updated 23-24 Wis. Stats.
changed no later than May 1 of each calendar year, unless otherwise agreed upon in writing by the parties. The information required to be exchanged shall include all of the following: (a) A complete copy of the party’s federal and state income tax return for the prior calendar year, including all W-2 forms and 1099 forms. (b) A year-end paycheck stub from all sources of employment for the prior calendar year. (c) The party’s most recent paycheck stub from all sources of employment showing year-to-date gross and net income. (d) Any other documentation of the party’s income from all sources for the 12-month period preceding the exchange of information. (2) A party may redact or remove the following personally identifying information from documents provided under sub. (1) unless otherwise ordered by the court: (a) The party’s home or work address, if the party is participating in the program under s. 165.68, or if the party’s address is otherwise protected or sealed. (b) The name, date of birth, and address of the party’s spouse. (c) The name, date of birth, and other personally identifying information of a minor child not related to the other party. (d) Any social security number. (e) An identification number assigned by an employer. (f) A taxpayer identification number assigned by the department of revenue or federal internal revenue service. (g) Any depository account number, investment account number, or other personally identifying number related to any investment tool. (h) A military identification number. (i) Any other personally identifying information that is intended to be used to access services, funds, or benefits of any kind to which an individual is entitled. (j) Any other personally identifying information that is not required to determine the income or financial status of the party. (3) Information disclosed under this section is subject to s. 767.127 (3). A party who fails to furnish information required by the court under this section may be proceeded against for contempt of court under ch. 785. If the court finds that a party has failed to furnish information required under this section, the court may award to the party bringing the action costs and, notwithstanding s. 814.04 (1), reasonable attorney fees. History: 2005 a. 443 s. 122; 2021 a. 35, 259. NOTE: 2005 Wis. Act 443 contains explanatory notes.
767.55 Child support: employment-related orders. (1) GENERALLY. In an action for modification of a child support order under s. 767.59 or an action in which an order for child support is required under s. 767.511 (1), 767.804 (3), 767.805 (4), or 767.89 (3), the court may order either or both parents of the child to seek employment or participate in an employment or training program. (2) NONCUSTODIAL PARENT. (a) In this subsection, “custodial parent” means a parent who lives with his or her child for substantial periods of time. (am) In an action for modification of a child support order under s. 767.59, an action in which an order for child support is required under s. 767.511 (1), 767.804 (3), 767.805 (4), or 767.89 (3), or a contempt of court proceeding to enforce a child support or family support order in a county that contracts under s. 49.36 (2), the court may order a parent who is not a custodial parent to register for a work experience and job training program under s. 49.36 if all of the following conditions are met: 1. The parent is able to work full time.
ACTIONS AFFECTING THE FAMILY
767.55
1m. The parent resides in a county, or resides within a reasonable driving distance, as determined by the court, from a county, that has a work experience and job training program under s. 49.36 and that agrees to enroll the parent in the program. 2. The parent works, on average, less than 32 hours per week, and is not participating in an employment or training program which meets guidelines established by the department. 3. The parent’s actual weekly gross income averages less than 40 times the federal minimum hourly wage under 29 USC 206 (a) (1) or the parent is earning less than the parent has the ability to earn, as determined by the court. (b) Under this subsection, the parent is presumed to be able to work full time. The parent has the burden of proving that he or she is not able to work full time. (c) If the court enters an order under par. (am), it shall order the parent to pay child support equal to the amount determined by applying the percentage standard established under s. 49.22 (9) or equal to the amount of child support that the parent was ordered to pay in the most recent determination of support under this chapter. The child support obligation ordered under this paragraph continues until the parent makes timely payment in full for 3 consecutive months or until the person participates in the program under s. 49.36 for 16 weeks, whichever occurs first. The court shall provide in its order that the parent shall make child support payments calculated under s. 767.511 (1j) or (1m) after the obligation to make payments ordered under this paragraph ceases. (3) ABSENT PARENT. (a) In this subsection, “case involving a dependent child” means an action which meets all of the following criteria: 1. Is an action for modification of a child support order under s. 767.59 or an action in which an order for child support is required under s. 767.511 (1), 767.804 (3), 767.805 (4), or 767.89 (3). 2. The child’s right to support is assigned to the state under s. 48.57 (3m) (b) 2. or (3n) (b) 2., 48.645 (3), or 49.19 (4) (h) 1. b. 3. The child has been deprived of parental support by reason of the continued absence of a parent from the home. (b) Except as provided in par. (c), in a case involving a dependent child, if the child’s parent who is absent from the home is not employed, the court shall order that parent to do one or more of the following: 1. Register for work at a public employment office established under s. 106.09. 2. Apply for jobs. 3. Participate in a job training program. (c) An order is not required under par. (b) if the court makes written findings that there is good cause for not issuing the order. (d) Paragraph (b) does not limit the authority of a court to issue an order, other than an order under par. (b), regarding employment of a parent in an action for modification of a child support order under s. 767.59 or an action in which an order for child support is required under s. 767.511 (1), 767.804 (3), 767.805 (4), or 767.89 (3). (4) UNEMPLOYED TEENAGE PARENT. (a) In this subsection, “unemployed teenage parent” means a parent who satisfies all of the following criteria: 1. Is less than 20 years of age. 2. Is unemployed. 3. Is financially unable to pay child support. 4. Would be ordered to make payments for the support of a child but for subd. 3. (b) In an action for revision of a judgment or order providing for child support under s. 767.59 or an action in which an order
May 22, 2026, are designated by NOTES. (Published 5-22-26)
767.55
ACTIONS AFFECTING THE FAMILY
for child support is required under s. 767.511 (1), 767.804 (3), 767.805 (4), or 767.89 (3), the court shall order an unemployed teenage parent to do one or more of the following: 1. Register for work at a public employment office established under s. 106.09. 2. Apply for jobs. 3. Participate in a job training program. 4. Pursue or continue to pursue an accredited course of instruction leading to the acquisition of a high school diploma or its equivalent if the unemployed teenage parent has not completed a recognized high school course of study or its equivalent, except that the court may not order the unemployed teenage parent to pursue instruction if the instruction requires the expenditure of funds by the unemployed teenage parent other than normal transportation and personal expenses. History: 2005 a. 443 ss. 40, 41, 107, 108, 135, 136, 223; 2007 a. 20; 2015 a. 331; 2019 a. 95.
767.553 Annual adjustments in support orders. (1) WHEN ADJUSTMENT MAY BE ORDERED. (a) An order for child support under this chapter may provide for an annual adjustment in the amount to be paid based on a change in the payer’s income if the amount of child support is expressed in the order as a fixed sum and based on the percentage standard established by the department under s. 49.22 (9). No adjustment may be made under this section unless the order provides for the adjustment. (b) An adjustment under this section may not be made more than once in a year and shall be determined on the basis of the percentage standard established by the department under s. 49.22 (9). (c) In the order the court shall specify what information the parties must exchange to determine whether the payer’s income has changed in accordance with s. 767.54. (2) FORM FOR STIPULATING. If the court provides for an annual adjustment, the court shall make available to the parties, including the state if the state is a real party in interest under s. 767.205 (2) (a), a form approved by the court for the parties to use in stipulating to an adjustment of the amount of child or family support and to modification of any applicable income-withholding order. The form shall include an order, to be signed by the court, for approval of the stipulation of the parties. (3) INCOME CHANGES. (a) If the payer’s income changes from the amount found by the court or stipulated to by the parties for the current child or family support order, the parties may implement an adjustment under this section by stipulating, on the form under sub. (2), to the changed income amount and the adjusted child or family support amount, subject to sub. (1) (b). (b) The stipulation form shall be signed by all parties, including the state if the state is a real party in interest under s. 767.205 (2) (a), and filed with the court. If the stipulation is approved, the order shall be signed by the court and implemented in the same manner as an order for a revision under s. 767.59. An adjustment under this subsection is effective as of the date on which the order is signed by the court. (4) IMPLEMENTATION; WHEN EFFECTIVE. (a) Any party, including the state if the state is a real party in interest under s. 767.205 (2) (a), may file a motion, petition, or order to show cause for implementation of an annual adjustment under this section if any of the following applies: 1. A party refuses to provide the information required by the court under sub. (1) (c). 2. The payer’s income changes, but a party refuses to sign the stipulation for an adjustment in the amount of child or family support. (b) If the court determines after a hearing that an adjustment
Updated 23-24 Wis. Stats.
34
should be made, the court shall enter an order adjusting the child or family support payments by the amount determined by the court, subject to sub. (1) (b). An adjustment under this subsection may not take effect before the date on which the party responding to the motion, petition, or order to show cause received notice of the action under this subsection. (c) Notwithstanding par. (b), the court may direct that all or part of the adjustment not take effect until such time as the court directs, if any of the following applies: 1. The payee was seeking an adjustment and the payer establishes that extraordinary circumstances beyond his or her control prevent fulfillment of the adjusted child or family support obligation. 2. The payer was seeking an adjustment and the payee establishes that the payer voluntarily and unreasonably reduced his or her income below his or her earning capacity. 3. The payer was seeking an adjustment and the payee establishes that the adjustment would be unfair to the child. (d) If in an action under this subsection the court determines that a party has unreasonably failed to provide the information required under sub. (1) (c) or to provide the information on a timely basis, or unreasonably failed or refused to sign a stipulation for an annual adjustment, the court may award to the aggrieved party actual costs, including service costs, any costs attributable to time missed from employment, the cost of travel to and from court, and reasonable attorney fees. (5) REVISION OR REMEDIAL SANCTIONS. (a) Nothing in this section affects a party’s right to file at any time a motion, petition, or order to show cause under s. 767.59 for revision of a judgment or order with respect to an amount of child or family support. (b) Nothing in this section affects a party’s right to move the court for a finding of contempt of court or for remedial sanctions under ch. 785 if the other party unreasonably fails to provide or disclose information required under this section or unreasonably fails or refuses to sign a stipulation for an annual adjustment. History: 1981 c. 20; 1983 a. 27; 1993 a. 481; 1995 a. 27 s. 9126 (19); 1995 a. 404; 1997 a. 27; 2001 a. 16, 61, 105; 2005 a. 443 ss. 167, 224; Stats. 2005 s. 767.553; 2021 a. 35, 259.
767.56 Maintenance. (1c) FACTORS TO CONSIDER FOR GRANTING. Upon a judgment of annulment, divorce, or legal separation, or in rendering a judgment in an action under s. 767.001 (1) (g) or (j), the court may grant an order requiring maintenance payments to either party for a limited or indefinite length of time, subject to sub. (2c), after considering all of the following: (a) The length of the marriage. (b) The age and physical and emotional health of the parties. (c) The division of property made under s. 767.61. (d) The educational level of each party at the time of marriage and at the time the action is commenced. (e) The earning capacity of the party seeking maintenance, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to find appropriate employment. (f) The feasibility that the party seeking maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and, if so, the length of time necessary to achieve this goal. (g) The tax consequences to each party. (h) Any mutual agreement made by the parties before or during the marriage, according to the terms of which one party has made financial or service contributions to the other with the expectation of reciprocation or other compensation in the future, if
May 22, 2026, are designated by NOTES. (Published 5-22-26)
35
Updated 23-24 Wis. Stats.
the repayment has not been made, or any mutual agreement made by the parties before or during the marriage concerning any arrangement for the financial support of the parties. (i) The contribution by one party to the education, training or increased earning power of the other. (j) Such other factors as the court may in each individual case determine to be relevant. (2c) TERMINATES AT DEATH OF PAYEE OR PAYER. Unless already terminated for another reason, maintenance granted under this section terminates upon the death of the payee or the payer, whichever occurs first. History: 1971 c. 220; 1973 c. 12 s. 37; 1977 c. 105; 1979 c. 32 ss. 50, 92 (4); 1979 c. 196; Stats. 1979 s. 767.26; 2005 a. 443 s. 110; Stats. 2005 s. 767.56; 2013 a. 209. Cross-reference: See also notes to s. 767.59 for decisions regarding postjudgment modifications. While arrearages under a temporary order for alimony and attorney fees and costs that the husband is required to pay do not constitute part of a wife’s division of the estate, they are a charge against the entire estate. Tesch v. Tesch, 63 Wis. 2d 320, 217 N.W.2d 647 (1974). An obligation to support children is a factor in determining the amount of maintenance payments. Besaw v. Besaw, 89 Wis. 2d 509, 279 N.W.2d 192 (1979). The trial court abused its discretion by denying a mother’s choice to remain at home to care for small children. Hartung v. Hartung, 102 Wis. 2d 58, 306 N.W.2d 16 (1981). The trial court abused its discretion by terminating maintenance without sufficiently addressing the factors under s. 767.26 [now this section]. Vander Perren v. Vander Perren, 105 Wis. 2d 219, 313 N.W.2d 813 (1982). Compensation for a person who supports a spouse while the spouse is in school can be achieved through both property division and maintenance payments. Lundberg v. Lundberg, 107 Wis. 2d 1, 318 N.W.2d 918 (1982). The trial court may begin its maintenance evaluation with the proposition that the dependent partner may be entitled to 50 percent of the total earnings of both parties. Bahr v. Bahr, 107 Wis. 2d 72, 318 N.W.2d 391 (1982). The trial court may not consider marital misconduct as a relevant factor in granting maintenance payments. Dixon v. Dixon, 107 Wis. 2d 492, 319 N.W.2d 846 (1982). It was improper to discontinue maintenance payments to a former wife solely upon the ground of her cohabitation with another man. Van Gorder v. Van Gorder, 110 Wis. 2d 188, 327 N.W.2d 674 (1983). Three formulas were approved for calculating maintenance or property division awards in cases in which one spouse has contributed to the other’s pursuit of an advanced degree. Haugan v. Haugan, 117 Wis. 2d 200, 343 N.W.2d 796 (1984). An alcoholic spouse’s refusal of treatment is relevant to the trial court’s determination regarding a request for permanent maintenance. DeLaMatter v. DeLaMatter, 151 Wis. 2d 576, 445 N.W.2d 676 (Ct. App. 1989). Military disability payments may be considered in assessing ability to pay maintenance. Weberg v. Weberg, 158 Wis. 2d 540, 463 N.W.2d 382 (Ct. App. 1990). The trial court’s use of a computer program to analyze financial evidence was not error. Bisone v. Bisone, 165 Wis. 2d 114, 477 N.W.2d 59 (Ct. App. 1991). An award may be based on a percentage of the payer’s income in “unusual circumstances.” Unpredictable future income warrants a percentage award. Hefty v. Hefty, 172 Wis. 2d 124, 493 N.W.2d 33 (1992). Maintenance furthers two objectives: 1) to support the recipient spouse in accordance with the needs and earning capacities of the parties; and 2) to ensure a fair and equitable financial agreement between the parties. In the interest of fairness, maintenance may exceed the recipient’s budget. Hefty v. Hefty, 172 Wis. 2d 124, 493 N.W.2d 33 (1992). Maintenance is measured by the parties’ lifestyle immediately before the divorce and that they could anticipate enjoying if they were to stay married. The award may take into account income increases the parties could reasonably anticipate. Hefty v. Hefty, 172 Wis. 2d 124, 493 N.W.2d 33 (1992). A maintenance award must account for the recipient’s earning capacity and ability to be self-supporting at a level comparable to that during marriage. It is unfair to require one spouse to continue income production levels to maintain the standard of living of the other who chooses a decrease in production. Forester v. Forester, 174 Wis. 2d 78, 496 N.W.2d 771 (Ct. App. 1993). Consideration of one spouse’s solicitation to have the other murdered in denying maintenance did not violate the statutory scheme and was not an improper consideration of “marital misconduct.” Brabec v. Brabec, 181 Wis. 2d 270, 510 N.W.2d 762 (Ct. App. 1993). A maintenance award based on equalization of income is not “self-evidently fair” and does not meet the statutory objectives of support and fairness. Olson v. Olson, 186 Wis. 2d 287, 520 N.W.2d 284 (Ct. App. 1994). An otherwise short-term marriage should not be considered a long-term marriage because there are children. Luciani v. Montemurro-Luciani, 191 Wis. 2d 67, 528 N.W.2d 477 (Ct. App. 1995). One spouse’s contribution of child-rearing services and family support while the other spouse completed an education program was not sufficient grounds for awarding compensatory maintenance. Luciani v. Montemurro-Luciani, 191 Wis. 2d 67, 528 N.W.2d 477 (Ct. App. 1995). Leaving maintenance open due to potential future health problems of one spouse without expert testimony was proper, but failure to limit the order accordingly was improper. Grace v. Grace, 195 Wis. 2d 153, 536 N.W.2d 109 (Ct. App. 1995), 942653.
ACTIONS AFFECTING THE FAMILY
767.56
Post-divorce increases in a pension fund valued in a divorce should be treated as an income stream available for maintenance. Olski v. Olski, 197 Wis. 2d 237, 540 N.W.2d 412 (1995), 93-3332. A court may consider earning capacity rather than actual earnings in determining child support and maintenance if it finds a spouse’s job choice voluntary and unreasonable. Sellers v. Sellers, 201 Wis. 2d 578, 549 N.W.2d 481 (Ct. App. 1996), 952730. When parties have been married to each other more than once, a trial court can look at the total years of marriage when determining maintenance. The trial court is not bound by the terms of maintenance in the first divorce and may look to current conditions in setting maintenance. Wolski v. Wolski, 210 Wis. 2d 183, 565 N.W.2d 196 (Ct. App. 1997), 96-0136. A stipulation incorporated into a divorce judgment is in the nature of a contract. That a stipulation appears imprudent is not grounds for construction of an unambiguous agreement. Rosplock v. Rosplock, 217 Wis. 2d 22, 577 N.W.2d 32 (Ct. App. 1998), 96-3522. The purpose of maintenance is, at least in part, to put the recipient in a solid financial position that allows the recipient to become self-supporting by the end of the maintenance period. That the recipient becomes employed and makes productive investments of property division proceeds and maintenance payments is not a substantial change in circumstances but an expected result of receiving maintenance. Rosplock v. Rosplock, 217 Wis. 2d 22, 577 N.W.2d 32 (Ct. App. 1998), 96-3522. The trial court’s exclusion of pension payments when considering income available to a maintenance recipient was correct when the pension had been awarded to the recipient as part of the property division and had no value outside of the payments made from it. Seidlitz v. Seidlitz, 217 Wis. 2d 82, 578 N.W.2d 638 (Ct. App. 1998), 97-0824. When a reviewing court finds that a trial court erroneously exercised its discretion in awarding maintenance, the case should be remanded for the trial court to properly exercise its discretion. It was an abuse of discretion for a trial court to assume that a spouse is legally entitled to maintenance. King v. King, 224 Wis. 2d 235, 590 N.W.2d 480 (1999), 97-0994. Equal income division is a reasonable starting point in determining maintenance, but the goal is the standard of living enjoyed during the marriage, not 50 percent of the total predivorce earnings. Maintenance may surpass 50 percent of the couple’s predivorce income, but the payee is not entitled to live a richer lifestyle than that enjoyed during the marriage. Johnson v. Johnson, 225 Wis. 2d 513, 593 N.W.2d 827 (Ct. App. 1999), 98-2141. Maintenance is not intended to provide a permanent annuity. Generally, limitedterm maintenance provides funds for training intended to enable the recipient to be self-supporting by the end of the maintenance period and may also be used to limit the responsibility of the payer to a certain time and to avoid future litigation. Absent a substantial change of circumstances, the parties may rightfully expect no change. The law of change of circumstances should not require a paying spouse to finance unwise financial decisions of the recipient. Murray v. Murray, 231 Wis. 2d 71, 604 N.W.2d 912 (Ct. App. 1999), 99-1369. Under sub. (9), the contribution by one party to the other’s education is not limited to contributions that arose only during the marital period. The court may freely consider the total contributions. Meyer v. Meyer, 2000 WI 132, 239 Wis. 2d 731, 620 N.W.2d 382, 99-0178. It was not error for the trial court to consider under sub. (10) evidence of the parties having lived “separate lives” for much of their marriage. By not equalizing their incomes, the court in effect implemented what the parties had already agreed to in practice. Schmitt v. Schmitt, 2001 WI App 78, 242 Wis. 2d 565, 626 N.W.2d 14, 00-0695. When a pension is divided by a qualified domestic relations order, and no value is assigned to either spouse’s interest to be offset by other property awarded in the property division, a court is not prohibited by double-counting rules from considering pension distributions when determining maintenance. Wettstaedt v. Wettstaedt, 2001 WI App 94, 242 Wis. 2d 709, 625 N.W.2d 900, 00-3061. A court’s authority to order maintenance includes authority to impose obligations on the payee to ensure compliance with the payment order if those obligations are reasonably necessary to effect compliance with the payment order. Finley v. Finley, 2002 WI App 144, 256 Wis. 2d 508, 648 N.W.2d 536, 01-1705. Sections 767.25 (6) and 767.261 [now ss. 767.511 (6) and 767.531] regarding a fixed amount of interest on child support do not limit the trial court’s authority to consider imposing interest on unpaid maintenance. A trial court has discretionary authority under s. 767.01 (1) to impose interest on maintenance arrearages. If the court decides to impose interest, it is under the trial court’s discretion to determine the amount to impose. Cashin v. Cashin, 2004 WI App 92, 273 Wis. 2d 754, 681 N.W.2d 255, 03-1010. The general rule is that maintenance decisions are based on the parties’ financial circumstances at the time the determination is made. A financial benefit flowing from one spouse’s cohabitation with a third party at the time of divorce is an appropriate consideration in setting maintenance. Woodard v. Woodard, 2005 WI App 65, 281 Wis. 2d 217, 696 N.W.2d 221, 03-3356. A factual finding that one spouse’s cohabitation relationship with a third party was likely to end in the near future, supported by evidence in the record, might be an appropriate basis for disregarding the financial benefit from the relationship if the expected duration was so short that the benefit to the cohabiting spouse would be insignificant. A court’s speculation that because a relationship was new and non-marital and could terminate at any time and that the boyfriend had no legal obligation of support was insufficient to support a finding that the relationship was likely to end in the near future. Woodard v. Woodard, 2005 WI App 65, 281 Wis. 2d 217, 696 N.W.2d 221, 03-3356. The absence of a formal finding of a substantial change in circumstances is sufficient to establish an erroneous exercise of discretion. Hacker v. Hacker, 2005 WI App 211, 287 Wis. 2d 180, 704 N.W.2d 371, 05-0223. Alcoholism is not equated with the kind of career choice on which the opinion in Forester, 174 Wis. 2d 78 (1993), turns, but is a disease that can limit or destroy an individual’s earning capacity. An alcoholic spouse’s refusal to obtain recommended treatment may be a relevant factor in a maintenance decision, but unsuccessful treat-
May 22, 2026, are designated by NOTES. (Published 5-22-26)
767.56
ACTIONS AFFECTING THE FAMILY
ment is not the same as refusing treatment. Even if the court determines that a history of failed treatment is a relevant factor, the court’s award must still reflect a proper concern for both objectives of maintenance—fairness and maintenance. Hacker v. Hacker, 2005 WI App 211, 287 Wis. 2d 180, 704 N.W.2d 371, 05-0223. The court did not err in awarding maintenance out of the proceeds of a covenant not to compete that arose from the sale of shares determined to be a gift, and not subject to property division under s. 767.61 (2). The payments were in exchange for a service to be performed; refraining from doing business in a way that would be harmful to the purchasers. Grumbeck v. Grumbeck, 2006 WI App 215, 296 Wis. 2d 611, 723 N.W. 2d 778, 05-2512. In setting maintenance, the trial court should have included in the calculation income from the investments in which a spouse has a substantial ownership interest. That the entities are not producing income at the time of the divorce does not mean they should not be considered. Wright v. Wright, 2008 WI App 21, 307 Wis. 2d 156, 747 N.W.2d 690, 06-2111. Parties with marital property agreements are not exempt from maintenance awards. Unless the agreement contains a waiver of maintenance rights as described in sub. (8), a court may conclude that a maintenance award is appropriate. Steinmann v. Steinmann, 2008 WI 43, 309 Wis. 2d 29, 749 N.W.2d 145, 05-1588. Sub. (6) contemplates maintenance being awarded to help a former spouse maintain an opulent standard of living reasonably comparable to that enjoyed during the marriage. There is nothing requiring that such spouses first have contributed to the household or child rearing to a certain degree. Nor does the statute condition a court’s order maintaining that standard of living upon it being the result of both incomes when one party received personal benefits from the use of corporate property. Steinmann v. Steinmann, 2008 WI 43, 309 Wis. 2d 29, 749 N.W.2d 145, 051588. “Fairness” has a special meaning under the law of maintenance. A reasonable maintenance award is not measured by the average annual earnings over the duration of a long marriage but by the lifestyle that the parties enjoyed in the years immediately before the divorce and could anticipate enjoying if they were to stay married. When a recipient spouse can reasonably reach that lifestyle level by the recipient’s own efforts following the expiration of limited-term maintenance, putting a time cap on the payment of maintenance may be appropriate. The payment of maintenance is not to be viewed as a permanent annuity. Heppner v. Heppner, 2009 WI App 90, 319 Wis. 2d 237, 768 N.W.2d 261, 08-2020. Despite the trial court’s recognition of the stay-at-home wife’s expectations of what her lifestyle would have been after her husband retired, the trial court obliterated those expectations because it seemed to assume that it should cut off maintenance once the husband retired, as retirement would cut off his sources of income. By ending maintenance, the trial court ignored the applicable principles of fairness and erroneously exercised its discretion. If the former wife was to be able to enjoy the life she would have enjoyed if the parties had not divorced, she was entitled to maintenance even though her former husband retired. Heppner v. Heppner, 2009 WI App 90, 319 Wis. 2d 237, 768 N.W.2d 261, 08-2020. Income received from the exercise of stock options that would be exercised after the divorce should be included in the income pool taken into consideration for the payment of maintenance. Heppner v. Heppner, 2009 WI App 90, 319 Wis. 2d 237, 768 N.W.2d 261, 08-2020. A maintenance award in a marriage of medium duration that exceeds the length of the marriage is within the trial court’s discretion. When deciding whether to limit maintenance, and for how long, the trial court must consider: 1) the ability of the recipient to become self-supporting by the end of the term at a standard of living reasonably comparable to that enjoyed before divorce; 2) the ability of the payor to continue support for an indefinite time; and 3) the need for the court to continue its jurisdiction concerning maintenance. Ladwig v. Ladwig, 2010 WI App 78, 325 Wis. 2d 497, 785 N.W.2d 664, 09-1202. When valuing a business interest that is part of the marital estate for purposes of property division, a circuit court shall include the entire value of the salable professional goodwill attendant to the business interest. The circuit court did not double count the value of professional goodwill when it included the goodwill in the divisible marital estate and then based a maintenance award on the professional spouse’s expected future earnings. As with income from an income earning asset, income from a professional practice is separate from the value of the practice as it exists at the time of the property division and is properly considered in determining maintenance. McReath v. McReath, 2011 WI 66, 335 Wis. 2d 643, 800 N.W.2d 399, 090639. Sub. (2) requires a court to consider the physical health of the parties and does not suggest that health problems that have been the subject of settlement proceeds may be ignored. There is no qualifier in this section relieving parties of the requirement to support each other if one of the parties receives a monetary award for injuries received in an accident. Lemke v. Lemke, 2012 WI App 96, 343 Wis. 2d 748, 820 N.W.2d 470, 11-1974. The trial court’s conclusion that a payee spouse had shirked employment, requiring the termination of the payee’s family support, ignored the requirement in sub. (5) that the court consider the parties’ “earning capacity.” Once the court accepted an opinion regarding the payee’s earning capacity, the court was required to compare the payee’s earning capacity with the payor’s, given the payor’s actual earnings and the payee’s imputed earnings, to determine whether they were able to enjoy the lifestyle they enjoyed during their marriage. Lemke v. Lemke, 2012 WI App 96, 343 Wis. 2d 748, 820 N.W.2d 470, 11-1974. Inasmuch as both parties were about 79 years old at the time of the hearing; had been divorced for 21 years; were both living solely on their investment income and social security benefits; and the payor had been paying maintenance for ten years after retiring; the trial court properly exercised its discretion when it reduced maintenance to $0, finding that the payee had ample funds to support herself. Brin v. Brin, 2014 WI App 68, 354 Wis. 2d 510, 849 N.W.2d 900, 13-1739. The Federal Tax Consequences of Divorce. Meldman & Ryan. 57 MLR 229 (1974). No-Fault Divorce: Tax Consequences of Support, Maintenance and Property Settlement. Case. WBB Dec. 1977.
Updated 23-24 Wis. Stats.
36
767.57 Maintenance, child support, and family support payments; fees. (1) PAYMENT TO DEPARTMENT. (a) All orders or judgments providing for temporary or permanent maintenance, child support, or family support payments shall direct that the payments be made to the department or its designee for the use of the person for whom the payments have been awarded. A party obtaining an order for temporary maintenance, child support, or family support payments shall promptly file the order, together with all pleadings in the action, with the clerk of court. (b) Upon request, after the filing of an order or judgment or the receipt of an interim disbursement order, the clerk of court shall advise the county child support agency under s. 59.53 (5) of the terms of the order or judgment within 2 business days after the filing or receipt. The county child support agency shall, within the time required by federal law, enter the terms of the order or judgment into the statewide support data system, as required by s. 59.53 (5) (b). (c) Except as provided in sub. (1m), the department or its designee shall disburse, and take receipts for, the money received under the judgment or order in the manner required by federal regulations, unless the department or its designee is unable to disburse the moneys because the moneys were paid by check or other draft drawn upon an account containing insufficient funds. All moneys received or disbursed under this section shall be entered in a record kept by the department or its designee. The record shall be open to inspection by the parties to the action, their attorneys, and the circuit court commissioner. (d) The department or its designee shall offer to every individual to whom child support or family support payments are disbursed under this section the option to receive a paper statement of account that will be sent to the individual whenever money is received on behalf of or disbursed to the individual under this section. The department or its designee may not charge an individual a fee for providing the statements of account. (1e) RECEIVING AND DISBURSING FEES. (a) For receiving and disbursing maintenance, child support, or family support payments, including payments in arrears, and for maintaining the records required under sub. (1) (c), the department or its designee shall collect an annual fee of $65 from a party ordered to make payments. The court shall order each party ordered to make payments to pay the fee in each year for which payments are ordered or in which an arrearage in any of those payments is owed. In directing the manner of payment, the court shall order that the fee be withheld from income and sent to the department or its designee, as provided under s. 767.75. Fees under this paragraph shall be deposited in the appropriation account under s. 20.437 (2) (ja). At the time of ordering payment of the fee, the court shall notify each party ordered to make payments of the requirement to pay, and the amount of, the fee. If the fee under this paragraph is not paid when due, the department or its designee may not deduct the fee from any maintenance, child or family support, or arrearage payment, but may move the court for a remedial sanction under ch. 785. (b) 1m. The department or its designee may collect any unpaid fees under s. 814.61 (12) (b), 1997 stats., that are shown on the department’s automated payment and collection system on December 31, 1998, and shall deposit all fees collected under this subdivision in the appropriation account under s. 20.437 (2) (ja). The department or its designee may collect unpaid fees under this subdivision through income withholding under s. 767.75 (2m). If the department or its designee determines that income withholding is inapplicable, ineffective, or insufficient for the collection of any unpaid fees under this subdivision, the department or its designee may move the court for a remedial sanction under ch. 785. The department or its designee may contract with or employ a
May 22, 2026, are designated by NOTES. (Published 5-22-26)
37
Updated 23-24 Wis. Stats.
collection agency or other person for the collection of any unpaid fees under this subdivision and, notwithstanding s. 20.930, may contract with or employ an attorney to appear in any action in state or federal court to enforce the payment obligation. The department or its designee may not deduct the amount of unpaid fees from any maintenance, child or family support, or arrearage payment. 2m. A clerk of court may collect any unpaid fees under s. 814.61 (12) (b), 1997 stats., that are owed to the clerk of court, or to his or her predecessor, and that were not shown on the department’s automated payment and collection system on December 31, 1998, through income withholding under s. 767.75 (2m). If the clerk of court determines that income withholding is inapplicable, ineffective, or insufficient for the collection of any unpaid fees under this subdivision, the clerk of court may move the court for a remedial sanction under ch. 785. (c) The department or its designee shall collect an annual fee of $35 from every individual receiving child support or family support payments. In applicable cases, the fee shall comply with all requirements under 42 USC 654 (6) (B). The department or its designee may deduct the fee from maintenance, child or family support, or arrearage payments. Fees collected under this paragraph shall be deposited in the appropriation account under s. 20.437 (2) (ja). (1h) NONPAYMENT; ENFORCEMENT. If maintenance, child support, or family support payments are not paid to the department or its designee at the time provided in the judgment or order, the county child support agency under s. 59.53 (5) or a circuit court commissioner of the county shall take proceedings to secure the payment of the sum, including enforcement by contempt proceedings under ch. 785 or by other means. Copies of any order issued to compel the payment shall be mailed to the attorney, if any, who represented each party when the maintenance, child support, or family support payments were awarded. If any fees of officers in any of the proceedings, including the compensation of the circuit court commissioner at the rate of $50 per day unless the commissioner is on a salaried basis, is not collected from the person proceeded against, the fees shall be paid out of the county treasury upon the order of the presiding judge and the certificate of the department. (1m) OVERPAYMENT. If the department or its designee receives support or maintenance money that exceeds the amount due in the month in which it is received and the department or its designee determines that the excess amount is for support or maintenance due in a succeeding month, the department or its designee may hold the amount of overpayment that does not exceed the amount due in the next month for disbursement in the next month if any of the following applies: (a) The payee or the payer requests that the overpayment be held until the month when it is due. (b) The court has ordered that overpayments of child support, family support, or maintenance that do not exceed the amount of support or maintenance due in the next month may be held for disbursement in the next month. (c) The party entitled to the support or maintenance money or a minor child of the party has applied for or is receiving aid under s. 48.645 or public assistance under ch. 49 and there is an assignment to the state under s. 48.645 (3) or 49.19 (4) (h) 1. b. of the party’s right to the support or maintenance money. (cm) A kinship care provider or a long-term kinship care provider of the child who is entitled to the support money has applied for or is receiving kinship care payments or long-term kinship care payments for that child and there is an assignment to the state under s. 48.57 (3m) (b) 2. or (3n) (b) 2. of the child’s right to the support money.
ACTIONS AFFECTING THE FAMILY
767.57
(d) The department or its designee determines that the overpayment should be held until the month when it is due. (2) PROCEDURE IF RECIPIENT ON PUBLIC ASSISTANCE. If a party entitled to maintenance or support, or both, is receiving public assistance under ch. 49, the party may assign the party’s right to support or maintenance to the county department under s. 46.215, 46.22, or 46.23 granting the assistance. The assignment shall be approved by order of the court granting the maintenance or support. The assignment may not be terminated if there is a delinquency in the amount to be paid to the assignee of maintenance and support previously ordered without the written consent of the assignee or upon notice to the assignee and a hearing. When an assignment of maintenance or support, or both, has been approved by the order, the assignee shall be deemed a real party in interest within s. 803.01 solely for the purpose of securing payment of unpaid maintenance or support ordered to be paid, by participating in proceedings to secure the payment of unpaid amounts. Notwithstanding assignment under this subsection, and without further order of the court, the department or its designee, upon receiving notice that a party or a minor child of the parties is receiving aid under s. 48.645 or public assistance under ch. 49 or that a kinship care provider or long-term kinship care provider of the minor child is receiving kinship care payments or long-term kinship care payments for the minor child, shall forward all support assigned under s. 48.57 (3m) (b) 2. or (3n) (b) 2., 48.645 (3), 49.19 (4) (h) 1., or 49.45 (19) to the assignee under s. 48.57 (3m) (b) 2. or (3n) (b) 2., 48.645 (3), 49.19 (4) (h) 1., or 49.45 (19). (3) PROCEDURE IF RECIPIENT INSTITUTIONALIZED OR CONFINED. (a) If maintenance or support, or both, are ordered to be paid for the benefit of any individual who is committed by court order to an institution, who is in confinement, or whose legal custody is vested by court order under ch. 48 or 938 in an agency, department, relative, or other entity, the court may order that the maintenance or support be paid to the relative, agency, institution, welfare department, or other entity having legal or actual custody of the individual, and that it be used for the person’s care and maintenance, without the appointment of a guardian in this state. (b) If a child who is the beneficiary of support under a judgment or order is placed by court order in a residential care center for children and youth, juvenile correctional institution, or state mental institution, the right of the child to support during the period of the child’s confinement, including any right to unpaid support accruing during that period, is assigned to the state. If the judgment or order providing for the support of a child who is placed in a residential care center for children and youth, juvenile correctional institution, or state mental institution includes support for one or more other children, the support that is assigned to the state shall be the proportionate share of the child placed in the center or institution, except as otherwise ordered by the court or circuit court commissioner on the motion of a party. (4) PROCEDURE FOR CERTAIN CHILD RECIPIENTS. If an order or judgment providing for the support of one or more children not receiving aid under s. 48.57 (3m) or (3n), 48.645, or 49.19 includes support for a minor who is the beneficiary of aid under s. 48.57 (3m) or (3n), 48.645, or 49.19, any support payment made under the order or judgment is assigned to the state under s. 48.57 (3m) (b) 2. or (3n) (b) 2., 48.645 (3), or 49.19 (4) (h) 1. b. in the amount that is the proportionate share of the minor receiving aid under s. 48.57 (3m) or (3n), 48.645, or 49.19, except as otherwise ordered by the court on the motion of a party. (5) TRUSTEE OR RECEIVER MAY BE APPOINTED. The court may appoint a receiver or trustee, as necessary, to receive any payments ordered under this chapter, to invest and pay over the income for the maintenance of the spouse or the support and education of any of the children described in s. 767.511 (4), or to pay
May 22, 2026, are designated by NOTES. (Published 5-22-26)
767.57
ACTIONS AFFECTING THE FAMILY
over the principal sum in the amount and at the times that the court directs. The court may require the receiver or trustee to post bond, with or without sureties, in the amount that the court directs. History: 1971 c. 41 s. 12; Sup. Ct. Order, 67 Wis. 2d 585, 775 (1975); 1975 c. 82, 200; 1975 c. 401 s. 4; 1977 c. 105 s. 59; 1977 c. 271, 418, 447; 1979 c. 32 ss. 50, 92 (4); 1979 c. 257 s. 17; Stats. 1979 s. 767.29; 1981 c. 20 s. 2202 (20) (m); 1983 a. 27, 302; 1985 a. 29, 176; 1991 a. 39; 1993 a. 481; 1995 a. 27 ss. 7104tm, 9126 (19), 9130 (4); 1995 a. 77, 279, 289, 404; 1997 a. 27, 35, 105, 191, 252; 1999 a. 9; 2001 a. 16, 59, 61, 105; 2005 a. 25, 387; 2005 a. 443 ss. 127 to 132, 144, 225; Stats. 2005 s. 767.57; 2007 a. 20, 96; 2009 a. 28, 180; 2013 a. 20; 2019 a. 9; 2023 a. 119. An agency assigned benefits under sub. (2) was entitled to collect unpaid alimony and support money that had accumulated prior to the effective date of the assignment and prior to the assignor’s receipt of public assistance. Schiavo v. Schiavo, 71 Wis. 2d 136, 237 N.W.2d 702 (1976). The defense of laches is not available in an action or proceeding brought to secure enforcement of a child support order in a divorce action. Paterson v. Paterson, 73 Wis. 2d 150, 242 N.W.2d 907 (1976).
767.58 Notice of change of employer, address, and ability to pay; other information. (1g) DEFINITION. In this section, “shared-placement parent” means a parent who has a court-ordered period of placement of at least 25 percent and is ordered by the court to assume the child’s basic support costs in proportion to the time that the parent has placement of the child. (1r) SUPPORT OR MAINTENANCE ORDER; NOTICE REQUIREMENTS. (a) Each order for child support or maintenance payments shall include an order that the payer and payee notify the county child support agency under s. 59.53 (5) of any change of address within 10 business days of the change. (b) Each order for child support or maintenance payments shall also include an order that the payer and payee notify the county child support agency under s. 59.53 (5) and the other party, within 10 business days, of any change of employer and of any substantial change in the amount of his or her gross income, as defined by rule by the department, affecting his or her ability to pay, or the amount of, child support or maintenance. The order shall also include a statement that notification of any substantial change in the amount of the party’s income will not result in a change of the order unless a revision of the order under s. 767.59 or an annual adjustment of the child support amount under s. 767.553 is sought. (c) Each order for maintenance payments shall include an order requiring the payee to notify the court and the payer within 10 business days of the payee’s remarriage. (cm) If a payer is ordered to provide only child support payments, all of the following apply: 1. Neither party is required to disclose income that is not considered gross income by the department. 2. The payee is not required to notify the payer of the payee’s change in employer or income if the payer is not a shared-placement parent. (d) An order under this subsection is enforceable under ch. 785. (2) INFORMATION FOR CHILD SUPPORT AGENCY. When an order is entered under sub. (1r), each party shall provide to the county child support agency under s. 59.53 (5) his or her social security number, residential and mailing addresses, telephone number, operator’s license number and the name, address and telephone number of his or her employer. A party shall advise the county child support agency under s. 59.53 (5) of any change in the information provided under this subsection within 10 business days after the change. (3) REDACTING PERSONALLY IDENTIFYING INFORMATION. A party may redact or remove the following personally identifying information from documents provided under sub. (1r) (b) to another party unless otherwise ordered by the court: (a) The party’s home or work address if the party is participating in the program under s. 165.68 or if the party’s address is otherwise protected or sealed.
Updated 23-24 Wis. Stats.
38
(b) The name, date of birth, and address of the party’s spouse. (c) The name, date of birth, and other personally identifying information of a minor child not related to the other party. (d) Any social security number. (e) An identification number assigned by an employer. (f) A taxpayer identification number assigned by the department of revenue or federal internal revenue service. (g) Any depository account number, investment account number, or other personally identifying number related to any investment tool. (h) A military identification number. (i) Any other personally identifying information that is intended to be used to access services, funds, or benefits of any kind to which an individual is entitled. (j) Any other personally identifying information that is not required to determine the income or financial status of the party. (4) CONFIDENTIALITY; FAILURE TO DISCLOSE. Information disclosed under this section is subject to s. 767.127 (3). A party who fails to furnish information required by the court under this section may be proceeded against for contempt of court under ch. 785. If the court finds that a party has failed to furnish information required under this section, the court may award to the party bringing the action costs and, notwithstanding s. 814.04 (1), reasonable attorney fees. History: 1977 c. 105; 1979 c. 32 s. 50; Stats. 1979 s. 767.263; 1989 a. 212; 1995 a. 279; 1997 a. 27, 191; 2001 a. 16; 2005 a. 443 ss. 113, 226; Stats. 2005 s. 767.58; 2013 a. 209; 2025 a. 82. NOTE: 2005 Wis. Act 443 contains explanatory notes.
767.59 Revision of support and maintenance orders. (1) DEFINITION. In this section, “support or maintenance order” means a judgment or order providing for child support under this chapter or s. 48.355 (2) (b) 4. or (4g) (a), 48.357 (5m) (a), 48.363 (2), 938.183 (4), 938.355 (2) (b) 4. or (4g) (a), 938.357 (5m) (a), 938.363 (2), or 948.22 (7), for maintenance payments under s. 767.56, for family support payments under s. 767.531, 2019 stats., or for the appointment of trustees or receivers under s. 767.57 (5). (1c) COURT AUTHORITY. (a) On the petition, motion, or order to show cause of either of the parties, the department, a county department under s. 46.215, 46.22, or 46.23, or a county child support agency under s. 59.53 (5) if an assignment has been made under s. 48.57 (3m) (b) 2. or (3n) (b) 2., 48.645 (3), 49.19 (4) (h), or 49.45 (19) or if either party or their minor children receive aid under s. 48.57 (3m) or (3n) or 48.645 or ch. 49, a court may, except as provided in par. (b), do any of the following: 1. Revise and alter a support or maintenance order as to the amount and payment of maintenance or child support and the appropriation and payment of the principal and income of property held in trust. 2. Make any judgment or order on any matter that the court might have made in the original action. (b) A court may not revise or modify a judgment or order that waives maintenance payments for either party or a judgment or order with respect to final division of property. (1f) SUPPORT: SUBSTANTIAL CHANGE IN CIRCUMSTANCES. (a) Except as provided in par. (d), a revision under this section of a judgment or order as to the amount of child or family support may be made only upon a finding of a substantial change in circumstances. (b) In an action under this section to revise a judgment or order with respect to the amount of child support, any of the following constitutes a rebuttable presumption of a substantial change in circumstances sufficient to justify a revision of the judgment or order: 1. Commencement of receipt of aid to families with depen-
May 22, 2026, are designated by NOTES. (Published 5-22-26)
39
Updated 23-24 Wis. Stats.
dent children under s. 49.19 or participation in Wisconsin works under ss. 49.141 to 49.161 by either parent since the entry of the last child support order, including a revision of a child support order under this section. 2. Unless the amount of child support is expressed in the judgment or order as a percentage of parental income, the expiration of 33 months after the date of the entry of the last child support order, including a revision of a child support order under this section. 3. Failure of the payer to furnish a timely disclosure under s. 767.54. 4. A difference between the amount of child support ordered by the court to be paid by the payer and the amount that the payer would have been required to pay based on the percentage standard established by the department under s. 49.22 (9) if the court did not use the percentage standard in determining the child support payments and did not provide the information required under s. 46.10 (14) (d), 49.345 (14) (d), 301.12 (14) (d), or 767.511 (1n), whichever is appropriate. (c) In an action under this section to revise a judgment or order with respect to an amount of child support, any of the following may constitute a substantial change of circumstances sufficient to justify revision of the judgment or order: 1. Unless the amount of child support is expressed in the judgment or order as a percentage of parental income, a change in the payer’s income, evidenced by information received under s. 49.22 (2m) by the department or the county child support agency under s. 59.53 (5) or by other information, from the payer’s income determined by the court in its most recent judgment or order for child support, including a revision of a child support order under this section. 2. A change in the needs of the child. 3. A change in the payer’s earning capacity. 4. Any other factor that the court determines is relevant. (d) In an action under this section to revise a judgment or order with respect to child or family support, the court is not required to make a finding of a substantial change in circumstances to change to a fixed sum the manner in which the amount of child or family support is expressed in the judgment or order. (1k) MAINTENANCE: CHANGE IN COST OF LIVING. In an action under this section to revise maintenance payments, a substantial change in the cost of living for either party or as measured by the federal bureau of labor statistics may be sufficient to support a revision of the amount of maintenance, except that a change in an obligor’s cost of living is not by itself sufficient if payments are expressed as a percentage of income. (1m) PAYMENT REVISIONS PROSPECTIVE. In an action under sub. (1c) to revise a judgment or order with respect to child support, maintenance payments, or family support payments, the court may not revise the amount of child support, maintenance payments, or family support payments due, or an amount of arrearages in child support, maintenance payments, or family support payments that has accrued, prior to the date that notice of the action is given to the respondent, except to correct previous errors in calculations. (1r) CREDIT TO PAYER FOR CERTAIN PAYMENTS. In an action under sub. (1c) to revise a judgment or order with respect to child support or family support, the court may grant credit to the payer against support due prior to the date on which the petition, motion, or order to show cause is served for payments made by the payer other than payments made as provided in s. 767.57 or 767.75, in any of the following circumstances: (b) The payer shows by documentary evidence that the payments were made directly to the payee by check or money order,
ACTIONS AFFECTING THE FAMILY
767.59
and shows by a preponderance of the evidence that the payments were intended for support and not intended as a gift to or on behalf of the child, or as some other voluntary expenditure, or for the payment of some other obligation to the payee. (c) The payer proves by clear and convincing evidence, with evidence of a written agreement, that the payee expressly agreed to accept the payments in lieu of child or family support paid as provided in s. 767.57 or 767.75, not including gifts or contributions for entertainment. (d) The payer proves by documentary evidence that, for a period during which unpaid support accrued, the child received benefits under 42 USC 402 (d) based on the payer’s entitlement to federal disability insurance benefits under 42 USC 401 to 433. Any credit granted under this paragraph shall be limited to the amount of unpaid support that accrued during the period for which the benefits under 42 USC 402 (d) were paid. (e) The payer proves by a preponderance of the evidence that the child lived with the payer, with the agreement of the payee, for more than 60 days beyond a court-ordered period of physical placement. Credit may not be granted under this paragraph if, with respect to the time that the child lived with the payer beyond the court-ordered period of physical placement, the payee sought to enforce the physical placement order through civil or criminal process or if the payee shows that the child’s relocation to the payer’s home was not mutually agreed to by both parents. (f) The payer proves by a preponderance of the evidence that the payer and payee resumed living together with the child and that, during the period for which a credit is sought, the payer directly supported the family by paying amounts at least equal to the amount of unpaid court-ordered support that accrued during that period. (2) PERCENTAGE STANDARD REQUIRED; EXCEPTIONS. (a) Except as provided in par. (b) or (c), if the court revises a judgment or order with respect to child support payments, it shall do so by using the percentage standard established by the department under s. 49.22 (9). (b) Upon request by a party, the court may modify the amount of revised child support payments determined under par. (a) if, after considering the factors listed in s. 767.511 (1m), the court finds, by the greater weight of the credible evidence, that the use of the percentage standard is unfair to the child or to any of the parties. (c) If the court revises a judgment or order providing for child support that was entered under s. 48.355 (2) (b) 4. or (4g) (a), 48.357 (5m) (a), 48.363 (2), 938.183 (4), 938.355 (2) (b) 4. or (4g) (a), 938.357 (5m) (a), or 938.363 (2), the court shall determine child support in the manner provided in s. 49.345 (14) or 301.12 (14), whichever is applicable. (2s) STIPULATION FOR REVISION OF SUPPORT. In an action under sub. (1c), the court may not approve a stipulation for the revision of a judgment or order with respect to an amount of child support or family support unless the stipulation provides for payment of an amount of child support or family support that is determined in the manner required under s. 46.10 (14), 49.345 (14), 301.12 (14), 767.511, 767.804 (3), 767.805 (4), or 767.89, whichever is appropriate. (2w) WHEN REVISION EFFECTIVE. A revision of a judgment or order with respect to child support, family support, or maintenance payments has the effect of modifying the original judgment or order with respect to the payments to the extent of the revision from the date on which the order revising the payments is effective. The child support, family support, or maintenance payments modified by the order for revision shall cease to accrue under the original judgment or order from the date on which the order revising the payments is effective.
May 22, 2026, are designated by NOTES. (Published 5-22-26)
767.59
ACTIONS AFFECTING THE FAMILY
(3) REMARRIAGE; VACATING MAINTENANCE ORDER. After a final judgment requiring maintenance payments has been rendered and the payee has remarried, the court shall, on application of the payer with notice to the payee and upon proof of the payee’s remarriage, or upon receiving notice from the payee of the payee’s remarriage, as required under s. 767.58 (1r) (c), vacate the order requiring the maintenance payments. (4) REVIEW WHEN THE STATE IS A REAL PARTY IN INTEREST. In any case in which the state is a real party in interest under s. 767.205 (2), the department shall review the support obligation periodically and, if appropriate, petition the court for revision of the judgment or order with respect to the support obligation. (5) NOTICE OF CHILD SUPPORT INFORMATION. A summons or petition, motion, or order to show cause under this section shall include notification of the availability of information under s. 767.105 (2). History: 1971 c. 220; 1977 c. 105 ss. 38, 48, 49; 1977 c. 418; 1979 c. 32 ss. 50, 92 (4); Stats. 1979 s. 767.32; 1981 c. 20 s. 2202 (20) (m); 1981 c. 314 s. 146; 1983 a. 27; 1985 a. 176; 1987 a. 27, 355, 413; 1989 a. 212; 1991 a. 39; 1993 a. 16, 481, 491; 1995 a. 27 s. 9126 (19); 1995 a. 77, 201, 225, 279, 289, 404, 417; 1997 a. 27, 35, 105, 191, 237, 273; 1999 a. 9, 103; 2001 a. 16, 61, 105; 2005 a. 443 ss. 147 to 159, 227, 228; Stats. 2005 s. 767.59; 2007 a. 20; 2013 a. 209; 2015 a. 373; 2019 a. 95; 2021 a. 35; 2025 a. 82. Cross-reference: See also Wisconsin Administrative Code Citations published in the Wisconsin Administrative Code for a list of citations to cases citing chs. DCF 150, HSS 80, HFS 80, and DWD 40, Wis. adm. code, the child support percentage of income standard. NOTE: The standard for modifying child support orders was significantly changed by 1993 Wis. Act 16. NOTE: 2005 Wis. Act 443 contains explanatory notes. Although one parent took the children out of the state without court approval or letting the other know where the children could be visited, the court could not suspend payment of a support allowance without a hearing as to the effect on the children. Krause v. Krause, 58 Wis. 2d 499, 206 N.W.2d 589 (1973). Even assuming the parties’ agreement as to child support gave rise to contractual obligations, these obligations remained subject to modification by the court under s. 247.32 [now this section]. Vaccaro v. Vaccaro, 67 Wis. 2d 477, 227 N.W.2d 62 (1975). While a divorced party owes no duty of sexual fidelity to the former spouse, cohabitation by the party can be a change of circumstances affecting the former spouse’s responsibility to provide alimony, with the manner and extent of the cohabitation and surrounding circumstances to be considered in determining whether alimony payments should be modified. Taake v. Taake, 70 Wis. 2d 115, 233 N.W.2d 449 (1975). A child support provision reducing payments proportionately as each of several minor children attains majority is not against public policy. Severson v. Severson, 71 Wis. 2d 382, 238 N.W.2d 116 (1976). The trial court abused its discretion in denying the former husband’s motion to terminate alimony by failing to consider the former wife’s increased estate as the result of an inheritance. Lemm v. Lemm, 72 Wis. 2d 457, 241 N.W.2d 593 (1976). The trial court abused its discretion by terminating maintenance without sufficiently addressing the factors under s. 767.26 [now s. 767.56]. Vander Perren v. Vander Perren, 105 Wis. 2d 219, 313 N.W.2d 813 (1982). It was improper to discontinue maintenance payments to a former spouse solely upon the ground of cohabitation. Van Gorder v. Van Gorder, 110 Wis. 2d 188, 327 N.W.2d 674 (1983). When a stipulation required maintenance payments during the wife’s lifetime, the husband was estopped from requesting termination of payments under s. 767.32 (3) [now sub. (3)] when the wife remarried. Rintelman v. Rintelman, 118 Wis. 2d 587, 348 N.W.2d 498 (1984). A court may revise a judgment incorporating a stipulation regarding limited maintenance if the petition to revise is filed before expiration of a maintenance obligation. Fobes v. Fobes, 124 Wis. 2d 72, 368 N.W.2d 643 (1985). A petition for revision filed 20 days after receipt of the final scheduled maintenance payment was properly dismissed as untimely. Lippstreu v. Lippstreu, 125 Wis. 2d 415, 373 N.W.2d 53 (Ct. App. 1985). A state family court may modify the paying spouse’s support obligation following the spouse’s discharge in bankruptcy. Eckert v. Eckert, 144 Wis. 2d 770, 424 N.W.2d 759 (Ct. App. 1988). Orders assigning health care responsibility pursuant to s. 767.25 (4m) [now s. 767.513] are subject to revision under s. 767.32 [now this section]. Kuchenbecker v. Schultz, 151 Wis. 2d 868, 447 N.W.2d 80 (Ct. App. 1989). It is within a trial court’s discretion to apply the percentage standards to a child support revision. If applied to a remarried parent, gross income must be computed as if the remarried parent is still single. The trial court retains discretion to adjust the percentage calculation based on the circumstances. Abitz v. Abitz, 155 Wis. 2d 161, 455 N.W.2d 609 (1990). A remarriage, though unlawful in Wisconsin and dissolved through annulment, is sufficient to terminate maintenance under s. 767.32 (3) [now sub. (3)]. The requirement that maintenance be terminated following remarriage is unconditional. Falk v. Falk, 158 Wis. 2d 184, 462 N.W.2d 547 (Ct. App. 1990). A divorce stipulation waiving or setting a ceiling on child support and preventing modification is against public policy and will not be enforced. Ondrasek v. Tenneson, 158 Wis. 2d 690, 462 N.W.2d 915 (Ct. App. 1990).
Updated 23-24 Wis. Stats.
40
A party is estopped from seeking a maintenance revision if the parties stipulated to permanent nonmodifiable maintenance that was part of a comprehensive settlement of all property and maintenance issues that was approved by the court and was fair and not illegal or against public policy at the time and relief is being sought on the grounds that the court did not have power to enter the order the parties had agreed to. Nichols v. Nichols, 162 Wis. 2d 96, 469 N.W.2d 619 (1991). A divorce judgment provision waiving maintenance takes precedence over other provisions arguably reserving or awarding maintenance. Tyson v. Tyson, 162 Wis. 2d 551, 469 N.W.2d 913 (Ct. App. 1991). In determining income for maintenance revision, investment income from property awarded in an equal property division may be included. Interest payments to the payee spouse under the division may not be deducted. Hommel v. Hommel, 162 Wis. 2d 782, 471 N.W.2d 1 (1991). Lottery proceeds won after a divorce may be considered a change in financial circumstances in determining whether a change in maintenance is justified. A maintenance award is to assure the recipient spouse a standard of living comparable to that enjoyed during the marriage. Gerrits v. Gerrits, 167 Wis. 2d 429, 482 N.W.2d 134 (Ct. App. 1992). The absence of a mortgage obligation is relevant to the assessment of a party’s economic circumstances, but does not translate into imputed income under the applicable administrative rule. Zimmerman v. Zimmerman, 169 Wis. 2d 516, 485 N.W.2d 294 (Ct. App. 1992). When a paying spouse’s termination of employment is voluntary, an order may be based on the spouse’s earning capacity whether or not bad faith is shown. Roberts v. Roberts, 173 Wis. 2d 406, 496 N.W.2d 210 (Ct. App. 1992). A paying spouse should be allowed a fair choice of livelihood even though an income reduction may result, but the spouse may be found to be shirking if the choice is not reasonable in light of the payer’s support obligation. Van Offeren v. Van Offeren, 173 Wis. 2d 482, 496 N.W.2d 660 (Ct. App. 1992). The parties’ extrajudicial agreement that child support payments be discontinued was enforceable via the doctrine of equitable estoppel. Harms v. Harms, 174 Wis. 2d 780, 498 N.W.2d 229 (1993). But see Monicken v. Monicken, 226 Wis. 2d 119, 593 N.W.2d 509 (Ct. App. 1999), 98-2922. The date when a maintenance order is vacated under s. 767.32 (3) [now sub. (3)] is a discretionary determination based on the specific facts and equities of the case. Hansen v. Hansen, 176 Wis. 2d 327, 500 N.W.2d 357 (Ct. App. 1993). In the absence of a specific agreement that maintenance payments continue after the payee’s remarriage, the payer was not estopped from seeking termination upon the payee’s remarriage. Jacobson v. Jacobson, 177 Wis. 2d 539, 502 N.W.2d 869 (Ct. App. 1993). An agreement that the husband would complete his education when the wife completed hers and the wife’s increased income upon completion of her education were both relevant to the husband’s request for a change in support upon returning to graduate school full time. Kelly v. Hougham, 178 Wis. 2d 546, 504 N.W.2d 440 (Ct. App. 1993). When a broadly worded settlement agreement required the payer to meet the children’s current and changing needs rather than to pay a set amount or percentage, a change in the children’s needs, although a change in circumstances, did not require a modification of child support to impose percentage guidelines when the court found those needs were being met. Jacquart v. Jacquart, 183 Wis. 2d 372, 515 N.W.2d 539 (Ct. App. 1994). Unlike an initial award of maintenance, a party seeking to change maintenance has the burden of proof. Haeuser v. Haeuser, 200 Wis. 2d 750, 548 N.W.2d 535 (Ct. App. 1996), 95-1087. Under s. 767.32 (1r) [now sub. (1r)], a court is without discretion to grant credits against arrearages for direct payments made for child support regardless of when the order was entered. Douglas County Child Support Enforcement Unit v. Fisher, 200 Wis. 2d 807, 547 N.W.2d 801 (Ct. App. 1996), 95-1960. A change in an administrative rule, absent a change in factual circumstances, is not grounds for modification of a child support order. Beaupre v. Airriess, 208 Wis. 2d 238, 560 N.W.2d 285 (Ct. App. 1997), 96-0336. When a support order is not based on the percentage standards, the passage of 33 months gives a party a prima facie claim under s. 767.32 (1) (b) 2. [now sub. (1f) (b) 2.] that child support should be modified, but the family court maintains its discretion whether the percentage guidelines should be applied. Zutz v. Zutz, 208 Wis. 2d 338, 559 N.W.2d 919 (Ct. App. 1997), 96-1136. A stipulation incorporated into a divorce judgment is in the nature of a contract. That a stipulation appears imprudent is not grounds for construction of an unambiguous agreement. Rosplock v. Rosplock, 217 Wis. 2d 22, 577 N.W.2d 32 (Ct. App. 1998), 96-3522. The purpose of maintenance is, at least in part, to put the recipient in a solid financial position that allows the recipient to become self-supporting by the end of the maintenance period. That the recipient becomes employed and makes productive investments of property division proceeds and maintenance payments is not a substantial change in circumstances, but an expected result of receiving maintenance. Rosplock v. Rosplock, 217 Wis. 2d 22, 577 N.W.2d 32 (Ct. App. 1998), 96-3522. The limitation under s. 767.32 (1m) [now sub. (1m)] that a court may not revise the amount of child support due or the amount of arrearages restricts the court’s authority to that of correcting mathematical errors only. State v. Jeffrie C.B., 218 Wis. 2d 145, 579 N.W.2d 69 (Ct. App. 1998), 97-2453. Section 767.32 (1r) [now sub. (1r)] modifies the common law. A court may grant credit for support payments not made in accordance with a judgment only under the circumstances enumerated under s. 767.32 (1r) [now sub. (1r)]. Equitable estoppel does not apply. Monicken v. Monicken, 226 Wis. 2d 119, 593 N.W.2d 509 (Ct. App. 1999), 98-2922. Once the court determined that a reduction in support was warranted, even though the reduction was based on a finding that the payment level was inequitable and not that the payer had an inability to pay, the court did not have authority to condition that reduction on payment of arrearages. Benn v. Benn, 230 Wis. 2d 301, 602 N.W.2d 65 (Ct. App. 1999), 98-2950.
May 22, 2026, are designated by NOTES. (Published 5-22-26)
41
Updated 23-24 Wis. Stats.
If a motion seeks to clarify a court’s ambiguous property division rather than revise or modify it, it is not barred by former sub. (1) (a), 1997 stats. Section 767.01 (1) [now s. 767.201] grants the power to effectuate a divorce judgment by construing an ambiguous provision of a final division of property. Washington v. Washington, 2000 WI 47, 234 Wis. 2d 689, 611 N.W.2d 261, 98-1234. Equitable estoppel does not apply to prevent modification of a stipulation for nonmodifiable maintenance if at the time that the stipulation was entered into it violated public policy because it indefinitely burdened only one party with the entire risk of financial hardship. Patrickus v. Patrickus, 2000 WI App 255, 239 Wis. 2d 340, 620 N.W.2d 205, 99-3315. Mere silence regarding whether interest was owed on a specified sum to be paid over time did not render a judgment ambiguous. Hutjens v. Hutjens, 2002 WI App 162, 256 Wis. 2d 255, 647 N.W.2d 448, 01-3061. Incarceration is a change in circumstance sufficient to give a court competence to review a child support order but should not be the sole determinative factor. Consideration of the nature of the criminal conduct is appropriate for an overall evaluation of the parent’s behavior as it relates to ability and attitude toward paying child support. Rottscheit v. Dumler, 2003 WI 62, 262 Wis. 2d 292, 664 N.W.2d 525, 012213. The test for a substantial change in circumstances is the same whether the issue of maintenance was originally stipulated to or contested. The correct test regarding modification considers fairness to both parties under all circumstances, not whether it is unjust or inequitable to alter the original award. A judge who reviews a request to modify a maintenance award should adhere to the findings of fact made by the circuit court. Education expenses for an adult child do not have to be considered by the modifying court when examining a party’s budget, but can be. Rohde-Giovanni v. Baumgart, 2004 WI 27, 269 Wis. 2d 598, 676 N.W.2d 452, 01-3014. A trial court’s decision to deny an extension of maintenance, including deciding whether there is a substantial change in circumstances, is a discretionary decision. The trial court’s decision on a substantial change in circumstances is upheld if there is a reasonable basis in the record for the trial court’s decision. Cashin v. Cashin, 2004 WI App 92, 273 Wis. 2d 754, 681 N.W.2d 255, 03-1010. During a maintenance modification proceeding, the appropriate comparison for any change in the parties’ financial circumstances is to the facts that existed at the time of the most recent maintenance order, whether in the original divorce judgment or a subsequent modification. Neither issue nor claims preclusion applies to a maintenance modification proceeding after a court has found the parties’ financial circumstances to be substantially changed. Once a party has demonstrated a substantial change since the time of the operative maintenance award, a maintenance modification proceeding does not present the same issues or claims that were originally litigated. Kenyon v. Kenyon, 2004 WI 147, 277 Wis. 2d 47, 690 N.W.2d 251, 023041. Retroactive applications of s.767.32 (1m) and (1r) [now subs. (1m) and (1r)] do not violate due process. Retroactive applications serve significant public purposes, while remedying general social and economic issues. Barbara B. v. Dorian H., 2005 WI 6, 277 Wis. 2d 378, 690 N.W.2d 849, 03-1877. In shirking cases, when considering a spouse’s conduct in voluntarily reducing the spouse’s income, a court applies a test of reasonableness under the circumstances, balancing the needs of the parents and the needs of the child, both financial and otherwise, like child care and the ability of both parents to pay child support. Furthermore, under s. 767.25 (1m) (d) and (e) [now s. 767.511 (1m) (d) and (e)] after considering the listed economic factors, the desirability that the custodian remain in the home as a full-time parent, and the value of custodial services performed by the custodian if the custodian remains at home, the court may conclude that the percentage standard is unfair to the child or to any of the parties. Chen v. Warner, 2005 WI 55, 280 Wis. 2d 344, 695 N.W.2d 758, 03-0288. Generally, a final division of property is fixed for all time and is not subject to modification. Section 806.07 is applicable to divorce cases, but permits reopening of final judgments only in extraordinary circumstances. Post-divorce employer modification of a pension, years after a divorce, that was thoroughly negotiated and divided at the time of the divorce does not compel reopening the divorce judgment. Winkler v. Winkler, 2005 WI App 100, 282 Wis. 2d 746, 699 N.W.2d 652, 04-1231. Section 767.32 (1r) (d) [now sub. (1r) (d)] should not be construed to bar credit in a situation when a child support payor has made all requisite support payments. Paulhe v. Riley, 2006 WI App 171, 295 Wis. 2d 541, 722 N.W.2d 155, 05-2487. A provision providing that neither parent could request a change in the amount of child support payments for a period of at least seven years from the date of the judgment entered, except in catastrophic circumstances, was unenforceable. As is implicit from Ondrasek, 158 Wis. 2d 690 (1990), a marital settlement agreement entered into by divorcing parties that purports to limit in any way a child support payee’s ability to seek a support modification upon a substantial change in circumstances is against public policy; it thus cannot provide a basis to estop the payee from seeking a modification. Ondrasek is not limited to unilateral waivers of a payee’s right to obtain increased child support. Wood v. Propeck, 2007 WI App 24, 299 Wis. 2d 470, 728 N.W.2d 757, 05-2674. A stipulation to make future support unmodifiable in the event of a placement change is against public policy and void. Motte v. Motte, 2007 WI App 111, 300 Wis. 2d 621, 731 N.W.2d 294, 05-2776. While prohibiting the court from reducing arrearages, s. 767.32 (1m) [now sub. (1m)] does not prevent the parties from compromising or waiving them subject to court approval. Section 767.32 (1m) [now sub. (1m)] applies in the case of an adversarial proceeding under this statute, and not to a court-approved joint stipulation. Motte v. Motte, 2007 WI App 111, 300 Wis. 2d 621, 731 N.W.2d 294, 05-2776. A stipulation that sets a ceiling and bars any change in the maximum amount of child support defeats the statutory goal of providing for the child’s best interests as parents are precluded from seeking a modification of an amount necessary for the child’s best interests and is unenforceable and contrary to public policy. Frisch v. Henrichs, 2007 WI 102, 304 Wis. 2d 1, 736 N.W.2d 85, 05-0534. To invoke equitable estoppel against a party seeking relief from a provision of a stipulation, the party must show: 1) that both parties entered into the stipulation freely and knowingly; 2) that the overall settlement is fair and equitable and not illegal or against public policy; and 3) that one party subsequently seeks to be released
ACTIONS AFFECTING THE FAMILY
767.61
from its terms on the grounds that the court could not have entered the order it did without the parties’ agreement. A four-year prohibition preventing a payer from seeking a child support review for any reason contravened public policy and was unenforceable. Jalovec v. Jalovec, 2007 WI App 206, 305 Wis. 2d 467, 739 N.W.2d 834, 06-1872. One shorthand definition for a substantial change in circumstances is that it is some unforeseen event that occurs after an agreement has been executed. Jalovec v. Jalovec, 2007 WI App 206, 305 Wis. 2d 467, 739 N.W.2d 834, 06-1872. There is no basis upon which a trial court can reduce that support owed to a payor spouse’s marital child based on nonchild-support amounts paid to the payee spouse’s nonmarital child. However, the benefit received by the nonmarital child for amounts received from the payor spouse would be appropriately accounted for in the maintenance award or property division. Ladwig v. Ladwig, 2010 WI App 78, 325 Wis. 2d 497, 785 N.W.2d 664, 09-1202. Maintenance may be awarded after the death of the payor if the parties expressly agree by stipulation. When the judgment provided that “maintenance shall terminate on August 25, 2014 and said maintenance payments shall not be modifiable in either duration or amount under any circumstance, and, further, shall not be subject to revision as provided for in s. 767.32 [now this section],” the language was unambiguous in precluding modification in any circumstance, including death. Wagner v. Estate of Sobczak, 2011 WI App 159, 338 Wis. 2d 92, 808 N.W.2d 167, 10-2863. There exists a framework governing child support stipulations and orders: 1) ceilings on child support payments are presumed to be invalid; 2) an unmodifiable floor on child support payments that is not limited in duration or that has an excessively long duration may violate public policy; 3) when the parties have entered into a stipulation for a limited period of time that the court has adopted, courts will attempt to give effect to the parties’ intentions when the stipulation was entered into freely and knowingly, was fair and equitable when entered into, and is not illegal or violative of public policy; 4) courts retain the equitable power to consider circumstances in existence when the stipulation is challenged that were unforeseen by the parties when they entered into the stipulation if those circumstances adversely affect the best interests of the child. May v. May, 2012 WI 35, 339 Wis. 2d 626, 813 N.W.2d 179, 100177. Sub. (1f) (b) 2.’s rebuttable presumption that arises at 33 months represents what the legislature has determined is a reasonable time to reconsider support. Beyond the legislature’s rebuttable presumption of 33 months, case law suggests that stipulations lasting more than four years could be too lengthy. So too, stipulations that are not related to a point in time that reasonably would support a reevaluation of the parties’ support obligations and needs may not meet with the approval of the circuit court. May v. May, 2012 WI 35, 339 Wis. 2d 626, 813 N.W.2d 179, 10-0177. In shirking cases, there is only one standard, based on reasonableness under the circumstances. There is not a different test when the parent was involuntarily terminated from employment. The reasonableness standard applies to all employment decisions made by a parent, regardless of the circumstances that led to the making of those decisions. In the event of involuntary termination, the focus is on the employee’s employment decisions subsequent to termination and those decisions are subjected to the test of reasonableness under the circumstances. Becker v. Becker, 2014 WI App 76, 355 Wis. 2d 529, 851 N.W.2d 816, 13-1481. Under sub. (1m), a payment modification order is prospective only. This means that a court cannot, on the basis of one child’s having reached the age of majority, refund or credit child support payments made prior to notice being given in an action to modify an ongoing support obligation. Zimmer v. Zimmer, 2021 WI App 40, 398 Wis. 2d 586, 961 N.W.2d 898, 20-0919. Sub. (1r) (e) does not require the payer of child support to exercise placement for a period of 60 “consecutive” days in order to be eligible for a child support credit. Rose v. Rose, 2024 WI App 64, 414 Wis. 2d 305, 14 N.W.3d 707, 24-0381.
SUBCHAPTER VII PROPERTY DIVISION 767.61 Property division. (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
May 22, 2026, are designated by NOTES. (Published 5-22-26)
767.61
ACTIONS AFFECTING THE FAMILY
on the children of the marriage. If the court makes such a finding, the court may divest the party of the property in a fair and equitable manner. (3) PRESUMPTION OF EQUAL DIVISION. The court shall presume that all property not described in sub. (2) (a) is to be divided equally between the parties, but may alter this distribution without regard to marital misconduct after considering all of the following: (a) The length of the marriage. (b) The property brought to the marriage by each party. (c) Whether one of the parties has substantial assets not subject to division by the court. (d) The contribution of each party to the marriage, giving appropriate economic value to each party’s contribution in homemaking and child care services. (e) The age and physical and emotional health of the parties. (f) The contribution by one party to the education, training or increased earning power of the other. (g) The earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage. (h) The desirability of awarding the family home or the right to live therein for a reasonable period to the party having physical placement for the greater period of time. (i) The amount and duration of an order under s. 767.56 granting maintenance payments to either party, any order for periodic family support payments under s. 767.531, 2019 stats., and whether the property division is in lieu of such payments. (j) Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests. (k) The tax consequences to each party. (L) Any written agreement made by the parties before or during the marriage concerning any arrangement for property distribution; such agreements shall be binding upon the court except that no such agreement shall be binding where the terms of the agreement are inequitable as to either party. The court shall presume any such agreement to be equitable as to both parties. (m) Such other factors as the court may in each individual case determine to be relevant. (4) SEPARATE FUND OR TRUST OPTION. In dividing the property of the parties under this section, the court may protect and promote the best interests of a child of the parties described under s. 767.511 (4) by setting aside a portion of the property in a separate fund or trust for the support, maintenance, education, and general welfare of the child. (5) RELATED PROVISIONS OF JUDGMENT. In a judgment described under sub. (1), the court shall do all of the following: (a) Direct that title to the property of the parties be transferred as necessary, in accordance with the division of property set forth in the judgment. (b) Include all of the following in the judgment: 1. Notification that it may be necessary for the parties to take additional actions in order to transfer interests in their property in accordance with the division of property set forth in the judgment, including such interests as interests in real property, interests in retirement benefits, and contractual interests. 2. Notification that the judgment does not necessarily affect the ability of a creditor to proceed against a party or against that
Updated 23-24 Wis. Stats.
42
party’s property even though the party is not responsible for the debt under the terms of the judgment. 3. Notification that an instrument executed by a party before the judgment naming the other party as a beneficiary is not necessarily affected by the judgment and it may be necessary to revise the instrument if a change in beneficiary is desired. (6) RECORDING JUDGMENT AFFECTING REAL PROPERTY SUFFICIENT. A certified copy of the portion of the judgment affecting title to real property, or a deed consistent with the judgment, shall be recorded in the office of the register of deeds of the county in which the real property is located. History: 1977 c. 105; 1979 c. 32 ss. 50, 92 (4); 1979 c. 196; Stats. 1979 s. 767.255; 1983 a. 186; 1985 a. 37; 1987 a. 355; 1993 a. 422; 2005 a. 443 ss. 109, 231, 232; Stats. 2005 s. 767.61; 2021 a. 35. NOTE: See notes in 1985 Wis. Act 37, marital property trailer bill. NOTE: 2005 Wis. Act 443 contains explanatory notes. Accounts receivable of a medical clinic in which the husband was a partner were properly viewed by the trial court as salary. Johnson v. Johnson, 78 Wis. 2d 137, 254 N.W.2d 198 (1977). A veteran disability pension is to be considered as earned income and not as an asset to be divided between the parties. Leighton v. Leighton, 81 Wis. 2d 620, 261 N.W.2d 457 (1978). There are at least three methods for valuing pension rights. Whether the use of any method is appropriate depends upon the status of the parties and whether the result is a reasonable valuation of the marital asset. Bloomer v. Bloomer, 84 Wis. 2d 124, 267 N.W.2d 235 (1978). Support of stepchildren is a relevant factor in dividing marital property. Fuerst v. Fuerst, 93 Wis. 2d 121, 286 N.W.2d 861 (Ct. App. 1979). Compensation for a person who supported a spouse while the spouse was in school can be achieved through both property division and maintenance payments. Lundberg v. Lundberg, 107 Wis. 2d 1, 318 N.W.2d 918 (1982). A federal pension in lieu of social security must be included in a marital property division. Mack v. Mack, 108 Wis. 2d 604, 323 N.W.2d 153 (Ct. App. 1982). Unless a divorce decree specifically terminates a spouse as the beneficiary of a life insurance policy and the insurance company is notified, the spouse’s beneficiary status is not affected by the divorce decree. Bersch v. VanKleeck, 112 Wis. 2d 594, 334 N.W.2d 114 (1983). The trial court may consider a cross-purchase formula in a partnership agreement in determining the value of the partnership interest, including professional goodwill. Lewis v. Lewis, 113 Wis. 2d 172, 336 N.W.2d 171 (Ct. App. 1983). A lien on real estate awarded in a divorce judgment was a mortgage, not a judgment lien, even though the term “mortgage” was not used in the court order. Wozniak v. Wozniak, 121 Wis. 2d 330, 359 N.W.2d 147 (1984). This section does not require a judge to terminate a joint tenancy. Lutzke v. Lutzke, 122 Wis. 2d 24, 361 N.W.2d 640 (1985). The use of gift money to buy a home as joint tenants changed the character of the money from separate property to marital property. Weiss v. Weiss, 122 Wis. 2d 688, 365 N.W.2d 608 (Ct. App. 1985). See also Zirngibl v. Zirngibl, 165 Wis. 2d 130, 477 N.W.2d 637 (Ct. App. 1991). A prenuptial agreement entered into prior to the adoption of sub. (11) [now sub. (3) (L)] was enforceable in a subsequent divorce. Hengel v. Hengel, 122 Wis. 2d 737, 365 N.W.2d 16 (Ct. App. 1985). A premarital agreement intended to apply at death was not applicable to a divorce. Levy v. Levy, 130 Wis. 2d 523, 388 N.W.2d 170 (1986). Discussing whether property agreements are inequitable under sub. (11) [now sub. (3) (L)]. Button v. Button, 131 Wis. 2d 84, 388 N.W.2d 546 (1986). A premarital agreement was inequitable because the parties did not fairly and reasonably disclose assets or have independent knowledge of one another’s financial status. Schumacher v. Schumacher, 131 Wis. 2d 332, 388 N.W.2d 912 (1986). A personal injury claim for medical malpractice is property subject to division. Richardson v. Richardson, 139 Wis. 2d 778, 407 N.W.2d 231 (1987). The trial court may consider the former inherited status of divisible property although it has lost its exempt status through commingling. Schwartz v. Linders, 145 Wis. 2d 258, 426 N.W.2d 97 (Ct. App. 1988). Increase in the value of inherited property attributable to the non-owning spouse’s efforts is divisible property. It is not necessary for the non-owning spouse to show that a failure to divide the asset will result in a hardship to the non-owning spouse. Haldemann v. Haldemann, 145 Wis. 2d 296, 426 N.W.2d 107 (Ct. App. 1988). Chapter 766, the Marital Property Act, does not supplant the divorce property division provisions of this chapter. Kuhlman v. Kuhlman, 146 Wis. 2d 588, 432 N.W.2d 295 (Ct. App. 1988). Gifted and inherited property is subject to division in cases of hardship. A party seeking division bears the burden of showing that failure to divide will result in financial privation. Popp v. Popp, 146 Wis. 2d 778, 432 N.W.2d 600 (Ct. App. 1988). A presumption exists that an injured party is entitled to all future payments under a structured settlement, but the payments are subject to the factors under s. 767.255 [now this section]. Krebs v. Krebs, 148 Wis. 2d 51, 435 N.W.2d 240 (1989). A property division may be modified under s. 806.07. However the supremacy clause prevents a division to be modified after a debt thereunder is discharged in bankruptcy. Spankowski v. Spankowski, 172 Wis. 2d 285, 493 N.W.2d 737 (Ct. App. 1992). When gifted or inherited property has appreciated in value during the marriage due to the efforts of both spouses, the appreciation is a part of the marital estate. Schorer v. Schorer, 177 Wis. 2d 387, 501 N.W.2d 916 (Ct. App. 1993).
May 22, 2026, are designated by NOTES. (Published 5-22-26)
43
Updated 23-24 Wis. Stats.
Determining fair market value of a closely-held corporation turns on the credibility of the experts as well as the methods and analyses employed by the witness. Schorer v. Schorer, 177 Wis. 2d 387, 501 N.W.2d 916 (Ct. App. 1993). A buy-sell agreement may provide a method for determining the value of an interest in a partnership, but does not as a matter of law establish the value. Sharon v. Sharon, 178 Wis. 2d 481, 504 N.W.2d 415 (Ct. App. 1993). Accounts receivable may be excluded from the marital estate if evidence indicates there is a link between the receivables and salary and that dividing the receivables would adversely affect the ability to pay support or maintain professional or personal obligations. Sharon v. Sharon, 178 Wis. 2d 481, 504 N.W.2d 415 (Ct. App. 1993). While income from gifted property is subject to division, trust income received by a beneficiary with only a future interest in the trust corpus is a gift itself, not income from a gift, and not subject to division. Friebel v. Friebel, 181 Wis. 2d 285, 510 N.W.2d 767 (Ct. App. 1993). A divorce decree that awarded one-half of the husband’s pension to the wife divested the husband of that half interest. Although the husband had failed to effectuate the transfer as required by the divorce decree, the wife’s half interest was not an asset in the husband’s bankruptcy estate and there was no dischargeable debt to the wife. Dewey v. Dewey, 188 Wis. 2d 271, 525 N.W.2d 85 (Ct. App. 1994). Hardship under sub. (2) (b) and “privation” under Popp, 146 Wis.2d 778 (1988), requires something more than an inability to continue living at a predivorce standard. Fair and equitable is not the standard for including gifted and inherited property in a division. Doerr v. Doerr, 189 Wis. 2d 112, 525 N.W.2d 745 (Ct. App. 1994). The offspring of gifted or inherited animals are not excluded from division by this section. If an asset no longer exists, a court cannot exclude it from the marital estate. Preuss v. Preuss, 195 Wis. 2d 95, 536 N.W.2d 101 (Ct. App. 1995), 94-1148. Bonuses and fees, like regular income, are not divisible as property but are to be considered in determining a fair division or maintenance. Long v. Long, 196 Wis. 2d 691, 539 N.W.2d 462 (Ct. App. 1995), 94-2533. The marital estate is usually valued as of the date of divorce, but when conditions over which a party has no control arise, the special circumstances may warrant deviation from the rule. Long v. Long, 196 Wis. 2d 691, 539 N.W.2d 462 (Ct. App. 1995), 94-2533. For the character of inherited or gifted property to be changed to marital property subject to division, changes to the property as a result of the marital relationship, whether by labor or expenditures, must substantially increase its value. Spindler v. Spindler, 207 Wis. 2d 327, 558 N.W.2d 645 (Ct. App. 1996), 96-0591. An uneven property division is not the only remedy to deal with squandering of marital assets. Equitable claims against third parties that affect the rights of parties to the divorce, such as a claim against a third-party title holder of property claimed to actually be part of the marital estate, may be appropriate. Zabel v. Zabel, 210 Wis. 2d 336, 565 N.W.2d 240 (Ct. App. 1997), 96-3092. Income generated by an asset is separate and distinct from the asset itself. Income from the asset is also separate from the appreciation of the asset. As to property division, retained earnings, or the appreciation in value occasioned by the expenditure of the earnings, are a marital asset subject to division. Metz v. Keener, 215 Wis. 2d 626, 573 N.W.2d 865 (Ct. App. 1997), 97-1443. Appellate review of a trial court’s valuation of a closely-held business in a divorce action should proceed on the clearly erroneous standard. When the buyout provisions of a shareholder agreement did not replicate an arm’s length transaction it was reasonable for the trial court to find that the buyout figure was not indicative of fair market value. Siker v. Siker, 225 Wis. 2d 522, 593 N.W.2d 830 (Ct. App. 1999), 980553. There are two types of postnuptial agreements: 1) family settlement agreements that contemplate the continuation of the marriage; and 2) separation agreements that are made after separation in contemplation of a separation. The former are presumed to be binding on the parties under s. 767.255 (3) (L) [now sub. (3) (L)]. The latter are governed by s. 767.10 [now s. 767.34] and constitute a recommendation jointly made by the parties to the court regarding what the judgment should provide. Evenson v. Evenson, 228 Wis. 2d 676, 598 N.W.2d 232 (Ct. App. 1999), 98-0803. See also Van Boxtel v. Van Boxtel, 2001 WI 40, 242 Wis. 2d 474, 625 N.W.2d 284, 99-0341. An agreement made in contemplation of divorce, entered into after the parties agreed to the divorce, was subject to s. 767.10 [now s. 767.34], not s. 767.255 [now this section]. When a party withdrew the party’s consent before court approval, the agreement was unenforceable. Ayres v. Ayres, 230 Wis. 2d 431, 602 N.W.2d 132 (Ct. App. 1999), 98-3450. A spouse’s pension, whether or not existing before the marriage, is part of the marital estate subject to division. Award of the premarital portion of a pension to the spouse holding title was improper when there was not sufficient grounds for deviation from an equal property division. Hokin v. Hokin, 231 Wis. 2d 184, 605 N.W.2d 219 (Ct. App. 1999), 98-3680. The fact that a property interest is contingent and not vested does not mean that it may be ignored in a property division. An insurance company deferred compensation plan for agents, although not a pension plan, was similar enough to a pension to be treated like one when dividing the marital estate. Garceau v. Garceau, 2000 WI App 7, 232 Wis. 2d 1, 606 N.W.2d 268, 98-3241. If property has no fair market value, the court cannot place an independent value upon it, and it should not be included in the marital estate. A state employee’s sick leave account has no fair market value as it has no cash value and is not transferable. Preiss v. Preiss, 2000 WI App 185, 238 Wis. 2d 368, 617 N.W.2d 514, 99-3261. Section 40.08 (1) does not permit the division of a state employee’s deferred compensation account. Preiss v. Preiss, 2000 WI App 185, 238 Wis. 2d 368, 617 N.W.2d 514, 99-3261. When a farm that a divorcing couple did not own but had lived on for the first 13
ACTIONS AFFECTING THE FAMILY
767.61
years of their marriage was gifted to one spouse and the couple divorced shortly thereafter, the trial court erred when it determined the farm’s increase in value after the gift resulted from the efforts of the marital partnership without considering whether the couple’s efforts throughout the marriage served as a catalyst for the increase in value. Richmond v. Richmond, 2002 WI App 25, 250 Wis. 2d 647, 640 N.W.2d 220, 01-1064. In agreeing to accept a percentage share of a variable asset in a property settlement, a party agrees to assume a proportionate share of any subsequent gains or losses until the asset is liquidated. Taylor v. Taylor, 2002 WI App 253, 258 Wis. 2d 290, 653 N.W.2d 524, 02-0118. An unequal division of an asset based entirely upon an analysis of the parties’ respective contributions to the marriage without addressing any of the other statutory factors applied an incorrect standard of law. Sub. (3) requires that any deviation from the presumptive equal property division be upon consideration of all statutory factors. The court may summarily conclude that certain of the factors are irrelevant, and failure to consider all the statutory factors might be harmless, particularly when the overlooked factors are only marginally relevant or not relevant at all. LeMere v. LeMere, 2003 WI 67, 262 Wis. 2d 426, 663 N.W.2d 789, 01-2204. When there was no dispute that the parties intended to divide the value of pensions equally as of the time of the divorce, but were not able to identify a legal mechanism at the time to do so, the circuit court could impose a constructive trust on the pensions when the titled spouse died and the benefits were payable only to the titled spouse’s subsequent spouse. Sulzer v. Diedrich, 2003 WI 90, 263 Wis. 2d 496, 664 N.W.2d 641, 02-0036. The circuit court’s determination of inequity under sub. (3) (L), as is its property division determination under s. 767.255 [now this section], is discretionary. The record in this case supported a finding that enforcing the parties’ prenuptial agreement was inequitable. Krejci v. Krejci, 2003 WI App 160, 266 Wis. 2d 284, 667 N.W.2d 780, 02-3376. A creditor’s right to reach property subject to division in a divorce is not determined by this section but is driven solely by the classification into which the obligation falls under s. 766.55. Sokaogon Gaming Enterprise v. Curda-Derickson, 2003 WI App 167, 266 Wis. 2d 453, 668 N.W.2d 736, 02-0924. Section 802.12 (3) (c) cannot limit a circuit court’s power to consider the equity of agreements. However, circuit courts must give greater deference to an arbiter’s award of a property division under s. 802.13 (3) (c) than they would to other types of agreements. Franke v. Franke, 2004 WI 8, 268 Wis. 2d 360, 674 N.W.2d 832, 013316. A stock option contract, like an unvested pension, is not a mere gratuity, but an enforceable contract right. It is an economic resource, comparable to pensions and other employee benefits, and thus a form of property. The trial court did not misuse its discretion by declining to divide vested stock options that had an exercise price in excess of the current market value of the stock or in valuing the vested portion of stock options at the difference between the market value of the stock and the exercise value. Maritato v. Maritato, 2004 WI App 138, 275 Wis. 2d 252, 685 N.W.2d 379, 03-2074. Although under Preiss, 2000 WI App 185, sick leave accounts are non-divisible property because they cannot be sold or transferred and, therefore, have no fair market value, a sick leave account does have value to the owner and may be a consideration under sub. (3) (j) to justify deviation from an equal property division. Steiner v. Steiner, 2004 WI App 169, 276 Wis. 2d 290, 687 N.W.2d 740, 03-0931. In the absence of any expert testimony or other evidence to the contrary, the court may rely on its knowledge and experience to engage in reasonable speculation regarding the anticipated tax impact on the present value of retirement assets. Rumpff v. Rumpff, 2004 WI App 197, 276 Wis. 2d 606, 688 N.W.2d 699, 03-2646. A circuit court’s decision on how to divide divisible property is discretionary. The application of sub. (2) (a) to non-divisible property is not discretionary but involves both fact finding and legal questions. The categorization of property as nondivisible under sub. (2) (a) does not necessarily dictate how that property will be treated when the court divides divisible property. Under some circumstances courts may avoid hardship or inequities that might result from according property non-divisible status. Derr v. Derr, 2005 WI App 63, 280 Wis. 2d 681, 696 N.W.2d 170, 032181. When a gifted non-divisible asset was used as collateral for a loan used for the benefit of the marriage, both parties were liable for the debt, and marital funds were used to make payments on the debt, the debt was divisible. Putting property at risk by using it as collateral for a marital loan does not create a presumption that the owning spouse intended to donate part or all of the property to the marriage rendering it divisible. Derr v. Derr, 2005 WI App 63, 280 Wis. 2d 681, 696 N.W.2d 170, 03-2181. Generally, a final division of property is fixed for all time and is not subject to modification. Section 806.07 is applicable to divorce cases but permits reopening of final judgments only in extraordinary circumstances. Post-divorce employer modification of a pension, years after a divorce, that was thoroughly negotiated and divided at the time of the divorce does not compel reopening the divorce judgment. Winkler v. Winkler, 2005 WI App 100, 282 Wis. 2d 746, 699 N.W.2d 652, 04-1231. The law does not require a party to a prospective divorce to take advantage of an opportunity to acquire property that would increase the value of the marital estate. Noble v. Noble, 2005 WI App 227, 287 Wis. 2d 699, 706 N.W.2d 166, 04-2933. Since it was anticipated, based on testimony, that the payor spouse would sell or refinance real estate to make an equalization payment in the property division, there was no reason for the court to have considered the tax consequences of the payor’s withdrawing the money from the payor’s IRA to make the payment. That the payor ultimately chose to raise funds through a method that resulted in significant penalties to the payor was the payor’s erroneous exercise of discretion, not the trial court’s. Scheuer v. Scheuer, 2006 WI App 38, 290 Wis. 2d 250, 711 N.W.2d 698, 04-3162. To require a party to share in the debts created by a spouse’s unjustified depletion of marital assets would constitute a failure to consider the total contribution of each of the parties to the marital estate. This chapter makes recompense available when one spouse has mismanaged or dissipated assets. Depending on the circumstances of the case, one spouse’s failure to pay tax debts can be considered the mismanage-
May 22, 2026, are designated by NOTES. (Published 5-22-26)
767.61
ACTIONS AFFECTING THE FAMILY
ment or dissipation of assets and therefore marital waste. Covelli v. Covelli, 2006 WI App 121, 293 Wis. 2d 707, 718 N.W.2d 260, 05-1960. Although a circuit court may consider substantial gifted assets when dividing the marital estate, it may not divide the marital estate to work a de facto splitting of those assets when there is no hardship. While substantial assets not subject to division by the court is a factor to be considered in departing from equal division of property under sub. (3), sub. (3) begins with the presumption that the marital estate should be evenly divided. Absent some special circumstances demonstrating that some unfairness would result from equal division, the presumption should stand. Grumbeck v. Grumbeck, 2006 WI App 215, 296 Wis. 2d 611, 723 N.W.2d 778, 052512. The court did not err in awarding maintenance out of the proceeds of a covenant not to compete that arose from the sale of shares already to be a gift, and not subject to property division under sub. (2). The payments were in exchange for a service to be performed; refraining from doing business in a way that would be harmful to the purchasers. Grumbeck v. Grumbeck, 2006 WI App 215, 296 Wis. 2d 611, 723 N.W.2d 778, 05-2512. The burden of proving that property is non-divisible lies with the party arguing that this property is exempt from division who must establish: 1) the original gifted or inherited status of the property; and 2) that the character and identity of the property has been preserved. The identity inquiry addresses whether the gifted or inherited asset has been preserved in some present identifiable form and is more a matter of tracing the asset. The character inquiry examines whether the owning spouse intended to donate non-divisible property to the marriage and is more clearly denoted as donative intent. Wright v. Wright, 2008 WI App 21, 307 Wis. 2d 156, 747 N.W.2d 690, 06-2111. Retained earnings from a separate asset are usually considered to be a marital asset. However, in the instant case, the trial court found that the current retained earnings of disputed stock were not income generated, but rather were insurance proceeds from the loss of an asset. When insurance proceeds compensate for the loss of a gifted asset, they are non-divisible. When insurance proceeds compensate for the loss of income, they are divisible. Wright v. Wright, 2008 WI App 21, 307 Wis. 2d 156, 747 N.W.2d 690, 06-2111. Commingling of separate and marital property does not automatically taint the gifted asset. When it was undisputed that nothing had ever been withdrawn from a gifted account, it was very easy to trace the original gifted asset, despite the addition of a divisible dividend within the account, and the divisible dividend did not taint the status of the original gift. However, other unaccounted for deposits resulted in the transmutation of the account into a divisible account. Wright v. Wright, 2008 WI App 21, 307 Wis. 2d 156, 747 N.W.2d 690, 06-2111. Tracing and transmutation principles may be applied to cases that do not involve gifted or inherited property. Tracing can identify such property as originally indivisible, but proof of donative intent can establish that the property’s identity and character changed, and it was transmuted into divisible joint property. In particular, when separate property presumed to be indivisible is transmuted through a joint tenancy, it is effectively transferred to marital property, and tracing does not cause the property to revert back to its original separate property identity. Steinmann v. Steinmann, 2008 WI 43, 309 Wis. 2d 29, 749 N.W.2d 145, 05-1588. Tracing is nothing more than the exercise of following an asset trail. If an asset, or component part of an asset, can be traced to a source, the court relies on other principles and rules to determine whether the traced asset is divisible or non-divisible. That the existence of subsequently purchased property can be traced to income generated by non-divisible property does not mean that the purchased property is nondivisible. Rather, once property is transferred from separate property to joint ownership, the property becomes part of the marital estate subject to division even if it is inherited property generally deemed indivisible. Steinmann v. Steinmann, 2008 WI 43, 309 Wis. 2d 29, 749 N.W.2d 145, 05-1588. There were no reasonable grounds for reversing the circuit court’s decision not to allocate debts based on future tax liability, the exact amount of which was a matter of speculation, based on the lower court’s conclusion that the IRS is best qualified to determine what amount a divorcing couple owes the IRS. Steinmann v. Steinmann, 2008 WI 43, 309 Wis. 2d 29, 749 N.W.2d 145, 05-1588. It was within the trial court’s discretion whether to include as part of the marital estate subject to division stock options earned during the marriage that the trial court viewed as having no value at the time of divorce because the cost to exercise the options was greater than the price of the stock. The trial court erroneously exercised its discretion by excluding the options from division because it erroneously viewed their potential value as being almost solely a function of what the owner spouse would do in the spouse’s business after the divorce, despite their decline in value having been caused largely by the broader economy, and largely ignored the fact that the options were earned while the parties were married. Heppner v. Heppner, 2009 WI App 90, 319 Wis. 2d 237, 768 N.W.2d 261, 08-2020. When valuing a business interest that is part of the marital estate for purposes of property division, a circuit court shall include the entire value of the salable professional goodwill attendant to the business interest. The circuit court did not double count the value of professional goodwill when it included the goodwill in the divisible marital estate, and then based a maintenance award on the professional spouse’s expected future earnings. As with income from an income earning asset, income from a professional practice is separate from the value of the practice as it exists at the time of the property division and is properly considered in determining maintenance. McReath v. McReath, 2011 WI 66, 335 Wis. 2d 643, 800 N.W.2d 399, 090639. A retirement fund must be divided even if unvested at the time of divorce. When dividing an unvested fund, the rule is that the trial court must consider all the circumstances and evaluate the probability that the party who has a contingent right to a pension will eventually enjoy that pension. A court may not simply assign a value of zero to all contingent interests. Derleth v. Cordova, 2013 WI App 142, 352 Wis. 2d 51, 841 N.W.2d 552, 12-2018. While federal law and state law are clear that social security benefits may not be divided in a divorce, social security benefits count as other factors that a court may in each individual case determine to be relevant and fall within at least one of the mandatory factors in sub. (3) for the court to consider in dividing property between
Updated 23-24 Wis. Stats.
44
parties. Danielson v. Danielson, 2024 WI App 57, 414 Wis. 2d 1, 13 N.W.3d 239, 22-1630. Federal law precludes a state court from dividing military nondisability retirement pay pursuant to state community property laws. McCarty v. McCarty, 453 U.S. 210, 101 S. Ct. 2728, 69 L. Ed. 2d 589 (1981). An insured’s beneficiary designation under servicemen’s group life insurance policy prevailed over a constructive trust imposed by a state court. Ridgway v. Ridgway, 454 U.S. 46, 102 S. Ct. 49, 70 L. Ed. 2d 39 (1981). Federal statute provides that a state may treat as community property, and divide at divorce, a military veteran’s retirement pay but exempts from this grant of permission any amount that the federal government deducts “as a result of a waiver” of retirement pay that the veteran must make “in order to receive” disability benefits. A state cannot treat as community property, and divide at divorce, the waived portion of the veteran’s retirement pay, even when the waiver occurs long after the divorce order and results in reduced payments to the receiving spouse. Howell v. Howell, 581 U.S. 214, 137 S. Ct. 1400, 197 L. Ed. 2d 781 (2017). See also Mansell v. Mansell, 490 U.S. 581, 109 S. Ct. 2023, 104 L. Ed. 2d 675 (1989). To receive military disability benefits, federal law requires a retired veteran must give up an equivalent amount of retirement pay. In Mansell, 490 U.S. 581 (1989), the U.S. Supreme Court held that federal law forbade states from treating the waived portion as community property divisible at divorce. In this case, a state court awarded to a veteran’s spouse a portion of the veteran’s total retirement pay upon their divorce. Long after the divorce, the veteran waived a share of the retirement pay in order to receive disability benefits. Under Mansell, the state could not subsequently increase, pro rata, the amount the divorced spouse receives each month from the veteran’s retirement pay in order to indemnify the divorced spouse for the loss caused by the veteran’s waiver. Howell v. Howell, 581 U.S. 214, 137 S. Ct. 1400, 197 L. Ed. 2d 781 (2017). The federal Employee Retirement Income Security Act of 1974 did not preempt a Wisconsin court order awarding a spouse one-half of a beneficiary’s interest in a pension. Savings & Profit Sharing Fund of Sears Employees v. Gago, 717 F.2d 1038 (1983). Dilemma v. Paradox: Valuation of an Advanced Degree upon Dissolution of a Marriage. Loeb & McCann. 66 MLR 495 (1983). The Recognition and Valuation of Professional Goodwill in the Marital Estate. Wall. 66 MLR 697 (1983). Enhanced Value of a Closely Held Corporation at the Time of Divorce: What Role Will Wisconsin’s Marital Property Act Play? Podell. 69 MLR 82 (1985). No-Fault Divorce: Tax Consequences of Support, Maintenance and Property Settlement. Case. WBB Dec. 1977. Prenuptial and Postnuptial Agreements. Loeb. WBB Mar. 1981. Drafting enforceable marital agreements. Garczynski. WBB Sept. 1986. The Marital Property Act does not change Wisconsin’s divorce law. Weisberger. WBB May 1987. Transmutation: Finding Extra Property to Divide in Divorce. Kessler. Wis. Law. Aug. 1990. Divorce Provisions in Opt-In Marital Property Agreements. Rasmussen. Wis. Law. Apr. 1994. A Decade Post-Button v. Button: Drafting Prenuptial Agreements. Garczynski. Wis. Law. July 1999. A Primer on Dividing a Military Pension. Halling & Drefahl. Wis. Law. Aug. 1999. When Lovebirds Split: Dividing the Retirement Nest Egg at Divorce — Properly Dividing Pension Benefits. Patel. Wis. Law. Oct. 2006. When Lovebirds Split: Dividing the Retirement Nest Egg at Divorce — Dividing Wisconsin Retirement System Benefits. Dennison. Wis. Law. Oct. 2006. Business Owners in Divorce: A Basic Overview. Krimmer. Wis. Law. June 2008. Valuing Retirement Benefits in Divorce. Dennison. Wis. Law. June 2012. Valuing a Business in Divorce. Herman & Swartzberg. Wis. Law. Jan. 2014.
767.63 Disposed assets may be subject to division. In an action affecting the family, except an action to affirm marriage under s. 767.001 (1) (a), any asset with a fair market value of $500 or more that would be considered part of the estate of either or both of the parties if owned by either or both of them at the time of the action and that was transferred for inadequate consideration, wasted, given away, or otherwise unaccounted for by one of the parties within one year prior to the filing of the petition or the length of the marriage, whichever is shorter, is rebuttably presumed to be property subject to division under s. 767.61 and is subject to the disclosure requirement of s. 767.127. Transfers that resulted in an exchange of assets of substantially equivalent value need not be specifically disclosed if those assets are otherwise identified in the statement of net worth. History: 1977 c. 105; 1979 c. 32 ss. 50, 92 (4); 1979 c. 352 s. 39; Stats. 1979 s. 767.275; 2005 a. 443 s. 124; Stats. 2005 s. 767.63. Marital Waste: Within the Eye of the Beholding Court. Gehrig. Wis. Law. May 2015.
SUBCHAPTER VIII ENFORCEMENT
May 22, 2026, are designated by NOTES. (Published 5-22-26)
45
Updated 23-24 Wis. Stats.
767.70 Child support enforcement: notice and service of process. (1) WHEN SATISFIED. In an action under s. 767.001 (1) (i) to enforce or modify a judgment or order with respect to child support, due process requirements related to notice and service of process are satisfied if the court finds all of the following: (a) That a diligent effort was made to ascertain the location of the respondent. (b) That written notice of the action to the respondent has been delivered to the most recent residential address or employer address provided by the respondent under s. 767.58 (2) to the county child support agency under s. 59.53 (5). (2) RULES ON LOCATING RESPONDENT. The department shall promulgate rules specifying the process that the department will use under sub. (1) (a) to ascertain the location of the respondent. Notwithstanding sub. (1) (b), the process specified in the rules shall utilize all reasonable means to which the department has access, including electronic means, interfaces with other programs, and information provided by the postmaster, for determining the current address of the respondent. History: 1997 a. 191; 2005 a. 443 s. 21; Stats. 2005 s. 767.70. NOTE: 2005 Wis. Act 443 contains explanatory notes. Cross-reference: See also ch. DWD 142, Wis. adm. code.
767.71 Reconciling percentage-expressed support orders. (1) REQUEST FOR DETERMINATION. (a) In this section, “support order” means an order for child support under this chapter or s. 948.22 (7), an order for family support under this chapter, 2019 stats., or a stipulation approved by the court for child support under this chapter. (b) If a support order is or has been expressed as a percentage of parental income, a party, including the state or a county child support agency under s. 59.53 (5) if the state is a real party in interest under s. 767.205 (2) (a), may request a determination under this section of the amount due under the order. The court may determine the amount due and, if ordered by the court, the county child support agency shall reconcile the amount due with payments actually made to determine if an arrearage exists. (2) NOTICE AND AFFIDAVIT. (a) The party seeking the determination under this section shall file with the court a notice of reconciliation of account and a supporting affidavit. No later than 3 business days after filing, the party seeking the determination shall serve the notice and affidavit on all other parties, including the child support agency if the state is a real party in interest, by sending the notice and affidavit by regular mail to the lastknown address provided under s. 767.58 (2), pursuant to s. 767.70. (b) The notice of reconciliation of account shall include all of the following: 1. The period of time for which the reconciliation is sought. 2. A statement that, unless a party requests a hearing no later than 20 business days after the date of the notice, the court may enter an order determining the amount due under the percentageexpressed order and may enter a repayment order that applies if the reconciliation of the amount due with payments made results in an arrearage. 3. The mailing address to which the request for a hearing must be delivered or mailed to schedule a hearing under sub. (3). (c) The supporting affidavit shall state the facts supporting a reasonable basis for determining the payer’s income during the period of time for which the reconciliation is sought. (3) IF HEARING HELD. (a) Within 10 business days after receiving a timely request for a hearing, the court shall set the matter for hearing. The court shall send notice of the date, time, and
ACTIONS AFFECTING THE FAMILY
767.73
location of the hearing to the parties by regular mail at their lastknown addresses. (b) At the hearing, the court may establish the appropriate charge under the percentage order by determining the amount of the payer’s income that is subject to the percentage-expressed order during the period for which reconciliation is sought and applying the ordered percentage to that amount. The court may enter a repayment order that becomes effective if the reconciliation of the amount due with payments made results in an arrearage. (4) IF NO HEARING. If no party requests a hearing, the court shall review the supporting affidavit within 60 days of filing. If the court finds that the affidavit contains a reasonable basis for determining the payer’s income during the period for which reconciliation is sought, the court may enter an order determining the amount due under the percentage-expressed order and may enter a repayment order that becomes effective if the reconciliation of the amount due with payments made results in an arrearage. The court shall send the order to the parties by regular mail to their last-known addresses. (5) ENFORCEMENT. Any arrearage that exists as a result of the reconciliation of the amount due with payments made may be enforced under ch. 49 or this chapter. History: 2005 a. 443; 2021 a. 35.
767.73 Delinquent child or family support; suspension of operating privilege. (1) AUTHORITY TO SUSPEND. (a) In this subsection, “support payment” means a payment ordered for support under s. 767.521, support under s. 767.501, child support or family support under s. 767.225, family support under s. 767.531, 2019 stats., revised child or family support under s. 767.59, or child support under s. 767.511, 767.804 (3), 767.805 (4), 767.85, 767.863 (3), 767.89, or 948.22 (7) or ch. 769. (b) If a person fails to pay a support payment that is 90 or more days past due and the court finds that the person has the ability to pay the amount ordered, the court may suspend the person’s operating privilege, as defined in s. 340.01 (40), until the person pays all arrearages in full or makes payment arrangements that are satisfactory to the court, except that the suspension period may not exceed 2 years. If otherwise eligible, the person is eligible for an occupational license under s. 343.10 at any time. (2) NOTICE OF SUSPENSION TO DEPARTMENT OF TRANSPORTATION. If a court orders suspension of a person’s operating privilege under sub. (1) (b), the court shall notify the department of transportation, in the form and manner prescribed by the department. The notice to the department shall include the name and last-known address of the person against whom the support order was entered, certification by the court that the person has been notified of the entry of the support order and that there are arrearages in support payments that are 90 or more days past due, and the place where the arrearages may be paid. The notice shall also state that the person’s operating privilege remains suspended until the person pays all arrearages in full or makes payment arrangements that are satisfactory to the court, except that the suspension period may not exceed 2 years. (3) NOTICE OF PAYMENT TO DEPARTMENT. If the person subsequently pays the full amount of the arrearages or makes payment arrangements that are satisfactory to the court, the court shall immediately notify the department of transportation of the payment in the form and manner prescribed by the department. (4) APPLICATION TO PAST ARREARAGES. This section applies to support arrearages existing on or after October 1, 1996, regardless of when the arrearages accrued or when the order or judgment requiring the payment of support was entered. (5) RELATIONSHIP TO OTHER REMEDIES. The remedy permit-
May 22, 2026, are designated by NOTES. (Published 5-22-26)
767.73
ACTIONS AFFECTING THE FAMILY
ted under this section is in addition to any other remedies authorized by law. History: 1995 a. 401; 1997 a. 84, 191; 1999 a. 9, 32; 2005 a. 443 ss. 139, 140, 141, 236; Stats. 2005 s. 767.73; 2019 a. 95; 2021 a. 35.
767.75 Assignment of income for payment obligations. (1) DEFINITIONS. In this section: (a) “Employer” includes the state and its political subdivisions. (b) “Payment order” means an order for child support under this chapter, for maintenance payments under s. 767.225 or 767.56, for family support under this chapter, 2019 stats., for costs ordered under s. 767.804 (3), 767.805 (4), or 767.89 (3), for support by a spouse under s. 767.001 (1) (f), or for maintenance payments under s. 767.001 (1) (g); an order for or obligation to pay the annual receiving and disbursing fee under s. 767.57 (1e) (a); an order for a revision in a judgment or order with respect to child support, maintenance, or family support payments under s. 767.59; a stipulation approved by the court for child support under this chapter; and an order for child or spousal support entered under s. 948.22 (7). (1f) PAYMENT ORDER AS ASSIGNMENT OF INCOME. A payment order constitutes an assignment of all commissions, earnings, salaries, wages, pension benefits, income continuation insurance benefits under s. 40.62, duty disability benefits under s. 40.65, benefits under ch. 102 or 108, lottery prizes that are payable in installments, and other money due or to be due in the future to the department or its designee. The assignment shall be for a fixed sum regardless of whether the court-ordered obligation on which the assignment is based is expressed in the court order as a percentage of the payer’s income, and shall be for an amount sufficient to ensure payment under the order, obligation, or stipulation and to pay any arrearages due at a periodic rate not to exceed 50 percent of the amount of support due under the order, obligation, or stipulation so long as the addition of the amount toward arrearages does not leave the party at an income below the poverty line established under 42 USC 9902 (2). (1m) OBLIGATION CONTINUING. If a party’s current obligation to pay maintenance, child support, spousal support, or family support terminates but the party has an arrearage in the payment of one or more of those payments or in the payment of the annual receiving and disbursing fee, any assignment under sub. (1f) continues in effect, in an amount up to the amount of the assignment before the party’s current obligation terminated, until the arrearage is paid in full. (2h) DELAYED WITHHOLDING; FAILURE TO PAY. If a court-ordered assignment, including the assignment specified under sub. (1f) for the payment of any arrearages due, does not require immediately effective withholding and a payer fails to make a required maintenance, child support, spousal support, family support, or annual receiving and disbursing fee payment within 10 days after its due date, within 20 days after the payment’s due date the court or county child support agency under s. 59.53 (5) shall cause the assignment to go into effect by providing notice of the assignment in the manner provided under sub. (2r) and shall send a notice by regular mail to the last-known address of the payer. The notice sent to the payer shall inform the payer that an assignment is in effect and that the payer may, within a 10-day period after the notice is mailed, by motion request a hearing on the issue of whether the assignment should remain in effect. The court shall hold a hearing requested under this subsection within 10 working days after the date of receipt of the request. If at the hearing the payer establishes that the assignment is not proper because of a mistake of fact, the court may direct that the assignment be withdrawn. Either party may, within 15 working days after the date of a decision by a circuit court commissioner under
Updated 23-24 Wis. Stats.
46
this subsection, seek review of the decision by the court with jurisdiction over the action. (2m) UNPAID RECEIVING AND DISBURSING FEES; ASSIGNMENT. (a) 1. An obligation to pay unpaid fees under s. 767.57 (1e) (b) 1m. constitutes an assignment of all commissions, earnings, salaries, wages, pension benefits, income continuation insurance benefits under s. 40.62, duty disability benefits under s. 40.65, benefits under ch. 102 or 108, lottery prizes that are payable in installments, and other money due or to be due in the future to the department or its designee. 2. An obligation to pay unpaid fees under s. 767.57 (1e) (b) 2m. constitutes an assignment of all commissions, earnings, salaries, wages, pension benefits, income continuation insurance benefits under s. 40.62, duty disability benefits under s. 40.65, benefits under ch. 102 or 108, lottery prizes that are payable in installments, and other money due or to be due in the future to the clerk of court to whom the fees are owed, or to his or her successor. (b) The county child support agency under s. 59.53 (5) may cause an assignment under par. (a) to go into effect by providing notice of the assignment in the manner provided under sub. (2r) and sending a notice by regular mail to the last-known address of the payer. The notice sent to the payer shall inform the payer that an assignment is in effect and that the payer may, within a 10-day period after the notice is mailed, by motion request a hearing on the issue of whether the assignment should remain in effect. The court shall hold a hearing requested under this paragraph within 10 working days after the date of receipt of the request. If at the hearing the payer establishes that the assignment is not proper because of a mistake of fact, the court may direct that the assignment be withdrawn. The payer or the county child support agency may, within 15 working days after the date of a decision by a circuit court commissioner under this paragraph, seek review of the decision by the court with jurisdiction over the action. (2r) NOTICE OF ASSIGNMENT TO INCOME SOURCE. Upon entry of each order for child support, maintenance, family support, support by a spouse, or the annual receiving and disbursing fee, and upon approval of each stipulation for child support, unless the court finds that income withholding is likely to cause the payer irreparable harm or unless s. 767.76 applies, the court or county child support agency under s. 59.53 (5) shall provide notice of the assignment by regular mail or by facsimile machine, as defined in s. 134.72 (1) (a), or other electronic means to the lastknown address of the person from whom the payer receives or will receive money. The notice shall provide that the amount withheld may not exceed the maximum amount that is subject to garnishment under 15 USC 1673 (b) (2). If the department or its designee does not receive the money from the person notified, the court or county child support agency under s. 59.53 (5) shall provide notice of the assignment to any other person from whom the payer receives or will receive money. Notice under this subsection may be a notice of the court, a copy of the executed assignment, or a copy of that part of the court order directing payment. (3h) DUTIES OF PERSON RECEIVING ASSIGNMENT NOTICE. A person who receives notice of assignment under this section or s. 767.225 (1) (L) or 767.513 (3) or similar laws of another state shall withhold the amount specified in the notice from any money that person pays to the payer later than one week after receipt of notice of assignment. Within 5 days after the day the person pays money to the payer, the person shall send the amount withheld to the department or its designee or, in the case of an amount ordered withheld for health care expenses, to the appropriate health care insurer, provider, or plan. With each payment sent to the department or its designee, the person from whom the payer receives money shall report to the department or its designee the payer’s gross income or other gross amount from which the pay-
May 22, 2026, are designated by NOTES. (Published 5-22-26)
47
Updated 23-24 Wis. Stats.
ment was withheld. Except as provided in sub. (3m), for each payment sent to the department or its designee, the person from whom the payer receives money shall receive an amount equal to the person’s necessary disbursements, not to exceed $3, which shall be deducted from the money to be paid to the payer. Section 241.09 does not apply to assignments under this section. (3m) ASSIGNMENT OF UNEMPLOYMENT COMPENSATION BENEFITS. Benefits under ch. 108 may be assigned and withheld only in the manner provided in s. 108.13 (4). Any order to withhold benefits under ch. 108 shall be for a fixed sum regardless of whether the court-ordered obligation on which the withholding order is based is expressed in the court order as a percentage of the payer’s income. When money is to be withheld from these benefits, no fee may be deducted from the amount withheld and no fine may be levied for failure to withhold the money. (4) ASSIGNMENT PRIORITY. A withholding assignment or order under this section or s. 767.225 (1) (L) or 767.513 (3) has priority over any other assignment, garnishment, or similar legal process under state law. (6) FAILURE TO COMPLY WITH ASSIGNMENT OBLIGATIONS. (a) Except as provided in sub. (3m), if after receipt of notice of assignment the person from whom the payer receives money fails to withhold the money or send the money to the department or its designee or the appropriate health care insurer, provider, or plan as provided in this section or s. 767.225 (1) (L) or 767.513 (3), the person may be proceeded against under the principal action under ch. 785 for contempt of court or may be proceeded against under ch. 778 and be required to forfeit not less than $50 nor more than an amount, if the amount exceeds $50, that is equal to 1 percent of the amount not withheld or sent. (b) If an employer who receives an assignment under this section or s. 767.225 (1) (L) or 767.513 (3) fails to notify the department or its designee within 10 days after an employee is terminated or otherwise temporarily or permanently leaves employment, the employer may be proceeded against under the principal action under ch. 785 for contempt of court. (c) No employer may use an assignment under this section or s. 767.225 (1) (L) or 767.513 (3) as a basis for the denial of employment to a person, the discharge of an employee, or any disciplinary action against an employee. An employer who denies employment or discharges or disciplines an employee in violation of this paragraph may be fined not more than $500 and may be required to make full restitution to the aggrieved person, including reinstatement and back pay. Except as provided in this paragraph, restitution shall be in accordance with s. 973.20. An aggrieved person may apply to the district attorney or to the department for enforcement of this paragraph. (6m) CONVERSION OF CERTAIN SUPPORT ORDERS TO FIXED AMOUNT. A county child support agency under s. 59.53 (5) may convert a support amount in an order for income withholding under this section that is expressed as a percentage of income to the equivalent sum certain amount for purposes of enforcing a child support order in another state under subch. V or VI of ch. 769. Nothing in this subsection authorizes a change, or may be construed to change, the support obligation specified in the underlying child support order. (7) RECEIPT OF MORE THAN ONE NOTICE OF ASSIGNMENT. A person who receives more than one notice of assignment under sub. (3h) may send all money withheld to the department or its designee, whichever is appropriate, in a combined payment, accompanied by any information the department or its designee requires. (7m) CHANGE IN PAYROLL PERIOD. (a) In this subsection, “payroll period” has the meaning given in s. 71.63 (5). (b) If after an assignment is in effect the payer’s employer
ACTIONS AFFECTING THE FAMILY
767.76
changes its payroll period, or the payer changes employers and the new employer’s payroll period is different from the former employer’s payroll period, the county child support agency under s. 59.53 (5) may, unless otherwise ordered by a judge, amend the withholding assignment or order so that all of the following apply: 1. The withholding frequency corresponds to the new payroll period. 2. The amounts to be withheld reflect the adjustment to the withholding frequency. (c) The county child support agency shall provide notice of the amended withholding assignment or order by regular mail to the payer’s employer and to the payer. History: 1971 c. 110; 1975 c. 94 s. 91 (3); 1975 c. 199; 1977 c. 105; 1979 c. 32 ss. 50, 92 (4); 1979 c. 196, 221; Stats. 1979 s. 767.265; 1981 c. 20, 186; 1983 a. 27, 384; 1985 a. 29; 1987 a. 38 s. 136; 1987 a. 332 s. 64; 1987 a. 398, 403; 1989 a. 31, 56, 212, 336; 1991 a. 287; 1993 a. 16, 326, 389, 481; 1995 a. 27 s. 9130 (4); 1995 a. 279, 404; 1997 a. 27, 191; 1999 a. 9; 2001 a. 16, 61, 105; 2005 a. 443 ss. 116 to 118, 237; Stats. 2005 s. 767.75; 2015 a. 55, 172; 2017 a. 365; 2019 a. 95; 2021 a. 35. NOTE: 2005 Wis. Act 443 contains explanatory notes. The maximum amount subject to assignment to collect an arrearage is 50 percent of the support currently due. A 25 percent wage assignment for current support limits an assignment for arrearages to an additional 12.5 percent of wages. Schnetzer v. Schnetzer, 174 Wis. 2d 458, 497 N.W.2d 772 (Ct. App. 1993). The assignment under sub. (1) [now sub. (1f)] does not require earnings to be withheld and therefore is not a garnishment subject to federal restrictions. Carpenter v. Mumaw, 230 Wis. 2d 384, 602 N.W.2d 536 (Ct. App. 1999), 98-2874. The mandatory wage assignment provisions of this section are constitutional. 68 Atty. Gen. 106.
767.76 Account transfers. (1) AUTHORITY OF COURT TO REQUIRE. If the court determines that income withholding under s. 767.75 is inapplicable, ineffective, or insufficient to ensure payment under an order or stipulation specified in s. 767.75 (1), or that income withholding under s. 767.513 (3) is inapplicable, ineffective, or insufficient to ensure payment of a child’s health care expenses, including payment of health insurance premiums, ordered under s. 767.513, the court may require the payer to identify or establish a deposit account, owned in whole or in part by the payer, that allows for periodic transfers of funds and to file with the financial institution at which the account is located an authorization for transfer from the account to the department or its designee. The authorization shall be provided on a standard form approved by the court and shall specify the frequency and the amount of transfer, sufficient to meet the payer’s obligation under the order or stipulation, as required by the court. The authorization shall include the payer’s consent for the financial institution or an officer, employee, or agent of the financial institution to disclose information to the court, county child support agency under s. 59.53 (5), department, or department’s designee regarding the account for which the payer has executed the authorization for transfer. (2) TRANSFER OF FUNDS BY FINANCIAL INSTITUTIONS. A financial institution that receives an authorization for transfer under sub. (1) shall transfer the amounts as specified in the authorization or shall transfer the amount available for transfer if at a time of transfer that amount is less than the amount specified in the authorization. The financial institution may accomplish the transfer by any lawful means, including payment by check, subject to the terms of the account. The financial institution may deduct from the payer’s account for each transfer its usual fee for such fund transfers. If the account is closed or if no funds are available at a time of transfer, the financial institution shall notify the county child support agency under s. 59.53 (5) or the department or its designee, whichever is appropriate, within 10 days after the date on which the funds should have been transferred. (3) PRIORITY OF TRANSFER AUTHORIZATION. An authorization for transfer under sub. (1) has priority over any other authorization for transfer and over an assignment, garnishment or similar legal process under state law or the laws of another state.
May 22, 2026, are designated by NOTES. (Published 5-22-26)
767.76
ACTIONS AFFECTING THE FAMILY
(4) REVOCATION OF TRANSFER AUTHORIZATION. An authorization for transfer under sub. (1) may not be revoked except by court order. (5) AUTHORIZED DISCLOSURE. A financial institution or an officer, employee, or agent of a financial institution may disclose information to the court, county child support agency under s. 59.53 (5), department, or department’s designee concerning an account for which a payer has executed an authorization for transfer under sub. (1). (6) LIABILITY IMMUNITY. No financial institution or officer, employee or agent of a financial institution is liable to an account owner for any sum transferred, or for any information disclosed, in compliance with this section. History: 1993 a. 481; 1995 a. 279; 1997 a. 27; 1999 a. 9; 2001 a. 38, 61, 105; 2005 a. 443 ss. 120, 238; Stats. 2005 s. 767.76.
767.77 Enforcement of payment obligations. (1) DEFINITION. In this section, “payment obligation” means an obligation to pay support under s. 48.355 (2) (b) 4. or (4g) (a), 48.357 (5m) (a), 48.363 (2), 938.183 (4), 938.355 (2) (b) 4. or (4g) (a), 938.357 (5m) (a), or 938.363 (2), support or maintenance under s. 767.501, child support or maintenance under s. 767.225, child support under s. 767.511, maintenance under s. 767.56, family support under s. 767.225, 2019 stats., or s. 767.531, 2019 stats., attorney fees under s. 767.241, child support or a child’s health care expenses under s. 767.85, paternity obligations under s. 767.804 (3), 767.805 (4), 767.863 (3), or 767.89, support arrearages under s. 767.71, or child or spousal support under s. 948.22 (7). (1m) TERMS OF PAYMENT. The court may order that a payment obligation be paid in the amounts and at the times that it considers expedient. (2) SECURITY FOR PAYMENT. The court may impose liability for a payment obligation as a charge upon specific real estate of the obligated party or may require that party to give sufficient security for payment. No charge upon real estate is effective until the order or judgment imposing liability or a certified copy of it is recorded in the office of the register of deeds in the county in which the real estate is situated. (3) NONCOMPLIANCE; ENFORCEMENT. If a party fails to pay a payment ordered under sub. (1m) or to give security under sub. (2), the court may by any appropriate remedy enforce the judgment, or the order as if it were a final judgment, including any past due payment and interest. Appropriate remedies include but are not limited to: (a) Execution of the order or judgment. (b) Contempt of court under ch. 785. (c) Money judgment for past due payments. (d) Satisfaction under s. 811.23 of any property attached under ch. 811. (e) Garnishment under ch. 812. (f) For failure to pay child support or family support, satisfaction under s. 780.10 out of the proceeds of the sale of any ship, boat or vessel attached and sold under ch. 780. (4) INFORMATION ON BOAT OWNERSHIP. Upon the request of a county, the department of natural resources shall provide the county with a list of the names and addresses of all of the owners of boats that have a valid certificate of number or registration that has been issued by the department under s. 30.52. The department shall prepare the list annually before May 31 of each year. History: 1971 c. 220; 1975 c. 401 s. 4; 1977 c. 105; 1979 c. 32 ss. 50, 92 (4); 1979 c. 196, 221; 1979 c. 257 s. 17; 1979 c. 355; Stats. 1979 s. 767.30; 1983 a. 27; 1985 a. 29; 1987 a. 332 s. 64; 1993 a. 481; 1995 a. 77, 287; 1997 a. 27, 191; 1999 a. 103; 2005 a. 443 ss. 137, 239; Stats. 2005 s. 767.77; 2015 a. 373; 2019 a. 95; 2021 a. 35. A court is justified in requiring the creation of a trust to secure the payment of
Updated 23-24 Wis. Stats.
48
support money when a spouse has a record of failing to obey prior court orders. Foregger v. Foregger, 48 Wis. 2d 512, 180 N.W.2d 578 (1970). When parents each own a one-half interest in future proceeds of real estate and the state contributes to child support, the court may not order the custodial parent to pay child support in the form of an accumulating real estate lien in favor of the state. State ex rel. v. Reible, 91 Wis. 2d 394, 283 N.W.2d 427 (Ct. App. 1979). The trial court had the power to order a parent to look for additional or alternative employment or be held in contempt. Discussing proper contempt procedures. Dennis v. State, 117 Wis. 2d 249, 344 N.W.2d 128 (1984). There is no authority under this section to grant credits against arrearages. To grant a credit requires modification of the judgment under s. 767.32 [now s. 767.59]. Under s. 767.32 (1r) [now s. 767.59 (1r)], a court is without discretion to grant credits against arrearages for direct payments made for child support regardless of when the order was entered. Douglas County Child Support Enforcement Unit v. Fisher, 200 Wis. 2d 807, 547 N.W.2d 801 (Ct. App. 1996), 95-1960.
767.78 Enforcement; contempt proceedings. (1) DEFINITION. In this section, “financial obligation” means an obligation for payment incurred under s. 767.531, 2019 stats., or s. 48.355 (2) (b) 4. or (4g) (a), 48.357 (5m) (a), 48.363 (2), 767.225, 767.241, 767.511, 767.56, 767.61, 767.71, 767.804 (3), 767.805 (4), 767.85, 767.863 (3), 767.89, 938.183 (4), 938.355 (2) (b) 4. or (4g) (a), 938.357 (5m) (a), or 938.363 (2). (2) NONCOMPLIANCE; ORDER TO SHOW CAUSE. If a person has incurred a financial obligation and has failed within a reasonable time or as ordered by the court to satisfy the obligation, and the wage assignment proceeding under s. 767.75 and the account transfer under s. 767.76 are inapplicable, impractical, or unfeasible, the court may on its own initiative, and shall on the application of the receiving party, issue an order requiring the payer to show cause at a reasonable time specified in the order why he or she should not be subject to contempt of court under ch. 785. History: 1977 c. 105; 1979 c. 32 ss. 50, 92 (4); 1979 c. 196; 1979 c. 257 s. 17; Stats. 1979 s. 767.305; 1993 a. 481; 1995 a. 77; 1997 a. 27, 191; 1999 a. 103; 2005 a. 443 ss. 142, 143; Stats. 2005 s. 767.78; 2015 a. 373; 2019 a. 95; 2021 a. 35. Contempt is an appropriate means to enforce child support arrearages after a child has reached majority. Griffin v. Reeve, 141 Wis. 2d 699, 416 N.W.2d 612 (1987). When a contemnor’s liberty interests are at risk, the contemnor must be given an opportunity to show the court that the failure to comply with the purge conditions was not willful and intentional. State ex rel. V.J.H. v. C.A.B., 163 Wis. 2d 833, 472 N.W.2d 839 (Ct. App. 1991).
SUBCHAPTER IX PATERNITY 767.80 Determination of paternity. (1) WHO MAY BRING ACTION OR FILE MOTION. The following persons may bring an action or file a motion, including an action or motion for declaratory judgment, for the purpose of determining the paternity of a child, or for the purpose of rebutting the presumption of paternity under s. 891.405, 891.407, or 891.41 (1): (a) The child. (b) The child’s natural mother. (c) Unless s. 767.804 (1) or 767.805 (1) applies, a male presumed to be the child’s father under s. 891.405, 891.407, or 891.41 (1). (d) A male alleged or alleging himself to be the father of the child. (e) The personal representative of a person specified under pars. (a) to (d) if that person has died. (f) The legal or physical custodian of the child. (g) This state whenever the circumstances specified in s. 767.205 (2) (a) apply, including the delegates of the state as specified in sub. (6). (h) This state as provided under sub. (6m). (hm) The state as provided under s. 767.804 (1) (d). (i) A guardian ad litem appointed for the child under s. 48.235, 767.407 (1) (c), or 938.235. (j) A parent of a person listed under par. (b), (c) or (d), if the
May 22, 2026, are designated by NOTES. (Published 5-22-26)
49
Updated 23-24 Wis. Stats.
parent is liable or is potentially liable for maintenance of a child of a dependent person under s. 49.90 (1) (a) 2. (k) In conjunction with the filing of a petition for visitation with respect to the child under s. 767.43 (3), a parent of a person who has filed a declaration of paternal interest under s. 48.025 with respect to the child or a parent of a person who, before April 1, 1998, signed and filed a statement acknowledging paternity under s. 69.15 (3) (b) 3. with respect to the child. (1m) VENUE. An action under this section may be brought in the county in which the child or the alleged father resides or is found or, if the father is deceased, in which proceedings for probate of his estate have been or could be commenced. (2) CERTAIN AGREEMENTS NOT A BAR TO ACTION. Regardless of its terms, an agreement made after July 1, 1981, other than an agreement approved by the court between an alleged or presumed father and the mother or child, does not bar an action under this section. Whenever the court approves an agreement in which one of the parties agrees not to commence an action under this section, the court shall first determine whether or not the agreement is in the best interest of the child. The court shall not approve any provision waiving the right to bring an action under this section if this provision is contrary to the best interests of the child. (3) STAY IF ACTION BEFORE BIRTH. If an action under this section is brought before the birth of the child, all proceedings shall be stayed until after the birth, except that service of process, service and filing of pleadings, the first appearance and the taking of depositions to preserve testimony may be done before the birth of the child. (4) CHILD AS PARTY. The child may be a party to any action under this section. (5) PETITION. (a) In this subsection, “any alleged father” includes any male who has engaged in sexual intercourse with the child’s mother during a possible time of conception of the child. (b) An action under this section may be joined with any other action for child support and is governed by the procedures specified in s. 767.205 relating to child support, except that the title of the action shall be “In re the paternity of A.B.” The petition shall state the name and date of birth of the child if born or that the mother is pregnant if the child is unborn, the name of any alleged father, whether or not an action by any of the parties to determine the paternity of the child or rebut the presumption of paternity to the child has at any time been commenced, or is pending before any court, in this state or elsewhere. If a paternity judgment has been rendered, or if a paternity action has been dismissed, the petition shall state the court that rendered the judgment or dismissed the action, and the date and the place the judgment was granted if known. The petition shall also give notice of a party’s right to request a genetic test under s. 49.225 or 767.84. (c) If a matter is referred under s. 48.299 (6) (a) or 938.299 (6) (a) to an attorney designated under sub. (6) (a), that attorney shall also include in the petition notification to the court that the matter was referred under s. 48.299 (6) (a) or 938.299 (6) (a). (5m) APPLICABLE PROCEDURE; EXCEPTIONS. Except as provided in ss. 767.804, 767.805, 767.863 (3), 767.85, 767.893 (2) and (2m), and 769.401, unless a male is presumed the child’s father under s. 891.41 (1), is adjudicated the child’s father either under s. 767.89 or by final order or judgment of a court of competent jurisdiction in another state, is conclusively determined to be the child’s father from genetic test results under s. 767.804, or has acknowledged himself to be the child’s father under s. 767.805 (1) or a substantially similar law of another state, no order or temporary order may be entered for child support, legal custody, or physical placement until the male is adjudicated the father using the procedure set forth in this subchapter, except s. 767.804 or
ACTIONS AFFECTING THE FAMILY
767.80
767.805. Except as provided in ss. 767.804, 767.805, 767.85, and 769.401, the exclusive procedure for establishment of child support obligations, legal custody, or physical placement rights for a male who is not presumed the child’s father under s. 891.41 (1), adjudicated the father, conclusively determined to be the child’s father from genetic test results under s. 767.804, or acknowledged under s. 767.805 (1) or a substantially similar law of another state to be the father is by an action under this subchapter, except s. 767.804 or 767.805, or under s. 769.402. No person may waive the use of this procedure. If a presumption under s. 891.41 (1) exists, a party denying paternity has the burden of rebutting the presumption. (6) WHICH ATTORNEY REPRESENTS STATE. (a) The attorney responsible for support enforcement under s. 59.53 (6) (a) shall provide the representation for the state as specified under s. 767.205 (2) (a) in cases brought under this section. (b) The attorney under s. 59.53 (6) (a) is the only county attorney who may provide representation when the state delegates its authority under sub. (1) (g). (c) The attorney under s. 59.53 (6) (a) or any state attorney acting under par. (b) may not represent the state as specified under s. 767.205 (2) (a) in an action under this section and at the same time act as guardian ad litem for the child or the alleged child of the party. (6m) WHEN ACTION MUST BE COMMENCED. The attorney designated under sub. (6) (a) shall commence an action under this section on behalf of the state within 6 months after receiving notification under s. 69.03 (15) that no father is named on the birth record of a child who is a resident of the county if paternity has not been conclusively determined from genetic test results under s. 767.804, acknowledged under s. 767.805 (1) or a substantially similar law of another state, or adjudicated, except in situations under s. 69.14 (1) (g) and (h) and as provided by the department by rule. (6r) RESPONSIBILITIES OF ATTORNEY UPON REFERRAL. (a) The attorney designated under sub. (6) (a) who receives a referral under s. 48.299 (6) (a) or 938.299 (6) (a) shall do all of the following: 1. Give priority to matters referred under s. 48.299 (6) (a) or 938.299 (6) (a), including priority in determining whether an action should be brought under this section and, if the determination is that such an action should be brought, priority in bringing the action and in establishing the existence or nonexistence of paternity. 2. As soon as possible, but no later than 30 days after the date on which the referral is received, notify the court that referred the matter of one of the following: a. The date on which an action has been brought under this section or the approximate date on which such an action will be brought. b. That a determination has been made that an action should not be brought under this section or, if such a determination has not been made, the approximate date on which a determination will be made as to whether such an action should be brought. c. That the male designated in s. 48.299 (6) (a) or 938.299 (6) (a) has previously been excluded as the father of the child. 3. If an action is brought under this section, notify the court that referred the matter as soon as possible of a judgment or order determining the existence or nonexistence of paternity. (b) The attorney designated under sub. (6) (a) who receives a referral under s. 48.299 (7) or 938.299 (7) may bring an action under this section on behalf of the state and may give priority to the referral and notify the referring court in the same manner as is required under par. (a) when a matter is referred under s. 48.299 (6) (a) or 938.299 (6) (a).
May 22, 2026, are designated by NOTES. (Published 5-22-26)
767.80
ACTIONS AFFECTING THE FAMILY
(7) CLERK TO PROVIDE DOCUMENT. The clerk of court shall provide without charge to each person bringing an action under this section, except to the state under sub. (1) (g) or (6m), a document setting forth the percentage standard established by the department under s. 49.22 (9) and listing the factors that a court may consider under s. 767.511 (1m). History: 1979 c. 352; 1981 c. 20 s. 2202 (20) (m); 1983 a. 447; 1985 a. 29; 1987 a. 27, 355, 399, 413; 1989 a. 31, 212; 1993 a. 326, 481; 1995 a. 27 s. 9126 (19); 1995 a. 68, 100, 201, 275, 404; 1997 a. 191; 1999 a. 9; 2001 a. 61; 2005 a. 443 ss. 12, 184, 241; Stats. 2005 s. 767.80; 2007 a. 97; 2009 a. 321; 2015 a. 82 s. 12; 2017 a. 334; 2019 a. 95. Cross-reference: See also ch. DCF 151, Wis. adm. code. A paternity proceeding may not be maintained posthumously. Caldwell v. Kaquatosh, 84 Wis. 2d 545, 267 N.W.2d 870 (1978). See also N.L.B. v. G.B., 140 Wis. 2d 400, 411 N.W.2d 144 (Ct. App. 1987). Under the facts of this case, the nonbiological father was not equitably estopped from denying paternity or child support. A.M.N. v. A.J.N., 141 Wis. 2d 99, 414 N.W.2d 68 (Ct. App. 1987). A posthumous paternity action is allowable if it is brought by the putative father’s personal representative. Le Fevre v. Schrieber, 167 Wis. 2d 733, 482 N.W.2d 904 (1992). A paternity action may not be used to challenge paternity previously decided in a divorce action. That paternity was not challenged in the divorce is irrelevant if it could have been litigated. Max T. v. Carol O., 174 Wis. 2d 352, 497 N.W.2d 740 (Ct. App. 1993). The full faith and credit clause of the U.S. Constitution did not bar a petition to determine paternity when a paternity decree of another state would have been subject to collateral attack in that state. R.D.P. v. R.L.B., 176 Wis. 2d 224, 500 N.W.2d 351 (Ct. App. 1993). Because a child has a right to bring an independent action for paternity under sub. (1) (a), if the child was not a party to an earlier paternity action, it would be a violation of the child’s due process rights to preclude the child from litigating the paternity issue. Mayonia M.M. v. Keith N., 202 Wis. 2d 460, 551 N.W.2d 31 (Ct. App. 1996), 95-2838. An alleged father has a statutory right to a determination of paternity. A hearing to determine whether the child’s best interests would be served by a paternity proceeding is not authorized by statute. Thomas M.P. v. Kimberly J.L., 207 Wis. 2d 388, 558 N.W.2d 897 (Ct. App. 1996), 96-0697. Section 893.88, limiting only an action for the establishment of paternity, does not preclude a motion for the purpose of determining paternity in a probate proceeding. DiBenedetto v. Jaskolski, 2003 WI App 70, 261 Wis. 2d 723, 661 N.W.2d 869, 01-2189. Construing the discretionary authority of a personal representative under sub. (1) (e) in a way that allows preventing the definitive determination of heirs would undermine the principle that property of intestate deceased persons should descend to kindred of the blood and defeat a court’s responsibility under s. 863.23 that persons who are the heirs of the decedent shall be determined by the court. DiBenedetto v. Jaskolski, 2003 WI App 70, 261 Wis. 2d 723, 661 N.W.2d 869, 01-2189. In order for a putative biological father to have the necessary foundation for a constitutionally protected liberty interest in his putative paternity, he must have taken affirmative steps to assume his parental responsibilities for the child. Randy A.J. v. Norma I.J., 2004 WI 41, 270 Wis. 2d 384, 677 N.W.2d 630, 02-0469. The competing interests of finality and fairness coalesce when considering s. 806.07 (1) (h) and principles of res judicata. Res judicata and collateral estoppel are founded on principles of fundamental fairness and should not deprive a party of the opportunity to have a full and fair determination of an issue. When the record demonstrated that an adjudicated father never had an opportunity for a full and fair determination of the question of paternity, res judicata should not have barred relief. Shanee Y. v. Ronnie J., 2004 WI App 58, 271 Wis. 2d 242, 677 N.W.2d 684, 031227. Sub. (1) does not permit a man alleging he is the father to bring a paternity action for the sole purpose of establishing paternity of a stillborn so that he may bring a wrongful death action. The proper vehicle for determining parentage is a motion by the father under s. 885.23 for a determination of parentage within the pending wrongful death action. Shannon E.T. v. Alicia M.V.M., 2007 WI 29, 299 Wis. 2d 601, 728 N.W.2d 636, 05-0077. Sub. (1) utilizes mandatory language requiring the state to initiate a paternity action when, as provided in sub. (6m), no father’s name was listed on the birth certificate. Thus, according to the clear language of this statute, the state was obligated to commence a paternity action. A presumption of paternity under s. 891.41 does not alleviate the state of its obligations under sub. (1). State v. Robin M.W., 2008 WI App 60, 310 Wis. 2d 786, 750 N.W.2d 957, 07-1181. The standard of review for best-interest determinations in paternity proceedings requires that the appellate court accept the circuit court’s factual findings unless clearly erroneous but determine the child’s best interest de novo. Douglas L. v. Arika B., 2015 WI App 80, 365 Wis. 2d 257, 872 N.W.2d 357, 14-2656.
767.803 Determination of marital children. If the father and mother of a nonmarital child enter into a lawful marriage or a marriage which appears and they believe is lawful, except where the parental rights of the mother were terminated before either of these circumstances, the child becomes a marital child, is entitled to a change in birth record under s. 69.15 (3) (b), and shall enjoy all of the rights and privileges of a marital child as if he or she had been born during the marriage of the parents. This
Updated 23-24 Wis. Stats.
50
section applies to all cases before, on, or after its effective date, but no estate already vested shall be divested by this section and ss. 765.05 to 765.24 and 852.05. The children of all marriages declared void under the law are nevertheless marital children. History: 1979 c. 32 ss. 48, 92 (2); Stats. 1979 s. 765.25; 1979 c. 352; Stats. 1979 s. 767.60; 1981 c. 314 s. 146; 1983 a. 447; 1985 a. 315; 2005 a. 443 s. 229; Stats. 2005 s. 767.803; 2017 a. 334.
767.804 Genetic test results. (1) CONCLUSIVE DETERMINATION OF PATERNITY. (a) If genetic tests have been performed with respect to a child, the child’s mother, and a male alleged, or alleging himself, to be the child’s father, the test results constitute a conclusive determination of paternity, effective on the date on which the report under par. (c) is submitted to the state registrar, which has the same effect as a judgment of paternity, if all of the following apply: 1. Both the child’s mother and the male are over the age of 18 years. 2. The genetic tests were required to be performed by a county child support agency under s. 59.53 (5) pursuant to s. 49.225. 3. The test results show that the male is not excluded as the father and that the statistical probability of the male’s parentage is 99.0 percent or higher. 4. No other male is presumed to be the father under s. 891.405 or 891.41 (1). (b) When the county child support agency under s. 59.53 (5) receives genetic test results described in par. (a) 3. and the requirements under par. (a) are satisfied, the county child support agency shall send notice to the mother and male by regular mail at their last-known addresses. The notice must be sent at least 15 days in advance of the date on which the county child support agency intends to file the report under par. (c) and shall advise the mother and male of all of the following: 1. The test results. 2. That the report under par. (c) will be filed with the state registrar if neither the mother nor the male timely objects under subd. 4., and the date on which the report will be filed. 3. That an action affecting the family concerning custody, child support, or physical placement rights may be brought with respect to the mother and male. 4. That the mother or the male, or both, may object to the test results by submitting an objection in writing to the county child support agency no later than the day before the date specified in subd. 2., and that, if either the mother or the male timely submits an objection, the state will commence a paternity action. (c) 1. If neither the mother nor the male timely submits an objection under par. (b) 4., the county child support agency shall file with the state registrar a report showing the names, dates, and birth places of the child and the father, the social security numbers of the mother, father, and child, and the maiden name of the mother on a form prescribed by the state registrar, along with the fee set forth in s. 69.22 (5), if any, which the county child support agency shall collect. 2. The department shall pay, and may not require the county or county child support agency to reimburse the department, for the cost of a fee for inserting the father’s name on a birth certificate under s. 69.15 (3) (a) 3. if the county child support agency is unable to collect the fee. (d) If either the mother or the male timely submits an objection under par. (b) 4., the county child support agency shall commence an action under s. 767.80 (1) on behalf of the state. The genetic test results described in par. (a) are admissible in an action commenced under this paragraph. (2) ACTIONS. Unless sub. (1) (d) applies, an action affecting the family concerning custody, child support, or physical place-
May 22, 2026, are designated by NOTES. (Published 5-22-26)
51
Updated 23-24 Wis. Stats.
ment rights may be brought under this subsection with respect to a child’s mother and a male who, along with the child, were the subjects of genetic tests, the results of which constitute a conclusive determination of paternity under sub. (1). Except as provided in s. 767.407, in an action under this subsection the court may appoint a guardian ad litem for the child. (3) ORDERS. In an action under sub. (2), if the child’s custodial and noncustodial parent had notice of the hearing, the court shall make an order that contains all of the following provisions: (a) Orders for the legal custody of and periods of physical placement with the child, determined in accordance with s. 767.41. (b) An order requiring either or both of the parents to contribute to the support of any child of the parties who is less than 18 years old, or any child of the parties who is less than 19 years old if the child is pursuing an accredited course of instruction leading to the acquisition of a high school diploma or its equivalent, determined in accordance with s. 767.511. (c) A determination as to which parent, if eligible, shall have the right to claim the child as an exemption for federal tax purposes under 26 USC 151 (c). (d) 1. An order establishing the amount of the father’s obligation to pay or contribute to the reasonable expenses of the mother’s pregnancy and the child’s birth. The amount established may not exceed one-half of the total actual and reasonable pregnancy and birth expenses. The order also shall specify the court’s findings as to whether the father’s income is at or below the poverty line established under 42 USC 9902 (2), and shall specify whether periodic payments are due on the obligation, based on the father’s ability to pay or contribute to those expenses. 2. If the order does not require periodic payments because the father has no present ability to pay or contribute to the expenses, the court may modify the judgment or order at a later date to require periodic payments if the father has the ability to pay at that time. (e) An order requiring either or both parties to pay or contribute to the costs of guardian ad litem fees, if any, and other costs. (f) An order requiring either party to pay or contribute to the attorney fees of the other party. (3m) CHANGE OF CHILD’S NAME. (a) Upon the request of both parents, the court shall include in the order under sub. (3) an order changing the name of the child to a name agreed upon by the parents. (b) Except as provided in par. (a), the court may include an order changing the surname of the child to a surname that consists of the surnames of both parents separated by a hyphen or, if one or both parents have more than one surname, of one of the surnames of each parent separated by a hyphen, if all of the following apply: 1. Only one parent requests that the child’s name be changed, or both parents request that the child’s name be changed but each parent requests a different name change. 2. The court finds that such a name change is in the child’s best interest. (c) Section 786.36 does not apply to a name change under this subsection. (4) LIABILITY FOR PAST SUPPORT. (a) Subject to par. (b), liability for past support of the child shall be limited to support for the period after the day on which the petition, motion, or order to show cause requesting support is filed in the action for support under sub. (2), unless a party shows, to the satisfaction of the court, all of the following:
ACTIONS AFFECTING THE FAMILY
767.805
1. That he or she was induced to delay commencing the action by any of the following: a. Duress or threats. b. Actions, promises, or representations by the other party upon which the party relied. c. Actions taken by the other party to evade proceedings under sub. (2). 2. That, after the inducement ceased to operate, he or she did not unreasonably delay in commencing the action. (b) In no event may liability for past support of the child be imposed for any period before the birth of the child. History: 2019 a. 95; 2021 a. 127.
767.805 Voluntary acknowledgment of paternity. (1) CONCLUSIVE DETERMINATION OF PATERNITY. A statement acknowledging paternity that is on file with the state registrar under s. 69.15 (3) (b) 3. after the last day on which a person may timely rescind the statement, as specified in s. 69.15 (3m), is a conclusive determination, which shall be of the same effect as a judgment, of paternity. (1m) MINOR PARENT MAY NOT SIGN. A minor may not sign a statement acknowledging paternity. (2) RESCISSION OF ACKNOWLEDGMENT. (a) A statement acknowledging paternity that is filed with the state registrar under s. 69.15 (3) (b) 3. may be rescinded as provided in s. 69.15 (3m) by a person who signed the statement as a parent of the child who is the subject of the statement. (b) If a statement acknowledging paternity is timely rescinded as provided in s. 69.15 (3m), a court may not enter an order specified in sub. (4) with respect to the male who signed the statement as the father of the child unless the male is adjudicated the child’s father using the procedures set forth in this subchapter, except for this section. (3) ACTIONS WHEN PATERNITY ACKNOWLEDGED. (a) Unless the statement acknowledging paternity has been rescinded, an action affecting the family concerning custody, child support or physical placement rights may be brought with respect to persons who, with respect to a child, jointly signed and filed with the state registrar under s. 69.15 (3) (b) 3. as parents of the child a statement acknowledging paternity. (b) Except as provided in s. 767.407, in an action specified in par. (a) the court may appoint a guardian ad litem for the child. (4) ORDERS WHEN PATERNITY ACKNOWLEDGED. In an action under sub. (3) (a), if the persons who signed and filed the statement acknowledging paternity as parents of the child had notice of the hearing, the court shall make an order that contains all of the following provisions: (a) Orders for the legal custody of and periods of physical placement with the child, determined in accordance with s. 767.41. (am) The information set forth in s. 767.41 (6) (h). (b) An order requiring either or both of the parents to contribute to the support of any child of the parties who is less than 18 years old, or any child of the parties who is less than 19 years old if the child is pursuing an accredited course of instruction leading to the acquisition of a high school diploma or its equivalent, determined in accordance with s. 767.511. (c) A determination as to which parent, if eligible, shall have the right to claim the child as an exemption for federal tax purposes under 26 USC 151 (c). (d) 1. An order establishing the amount of the father’s obligation to pay or contribute to the reasonable expenses of the mother’s pregnancy and the child’s birth. The amount established may not exceed one-half of the total actual and reasonable
May 22, 2026, are designated by NOTES. (Published 5-22-26)
767.805
ACTIONS AFFECTING THE FAMILY
pregnancy and birth expenses. The order also shall specify the court’s findings as to whether the father’s income is at or below the poverty line established under 42 USC 9902 (2), and shall specify whether periodic payments are due on the obligation, based on the father’s ability to pay or contribute to those expenses. 2. If the order does not require periodic payments because the father has no present ability to pay or contribute to the expenses, the court may modify the judgment or order at a later date to require periodic payments if the father has the ability to pay at that time. (e) An order requiring either or both parties to pay or contribute to the costs of the guardian ad litem fees and other costs. (f) An order requiring either party to pay or contribute to the attorney fees of the other party. (4m) LIABILITY FOR PAST SUPPORT. (a) Subject to par. (b), liability for past support of the child shall be limited to support for the period after the day on which the petition, motion or order to show cause requesting support is filed in the action for support under sub. (3) (a), unless a party shows, to the satisfaction of the court, all of the following: 1. That he or she was induced to delay commencing the action by any of the following: a. Duress or threats. b. Actions, promises or representations by the other party upon which the party relied. c. Actions taken by the other party to evade proceedings under sub. (3) (a). 2. That, after the inducement ceased to operate, he or she did not unreasonably delay in commencing the action. (b) In no event may liability for past support of the child be imposed for any period before the birth of the child. (5) VOIDING DETERMINATION. (a) A determination of paternity that arises under this section may be voided at any time upon a motion or petition stating facts that show fraud, duress or a mistake of fact. Except for good cause shown, any orders entered under sub. (4) shall remain in effect during the pendency of a proceeding under this paragraph. (b) If a court in a proceeding under par. (a) determines that the male is not the father of the child, the court shall vacate any order entered under sub. (4) with respect to the male. The court or the county child support agency under s. 59.53 (5) shall notify the state registrar, in the manner provided in s. 69.15 (1) (b), to remove the male’s name as the father of the child from the child’s birth record. No paternity action may thereafter be brought against the male with respect to the child. (6) APPLICABILITY. (a) This section does not apply unless all of the following apply to the statement acknowledging paternity: 1. The statement is made on a form prescribed by the state registrar for use beginning on April 1, 1998. 2. The statement was signed and filed on or after April 1, 1998. 3. The statement contains an attestation clause showing that both parties, before signing the statement, received oral and written notice of the legal consequences of, the rights and responsibilities arising from and the alternatives to, signing the statement. (b) Parties who signed and filed a statement acknowledging paternity before April 1, 1998, may sign and file a new statement that fulfills the requirements under par. (a). The new statement supersedes any statement previously filed with the state registrar and has the effects specified in this section. (c) The notice requirements under s. 69.15 (3) (b) 3. apply to
Updated 23-24 Wis. Stats.
52
this section beginning with the acknowledgements of paternity that are prescribed by the state registrar on April 1, 1998. History: 1993 a. 481; 1995 a. 100; 1997 a. 191; 1999 a. 9; 2001 a. 16, 61; 2005 a. 304; 2005 a. 443 ss. 233, 242; Stats. 2005 s. 767.805; 2013 a. 170; 2017 a. 203, 334, 366; 2021 a. 127. NOTE: 2005 Wis. Act 443 contains explanatory notes. A Michigan Affidavit of Parentage was a conclusive determination of paternity in Wisconsin. The affidavit was not voided under sub. (5) (a) by a Wisconsin child support action in which tests found the signer of the affidavit not to be the biological father when there was no showing of fraud, duress, or a mistake of fact in relation to the signing of the affidavit. Sub. (5) (b) does not prevent the child from bringing a paternity action based on having been unrepresented at the original paternity proceeding. Daniel T.W. v. Joni K.W., 2009 WI App 13, 315 Wis. 2d 181, 762 N.W.2d 444, 08-0902. A circuit court does not have the power to change the name of a child when paternity has been determined on the basis of voluntary acknowledgment under this section. Scace v. Schulte, 2018 WI App 30, 382 Wis. 2d 180, 913 N.W.2d 189, 162413. Wisconsin’s Custody, Placement, and Paternity Reform Legislation. Walther. Wis. Law. Apr. 2000.
767.813 Summons. (1) PURPOSE. The summons shall state the purpose of the action. (2) SIGNING. The process shall be signed by the clerk of the court or by the petitioner’s attorney. (3) RETURN DATE. Every summons shall specify a return date and time before the court. The clerk of the court shall set the date and hour at which the summons is returnable. (4) SERVICE. The summons and petition shall be served in the manner provided in s. 801.11 (1) (a) or (b) or, notwithstanding s. 990.001 (13), by registered or certified mail, with return receipt signed by the respondent. (5) FORMS. The summons shall be in substantially one of the following forms: (a) Mother as petitioner. STATE OF WISCONSIN, CIRCUIT COURT: ....COUNTY In re the Paternity of A. B. STATE OF WISCONSIN and C. D. (Mother-Petitioner) Address City, State Zip Code File No. ... , Petitioners vs. SUMMONS E. F. Address .... (Case Classification Type):.... (Code No.) City, State Zip Code , Respondent THE STATE OF WISCONSIN, To the Respondent: 1. You have been sued. .... claims that you are the father of the child, .... born on .... (date), in .... (city) (county) (state). You must appear to answer this claim of paternity. Your court appearance is: Date: Time: Room: Judge or Circuit Court Commissioner: Address: 2. If you do not appear, the court will enter a default judgment finding you to be the father. 3. If you plan to be represented by an attorney, you should contact the attorney prior to the court appearance listed above. If you are unable to afford an attorney, the court will appoint one for
May 22, 2026, are designated by NOTES. (Published 5-22-26)
53
Updated 23-24 Wis. Stats.
you only upon the genetic tests showing that you are not excluded as the father and the probability of your being the father is less than 99.0 percent. 4. You are also notified that interference with the custody of a child is punishable by a fine of up to $10,000 and imprisonment for up to 3 years and 6 months. Section 948.31, stats. 5. The .... County Clerk of Circuit Court is an equal opportunity service provider. If you need assistance to access services in the courts or need material in an alternate format, please call ..... Dated: ...., .... (year) Signed:.... .... G. H., Clerk of Circuit Court or Petitioner’s Attorney State Bar No.: .... Address: .... City, State Zip Code: .... Phone No.: .... (b) Alleged father as petitioner. STATE OF WISCONSIN,
CIRCUIT COURT: ....COUNTY
In re the Paternity of A. B. C. D. (Alleged Father-Petitioner) Address City, State Zip Code File No. ... , Petitioners vs. SUMMONS E. F. Address .... (Case Classification Type):.... (Code No.) City, State Zip Code , Respondent THE STATE OF WISCONSIN, To the Respondent: 1. You have been sued. The petitioner .... claims that he may be the father of the child, .... born on .... (date), in .... (city) (county) (state). You must appear to answer this claim of paternity. Your court appearance is: Date: Time: Room: Judge or Circuit Court Commissioner: Address: 2. If you do not appear, the court will enter a default judgment finding the petitioner .... to be the father. If you plan to be represented by an attorney, you should contact the attorney prior to the court appearance listed above. 3. The .... County Clerk of Circuit Court is an equal opportunity service provider. If you need assistance to access services in the court or need material in an alternate format, please call .... . Dated: ...., .... (year) Signed:.... .... G. H., Clerk of Circuit Court or Petitioner’s Attorney State Bar No.: .... Address: .... City, State Zip Code: .... Phone No.: ....
ACTIONS AFFECTING THE FAMILY
767.813
(c) Nonparent as petitioner. STATE OF WISCONSIN,
CIRCUIT COURT: ....COUNTY
In re the Paternity of A. B. C. D. (Nonparent-Petitioner) Address City, State Zip Code File No. ... , Petitioners vs. SUMMONS E. F. Address .... (Case Classification Type):.... (Code No.) City, State Zip Code , Respondent THE STATE OF WISCONSIN, To the Respondent 1. You have been sued. The petitioner .... claims that .... is the mother and .... may be the father of the child, .... born on .... (date), in .... (city) (county) (state). You must appear to answer this claim of paternity. Your court appearance is: Date: Time: Room: Judge or Circuit Court Commissioner: Address: 2. If you do not appear, the court may enter a default judgment finding .... to be the father. If you plan to be represented by an attorney, you should contact the attorney prior to the court appearance listed above. If you are alleged to be the father and you are unable to afford an attorney, the court will appoint one for you only upon genetic tests showing that you are not excluded as the father and the probability of your being the father is less than 99.0 percent. 3. The .... County Clerk of Circuit Court is an equal opportunity service provider. If you need assistance to access services in the court or need material in an alternate format, please call .... . Dated: ...., .... (year) Signed:.... .... G. H., Clerk of Circuit Court or Petitioner’s Attorney State Bar No.: .... Address: .... City, State Zip Code: .... Phone No.: .... (5g) NOTICE. The notice to parties shall be attached to the summons. The notice shall be in boldface type and in substantially the following form: NOTICE TO PARTIES 1. You are a party to a petition for paternity. A judgment of paternity legally designates the child in the case to be a child of the man found to be the father. It creates a legally recognized parent-child relationship between the man and the child. It creates the right of inheritance for the child, and obligates the man to support the child until the child reaches the age of 18, or the age of 19 if the child is enrolled full-time in high school or its equivalent. The failure by either parent to pay court-ordered support is punishable by imprisonment as a contempt of court or as a criminal violation. 2. A party to a paternity case has the right to be represented by
May 22, 2026, are designated by NOTES. (Published 5-22-26)
767.813
ACTIONS AFFECTING THE FAMILY
an attorney. If you are unable to afford an attorney and you are a man who is named as the possible father of a child in a paternity case, the court will appoint an attorney for you only if the results of one or more genetic tests show that you are not excluded as the father and that the statistical probability of your being the father is less than 99.0 percent. In order to determine whether you are entitled to have an attorney appointed for you, you may call the following telephone number .... . 3. The petitioner in this case has the burden of proving by a clear and satisfactory preponderance of the evidence whether the man named as the possible father is the father. However, if genetic tests show that the man named is not excluded as the father, and show that the statistical probability that the man is the father is 99.0 percent or higher, that man is rebuttably presumed to be the father. 4. You may request genetic tests which will indicate the probability that the man named as the possible father is or is not the father of the child. The court will order genetic tests on a request by you, the state, or any other party. Any person who refuses to take court-ordered genetic tests may be punished for contempt of court. 5. The following defenses are available in a paternity case: (a) The man named as a possible father of the child may claim that he was sterile or impotent at the time of conception. (b) The mother may claim that she, or the man named as a possible father may claim that he, did not have sexual intercourse with the other party during the conceptive period (generally the period 8 to 10 months before the birth of the child). (c) The mother or the man named as a possible father may claim that another man had sexual intercourse with the mother during the conceptive period. 6. You have the right to request a jury trial on the issue of whether the named man is the father. 7. If you fail to appear at any stage of the proceeding, including a scheduled court-ordered genetic test, the court may enter a default judgment finding the man claimed to be the father as the father. 8. You must keep the clerk of court and child support agency informed of your current address at all times. (6) DOCUMENT. The summons served on the respondent shall be accompanied by a document, provided without charge by the clerk of court, setting forth the percentage standard established by the department under s. 49.22 (9) and listing the factors that a court may consider under s. 767.511 (1m). History: 1979 c. 352; 1981 c. 314; 1983 a. 447; 1985 a. 29; 1987 a. 27, 413; Sup. Ct. Order, 171 Wis. 2d xix (1992); 1993 a. 16, 481; 1995 a. 27 ss. 7112, 7113b, 9126 (19); 1995 a. 100, 404, 417; 1997 a. 35, 191, 250; 1999 a. 9; 2001 a. 61, 105; 2005 a. 443 ss. 185, 186, 190, 243, 244; Stats. 2005 s. 767.813; 2013 a. 170. NOTE: 2005 Wis. Act 443 contains explanatory notes.
767.814 Names on pleadings after paternity determined. After paternity is determined by the court in an action or proceeding under this subchapter, any papers filed in, and any records of, the court relating to the action or proceeding may identify the parties by name instead of by initials. History: 2005 a. 443.
767.815 Enlargement of time in a paternity proceeding. The time for service of summons and petition under s. 801.02 (1) in a paternity proceeding may be extended as provided in either sub. (1) or (2): (1) GOOD CAUSE. Upon the petitioner’s demonstration of good cause, the court may without notice order one additional 60day extension for service of the summons and petition. (2) REASONABLE GROUNDS; DUE DILIGENCE. The time for
Updated 23-24 Wis. Stats.
54
service may be extended until the date the summons and petition are actually served, if both of the following apply: (a) There are reasonable grounds to believe that before the time for service under s. 801.02 (1) or sub. (1) expired the respondent knew that the mother was pregnant and that the respondent may be the father. (b) Due diligence was exercised in attempting to serve the respondent, before he was actually served. History: 1983 a. 447; 2005 a. 443 ss. 191, 246; Stats. 2005 s. 767.815.
767.82 Paternity procedures. (1) APPOINTMENT OF GUARDIAN AD LITEM. (a) Except as provided in par. (b), the court may appoint a guardian ad litem for the child and shall appoint a guardian ad litem for a minor parent or minor who is alleged to be a parent in a paternity proceeding unless the minor parent or the minor alleged to be the parent is represented by an attorney. (b) The court shall appoint a guardian ad litem for the child if s. 767.407 (1) (a) or (c) applies or if the court has concern that the child’s best interest is not being represented. (2) PRESUMPTION. Presumption of paternity shall be as provided in ss. 891.39, 891.405, 891.407, and 891.41 (1). (2m) CUSTODY PENDING COURT ORDER. If there is no presumption of paternity under s. 891.41 (1) or if paternity is conclusively determined from genetic test results under s. 767.804 (1) or acknowledged under s. 767.805 (1), the mother shall have sole legal custody of the child until the court orders otherwise. (3) TIME OF CONCEPTION; EVIDENCE. Evidence as to the time of conception may be offered as provided in s. 891.395. (4) DISCOVERY. Discovery shall be conducted as provided in ch. 804, except that no discovery may be obtained later than 30 days before the trial. No discovery may solicit information relating to the sexual relations of the mother occurring at any time other than the probable time of conception. (5) STATUTE OF LIMITATIONS. The statute of limitations for commencing actions concerning paternity is as provided in s. 893.88. (6) ARREST. The respondent in a paternity action may be arrested as provided in s. 818.02 (6). (7) APPOINTMENT OF TRUSTEE OR GUARDIAN. The court may appoint a trustee or guardian to receive and manage money paid for the support of a minor child. (7m) WHEN ACTION HAS PRIORITY. The court shall give priority to an action brought under s. 767.80 if the petition under s. 767.80 (5) indicates that the matter was referred under s. 48.299 (6) (a) or 938.299 (6) (a) by a court assigned to exercise jurisdiction under chs. 48 and 938. (8) PROCEDURES APPLICABLE TO OTHER MATTERS IN ACTION. In all other matters, paternity proceedings shall be governed by the procedures applicable to other actions affecting the family. History: 1979 c. 352; 1981 c. 391; 1983 a. 447; 1989 a. 212; 1993 a. 481; 1995 a. 275; 1997 a. 191; 1999 a. 9; 2005 a. 443 ss. 208, 247; Stats. 2005 s. 767.82; 2019 a. 95. NOTE: 2005 Wis. Act 443 contains explanatory notes. A trust under sub. (7) is not restricted to cases in which the custodial parent is a spendthrift. Mary L.O. v. Tommy R.B., 189 Wis. 2d 440, 525 N.W.2d 793 (Ct. App. 1994). Affirmed in part and reversed in part. 199 Wis. 2d 186, 544 N.W.2d 417 (1996), 931929.
767.83 Right to counsel. (1) GENERALLY. At the pretrial hearing, at the trial, and in any other proceedings in any paternity action, any party may be represented by counsel. If the male respondent is indigent and the state is the petitioner under s. 767.80 (1) (g), the petitioner is represented by a government attorney as provided in s. 767.80 (6), or the action is commenced on behalf of
May 22, 2026, are designated by NOTES. (Published 5-22-26)
55
Updated 23-24 Wis. Stats.
the child by an attorney appointed under s. 767.407 (1) (c), counsel shall be appointed for the respondent as provided in ch. 977, subject to the limitations under sub. (2m), unless the respondent knowingly and voluntarily waives the appointment of counsel. (2) EXTENT OF APPOINTED ATTORNEY’S REPRESENTATION. An attorney appointed under sub. (1) who is appearing on behalf of a party in a paternity action shall represent that party, subject to the limitations under sub. (2m), in all issues and proceedings relating to the paternity determination. The appointed attorney may not represent the party in any proceeding relating to child support, legal custody, periods of physical placement or related issues. (2m) WHEN APPOINTED REPRESENTATION PROVIDED. Representation by an attorney appointed under sub. (1) shall be provided only after the results of any genetic tests have been completed and only if all of the results fail to show that the alleged father is excluded and fail to give rise to the rebuttable presumption under s. 767.84 (1m) that the alleged father is the father of the child. (3) APPEARANCE BY STATE’S ATTORNEY NOT AFFECTED. This section does not prevent an attorney responsible for support enforcement under s. 59.53 (6) (a) or any other attorney employed under s. 49.22 or 59.53 (5) from appearing in any paternity action as provided under s. 767.80 (6). History: 1979 c. 352; 1983 a. 27; 1987 a. 355; 1989 a. 31; 1993 a. 16, 481; 1995 a. 27, 100, 201, 404; 1997 a. 35, 191; 2005 a. 443 ss. 221, 248; Stats. 2005 s. 767.83. A paternity respondent does not have a constitutional right to effective assistance of counsel. A paternity action is not a criminal prosecution. R.M.J. v. State, 158 Wis. 2d 712, 463 N.W.2d 403 (Ct. App. 1990).
767.84
Genetic tests in paternity actions. (1) WHEN (a) Except as provided in ss. 767.855 and 767.863, and except in actions to which s. 767.893 applies, the court shall require the child, mother, any male for whom there is probable cause to believe that he had sexual intercourse with the mother during a possible time of the child’s conception, or any male witness who testifies or will testify about his sexual relations with the mother at a possible time of conception to submit to genetic tests. Probable cause of sexual intercourse during a possible time of conception may be established by a sufficient petition or affidavit of the child’s mother or an alleged father, filed with the court, or after an examination under oath of a party or witness, when the court determines that an examination is necessary. The court is not required to order a genetic test under this paragraph with respect to any of the following: 1. A person who has undergone a genetic test under s. 49.225, unless a party requests additional tests under sub. (2). 2. A deceased respondent if genetic material is not available without undue hardship as provided in s. 767.865 (2). 3. a. Except as provided in subd. 3. b., a male respondent who fails to appear, if genetic test results with respect to another man show that the other man is not excluded as the father and that the statistical probability of the other man’s parentage is 99.0 percent or higher creating a presumption of the other man’s paternity. b. Subdivision 3. a. does not apply if the presumption of the other man’s paternity is rebutted. (b) The genetic tests shall be performed by an expert qualified as an examiner of genetic markers present on the cells of the specific body material to be used for the tests, appointed by the court. A report completed and certified by the court-appointed expert stating genetic test results and the statistical probability of the alleged father’s paternity based upon the genetic tests is admissible as evidence without expert testimony and may be entered into the record at the trial or pretrial hearing if all of the following apply: TEST ORDERED; REPORT.
ACTIONS AFFECTING THE FAMILY
767.84
1. At least 10 days before the trial or pretrial hearing, the party offering the report files it with the court and notifies all other parties of that filing. 2. At least 10 days before the trial or pretrial hearing, the department or county child support agency under s. 59.53 (5) notifies the alleged father of the results of the genetic tests and that he may object to the test results by submitting an objection in writing to the court no later than the day before the hearing. 3. The alleged father, after receiving the notice under subd. 2., does not object to the test results in the manner provided in the notice under subd. 2. (1m) REBUTTABLE PRESUMPTION. If genetic tests ordered under this section or s. 49.225 show that the alleged father is not excluded and that the statistical probability of the alleged father’s parentage is 99.0 percent or higher, the alleged father shall be rebuttably presumed to be the child’s parent. (2) INDEPENDENT TESTS. The court, upon request by a party, shall order that independent tests be performed by other experts qualified as examiners of genetic markers present on the cells of the specific body material to be used for the tests. Additional tests performed by other experts of the same qualifications may be ordered by the court at the request of any party. (3) NUMBER AND QUALIFICATIONS OF EXPERTS. In all cases, the court shall determine the number and qualifications of the experts. (4) TESTS EXCLUDING PATERNITY; REFUSAL TO SUBMIT TO TEST. Genetic test results excluding an alleged father as the father of the child are conclusive evidence of nonpaternity and the court shall dismiss any paternity action with respect to that alleged father. Genetic test results excluding any male witness from possible paternity are conclusive evidence of nonpaternity of the male witness. Testimony relating to sexual intercourse or possible sexual intercourse of the mother with any person excluded as a possible father, as a result of a genetic test, is inadmissible as evidence. Refusal of a party to submit to a genetic test shall be disclosed to the fact finder. Refusal to submit to a genetic test ordered by the court is a contempt of the court for failure to produce evidence under s. 767.87 (5). If the action was brought by the child’s mother but she refuses to submit herself or the child to genetic tests, the action shall be dismissed. (5) FEES AND COSTS. The fees and costs for genetic tests performed upon any person listed under sub. (1) shall be paid for by the county except as follows: (a) Except as provided in par. (b), at the close of the proceeding the court may order either or both parties to reimburse the county if the court finds that they have sufficient resources to pay the costs of the genetic tests. (b) If 2 or more identical series of genetic tests are performed upon the same person, regardless of whether the tests were ordered under this section or s. 49.225 or 767.863 (2), the court shall require the person requesting the 2nd or subsequent series of tests to pay for the series in advance, unless the court finds that the person is indigent. (6) CALLING CERTAIN WITNESSES; NOTICE. Any party calling a male witness for the purpose of testifying that he had sexual intercourse with the mother at any possible time of conception shall provide all other parties with the name and address of the witness 20 days before the trial or pretrial hearing. If a male witness is produced at the hearing for the purpose stated in this subsection but the party calling the witness failed to provide the 20-day notice, the court may adjourn the proceeding for the purpose of taking a genetic test of the witness prior to hearing the testimony of the witness if the court finds that the party calling the witness acted in good faith. (7) NOTICE OF RIGHT TO TESTS. The court shall ensure that
May 22, 2026, are designated by NOTES. (Published 5-22-26)
767.84
ACTIONS AFFECTING THE FAMILY
all parties are aware of their right to request genetic tests under this section. History: 1979 c. 352; 1983 a. 447; 1987 a. 27; 1993 a. 481; 1995 a. 100; 1997 a. 191; 2005 a. 443 ss. 210, 211c, 212c, 249, 251; Stats. 2005 s. 767.84; 2019 a. 95. When initial blood tests excluded the alleged father and the state moved for additional tests under sub. (2), the trial court erred in denying the motion and dismissing the action under sub. (4). State v. M.T.D., 132 Wis. 2d 262, 392 N.W.2d 97 (Ct. App. 1986). The chain of custody, or authentication, must be established prior to admission of evidence under sub. (1) (b). B.A.C. v. T.L.G., 135 Wis. 2d 280, 400 N.W.2d 48 (Ct. App. 1986). When the respondent failed to introduce evidence regarding the test, the trial court properly barred the respondent from attacking the test during closing argument. T.A.T. v. R.E.B., 144 Wis. 2d 638, 425 N.W.2d 404 (1988). DNA test results are admissible when the procedures meet the requirements for blood tests under sub. (1) (b). J.L.K. v. J.J., 151 Wis. 2d 566, 445 N.W.2d 673 (Ct. App. 1989). If more than one set of blood test results are presented, the sub. (1m) presumption is inapplicable if the statistical probability of only one test reaches the 99 percent level. State ex rel. K.F.K. v. D.P.K., 160 Wis. 2d 429, 465 N.W.2d 833 (Ct. App. 1991). When only one potential father named by the mother is not excluded by blood tests, sub. (4) does not prevent showing that the mother on several occasions did not name him as a person with whom she had sex during the conceptual period. State v. Mark A., 177 Wis. 2d 551, 503 N.W.2d 275 (Ct. App. 1993). That sub. (1m) applies only to children born to a woman while she is married does not violate principles of equal protection. Thomas M.P. v. Kimberly J.L., 207 Wis. 2d 388, 558 N.W.2d 897 (Ct. App. 1996), 96-0697. A mere denial of intercourse, when access during the conceptive period is established and no other potential fathers are identified, is sufficient to rebut the presumption under sub. (1m) for purposes of preventing entry of a summary judgment of paternity. State v. Michael J.W., 210 Wis. 2d 132, 565 N.W.2d 179 (Ct. App. 1997), 95-2917. The term “statistical probability” in sub. (1m) means the probability determined by combining the results of all the different types of tests performed. State v. Michael J.W., 210 Wis. 2d 132, 565 N.W.2d 179 (Ct. App. 1997), 95-2917. A genetic test showing another man to be the natural father rebuts the presumption under sub. (1m) and s. 891.41 that the spouse of the child’s mother is the father, but equitable estoppel may be employed to preclude rebutting the presumption. The issue is whether the actions and inactions of the parties advocating the rebuttal of the marital presumption were so unfair as to preclude them from overcoming the public’s interest in the marital presumption based on the results of genetic tests. Randy A.J. v. Norma I.J., 2004 WI 41, 270 Wis. 2d 384, 677 N.W.2d 630, 02-0469. From here to paternity: Using blood analysis to determine parentage. Haas. WBB July 1988.
767.85 Temporary orders. (1) WHEN REQUIRED. At any time during the pendency of an action to establish the paternity of a child, if genetic tests show that the alleged father is not excluded and that the statistical probability of the alleged father’s parentage is 99.0 percent or higher, on the motion of a party, the court shall make an appropriate temporary order for the payment of child support and may make a temporary order assigning responsibility for and directing the manner of payment of the child’s health care expenses. (2) CONSIDERATIONS. Before making any temporary order under sub. (1), the court shall consider those factors that the court is required to consider when granting a final judgment on the same subject matter. If the court makes a temporary child support order that deviates from the amount of support that would be required by using the percentage standard established by the department under s. 49.22 (9), the court shall comply with the requirements of s. 767.511 (1n). History: 1997 a. 191; 1999 a. 9; 2005 a. 443 ss. 209, 252; Stats. 2005 s. 767.85.
767.853 Paternity hearings and records; confidentiality. Any hearing, discovery proceeding or trial relating to paternity determination shall be closed to any person other than those necessary to the action or proceeding. Any record of pending proceedings shall be placed in a closed file, except that: (1) PENDING PROCEEDING. Access to the record of any pending proceeding involving the paternity of the same child shall be allowed to all of the following: (a) The child’s parents. (b) The parties to that proceeding and their attorneys or their authorized representatives.
Updated 23-24 Wis. Stats.
56
(c) If the child is the subject of a proceeding under ch. 48 or 938, all of the following: 1. The court assigned to exercise jurisdiction under chs. 48 and 938 in which the proceeding is pending. 2. The parties to the proceeding under ch. 48 or 938 and their attorneys. 3. The person under s. 48.09 or 938.09 who represents the interests of the public in the proceeding under ch. 48 or 938. 4. A guardian ad litem for the child and a guardian ad litem for the child’s parent. 5. Any governmental or social agency involved in the proceeding under ch. 48 or 938. (2) INFORMATION ACCESS TO DEPARTMENT AND CHILD SUPPORT AGENCIES. The clerk of circuit court shall provide access to the record of any pending paternity proceeding to the department or any county child support agency under s. 59.53 (5) for purposes related to administering the child and spousal support and establishment of paternity and medical support liability program under ss. 49.22 and 59.53 (5), regardless of whether the department or county child support agency is a party to the proceeding. (3) PAST PROCEEDINGS. Subject to s. 767.13, a record of a past proceeding is open to public inspection if all of the following apply: (a) Paternity was established in the proceeding. (b) The record is filed after May 1, 2000. (c) The record relates to a post-adjudication issue. History: 1979 c. 352; 1983 a. 447; 1985 a. 29; 1995 a. 27 s. 9126 (19); 1995 a. 201, 275, 404; 1997 a. 80, 252; 1999 a. 9; 2005 a. 443 ss. 222, 253; Stats. 2005 s. 767.853; 2007 a. 81.
767.855 Dismissal if adjudication not in child’s best interest. Except as provided in s. 767.863 (1m), at any time in an action to establish the paternity of a child, upon the motion of a party or guardian ad litem, the court or supplemental court commissioner under s. 757.675 (2) (g) may, if the court or supplemental court commissioner determines that a judicial determination of whether a male is the father of the child is not in the best interest of the child, dismiss the action with respect to the male, regardless of whether genetic tests have been performed or what the results of the tests, if performed, were. Notwithstanding ss. 767.813 (5g) (form) 4., 767.84 (1) and (2), 767.863 (2), 767.865 (2), and 767.88 (4), if genetic tests have not yet been performed with respect to the male, the court or supplemental court commissioner is not required to order those genetic tests. History: 1997 a. 191; 2001 a. 61; 2005 a. 443 s. 202; Stats. 2005 s. 767.855; 2019 a. 95. Parental status that rises to the level of a constitutionally protected liberty interest does not rest solely on biological factors, but rather, is dependent upon an actual relationship with the child in which the parent assumes responsibility for the child’s emotional and financial needs. Stuart S. v. Heidi R., 2015 WI App 19, 360 Wis. 2d 388, 860 N.W.2d 538, 14-1487.
767.86 Time of first appearance. The first appearance under s. 767.863 may not be held until 30 days after service or receipt of the summons and petition unless the parties agree to an earlier date. History: 1987 a. 27; 1991 a. 313; 2005 a. 443 s. 193. NOTE: 2005 Wis. Act 443 contains explanatory notes.
767.863 First appearance. (1) NOTICE TO PARTIES. If the respondent is present at a hearing prior to the determination of paternity, the court shall, at least one time at one such hearing, inform the parties of the items in s. 767.813 (5g). (1m) PATERNITY ALLEGATION BY MALE OTHER THAN HUSBAND; WHEN DETERMINATION NOT IN BEST INTEREST OF CHILD. In an action to establish the paternity of a child who was born to a woman while she was married, if a male other than the woman’s husband alleges that he, not the husband, is the child’s father, a
May 22, 2026, are designated by NOTES. (Published 5-22-26)
57
Updated 23-24 Wis. Stats.
party may allege that a judicial determination that a male other than the husband is the father is not in the best interest of the child. If the court or a supplemental court commissioner under s. 757.675 (2) (g) determines that a judicial determination of whether a male other than the husband is the father is not in the best interest of the child, no genetic tests may be ordered and the action shall be dismissed. (2) ORDER FOR TESTS. If at the first appearance it appears from a sufficient petition or affidavit of the child’s mother or an alleged father or from sworn testimony of the child’s mother or an alleged father that there is probable cause to believe that any of the males named has had sexual intercourse with the mother during a possible time of the child’s conception, the court may, or upon the request of any party shall, order any of the named persons to submit to genetic tests. The tests shall be conducted in accordance with s. 767.84. The court is not required to order a person who has undergone a genetic test under s. 49.225 to submit to another genetic test under this subsection unless a party requests additional tests under s. 767.84 (2). (3) ORDERS IF STATEMENT ON FILE. At the first appearance, if a statement acknowledging paternity under s. 69.15 (3) (b) 1. or 3. that was signed and filed before April 1, 1998, is on file, the court may enter an order for child support, legal custody or physical placement and, if the respondent who filed the statement does not dispute his paternity, may enter a judgment of paternity. History: 1979 c. 352; 1983 a. 447 s. 34; Stats. 1983 s. 767.457; 1987 a. 27 ss. 2136t, 2137d, 2137e; Stats. 1987 s. 767.458; 1987 a. 403, 413; 1993 a. 16, 481; 1995 a. 100; 1997 a. 191; 2001 a. 61; 2005 a. 443 ss. 195 to 198, 254; Stats. 2005 s. 767.863. NOTE: 2005 Wis. Act 443 contains explanatory notes. Before dismissing a petition without considering the merits, sub. (1m) requires the trial court to conduct a hearing to determine the child’s best interests. J.F. v. R.B., 154 Wis. 2d 637, 454 N.W.2d 561 (Ct. App. 1990). Sub. (1m) is constitutional. The court has an obligation to refuse to allow blood tests if the tests may result in a determination that the person alleging his paternity is the natural father and that determination would not be in the best interest of the children. W.W.W. v. M.C.S., 161 Wis. 2d 1015, 468 N.W.2d 719 (1991). The plain language of sub. (1m) does not limit the court’s authority to dismiss paternity actions to cases in which no genetic tests have been performed. The circuit court in this case correctly disregarded the genetic testing upon which a nonspouse who asserted paternity relied because the testing was not completed pursuant to court order. The court properly ruled that a judicial determination that the nonspouse was the child’s father would not be in the child’s best interest. Stuart S. v. Heidi R., 2015 WI App 19, 360 Wis. 2d 388, 860 N.W.2d 538, 14-1487. Parental status that rises to the level of a constitutionally protected liberty interest does not rest solely on biological factors, but rather, is dependent upon an actual relationship with the child in which the parent assumes responsibility for the child’s emotional and financial needs. Stuart S. v. Heidi R., 2015 WI App 19, 360 Wis. 2d 388, 860 N.W.2d 538, 14-1487. Circuit courts have discretion to dismiss actions without prejudice under this section. Section 767.88 expressly contemplates that circuit courts possess discretion to dismiss a paternity action with or without prejudice prior to a trial on the merits. Consequently, s. 767.88 strongly suggests the legislature intended that courts have such discretion when dismissing actions under this section when the ultimate issue of paternity is similarly not reached. Douglas L. v. Arika B., 2015 WI App 80, 365 Wis. 2d 257, 872 N.W.2d 357, 14-2656. In re Paternity of C.A.S. and C.D.S.: The New Status of Putative Fathers’ Rights in Wisconsin. Pabst. 1992 WLR 1669.
767.865 Deceased respondent. (1) WHO MAY APPEAR. (a) The personal representative or, if there is no personal representative, a guardian ad litem appointed in accordance with par. (b) may appear for a deceased respondent whenever an appearance by the respondent is required. The summons and petition shall be served on the deceased respondent’s personal representative or guardian ad litem, as the case may be, under s. 767.813 (4). (b) If the court determines that it is appropriate, the court may appoint a guardian ad litem for the deceased respondent for purposes of par. (a). Section 767.407 (3) and (5) applies to the guardian ad litem. The guardian ad litem shall represent the interests of the deceased respondent. The guardian ad litem shall be compensated at a rate that the court determines is reasonable. The court shall order the compensation to be paid from the deceased respondent’s estate. If the moneys in the estate are not suf-
ACTIONS AFFECTING THE FAMILY
767.87
ficient to pay all or part of the compensation, the court may direct that the county of venue pay the compensation. If the court orders a county to pay the compensation of the guardian ad litem, the amount ordered may not exceed the compensation paid to private attorneys under s. 977.08 (4m) (b). (2) GENETIC TESTS. If genetic material is available, without undue hardship, from a deceased respondent or a relative of the deceased respondent in an action for paternity, genetic tests shall be administered in accordance with s. 767.84. There is a rebuttable presumption that exhumation of the deceased respondent’s body to obtain the genetic material for testing is an undue hardship under this subsection. History: 1993 a. 481; 2005 a. 443 ss. 199, 200, 255 to 257; Stats. 2005 s. 767.865; 2013 a. 170. NOTE: 2005 Wis. Act 443 contains explanatory notes.
767.87 Testimony and evidence relating to paternity. (1) GENERALLY. Evidence relating to paternity, whether given at the trial or the pretrial hearing, may include, but is not limited to: (a) Evidence of sexual intercourse between the mother and alleged father at any possible time of conception or evidence of a relationship between the mother and alleged father at any time. (b) An expert’s opinion concerning the statistical probability of the alleged father’s paternity based upon the duration of the mother’s pregnancy. (c) Genetic test results under s. 49.225, 767.84, or 885.23. (cm) Genetic test results under s. 48.299 (6) (e) or 938.299 (6) (e). (d) The statistical probability of the alleged father’s paternity based upon the genetic tests. (e) Medical, scientific or genetic evidence relating to the alleged father’s paternity of the child based on tests performed by experts. (f) All other evidence relevant to the issue of paternity of the child, except as provided in subs. (2), (2m) and (3). (1m) BIRTH RECORD REQUIRED. If the child was born in this state, the petitioner shall present a certified copy of the child’s birth record or a printed copy of the record from the birth database of the state registrar to the court, so that the court is aware of whether a name has been inserted on the birth record as the father of the child, at the earliest possible of the following: (a) The initial appearance. (b) The pretrial hearing. (c) The trial. (d) Prior to the entry of the judgment under s. 767.89. (2) ADMISSIBILITY OF SEXUAL RELATIONS BY MOTHER. Testimony relating to sexual relations or possible sexual relations of the mother any time other than the possible time of conception of the child is inadmissible in evidence, unless offered by the mother. (2m) ADMISSIBILITY OF CERTAIN MEDICAL AND GENETIC INFORMATION. Medical and genetic information filed with the department or the court under s. 48.425 (1) (am) or (2) is not admissible to prove the paternity of the child. (3) EVIDENCE OF IDENTIFIED MALE NOT UNDER JURISDICTION. Except as provided in s. 767.84 (4), in an action against an alleged father, evidence offered by him with respect to an identified male who is not subject to the jurisdiction of the court concerning that male’s sexual intercourse with the mother at or about the presumptive time of conception of the child is admissible in evidence only after the alleged father has undergone genetic tests and made the results available to the court. (4) IMMUNITY. (a) No person may be prosecuted or subjected to any penalty or forfeiture for or on account of any testimony or evidence given relating to the paternity of the child in
May 22, 2026, are designated by NOTES. (Published 5-22-26)
767.87
ACTIONS AFFECTING THE FAMILY
any paternity proceeding, except for perjury committed in giving the testimony. (b) The immunity provided under par. (a) is subject to the restrictions under s. 972.085. (5) REFUSAL TO TESTIFY OR PRODUCE EVIDENCE. Except as provided in sub. (6), upon refusal of any witness, including a party, to testify under oath or produce evidence, the court may order the witness to testify under oath and produce evidence concerning all relevant facts. The refusal of a witness, including a witness who has immunity under sub. (4), to obey an order to testify or produce evidence is a contempt of the court. (6) WHEN MOTHER NOT COMPELLED TO TESTIFY. (a) Whenever the state brings the action to determine paternity pursuant to an assignment under s. 48.57 (3m) (b) 2. or (3n) (b) 2., 48.645 (3), 49.19 (4) (h) 1., or 49.45 (19), or receipt of benefits under s. 49.148, 49.155, 49.157, or 49.159, the natural mother of the child may not be compelled to testify about the paternity of the child if it has been determined that the mother has good cause for refusing to cooperate in establishing paternity as provided in 42 USC 602 (a) (26) (B) and the federal regulations promulgated pursuant to this statute, as of July 1, 1981, and pursuant to any rules promulgated by the department which define good cause in accordance with the federal regulations, as authorized by 42 USC 602 (a) (26) (B) in effect on July 1, 1981. (b) Nothing in par. (a) prevents the state from bringing an action to determine paternity pursuant to an assignment under s. 48.57 (3m) (b) 2. or (3n) (b) 2., 49.19 (4) (h) 1. or 49.45 (19), or receipt of benefits under s. 49.148, 49.155, 49.157 or 49.159, where evidence other than the testimony of the mother may establish the paternity of the child. (7) CERTAIN TESTIMONY OF PHYSICIAN NOT PRIVILEGED. Testimony of a physician concerning the medical circumstances of the pregnancy and the condition and characteristics of the child upon birth is not privileged. (8) BURDEN OF PROOF. The party bringing an action for the purpose of determining paternity or for the purpose of declaring the nonexistence of paternity presumed under s. 891.405, 891.407, or 891.41 (1) shall have the burden of proving the issues involved by clear and satisfactory preponderance of the evidence. (9) ARTIFICIAL INSEMINATION; NATURAL FATHER. Where a child is conceived by artificial insemination, the husband of the mother of the child at the time of the conception of the child is the natural father of the child, as provided in s. 891.40. (10) RECORD OF MOTHER’S TESTIMONY ADMISSIBLE. A record of the testimony of the child’s mother relating to the child’s paternity, made as provided under s. 48.299 (8) or 938.299 (8), is admissible in evidence on the issue of paternity. (11) RELATED COSTS ADMISSIBLE. Bills for services or articles related to the pregnancy, childbirth or genetic testing may be admitted into evidence and are prima facie evidence of the costs incurred for such services or articles. History: 1979 c. 352; 1981 c. 20 s. 2202 (20) (m); 1981 c. 359 ss. 13, 17; 1983 a. 447; 1987 a. 413; 1989 a. 31, 122, 212; 1993 a. 395, 481; 1995 a. 27 s. 9126 (19); 1995 a. 77, 100, 275, 289, 404; 1997 a. 27, 105, 191, 252; 1999 a. 185; 2005 a. 443 ss. 207, 258; Stats. 2005 s. 767.87; 2007 a. 20; 2017 a. 334; 2019 a. 95. It is not necessary for an alleged father to produce evidence of who the real father is in order to sustain a verdict of non-paternity. State v. Michael J.W., 210 Wis. 2d 132, 565 N.W.2d 179 (Ct. App. 1997), 95-2917.
767.88
Pretrial paternity proceedings. (1) PROCEDURE; A pretrial hearing shall be held before the court or a supplemental court commissioner under s. 757.675 (2) (g). A record or minutes of the proceeding shall be kept. At the pretrial hearing the parties may present and cross-examine witnesses, request genetic tests, and present other evidence relevant to the determination of paternity. (2) COURT EVALUATION AND RECOMMENDATION. On the baEVIDENCE.
Updated 23-24 Wis. Stats.
58
sis of the information produced at the pretrial hearing, the court shall evaluate the probability of determining the existence or nonexistence of paternity in a trial and shall so advise the parties. On the basis of the evaluation, the court may make an appropriate recommendation for settlement to the parties. This recommendation may include any of the following: (a) That the action be dismissed with or without prejudice. (b) That the alleged father voluntarily acknowledge paternity of the child. (c) If the alleged father voluntarily acknowledges paternity of the child, that he agree to the duty of support, the legal custody of the child, periods of physical placement of the child and other matters as determined to be in the best interests of the child by the court. (3) ACCEPTANCE OF RECOMMENDATION; JUDGMENT. If the parties accept a recommendation made in accordance with this section, judgment shall be entered accordingly. (4) RECOMMENDATION REFUSED AND NO TESTS TAKEN. If a party or the guardian ad litem refuses to accept a recommendation made under this section and genetic tests have not yet been taken, the court shall require the appropriate parties to submit to genetic tests. After the genetic tests have been taken the court shall make an appropriate final recommendation. (5) FINAL RECOMMENDATION NOT ACCEPTED; TRIAL. If the guardian ad litem or any party refuses to accept any final recommendation, the action shall be set for trial. (6) TERMINATION OF INFORMAL HEARING. The informal hearing may be terminated and the action set for trial if the court finds it unlikely that all parties would accept a recommendation in this section. History: 1979 c. 352; 1983 a. 447; 1987 a. 27; Sup. Ct. Order, 141 Wis. 2d xxxix (1987); 1987 a. 355; 1993 a. 481; 1995 a. 100; 2001 a. 61; 2005 a. 443 ss. 201, 259; Stats. 2005 s. 767.88. Judicial Council Note, 1988: This section mandates pretrial hearings in paternity proceedings. Under sub. (6), the informal hearing may be terminated and set for trial if the judge or family court commissioner finds it unlikely that all parties would accept a recommendation under this section and similarly, under sub. (5), if the guardian ad litem or any party refuses to accept the final recommendation. This amends sub. (1), to emphasize that this is an informal hearing before a judge, not a court in session, or before a court commissioner and that, while the hearing may be on the record, minutes alone are sufficient. [Re Order effective Jan. 1, 1988] The trial court may order a putative father to take a blood test only after determining at a pretrial hearing that paternity probably can be established at trial and that the establishment of paternity is in the best interests of the child. State ex rel. Scott v. Slocum, 109 Wis. 2d 397, 326 N.W.2d 118 (Ct. App. 1982). Notwithstanding s. 804.12 (2) (a) 4., the trial court may find a party in civil contempt for refusing to submit to a blood test. J.P.L. v. J.H., 120 Wis. 2d 328, 354 N.W.2d 759 (Ct. App. 1984). Nothing in this section authorizes ordering a name change in the best interests of the child in a paternity judgement. Sub. (2) (c) only authorizes a court to make settlement recommendations in pretrial proceedings if paternity is acknowledged. Although s. 69.15 (1) (a) provides for changing a name according to an order in a paternity action, it does not provide authority to order a name change in a paternity action without complying with the procedural requirements for a name change under s. 786.36. State v. Charles R.P., 223 Wis. 2d 768, 590 N.W.2d 21 (Ct. App. 1998), 972353.
767.883 Trial. (1) TWO PARTS. The trial shall be divided into 2 parts, the first part dealing with the determination of paternity and the 2nd part dealing with child support, legal custody, periods of physical placement, and related issues. The main issue at the first part shall be whether the alleged or presumed father is or is not the father of the mother’s child, but if the child was born to the mother while she was the lawful wife of a specified male the prior issue of whether the husband was not the father of the child shall be determined first, as provided under s. 891.39. The first part of the trial shall be by jury only if the defendant verbally requests a jury trial either at the initial appearance or pretrial hearing or requests a jury trial in writing prior to the pretrial hearing. The court may direct and, if requested by either party before the introduction of any testimony in the party’s behalf, shall direct the jury to find a special verdict as to any of the issues speci-
May 22, 2026, are designated by NOTES. (Published 5-22-26)
59
Updated 23-24 Wis. Stats.
fied in this section, except that the court shall make all of the findings enumerated in s. 767.89 (2) to (4). If the mother is dead, becomes insane, cannot be found within the jurisdiction, or fails to commence or pursue the action, the proceeding does not abate if any of the persons under s. 767.80 (1) makes a motion to continue. The testimony of the mother taken at the pretrial hearing may in any such case be read in evidence if it is competent, relevant, and material. The issues of child support, custody and visitation, and related issues shall be determined by the court either immediately after the first part of the trial or at a later hearing before the court. (2) JURY SIZE; VERDICT. If a jury is requested under sub. (1), the jury shall consist of 6 persons. No verdict is valid or received unless agreed to by at least 5 of the jurors. History: 1979 c. 352 s. 10; Stats. 1979 s. 767.50; 1983 a. 27, 447; 1987 a. 27, 355, 403; 1993 a. 481; 2001 a. 38; 2005 a. 443 ss. 214m, 260; Stats. 2005 s. 767.883. A preponderance of the evidence standard of proof in paternity actions meets due process requirements. Rivera v. Minnich, 483 U.S. 574, 107 S. Ct. 3001, 97 L. Ed. 2d 473 (1987).
767.89 Paternity judgment. (1) EFFECT OF JUDGMENT OR ORDER. A judgment or order of the court determining the existence or nonexistence of paternity is determinative for all purposes. (2) REPORT TO STATE REGISTRAR. (a) The clerk of court or county child support agency under s. 59.53 (5) shall file with the state registrar, within 30 days after the entry of a judgment or order determining paternity, a report showing the names, dates, and birth places of the child and the father, the social security numbers of the mother, father, and child, and the maiden name of the mother on a form designated by the state registrar, along with the fee set forth in s. 69.22 (5), which the clerk of court or county child support agency shall collect. (b) If the clerk of court or county child support agency is unable to collect any of the following fees under par. (a), the department shall pay the fee and may not require the county or county child support agency to reimburse the department for the cost: 1. A fee for omitting the father’s name on a birth record under s. 69.15 (3) (a) 1. 2. A fee for changing the father’s name on a birth record under s. 69.15 (3) (a) 2. 3. A fee for inserting the father’s name on a birth record under s. 69.15 (3) (a) 3. (3) CONTENT OF JUDGMENT OR ORDER. A judgment or order determining paternity shall contain all of the following provisions: (a) An adjudication of the paternity of the child. (b) Orders for the legal custody of and periods of physical placement with the child, determined in accordance with s. 767.41. (bm) The information set forth in s. 767.41 (6) (h). (c) An order requiring either or both of the parents to contribute to the support of any child of the parties who is less than 18 years old, or any child of the parties who is less than 19 years old if the child is pursuing an accredited course of instruction leading to the acquisition of a high school diploma or its equivalent, determined in accordance with s. 767.511. (d) A determination as to which parent, if eligible, shall have the right to claim the child as an exemption for federal tax purposes under 26 USC 151 (c). (e) 1. An order establishing the amount of the father’s obligation to pay or contribute to the reasonable expenses of the mother’s pregnancy and the child’s birth. The amount established may not exceed one-half of the total actual and reasonable pregnancy and birth expenses. The order also shall specify the
ACTIONS AFFECTING THE FAMILY
767.89
court’s findings as to whether the father’s income is at or below the poverty line established under 42 USC 9902 (2), and shall specify whether periodic payments are due on the obligation, based on the father’s ability to pay or contribute to those expenses. 2. If the order does not require periodic payments because the father has no present ability to pay or contribute to the expenses, the court may modify the judgment or order at a later date to require periodic payments if the father has the ability to pay at that time. (f) An order requiring either or both parties to pay or contribute to the costs of the guardian ad litem fees, genetic tests as provided in s. 767.84 (5), and other costs. (g) An order requiring either party to pay or contribute to the attorney fees of the other party. (3m) CHANGE OF CHILD’S NAME. (a) Upon the request of both parents, the court shall include in the judgment or order determining paternity an order changing the name of the child to a name agreed upon by the parents. (b) Except as provided in par. (a), the court may include in the judgment or order determining paternity an order changing the surname of the child to a surname that consists of the surnames of both parents separated by a hyphen or, if one or both parents have more than one surname, of one of the surnames of each parent separated by a hyphen, if all of the following apply: 1. Only one parent requests that the child’s name be changed, or both parents request that the child’s name be changed but each parent requests a different name change. 2. The court finds that such a name change is in the child’s best interest. (c) Section 786.36 does not apply to a name change under this subsection. (4) LIABILITY FOR PAST SUPPORT. (a) Subject to par. (b), liability for past support of the child is limited to support for the period after the day on which the petition in the action under s. 767.80 is filed, unless a party shows, to the satisfaction of the court, all of the following: 1. That he or she was induced to delay commencing the action by any of the following: a. Duress or threats. b. Actions, promises or representations by the other party upon which the party relied. c. Actions taken by the other party to evade paternity proceedings. 2. That, after the inducement ceased to operate, he or she did not unreasonably delay in commencing the action. (b) In no event may liability for past support of the child be imposed for any period before the birth of the child. (6) OTHER APPLICABLE PROVISIONS. Sections 767.41, 767.43, 767.451, 767.481, 767.57, 767.58, 767.59, 767.71, 767.75, 767.76, 767.77, and 767.78, where applicable, apply to a judgment or order under this section. (7) PREPARATION OF FINAL PAPERS. The court may order the attorney for the prevailing party to prepare findings of fact, conclusions of law and a judgment for the approval of the court. History: 1979 c. 352; 1983 a. 27, 192, 447; 1985 a. 29; 1985 a. 315 s. 22; 1987 a. 27, 37, 355, 413; 1989 a. 212; 1991 a. 39; 1993 a. 481; 1995 a. 27 ss. 7115, 7116, 9126 (19); 1995 a. 100, 201, 279, 375, 404; 1997 a. 27, 35, 191; 1999 a. 9; 2001 a. 16; 2005 a. 304; 2005 a. 443 ss. 218, 261; Stats. 2005 s. 767.89; 2007 a. 20; 2017 a. 203, 334, 366; 2021 a. 127. NOTE: 2005 Wis. Act 443 contains explanatory notes. Determining a father’s support obligation by applying percentage standards is inappropriate when the children live in several households. Weidner v. W.G.N., 131 Wis. 2d 301, 388 N.W.2d 615 (1986). Regardless of whether a 15 year old boy’s fathering of a child resulted from sexual assault as defined in criminal law, the trial court could find that intercourse and parenthood were voluntary for purposes of imposing child support. Whether noncon-
May 22, 2026, are designated by NOTES. (Published 5-22-26)
767.89
ACTIONS AFFECTING THE FAMILY
sent is a defense available to a putative father in a paternity action has not been determined. J.J.G. v. L.H., 149 Wis. 2d 349, 441 N.W.2d 273 (Ct. App. 1989). There is no statutory authority for an order requiring the mother to repay lying-in expenses paid by medical assistance. State v. R.R.R., 166 Wis. 2d 306, 479 N.W.2d 237 (Ct. App. 1991). An order for payment of expert witness fees under sub. (3) is not limited by s. 814.04 (2). Kathryn B. v. Sheldon S., 173 Wis. 2d 864, 496 N.W.2d 711 (Ct. App. 1993). Summary judgment is inappropriate when the presumptive conception period under s. 891.395 does not apply and there is no evidence establishing the period or when there is an untested male whom a reasonable fact finder could conclude had intercourse with the mother during the possible conceptive period. State v. Randy J.G., 199 Wis. 2d 500, 544 N.W.2d 926 (Ct. App. 1996), 95-2411. A father’s lack of knowledge of a child’s existence and resulting inability to visit and provide for the child may not be considered in deviating from the percentage standards for support. Support in a paternity action must be set exclusive of any marital property law principles. Brad Michael L. v. Lee D., 210 Wis. 2d 437, 564 N.W.2d 354 (Ct. App. 1997), 94-3050. A court does not have authority to create a child support obligation directly to an adult child who has received a high school diploma at the time that person commences an action for support. Roberta Jo W. v. Leroy W., 218 Wis. 2d 225, 578 N.W.2d 185 (1998), 96-2753. Nothing in this section authorizes ordering a name change in the best interests of the child in a paternity judgement. Although s. 69.15 (1) (a) provides for changing a name according to an order in a paternity action, it does not provide authority to order a name change in a paternity action without complying with the procedural requirements for a name change under s. 786.36. State v. Charles R.P., 223 Wis. 2d 768, 590 N.W.2d 21 (Ct. App. 1998), 97-2353. A paternity judgment determines between two parties who pays what expenses; it does not bind creditors who were not parties. Dean Medical Center, S.C. v. Conners, 2000 WI App 202, 238 Wis. 2d 636, 618 N.W.2d 194, 99-2091. The court’s ability to order payment under sub. (3) (e) is contingent on the father’s ability to pay. When it is undisputed that the father has no ability to pay at the time of the hearing, the court has no authority to set his obligation to pay lying-in expenses. Rusk County Department of Health & Human Services v. Thorson, 2005 WI App 37, 278 Wis. 2d 638, 693 N.W.2d 318, 04-2267. HSS 80: New Rules for Child Support Obligations. Hickey. Wis. Law. Apr. 1995. Which Came First? The Serial Family Payer Formula. Stansbury. Wis. Law. Apr. 1995. Wisconsin’s Custody, Placement, and Paternity Reform Legislation. Walther. Wis. Law. Apr. 2000. Medicaid: New Birth Cost Recovery Rules for Unmarried Parents. Lavigne. Wis. Law. Mar. 2019.
767.893 Default and stipulated judgments. (1) JUDGMENT WHEN PETITIONER FAILS TO APPEAR OR IS UNABLE TO PROCEED. If a petitioner, other than the state, fails to appear and
plead on the date set for the pretrial hearing or the date set for the trial or if the state is the petitioner and is unable to proceed on the date set for the pretrial hearing or the date set for the trial, the court may enter a judgment for the respondent dismissing the action, on the motion of the respondent or upon its own motion. (1m) JUDGMENT WHEN MOTHER FAILS TO APPEAR. Notwithstanding sub. (1), a court may enter an order adjudicating the alleged father, or male alleging that he is the father, to be the father of the child under s. 767.89 if the mother of the child fails to appear at the first appearance, scheduled genetic test, pretrial hearing, or trial if sufficient evidence exists to establish the male as the father of the child. (2) JUDGMENT WHEN RESPONDENT FAILS TO APPEAR. (a) Except as provided in sub. (2m), if a respondent is the alleged father and fails to appear at the first appearance, scheduled court-ordered genetic test, pretrial hearing, or trial, the court shall enter an order adjudicating the respondent to be the father and appropriate orders for support, legal custody, and physical placement. The orders shall be either served on the respondent or mailed by regular, registered, or certified mail, to the last-known address of the respondent. (b) A default judgment may not be entered under par. (a) if there is more than one person alleged in the petition to be the father, unless any of the following applies:
Updated 23-24 Wis. Stats.
60
1. Only one of those persons fails to appear and all of the other male respondents have been excluded as the father. 2. The alleged father who fails to appear has had genetic tests under s. 49.225 or 767.84 showing that the alleged father is not excluded and that the statistical probability of the alleged father’s parentage is 99.0 percent or higher. (2m) JUDGMENT UPON STIPULATION. (a) At any time after service of the summons and petition, a respondent who is the alleged father may, with or without appearance in court and subject to the approval of the court, in writing acknowledge that he has read and understands the notice under s. 767.813 (5g) and stipulate that he is the father of the child and for child support payments, legal custody, and physical placement. The court may not approve a stipulation for child support unless it provides for payment of child support determined in a manner consistent with s. 767.511 or 767.89. (c) If the court approves the stipulation, the court shall enter an order adjudicating the respondent to be the father as well as appropriate orders for support, legal custody and physical placement. The orders shall either be served on the respondent or mailed by regular, registered or certified mail to the last-known address of the respondent. The orders shall take effect upon entry if the respondent has so stipulated. If the respondent has not so stipulated, the orders shall take effect 30 days after service or 30 days after the date on which the orders were mailed unless, within that time, the respondent presents to the court evidence of good cause why the orders should not take effect. (3) MOTION TO REOPEN. A default judgment, or a judgment upon stipulation unless each party appeared personally before the court at least one time during the proceeding, that is rendered under this section and that adjudicates a person to be the father of a child may be reopened: (a) At any time upon motion or petition for good cause shown. (b) Upon a motion under s. 806.07. (c) Within one year after the judgment upon motion or petition, except that a respondent may not reopen more than one default judgment or more than one such stipulated judgment on a particular case under this paragraph. (4) APPEAL. An appeal of a denial of the petition or motion to reopen shall be to the court of appeals. History: 1979 c. 352; 1983 a. 447; 1987 a. 27, 403, 413; 1989 a. 31, 56, 212; 1993 a. 481; 1995 a. 100; 1997 a. 191; 2001 a. 61; 2005 a. 443 ss. 203 to 205, 262; Stats. 2005 s. 767.893. NOTE: 2005 Wis. Act 443 contains explanatory notes. The respondent must appear personally under sub. (2) (a). An attorney’s appearance is insufficient. Kathryn B. v. Sheldon S., 173 Wis. 2d 864, 496 N.W.2d 711 (Ct. App. 1993).
767.895 Motion to reopen judgment based on statement acknowledging paternity. A judgment which adjudicates a person to be the father of a child and which was based upon a statement acknowledging paternity that was signed and filed before April 1, 1998, may, if no trial was conducted, be reopened under any of the following circumstances: (1) At any time upon motion or petition for good cause shown. (2) Upon a motion under s. 806.07. (3) Within one year after entry of the judgment upon motion or petition. History: 1987 a. 413; 1997 a. 191; 2005 a. 443 s. 206; Stats. 2005 s. 767.895.
7
May 22, 2026, are designated by NOTES. (Published 5-22-26)