767.25(5)
(5) Liability for past support shall be limited to the period after the birth of the child.
767.25(6)
(6) A party ordered to pay child support under this section shall pay simple interest at the rate of 1.5% per month on any amount unpaid, commencing the first day of the 2nd month after the month in which the amount was due. 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 clerk of court or support collection designee under
s. 767.29. Except as provided in
s. 767.29 (1m), the clerk of court or support collection designee, whichever is appropriate, shall apply all payments received for child support as follows:
767.25(6)(a)
(a) First, to payment of child support due within the calendar month during which the payment is withheld from income under
s. 767.265 or under similar laws of another state. If payment is not made through income withholding, the clerk or support collection designee, whichever is appropriate, shall first apply child support payments received to payment of child support due within the calendar month during which the payment is received.
767.25(6)(b)
(b) Second, to payment of unpaid child support due before the payment is received.
767.25(6)(c)
(c) Third, to payment of interest accruing on unpaid child support.
767.25(7)
(7) An order of joint legal custody under
s. 767.24 does not affect the amount of child support ordered.
767.25 History
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;
1989 a. 31,
212;
1991 a. 39;
1993 a. 481;
1995 a. 27 ss.
7101,
7102,
9126 (19);
1995 a. 201,
279,
404; s. 13.93 (2) (c).
767.25 Annotation
A provision in a judgment as to education of children past the age of majority, inserted pursuant to stipulation of the parties, cannot later be challenged and can be enforced by contempt proceedings. Bliwas v. Bliwas, 47 W (2d) 635, 178 NW (2d) 35.
767.25 Annotation
Where parents each own 1/2 interest in future proceeds of real estate and state contributes to child support, court may order only noncustodial parent to pay child support in form of accumulating real estate lien in favor of state. State ex rel. v. Reible, 91 W (2d) 394, 283 NW (2d) 427 (Ct. App. 1979).
767.25 Annotation
Trial court abused its discretion by setting child support payments without considering needs of the children or father's ability to pay. Edwards v. Edwards, 97 W (2d) 111, 293 NW (2d) 160 (1980).
767.25 Annotation
Sub. (4) has retroactive effect. Behnke v. Behnke, 103 W (2d) 449, 309 NW (2d) 21 (Ct. App. 1981).
767.25 Annotation
Personal injury damage award to noncustodial spouse can be considered as change of circumstances justifying increased support. Sommer v. Sommer, 108 W (2d) 586, 323 NW (2d) 144 (Ct. App. 1982).
767.25 Annotation
Sub. (6) imposes interest on arrearages existing on July 2, 1983, as well as on those accruing afterward. Marriage of Greenwood v. Greenwood, 129 W (2d) 388, 385 NW (2d) 213 (Ct. App. 1986).
767.25 Annotation
Federal Supplemental Security Income may not be considered economic resource for purposes of computing child support obligation; however, seek-work order may be appropriate. Marriage of Langlois v. Langlois, 150 W (2d) 101, 441 NW (2d) 286 (Ct. App. 1989).
767.25 Annotation
Educational grants and loans, AFDC, and other child support are not economic resources for purposes of computing child support obligation. Marriage of Thibadeau v. Thibadeau, 150 W (2d) 109, 441 NW (2d) 281 (Ct. App. 1989).
767.25 Annotation
See note to 767.32, citing Marriage of Kuchenbecker v. Schultz, 151 W (2d) 868, 447 NW (2d) 80 (Ct. App. 1989).
767.25 Annotation
On request for modification under (1m), it was error for trial court to consider post-high school educational expenses in setting support; consideration of expenses incurred by child as adult is error. In re Marriage of Resong v. Vier, 157 W (2d) 382, 459 NW (2d) 591 (Ct. App. 1990).
767.25 Annotation
Divorce stipulation waiving or setting ceiling on child support and preventing modification is against public policy and will not be enforced. In re Marriage of Ondrasek v. Tenneson, 158 W (2d) 690, 462 NW (2d) 915 (Ct. App. 1990).
767.25 Annotation
Trial court's use of computer program to analyze financial evidence approved. In re Marriage of Bisone v. Bisone, 165 W (2d) 114, 477 NW (2d) 59 (Ct. App. 1991).
767.25 Annotation
Stepparent has no legal obligation to support a stepchild; under appropriate circumstances the theory of equitable estoppel may apply to cases involving child support. In re Marriage of Ulrich v. Cornell, 168 W (2d) 792, 484 NW (2d) 546 (1992).
767.25 Annotation
In joint legal custody situation the parent with primary physical custody may be ordered to pay child support. In re Marriage of Matz v. Matz, 166 W (2d) 326, 479 NW (2d) 245 (Ct. App. 1991).
767.25 Annotation
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. In Marriage of Zimmerman v. Zimmerman, 169 W (2d) 516, 485 NW (2d) 294 (Ct. App. 1992).
767.25 Annotation
A support order against actual AFDC grants is prohibited by Thibadeau, but an order against earned income of one who also receives AFDC is not. In Support of B., L., T. & K. 171 W (2d) 617, 492 NW (2d) 350 (Ct. App. 1992).
767.25 Annotation
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. In re Marriage of Evjen v. Evjen, 171 W (2d) 677, 492 NW (2d) 360 (Ct. App. 1992).
767.25 Annotation
Parties' extrajudicial agreement that child support payments be discontinued was enforceable via the doctrine of equitable estoppel. Harms v. Harms, 174 W (2d) 780, 498 NW (2d) 229 (1993).
767.25 Annotation
Discussion of the "serial family payer" rule adopted under the percentage standards referred to in sub. (1). Brown v. Brown, 177 W (2d) 512, 503 NW (2d) 280 (Ct. App. 1993).
767.25 Annotation
The mandatory percentage standards for determining support do not allow for deferred payments. Kelly v. Hougham, 178 W (2d) 546, 504 NW (2d) 440 (Ct. App. 1993).
767.25 Annotation
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). Paternity of Lachelle A.C. 180 W (2d) 708, 510 NW (2d) 718 (Ct. App. 1993).
767.25 Annotation
A lump sum separation benefit received upon termination of employment was properly considered income subject to the percentage standards for support. Gohde v. Gohde, 181 W (2d) 770, 512 NW (2d) 199 (Ct. App. 1993).
767.25 Annotation
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 payor's income but failing to consider the assumed contribution of the same percentage by the payee. Kjelstrum v. Kjelstrum, 181 W (2d) 973, 512 NW (2d) 264 (Ct. App. 1994).
767.25 Annotation
A trial court could may 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 W (2d) 20, 515 NW (2d) 480 (Ct. App. 1994).
767.25 Annotation
Parties are free to contract in a settlement agreement that the primary custodian will not have spending discretion over child support if the interests of the children and custodial parent are protected. Jacquart v. Jacquart, 183 W (2d) 372, 515 NW (2d) 539 (Ct. App. 1994).
767.25 Annotation
An asset and its income stream may not be counted both as an asset in the property division and as part of the payor's income from which support is paid. Maley v. Maley, 186 W (2d) 125, 519 NW (2d) 717 (Ct. App. 1994).
767.25 Annotation
Trust income which 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 W (2d) 532, 525 NW (2d) 261 (1995).
767.25 Annotation
A minimum fixed child support amount, rather than the percentage standard, based on the payor's "potential income" was appropriate where the court found the payor had a substantial potential to manipulate the amount of support. Doerr v. Doerr, 189 W (2d) 112, 525 NW (2d) 745 (Ct. App. 1994).
767.25 Annotation
The trial court may consider the amount of time a child is placed with the paying parent and the parent's second family in setting support. Molstad v. Molstad, 193 W (2d) 602, 535 NW (2d) 63 (Ct. App. 1995).
767.25 Annotation
A court may revise a judgment to create a trust under sub. (2), including a trust funded by child support arrearages, when it is necessary for the best interests of the child. Cameron v. Cameron, 197 W (2d) 618, 541 NW (2d) 164 (Ct. App. 1995).
767.25 Annotation
The percentage standards may be used to generate future as well as present support. Paternity of Tukker M.O., 199 W (2d) 186, 544 NW (2d) 417 (1996).
767.25 Annotation
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 W (2d) 280, 544 NW (2d) 561 (1996).
767.25 Annotation
Maley distinguished. In certain cases an asset may be divided in the property division and its income stream considered as income in determining child support. Cook v. Cook, 201 W (2d) 72, 547 NW (2d) 817 (Ct. App. 1996).
767.25 Annotation
A court may consider earning capacity rather than actual earnings in determining child support and maintenance if it find's a spouse's job choice voluntary and unreasonable. Sellers v. Sellers, 201 W (2d) 578, 549 NW (2d) 481 (Ct. App. 1996).
767.25 Annotation
Federal preemption doctrine does not prohibit states from requiring payment of child support out of veterans' disability benefits. Rose v. Rose, 481 US 619 (1987).
767.25 Annotation
No-fault divorce: Tax consequences of support, maintenance and property settlement. Case, 1977 WBB 11.
767.25 Annotation
A practitioner's approach to child support. Bailey. WBB June 1987.
767.25 Annotation
HSS 80: New Rules for Child Support Obligations. Hickey. Wis. Law. April, 1995.
767.25 Annotation
Which Came First? The Serial Family Payer Formula. Stansbury. Wis. Law. April, 1995.
767.25 Annotation
See also notes to s. 767.32 for decisions regarding postjudgment modifications.
767.25 Annotation
See also Wisconsin Administrative Code Citations published in the Wisconsin Administrative Code for a list of citations to cases citing ch. HSS 80, the percentage standards developed by the Department of Health and Social Services.
767.253
767.253
Seek-work orders. In an action for modification of a child support order under
s. 767.32 or an action in which an order for child support is required under
s. 767.25 (1) or
767.51 (3), the court may order either or both parents of the child to seek employment or participate in an employment or training program.
767.253 History
History: 1989 a. 212.
767.254
767.254
Unemployed teenage parent. 767.254(1)
(1) In this section, "unemployed teenage parent" means a parent who satisfies all of the following criteria:
767.254(1)(d)
(d) Would be ordered to make payments for the support of a child but for
par. (c).
767.254(2)
(2) In an action for revision of a judgment or order providing for child support under
s. 767.32 or an action in which an order for child support is required under
s. 767.25 (1) or
767.51 (3), the court shall order an unemployed teenage parent to do one or more of the following:
767.254(2)(d)
(d) 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.
767.254 History
History: 1991 a. 313;
1995 a. 27.
767.255(1)(1) Upon every judgment of annulment, divorce or legal separation, or in rendering a judgment in an action under
s. 767.02 (1) (h), the court shall divide the property of the parties and divest and transfer the title of any such property accordingly. A certified copy of the portion of the judgment that affects title to real estate shall be recorded in the office of the register of deeds of the county in which the lands so affected are situated. The court may protect and promote the best interests of the children by setting aside a portion of the property of the parties in a separate fund or trust for the support, maintenance, education and general welfare of any minor children of the parties.
767.255(2)(a)(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:
767.255(2)(a)2.
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.
767.255(2)(b)
(b) Paragraph (a) does not apply if the court finds that refusal to divide the property will create a hardship on the other party or on the children of the marriage. If the court makes such a finding, the court may divest the party of the property in a fair and equitable manner.
767.255(3)
(3) 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:
767.255(3)(b)
(b) The property brought to the marriage by each party.
767.255(3)(c)
(c) Whether one of the parties has substantial assets not subject to division by the court.
767.255(3)(d)
(d) The contribution of each party to the marriage, giving appropriate economic value to each party's contribution in homemaking and child care services.
767.255(3)(e)
(e) The age and physical and emotional health of the parties.
767.255(3)(f)
(f) The contribution by one party to the education, training or increased earning power of the other.
767.255(3)(g)
(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.
767.255(3)(h)
(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.
767.255(3)(i)
(i) The amount and duration of an order under
s. 767.26 granting maintenance payments to either party, any order for periodic family support payments under
s. 767.261 and whether the property division is in lieu of such payments.
767.255(3)(j)
(j) Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests.
767.255(3)(L)
(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.
767.255(3)(m)
(m) Such other factors as the court may in each individual case determine to be relevant.
767.255 Note
NOTE: See notes in
1985 Wis. Act 37, marital property trailer bill.
767.255 Annotation
Accounts receivable of medical clinic in which defendant husband was partner, were properly viewed by trial court as salary of defendant. Johnson v. Johnson, 78 W (2d) 137, 254 NW (2d) 198.
767.255 Annotation
Service-connected disability pension is to be considered as earned income and not as an asset to be divided between the parties. Leighton v. Leighton, 81 W (2d) 620, 261 NW (2d) 457.
767.255 Annotation
Methods of valuing pension rights discussed. Bloomer v. Bloomer, 84 W (2d) 124, 267 NW (2d) 235 (1978).
