LRB-4492/3
PJK:kmg:km
1995 - 1996 LEGISLATURE
February 21, 1996 - Introduced by Representatives Ainsworth, Wood, Ladwig,
Gunderson, Goetsch, Nass, Hahn, Lehman, Olsen, Ott, Owens,
Brandemuehl, Musser, Albers, Johnsrud and Lorge. Referred to Committee
on Children and Families.
AB916,1,8
1An Act to repeal 767.25 (1m) (ej);
to renumber and amend 767.25 (1j);
to
2amend 46.25 (9) (a), 767.085 (2) (b), 767.085 (2m) (a) 2., 767.085 (2m) (b), 767.23
3(1n), 767.25 (1) (a), 767.25 (1m) (intro.), 767.25 (1n), 767.32 (1) (b) 4., 767.32 (2),
4767.32 (2m), 767.45 (7), 767.455 (6), 767.51 (4m), 767.51 (5) (intro.), 767.51 (5d)
5and 948.22 (7) (bm); and
to create 767.25 (1j) (b), 767.25 (1j) (c) and 767.32 (1)
6(b) 5. of the statutes;
relating to: calculating child support on the basis of both
7parents' incomes and, in certain situations, the amount of time spent with the
8child.
Analysis by the Legislative Reference Bureau
Under current law in an action affecting the family in which child support is
ordered, (most commonly divorce and paternity actions), including actions to revise
child support, the court must determine child support payments by using the
percentage standard established by administrative rule by the department of health
and social services. The percentage standard is a percentage of the payer's gross
monthly income. The percentage of income required to be paid varies with the
number of children to be supported. The calculation of child support does not take
into account the level of personal expenses of the payer or, except in certain
situations, the income of the payee or the amount of time that the payer cares for the
child during periods of physical placement ordered by the court. If the payer has
physical placement of the child between 31% and 40% of the time, the rules provide
for a specified reduction in the amount of child support that the payer would be
required to pay by using the percentage standard alone. (For example, a payer with
physical placement of the child for 37% of the time pays 76.69% of the amount that
he or she would pay by using the percentage standard alone.) Also under the rules,
if a parent has physical placement of the child between 41% and 59% of the time and
the other parent has physical placement the remainder of the time, the amount of
child support that each would pay by using the percentage standard alone is
calculated, reduced by a specified percentage depending upon the amount of time
each parent has physical placement of the child and compared with the other parent's
similarly calculated and reduced amount of child support. (For example, a parent
with physical placement of the child for 46% of the time would be obligated to pay
46.72% of the amount of child support that he or she would be obligated to pay by
using the percentage standard alone while the other parent with physical placement
for 54% of the time would be obligated to pay 20.08% of the amount calculated by
using the percentage standard alone.) The parent with the larger calculated and
reduced amount must pay the difference as child support to the other parent. In
addition under current law, the court is authorized to modify the amount of child
support that would be ordered by using the percentage standard, upon the request
of a party. The court must find that use of the percentage standard is unfair to the
child or either of the parties after considering a number of factors, such as the
earning capacity of each parent, the desirability that the custodian remain in the
home as a full-time parent and extraordinary travel expenses incurred in exercising
physical placement rights.
This bill changes the method of determining the amount of child support to be
paid in actions affecting the family, including actions to revise child support. Under
the bill, if only one parent is granted periods of physical placement and the other
parent is denied periods of physical placement, the child support obligation is
determined simply by using the percentage standard. If, however, both parents are
granted periods of physical placement but one parent has physical placement of the
child for less than 15% of the time, the parent with the larger gross child support
obligation, as determined by applying the percentage standard to the income of each
parent, pays child support to the other parent in the amount of the difference
between the 2 gross child support obligations, as long as the parent with the larger
gross child support obligation has physical placement of the child for less than 15%
of the time. Neither parent would pay child support if the parent with the smaller
gross child support obligation has physical placement for less than 15% of the time.
If both parents are granted periods of physical placement and each parent has
physical placement of the child for at least 15% of the time, the court computes child
support in the following manner:
1. The court first determines the gross child support obligation of each parent
by using the percentage standard. Thus, the parent with the higher income of the
2 would have the higher gross child support obligation.
2. The court next multiplies each parent's gross child support obligation by the
parent's percentage of time spent with the child or children, based on the periods of
physical placement ordered by the court.
3. That product for each parent is then subtracted from the parent's gross child
support obligation to produce the parent's net child support obligation. Thus, the
parent who cares for the child or children the greater amount of time has his or her
gross child support obligation reduced by a larger proportion of that obligation.
4. The parent with the resulting larger net child support obligation pays child
support to the other parent in the amount of the difference between the 2 net child
support obligations.
As under current law, the court may upon request modify the amount of support
that would be determined by using the method of calculating child support that is
outlined in the law, after considering the same factors as under current law and upon
finding that use of the new method is unfair to the child or either of the parties.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB916, s. 1
1Section
1. 46.25 (9) (a) of the statutes is amended to read:
AB916,3,72
46.25
(9) (a) The department shall promulgate rules that provide a standard
3for courts to use in determining a child support obligation based upon a percentage
4of the gross income and assets of either or both parents.
The rules shall provide for
5consideration of the income of each parent and the amount of physical placement
6with each parent in determining a child support obligation in cases in which a child
7has substantial periods of physical placement with each parent.
AB916, s. 2
8Section
2. 767.085 (2) (b) of the statutes is amended to read:
AB916,3,139
767.085
(2) (b) The clerk of court shall provide without charge, to each person
10filing a petition requesting child support, a document setting forth the percentage
11standard established by the department of health and social services under s. 46.25
12(9)
(a) and the method of calculating child support under s. 767.25 (1j) and listing the
13factors
which that a court may consider under s. 767.25 (1m).
AB916, s. 3
14Section
3. 767.085 (2m) (a) 2. of the statutes is amended to read:
AB916,4,215
767.085
(2m) (a) 2. Shall be accompanied by a document, provided without
16charge by the clerk of court, setting forth the percentage standard established by the
17department of health and social services under s. 46.25 (9)
(a) and the method of
1calculating child support under s. 767.25 (1j) and listing the factors
which that a
2court may consider under s. 767.25 (1m).
AB916, s. 4
3Section
4. 767.085 (2m) (b) of the statutes is amended to read:
AB916,4,74
767.085
(2m) (b) If service is by publication, notification regarding s. 948.31
5may consist of references to the statute numbers and titles, and information relating
6to the percentage standard
, the method of calculating child support and the factors
7need not be provided.
AB916, s. 5
8Section
5. 767.23 (1n) of the statutes is amended to read:
AB916,4,209
767.23
(1n) Before making any temporary order under sub. (1), the court or
10family court commissioner shall consider those factors
which that the court is
11required by this chapter to consider before entering a final judgment on the same
12subject matter. If the court or family court commissioner makes a temporary child
13support order that deviates from the amount of support that would be required by
14using the
percentage standard established by the department of health and social
15services under s. 46.25 (9) method of calculating child support under s. 767.25 (1j),
16the court or family court commissioner shall comply with the requirements of s.
17767.25 (1n)
or 767.51 (5d), whichever is appropriate. A temporary order under sub.
18(1) may be based upon the written stipulation of the parties, subject to the approval
19of the court or the family court commissioner. Temporary orders made by the family
20court commissioner may be reviewed by the court as provided in s. 767.13 (6).
AB916, s. 6
21Section
6. 767.25 (1) (a) of the statutes is amended to read:
AB916,5,222
767.25
(1) (a)
Order Except as provided in sub. (1j) (b) 3., order either or both
23parents to pay an amount reasonable or necessary to fulfill a duty to support a child.
24The support amount may be expressed as a percentage of parental income or as a
1fixed sum, or as a combination of both in the alternative by requiring payment of the
2greater or lesser of either a percentage of parental income or a fixed sum.
AB916, s. 7
3Section
7. 767.25 (1j) of the statutes is renumbered 767.25 (1j) (a) and
4amended to read:
AB916,5,85
767.25
(1j) (a) Except as provided in sub. (1m),
if the court denies periods of
6physical placement to one parent, the court shall determine child support payments
7by using the percentage standard established by the department of health and social
8services under s. 46.25 (9)
(a).
AB916, s. 8
9Section
8. 767.25 (1j) (b) of the statutes is created to read:
AB916,5,1310
767.25
(1j) (b) Except as provided in sub. (1m), if the court grants periods of
11physical placement to both parents but one parent has physical placement of the
12child for less than 15% of the time, the court shall determine child support payments
13in the following manner:
AB916,5,1614
1. The gross child support obligation of each parent shall be calculated by using
15the percentage standard established by the department of health and social services
16under s. 46.25 (9) (a).
AB916,5,2017
2. If the parent with the greater gross child support obligation under subd. 1.
18has physical placement of the child for less than 15% of the time, that parent shall
19pay as child support to the parent with the smaller gross child support obligation
20under subd. 1., the difference between those gross child support obligations.
AB916,5,2321
3. If the parent with the smaller gross child support obligation under subd. 1.
22has physical placement of the child for less than 15% of the time, neither parent shall
23be ordered to pay child support to the other parent.
AB916, s. 9
24Section
9. 767.25 (1j) (c) of the statutes is created to read:
AB916,6,4
1767.25
(1j) (c) Except as provided in sub. (1m), if the court grants periods of
2physical placement to both parents and each parent has physical placement of the
3child for at least 15% of the time, the court shall determine child support payments
4in the following manner:
AB916,6,75
1. The gross child support obligation of each parent shall be calculated by using
6the percentage standard established by the department of health and social services
7under s. 46.25 (9) (a).
AB916,6,108
2. Each parent's gross child support obligation calculated under subd. 1. shall
9be multiplied by that parent's percentage of time spent with the child or children,
10based on the periods of physical placement granted to the parent.
AB916,6,1311
3. The net child support obligation of each parent shall be calculated by
12subtracting the product determined under subd. 2. for the parent from the gross child
13support obligation of that parent calculated under subd. 1.
AB916,6,1614
4. The parent with the greater net child support obligation under subd. 3. shall
15pay as child support, to the parent with the smaller net child support obligation
16under subd. 3., the difference between those net child support obligations.
AB916, s. 10
17Section
10. 767.25 (1m) (intro.) of the statutes is amended to read:
AB916,6,2218
767.25
(1m) (intro.) Upon request by a party, the court may modify the amount
19of child support payments determined under sub. (1j) if, after considering the
20following factors, the court finds by the greater weight of the credible evidence that
21use of the
percentage standard method of calculating child support under sub. (1j) 22is unfair to the child or to any of the parties:
AB916, s. 11
23Section
11. 767.25 (1m) (ej) of the statutes is repealed.
AB916, s. 12
24Section
12. 767.25 (1n) of the statutes is amended to read:
AB916,7,9
1767.25
(1n) If the court finds under sub. (1m) that use of the
percentage
2standard method of calculating child support under sub. (1j) is unfair to the child or
3the requesting party, the court shall state in writing or on the record the amount of
4support that would be required by using the
percentage standard method of
5calculating child support under sub. (1j), the amount by which the court's order
6deviates from that amount, its reasons for finding that use of the
percentage
7standard method of calculating child support under sub. (1j) is unfair to the child or
8the party, its reasons for the amount of the modification and the basis for the
9modification.
AB916, s. 13
10Section
13. 767.32 (1) (b) 4. of the statutes is amended to read:
AB916,7,1811
767.32
(1) (b) 4.
A If the judgment or order was entered under s. 48.355 (2) (b)
124., 48.357 (5m) or 48.363 (2), a difference between the amount of child support
13ordered by the court to be paid by the payer and the amount that the payer would
14have been required to pay based on the percentage standard established by the
15department of health and social services under s. 46.25 (9) if the court did not use the
16percentage standard in determining the child support payments and did not provide
17the information required under s. 46.10 (14) (d)
, 767.25 (1n) or 767.51 (5d), whichever
18is appropriate.
AB916, s. 14
19Section
14. 767.32 (1) (b) 5. of the statutes is created to read:
AB916,8,220
767.32
(1) (b) 5. If the judgment or order was entered under this chapter or s.
21948.22 (7), a difference between the amount of child support ordered by the court to
22be paid by the payer and the amount that the payer would have been required to pay
23based on the method of calculating child support under s. 767.25 (1j) if the court did
24not use that method in determining the child support payments and did not provide
1the information required under s. 767.25 (1n) or 767.51 (5d), whichever is
2appropriate.
AB916, s. 15
3Section
15. 767.32 (2) of the statutes is amended to read:
AB916,8,74
767.32
(2) Except as provided in sub. (2m) or (2r), if the court revises a judgment
5or order with respect to child support payments, it shall do so by using the
percentage
6standard established by the department of health and social services under s. 46.25
7(9) method of calculating child support under s. 767.25 (1j).
AB916, s. 16
8Section
16. 767.32 (2m) of the statutes is amended to read:
AB916,8,149
767.32
(2m) Upon request by a party, the court may modify the amount of
10revised child support payments determined under sub. (2) if, after considering the
11factors listed in s. 767.25 (1m) or 767.51 (5), as appropriate, the court finds, by the
12greater weight of the credible evidence, that the use of the
percentage standard 13method of calculating child support under s. 767.25 (1j) is unfair to the child or to any
14of the parties.
AB916, s. 17
15Section
17. 767.45 (7) of the statutes is amended to read:
AB916,8,2116
767.45
(7) The clerk of court shall provide without charge, to each person
17bringing an action under this section, except to the state under sub. (1) (g) or (6m),
18a document setting forth the percentage standard established by the department of
19health and social services under s. 46.25 (9)
(a) and the method of calculating child
20support under s. 767.25 (1j) and listing the factors
which that a court may consider
21under s. 767.51 (5).
AB916, s. 18
22Section
18. 767.455 (6) of the statutes is amended to read:
AB916,9,323
767.455
(6) Document. The summons served on the respondent shall be
24accompanied by a document, provided without charge by the clerk of court, setting
25forth the percentage standard established by the department of health and social
1services under s. 46.25 (9)
(a) and the method of calculating child support under s.
2767.25 (1j) and listing the factors
which that a court may consider under s. 767.51
3(5).
AB916, s. 19
4Section
19. 767.51 (4m) of the statutes is amended to read:
AB916,9,85
767.51
(4m) Except as provided in sub. (5), the court shall determine child
6support payments by using the
percentage standard established by the department
7of health and social services under s. 46.25 (9) method of calculating child support
8under s. 767.25 (1j).
AB916, s. 20
9Section
20. 767.51 (5) (intro.) of the statutes is amended to read:
AB916,9,1410
767.51
(5) (intro.) Upon request by a party, the court may modify the amount
11of child support payments determined under sub. (4m) if, after considering the
12following factors, the court finds by the greater weight of the credible evidence that
13use of the
percentage standard method of calculating child support under s. 767.25
14(1j) is unfair to the child or to the requesting party: