Deviation From the Percentage Standard
The bill modifies current laws relating to deviating from use of the percentage
standard in setting child support in substitute care, divorce and paternity cases. Under
current law, a court must in general determine child support payments by using the
percentage standard established by the department of health and social services (DHSS)
in s. 46.25 (9) (a). Upon request of a party, the court may modify the amount of child
support payments arrived at using the percentage standard if, after considering a
number of factors delineated in the statutes relating to each of the 3 types of cases, 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.
Under this bill, the court would be required to modify the amount of child support
determined under the percentage standard if, after considering all of the delineated
factors that the court considers relevant, the court finds by the greater weight of the
credible evidence that the amount of child support determined using the percentage
standard is unfair to the child or any of the parties. If the court so finds, the court must
then modify the child support award as currently provided in the statutes governing each
of the 3 types of cases.
The bill also makes certain changes in the deviation factors to be considered in
substitute care, divorce and paternity cases, in order to make the factors more
uniform among the 3 types of cases, except where a factor is inapplicable to a
particular type of case. The changes made in the factors for each type of case are
explained in the Notes following the affected statutory sections.
Treatment of Child Care Expenses
Under this bill, in both divorce and paternity cases, child day care expenses would
be treated in a manner similar, though not identical, to the way health care expenses will
be treated as a result of provisions of
1993 Wisconsin Act 481 which take effect on January
1, 1996. The bill provides that, when ordering child support, the court must consider and
may specifically assign responsibility to one or both parents for, and direct the manner
of payment of, the child's day care expenses which are necessary to permit either parent
to work. If the court assigns responsibility for day care expenses, the court is required,
in directing the manner of payment, to order payment either to the other parent, to the
day care provider or to the clerk of court for distribution to the parent or day care provider.
If a person who is ordered to pay child care fails to do so within 10 days after a payment
is due, the court may order that payment be withheld from the person's income and
assigned for the payment of day care expenses. If the court orders income withholding,
the court must send the person notice of the withholding and of the opportunity to request
a hearing on whether the assignment should remain in effect. Because they are keyed
to provisions of Act 481 which take effect on January 1, 1996, the day care provisions of
this bill would also take effect on January 1, 1996, or the day after publication, whichever
is later.
Ordering Trusts for the Support of Children
The bill amends current law to provide that a court may, upon request of any party,
set aside a portion of the child support which a party is ordered to pay in a separate fund
or trust for the support, education and welfare of the parties' minor children. Currently,
s. 767.25 (2) provides that a court may protect and promote the best interests of minor
children by setting aside in a separate fund or trust a portion of the child support which
either party is ordered to pay, but does not specify which parent or parents may request
establishment of such a trust. However, in Resong v. Vier, 157 Wis. 2d 382, 459 N.W. 2d
591 (Ct. App. 1990), the court of appeals, district III, noted that while s. 767.25 (2) permits
the establishment of a trust when doing so would be in the best interests of the child, the
custodial parent should not lightly be stripped of his or her ability to make decisions
concerning rearing his or her child. The court held that, once support has been awarded
without a trust, the trial court must apply the "necessary to the best interest" standard
used in modifying custody determinations if it wishes to establish a trust.
Order of Disbursement of Huber Prisoner Wages
The bill amends current law to change the order of disbursement of wages of a
county jail prisoner with "Huber law" privileges.
Under current law, the wages, salary and unemployment compensation and
employment training benefits received by the prisoner must be turned over in full to the
sheriff and be disbursed by the sheriff in the following order for the following purposes:
(1) for the board of the prisoner; (2) for the necessary travel expense to and from work and
any other incidental expenses of the prisoner; (3) for the support of the prisoner's
dependents, if any; (4) for payment of the prisoner's obligations acknowledged by the
prisoner in writing or which have been reduced to judgment; and (5) for the prisoner upon
the prisoner's release [s. 303.08 (3) and (5)].
The bill would make child support payments ordered under ch. 767 the first item
disbursed under s. 303.08 (5). Board of the prisoner would become the 2nd item disbursed
and necessary work-related travel expenses and other incidental expenses of the
prisoner would become the 3rd item disbursed. Support of the prisoner's dependents
other than child support ordered under ch. 767 would be the 4th item disbursed, followed
by payment of the prisoner's obligations acknowledged or reduced to judgment and the
balance to the prisoner upon discharge.
Reduction in Child Support Obligation for Receipt of Federal Benefit
Under current law, in an action affecting the family, including actions to revise
child support, the court must determine child support payments by using the percentage
standard established by the DHSS. The court is authorized, however, to modify the
amount of child support that would be ordered by using the percentage standard, upon
the request of a party, if the court finds that using the percentage standard is unfair to
the child or either of the parties after considering a number of factors. Under current case
law, the court has the authority to reduce the amount of child support to be paid by a
payer, if the payer's child receives a social security benefit based on the payer's eligibility
for old-age or disability benefits under
42 USC 401 to
433.
This bill requires a court to reduce the amount of child support to be paid by a payer
as determined under ss. 767.25 and 767.51 and the amount of revised child support
determined under s. 767.32 if the payer's child for whom support is to be paid receives a
social security benefit based on the payer's eligibility for old-age or disability benefits
under
42 USC 401 to
433. The amount of the reduction would equal the amount of the
social security benefit that the child receives.
Study of County Child Support Agency Staffing
The bill directs the DHSS to study the staffing levels of all county child support
agencies in the state to determine an appropriate level of staffing for those agencies. The
bill directs DHSS to submit a report to appropriate standing committees of the legislature
by January 1, 1997. The purpose of not requiring the report until January 1, 1997 is to
ensure that the kids information data system (KIDS) is fully operational so that data
expected to be available through KIDS can be utilized in the report.
Postmajority Support
Under current law, in an action affecting the family in which child support is
ordered, the court must order either party or both to pay for the support of any child of
the parties who is less than 19 years old and is pursuing an accredited course of
instruction leading to the acquisition of a high school diploma or its equivalent. Under
current law, a person who is under the age of 21 years and any person who becomes 21
years old during a school year may be enrolled in a special education program if they are
determined to be a "child with exceptional educational needs". A child with exceptional
educational needs is a child who may require special educational services to supplement
or replace regular education because he or she has certain statutorily specified
conditions, or other conditions specified by the state superintendent of public instruction,
including an orthopedic impairment; a cognitive disability or other developmental
disability; a hearing handicap; autism; or other health impairments.
This bill authorizes a court to order either party or both parties to pay for the
support of a child of the parties who is 19 years of age or older but under age 21 or becomes
age 21 during a school year, and who is identified as a child with exceptional educational
needs and is participating in a special education program.
Report on Adequacy of Child Support Orders
Currently, federal law requires that states review and revise, if appropriate, their
child support guidelines at least once every 4 years to ensure that the application of those
guidelines results in the determination of appropriate child support award amounts. As
part of the review of a state's guidelines, a state must consider economic data on the cost
of raising children and analyze case data gathered through sampling or other methods
on the application of and deviation from the guidelines. The DHSS conducts the review
of Wisconsin's child support guidelines, which are known as the percentage standard.
There is no state law requirement, however, addressing the scope of the review or
requiring that the results of the review be submitted to the legislature.
This bill creates a requirement that the DHSS report to the legislature an
evaluation of the adequacy of child support orders determined using the percentage
standard. The report must include consideration of the following factors:
1. Economic data on the cost of raising children in households consisting of one
parent and households consisting of 2 parents.
2. Economic data on the cost of raising children in 2 households under shared
physical placement conditions.
3. Case data on the application of and deviation from the percentage standards,
and case data, to the extent that it is available, on the costs incurred for the provision of
health care and day care for children for whom child support has been ordered.
Under this bill, the department must report by January 1, 1997, and every 4 years
thereafter.
Paternity Judgments and Blood Test Costs
Under current law, in an action to establish the paternity of a child, if a petitioner,
other than the state, fails to appear 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 trial, the court may enter a judgment for the respondent
dismissing the action.
In addition, under current law, the fees and costs of blood tests ordered by the court
in actions to establish paternity must be paid by the county, except that when a paternity
judgment is entered, the court may order either or both parties to reimburse the county
if they have sufficient resources to do so or, if 2 or more identical series of blood tests are
performed upon the same person, the court may require the person requesting the 2nd
or subsequent series of tests to pay in advance.
This bill provides that a court may adjudicate the alleged father to be the father
if the mother of the child fails to appear at the first appearance, unless the first
appearance is not required, scheduled blood test, pretrial hearing or trial if sufficient
evidence exists to establish the alleged father as the father of the child.
The bill also provides that if the state is not a petitioner in an action to establish
paternity of a child, the court may order any or all of the parties to pay for the fees and
costs for the blood tests in advance if the court finds that the parties have sufficient
resources to pay the costs of the blood tests.
SB422, s. 1
1Section
1
. 46.10 (14) (c) (intro.) of the statutes is amended to read:
SB422,5,72
46.10
(14) (c) (intro.)
Upon request by a parent, the The court
may
shall modify
3the amount of child support
payments determined under par. (b)
, subject to par. (cm), 4if, after considering
all of the following factors
that the court determines are relevant,
5the court finds by the greater weight of the credible evidence that the
use of the
6percentage standard amount of child support determined under par. (b) is unfair to
7the child or to either of the parents:
SB422, s. 2
8Section
2. 46.10 (14) (c) 7. of the statutes is repealed and recreated to read:
SB422,5,109
46.10
(14) (c) 7. Extraordinary travel expenses incurred in exercising parental
10visitation with the child.
Note: Amends a provision and repeals and recreates a provision relating to setting
child support in substitute care cases. First, modifies s. 46.10 (14) (c) (intro.) to provide
that a court must modify the amount of support determined under the percentage
standard if, after considering all of the factors delineated in sub. (14) (c) that the court
deems relevant, the court finds by the greater weight of the credible evidence that the
amount of child support determined using the percentage standard is unfair to the child
or either of the parents. Under current law, a court may, on request of a parent, modify
the amount of child support determined using the percentage standard. Second,
eliminates one of the delineated factors, "the age of the child", and adds a new factor, "the
extraordinary travel expenses incurred in exercising parental visitation with the child",
in order to achieve greater consistency with factors considered in divorce and paternity
cases.
SB422, s. 3
11Section
3. 46.10 (14) (d) of the statutes is amended to read:
SB422,6,512
46.10
(14) (d) If the court finds under par. (c) that
use of the percentage
13standard the amount of child support determined under par. (b) is unfair to the minor
14child or either of the parents, the court shall state in writing or on the record the
1amount of support that would be required by using the percentage standard, the
2amount by which the court's order deviates from that amount, its reasons for finding
3that
use of the percentage standard the amount of child support determined under
4par. (b) is unfair to the child or the parent, its reasons for the amount of the
5modification and the basis for the modification.
Note: For consistency with Section 1, modifies language relating to a court's
required findings in deviating from the percentage standard in substitute care cases, to
refer to the court finding the amount of child support determined by using the percentage
standard unfair, rather than finding the use of the percentage standard unfair.
SB422, s. 4
6Section
4. 46.25 (9m) of the statutes is created to read:
SB422,6,117
46.25
(9m) The department shall, by January 1, 1997, and by January 1 every
84 years thereafter, submit a report to the legislature under s. 13.172 (2) on the use
9of the child support percentage standard under sub. (9) (a). The report shall evaluate
10the adequacy of child support orders determined by using the percentage standard
11and shall include consideration of the following factors:
SB422,6,1312
(a) Economic data on the cost of raising children in households with only one
13parent and households with 2 parents.
SB422,6,1514
(b) Economic data on the cost of raising children in 2 households under shared
15physical placement conditions.
SB422,6,1816
(c) Case data on the application of and deviation from the percentage standards
17and case data, to the extent that it is available, on the costs incurred for the provision
18of health care and day care for children for whom child support has been ordered.
Note: Directs the DHSS to report to the legislature every 4 years, beginning
January 1, 1997, on use of the percentage standard and the adequacy of child support
orders determined using the standard.
SB422, s. 5
19Section
5. 303.08 (5) (a) of the statutes is renumbered 303.08 (5) (am).
SB422, s. 6
20Section
6. 303.08 (5) (a) of the statutes is created to read:
SB422,6,2121
303.08
(5) (a) Payment of child support ordered under ch. 767;
SB422, s. 7
1Section
7. 303.08 (5) (c) of the statutes is amended to read:
SB422,7,32
303.08
(5) (c) Support of the prisoner's dependents, if any
, other than child
3support ordered under ch. 767;
Note: Makes court-ordered child support payments the first item disbursed from
Huber prisoner wages, moves down to 2nd and 3rd priority, respectively, board of the
prisoner and necessary travel expenses, makes support of dependents other than
court-ordered child support the 4th item, followed by payment of the prisoner's
obligations either acknowledged or reduced to judgment and, lastly, the balance, if any,
to the prisoner upon release.
SB422, s. 8
4Section
8
. 767.23 (1) (m) of the statutes is created to read:
SB422,7,65
767.23
(1) (m) Requiring either party or both parties to execute an assignment
6of income for payment of a minor child's day care expenses.
Note: Permits a court or family court commissioner, in an action affecting the
family, to issue a temporary order requiring either or both parties to execute an income
assignment for payment of day care expenses.
SB422, s. 9
7Section
9
. 767.25 (1m) (intro.) of the statutes is amended to read:
SB422,7,138
767.25
(1m) (intro.)
Upon request by a party, the The court
may shall modify
9the amount of child support
payments determined under sub. (1j) if, after
10considering
all of the following factors
that the court determines are relevant, the
11court finds by the greater weight of the credible evidence that
use of the percentage
12standard the amount of child support determined under sub. (1j) is unfair to the child
13or to any of the parties:
SB422, s. 10
14Section
10. 767.25 (1m) (a) of the statutes is renumbered 767.25 (1m) (am).
SB422, s. 11
15Section
11
. 767.25 (1m) (c) of the statutes is renumbered 767.25 (1m) (ac) and
16amended to read:
SB422,7,1917
767.25
(1m) (ac) The
needs of the child and the standard of living the child
18would have enjoyed had the marriage not ended in annulment, divorce or legal
19separation.
SB422, s. 12
20Section
12. 767.25 (1m) (d) of the statutes is repealed.
SB422, s. 13
1Section
13. 767.25 (1m) (e) of the statutes is amended to read:
SB422,8,42
767.25
(1m) (e) The cost of day care if the custodian works outside the home
, 3or the value of custodial services performed by the custodian if
it is appropriate for 4the custodian
remains to remain in the home
as a full-time parent.
Note: Makes the following changes in current s. 767.25 (1m), relating to deviating
from use of the percentage standard in a case of divorce, annulment or legal separation:
1. Modifies current law to provide that the court must modify the amount of child
support determined using the percentage standard if, after considering all of the factors
delineated in s. 767.25 (1m) which it deems relevant, the court finds by the greater weight
of the credible evidence that the amount of child support determined using the percentage
standard is unfair to the child or any party. Current law provides that a court may, upon
request by a party, modify the amount determined using the percentage standard if, after
considering the delineated factors, the court finds such use would be unfair.
2. Modifies certain current factors to be considered in determining whether the
amount determined using the percentage standard is unfair, in order to achieve greater
consistency with factors considered in substitute care and paternity cases. Specifically,
in this bill:
a. A new factor, "needs of the child", is added and combined with the current factor
"standard of living the child would have enjoyed had the marriage not ended in
annulment, divorce or legal separation".
b. The current factors, "the desirability that the custodian remain in the home as
a full-time parent" and "the cost of day 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", are combined and modified to read: "The cost of day care if the custodian works
outside the home or the value of custodial services performed by the custodian if it is
appropriate for the custodian to remain in the home as a full-time parent.".
SB422, s. 14
5Section
14. 767.25 (1n) and (2) of the statutes are amended to read:
SB422,8,136
767.25
(1n) If the court finds under sub. (1m) that
use of the percentage
7standard the amount of child support determined under sub. (1j) is unfair to the child
8or
the requesting any party, the court shall state in writing or on the record the
9amount of support that would be required by using the percentage standard, the
10amount by which the court's order deviates from that amount, its reasons for finding
11that
use of the percentage standard the amount of child support determined under
12sub. (1j) is unfair to the child or
the any party, its reasons for the amount of the
13modification and the basis for the modification.
SB422,9,4
1(2) The court may
, upon request by any party, protect and promote the best
2interests of the minor children by setting aside a portion of the child support which
3either any party is ordered to pay in a separate fund or trust for the support,
4education and welfare of such children.
Note: For consistency with Section 9, modifies language relating to a court's
required findings in deviating from the percentage standard in divorce cases, to refer to
the court finding the amount of child support determined by using the percentage
standard unfair, rather than finding the use of the percentage standard unfair. Also,
eliminates reference to "the requesting party", since, under Section 9, a party no longer
has to request that a court consider modifying the child support amount. Also amends
the current provision which permits a court to order a portion of child support to be put
in a separate fund or trust, to provide that any party may so request.
SB422, s. 15
5Section
15. 767.25 (1r) of the statutes is created to read:
SB422,9,116
767.25
(1r) The court shall reduce the amount of a parent's child support
7payments determined under sub. (1j) or (1m), if the court finds that the child receives
8benefits under
42 USC 402 (d) based on the parent's entitlement to federal old-age
9or disability insurance benefits under
42 USC 401 to
433. The parent's child support
10payments shall be reduced by the amount of the benefit under
42 USC 402 (d)
11received by the child.
Note: Requires a court in a divorce, annulment or legal separation case to reduce
the amount of child support to be paid by a payer if the payer's child for whom support
is to be paid receives a social security benefit based on the payer's eligibility for old-age
or disability benefits. The amount of the reduction would be equal to the amount of the
social security benefit the child receives.
SB422, s. 16
12Section
16. 767.25 (4g) of the statutes is created to read:
SB422,9,1513
767.25
(4g) The court may order either party or both parties to pay for the
14support of any child of the parties who is 19 years of age or older and who satisfies
15all of the following:
SB422,9,1616
(a) Is a child with exceptional educational needs, as defined in s. 115.76 (3).
SB422,9,1717
(b) Is participating in a special education program under subch. V of ch. 115.
Note: Permits a court in a divorce, annulment or legal separation action to order
one or both parties to pay for the support of a child of the parties who is 19 years of age
or older but under age 21 or becomes age 21 during a school year and who is identified
as a child with exceptional educational needs and is participating in a special education
program.
SB422, s. 17
1Section
17
. 767.25 (4r) of the statutes is created to read:
SB422,10,62
767.25
(4r) (a) When ordering child support for a child under sub. (1), the court
3shall consider and may specifically assign responsibility to one or both parents for
4and direct the manner of payment of the child's day care expenses that are necessary
5to permit either parent to work. A parent may be required to initiate or continue
6payment of day care expenses for a child under this subsection.
SB422,10,87
(b) In directing the manner of payment of a child's day care expenses, the court
8shall order that payment be made to one of the following:
SB422,10,99
1. The other parent.
SB422,10,1010
2. The day care provider.
SB422,10,1211
3. The clerk of court for disbursement to the person for whom the payment has
12been awarded.
SB422,10,2213
(c) If a parent who is ordered to pay child care expenses under this subsection
14fails to make a required payment within 10 days after its due date, the court may
15order that payment be withheld from the person's income and assigned for the
16payment of day care expenses. If the court orders income withholding and
17assignment for the payment of day care expenses, the court shall direct that payment
18under the assignment be made to the clerk of court for disbursement to the other
19parent as provided in s. 767.29 and shall send notice of the assignment and of the
20opportunity to request a hearing in the manner provided under s. 767.265 (2h). The
21clerk of court shall keep a record of all moneys received and disbursed by the clerk
22for day care expenses that are directed to be paid to the clerk.
Note: Provides that when ordering child support in a divorce, annulment or legal
separation case, the court must consider and may specifically assign responsibility to one
or both parents for, and direct the manner of payment of, the child's day care expenses
which are necessary to permit either parent to work. If the court assigns responsibility
for day care, it must, in directing the manner of payment, order payment either to the
other parent, to the day care provider or to the clerk of courts for distribution to the other
parent or day care provider. If a person fails to make an ordered child care payment
within 10 days after a payment is due, the court may then order the payment withheld
from the person's income.