767.26 Annotation
While arrearages under a temporary order for alimony and attorney fees and costs which the husband is required to pay do not constitute part of a wife's division of the estate, they are, nevertheless, a charge against the entire estate. Tesch v. Tesch, 63 W (2d) 320, 217 NW (2d) 647.
767.26 Annotation
Obligation to support children is factor in determining amount of maintenance payments. Besaw v. Besaw, 89 W (2d) 509, 279 NW (2d) 192 (1979).
767.26 Annotation
Trial court abused discretion by denying mother's choice to remain at home to care for small children. Hartung v. Hartung, 102 W (2d) 58, 306 NW (2d) 16 (1981).
767.26 Annotation
Trial court abused discretion by terminating maintenance without sufficiently addressing factors under this section. Vander Perren v. Vander Perren, 105 W (2d) 219, 313 NW (2d) 813 (1982).
767.26 Annotation
Compensation for person who supports spouse while spouse is in school can be achieved through both property division and maintenance payments. In re Marriage of Lundberg, 107 W (2d) 1, 318 NW (2d) 918 (1982).
767.26 Annotation
Support award was inadequate and, consequently, an abuse of discretion. In Matter of Marriage of Jasper v. Jasper, 107 W (2d) 59, 318 NW (2d) 792 (1982).
767.26 Annotation
Trial court may begin maintenance evaluation with proposition that dependent partner may be entitled to 50% of total earnings of both parties. Bahr v. Bahr, 107 W (2d) 72, 318 NW (2d) 391 (1982).
767.26 Annotation
Trial court may not consider marital misconduct as relevant factor in granting maintenance payments. Dixon v. Dixon, 107 W (2d) 492, 319 NW (2d) 846 (1982).
767.26 Annotation
Maintenance payments to former wife were improperly discontinued solely upon ground of cohabitation with another man. Van Gorder v. Van Gorder, 110 W (2d) 188, 327 NW (2d) 674 (1983).
767.26 Annotation
Three formulas approved for calculating maintenance or property division award in cases where one spouse has contributed to other spouse's pursuit of advanced educational degree. Marriage of Haugan v. Haugan, 117 W (2d) 200, 343 NW (2d) 796 (1984).
767.26 Annotation
Alcoholic spouse's refusal of treatment is relevant to trial court's determination regarding request for permanent maintenance. Marriage of DeLaMatter v. DeLaMatter, 151 W (2d) 576, 445 NW (2d) 676 (Ct. App. 1989).
767.26 Annotation
Military disability payments may be considered in assessing spouse's ability to pay maintenance. In re Marriage of Weberg v. Weberg, 158 W (2d) 540, 463 NW (2d) 382 (Ct. App. 1990).
767.26 Annotation
Trial court's use of computer program to analyze financial evidence approved. In re Marriage of Bisone, 165 W (2d) 114, 477 NW (2d) 59 (Ct. App. 1991).
767.26 Annotation
An award may be based on a percentage of the payer's income in "unusual circumstances"; unpredictable future income warrants a percentage award. In re Marriage of Hefty v. Hefty, 172 W (2d) 124, 493 NW (2d) 33 (1992).
767.26 Annotation
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. In re Marriage of Hefty v. Hefty, 172 W (2d) 124, 493 NW (2d) 33 (1992).
767.26 Annotation
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. In re Marriage of Hefty v. Hefty, 172 W (2d) 124, 493 NW (2d) 33 (1992).
767.26 Annotation
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. Marriage of Forester v. Forester, 174 W (2d) 78, 497 NW (2d) 78 (Ct. App. 1993).
767.26 Annotation
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 W (2d) 270, 510 NW (2d) 762 (Ct. App. 1993).) (Ct. App. 1994).
767.26 Annotation
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 W (2d) 287, 520 NW (2d) 284 (Ct. App. 1994).
767.26 Annotation
An otherwise short term marriage should not be considered a longer term marriage because there are children. Luciani v. Montemurro-Luciani, 191 W (2d) 67, 528 NW (2d) 477 (Ct. App. 1995).
767.26 Annotation
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 W (2d) 67, 528 NW (2d) 477 (Ct. App. 1995).
767.26 Annotation
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 W (2d) 153, 536 NW (2d) 109 (Ct. App. 1995).
767.26 Annotation
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 W (2d) 237, 540 NW (2d) 412 (1995).
767.26 Annotation
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 v. Fisher, 200 W (2d) 807, 547 NW (2d) 801 (Ct. App. 1996).
767.26 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).
767.26 Annotation
The federal tax consequences of divorce. Meldman, Ryan, 57 MLR 229.
767.26 Annotation
No-fault divorce: Tax consequences of support, maintenance and property settlement. Case, 1977 WBB 11.
767.26 Annotation
See also notes to s. 767.32 for decisions regarding postjudgment modifications.
767.261
767.261
Family support. The court may make a financial order designated "family support" as a substitute for child support orders under
s. 767.25 and maintenance payment orders under
s. 767.26. A party ordered to pay family 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 section 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 family support as follows:
767.261(1)
(1) First, to payment of family 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 family support payments received to payment of family support due within the calendar month during which the payment is received.
767.261(2)
(2) Second, to payment of unpaid family support due before the payment is received.
767.261(3)
(3) Third, to payment of interest accruing on unpaid family support.
767.261 Annotation
Offset of excess child support payments against arrears in alimony may be permissible. Anderson v. Anderson, 82 W (2d) 115, 261 NW (2d) 817.
767.262
767.262
Award of attorney fees. 767.262(1)
(1) The court, after considering the financial resources of both parties, may do the following:
767.262(1)(a)
(a) Order either party to pay a reasonable amount for the cost to the other party of maintaining or responding to an action affecting the family and for attorney fees to either party.
767.262(1)(b)
(b) If one party receives services under
s. 49.22 or services provided by the state or county as a result of an assignment of income under
s. 49.19, order the other party to pay any fee chargeable under
s. 49.22 (6) or the cost of services rendered by the state or county under
s. 49.19.
767.262(2)
(2) Any amount ordered under
sub. (1) may include sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment.
767.262(3)
(3) The court may order that the amount be paid directly to the attorney or to the state or the county providing services under
s. 49.22 or
49.19, who may enforce the order in its name.
767.262(4)(a)(a) Except as provided in
par. (b), no court may order payment of costs under this section by the state or any county which may be a party to the action.
767.262(4)(b)
(b) The court may order payment of costs under this section by a county in an action in which the court finds that the record of payments and arrearages kept by the clerk of court under
s. 59.40 (2) (h) or the support collection designee under
s. 59.07 (97m) (b) 1. [59.53 (5m) (b) 1.] is substantially incorrect and that the clerk of court or support collection designee has failed to correct the record within 30 days after having received information that the court determines is sufficient for making the correction.
767.262 Note
NOTE: Par. (b) is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c). The bracketed language indicates the correct cross-reference. Corrective legislation is pending.
767.262 History
History: 1977 c. 105;
1979 c. 32 s.
50;
1979 c. 352 s.
39; Stats. 1979 s. 767.262;
1983 a. 27;
1993 a. 481,
490;
1995 a. 201,
279,
404; s. 13.93 (2) (c).
767.262 Annotation
Allowance of $2,300 as a contribution to the wife's attorney's fees incurred in the litigation is not deemed excessive where it was obvious that the trial court reasonably believed that a considerable portion of the attorney-fee liability was attributable to the husband who, represented by 4 successive attorneys or firms, caused a needlessly protracted trial, made numerous defense motions, and prosecuted a meritless appeal—an element which, together with others, constituted a firm basis for fixing such contribution. Martin v. Martin, 46 W (2d) 218, 174 NW (2d) 468.
767.262 Annotation
An allowance of $1,000 attorneys fees on appeal, after the award of a generous property settlement, constitutes a penalty for appealing. Molloy v. Molloy, 46 W (2d) 682, 176 NW (2d) 292.
767.262 Annotation
Attorney fees on appeal depend on the wife's need, the husband's ability to pay and whether there is reasonable ground for the appeal. Klipstein v. Klipstein, 47 W (2d) 314, 177 NW (2d) 57.
767.262 Annotation
A circuit court does not have subject matter jurisdiction in a divorce action to determine attorney's fees between an attorney and client whom the attorney continues to represent in the divorce action. In re Marriage of Stasey v. Stasey, 168 W (2d) 37, 483 NW (2d) 221 (1992).
767.262 Annotation
Nonmarital assets may be considered in determining whether to order one party to contribute to the other's fees. Doerr v. Doerr, 189 W (2d) 112, 525 NW (2d) 745 (Ct. App. 1994).
767.263
767.263
Notice of change of employer; change of address; change in ability to pay. Each order for child support, family support or maintenance payments shall include an order that the payer and payee notify the clerk of court or support collection designee, whichever is appropriate, of any change of address within 10 days of such change. Each order for child support, family support or maintenance payments shall also include an order that the payer notify the clerk of court or support collection designee, within 10 days, of any change of employer and of any substantial change in the amount of his or her income such that his or her ability to pay child support, family support or maintenance is affected. The order shall also include a statement that clarifies that notification of any substantial change in the amount of the payer's income will not result in a change of the order unless a revision of the order is sought.
767.263 History
History: 1977 c. 105;
1979 c. 32 s.
50; Stats. 1979 s. 767.263;
1989 a. 212;
1995 a. 279.
767.265
767.265
Income withholding. 767.265(1)(1) Each order for child support under this chapter, for maintenance payments under
s. 767.23 or
767.26, for family support under this chapter, for costs ordered under
s. 767.51 (3), for support by a spouse under
s. 767.02 (1) (f) or for maintenance payments under
s. 767.02 (1) (g), each order for a revision in a judgment or order with respect to child support, maintenance or family support payments under
s. 767.32, each stipulation approved by the court or the family court commissioner for child support under this chapter and each order for child or spousal support entered under
s. 948.22 (7) constitutes an assignment of all commissions, earnings, salaries, wages, pension benefits, benefits under
ch. 102 or
108, lottery prizes that are payable in instalments and other money due or to be due in the future to the clerk of court or support collection designee of the county where the action is filed. The assignment shall be for an amount sufficient to ensure payment under the order or stipulation and to pay any arrearages due at a periodic rate not to exceed 50% of the amount of support due under the order 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).
767.265(2h)
(2h) If a court-ordered assignment does not require immediately effective withholding and a payer fails to make a required maintenance, child support, spousal support or family support payment within 10 days after its due date, within 20 days after the payment's due date the court or family court commissioner shall cause the assignment to go into effect and shall send a notice by regular mail to the last-known address of the payer. The notice shall inform the payer that an assignment is in effect and that the payer may, within a 10-day period, by motion request a hearing on the issue of whether the assignment should remain in effect. The court or family court commissioner shall hold a hearing requested under this section within 10 working days after the date of the request. If at the hearing the payer establishes that the assignment is not proper because of a mistake of fact, the court or family court commissioner may direct that the assignment be withdrawn. If the payer does not request a hearing, the court or family court commissioner shall send notice of the assignment to the person from whom the payer receives or will receive money. Either party may, within 15 working days after the date of the decision by a family court commissioner under this section, seek review of the decision by the court with jurisdiction over the action.
767.265(2r)
(2r) Upon entry of each order for child support, maintenance, family support or support by a spouse 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. 767.267 applies, the court shall provide notice of the assignment by regular mail to the last-known address of the person from whom the payer receives or will receive money. If the clerk of court or support collection designee, whichever is appropriate, does not receive the money from the person notified, the court 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.
767.265(3h)
(3h) A person who receives notice of assignment under this section or
s. 767.23 (1) (L),
767.25 (4m) (c) or
767.51 (3m) (c) 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 clerk of court or support collection designee, whichever is appropriate, of the jurisdiction providing notice or, in the case of an amount ordered withheld for health care expenses, to the appropriate health care insurer, provider or plan. Except as provided in
sub. (3m), for each payment sent to the clerk of court or support collection 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.
767.265(3m)
(3m) 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 an amount certain. 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.
767.265(6)(a)(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 clerk of court or support collection designee or the appropriate health care insurer, provider or plan as provided in this section or
s. 767.23 (1) (L),
767.25 (4m) (c) or
767.51 (3m) (c), 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% of the amount not withheld or sent.
767.265(6)(b)
(b) If an employer who receives an assignment under this section or
s. 767.23 (1) (L),
767.25 (4m) (c) or
767.51 (3m) (c) fails to notify the clerk of court or support collection designee, whichever is appropriate, within 10 days after an employe 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.
767.265(6)(c)
(c) No employer may use an assignment under this section or
s. 767.23 (1) (L),
767.25 (4m) (c) or
767.51 (3m) (c) as a basis for the denial of employment to a person, the discharge of an employe or any disciplinary action against an employe. An employer who denies employment or discharges or disciplines an employe 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.
767.265(6)(d)
(d) Compliance by the person from whom the payer receives money with the order operates as a discharge of the person's liability to the payer as to that portion of the payer's commission, earnings, salaries, wages, benefits or other money so affected.
767.265(7)
(7) A person who receives more than one notice of assignment under
sub. (3h) may send all money withheld to the clerk of court or support collection designee, whichever is appropriate, in a combined payment, accompanied by any information the clerk of court or support collection designee requires.
767.265(7m)(b)
(b) If after an assignment is in effect the payer's employer 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 clerk of court may, unless otherwise ordered by a judge, amend the withholding assignment or order so that all of the following apply:
767.265(7m)(b)1.
1. The withholding frequency corresponds to the new payroll period.
767.265(7m)(b)2.
2. The amounts to be withheld reflect the adjustment to the withholding frequency.
767.265(7m)(c)
(c) The clerk of court shall provide notice of the amended withholding assignment or order by regular mail to the payer's employer and to the payer.
767.265(8)
(8) In this section, "employer" includes the state and its political subdivisions.
767.265 History
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.
767.265 Annotation
The maximum amount subject to assignment to collect an arrearage is 50% of the support currently due. A 25% wage assignment for current support limits an assignment for arrearages to an additional 12.5% of wages. Marriage of Schnetzer v. Schnetzer, 174 W (2d) 458, 497 NW (2d) 772 (Ct. App. 1993).
767.265 Annotation
Mandatory wage assignment provisions of this section are constitutional. 68 Atty. Gen. 106.
767.266
767.266
Revocation of nontestamentary disposition provision in marital property agreement. Unless the judgment provides otherwise, a judgment of annulment, divorce or legal separation revokes a provision in a marital property agreement under
s. 766.58 which provides that, upon the death of either spouse, any of either or both spouses' property, including after-acquired property, passes without probate to a designated person, trust or other entity by nontestamentary disposition.
767.266 History
History: 1991 a. 301.
767.266 Note
NOTE: 1991 Wis. Act 301, which affected this section, contains extensive legislative council notes.
767.267(1)(1) If the court or the family court commissioner determines that income withholding under
s. 767.265 is inapplicable, ineffective or insufficient to ensure payment under an order or stipulation specified in
s. 767.265 (1), or that income withholding under
s. 767.25 (4m) (c) or
767.51 (3m) (c) is inapplicable, ineffective or insufficient to ensure payment of a child's health care expenses, including payment of health insurance premiums, ordered under
s. 767.25 (4m) or
767.51 (3m), the court or family court commissioner 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 clerk of court or support collection designee, whichever is appropriate. 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 or family court commissioner. The authorization shall include the payer's consent for the financial institution or an officer, employe or agent of the financial institution to disclose information to the court, family court commissioner, clerk of court or support collection designee regarding the account for which the payer has executed the authorization for transfer.
767.267(2)
(2) 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 clerk of court or support collection designee, whichever is appropriate, within 10 days after the date on which the funds should have been transferred.
767.267(3)
(3) 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.
767.267(4)
(4) An authorization for transfer under
sub. (1) may not be revoked except by court order.
767.267(5)
(5) A financial institution or an officer, employe or agent of a financial institution may disclose information to the court, family court commissioner, clerk of court or support collection designee concerning an account for which a payer has executed an authorization for transfer under
sub. (1).
767.267(6)
(6) No financial institution or officer, employe 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.
767.267 History
History: 1993 a. 481;
1995 a. 279.
767.27
767.27
Disclosure of assets required. 767.27(1)
(1) In any action affecting the family, except an action to affirm marriage under
s. 767.02 (1) (a), the court shall require each party to furnish, on such standard forms as the court may require, full disclosure of all assets owned in full or in part by either party separately or by the parties jointly. Such disclosure may be made by each party individually or by the parties jointly. Assets required to be disclosed shall include, but shall not be limited to, real estate, savings accounts, stocks and bonds, mortgages and notes, life insurance, interest in a partnership, limited liability company or corporation, tangible personal property, income from employment, future interests whether vested or nonvested, and any other financial interest or source. The court shall also require each party to furnish, on the same standard form, information pertaining to all debts and liabilities of the parties. The form used shall contain a statement in conspicuous print that complete disclosure of assets and debts is required by law and deliberate failure to provide complete disclosure constitutes perjury. The court may on its own initiative and shall at the request of either party require the parties to furnish copies of all state and federal income tax returns filed by them for the past 2 years, and may require copies of such returns for prior years.
767.27(1m)
(1m) In any action affecting the family which involves a minor child, the court shall require, in addition to the disclosure under
sub. (1), that each party furnish the court with information regarding the types and costs of any health insurance policies or plans which are offered through each party's employer or other organization. This disclosure shall include a copy of any health care policy or plan which names the child as a beneficiary at the time that the disclosure is filed under
sub. (2).
