767.10 Annotation
A trial court is not required to give effect to a property division agreement entered into before divorce proceedings are instituted. It should make its own determination of whether the agreement adequately provides for the parties. Ray v. Ray,
57 Wis. 2d 77,
203 N.W.2d 724.
767.10 Annotation
Legislative reduction of the age of majority to 18 years in effect emancipated children of the divorced father who had reached that age and terminated both his parental rights and his legal obligation to provide support under the divorce judgment, since parental support past the age of majority is not a concept accepted in Wisconsin. Schmitz v. Schmitz,
70 Wis. 2d 882,
236 N.W.2d 657.
767.10 Annotation
There are 2 types of postnuptial agreements: (1) family settlement agreements, which contemplate the continuation of the marriage, and (2) separation agreements, which are made after separation in contemplation of a separation. The former are presumed binding on the parties under s. 767.255 (3) (L). The latter are governed by s. 767.10 and constitute a recommendation jointly made by the parties to the court regarding what the judgment provide. Evenson v. Evenson,
228 Wis. 2d 676,
598 N.W.2d 232 (Ct. App. 1999).
767.10 Annotation
An agreement made in contemplation of divorce, entered into after the parties agreed to the divorce, was subject to s. 767.10, not 767.255. When a party withdrew his consent before court approval, the agreement was unenforceable. Ayres v. Ayres,
230 Wis. 2d 431,
602 N.W.2d 132 (Ct. App. 1999).
767.11
767.11
Family court counseling services. 767.11(1)(a)(a) Except as provided in
par. (b) and subject to approval by the chief judge of the judicial administrative district, the circuit judge or judges in each county shall designate a person meeting the qualifications under
sub. (4) as the director of family court counseling services in that county.
767.11(1)(b)
(b) If 2 or more contiguous counties enter into a cooperative agreement under
sub. (3) (b), the circuit judges for the counties involved shall, subject to approval by the chief judge of the judicial administrative district, designate a person meeting the qualifications under
sub. (4) as the director of family court counseling services for those counties.
767.11(1)(c)
(c) A county or counties may designate a family court commissioner as the director under
par. (a) or
(b).
767.11(2)
(2) Duties. A director of family court counseling services designated under
sub. (1) shall administer a family court counseling office if such an office is established under
sub. (3) (a) or
(b). Regardless of whether such an office is established, the director shall:
767.11(2)(a)
(a) Employ staff to perform mediation and to perform any legal custody and physical placement study services authorized under
sub. (14), arrange and monitor staff training, and assign and monitor staff case load.
767.11(2)(b)
(b) Contract under
sub. (3) (c) with a person or public or private entity to perform mediation and to perform any legal custody and physical placement study services authorized under
sub. (14).
767.11(2)(c)
(c) Supervise and perform mediation and any legal custody and physical placement study services authorized under
sub. (14), and evaluate the quality of any such mediation or study services.
767.11(2)(d)
(d) Administer and manage funding for family court counseling services.
767.11(3)
(3) Mediation provided. Mediation shall be provided in every county in this state by any of the following means:
767.11(3)(a)
(a) A county may establish a family court counseling office to provide mediation in that county.
767.11(3)(b)
(b) Two or more contiguous counties may enter into a cooperative agreement to establish one family court counseling office to provide mediation in those counties.
767.11(3)(c)
(c) A director of family court counseling services designated under
sub. (1) may contract with any person or public or private entity, located in a county in which the director administers family court counseling services or in a contiguous county, to provide mediation in such a county.
767.11(4)
(4) Mediator qualifications. Every mediator assigned under
sub. (6) shall have not less than 25 hours of mediation training or not less than 3 years of professional experience in dispute resolution.
767.11(5)(a)(a) In any action affecting the family, including a revision of judgment or order under
s. 767.32 or
767.325, in which it appears that legal custody or physical placement is contested, the court or family court commissioner shall refer the parties to the director of family court counseling services for possible mediation of those contested issues. The court or the family court commissioner shall inform the parties that the confidentiality of communications in mediation is waived if the parties stipulate under
sub. (14) (c) that the person who provided mediation to the parties may also conduct the legal custody or physical placement study under
sub. (14).
767.11(5)(b)
(b) If both parties to any action affecting the family wish to have joint legal custody of a child, either party may request the court or family court commissioner to refer the parties to the director of family court counseling services for assistance in resolving any problem relating to joint legal custody and physical placement of the child. Upon request, the court shall so refer the parties.
767.11(5)(c)
(c) A person who is awarded periods of physical placement, a child of such a person, a person with visitation rights or a person with physical custody of a child may notify the family court commissioner of any problem he or she has relating to any of these matters. Upon notification, the family court commissioner may refer any person involved in the matter to the director of family court counseling services for assistance in resolving the problem.
767.11(6)
(6) Action upon referral. Whenever a court or family court commissioner refers a party to the director of family court counseling services for possible mediation, the director shall assign a mediator to the case. The mediator shall provide mediation if he or she determines it is appropriate. If the mediator determines mediation is not appropriate, he or she shall so notify the court. Whenever a court or family court commissioner refers a party to the director of family court counseling services for any other family court counseling service, the director shall take appropriate action to provide the service.
767.11(7)
(7) Private mediator. The parties to any action affecting the family may, at their own expense, receive mediation services from a mediator other than one who provides services under
sub. (3). Parties who receive services from such a mediator shall sign and file with the director of family court counseling services and with the court or family court commissioner a written notice stating the mediator's name and the date of the first meeting with the mediator.
767.11(8)
(8) Initial session of mediation required. 767.11(8)(a)(a) Except as provided in
par. (b), in any action affecting the family, including an action for revision of judgment or order under
s. 767.32 or
767.325, in which it appears that legal custody or physical placement is contested, the parties shall attend at least one session with a mediator assigned under
sub. (6) or contracted with under
sub. (7) and, if the parties and the mediator determine that continued mediation is appropriate, no court may hold a trial of or a final hearing on legal custody or physical placement until after mediation is completed or terminated.
767.11(8)(b)
(b) A court may, in its discretion, hold a trial or hearing without requiring attendance at the session under
par. (a) if the court finds that attending the session will cause undue hardship or would endanger the health or safety of one of the parties. In making its determination of whether attendance at the session would endanger the health or safety of one of the parties, the court shall consider evidence of the following:
767.11(8)(b)3.
3. That either party has a significant problem with alcohol or drug abuse.
767.11(8)(b)4.
4. Any other evidence indicating that a party's health or safety will be endangered by attending the session.
767.11(8)(c)
(c) The initial session under
par. (a) shall be a screening and evaluation mediation session to determine whether mediation is appropriate and whether both parties wish to continue in mediation.
767.11(9)
(9) Prohibited issues in mediation. If mediation is provided by a mediator assigned under
sub. (6), no issue relating to property division, maintenance or child support may be considered during the mediation unless all of the following apply:
767.11(9)(a)
(a) The property division, maintenance or child support issue is directly related to the legal custody or physical placement issue.
767.11(9)(b)
(b) The parties agree in writing to consider the property division, maintenance or child support issue.
767.11(10)
(10) Powers and duties of mediator. A mediator assigned under
sub. (6) shall be guided by the best interest of the child and may do any of the following, at his or her discretion:
767.11(10)(a)
(a) Include the counsel of any party or any appointed guardian ad litem in the mediation.
767.11(10)(b)
(b) Interview any child of the parties, with or without a party present.
767.11(10)(c)
(c) Require a party to provide written disclosure of facts relating to any legal custody or physical placement issue addressed in mediation, including any financial issue permitted to be considered.
767.11(10)(d)
(d) Suspend mediation when necessary to enable a party to obtain an appropriate court order or appropriate therapy.
767.11(10)(e)
(e) Terminate mediation if a party does not cooperate or if mediation is not appropriate or if any of the following facts exist:
767.11(10)(e)3.
3. Either party has a significant problem with alcohol or drug abuse.
767.11(10)(e)4.
4. Other evidence which indicates one of the parties' health or safety will be endangered if mediation is not terminated.
767.11(12)(a)(a) Any agreement which resolves issues of legal custody or periods of physical placement between the parties reached as a result of mediation under this section shall be prepared in writing, reviewed by the attorney, if any, for each party and by any appointed guardian ad litem, and submitted to the court to be included in the court order as a stipulation. Any reviewing attorney or guardian ad litem shall certify on the mediation agreement that he or she reviewed it and the guardian ad litem, if any, shall comment on the agreement based on the best interest of the child. The mediator shall certify that the written mediation agreement is in the best interest of the child based on the information presented to the mediator and accurately reflects the agreement made between the parties. The court may approve or reject the agreement, based on the best interest of the child. The court shall state in writing its reasons for rejecting an agreement.
767.11(12)(b)
(b) If after mediation under this section the parties do not reach agreement on legal custody or periods of physical placement, the parties or the mediator shall so notify the court. Except as provided in
s. 767.045 (1) (am), the court shall promptly appoint a guardian ad litem under
s. 767.045. Regardless of whether the court appoints a guardian ad litem, the court shall, if appropriate, refer the matter for a legal custody or physical placement study under
sub. (14). If the parties come to agreement on legal custody or physical placement after the matter has been referred for a study, the study shall be terminated. The parties may return to mediation at any time before any trial of or final hearing on legal custody or periods of physical placement. If the parties return to mediation, the county shall collect any applicable fee under
s. 814.615.
767.11(13)
(13) Powers of court or family court commissioner. Except as provided in
sub. (8), referring parties to mediation under this section does not affect the power of the court or family court commissioner to make any necessary order relating to the parties during the course of the mediation.
767.11(14)
(14) Legal custody and physical placement study. 767.11(14)(a)(a) A county or 2 or more contiguous counties shall provide legal custody and physical placement study services. The county or counties may elect to provide these services by any of the means set forth in
sub. (3) with respect to mediation. Regardless of whether a county so elects, whenever legal custody or physical placement of a minor child is contested and mediation under this section is not used or does not result in agreement between the parties, or at any other time the court considers it appropriate, the court may order a person or entity designated by the county to investigate the following matters relating to the parties:
767.11(14)(a)2.
2. Each party's performance of parental duties and responsibilities relating to the child.
767.11(14)(a)3.
3. Any other matter relevant to the best interest of the child.
767.11(14)(b)
(b) The person or entity investigating the parties under
par. (a) shall complete the investigation and submit the results to the court. The court shall make the results available to both parties. The report shall be a part of the record in the action unless the court orders otherwise.
767.11(14)(c)
(c) No person who provided mediation to the parties under this section may investigate the parties under this subsection unless each party personally so consents by written stipulation after mediation has ended and after receiving notice from the person who provided mediation that consent waives the inadmissibility of communications in mediation under
s. 904.085.
767.11(15)
(15) Applicability. This section applies to each county on the date established by that county, or on June 1, 1989, whichever is earlier.
767.11 History
History: 1987 a. 355;
1989 a. 56;
1991 a. 269; Sup. Ct. Order No.
93-03, 179 Wis. 2d xv;
1995 a. 275,
343;
1999 a. 9.
767.11 Note
NOTE: 1987 Wis. Act 355, which created this section, contains explanatory notes.
767.11 Note
Judicial Council Note, 1993. Subsections (5) (a) and (14) (c) are amended because the rule of inadmissibility under s. 904.085 is not a privilege; it is waivable only if the parties stipulate that the mediator may conduct the custody investigation.
767.115
767.115
Educational programs and classes in actions affecting the family. 767.115(1)(a)(a) At any time during the pendency of an action affecting the family in which a minor child is involved and in which the court or family court commissioner determines that it is appropriate and in the best interest of the child, the court or family court commissioner, on its own motion, may order the parties to attend a program specified by the court or family court commissioner concerning the effects on a child of a dissolution of the marriage.
767.115(1)(b)
(b) At any time during the pendency of an action to determine the paternity of a child, or an action affecting the family for which the underlying action was an action to determine the paternity of a child, if the court or family court commissioner determines that it is appropriate and in the best interest of the child, the court or family court commissioner, on its own motion, may order either or both of the parties to attend a program specified by the court or family court commissioner providing training in parenting or coparenting skills, or both.
767.115(1m)
(1m) A program under
sub. (1) shall be educational rather than therapeutic in nature and may not exceed a total of 4 hours in length. The parties shall be responsible for the cost, if any, of attendance at the program. The court or family court commissioner may specifically assign responsibility for payment of any cost. No facts or information obtained in the course of the program, and no report resulting from the program, is admissible in any action or proceeding.
767.115(2)
(2) Notwithstanding
s. 767.07, the court or family court commissioner may require the parties to attend a program under
sub. (1) as a condition to the granting of a final judgment or order in the action affecting the family that is pending before the court or family court commissioner.
767.115(3)
(3) A party who fails to attend a program ordered under
sub. (1) or pay costs specifically ordered under
sub. (1m) may be proceeded against under
ch. 785 for contempt of court.
767.115(4)(a)(a) At any time during the pendency of a divorce or paternity action, the court or family court commissioner may order the parties to attend a class that is approved by the court or family court commissioner and that addresses such issues as child development, family dynamics, how parental separation affects a child's development and what parents can do to make raising a child in a separated situation less stressful for the child.
767.115(4)(b)
(b) The court or family court commissioner may not require the parties to attend a class under this subsection as a condition to the granting of the final judgment or order in the divorce or paternity action, however, the court or family court commissioner may refuse to hear a custody or physical placement motion of a party who refuses to attend a class ordered under this subsection.
767.115(4)(c)1.1. Except as provided in
subd. 2., the parties shall be responsible for any cost of attending the class.
767.115(4)(c)2.
2. If the court or family court commissioner finds that a party is indigent, any costs that would be the responsibility of that party shall be paid by the county.
767.115 History
History: 1993 a. 225;
1997 a. 45;
1999 a. 9.
767.12
767.12
Trial procedure. 767.12(1)(1)
Proceedings. In actions affecting the family, all hearings and trials to determine whether judgment shall be granted, except hearings under
s. 767.13 (5), shall be before the court. The testimony shall be taken by the reporter and shall be written out and filed with the record if so ordered by the court. Custody proceedings shall receive priority in being set for hearing.
767.12(2)(a)(a) If both of the parties by petition or otherwise have stated under oath or affirmation that the marriage is irretrievably broken, or if the parties have voluntarily lived apart continuously for 12 months or more immediately prior to commencement of the action and one party has so stated, the court, after hearing, shall make a finding that the marriage is irretrievably broken.
767.12(2)(b)
(b) If the parties have not voluntarily lived apart for at least 12 months immediately prior to commencement of the action and if only one party has stated under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to filing the petition and the prospect of reconciliation.
767.12(2)(b)1.
1. If the court finds no reasonable prospect of reconciliation, it shall make a finding that the marriage is irretrievably broken; or
767.12(2)(b)2.
2. If the court finds that there is a reasonable prospect of reconciliation, it shall continue the matter for further hearing not fewer than 30 nor more than 60 days later, or as soon thereafter as the matter may be reached on the court's calendar, and may suggest to the parties that they seek counseling. The court, at the request of either party or on its own motion, may order counseling. At the adjourned hearing, if either party states under oath or affirmation that the marriage is irretrievably broken, the court shall make a finding whether the marriage is irretrievably broken.
767.12(3)
(3) Breakdown of marital relationship. If both of the parties by petition or otherwise have stated under oath or affirmation that the marital relationship is broken, the court, after hearing, shall make a finding that the marital relationship is broken.
767.12 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 756 (1975);
1977 c. 105;
1979 c. 32 s.
50;
1979 c. 352 s.
39; Stats. 1979 s. 767.12;
1983 a. 436;
1989 a. 132.
767.12 Annotation
Abolition of guilt in marriage dissolution: Wisconsin's adoption of no-fault divorce. 61 MLR 672 (1978).
767.125
767.125
Order for appearance of litigants. Unless nonresidence in the state is shown by competent evidence, service is by publication, or the court shall for other good cause otherwise order, both parties in actions affecting the family shall be required to appear upon the trial. An order of the court or family court commissioner to that effect shall accordingly be procured by the moving party, and shall be served upon the nonmoving party before the trial. In the case of a joint petition the order is not required.
767.125 History
History: 1977 c. 105;
1979 c. 32 s.
50;
1979 c. 196;
1979 c. 352 s.
39; Stats. 1979 s. 767.125.
767.13
767.13
Family court commissioner; appointment; powers; oaths; assistants.
