LRB-1107/3
PJK:jld:rs
2003 - 2004 LEGISLATURE
April 8, 2003 - Introduced by Representatives Musser, Gundrum, McCormick,
Albers, Kestell, Ainsworth, Ladwig, Hines, Lothian, Pettis, Loeffelholz,
Hahn, Bies, M. Lehman, Gunderson, Nass, Ott, F. Lasee, Van Roy, Stone and
Townsend, cosponsored by Senators Roessler, George and Lazich. Referred
to Committee on Children and Families.
AB250,1,11
1An Act to amend 46.10 (14) (b), 46.10 (14) (c) (intro.), 46.10 (14) (d), 46.247, 48.30
2(6) (b), 48.31 (7) (b), 48.33 (4m) (intro.), 48.357 (5m) (a), 48.363 (1) (c), 301.12
3(14) (b), 301.12 (14) (c) (intro.), 301.12 (14) (d), 301.12 (14) (g), 767.085 (2) (b),
4767.085 (2m) (a) 2., 767.085 (2m) (b), 767.23 (1n), 767.25 (1j), 767.25 (1m)
5(intro.), 767.25 (1n), 767.25 (4m) (b), 767.295 (2) (c), 767.32 (1) (b) 2., 767.32 (1)
6(b) 4., 767.32 (2), 767.32 (2m), 767.33 (1) (a), 767.33 (1) (b), 767.45 (7), 767.455
7(6), 767.477 (2), 938.30 (6) (b), 938.31 (7) (b), 938.33 (4m) (intro.), 938.357 (5m)
8(a), 938.363 (1) (c), 948.22 (4) (b) and 948.22 (7) (bm);
to repeal and recreate
949.22 (9); and
to create 49.22 (10), 767.25 (4c), 767.251 and 767.32 (1) (b) 5. of
10the statutes;
relating to: calculating child support and creating committees to
11review the method of calculating child support.
Analysis by the Legislative Reference Bureau
Under current law, in divorces, paternity actions, and other actions affecting
the family in which child support is ordered, 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 Workforce Development
(DWD). The percentage standard is a percentage of the payer's gross monthly
income. The percentage of income that the child support payer must pay varies with
the number of children to be supported. A payer must pay 17% of his or her gross
income for one child, 25% for two children, 29% for three children, 31% for four
children, and 34% for five or more children. Except in certain situations, the
calculation of child support does not take into account 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.
The rules provide for a special way in which child support may be calculated for
a shared-time payer. If the payer has physical placement with a child between 31%
and 40% of the time, based on the number of times per year that the parent provides
overnight care for the child, the rules provide for a specified reduction in the amount
of child support that the payer would be required to pay by calculating support by
using the percentage standard alone. (For example, a payer with physical placement
with a child for 37% of the time would pay 76.69% of the amount that he or she would
pay by calculating support by using the percentage standard alone.) If one parent
has physical placement with a child between 41% and 59% of the time and the other
parent has physical placement with the child for the remainder of the time, based on
the number of times that each provides overnight care, the amount of child support
that each parent would pay by using the percentage standard alone is calculated,
reduced by a specified percentage depending on the amount of time each parent has
physical placement with the child, and compared with the other parent's similarly
calculated and reduced amount of child support. (For example, a parent with
physical placement with a 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 would pay the difference as child support to the other parent.
The rules also provide for a special way in which child support may be
calculated for a serial-family payer and for the imputation of income to a payer if the
court determines that the payer has unproductive assets or has diverted income into
assets to avoid paying child support. If a person who is already obligated to pay child
support is later ordered to pay support for another child, from a later marriage or a
paternity adjudication for example, the amount of support that the person would pay
under the later order is calculated by first reducing the payer's gross income by the
amount under the first child support order and then applying the percentage
standard to that reduced income amount. Income imputation involves multiplying
the net value of the assets by the current six-month treasury bill rate or any other
reasonable rate.
Under current law, a court is authorized, upon the request of a party, to modify
the amount of child support that would be ordered by using the percentage standard.
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, the court must determine each parent's gross income and percentage of
physical placement with the child. The bill specifies what the court must include in
income, what the court must exclude from income, and what the court must subtract
from income in determining each parent's gross income. The bill requires the court
to include in a parent's gross income wages that the court determines were paid to
other family members for the purpose of diverting income. The court may impute
income to a parent if the court determines that the parent has concealed or
transferred assets for the purpose of avoiding child support or that the gross incomes
of the parents will not adequately provide for the child and there are unproductive
assets. The court must impute income based on a 40-hour work week to a parent who
is not working at least 40 hours per week if the court determines that the parent is
able to work and that work is available in the parent's community. The court
determines the percentage of physical placement that a parent has on the basis of
the number of overnights or equivalent overnights that a parent cares for the child
in a year. The bill provides that a court may consider as an equivalent overnight a
period of time during which a parent cares for the child that is not overnight but
which the court determines requires the parent to assume support costs that are
substantially equivalent to what the parent would spend to care for the child
overnight. The total overnights or equivalent overnights for the parents combined
must equal 365 in a year, and the court determines each parent's percentage of that
number.
After the court determines each parent's gross income and percentage of
physical placement, the court determines each parent's gross monthly child support
obligation, which depends on the combined gross monthly income of the two parents.
If the combined gross monthly income of the two parents is equal to or less than
$4,000, each parent's gross monthly child support obligation is equal to the
percentage standard under current law. That is, if there is one child, each parent's
gross monthly child support obligation is 17% of his or her gross monthly income.
If the combined gross monthly income of the two parents is greater than $4,000,
determining a parent's gross monthly child support obligation is a multi-step
process. The court must first determine the combined gross monthly child support
obligation of the two parents. For combined gross monthly incomes that do not
exceed $20,000, the combined gross monthly child support obligation of the two
parents equals a specified amount, depending on the number of children, plus a
specified percentage of the combined gross monthly income of the two parents above
$4,000; for combined gross monthly incomes that exceed $20,000, the combined gross
monthly child support obligation of the two parents equals a specified amount,
depending on the number of children, plus a specified percentage of the combined
gross monthly income of the two parents above $20,000. Each parent's gross monthly
child support obligation is the same percentage of the parents' combined gross
monthly child support obligation as that parent's gross income is of the parents'
combined gross income. If a parent is subject to another child support order or is
otherwise legally obligated to support one or more other children, his or her gross
monthly child support obligation is reduced to a specified percentage of his or her
gross monthly child support obligation, depending on the number of other children
being supported.
After determining each parent's gross monthly child support obligation, the
court determines which parent pays support to the other parent and the amount of
support to be paid. If the court grants a parent fewer than 92 overnights or
equivalent overnights of physical placement in a year, that parent pays the amount
of his or her gross monthly child support obligation to the other parent. If the court
grants at least 92 overnights or equivalent overnights of physical placement to each
parent (shared placement), the court multiplies each parent's gross monthly child
support obligation by 1.5 and by the other parent's percentage of physical placement.
The resulting amount is each parent's net monthly child support obligation. The
parent with the larger net monthly child support obligation pays to the other parent
the difference between the two net monthly 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 provided in the bill, 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.
Under current law, in addition to ordering child support for a child, the court
is required to assign responsibility for payment of the child's health care expenses
and may require a parent to initiate or continue health insurance coverage for the
child. This bill provides that each parent must contribute to the child's health care
expenses in the same proportion as his or her gross monthly income bears to the total
combined gross monthly income of the parties. In addition, the bill requires the court
to assign responsibility for payment of reasonable child care expenses necessary to
allow a parent to work or attend school and requires each parent to contribute in the
same proportion as his or her gross monthly income bears to the total combined gross
monthly income of the parties. The bill also provides that if the parties have shared
placement of the child the court must order each party to pay the child's day-to-day
expenses during the time that each has physical placement with the child and to
share the child's variable expenses, such as the cost of tuition, school books, and
clothing, in the same proportion as each parent's proportion of physical placement
with the child.
Under current law, the court may revise the amount of child support under an
order only if the court finds that there has been a substantial change in
circumstances. The court must use the percentage standard in revising the amount.
The bill requires the new method of calculating child support to be used in a revision.
Current law specifies a number of situations that constitute rebuttable
presumptions of a substantial change in circumstances sufficient to justify a
revision. Among those situations is the expiration of 33 months since the date of
entry of the last support order, including a revision, unless the order is expressed as
a percentage of income rather than as a specific amount. The bill changes this
provision so that the expiration of 33 months since the date of entry of the last
support order, including a revision, constitutes a rebuttable presumption of a
substantial change in circumstances, regardless of how the order is expressed, if the
amount of child support calculated by using the new method exceeds the amount
under the last order by at least 20% of the amount under the last order or by at least
$60 per month.
The bill requires DWD to prepare and make available to judges and other court
personnel computer software, as well as tables and instruction manuals, to help with
calculating child support under the new method provided in the bill.
Finally, federal law requires each state to review, and revise if appropriate, its
child support guidelines at least once every four years to ensure that they result in
the determination of appropriate child support amounts. The bill requests the Joint
Legislative Council to appoint a child support review committee by January 1, 2006,
and by January 1 every four years after that, to review the adequacy for supporting
children of the new method of calculating child support provided in the bill. The
committee must be composed of representatives of the judicial, executive, and
legislative branches of state government; of the State Bar of Wisconsin; and of
advocates for children, child support payers, and child support payees. Each
committee must report its findings and legislative recommendations to the
appropriate standing committees of the legislature and to the federal Department
of Health and Human Services.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB250, s. 1
1Section
1. 46.10 (14) (b) of the statutes is amended to read:
AB250,5,102
46.10
(14) (b) Except as provided in par. (c) and subject to par. (cm), liability
3of a parent specified in sub. (2) or s. 46.03 (18) for the care and maintenance of the
4parent's minor child who has been placed by a court order under s. 48.355 or 48.357
5in a residential, nonmedical facility such as a group home, foster home, treatment
6foster home, or residential care center for children and youth shall be determined by
7the court by using the
percentage standard established by the department of
8workforce development under s. 49.22 (9) method of calculating child support under
9s. 767.251 and by applying the
percentage standard
method in the manner
10established by the department under s. 46.247.
AB250, s. 2
1Section
2. 46.10 (14) (c) (intro.) of the statutes is amended to read:
AB250,6,62
46.10
(14) (c) (intro.) Upon request by a parent, the court may modify the
3amount of child support payments determined under par. (b), subject to par. (cm), if,
4after considering the following factors, the court finds by the greater weight of the
5credible evidence that
the use of the
percentage standard method of calculating child
6support under s. 767.251 is unfair to the child or to either of the parents:
AB250, s. 3
7Section
3. 46.10 (14) (d) of the statutes is amended to read:
AB250,6,158
46.10
(14) (d) If the court finds under par. (c) that use of the
percentage
9standard method of calculating child support under s. 767.251 is unfair to the minor
10child or either of the parents, the court shall state in writing or on the record the
11amount of support that would be required by using the
percentage standard method
12under s. 767.251, the amount by which the court's order deviates from that amount,
13its reasons for finding that use of the
percentage standard method under s. 767.251 14is unfair to the child or the parent, its reasons for the amount of the modification
, and
15the basis for the modification.
AB250, s. 4
16Section
4. 46.247 of the statutes is amended to read:
AB250,6,25
1746.247 Application of method of calculating child support standard for
18certain children. For purposes of determining child support under s. 46.10 (14) (b),
19the department shall promulgate rules related to the application of the
standard
20established by the department of workforce development under s. 49.22 (9) method
21under s. 767.251 to a child support obligation for the care and maintenance of a child
22who is placed by a court order under s. 48.355 or 48.357 in a residential, nonmedical
23facility. The rules shall take into account the needs of any person, including
24dependent children other than the child, whom either parent is legally obligated to
25support.
AB250, s. 5
1Section
5. 48.30 (6) (b) of the statutes is amended to read:
AB250,7,122
48.30
(6) (b) If it appears to the court that disposition of the case may include
3placement of the child outside the child's home, the court shall order the child's
4parent to provide a statement of income, assets, debts
, and living expenses to the
5court or the designated agency under s. 48.33 (1) at least 5 days before the scheduled
6date of the dispositional hearing or as otherwise ordered by the court. The clerk of
7court shall provide, without charge, to any parent ordered to provide a statement of
8income, assets, debts
, and living expenses a document setting forth the
percentage
9standard established by the department of workforce development under s. 49.22 (9) 10method of calculating child support under s. 767.251 and the manner of its
11application established by the department of health and family services under s.
1246.247 and listing the factors that a court may consider under s. 46.10 (14) (c).
AB250, s. 6
13Section
6. 48.31 (7) (b) of the statutes is amended to read:
AB250,7,2414
48.31
(7) (b) If it appears to the court that disposition of the case may include
15placement of the child outside the child's home, the court shall order the child's
16parent to provide a statement of income, assets, debts
, and living expenses to the
17court or the designated agency under s. 48.33 (1) at least 5 days before the scheduled
18date of the dispositional hearing or as otherwise ordered by the court. The clerk of
19court shall provide, without charge, to any parent ordered to provide a statement of
20income, assets, debts
, and living expenses a document setting forth the
percentage
21standard established by the department of workforce development under s. 49.22 (9) 22method of calculating child support under s. 767.251 and the manner of its
23application established by the department of health and family services under s.
2446.247 and listing the factors that a court may consider under s. 46.10 (14) (c).
AB250, s. 7
25Section
7. 48.33 (4m) (intro.) of the statutes is amended to read:
AB250,8,6
148.33
(4m) Support recommendations; information to parents. (intro.) In
2making a recommendation for an amount of child support under sub. (4), the agency
3shall consider the factors that the court considers under s. 46.10 (14) (c) for deviation
4from the
percentage standard method of calculating child support under s. 767.251.
5Prior to the dispositional hearing under s. 48.335, the agency shall provide the child's
6parent with all of the following:
AB250, s. 8
7Section
8. 48.357 (5m) (a) of the statutes is amended to read:
AB250,8,208
48.357
(5m) (a) If a proposed change in placement changes a child's placement
9from a placement in the child's home to a placement outside the child's home, the
10court shall order the child's parent to provide a statement of income, assets, debts
, 11and living expenses to the court or the person or agency primarily responsible for
12implementing the dispositional order by a date specified by the court. The clerk of
13court shall provide, without charge, to any parent ordered to provide a statement of
14income, assets, debts
, and living expenses a document setting forth the
percentage
15standard established by the department of workforce development under s. 49.22 (9) 16method of calculating child support under s. 767.251 and the manner of its
17application established by the department of health and family services under s.
1846.247 and listing the factors that a court may consider under s. 46.10 (14) (c). If the
19child is placed outside the child's home, the court shall determine the liability of the
20parent in the manner provided in s. 46.10 (14).
AB250, s. 9
21Section
9. 48.363 (1) (c) of the statutes is amended to read:
AB250,9,722
48.363
(1) (c) If the proposed revision is for a change in the amount of child
23support to be paid by a parent, the court shall order the child's parent to provide a
24statement of income, assets, debts
, and living expenses to the court and the person
25or agency primarily responsible for implementing the dispositional order by a date
1specified by the court. The clerk of court shall provide, without charge, to any parent
2ordered to provide a statement of income, assets, debts
, and living expenses a
3document setting forth the
percentage standard established by the department of
4workforce development under s. 49.22 (9) method of calculating child support under
5s. 767.251 and the manner of its application established by the department of health
6and family services under s. 46.247 and listing the factors that a court may consider
7under s. 46.10 (14) (c).
AB250, s. 10
8Section
10. 49.22 (9) of the statutes is repealed and recreated to read:
AB250,9,129
49.22
(9) The department shall prepare and make available to judges and other
10court personnel forms, tables, computer software, and instruction manuals or other
11publications to aid in the calculation of child support by using the method under s.
12767.251.
AB250, s. 11
13Section
11. 49.22 (10) of the statutes is created to read:
AB250,9,1914
49.22
(10) (a) The joint legislative council is requested to appoint, by January
151, 2006, and by January 1 every 4 years thereafter, a child support committee to
16review the adequacy to support children of the method of calculating child support
17under s. 767.251. The committee shall consider current research and economic and
18case data, as well as any other relevant resources, on the cost of, and expenditures
19that are necessary for, raising children.
AB250,9,2220
(b) The committee shall be composed of representatives of the state's judicial
21branch, legislative branch, executive branch, and state bar, and of advocates for
22children, child support payers, and child support payees.
AB250,9,2423
(c) No later than January 1, 2007, and no later than January 1 every 4 years
24thereafter, the committee shall report its findings and legislative and other
1recommendations to the appropriate standing committees of the legislature under
2s. 13.172 (3) and to the federal department of health and human services.
AB250, s. 12
3Section
12. 301.12 (14) (b) of the statutes is amended to read:
AB250,10,124
301.12
(14) (b) Except as provided in par. (c) and subject to par. (cm), liability
5of a parent specified in sub. (2) or s. 301.03 (18) for the care and maintenance of the
6parent's minor child who has been placed by a court order under s. 938.183, 938.355,
7or 938.357 in a residential, nonmedical facility such as a group home, foster home,
8treatment foster home, residential care center for children and youth, or juvenile
9correctional institution shall be determined by the court by using the
percentage
10standard established by the department of workforce development under s. 49.22 (9) 11method of calculating child support under s. 767.251 and by applying the
percentage
12standard method in the manner established by the department under par. (g).
AB250, s. 13
13Section
13. 301.12 (14) (c) (intro.) of the statutes is amended to read:
AB250,10,1814
301.12
(14) (c) (intro.) Upon request by a parent, the court may modify the
15amount of child support payments determined under par. (b), subject to par. (cm), if,
16after considering the following factors, the court finds by the greater weight of the
17credible evidence that
the use of the
percentage standard method of calculating child
18support under s. 767.251 is unfair to the child or to either of the parents:
AB250, s. 14
19Section
14. 301.12 (14) (d) of the statutes is amended to read:
AB250,11,220
301.12
(14) (d) If the court finds under par. (c) that use of the
percentage
21standard method of calculating child support under s. 767.251 is unfair to the minor
22child or either of the parents, the court shall state in writing or on the record the
23amount of support that would be required by using the
percentage standard method
24under s. 767.251, the amount by which the court's order deviates from that amount,
25the court's reasons for finding that use of the
percentage standard method under s.
1767.251 is unfair to the child or the parent, the court's reasons for the amount of the
2modification
, and the basis for the modification.
AB250, s. 15
3Section
15. 301.12 (14) (g) of the statutes is amended to read:
AB250,11,114
301.12
(14) (g) For purposes of determining child support under par. (b), the
5department shall promulgate rules related to the application of the
standard
6established by the department of workforce development under s. 49.22 (9) method
7under s. 767.251 to a child support obligation for the care and maintenance of a child
8who is placed by a court order under s. 938.183, 938.355
, or 938.357 in a residential,
9nonmedical facility. The rules shall take into account the needs of any person,
10including dependent children other than the child, whom either parent is legally
11obligated to support.
AB250, s. 16
12Section
16. 767.085 (2) (b) of the statutes is amended to read:
AB250,11,1713
767.085
(2) (b) The clerk of court shall provide without charge, to each person
14filing a petition requesting child support, a document setting forth the
percentage
15standard established by the department under s. 49.22 (9) method of calculating
16child support under s. 767.251 and listing the factors
which that a court may consider
17under s. 767.25 (1m).
AB250, s. 17
18Section
17. 767.085 (2m) (a) 2. of the statutes is amended to read:
AB250,11,2219
767.085
(2m) (a) 2. Shall be accompanied by a document, provided without
20charge by the clerk of court, setting forth the
percentage standard established by the
21department under s. 49.22 (9) method of calculating child support under s. 767.251 22and listing the factors
which that a court may consider under s. 767.25 (1m).
AB250, s. 18
23Section
18. 767.085 (2m) (b) of the statutes is amended to read:
AB250,12,224
767.085
(2m) (b) If service is by publication, notification regarding s. 948.31
25may consist of references to the statute numbers and titles, and information relating
1to the
percentage standard method of calculating child support and the factors need
2not be provided.
AB250, s. 19
3Section
19. 767.23 (1n) of the statutes is amended to read:
AB250,12,164
767.23
(1n) Before making any temporary order under sub. (1), the court or
5circuit court commissioner shall consider those factors that the court is required by
6this chapter to consider before entering a final judgment on the same subject matter.
7In making a determination under sub. (1) (a) or (am), the court or circuit court
8commissioner shall consider the factors under s. 767.24 (5). If the court or circuit
9court commissioner makes a temporary child support order that deviates from the
10amount of support that would be required by using the
percentage standard
11established by the department under s. 49.22 (9) method of calculating child support
12under s. 767.251, the court or circuit court commissioner shall comply with the
13requirements of s. 767.25 (1n). A temporary order under sub. (1) may be based upon
14the written stipulation of the parties, subject to the approval of the court or circuit
15court commissioner. Temporary orders made by a circuit court commissioner may be
16reviewed by the court.
AB250, s. 20
17Section
20. 767.25 (1j) of the statutes is amended to read:
AB250,12,2018
767.25
(1j) Except as provided in sub. (1m), the court shall determine child
19support payments by using the
percentage standard established by the department
20under s. 49.22 (9) method under s. 767.251.
AB250, s. 21
21Section
21. 767.25 (1m) (intro.) of the statutes is amended to read:
AB250,13,222
767.25
(1m) (intro.) Upon request by a party, the court may modify the amount
23of child support payments determined under
sub. (1j)
s. 767.251 if, after considering
24the following factors, the court finds by the greater weight of the credible evidence
1that use of the
percentage standard method under s. 767.251 is unfair to the child
2or to any of the parties:
AB250, s. 22
3Section
22. 767.25 (1n) of the statutes is amended to read:
AB250,13,114
767.25
(1n) If the court finds under sub. (1m) that use of the
percentage
5standard method of calculating child support under s. 767.251 is unfair to the child
6or the requesting party, the court shall state in writing or on the record the amount
7of support that would be required by using the
percentage standard method under
8s. 767.251, the amount by which the court's order deviates from that amount, its
9reasons for finding that use of the
percentage standard method under s. 767.251 is
10unfair to the child or the party, its reasons for the amount of the modification
, and
11the basis for the modification.
AB250, s. 23
12Section
23. 767.25 (4c) of the statutes is created to read:
AB250,13,1813
767.25
(4c) (a) In an action in which the court orders a parent to pay child
14support, the court shall assign responsibility for payment of reasonable child care
15expenses that are necessary to allow a parent to work or attend school. Each parent
16shall be required to contribute to child care expenses in the same proportion as his
17or her gross monthly income determined under s. 767.251 (1) bears to the combined
18gross monthly income of the 2 parents.
AB250,13,2519
(b) In an action in which the court calculates child support payments under s.
20767.251 (4) (b), the court shall order each parent to pay the child's day-to-day
21expenses during the time that the parent has physical placement with the child, and
22shall order the parents to share the reasonable variable expenses of the child, such
23as tuition, activity fees, and the cost of school books and clothing, in the same
24proportion as the court determines each parent has physical placement with the
25child under s. 767.251 (2).