767.25 Cross-reference
Cross-reference: See also notes to s.
767.32 for decisions regarding postjudgment modifications.
767.25 Annotation
A provision in a judgment as to the education of children past the age of majority, inserted pursuant to a stipulation of the parties, cannot later be challenged and can be enforced by contempt proceedings. Bliwas v. Bliwas,
47 Wis. 2d 635,
178 N.W.2d 35 (1970).
767.25 Annotation
When parents each own a 1/2 interest in future proceeds of real estate and the state contributes to child support, the court may not order the custodial parent to pay child support in the form of an accumulating real estate lien in favor of the state. State ex rel. v. Reible,
91 Wis. 2d 394,
283 N.W.2d 427 (Ct. App. 1979).
767.25 Annotation
The trial court abused its discretion by setting child support payments without considering the needs of the children or the payer's ability to pay. Edwards v. Edwards,
97 Wis. 2d 111,
293 N.W.2d 160 (1980).
767.25 Annotation
A personal injury damage award to a noncustodial spouse can be considered as a change of circumstances justifying increased support. Sommer v. Sommer,
108 Wis. 2d 586,
323 N.W.2d 144 (Ct. App. 1982).
767.25 Annotation
Sub. (6) imposes interest on arrearages existing on July 2, 1983, as well as on those accruing afterward. Greenwood v. Greenwood,
129 Wis. 2d 388,
385 N.W.2d 213 (Ct. App. 1986).
767.25 Annotation
Federal Supplemental Security Income may not be considered to be an economic resource for purposes of computing a child support obligation. However, a seek-work order may be appropriate. Langlois v. Langlois,
150 Wis. 2d 101,
441 N.W.2d 286 (Ct. App. 1989).
767.25 Annotation
Educational grants and loans, AFDC, and other child support are not economic resources for purposes of computing a child support obligation. Thibadeau v. Thibadeau,
150 Wis. 2d 109,
441 N.W.2d 281 (Ct. App. 1989).
767.25 Annotation
Orders assigning health care responsibility pursuant to s. 767.25 (4m) are subject to revision under s. 767.32. Kuchenbecker v. Schultz,
151 Wis. 2d 868,
447 N.W.2d 80 (Ct. App. 1989).
767.25 Annotation
Consideration of expenses incurred by a child as an adult, including education expenses, is error. Resong v. Vier,
157 Wis. 2d 382,
459 N.W.2d 591 (Ct. App. 1990).
767.25 Annotation
A divorce stipulation waiving or setting a ceiling on child support and preventing modification is against public policy and will not be enforced. Ondrasek v. Tenneson,
158 Wis. 2d 690,
462 N.W.2d 915 (Ct. App. 1990).
767.25 Annotation
The trial court's use of a computer program to analyze financial evidence was not error. Bisone v. Bisone,
165 Wis. 2d 114,
477 N.W.2d 59 (Ct. App. 1991).
767.25 Annotation
A stepparent has no legal obligation to support a stepchild. Under appropriate circumstances the theory of equitable estoppel may apply to cases involving child support. Ulrich v. Cornell,
168 Wis. 2d 792,
484 N.W.2d 546 (1992).
767.25 Annotation
In a joint custody situation, the parent with primary physical custody may be ordered to pay child support. Matz v. Matz,
166 Wis. 2d 326,
479 N.W.2d 245 (Ct. App. 1991).
767.25 Annotation
The absence of a mortgage obligation is relevant to the assessment of a party's economic circumstances, but does not translate into imputed income under the applicable administrative rule. In Marriage of Zimmerman v. Zimmerman,
169 Wis. 2d 516,
485 N.W.2d 294 (Ct. App. 1992).
767.25 Annotation
A support order against actual AFDC grants is prohibited by Thibadeau, but an order against earned income of one who also receives AFDC is not. In Support of B., L., T. & K.
171 Wis. 2d 617,
492 N.W.2d 350 (Ct. App. 1992).
767.25 Annotation
No matter how corporate income is labeled, a family court may pierce the corporate shield if it is convinced the obligor's intent is to avoid financial obligations. Evjen v. Evjen,
171 Wis. 2d 677,
492 N.W.2d 360 (Ct. App. 1992).
767.25 Annotation
The parties' extrajudicial agreement that child support payments be discontinued was enforceable via the doctrine of equitable estoppel. Harms v. Harms,
174 Wis. 2d 780,
498 N.W.2d 229 (1993).
767.25 Annotation
The "serial family payer" rule adopted under the percentage standards referred to in sub. (1) [now sub. (1j)] is discussed. Brown v. Brown,
177 Wis. 2d 512,
503 N.W.2d 280 (Ct. App. 1993).
767.25 Annotation
The mandatory percentage standards for determining support do not allow for deferred payments. Kelly v. Hougham,
178 Wis. 2d 546,
504 N.W.2d 440 (Ct. App. 1993).
767.25 Annotation
An AFDC recipient assigns all rights to child support payments to the state. As such the payments may not be held in trust for the child under sub. (2). Paternity of Lachelle A.C.
180 Wis. 2d 708,
510 N.W.2d 718 (Ct. App. 1993).
767.25 Annotation
A lump sum separation benefit received upon termination of employment was properly considered to be income subject to the percentage standards for support. Gohde v. Gohde,
181 Wis. 2d 770,
512 N.W.2d 199 (Ct. App. 1993).
767.25 Annotation
In deciding not to apply the percentage standard, the court erred when it compared the parties available incomes after deducting the percentage amount from the payer's income, but failed to consider the assumed contribution of the same percentage by the payee. Kjelstrum v. Kjelstrum,
181 Wis. 2d 973,
512 N.W.2d 264 (Ct. App. 1994).
767.25 Annotation
A trial court could may not set child support at zero, convert post-divorce income to marital property and order that income to be held in trust to be distributed to the child when AFDC benefits ended. Luna v. Luna,
183 Wis. 2d 20,
515 N.W.2d 480 (Ct. App. 1994).
767.25 Annotation
If the interests of the children and custodial parent are protected, parties are free to contract in a settlement agreement that the primary custodian will not have spending discretion over child support. Jacquart v. Jacquart,
183 Wis. 2d 372,
515 N.W.2d 539 (Ct. App. 1994).
767.25 Annotation
An asset and its income stream may not be counted both as an asset in the property division and as part of the payer's income from which support is paid. Maley v. Maley,
186 Wis. 2d 125,
519 N.W.2d 717 (Ct. App. 1994).
767.25 Annotation
Trust income that is income to the beneficiary under federal tax law is subject to a child support order regardless of whether a distribution is made to the beneficiary. Grohmann v. Grohmann,
189 Wis. 2d 532,
525 N.W.2d 261 (1995).
767.25 Annotation
A minimum fixed child support amount, rather than the percentage standard, based on the payer's "potential income" was appropriate when the court found that the payer had a substantial potential to manipulate the amount of support. Doerr v. Doerr,
189 Wis. 2d 112,
525 N.W.2d 745 (Ct. App. 1994).
767.25 Annotation
The trial court may consider the amount of time a child is placed with the paying parent and that parent's second family in setting support. Molstad v. Molstad,
193 Wis. 2d 602,
535 N.W.2d 63 (Ct. App. 1995).
767.25 Annotation
The percentage standards presumptively apply in the case of a high income payee absent the payer's showing of unfairness by the greater weight of the credible evidence. Luciani v. Montemurro-Luciani,
199 Wis. 2d 280,
544 N.W.2d 561 (1996),
93-2899.
767.25 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 Wis. 2d 807,
547 N.W.2d 801 (Ct. App. 1996),
95-1960.
767.25 Annotation
A court may consider earning capacity rather than actual earnings in determining child support and maintenance if it finds a parent's job choice voluntary and unreasonable. Sellers v. Sellers,
201 Wis. 2d 578,
549 N.W.2d 481 (Ct. App. 1996),
95-2730.
767.25 Annotation
The fact that a party, by deliberate conduct, frustrates an accurate calculation of the party's income does not prevent the trial court from making the appropriate finding of fact. The court may make its findings based on the available evidence. Lellman v. Mott,
204 Wis. 2d 166,
554 N.W.2d 525 (Ct. App. 1996).
767.25 Annotation
The court did not abuse its discretion in ruling against a request in a high income payer case for an increase in support according to the percentage standards when the court believed that the request was really a disguised claim for extra money to support the custodial parent's own lifestyle. Nelsen v. Candee,
205 Wis. 2d 632,
556 N.W.2d 789 (Ct. App. 1996).
767.25 Annotation
In certain cases, such as with military retirement pay, an asset may be divided in the property division and its income stream considered as income in determining child support. Cook v. Cook,
208 Wis. 2d 166,
560 N.W.2d 246 (1997).
767.25 Annotation
When a noncustodial parent seeks to impose a trust on arrearages owed under a pre-August 1, 1987 support order, that parent must demonstrate that the trust is in the child's best interest and, when the custodial parent does not agree to the trust, that the primary custodian was unwilling to or incapable of managing the support money. Cameron v. Cameron,
209 Wis. 2d 88,
562 N.W.2d 126 (1997).
767.25 Annotation
Income disparity resulting from applying the percentage standards is only relevant if the payer can show inability to pay or that the income disparity will adversely affect the children or payer. Equalizing lifestyles between parents is not a support objective. The amount of discretionary income either parent will have to spend on their children is a secondary consideration. Raz v. Brown,
213 Wis. 2d 296,
570 N.W.2d 605 (Ct. App. 1997).
767.25 Annotation
The repayment to the payer spouse of a loan made by him to a company that he owned was a proper addition to the payer's income available for support. It was properly found to be deferred compensation, which is included within the applicable definition of income. Raz v. Brown,
213 Wis. 2d 296,
570 N.W.2d 605 (Ct. App. 1997).
767.25 Annotation
A stipulation for child support with no time limit or opportunity for review was against public policy and the payer was not estopped from seeking a modification due to a material change in circumstances. Krieman v. Goldberg,
214 Wis. 2d 163,
571 N.W.2d 425 (1997).
767.25 Annotation
Absent a finding that an individual partner has authority to unilaterally control a partnership asset, partnership assets will be imputed as available income only in accordance with the partnership agreement. Health insurance premiums paid by a partnership are included in the partners income available for child support. Weis v. Weis,
215 Wis. 2d 135,
572 N.W.2d 123 (Ct. App. 1997).
767.25 Annotation
The trial court properly exercised its discretion under sub. (1m) (i) by excluding from the application of the percentage standards the value of nonassignable trips received by the paying spouse as employment bonuses although the trips constituted taxable income. State v. Wall,
215 Wis. 2d 591,
573 N.W.2d 862 (Ct. App. 1997).
767.25 Annotation
In concluding that a deviation from the percentage standards is warranted, all listed factors need not be applied. State v. Alonzo R.
230 Wis. 2d 17,
601 N.W.2d 328 (Ct. App. 1999).
767.25 Annotation
The percentage standards under sub. (1j) include the shared-time payer formula in DWD 40.04(2), Wis. Adm. Code, as well as the straight percentage standards in DWD 40.03 (1). The shared-time formula applies if the payer will be assuming costs in proportion to the number of days the court is ordering placement with the parent. Randall v. Randall, 2000 WI App 98,
235 Wis. 2d 1,
612 N.W.2d 737.
767.25 Annotation
Incarceration is a valid factor for a court to consider in setting child support because of the impact it may have on the payor's employability due to what may be voluntary and unreasonable acts. It was proper to base child support on earning capacity and to provide for an offset against the payor's property division payout to provide for payment of the support obligation. Morrow v. Modrow, 2001 WI App 200,
247 Wis. 2d 889,
634 N.W.2d 852.
767.25 Annotation
Subs. (1j), (1m), and (1n) give the court authority to determine and order some amount for child support. While that authority implicitly includes the authority to determine the amount to be zero, it does not implicitly include the authority to order the parents to divide expenses for the children among themselves in particular ways as an alternative to ordering one parent to pay child support to the other. Zawistowski v. Zawistowski, 2002 WI App 86,
253 Wis. 2d 630,
644 N.W.2d 252.
767.25 Annotation
This section makes no provision as to splitting child care costs beyond what is provided in the child support payments. The trial court erroneously exercised its discretion when, without addressing the sub. (1m) factors, it deviated from the child support percentage standards by ordering one party to pay one-half of the daycare expenses in addition to support required by the percentage standards. McLaren v. McLaren, 2003 WI App 125,
265 Wis. 2d 529,
665 N.W.2d 405,
02-2451.
767.25 Annotation
A trial court may establish a trust from funds paid for child support for the purpose of funding a child's postminority educational expenses. Because the percentage standards presume a higher standard of living commensurate with the payer's higher income, a child is entitled to the money over and above his or her needs. A trust is in the child's best interests and puts the child in the same position as if in an intact high-income family. Further, consideration of "educational needs" under sub. (1m) (g) is broad enough to encompass the higher educational needs of the child. Kowalski v. Obst, 2003 WI App 218,
267 Wis. 2d 400,
671 N.W.2d 339,
03-0573.
767.25 Annotation
Sub. (6) does not limit the authority a trial court would otherwise have to consider imposing interest on unpaid maintenance arrears. Cashin v. Cashin, 2004 WI App 92, ___ Wis. 2d ___, ___ N.W.2d ___,
03-1010.
767.25 Annotation
When a spouse presented a challenge to the application of the percentage standards on fairness grounds and presented a developed argument based on evidence in support of that challenge, the trial court was required to perform the analysis of the relevant statutory factors in answer to that challenge. Maritato v. Maritato, 2004 WI App 138, ___ Wis. 2d ___,
685 N.W.2d 379,
03-2074 767.25 Annotation
Federal preemption doctrine does not prohibit states from requiring payment of child support out of veterans' disability benefits. Rose v. Rose,
481 U.S. 619 (1987).
767.25 Annotation
Poor Little Rich Kids: Revising Wisconsin's Child Support System to Accommodate High-Income Payers. Dodd. 83 MLR 807.
767.25 Annotation
No-fault divorce: Tax consequences of support, maintenance and property settlement. Case, 1977 WBB 11.
767.25 Annotation
A practitioner's approach to child support. Bailey. WBB June 1987.
767.25 Annotation
HSS 80: New Rules for Child Support Obligations. Hickey. Wis. Law. April, 1995.
767.25 Annotation
Which Came First? The Serial Family Payer Formula. Stansbury. Wis. Law. April, 1995.
767.253
767.253
Seek-work orders. In an action for modification of a child support order under
s. 767.32 or an action in which an order for child support is required under
s. 767.25 (1),
767.51 (3) or
767.62 (4), the court may order either or both parents of the child to seek employment or participate in an employment or training program.
767.254
767.254
Unemployed teenage parent. 767.254(1)
(1) In this section, "unemployed teenage parent" means a parent who satisfies all of the following criteria:
767.254(1)(d)
(d) Would be ordered to make payments for the support of a child but for
par. (c).
767.254(2)
(2) In an action for revision of a judgment or order providing for child support under
s. 767.32 or an action in which an order for child support is required under
s. 767.25 (1),
767.51 (3) or
767.62 (4), the court shall order an unemployed teenage parent to do one or more of the following:
767.254(2)(d)
(d) Pursue or continue to pursue an accredited course of instruction leading to the acquisition of a high school diploma or its equivalent if the unemployed teenage parent has not completed a recognized high school course of study or its equivalent, except that the court may not order the unemployed teenage parent to pursue instruction if the instruction requires the expenditure of funds by the unemployed teenage parent other than normal transportation and personal expenses.
767.255(1)(1) Upon every judgment of annulment, divorce or legal separation, or in rendering a judgment in an action under
s. 767.02 (1) (h), the court shall divide the property of the parties and divest and transfer the title of any such property accordingly. A certified copy of the portion of the judgment that affects title to real estate shall be recorded in the office of the register of deeds of the county in which the lands so affected are situated. The court may protect and promote the best interests of the children by setting aside a portion of the property of the parties in a separate fund or trust for the support, maintenance, education and general welfare of any minor children of the parties.
767.255(2)(a)(a) Except as provided in
par. (b), any property shown to have been acquired by either party prior to or during the course of the marriage in any of the following ways shall remain the property of that party and is not subject to a property division under this section:
767.255(2)(a)2.
2. By reason of the death of another, including, but not limited to, life insurance proceeds; payments made under a deferred employment benefit plan, as defined in
s. 766.01 (4) (a), or an individual retirement account; and property acquired by right of survivorship, by a trust distribution, by bequest or inheritance or by a payable on death or a transfer on death arrangement under
ch. 705.
767.255(2)(b)
(b) Paragraph (a) does not apply if the court finds that refusal to divide the property will create a hardship on the other party or on the children of the marriage. If the court makes such a finding, the court may divest the party of the property in a fair and equitable manner.
767.255(3)
(3) The court shall presume that all property not described in
sub. (2) (a) is to be divided equally between the parties, but may alter this distribution without regard to marital misconduct after considering all of the following:
767.255(3)(b)
(b) The property brought to the marriage by each party.
767.255(3)(c)
(c) Whether one of the parties has substantial assets not subject to division by the court.
767.255(3)(d)
(d) The contribution of each party to the marriage, giving appropriate economic value to each party's contribution in homemaking and child care services.
767.255(3)(e)
(e) The age and physical and emotional health of the parties.
767.255(3)(f)
(f) The contribution by one party to the education, training or increased earning power of the other.
767.255(3)(g)
(g) The earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage.
767.255(3)(h)
(h) The desirability of awarding the family home or the right to live therein for a reasonable period to the party having physical placement for the greater period of time.
767.255(3)(i)
(i) The amount and duration of an order under
s. 767.26 granting maintenance payments to either party, any order for periodic family support payments under
s. 767.261 and whether the property division is in lieu of such payments.
767.255(3)(j)
(j) Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests.
