2005 Wisconsin Act 443

767.313 (1) Grounds; when suit may be brought. (intro.) No marriage may be annulled or held void except pursuant to judicial proceedings. No marriage may be annulled after the death of either party to the marriage. A court may annul a marriage entered into under upon any of the following circumstances grounds:

Note: The stricken sentences are relocated to new s. 767.313 (2), created by Sec. 145 of this bill.

443,24 Section 24. 767.04 of the statutes is renumbered 767.18 and amended to read:

767.18 Actions to affirm marriage. When If the validity of any a marriage shall be is denied or doubted by either of the parties the other party may commence an action to affirm the marriage, and the. The judgment in such an action to affirm marriage shall declare such the marriage valid or annul the same marriage, and be is conclusive upon all persons concerned.

443,25 Section 25. 767.045 of the statutes, as affected by 2003 Wisconsin Act 130, is renumbered 767.407, and 767.407 (1) (am) 1., (c) and (e), (2) and (4), as renumbered, are amended to read:

767.407 (1) (am) 1. Legal custody or physical placement is contested in an action to modify legal custody or physical placement under s. 767.325 767.451 or 767.327 767.481.

(c) The attorney responsible for support enforcement under s. 59.53 (6) (a) may request that the court or a circuit court commissioner appoint a guardian ad litem to bring an action or motion on behalf of a minor who is a nonmarital child whose paternity has not been acknowledged under s. 767.62 767.805 (1) or a substantially similar law of another state or adjudicated for the purpose of determining the paternity of the child, and the court or circuit court commissioner shall appoint a guardian ad litem, if any of the following applies:

1. Aid is provided under s. 46.261, 48.57 (3m) or (3n), 49.19, or 49.45 on behalf of the child, or benefits are provided to the child's custodial parent under ss. 49.141 to 49.161, but the state and its delegate under s. 49.22 (7) are barred by a statute of limitations from commencing an action under s. 767.45 767.80 on behalf of the child.

2. An application for legal services has been filed with the child support program under s. 49.22 on behalf of the child, but the state and its delegate under s. 49.22 (7) are barred by a statute of limitations from commencing an action under s. 767.45 767.80 on behalf of the child.

(e) Nothing in this subsection prohibits the court from making a temporary order under s. 767.23 767.225 that concerns the child before a guardian ad litem is appointed or before the guardian ad litem has made a recommendation to the court, if the court determines that the temporary order is in the best interest of the child.

(2) Time for appointment. The court shall appoint a guardian ad litem under sub. (1) (a) 1. or (b) whenever the court deems it appropriate. The court shall appoint a guardian ad litem under sub. (1) (a) 2. at the time specified in s. 767.11 767.405 (12) (b), unless upon motion by a party or its own motion, the court determines that earlier appointment is necessary.

(4) Responsibilities. The guardian ad litem shall be an advocate for the best interests of a minor child as to paternity, legal custody, physical placement, and support. The guardian ad litem shall function independently, in the same manner as an attorney for a party to the action, and shall consider, but shall not be bound by, the wishes of the minor child or the positions of others as to the best interests of the minor child. The guardian ad litem shall consider the factors under s. 767.24 767.41 (5) (am), subject to s. 767.24 767.41 (5) (bm), and custody studies under s. 767.11 767.405 (14). The guardian ad litem shall investigate whether there is evidence that either parent has engaged in interspousal battery, as described in s. 940.19 or 940.20 (1m), or domestic abuse, as defined in s. 813.12 (1) (am), and shall report to the court on the results of the investigation. The guardian ad litem shall review and comment to the court on any mediation agreement and stipulation made under s. 767.11 767.405 (12) and on any parenting plan filed under s. 767.24 767.41 (1m). Unless the child otherwise requests, the guardian ad litem shall communicate to the court the wishes of the child as to the child's legal custody or physical placement under s. 767.24 767.41 (5) (am) 2. The guardian ad litem has none of the rights or duties of a general guardian.

443,26 Section 26 . 767.05 (title) and (1) of the statutes are repealed.

Note: The substance of this subsection is relocated to the general section on jurisdiction. See Sec. 10.

443,27 Section 27. 767.05 (1m) of the statutes is renumbered 767.301 and amended to read:

767.301 Residence requirements. No action to affirm marriage or for annulment under s. 767.02 767.001 (1) (a) or (b) may be brought unless at least one of the parties has been a bona fide resident of the county in which the action is brought for not less than 30 days next preceding the commencement of the action, or unless the marriage has been contracted within this state within one year prior to the commencement of the action. No action for divorce or legal separation under s. 767.02 767.001 (1) (c) or (d) may be brought unless at least one of the parties has been a bona fide resident of the county in which the action is brought for not less than 30 days next preceding the commencement of the action. No action for divorce under s. 767.02 767.001 (1) (c) may be brought unless at least one of the parties has been a bona fide resident of this state for not less than 6 months next preceding the commencement of the action.

Note: The type of action to which the cross-references refer is included for convenience.

443,28 Section 28. 767.05 (2) (title) of the statutes is repealed.

443,29 Section 29. 767.05 (2) of the statutes is renumbered 767.41 (1) (a) and amended to read:

767.41 (1) (a) Subject to ch. 822, the question of a child's custody may be determined as an incident of any action affecting the family or in an independent action for custody. The effect of any determination of a child's custody shall is not be binding personally against any parent or guardian unless the parent or guardian has been made personally subject to the jurisdiction of the court in the action as provided under ch. 801 or has been notified under s. 822.05, as provided in s. 822.12. Nothing in this section chapter may be construed to foreclose a person other than a parent who has physical custody of a child from proceeding under ch. 822.

443,30 Section 30. 767.05 (3) of the statutes is renumbered 767.205 (1) and amended to read:

767.205 (1) Parties. The party initiating an action affecting the family shall be denominated is the petitioner. The party responding to the action shall be denominated is the respondent. All references to "plaintiff" in chs. 801 to 807 shall apply to the petitioner, and all references to "defendant" in chs. 801 to 807 shall apply to the respondent. Both parties together may initiate the petition together by signing and filing a joint petition. The parties to a joint petition shall be called are joint petitioners. The parties to a joint petition shall state within in the joint petition that both parties consent to personal jurisdiction and waive service of summons.

443,31 Section 31. 767.05 (4) of the statutes is renumbered 767.215 (2e) and amended to read:

767.215 (2e) Petition Relationship of petition to complaint. All references to a "complaint" in chs. 801 to 807 shall apply to petitions under s. 767.085 this section.

443,32 Section 32 . 767.05 (5) of the statutes is renumbered 767.205 (3) and amended to read:

767.205 (3) Title of actions. An action affecting the family under s. 767.02 described in s. 767.001 (1) (a) to (d) or (g) to (k) shall be entitled "In re the marriage of A.B. and C.D.", except that an independent action for visitation under s. 767.245 767.43 (3) shall be entitled "In re visitation with A. B.". An action affecting the family under s. 767.02 described in s. 767.001 (1) (f) or (m) shall be entitled "In re the support of A.B.". A child custody action shall be entitled "In re the custody of A.B.". In all other respects, the general provisions of chs. 801 and 802 respecting the content and form of the summons and pleadings shall apply.

Note: The stricken sentence is relocated to the provision created by Sec. 80 of this bill.

443,33 Section 33. 767.05 (6) of the statutes is renumbered 767.264 (1), and 767.264 (1) (title), as renumbered, is amended to read:

767.264 (1) (title) Dismissal Opportunity to respond.

443,34 Section 34. 767.05 (7) of the statutes is renumbered 767.331.

443,35 Section 35. 767.07 (title) of the statutes is renumbered 767.35 (title).

443,36 Section 36. 767.07 of the statutes is renumbered 767.35 (1) and amended to read:

767.35 (1) When granted. A court of competent jurisdiction shall grant a judgment of divorce or legal separation if all of the following conditions are met:

(a) The requirements of this chapter as to residence and marriage assessment counseling attendance at an educational program under s. 767.401 have been complied with;.

(b) 1. In connection with a judgment of divorce or legal separation, the court finds that the marriage is irretrievably broken under s. 767.12 (2) 767.315 (1) (a) or (b) 1. or 2., unless par. (b) subd. 2. applies.

2. In connection with a judgment of legal separation, the court finds that the marital relationship is broken under s. 767.12 (3); and 767.315 (2).

(c) To the extent that it has jurisdiction to do so, the court has considered, and approved or made provision for legal custody and physical placement, the support of any child of the marriage entitled to support, the maintenance of either spouse, the support of the family under s. 767.261 767.531, and the disposition of property.

443,37 Section 37. 767.075 of the statutes is renumbered 767.205 (2), and 767.205 (2) (title), (a) 1. and (b), as renumbered, are amended to read:

767.205 (2) (title) State is When the state is a real party in interest.

(a) 1. An action to establish paternity whenever there is a completed application for legal services filed with the child support program under s. 49.22 or whenever s. 767.45 767.80 (6m) or (6r) applies.

(b) 1. Except as provided in par. (b) subd. 2., in any action affecting the family under a child support enforcement program, an attorney acting under s. 49.22 or 59.53 (5), including any district attorney or corporation counsel, represents only the state. Child support services provided by an attorney as specified in sub. (1) par. (a) do not create an attorney-client relationship with any other party.

2. Paragraph (a) Subdivision 1. does not apply to an attorney who is employed by the department under s. 49.22 or a county under s. 59.53 (5) or (6) (a) to act as the guardian ad litem of the minor child for the purpose of establishing paternity.

443,38 Section 38. 767.077 of the statutes is renumbered 767.521, and 767.521 (intro.) and (2), as renumbered, are amended to read:

767.521 Support Action by state for dependent child support. (intro.) The state or its delegate under s. 49.22 (7) shall bring an action for support of a minor child under s. 767.02 767.001 (1) (f) or, if appropriate, for paternity determination and child support under s. 767.45 whenever 767.80 if the child's right to support is assigned to the state under s. 46.261, 48.57 (3m) (b) 2. or (3n) (b) 2., 49.145 (2) (s), 49.19 (4) (h) 1. b., or 49.775 (2) (bm) if and all of the following apply:

(2) A court has not issued an order under s. 767.25 767.511 requiring the parent who is absent from the home to support the child.

443,39 Section 39. 767.078 (title) of the statutes is repealed.

443,40 Section 40. 767.078 (1) of the statutes, as affected by 2005 Wisconsin Act 25, is renumbered 767.55 (3), and 767.55 (3) (a) 1., as renumbered, is amended to read:

767.55 (3) (a) 1. Is an action for modification of a child support order under s. 767.32 767.59 or an action in which an order for child support is required under s. 767.25 (1), 767.51 (3) or 767.62 (4) 767.511 (1), 767.805 (4), or 767.89 (3).

443,41 Section 41. 767.078 (2) of the statutes is renumbered 767.55 (3) (d) and amended to read:

767.55 (3) (d) Subsection (1) Paragraph (b) does not limit the authority of a court to issue an order, other than an order under sub. (1) par. (b), regarding employment of a parent in an action for modification of a child support order under s. 767.32 767.59 or an action in which an order for child support is required under s. 767.25 (1), 767.51 (3) or 767.62 (4) 767.511 (1), 767.805 (4), or 767.89 (3).

443,42 Section 42. 767.08 of the statutes is renumbered 767.501, and 767.501 (2) (a) (intro.), (b), (c) and (d) and (3), as renumbered, are amended to read:

767.501 (2) (a) (intro.) If a person fails or refuses to does not provide for the support and maintenance of his or her spouse or minor child, any of the following may commence an a court action in any court having jurisdiction in actions affecting the family to compel the person to provide any legally required support and maintenance:

(b) The court in the action shall, as provided under s. 767.25 767.511 or 767.26 767.56, determine and adjudge the amount, if any, that the person should reasonably contribute to the support and maintenance of the spouse or child and how the sum should shall be paid. This The amount must shall be expressed as a fixed sum unless the parties have stipulated to expressing the amount as a percentage of the payer's income and the requirements under s. 767.10 767.34 (2) (am) 1. to 3. are satisfied. The amount so ordered to be paid may be changed or modified by the court upon notice of motion or order to show cause by either party under s. 767.59 upon sufficient evidence.

(c) The determination may be enforced by contempt proceedings, an account transfer under s. 767.267 767.76, or other enforcement mechanisms as provided under s. 767.30 767.77.

(d) In any such support an action there shall be under this section, no filing fee or other costs are taxable to the person's spouse, the minor child, the person with legal custody, or the nonlegally responsible relative, but after the action has been commenced and filed the court may direct order that any all or part of or all any fees and costs incurred shall be paid by either party.

(3) Public assistance recipients; action by state. If the state or any subdivision thereof of the state furnishes public aid to a spouse or dependent child for support and maintenance and the spouse, person with legal custody, or nonlegally responsible relative fails or refuses to institute an appropriate court does not commence an action under this chapter to provide for the same for support or maintenance, the person in charge of county welfare activities, the county child support agency under s. 59.53 (5), or the department is a real party in interest under s. 767.075 767.205 (2) and shall initiate commence an action under this section, for the purpose of obtaining support and maintenance. Any. An attorney employed by the state or any a subdivision thereof of the state may initiate commence an action under this section. The title of the action shall be "In re the support or maintenance of A.B. (Child)".

443,43 Section 43. 767.081 of the statutes is renumbered 767.105, and 767.105 (1) and (2) (intro.) and (a) 3., as renumbered, are amended to read:

767.105 (1) Information on available services. Upon the filing of an action affecting the family, the office of family court commissioner shall inform the parties of any services, including referral services, offered by the office of family court commissioner and by the director of family court counseling services under s. 767.11 767.405.

(2) Other information on request. (intro.) Upon request of a party to an action affecting the family, including a revision of judgment or order under s. 767.32 767.451 or 767.325 767.59:

(a) 3. Community resources and family court counseling services available to assist the parties.

443,44 Section 44. 767.082 of the statutes is renumbered 767.323 and amended to read:

767.323 Suspension of proceedings to effect reconciliation. During the pendency of any an action for divorce or legal separation, the court may, upon written stipulation of both parties that they desire to attempt a reconciliation, enter an order suspending any and all orders and proceedings for such period, not exceeding 90 days, as the court determines advisable so as to permit the parties to attempt a reconciliation without prejudice to their respective rights. During the period of suspension period, the parties may resume living together as husband and wife and their acts and conduct shall do not constitute an admission that the marriage is not irretrievably broken or a waiver of the ground that the parties have voluntarily lived apart continuously for 12 months or more immediately prior to the commencement of the action if such is the case. Suspension may be revoked upon the motion of either party by an order of the court. If the parties become reconciled, the court shall dismiss the action. If the parties are not reconciled after the period of suspension, the action shall proceed as though no reconciliation period was attempted.

443,45 Section 45. 767.083 of the statutes is renumbered 767.335 and amended to read:

767.335 Waiting period in certain actions for final hearing or trial. No petition An action for divorce or legal separation may not be brought to final hearing or trial until the happening of whichever of the following events occurs first of the following occurs:

(1) Generally. The expiration of 120 days after service of the summons and petition upon the respondent or the expiration of 120 days after the filing of the joint petition; or.

(2) Emergency. An order by the court, after consideration of the recommendation of a circuit court commissioner, directing an immediate hearing on the petition for the protection of the health or safety of either of the parties or of any child of the marriage or for other emergency reasons consistent with the policies of this chapter. The court shall, upon granting such the order, specify the grounds therefor for the order.

443,46 Section 46. 767.085 (title) of the statutes is renumbered 767.215 (title) and amended to read:

767.215 (title) Petition Initiating action; petition and response.

443,47 Section 47. 767.085 (1) of the statutes is renumbered 767.215 (2), and 767.215 (2) (intro.), (a) to (f), (i) and (j) (intro.), as renumbered, are amended to read:

767.215 (2) Petition, contents content. (intro.) Except as otherwise provided, in any an action affecting the family, the petition shall state:

(a) The name and birthdate of the parties, the social security numbers of the husband and wife and their occupations, the date and place of marriage, and the facts relating to the residence of both parties.

(b) The name, and birthdate and social security number of each minor child of the parties and each other child born to the wife during the marriage, and whether the wife is pregnant.

Note: 1. Repeals the requirements that social security numbers be included in the petition. See Sec. 84 for the provision replacing these requirements.

2. Repeals as unnecessary the requirement that the parties state their occupations.

(c) If the relief requested is a divorce or a legal separation in which the parties do not file a petition under s. 767.12 (3) 767.315 (2), that the marriage is irretrievably broken, or, alternatively, that both parties agree that the marriage is irretrievably broken.

(cm) If the relief requested is a legal separation and the parties have filed a petition under s. 767.12 (3) 767.315 (2), that both parties agree that the marital relationship is broken.

(d) Whether or not an action for divorce or legal separation by either of the parties was or has been at any time commenced, or is pending in any other court or before any judge thereof, in this state or elsewhere, and if.

(dm) Whether either party was previously married , and, if so, the manner in which such the marriage was terminated, and, if terminated by court judgment, the name of the court in which that granted the judgment was granted and the time and place the judgment was granted, if known.

(e) Whether the parties have entered into any a written agreements agreement as to support, legal custody, and physical placement of the children, maintenance of either party, and or property division ; and if. If so, the written agreement shall be attached.

(f) The relief requested. When If the relief requested is a legal separation, the petition shall state the specific reason for requesting such that relief.

(i) If the action is one under s. 767.02 767.001 (1) (a), (b), (c), (d), (h), or (i), that during the pendency of the action, without the consent of the other party or an order of the court or a circuit court commissioner, the parties are prohibited from, and may be held in contempt of court for, encumbering, concealing, damaging, destroying, transferring, or otherwise disposing of property owned by either or both of the parties, except in the usual course of business, in order to secure necessities, or in order to pay reasonable costs and expenses of the action, including attorney fees.

(j) (intro.) Unless the action is one under s. 767.02 767.001 (1) (g) or (h), that during the pendency of the action, the parties are prohibited from, and may be held in contempt of court for, doing any of the following without the consent of the other party or an order of the court or a circuit court commissioner:

443,48 Section 48. 767.085 (2) of the statutes is renumbered 767.215 (1), and 767.215 (1) (b), as renumbered, is amended to read:

767.215 (1) (b) The clerk of court shall provide without charge, to each person filing a petition requesting child support, a document setting forth the percentage standard established by the department under s. 49.22 (9) and listing the factors which that a court may consider under s. 767.25 767.511 (1m).

443,49 Section 49. 767.085 (2m) and (3) of the statutes are renumbered 767.215 (2m) and (3), and 767.215 (2m) (title) and (a) 1. and 2. and (3), as renumbered, are amended to read:

767.215 (2m) (title) Summons, contents content.

(a) 1. Shall include notification of the availability of information under s. 767.081 767.105 (2) and of the contents of s. 948.31.

2. Shall be accompanied by a document, provided without charge by the clerk of court, setting forth the percentage standard established by the department under s. 49.22 (9) and listing the factors which that a court may consider under s. 767.25 767.511 (1m).

(3) Service. If only one party initiates the action, the other shall be served under ch. 801 and may serve a response or counterclaim within 20 days after the date of service, except that questions of jurisdiction may be raised at any time prior to judgment. Service shall be made upon the petitioner and upon the circuit court commissioner as provided in s. 767.14, and the original copy of the response shall be filed in court. If the parties together initiate the action with a joint petition, service of summons is not required.