SB123: Bill Text

SB123, s. 143 Section 143. 767.305 of the statutes is renumbered 767.78 (1) and amended to read:

SB123,84,18 767.78 (1) Definition. In all cases where a party has incurred a financial this section, "financial obligation" means an obligation for payment incurred under s. 48.355 (2) (b) 4., 48.357 (5m) (a), 48.363 (2), 767.23, 767.25, 767.255, 767.26, 767.261, 767.262, 767.293, 767.458 (3), 767.477, 767.51, 767.62 (4) 767.225, 767.241, 767.511, 767.531, 767.56, 767.61, 767.71, 767.805 (4), 767.85, 767.863 (3), 767.89, 938.183 (4), 938.355 (2) (b) 4., 938.357 (5m) (a), or 938.363 (2).

SB123,85,2 (2) Noncompliance; order to show cause. If a person has incurred a financial obligation and has failed within a reasonable time or as ordered by the court to satisfy such the obligation, and where the wage assignment proceeding under s. 767.265 767.75 and the account transfer under s. 767.267 767.76 are inapplicable, impractical, or unfeasible, the court may on its own initiative, and shall on the application of the receiving party, issue an order requiring the payer to show cause at some a reasonable time therein specified in the order why he or she should not be punished for such misconduct as provided in subject to contempt of court under ch. 785.

SB123, s. 144 Section 144. 767.31 of the statutes is renumbered 767.57 (5) and amended to read:

SB123,85,13 767.57 (5) Trustee or receiver may be appointed. The court may appoint a receiver or trustee, when deemed expedient as necessary, to receive any payments ordered under this chapter, to invest and pay over the income for the maintenance of the spouse entitled thereto or the support and education of any of the minor children described in s. 767.511 (4), or to pay over the principal sum in such proportions the amount and at such the times as that the court directs. The court may require the receiver or trustee shall give such to post bond, with such or without sureties as, in the amount that the court requires, for the faithful performance of his or her trust directs.

Note: Authorizes the court to appoint a receiver, as an alternative to a trustee, to handle maintenance or support obligations. In addition, clarifies that reference to support and education of children includes any minor child or any child less than 19 if the child is pursuing an accredited course of instruction leading to the acquisition of a high school diploma or its equivalent.

SB123, s. 145 Section 145 . 767.313 (2) of the statutes is created to read:

SB123,85,17 767.313 (2) Judicial proceeding required; no annulment after death. A judicial proceeding is required to annul a marriage. A marriage may not be annulled after the death of a party to the marriage.

Note: Restates language stricken from current s. 767.03 (intro.). See Sec. 23 of the bill. Reference to voiding a marriage is not included in the restated language because ch. 767 does not include actions to void a marriage.

SB123, s. 146 Section 146. 767.315 (title) of the statutes is created to read:

SB123,85,19 767.315 (title) Grounds for divorce and legal separation.

SB123, s. 147 Section 147. 767.32 (title) of the statutes is renumbered 767.59 (title) and amended to read:

SB123,86,4 767.59 (title) Revision of certain judgments support and maintenance orders.

SB123, s. 148 Section 148. 767.32 (1) (a) of the statutes is renumbered 767.59 (1) and amended to read:

SB123,86,12 767.59 (1) Definition. After In this section, "support or maintenance order" means a judgment or order providing for child support under this chapter or s. 48.355 (2) (b) 4., 48.357 (5m) (a), 48.363 (2), 938.183 (4), 938.355 (2) (b) 4., 938.357 (5m) (a), 938.363 (2), or 948.22 (7), for maintenance payments under s. 767.26, or 767.56, for family support payments under this chapter, or for the appointment of trustees or receivers under s. 767.31 , the court may, from time to time, on 767.57 (5).

SB123,86,20 (1c) Court authority. (a) On the petition, motion, or order to show cause of either of the parties, or upon the petition, motion, or order to show cause of the department, a county department under s. 46.215, 46.22, or 46.23, or a county child support agency under s. 59.53 (5) if an assignment has been made under s. 46.261, 48.57 (3m) (b) 2. or (3n) (b) 2., 49.19 (4) (h), or 49.45 (19) or if either party or their minor children receive aid under s. 48.57 (3m) or (3n) or ch. 49, and upon notice to the office of family court commissioner, revise, a court may, except as provided in par. (b), do any of the following:

SB123,86,24 1. Revise and alter such judgment or a support or maintenance order respecting as to the amount of such and payment of maintenance or child support and the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make.

SB123,87,2 2. Make any judgment or order respecting on any of the matters that such matter that the court might have made in the original action, except that.

SB123,87,6 (b) A court may not revise or modify a judgment or order that waives maintenance payments for either party shall not thereafter be revised or altered in that respect nor shall the provisions of or a judgment or order with respect to final division of property be subject to revision or modification.

Note: Deletes as unnecessary notice to the court commissioner in renumbered sub. (1c) (a) (intro.).

SB123,87,15 (1f) Support: substantial change in circumstances. (a) Except as provided in par. (d), a revision under this section of a judgment or order with respect as to an the amount of child or family support may be made only upon a finding of a substantial change in circumstances. In any action under this section to revise a judgment or order with respect to maintenance payments, a substantial change in the cost of living by either party or as measured by the federal bureau of labor statistics may be sufficient to justify a revision of judgment or order with respect to the amount of maintenance, except that a change in an obligor's cost of living is not in itself sufficient if payments are expressed as a percentage of income.

Note: The stricken sentence is relocated to a new subsection. See s. 767.59 (1k), created by Sec. 227 of this bill.

SB123, s. 149 Section 149. 767.32 (1) (b), (c) and (d) of the statutes are renumbered 767.59 (1f) (b), (c) and (d), and 767.59 (1f) (b) (intro.), 3. and 4. and (c) (intro.), as renumbered, are amended to read:

SB123,87,22 767.59 (1f) (b) (intro.) In any an action under this section to revise a judgment or order with respect to an the amount of child support, any of the following shall constitute constitutes a rebuttable presumption of a substantial change in circumstances sufficient to justify a revision of the judgment or order:

SB123,88,2 3. Failure of the payer to furnish a timely disclosure under s. 767.27 (2m) 767.54.

SB123,88,8 4. A difference between the amount of child support ordered by the court to be paid by the payer and the amount that the payer would have been required to pay based on the percentage standard established by the department under s. 49.22 (9) if the court did not use the percentage standard in determining the child support payments and did not provide the information required under s. 46.10 (14) (d), 301.12 (14) (d) or 767.25 767.511 (1n), whichever is appropriate.

SB123,88,12 (c) (intro.) In any an action under this section to revise a judgment or order with respect to an amount of child support, any of the following may constitute a substantial change of circumstances sufficient to justify revision of the judgment or order:

SB123, s. 150 Section 150. 767.32 (1m) of the statutes is renumbered 767.59 (1m) and amended to read:

SB123,88,21 767.59 (1m) Payment revisions prospective. In an action under sub. (1) (1c) to revise a judgment or order with respect to child support, maintenance payments, or family support payments, the court may not revise the amount of child support, maintenance payments, or family support payments due, or an amount of arrearages in child support, maintenance payments, or family support payments that has accrued, prior to the date that notice of the action is given to the respondent, except to correct previous errors in calculations.

SB123, s. 151 Section 151. 767.32 (1r) of the statutes is renumbered 767.59 (1r), and 767.59 (1r) (intro.) and (c), as renumbered, are amended to read:

SB123,89,4 767.59 (1r) Credit to payer for certain payments. (intro.) In an action under sub. (1) (1c) to revise a judgment or order with respect to child support or family support, the court may grant credit to the payer against support due prior to the date on which the petition, motion, or order to show cause is served for payments made by the payer other than payments made as provided in s. 767.265 or 767.29 767.57 or 767.75, in any of the following circumstances:

SB123,89,8 (c) The payer proves by clear and convincing evidence, with evidence of a written agreement, that the payee expressly agreed to accept the payments in lieu of child or family support paid as provided in s. 767.265 or 767.29 767.57 or 767.75, not including gifts or contributions for entertainment.

SB123, s. 152 Section 152. 767.32 (2) of the statutes is renumbered 767.59 (2) (a) and amended to read:

SB123,89,13 767.59 (2) (a) Except as provided in sub. (2m) or (2r) par. (b) or (c), if the court revises a judgment or order with respect to child support payments, it shall do so by using the percentage standard established by the department under s. 49.22 (9).

SB123, s. 153 Section 153. 767.32 (2m) of the statutes is renumbered 767.59 (2) (b) and amended to read:

SB123,89,20 767.59 (2) (b) Upon request by a party, the court may modify the amount of revised child support payments determined under sub. (2) par. (a) if, after considering the factors listed in s. 767.25 767.511 (1m), the court finds, by the greater weight of the credible evidence, that the use of the percentage standard is unfair to the child or to any of the parties.

SB123, s. 154 Section 154. 767.32 (2r) of the statutes is renumbered 767.59 (2) (c).

SB123, s. 155 Section 155. 767.32 (2s) of the statutes is renumbered 767.59 (2s) and amended to read:

SB123,90,4 767.59 (2s) Stipulation for revision of support. In an action under sub. (1) (1c), the court may not approve a stipulation for the revision of a judgment or order with respect to an amount of child support or family support unless the stipulation provides for payment of an amount of child support or family support that is determined in the manner required under s. 46.10 (14), 301.12 (14), 767.25, 767.51 or 767.62 (4) 767.511, 767.805 (4), or 767.89, whichever is appropriate.

SB123, s. 156 Section 156. 767.32 (2w) of the statutes is renumbered 767.59 (2w) and amended to read:

SB123,90,13 767.59 (2w) When revision effective. A revision of a judgment or order with respect to child support, family support, or maintenance payments has the effect of modifying the original judgment or order with respect to such the payments to the extent of the revision from the date on which the order revising such the payments is effective. The child support, family support, or maintenance payments modified by the order for revision shall cease to accrue under the original judgment or order from the date on which the order revising such the payments is effective.

SB123, s. 157 Section 157. 767.32 (3) of the statutes is renumbered 767.59 (3) and amended to read:

SB123,90,19 767.59 (3) Remarriage; vacating maintenance order. After a final judgment requiring maintenance payments has been rendered and the payee has remarried, the court shall, on application of the payer with notice to the payee and upon proof of remarriage, vacate the order requiring such the payments.

SB123, s. 158 Section 158. 767.32 (4) of the statutes is renumbered 767.59 (4) and amended to read:

SB123,91,2 767.59 (4) Review when the state is a real party in interest. In any case in which the state is a real party in interest under s. 767.075 767.205 (2), the department shall review the support obligation periodically and whenever circumstances so warrant, if appropriate, petition the court for revision of the judgment or order with respect to the support obligation.

SB123, s. 159 Section 159. 767.32 (5) of the statutes is renumbered 767.59 (5) and amended to read:

SB123,91,7 767.59 (5) Notice of child support information. A summons or petition, motion, or order to show cause under this section shall include notification of the availability of information under s. 767.081 767.105 (2).

SB123, s. 160 Section 160. 767.325 (intro.) and (1) to (5) of the statutes are renumbered 767.451 (intro.) and (1) to (5), and 767.451 (intro.), (1) (a) (intro.) and (2) (a) and (b), as renumbered, are amended to read:

SB123,91,14 767.451 Revision of legal custody and physical placement orders. (intro.) Except for matters under s. 767.327 or 767.329 767.461 or 767.481, the following provisions are applicable to modifications of legal custody and physical placement orders:

SB123,91,21 (1) (a) Within 2 years after initial order final judgment. (intro.) Except as provided under sub. (2), a court may not modify any of the following orders before 2 years after the initial order final judgment determining legal custody or physical placement is entered under s. 767.24 767.41, unless a party seeking the modification, upon petition, motion, or order to show cause, shows by substantial evidence that the modification is necessary because the current custodial conditions are physically or emotionally harmful to the best interest of the child:

Note: The new language in sub. (1) (a) (intro.) clarifies that the "initial order" referred to in the current provision refers to the final judgment determining legal custody or physical placement under new s. 767.41 (s. 767.24 in current law). No substantive change in current law is intended.

SB123,92,3 (2) (a) If the parties have substantially equal periods of physical placement pursuant to a court order and circumstances make it impractical for the parties to continue to have substantially equal physical placement, a court, upon petition, motion, or order to show cause by a party, may modify such an the order if it is in the best interest of the child.

SB123,92,9 (b) In any case in which par. (a) does not apply and in which the parties have substantially equal periods of physical placement pursuant to a court order, a court, upon petition, motion, or order to show cause of a party, may modify such an the order based on the appropriate standard under sub. (1). However, under sub. (1) (b) 2., there is a rebuttable presumption that having substantially equal periods of physical placement is in the best interest of the child.

SB123, s. 161 Section 161. 767.325 (5m) of the statutes, as affected by 2003 Wisconsin Act 130, is renumbered 767.451 (5m) and amended to read:

SB123,92,15 767.451 (5m) Factors to consider. In all actions to modify legal custody or physical placement orders, the court shall consider the factors under s. 767.24 767.41 (5) (am), subject to s. 767.24 767.41 (5) (bm), and shall make its determination in a manner consistent with s. 767.24 767.41.

SB123, s. 162 Section 162. 767.325 (6) to (8) of the statutes are renumbered 767.451 (6) to (8), and 767.451 (6m) and (8), as renumbered, are amended to read:

SB123,92,21 767.451 (6m) Parenting plan. In any action to modify a legal custody or physical placement order under sub. (1), the court may require the party seeking the modification to file with the court a parenting plan under s. 767.24 767.41 (1m) before any hearing is held.

SB123,92,24 (8) Petition, motion, or order to show cause. A petition, motion, or order to show cause under this section shall include notification of the availability of information under s. 767.081 767.105 (2).

SB123, s. 163 Section 163. 767.325 (9) of the statutes is repealed.

Note: Deletes an obsolete applicability provision.

SB123, s. 164 Section 164. 767.327 (title) and (1) to (6) of the statutes are renumbered 767.481 (title) and (1) to (6), and 767.481 (1) (a) (intro.), (2) (b) and (c) and (4), as renumbered, are amended to read:

SB123,93,8 767.481 (1) (a) (intro.) If Except as provided in sub. (8), if the court grants periods of physical placement to more than one parent, it shall order a parent with legal custody of and physical placement rights to a child to provide not less than 60 days days' written notice to the other parent, with a copy to the court, of his or her intent to:

SB123,93,13 (2) (b) If the parent who is proposing the move or removal receives a notice of objection under par. (a) within 20 days after sending a notice under sub. (1) (a), the parent may not move with or remove the child pending resolution of the dispute, or final order of the court under sub. (3), unless the parent obtains a temporary order to do so under s. 767.23 767.225 (1) (bm).

SB123,93,19 (c) Upon receipt of a copy of a notice of objection under par. (a), the court or circuit court commissioner shall promptly refer the parents for mediation or other family court counseling services under s. 767.11 767.405 and may appoint a guardian ad litem. Unless the parents agree to extend the time period, if mediation or counseling family court services do not resolve the dispute within 30 days after referral, the matter shall proceed under subs. (3) to (5).

SB123,93,22 (4) Guardian ad litem; prompt hearing. After a petition, motion, or order to show cause is filed under sub. (3), the court shall appoint a guardian ad litem, unless s. 767.045 767.407 (1) (am) applies, and shall hold a hearing as soon as possible.

SB123, s. 165 Section 165. 767.327 (7) of the statutes is repealed.

Note: Repeals an obsolete applicability provision.

SB123, s. 166 Section 166. 767.329 of the statutes is renumbered 767.461 and amended to read:

SB123,94,8 767.461 Revisions agreed to by stipulation. If after an initial order is entered under s. 767.24, 767.41 the parties agree to a modification in an order of physical placement or legal custody and file a stipulation with the court that specifies the agreed upon modification, the court shall incorporate the terms of the stipulation into a revised order of physical placement or legal custody unless the court finds that the modification is not in the best interest of the child.

Note: Provides an exception to the requirement that the court incorporate the terms of a stipulation to modify physical placement or legal custody into the revised order: unless the court finds the modification is not in the best interest of the child. The exception is based on a court of appeals decision holding that acceptance of a stipulation is not mandatory and that the trial court is not prohibited from examining the best interests of the child. [Paternity of S.A., 165 Wis. 2d 530, 478 N.W.2d 21 (Ct. App. 1991).]

SB123, s. 167 Section 167. 767.33 of the statutes is renumbered 767.553, and 767.553 (1) (c), (2), (3), (4) (a) (intro.), (b), (c) (intro.) and (d) and (5), as renumbered, are amended to read:

SB123,94,15 767.553 (1) (c) In the order the court or circuit court commissioner shall specify what information the parties must exchange to determine whether the payer's income has changed, and shall specify the manner and timing of the information exchange.

SB123,95,2 (2) Form for stipulating. If the court or circuit court commissioner provides for an annual adjustment, the court or circuit court commissioner shall make available to the parties, including the state if the state is a real party in interest under s. 767.075 (1) 767.205 (2) (a), a form approved by the court or circuit court commissioner for the parties to use in stipulating to an adjustment of the amount of child or family support and to modification of any applicable income-withholding order. The form shall include an order, to be signed by a judge or circuit court commissioner the court, for approval of the stipulation of the parties.

SB123,95,7 (3) Income changes. (a) If the payer's income changes from the amount found by the court or circuit court commissioner or stipulated to by the parties for the current child or family support order, the parties may implement an adjustment under this section by stipulating, on the form under sub. (2), to the changed income amount and the adjusted child or family support amount, subject to sub. (1) (b).

SB123,95,14 (b) The stipulation form must shall be signed by all parties, including the state if the state is a real party in interest under s. 767.075 (1) 767.205 (2) (a), and filed with the court. If the stipulation is approved, the order shall be signed by a judge or circuit court commissioner the court and implemented in the same manner as an order for a revision under s. 767.32 767.59. An adjustment under this subsection shall be is effective as of the date on which the order is signed by the judge or circuit court commissioner.

SB123,95,18 (4) (a) (intro.) Any party, including the state if the state is a real party in interest under s. 767.075 (1) 767.205 (2) (a), may file a motion, petition, or order to show cause for implementation of an annual adjustment under this section if any of the following applies:

SB123,95,25 (b) If the court or circuit court commissioner determines after a hearing that an adjustment should be made, the court or circuit court commissioner shall enter an order adjusting the child or family support payments by the amount determined by the court or circuit court commissioner, subject to sub. (1) (b). An adjustment under this subsection may not take effect before the date on which the party responding to the motion, petition, or order to show cause received notice of the action under this subsection.

SB123,96,3 (c) (intro.) Notwithstanding par. (b), the court or circuit court commissioner may direct that all or part of the adjustment not take effect until such time as the court or circuit court commissioner directs, if any of the following applies:

SB123,96,10 (d) If in an action under this subsection the court or circuit court commissioner determines that a party has unreasonably failed to provide the information required under sub. (1) (c) or to provide the information on a timely basis, or unreasonably failed or refused to sign a stipulation for an annual adjustment, the court or circuit court commissioner may award to the aggrieved party actual costs, including service costs, any costs attributable to time missed from employment, the cost of travel to and from court, and reasonable attorney fees.

SB123,96,13 (5) (a) Nothing in this section affects a party's right to file at any time a motion, petition, or order to show cause under s. 767.32 767.59 for revision of a judgment or order with respect to an amount of child or family support.

SB123, s. 168 Section 168. 767.34 (2) (title) of the statutes is created to read:

SB123,96,15 767.34 (2) (title) Limitations on court approval.

SB123, s. 169 Section 169. 767.37 (title) of the statutes is renumbered 767.251 (title) and amended to read:

SB123,96,18 767.251 (title) Effect Content, preparation, and approval of judgment.

SB123, s. 170 Section 170 . 767.37 (1) (a) of the statutes is renumbered 767.251 and amended to read:

SB123,97,6 767.251 (1) Content. In any an action affecting the family, if the court orders maintenance payments or other allowances for a party or children or retains jurisdiction in such those matters, the written judgment shall include a provision statement that disobedience of the court order with respect to the same is punishable under ch. 785 by commitment to the county jail or house of correction until such the judgment is complied with and the costs and expenses of the proceedings are paid or until the party committed is otherwise discharged, according to law. The written judgment in any action affecting the family shall include the social security numbers of the parties and of any child of the parties Final written agreements and stipulations of the parties shall, unless set forth in the judgment, be appended to the judgment and incorporated by reference.

SB123,97,11 (2) Preparation. The findings of fact and, conclusions of law, and the written judgment shall be drafted by the attorney for the moving party petitioner unless the court otherwise directs, and shall be submitted to the court and filed with the clerk of the court within 30 days after judgment is granted; but if the respondent has been represented by counsel, the.

SB123,97,20 (3) Approval. The draft findings, conclusions, and judgment shall first be submitted to respondent's counsel for approval and if the circuit court commissioner has appeared at the trial of the action, such papers shall also be sent to the circuit court commissioner for approval be approved by all counsel appearing, including a guardian ad litem and county child support enforcement agency attorney, and any other person designated by the court or local rule. After any necessary approvals are obtained, the findings of fact, conclusions of law, and judgment shall be submitted to the court. Final stipulations of the parties may be appended to the judgment and incorporated by reference therein.

Note: 1. Subdivided into 3 subsections.