Feed for /2013/related/proposals/ab540 PDF
LRB-3081/1
PJK:sac:rs
2013 - 2014 LEGISLATURE
December 6, 2013 - Introduced by Representatives Kleefisch, Born, Kestell and
Pridemore. Referred to Committee on Family Law.
AB540,2,2 1An Act to renumber 767.531 (1), 767.531 (2) and 767.531 (3); to renumber and
2amend
767.511 (1j) and 767.531 (intro.) (except 767.531 (title)); to amend
349.22 (9), 767.225 (1n) (b) 1., 767.41 (4) (a) 2., 767.511 (1j) (title), 767.511 (1m)
4(intro.), 767.511 (1n), 767.513 (2), 767.55 (2) (c), 767.553 (1) (a), 767.553 (1) (b),
5767.59 (1c) (a) (intro.), 767.59 (1c) (a) 1., 767.59 (1f) (b) (intro.), 767.59 (1f) (b)
64., 767.59 (1f) (c) (intro.), 767.59 (2) (a), 767.59 (2) (b) and 767.85 (2); and to
7create
767.41 (5) (am) 5m., 767.511 (1j) (b), 767.511 (1j) (c), 767.511 (1j) (d),
8767.511 (1r), 767.59 (1c) (c), 767.59 (1f) (bm) and 767.59 (2m) of the statutes;
9relating to: a presumption that equalizing physical placement to the highest
10degree is in the child's best interest and child support changes, including
11prohibiting basing support on income over $150,000 per year, deducting the
12amount of health insurance premiums from the support amount, prohibiting
13increasing support above the standard amount, prohibiting orders that set

1minimum future support amounts, and requiring a support revision if there has
2been a substantial change in circumstances.
Analysis by the Legislative Reference Bureau
Equal placement presumption
Under current law, in an action affecting the family, such as a divorce or a
paternity action, a court must determine the legal custody of a minor child based on
the best interest of the child. In current law, there is a presumption that joint legal
custody is in the child's best interest. The court also must allocate periods of physical
placement between the parties. The court is required to set a placement schedule
that allows the child to have regularly occurring, meaningful periods of physical
placement with each parent and that maximizes the amount of time the child may
spend with each parent, taking into consideration geographic separation and
accommodations for different households. The court may deny periods of physical
placement with a parent only if the court finds that the physical placement would
endanger the child's physical, mental, or emotional health. When determining
custody and periods of physical placement, the court is required, under current law,
to consider a number of factors (custody and placement factors), such as the wishes
of the child and of the parties, the interaction and interrelationship of the child with
his or her parents, the amount and quality of time that each party has spent with the
child in the past, the child's adjustment to the home, school, and community, and the
cooperation and communication between the parties.
This bill provides that, when the court allocates periods of physical placement,
instead of maximizing the amount of time a child may spend with each parent, taking
into consideration geographic separation and accommodations for different
households, the court must presume that a placement schedule that equalizes to the
highest degree the amount of time the child may spend with each parent is in the
child's best interest. This presumption may be rebutted if the court finds by clear and
convincing evidence, after considering the custody and placement factors, that
equalizing physical placement would not be in the child's best interest. The bill also
makes the geographic separation of the parties an additional custody and placement
factor for the court to consider in every case when determining custody and periods
of physical placement.
Child support
Under current law, in divorces, paternity actions, and other actions affecting
the family in which there are minor children the court is required to order either or
both parents to pay an amount that is reasonable or necessary to fulfill a duty to
support a child. The court must generally determine child support payments by
using the percentage standard set out in the Wisconsin Administrative Code (code)
and established by the Department of Children and Families (DCF). The percentage
standard is a percentage of the child support payer's monthly income available for
support. The percentage that the child support payer must pay varies with the
number of children to be supported. Under the percentage standard, a payer must

pay 17 percent of his or her monthly income available for support for one child, 25
percent for two children, 29 percent for three children, 31 percent for four children,
and 34 percent for five or more children. Generally, the parent who has physical
placement with a child for less time is ordered to pay child support to the other parent
on the basis of the percentage standard.
In addition to the percentage standard, the code provides special methods that
the court may, but is not required to, use for calculating child support in special
situations, including for high-income payers. For high-income payers, child support
may be determined by multiplying annual income available for support that is less
than $84,000 by the usual percentages of the percentage standard, income between
$84,000 and $150,000 by a different schedule of percentages that are about 80
percent of the usual percentages, and income above $150,000 by another schedule
of percentages that are about 60 percent of the usual percentages. For example, for
a payer with annual income available for support above $150,000, child support for
one child may be determined by multiplying the payer's monthly income under
$7,000 by 17 percent, multiplying the additional monthly income between $7,000
and $12,500 by 14 percent, multiplying the additional monthly income over $12,500
by 10 percent, and adding together the amounts obtained.
The code provides that the court must determine a parent's monthly income
that is available for child support by dividing by 12 the sum of the parent's gross
annual income, or gross annual income modified for business expenses, the parent's
annual imputed income based on earning capacity, and the parent's annual income
imputed from assets. Under the code, the court may impute income to a payer if the
court determines that the payer's income is less than his or her earning capacity or
if the payer has unproductive assets or has diverted income into assets to avoid
paying child support. For imputing income based on earning capacity, the court
assesses the parent's education, training, previous work experience and income
level, and the availability of work in or near the parent's community. Income
imputation for unproductive assets involves multiplying the net value of the parent's
assets by the current six-month treasury bill rate or another reasonable rate.
Under the statutes, a court is authorized, upon a party's request, to modify the
amount of child support that would be ordered by using the percentage standard if
the court finds that use of the percentage standard is unfair to the child or either of
the parties. In making this finding, the court must consider 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 makes a few modifications to the way in which child support is
determined. The bill provides that child support may be based only on a parent's
actual income or imputed income based on earning capacity, as determined by the
court. The bill provides that child support may not be based on any of a parent's
assets and that it may not be based on any portion of a parent's annual gross income
that exceeds $150,000, annually adjusted in accordance with the consumer price
index. The bill conforms the statutory provision that authorizes DCF to promulgate
rules establishing the percentage standard with these changes.

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. Under the bill, after determining a parent's child support payments, the court
must deduct from that amount any amount the parent currently pays, or is ordered
to pay, for health insurance premiums for the child for whom support is determined.
Under the bill, a court still may, upon a party's request, modify the amount of
child support determined if the court finds that the amount is unfair to the child or
either of the parties after considering the factors under current law. However, the
court may modify the amount of child support it has determined in the manner
provided in the statutes only by reducing that amount. The requirement that a court
may only reduce the amount of support that it has determined in the manner
provided in the statutes also applies to temporary support orders and to revisions of
support orders.
Under current law, the court may revise the amount of child support under an
existing order only if the court finds that there has been a substantial change in
circumstances. The bill does not change this requirement; however, the bill also
provides that, if the court does find that there has been a substantial change in
circumstances, the court must revise the amount of child support under an existing
order. In addition, the bill provides that, in an action to revise the amount of child
or family support under an existing order, if the amount under the existing order
exceeds by 10 percent or more the amount that would have been ordered using the
new requirements, the court must find a substantial change in circumstances that
requires the court to revise the existing child support order.
The bill makes a few other changes relating to support. Under current law,
family support is an order that combines child support and maintenance (formerly
called alimony) into a single support amount. The bill provides that a family support
order may not include a child support amount that exceeds the amount of child
support that would be determined otherwise in the manner provided in the statutes.
The bill prohibits a court from including a provision in a support order that sets a
minimum amount of child support that may be ordered at a future time if the support
order is revised. The bill also provides that, in an action to revise an order with
respect to the amount of child support, regardless of when the order was granted, if
it includes a provision that sets a minimum amount of support that may be ordered
at a future time, that provision is void and may not be given effect.
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:
AB540,1 1Section 1. 49.22 (9) of the statutes is amended to read:
AB540,5,10
149.22 (9) The department shall promulgate rules that provide a standard for
2courts to use in determining a child support obligation based upon a percentage of
3the gross income and assets of either or both parents. The rules shall provide for
4consideration of the income of each parent and the amount of physical placement
5with each parent in determining a child support obligation in cases in which a child
6has substantial periods of physical placement with each parent. The rules may not
7base any amount of child support on any portion of a parent's gross income that
8exceeds $150,000 per year, which gross income amount shall be adjusted annually,
9beginning in 2015, to reflect changes in the consumer price index for all urban
10consumers, U.S. city average, as determined by the U.S. department of labor.
AB540,2 11Section 2. 767.225 (1n) (b) 1. of the statutes is amended to read:
AB540,5,1712 767.225 (1n) (b) 1. If the court makes a temporary child support order that
13deviates from the amount of support that would be required by using the percentage
14standard established by the department
under s. 49.22 (9) 767.511 (1j), the court
15shall comply with the requirements of s. 767.511 (1n). The court may make a
16temporary child support order that deviates from the amount that would be required
17under s. 767.511 (1j) by reducing, but not by increasing, that amount.
AB540,3 18Section 3. 767.41 (4) (a) 2. of the statutes is amended to read:
AB540,6,419 767.41 (4) (a) 2. In determining the allocation of periods of physical placement,
20the court shall consider each case on the basis of the factors in sub. (5) (am), subject
21to sub. (5) (bm). The court shall set
presume that a placement schedule that allows
22the child to have regularly occurring, meaningful periods of physical placement with
23each parent and that maximizes
equalizes to the highest degree the amount of time
24the child may spend with each parent, taking into account geographic separation and
25accommodations for different households
is in the best interest of the child. The

1presumption under this subdivision is rebutted if the court finds by clear and
2convincing evidence, after considering all of the factors in sub. (5) (am), subject to
3sub. (5) (bm), that equalizing physical placement to the highest degree would not be
4in the child's best interest
.
AB540,4 5Section 4. 767.41 (5) (am) 5m. of the statutes is created to read:
AB540,6,66 767.41 (5) (am) 5m. The geographic separation of the parties.
AB540,5 7Section 5. 767.511 (1j) (title) of the statutes is amended to read:
AB540,6,98 767.511 (1j) (title) Percentage Calculation; percentage standard generally
9required.
AB540,6 10Section 6. 767.511 (1j) of the statutes is renumbered 767.511 (1j) (intro.) and
11amended to read:
AB540,6,1312 767.511 (1j) (intro.) Except as provided in sub. (1m), the court shall determine
13child support payments by using in the following manner:
AB540,6,15 14(a) Except as otherwise provided in this subsection, the court shall use the
15percentage standard established by the department under s. 49.22 (9).
AB540,7 16Section 7. 767.511 (1j) (b) of the statutes is created to read:
AB540,6,2117 767.511 (1j) (b) The court may not order any amount of child support based on
18any portion of a parent's gross income that exceeds $150,000 per year. This income
19amount shall be adjusted annually, beginning in 2015, to reflect changes in the
20consumer price index for all urban consumers, U.S. city average, as determined by
21the U.S. department of labor.
AB540,8 22Section 8. 767.511 (1j) (c) of the statutes is created to read:
AB540,7,223 767.511 (1j) (c) The court shall base child support payments only on a parent's
24actual income or on imputed income based on earning capacity, as determined by the

1court, and may not order any amount of child support based on the value of any of
2a parent's assets.
AB540,9 3Section 9. 767.511 (1j) (d) of the statutes is created to read:
AB540,7,94 767.511 (1j) (d) When the court calculates the amount of a parent's child
5support payments, unless the parties agree otherwise in writing or orally in open
6court, the court shall reduce the amount determined under pars. (a) to (c) by the
7amount per month that the parent currently pays or is ordered to pay for health
8insurance premiums attributable to the child for whom the support is being
9determined.
AB540,10 10Section 10. 767.511 (1m) (intro.) of the statutes is amended to read:
AB540,7,1611 767.511 (1m) Deviation from standard; factors. (intro.) Upon request by a
12party, the court may modify, by reducing but not by increasing, the amount of child
13support payments determined under sub. (1j) if, after considering the following
14factors, the court finds by the greater weight of the credible evidence that use of the
15percentage standard
the amount of child support determined under sub. (1j) is unfair
16to the child or to any of the parties:
AB540,11 17Section 11. 767.511 (1n) of the statutes is amended to read:
AB540,8,218 767.511 (1n) Deviation from standard; record. If the court finds under sub.
19(1m) that use of the percentage standard the amount of child support determined
20under sub. (1j)
is unfair to the child or the requesting party, the court shall state in
21writing or on the record the amount of support that would be required by using the
22percentage standard
under sub. (1j), the amount by which the court's order deviates
23is reduced from that amount, its reasons for finding that use of the percentage
24standard
the amount of child support determined under sub. (1j) is unfair to the child

1or the party, its reasons for the amount of the modification reduction, and the basis
2for the modification reduction.
AB540,12 3Section 12. 767.511 (1r) of the statutes is created to read:
AB540,8,74 767.511 (1r) Minimum revision amounts prohibited. The court may not grant
5a child support order that sets a minimum amount of support that may be ordered
6in the future in the event that the child support order is revised under s. 767.59 or
7a substantially similar law of another state.
AB540,13 8Section 13. 767.513 (2) of the statutes is amended to read:
AB540,9,29 767.513 (2) Responsibility and payment. In addition to ordering child support
10for a child under s. 767.511 (1), and subject to s. 767.511 (1j) (d), the court shall
11specifically assign responsibility for and direct the manner of payment of the child's
12health care expenses. In assigning responsibility for a child's health care expenses,
13the court shall consider whether a child is covered under a parent's health insurance
14policy or plan at the time the court approves a stipulation for child support under s.
15767.34, enters a judgment of annulment, divorce, or legal separation, or enters an
16order or a judgment in a paternity action or in an action under s. 767.001 (1) (f) or
17(j), 767.501, or 767.805 (3), the availability of health insurance to each parent
18through an employer or other organization, the extent of coverage available to a
19child, and the costs to the parent for the coverage of the child. A parent may be
20required to initiate or continue health care insurance coverage for a child under this
21section. If a parent is required to do so, he or she shall provide copies of necessary
22program or policy identification to the custodial parent and is liable for any health
23care costs for which he or she receives direct payment from an insurer. This section
24shall not be construed to limit the authority of the court to enter or modify support

1orders containing provisions for payment of medical expenses, medical costs, or
2insurance premiums that are in addition to and not inconsistent with this section.
Loading...
Loading...