2005 Wisconsin Act 443

Note: Repealed as obsolete. The repealed paragraph provides:

If the department determines that the statewide automated support and maintenance receipt and disbursement system will be operational before October 1, 1999, the department shall publish a notice in the Wisconsin Administrative Register that states the date on which the system will begin operating. Before that date or October 1, 1999, whichever is earlier, the circuit courts, county child support agencies under s. 59.53 (5), clerks of court and employers shall cooperate with the department in any measures taken to ensure an efficient and orderly transition from the countywide system of support receipt and disbursement to the statewide system.

443,132 Section 132. 767.29 (1m) to (4) of the statutes, as affected by 2005 Wisconsin Act 25, are renumbered 767.57 (1m) to (4), and 767.57 (1m) (intro.) and (b), (2) and (3), as renumbered, are amended to read:

767.57 (1m) Overpayment. (intro.) Notwithstanding ss. 767.25 767.511 (6) and 767.261 767.531, if the department or its designee receives support or maintenance money that exceeds the amount due in the month in which it is received and that the department or its designee determines that the excess amount is for support or maintenance due in a succeeding month, the department or its designee may hold the amount of overpayment that does not exceed the amount due in the next month for disbursement in the next month if any of the following applies:

(b) The court or circuit court commissioner has ordered that overpayments of child support, family support, or maintenance that do not exceed the amount of support or maintenance due in the next month may be held for disbursement in the next month.

(2) Procedure if recipient on public assistance. If any a party entitled to maintenance payments or support money, or both, is receiving public assistance under ch. 49, the party may assign the party's right thereto to support or maintenance to the county department under s. 46.215, 46.22, or 46.23 granting such the assistance. Such The assignment shall be approved by order of the court granting the maintenance payments or support money, and may be terminated in like manner; except that it shall. The assignment may not be terminated in cases where if there is any a delinquency in the amount to be paid to the assignee of maintenance payments and support money previously ordered or adjudged to be paid to the assignee without the written consent of the assignee or upon notice to the assignee and a hearing. When an assignment of maintenance payments or support money, or both, has been approved by the order, the assignee shall be deemed a real party in interest within s. 803.01 but solely for the purpose of securing payment of unpaid maintenance payments or support money adjudged or ordered to be paid, by participating in proceedings to secure the payment thereof of unpaid amounts. Notwithstanding assignment under this subsection, and without further order of the court, the department or its designee, upon receiving notice that a party or a minor child of the parties is receiving aid under s. 46.261 or public assistance under ch. 49 or that a kinship care relative or long-term kinship care relative of the minor child is receiving kinship care payments or long-term kinship care payments for the minor child, shall forward all support assigned under s. 46.261 (3), 48.57 (3m) (b) 2. or (3n) (b) 2., 49.19 (4) (h) 1., or 49.45 (19) to the assignee under s. 46.261 (3), 48.57 (3m) (b) 2. or (3n) (b) 2., 49.19 (4) (h) 1., or 49.45 (19).

(3) Procedure if recipient institutionalized or confined. (a) If maintenance payments or support money, or both, is are ordered to be paid for the benefit of any person, who is committed by court order to an institution or, who is in confinement, or whose legal custody is vested by court order under ch. 48 or 938 in an agency, department, or relative, the court or a circuit court commissioner may order such that the maintenance payments or support money to be paid to the relative or agency, institution, welfare department, or other entity having the legal or actual custody of said the person, and to that it be used for the latter's person's care and maintenance, without the appointment of a guardian under ch. 880.

(b) If a child who is the beneficiary of support under a judgment or order is placed by court order in a residential care center for children and youth, juvenile correctional institution, or state mental institution, the right of the child to support during the period of the child's confinement, including any right to unpaid support accruing during that period, is assigned to the state. If the judgment or order providing for the support of a child who is placed in a residential care center for children and youth, juvenile correctional institution, or state mental institution includes support for one or more other children, the support that is assigned to the state shall be the proportionate share of the child placed in the center or institution, except as otherwise ordered by the court or circuit court commissioner on the motion of a party.

443,133 Section 133. 767.293 of the statutes is repealed.

Note: Recreated by Section 235 of this bill.

443,134 Section 134. 767.295 (title) of the statutes is repealed.

443,135 Section 135. 767.295 (1) and (2) (a) of the statutes are renumbered 767.55 (2) (a) and (am), and 767.55 (2) (a) and (am) (intro.), as renumbered, are amended to read:

767.55 (2) (a) In this section subsection, "custodial parent" means a parent who lives with his or her child for substantial periods of time.

(am) (intro.) In an action for modification of a child support order under s. 767.32 767.59, 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), or a contempt of court proceeding to enforce a child support or family support order in a county that contracts under s. 49.36 (2), the court may order a parent who is not a custodial parent to register for a work experience and job training program under s. 49.36 if all of the following conditions are met:

443,136 Section 136. 767.295 (2) (b) and (c) of the statutes are renumbered 767.55 (2) (b) and (c), and 767.55 (2) (c), as renumbered, is amended to read:

767.55 (2) (c) If the court enters an order under par. (a) (am), it shall order the parent to pay child support equal to the amount determined by applying the percentage standard established under s. 49.22 (9) to the income a person would earn by working 40 hours per week for the federal minimum hourly wage under 29 USC 206 (a) (1) or equal to the amount of child support that the parent was ordered to pay in the most recent determination of support under this chapter. The child support obligation ordered under this paragraph continues until the parent makes timely payment in full for 3 consecutive months or until the person participates in the program under s. 49.36 for 16 weeks, whichever comes occurs first. The court shall provide in its order that the parent must shall make child support payments calculated under s. 767.25 767.511 (1j) or (1m) after the obligation to make payments ordered under this paragraph ceases.

443,137 Section 137. 767.30 of the statutes is renumbered 767.77, and 767.77 (title), (1), (2) and (3) (intro.), as renumbered, are amended to read:

767.77 (title) Enforcement of payments ordered payment obligations. (1) Definition. If the court orders any payment for In this section, "payment obligation" means an obligation to pay support under 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), or 938.363 (2), support or maintenance under s. 767.08 767.501, child support, family support, or maintenance under s. 767.23 767.225, child support under s. 767.25 767.511, maintenance under s. 767.26 767.56, family support under s. 767.261 767.531, attorney fees under s. 767.262 767.241, child support or a child's health care expenses under s. 767.477 767.85, paternity obligations under s. 767.458 (3), 767.51 or 767.62 (4) 767.805 (4), 767.863 (3), or 767.89, support arrearages under s. 767.293 767.71, or child or spousal support under s. 948.22 (7), the.

(1m) Terms of payment. The court may provide order that any a payment obligation be paid in the amounts and at the times that it considers expedient.

(2) Security for payment. The court may impose liability for any a payment listed under sub. (1) obligation as a charge upon any specific real estate of the obligated party liable or may require that party to give sufficient security for payment. However, no such No charge upon real estate may become effectual is effective until the order or judgment imposing liability or a certified copy of it is recorded in the office of the register of deeds in the county in which the real estate is situated.

(3) Noncompliance; enforcement. (intro.) If the a party fails to pay a payment ordered under sub. (1) (1m) or to give security under sub. (2), the court may by any appropriate remedy enforce the judgment, or the order as if it were a final judgment, including any past due payment and interest. Appropriate remedies include but are not limited to:

443,138 Section 138. Subchapter IV (title) of chapter 767 [precedes 767.301] of the statutes is created to read:

CHAPTER 767

SUBCHAPTER IV
annulment, DIVORCE,
And LEGAL SEPARATION

443,139 Section 139. 767.303 (title) of the statutes is renumbered 767.73 (title) and amended to read:

767.73 (title) Enforcement of Delinquent child or family support; suspension of operating privilege.

443,140 Section 140. 767.303 (1) of the statutes is renumbered 767.73 (1) (a) and amended to read:

767.73 (1) (a) If a person fails to pay In this subsection, "support payment" means a payment ordered for support under s. 767.077 767.521, support under s. 767.08 767.501, child support or family support under s. 767.23 767.225, child support under s. 767.25 767.511, family support under s. 767.261 767.531, revised child or family support under s. 767.32 767.59, child support under s. 767.458 767.863 (3), child support under s. 767.477 767.85, child support under s. 767.51 767.89, child support under s. 767.62 767.805 (4), child support under ch. 769, or child support under s. 948.22 (7) , the payment is.

(b) If a person fails to pay a support payment that is 90 or more days past due and the court finds that the person has the ability to pay the amount ordered, the court may suspend the person's operating privilege, as defined in s. 340.01 (40), until the person pays all arrearages in full or makes payment arrangements that are satisfactory to the court, except that the suspension period may not exceed 2 years. If otherwise eligible, the person is eligible for an occupational license under s. 343.10 at any time.

443,141 Section 141. 767.303 (2) to (5) of the statutes are renumbered 767.73 (2) to (5), and 767.73 (2) and (3), as renumbered, are amended to read:

767.73 (2) Notice of suspension to department of transportation. Whenever the If a court orders suspension of a person's operating privilege under sub. (1) (b), the court shall notify the department of transportation, in the form and manner prescribed by the department. The notice to the department shall include the name and last-known address of the person against whom the support order was entered, certification by the court that the person has been notified of the entry of the support order and that there are arrearages in support payments that are 90 or more days past due, and the place where the arrearages may be paid and. The notice shall also state that the person's operating privilege shall remain remains suspended until the person pays all arrearages in full or makes payment arrangements that are satisfactory to the court, except that the suspension period may not exceed 2 years.

(3) Notice of payment to department. If the person subsequently pays the full amount of the arrearages or makes payment arrangements that are satisfactory to the court, the court shall immediately notify the department of transportation of the payment, in the form and manner prescribed by the department.

443,142 Section 142. 767.305 (title) of the statutes is renumbered 767.78 (title).

443,143 Section 143. 767.305 of the statutes is renumbered 767.78 (1) and amended to read:

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).

(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.

443,144 Section 144. 767.31 of the statutes is renumbered 767.57 (5) and amended to read:

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.

443,145 Section 145 . 767.313 (2) of the statutes is created to read:

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.

443,146 Section 146. 767.315 (title) of the statutes is created to read:

767.315 (title) Grounds for divorce and legal separation.

443,147 Section 147. 767.32 (title) of the statutes is renumbered 767.59 (title) and amended to read:

767.59 (title) Revision of certain judgments support and maintenance orders.

443,148 Section 148. 767.32 (1) (a) of the statutes is renumbered 767.59 (1) and amended to read:

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).

(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:

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.

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.

(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.).

(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.

443,149 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:

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:

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

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.

(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:

443,150 Section 150. 767.32 (1m) of the statutes is renumbered 767.59 (1m) and amended to read:

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.

443,151 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:

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:

(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.

443,152 Section 152. 767.32 (2) of the statutes is renumbered 767.59 (2) (a) and amended to read:

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).

443,153 Section 153. 767.32 (2m) of the statutes is renumbered 767.59 (2) (b) and amended to read:

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.

443,154 Section 154. 767.32 (2r) of the statutes is renumbered 767.59 (2) (c).

443,155 Section 155. 767.32 (2s) of the statutes is renumbered 767.59 (2s) and amended to read:

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.

443,156 Section 156. 767.32 (2w) of the statutes is renumbered 767.59 (2w) and amended to read:

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.

443,157 Section 157. 767.32 (3) of the statutes is renumbered 767.59 (3) and amended to read:

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.

443,158 Section 158. 767.32 (4) of the statutes is renumbered 767.59 (4) and amended to read:

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.

443,159 Section 159. 767.32 (5) of the statutes is renumbered 767.59 (5) and amended to read:

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).

443,160 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:

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:

(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.

(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.

(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.

443,161 Section 161. 767.325 (5m) of the statutes, as affected by 2003 Wisconsin Act 130, is renumbered 767.451 (5m) and amended to read:

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.

443,162 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: