2005 Wisconsin Act 443

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.

Note: Reflects the repeal of s. 767.14 by Sec. 69 of the bill.

443,50 Section 50. 767.085 (4) of the statutes is renumbered 767.317.

443,51 Section 51. 767.087 of the statutes is renumbered 767.117, and 767.117 (1) (b) and (c) and (2), as renumbered, are amended to read:

767.117 (1) (b) If the action is one under s. 767.02 767.001 (1) (a), (b), (c), (d), (h), or (i), encumbering, concealing, damaging, destroying, transferring, or otherwise disposing of property owned by either or both of the parties, without the consent of the other party or an order of the court or a circuit court commissioner, 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.

(c) Unless the action is one under s. 767.02 767.001 (1) (g) or (h), without the consent of the other party or an order of the court or a circuit court commissioner, establishing a residence with a minor child of the parties outside the state or more than 150 miles from the residence of the other party within the state, removing a minor child of the parties from the state for more than 90 consecutive days, or concealing a minor child of the parties from the other party.

(2) Duration of prohibitions. The prohibitions under sub. (1) shall apply until the action is dismissed, until a final judgment in the action is entered, or until the court or a circuit court commissioner orders otherwise.

443,52 Section 52. 767.09 (title) of the statutes is repealed.

443,53 Section 53 . 767.09 (1) and (2) of the statutes are renumbered 767.35 (2) and (5) and amended to read:

767.35 (2) Granting divorce or legal separation. When a party requests a legal separation rather than a decree of divorce, the court shall grant the decree in that form a judgment of legal separation unless the other party requests a divorce, in which case the court shall hear and determine which decree judgment shall be granted.

(4) Revocation of legal separation judgment upon reconciliation. A decree judgment of legal separation shall provide that in case of, if a reconciliation occurs at any time thereafter after the judgment, the parties may apply for a revocation of the judgment. Upon such application for a revocation of the judgment, the court shall make such orders as may be just and reasonable.

(5) Conversion of legal separation to divorce. By stipulation of both parties, or upon motion of either party not earlier than one year after entry of a decree judgment of legal separation, the court shall convert the decree judgment to a decree judgment of divorce.

443,54 Section 54. 767.10 of the statutes is renumbered 767.34, and 767.34 (title), (1) and (2) (a) and (am) 1. and 3., as renumbered, are amended to read:

767.34 (title) Stipulation and property division Court-approved stipulation. (1) Authority. The parties in an action for an annulment, divorce, or legal separation may, subject to the approval of the court, stipulate for a division of property, for maintenance payments, for the support of children, for periodic family support payments under s. 767.261 767.531, or for legal custody and physical placement, in case a divorce or legal separation is granted or a marriage annulled.

(2) (a) A court may not approve a stipulation for child support or family support unless the stipulation provides for payment of child support, determined in a manner consistent with s. 767.25 767.511 or 767.51 767.89.

(am) 1. The state is not a real party in interest in the action under any of the circumstances specified in s. 767.075 (1) 767.205 (2) (a).

3. All payment obligations included in the order, other than the annual receiving and disbursing fee under s. 767.29 (1) (d) 767.57 (1e) (a), are expressed as a percentage of the payer's income.

443,55 Section 55. Subchapter II (title) of chapter 767 [precedes 767.105] of the statutes is created to read:

chapter 767

subchapter ii
provisions of general application

443,56 Section 56. 767.11 (title) and (1) of the statutes are renumbered 767.405 (title) and (1m), and 767.405 (title) and (1m) (a) and (b), as renumbered, are amended to read:

767.405 (title) Family court counseling services.

(1m) (a) Except as provided in par. (b) and subject to approval by the chief judge of the judicial administrative district, the circuit judge or judges in each county shall designate a person meeting the qualifications under sub. (4) as the director of family court counseling services in that county.

(b) If 2 or more contiguous counties enter into a cooperative agreement under sub. (3) (b), the circuit judges for the counties involved shall, subject to approval by the chief judge of the judicial administrative district, designate a person meeting the qualifications under sub. (4) as the director of family court counseling services for those counties.

443,57 Section 57. 767.11 (2) to (14) of the statutes, as affected by 2003 Wisconsin Act 130, are renumbered 767.405 (2) to (14), and 767.405 (2) (intro.), (c) and (d), (3) (a), (b) and (c), (5) (a) (intro.), (b) and (c), (6), (7), (8) (a), (12) and (13), as renumbered, are amended to read:

767.405 (2) Duties. (intro.) A director of family court counseling services designated under sub. (1) (1m) shall administer a family court counseling services office if such an office is established under sub. (3) (a) or (b). Regardless of whether such an the office is established, the director shall:

(c) Supervise and perform mediation and any legal custody and physical placement study services authorized under sub. (14), and evaluate the quality of any such the mediation or study services.

(d) Administer and manage funding for family court counseling services.

(3) (a) A county may establish a family court counseling services office to provide mediation in that county.

(b) Two or more contiguous counties may enter into a cooperative agreement to establish one family court counseling services office to provide mediation in those counties.

(c) A director of family court counseling services designated under sub. (1) (1m) may contract with any person or public or private entity, located in a county in which the director administers family court counseling services or in a contiguous county, to provide mediation in such a the county in which the person or entity is located.

(5) (a) (intro.) Except as provided in sub. (8) (b), in any action affecting the family, including a revision of judgment or order under s. 767.32 767.451 or 767.325 767.59, in which it appears that legal custody or physical placement is contested, the court or circuit court commissioner shall refer the parties to the director of family court counseling services for possible mediation of those contested issues. The court or circuit court commissioner shall inform the parties of all of the following:

(b) If both parties to any action affecting the family wish to have joint legal custody of a child, either party may request that the court or circuit court commissioner refer the parties to the director of family court counseling services for assistance in resolving any problem relating to joint legal custody and physical placement of the child. Upon request, the court shall so refer the parties.

(c) A person who is awarded periods of physical placement, or a child of such a that person, a person with visitation rights, or a person with physical custody of a child may notify a circuit court commissioner of any problem he or she has relating to any of these matters. Upon notification, the circuit court commissioner may refer any person involved in the matter to the director of family court counseling services for assistance in resolving the problem.

(6) Action upon referral. (a) Whenever a court or circuit court commissioner refers a party to the director of family court counseling services for possible mediation, the director shall assign a mediator to the case. The mediator shall provide mediation if he or she determines that it is appropriate. If the mediator determines that mediation is not appropriate, he or she shall so notify the court. Whenever a court or circuit court commissioner refers a party to the director of family court counseling services for any other family court counseling service, the director shall take appropriate action to provide the service.

(b) Any intake form that the family court counseling services requires the parties to complete before commencement of mediation shall ask each party whether either of the parties 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).

(7) Private mediator. The parties to any action affecting the family may, at their own expense, receive mediation services from a mediator other than one who provides services under sub. (3). Parties who receive services from such a mediator under this subsection shall sign and file with the director of family court counseling services and with the court or circuit court commissioner a written notice stating the mediator's name and the date of the first meeting with the mediator.

(8) (a) Except as provided in par. (b), in any action affecting the family, including an action for revision of judgment or order under s. 767.32 767.451 or 767.325 767.59, in which it appears that legal custody or physical placement is contested, the parties shall attend at least one session with a mediator assigned under sub. (6) (a) or contracted with under sub. (7) and, if the parties and the mediator determine that continued mediation is appropriate, no court may hold a trial of or a final hearing on legal custody or physical placement until after mediation is completed or terminated.

(12) Mediation agreement. (a) Any agreement which that resolves issues of legal custody or periods of physical placement between the parties and that is reached as a result of mediation under this section shall be prepared in writing, reviewed by the attorney, if any, for each party and by any appointed guardian ad litem, and submitted to the court to be included in the court order as a stipulation. Any reviewing attorney or guardian ad litem shall certify on the mediation agreement that he or she reviewed it, and the guardian ad litem, if any, shall comment on the agreement based on the best interest of the child. The mediator shall certify that the written mediation agreement is in the best interest of the child based on the information presented to the mediator and accurately reflects the agreement made between the parties. The court may approve or reject the agreement, based on the best interest of the child. The court shall state in writing its reasons for rejecting an agreement.

Note: Deletes current requirement that the mediator certify that the written mediation agreement is "in the best interest of the child" based on the information presented to the mediator. Reflects concern that a mediator, in general, does not have the expertise necessary, or sufficient knowledge of the information presented, to certify that the agreement is in the best interest of the child. The mediator will still be required to certify that the written mediation agreement accurately reflects the agreement made between the parties.

(b) If after mediation under this section the parties do not reach agreement on legal custody or periods of physical placement, the parties or the mediator shall so notify the court. Except as provided in s. 767.045 767.407 (1) (am), the court shall promptly appoint a guardian ad litem under s. 767.045 767.407. Regardless of whether the court appoints a guardian ad litem, the court shall, if appropriate, refer the matter for a legal custody or physical placement study under sub. (14). If the parties come to agreement on legal custody or physical placement after the matter has been referred for a study, the study shall be terminated. The parties may return to mediation at any time before any trial of or final hearing on legal custody or periods of physical placement. If the parties return to mediation, the county shall collect any applicable fee under s. 814.615.

(13) Powers of court or circuit court commissioner. Except as provided in sub. (8), referring parties to mediation under this section does not affect the power of the court or a circuit court commissioner to make any necessary order relating to the parties during the course of the mediation.

443,58 Section 58. 767.11 (15) of the statutes is repealed.

Note: Deletes an obsolete applicability provision.

443,59 Section 59 . 767.115 (title) of the statutes is renumbered 767.401 (title) and amended to read:

767.401 (title) Educational programs and classes in actions affecting the family.

443,60 Section 60. 767.115 (1) (a) of the statutes, as affected by 2003 Wisconsin Act 130, is renumbered 767.401 (1) (a) and amended to read:

767.401 (1) (a) At any time during During the pendency of an action affecting the family in which a minor child is involved and in which the court or circuit court commissioner determines that it is appropriate and in the best interest of the child, the court or circuit court commissioner, on its own motion, may order the parties to attend a program specified by the court or circuit court commissioner concerning the effects on a child of a dissolution of the marriage. If the court or circuit court commissioner orders the parties to attend a program under this paragraph and there is evidence that one or both of the parties have 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), the court or circuit court commissioner may not require the parties to attend the program together or at the same time.

443,61 Section 61. 767.115 (1) (b) of the statutes is renumbered 767.401 (1) (b) and amended to read:

767.401 (1) (b) At any time during During the pendency of an action to determine the paternity of a child, or an action affecting the family for which the underlying action was an action to determine the paternity of a child, if the court or circuit court commissioner determines that it is appropriate and in the best interest of the child, the court or circuit court commissioner, on its own motion, may order either or both of the parties to attend a program specified by the court or circuit court commissioner providing training in parenting or coparenting skills, or both.

443,62 Section 62. 767.115 (1m), (2) and (3) of the statutes are renumbered 767.401 (1) (c), (d) and (e) and amended to read:

767.401 (1) (c) A program under sub. (1) par. (a) or (b) shall be educational rather than therapeutic in nature and may not exceed a total of 4 hours in length. The parties shall be responsible for the cost, if any, of attendance at the program. The court or circuit court commissioner may specifically assign responsibility for payment of any cost. No facts or information obtained in the course of the program, and no report resulting from the program, is admissible in any action or proceeding.

(d) Notwithstanding s. 767.07 767.35 (1), the court or circuit court commissioner may require the parties to an action affecting the family in which a minor child is involved to attend a program under sub. (1) par. (a) or (b) as a condition to the granting of a final judgment or order in the action affecting the family that is pending before the court or circuit court commissioner.

(e) A party who fails to attend a program ordered under sub. (1) par. (a) or (b) or pay costs specifically ordered under sub. (1m) par. (c) may be proceeded against under ch. 785 for contempt of court.

443,63 Section 63. 767.115 (4) of the statutes is renumbered 767.401 (2), and 767.401 (2) (a), (b) and (c) 2., as renumbered, are amended to read:

767.401 (2) (a) At any time during During the pendency of a divorce or paternity action, the court or circuit court commissioner may order the parties to attend a class that is approved by the court or circuit court commissioner and that addresses such issues as child development, family dynamics, how parental separation affects a child's development, and what parents can do to make raising a child in a separated situation less stressful for the child.

(b) The court or circuit court commissioner may not require the parties to attend a class under this subsection as a condition to the granting of the final judgment or order in the divorce or paternity action, however, the court or circuit court commissioner may refuse to hear a custody or physical placement motion of a party who refuses to attend a class ordered under this subsection.

(c) 2. If the court or circuit court commissioner finds that a party is indigent, any costs that would be the responsibility of that party shall be paid by the county.

443,64 Section 64. 767.117 (1) (title) and (3) (title) of the statutes are created to read:

767.117 (1) (title) Prohibitions.

(3) (title) Violations.

443,65 Section 65. 767.12 (title) and (1) of the statutes are renumbered 767.235 (title) and (1) and amended to read:

767.235 (title) Trial procedure or hearing on judgment. (1) Proceedings Before court. In actions an action affecting the family, all hearings and trials to determine whether judgment shall be granted, except hearings under s. 757.69 (1) (p) 3., shall be before the court. The testimony Testimony shall be taken by the reporter and shall be written out transcribed and filed with the record if so ordered by the court. Custody proceedings shall receive have priority in being set for hearing.