AB740: Bill Text

LRB-2307/1

PJK:pgt:km

1999 - 2000 LEGISLATURE

1999 Assembly BILL 740

February 10, 2000 - Introduced by Representatives Albers, Miller, Spillner, Musser, Owens, Hundertmark and Skindrud, cosponsored by Senators Plache, Panzer and Schultz. Referred to Committee on Family Law.

AB740,1,5 An Act to renumber 767.26; to amend 766.70 (4) (a) 3., 767.08 (2) (b), 767.255 (3) (i) and 767.32 (1) (a); and to create 767.10 (2) (c), 767.10 (2) (d), 767.26 (2) and 767.32 (1) (ar) of the statutes; relating to: awarding or revising maintenance payments on the basis of debt discharge in bankruptcy and approving stipulations waiving maintenance.

Analysis by the Legislative Reference Bureau

Under current law, a court may order a party to pay maintenance (formerly known as alimony) to the other party in an action for annulment, divorce or legal separation. The court may revise the amount of maintenance after the action, depending upon changed circumstances. If a party waived maintenance in the action, however, the court is prohibited from revising the judgment in the action at a later date to provide for maintenance to that party.

This bill provides that, in an action for annulment, divorce or legal separation, the court may not approve a stipulation between the parties that waives maintenance to either party unless the stipulation contains a statement by a party waiving maintenance that he or she understands that, if the court approves the stipulation, the court will not award the party maintenance payments in the future. The bill provides that the court must approve a stipulation that conditionally waives maintenance for either party if the party conditionally waiving maintenance is liable for, or has property that could be used to satisfy, a debt that the court has assigned to the other party; if the conditional waiver is based on the condition that the party who is assigned the debt does not secure a discharge of the debt in bankruptcy; and if the stipulation contains a statement by the party conditionally waiving maintenance that he or she understands that, if the court approves the stipulation, the court will not award the party maintenance in the future unless the other party secures a discharge in bankruptcy of the debt for which the party conditionally waiving maintenance may be held liable. The bill authorizes a court to award maintenance after an annulment, divorce or legal separation to a party who conditionally waived maintenance in the action by stipulation as described above if the party seeking maintenance has not remarried and the other party has secured a discharge in bankruptcy of a debt that was assigned to that party and for which the party seeking maintenance may be held liable.

The bill also provides that, if a debt that was assigned to a party in an action for annulment, divorce or legal separation is discharged in bankruptcy and the court awarded maintenance to a party in the action, the discharge of the debt is sufficient to justify a revision in the amount of maintenance that is paid or received by the party who was assigned the debt.

For further information see the 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:

AB740, s. 1 Section 1. 766.70 (4) (a) 3. of the statutes is amended to read:

AB740,2,4 766.70 (4) (a) 3. A division of the obligations of the spouses existing on the date of the request, after considering the classification of the obligation under s. 766.55 and the factors specified under ss. 767.255 and 767.26 (1).

AB740, s. 2 Section 2. 767.08 (2) (b) of the statutes is amended to read:

AB740,3,2 767.08 (2) (b) The court in the action shall, as provided under s. 767.25 or 767.26 (1), determine and adjudge the amount, if any, the person should reasonably contribute to the support and maintenance of the spouse or child and how the sum should be paid. This amount may be expressed as a percentage of the person's income or as a fixed sum, or as a combination of both in the alternative by requiring payment of the greater or lesser of either a percentage of the person's income or a fixed sum. The amount so ordered to be paid may be changed or modified by the court upon notice of motion or order to show cause by either party upon sufficient evidence.

AB740, s. 3 Section 3. 767.10 (2) (c) of the statutes is created to read:

AB740,3,9 767.10 (2) (c) A court may not approve a stipulation that waives maintenance payments for either party unless the stipulation contains a statement by the party waiving maintenance that he or she understands that, if the court approves the waiver of maintenance payments, the court will not award maintenance payments to the party under s. 767.26 or revise or alter a judgment or order with respect to maintenance payments to the party under s. 767.32.

AB740, s. 4 Section 4. 767.10 (2) (d) of the statutes is created to read:

AB740,3,12 767.10 (2) (d) A court shall approve a stipulation that conditionally waives maintenance payments for either party if all of the following apply:

AB740,3,15 1. The court assigns to the other party under s. 767.255 responsibility for the repayment of any debt for which the party conditionally waiving maintenance has liability or property that is available under s. 766.55 to satisfy the debt.

AB740,3,17 2. The waiver of maintenance is based on the condition that the party assigned a debt specified in subd. 1. does not secure a discharge in bankruptcy of the debt.

AB740,4,2 3. The stipulation contains a statement by the party conditionally waiving maintenance that he or she understands that, if the court approves the conditional waiver of maintenance payments, the court will not award maintenance payments to the party under s. 767.26 (1), the court will not award maintenance payments to the party under s. 767.26 (2) unless the other party secures a discharge in bankruptcy of a debt specified in subd. 1., and the court will not revise or alter a judgment or order with respect to maintenance payments to the party under s. 767.32 unless the court awards maintenance payments to the party under s. 767.26 (2).

AB740, s. 5 Section 5. 767.255 (3) (i) of the statutes is amended to read:

AB740,4,7 767.255 (3) (i) The amount and duration of an order under s. 767.26 (1) granting maintenance payments to either party, any order for periodic family support payments under s. 767.261 and whether the property division is in lieu of such payments.

AB740, s. 6 Section 6. 767.26 of the statutes is renumbered 767.26 (1).

AB740, s. 7 Section 7. 767.26 (2) of the statutes is created to read:

AB740,4,12 767.26 (2) After judgment has been granted in an action for annulment, divorce or legal separation, the court may award maintenance payments to a party, upon the petition, motion or order to show cause of the party, if all of the following apply:

AB740,4,14 (a) The party seeking maintenance under this subsection conditionally waived maintenance under s. 767.10 (2) (d).

AB740,4,15 (b) The party seeking maintenance under this subsection has not remarried.

AB740,4,19 (c) The party from whom maintenance is sought under this subsection has secured a discharge in bankruptcy of a debt that was assigned to that party in a property division under s. 767.255 and for which the party seeking maintenance has liability or property that is available under s. 766.55 to satisfy the debt.

AB740, s. 8 Section 8. 767.32 (1) (a) of the statutes is amended to read:

AB740,5,16 767.32 (1) (a) After a judgment or order providing for child support under this chapter or s. 48.355 (2) (b) 4., 48.357 (5m), 48.363 (2), 938.183 (4), 938.355 (2) (b) 4., 938.357 (5m), 938.363 (2) or 948.22 (7), maintenance payments under s. 767.26 or family support payments under this chapter, or for the appointment of trustees under s. 767.31, the court may, from time to time, 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 family court commissioner, revise and alter such judgment or order respecting the amount of such 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 any judgment or order respecting any of the matters that such court might have made in the original action, except that a judgment or order that waives maintenance payments for either party shall not thereafter be revised or altered under this section in that respect nor shall the provisions of a judgment or order with respect to final division of property be subject to revision or modification. A revision, under this section, of a judgment or order with respect to an amount of child or family support may be made only upon a finding of a substantial change in circumstances.

AB740,5,22 In (am) Subject to par. (a), 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.

AB740, s. 9 Section 9. 767.32 (1) (ar) of the statutes is created to read:

AB740,6,5 767.32 (1) (ar) Subject to par. (a), in any action under this section to revise a judgment or order with respect to maintenance payments, a discharge in bankruptcy of a debt that was assigned to a party under s. 767.255, and for which the other party has liability or property that is available under s. 766.55 to satisfy the debt, is sufficient to justify a revision of the judgment or order with respect to the amount of maintenance payments that are received or paid by the party to whom the debt was assigned.

AB740, s. 10 Section 10. Initial applicability.

AB740,6,9 (1) The treatment of sections 767.10 (2) (c) and (d) and 767.26 (2) of the statutes first applies to stipulations that are approved by a court on the effective date of this subsection.

AB740,6,11 (2) The treatment of section section 767.32 (1) (ar) of the statutes first applies to debts that are discharged in bankruptcy on the effective date of this subsection.

AB740, s. 11 Section 11. Effective date.

AB740,6,14 (1) This act takes effect on the first day of the 6th month beginning after publication.

AB740,6,15 (End)