767.05 Annotation In a child custody dispute between the children's father, who was divorced by his wife, and the wife's parents, subsequent to her death, the trial court erred in concluding that it had no choice but to award custody to the surviving natural parent unless it found him unfit or unable to care for the children. LaChapell v. Mawhinney, 66 W (2d) 679, 225 NW (2d) 501.
767.05 Annotation Where divorce action was brought before meeting residency requirement, action was never commenced and petition could not be amended after requirement was met. Siemering v. Siemering, 95 W (2d) 111, 288 NW (2d) 881 (Ct. App. 1980).
767.05 Annotation Sub. (7) prohibition on commencement of action under 766.70 while divorce, annulment or legal separation action is pending does not violate equal protection and is constitutional. In re Marriage of Haack v. Haack, 149 W (2d) 243, 440 NW (2d) 794 (Ct. App. 1989).
767.05 Annotation See note to 801.05, citing In re Marriage of McAleavy v. McAleavy, 150 W (2d) 26, 440 NW (2d) 566 (1989).
767.07 767.07 Judgment of divorce or legal separation. A court of competent jurisdiction shall grant a judgment of divorce or legal separation if:
767.07(1) (1) The requirements of this chapter as to residence and marriage assessment counseling have been complied with;
767.07(2) (2)
767.07(2)(a)(a) In connection with a judgment of divorce or legal separation, the court finds that the marriage is irretrievably broken under s. 767.12 (2), unless par. (b) applies.
767.07(2)(b) (b) In connection with a judgment of legal separation, the court finds that the marital relationship is broken under s. 767.12 (3); and
767.07(3) (3) To the extent it has jurisdiction to do so, the court has considered, approved or made provision for legal custody, the support of any child of the marriage entitled to support, the maintenance of either spouse, the support of the family under s. 767.261 and the disposition of property.
767.07 History History: 1971 c. 220; 1977 c. 105; 1979 c. 32 ss. 50, 92 (4); Stats. 1979 s. 767.07; 1987 a. 355; 1989 a. 132.
767.07 Annotation Divorce judgment didn't bar wife's action against husband for torts allegedly committed during marriage. Stuart v. Stuart, 143 W (2d) 347, 421 NW (2d) 505 (1988).
767.075 767.075 State is real party in interest.
767.075(1) (1) The state is a real party in interest within the meaning of s. 803.01 for purposes of establishing paternity, securing reimbursement of aid paid, future support and costs as appropriate in an action affecting the family in any of the following circumstances:
767.075(1)(a) (a) An action to establish paternity whenever there is a completed application for legal services filed with the child support program under s. 49.22 or whenever s. 767.45 (6m) or (6r) applies.
767.075(1)(b) (b) An action to establish or enforce a child support or maintenance obligation whenever there is a completed application for legal services filed with the child support program under s. 49.22.
767.075(1)(c) (c) Whenever aid under s. 46.261, 48.57 (3m) or (3n), 49.19 or 49.45 is provided on behalf of a dependent child or benefits are provided to the child's custodial parent under ss. 49.141 to 49.161.
767.075(1)(cm) (cm) Whenever aid under s. 46.261, 48.57 (3m) or (3n), 49.19 or 49.45 has, in the past, been provided on behalf of a dependent child, or benefits have, in the past, been provided to the child's custodial parent under ss. 49.141 to 49.161, and the child's family is eligible for continuing child support services under 45 CFR 302.33.
767.075(2) (2)
767.075(2)(a)(a) Except as provided in par. (b), in any action affecting the family under a child support enforcement program, an attorney acting under s. 49.22 or 59.53 (5), including any district attorney or corporation counsel, represents only the state. Child support services provided by an attorney as specified in sub. (1) do not create an attorney-client relationship with any other party.
767.075(2)(b) (b) Paragraph (a) does not apply to an attorney who is employed by the department under s. 49.22 or a county under s. 59.53 (5) or (6) (a) to act as the guardian ad litem of the minor child for the purpose of establishing paternity.
767.075 Annotation See note to 767.25, citing State ex rel. v. Reible, 91 W (2d) 394, 283 NW (2d) 427 (Ct. App. 1979).
767.075 Annotation A mother is a necessary party in a paternity action brought by the state. In re Paternity of Joshua E. 171 W (2d) 327, 491 NW (2d) 136 (Ct. App. 1992).
767.075 Annotation A mother's and child's interests in a paternity action are not sufficiently identical to place them in privity for the purpose of res judicata. Chad M.G. v. Kenneth J.Z. 194 W (2d) 690, 535 NW (2d) 97 (Ct. App. 1995).
767.075 Annotation Sub. (2) (b) allows a county corporation counsel to act as guardian ad litem for a child in a paternity action so long as he or she only represents the child and does not represent the state in the action. Chad M.G. v. Kenneth J.Z. 194 W (2d) 690, 535 NW (2d) 97 (Ct. App. 1995).
767.075 Annotation Because a child has a right to bring an independent action for paternity under s. 767.45, where the child was not a party to an earlier state instituted paternity action, it would be a violation of the child's due process rights to preclude the child from litigating the paternity issue. Mayonia M.M. v. Kieth N. 202 W (2d) 461, 551 NW (2d) 34 (Ct. App. 1996).
767.077 767.077 Support for dependent child. The state or its delegate under s. 49.22 (7) shall bring an action for support of a minor child under s. 767.02 (1) (f) or, if appropriate, for paternity determination and child support under s. 767.45 whenever the child's right to support is assigned to the state under s. 46.261, 48.57 (3m) (b) 2. or (3n) (b) 2., 49.145 (2) (s), 49.19 (4) (h) 1. b. or 49.775 (2) (bm) if all of the following apply:
767.077(1) (1) The child has been deprived of parental support by reason of the continued absence of a parent from the home.
767.077(2) (2) A court has not issued an order under s. 767.25 requiring the parent who is absent from the home to support the child.
767.077 History History: 1987 a. 27; 1995 a. 289, 404; 1997 a. 27, 105.
767.078 767.078 Order in case involving dependent child.
767.078(1) (1)
767.078(1)(a)(a) In this subsection, "case involving a dependent child" means an action which meets all of the following criteria:
767.078(1)(a)1. 1. Is an action for modification of a child support order under s. 767.32 or an action in which an order for child support is required under s. 767.25 (1), 767.51 (3) or 767.62 (4) (a).
767.078(1)(a)2. 2. The child's right to support is assigned to the state under s. 48.57 (3m) (b) 2. or (3n) (b) 2. or 49.19 (4) (h) 1. b.
767.078(1)(a)3. 3. The child has been deprived of parental support by reason of the continued absence of a parent from the home.
767.078(1)(b) (b) Except as provided in par. (c) or (d), in a case involving a dependent child, if the child's parent who is absent from the home is not employed, the court shall order that parent to do one or more of the following:
767.078(1)(b)1. 1. Register for work at a public employment office established under s. 106.09.
767.078(1)(b)2. 2. Apply for jobs.
767.078(1)(b)3. 3. Participate in a job training program.
767.078(1)(c) (c) An order is not required under par. (b) or (d) if the court makes written findings that there is good cause for not issuing the order.
767.078(1)(d)1.1. Except as provided in par. (c), in a case involving a dependent child whose custodial parent is subject, under s. 49.25 (1), to the program under s. 49.25, if the child's parent who is absent from the home lives in a pilot county under s. 49.25, the court may order the parent who is absent from the home to report to the agency providing services under s. 49.193 in that pilot county and to participate in employment training and education activities under s. 49.25 (7), if all of the following conditions are satisfied:
767.078(1)(d)1.a. a. The parent who is absent from the home lives in a pilot county.
767.078(1)(d)1.b. b. The parent who is absent from the home is able to work full time.
767.078(1)(d)1.c. c. The parent who is absent from the home works, on average, less than 32 hours per week and is not participating in an employment training program that meets criteria established by the department.
767.078(1)(d)1.d. d. The actual weekly gross income of the parent who is absent from the home averages less than 40 times the federal minimum hourly wage under 29 USC 206 (a) (1) or the parent is earning less than the parent has the ability to earn, as determined by the court.
767.078(1)(d)2. 2. The agency to which a parent is required to report under subd. 1. shall report to the court on the services plan that is developed for the parent under s. 49.25 (7) (b) and on the parent's progress in following the plan. The agency may recommend to the court modifications in the order under subd. 1. based on the parent's employment or progress in following the plan or on the agency's evaluation of the parent's needs.
767.078(1)(d)3. 3. Subdivisions 1. and 2. only apply while the department conducts the program under s. 49.25.
767.078(2) (2)Subsection (1) does not limit the authority of a court to issue an order, other than an order under sub. (1), regarding employment of a parent in an action for modification of a child support order under s. 767.32 or an action in which an order for child support is required under s. 767.25 (1), 767.51 (3) or 767.62 (4) (a).
767.078 Annotation A divorce action terminates on the death of a spouse. After the death an order prohibiting an act in regard to marital property entered in the divorce may not be enforced under ch. 767. As the parties are legally married at the time of death, the sole remedy for resolving for resolving disputes over marital property lies under s. 766.70. Socha v. Socha, 204 W (2d) 474, 555 NW (2d) 152 (Ct. App. 1996).
767.08 767.08 Actions to compel support.
767.08(1) (1) In this section:
767.08(1)(a) (a) "Nonlegally responsible relative" means a relative who assumes responsibility for the care of a child without legal custody, but is not in violation of a court order. "Nonlegally responsible relative" does not include a relative who has physical custody of a child during a court-ordered visitation period.
767.08(1)(b) (b) "Relative" means any person connected with a child by consanguinity or direct affinity.
767.08(2) (2)
767.08(2)(a)(a) If a person fails or refuses to provide for the support and maintenance of his or her spouse or minor child, any of the following may commence an action in any court having jurisdiction in actions affecting the family to compel the person to provide any legally required support and maintenance:
767.08(2)(a)1. 1. The person's spouse.
767.08(2)(a)2. 2. The minor child.
767.08(2)(a)3. 3. The person with legal custody of the child.
767.08(2)(a)4. 4. A nonlegally responsible relative.
767.08(2)(b) (b) The court in the action shall, as provided under s. 767.25 or 767.26, 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.
767.08(2)(c) (c) The determination may be enforced by contempt proceedings, an account transfer under s. 767.267 or other enforcement mechanisms as provided under s. 767.30.
767.08(2)(d) (d) In any such support action there shall be no filing fee or other costs taxable to the person's spouse, the minor child, the person with legal custody or the nonlegally responsible relative, but after the action has been commenced and filed the court may direct that any part of or all fees and costs incurred shall be paid by either party.
767.08(3) (3) If the state or any subdivision thereof furnishes public aid to a spouse or dependent child for support and maintenance and the spouse, person with legal custody or nonlegally responsible relative fails or refuses to institute an appropriate court action under this chapter to provide for the same, the person in charge of county welfare activities, the county child support agency under s. 59.53 (5) or the department is a real party in interest under s. 767.075 and shall initiate an action under this section, for the purpose of obtaining support and maintenance. Any attorney employed by the state or any subdivision thereof may initiate an action under this section. The title of the action shall be "In re the support or maintenance of A.B. (Child)".
767.08 Annotation Husband incurs primary liability for necessaries procured for his family's sustenance. Sharpe Furniture, Inc. v. Buckstaff, 99 W (2d) 114, 299 NW (2d) 219 (1980).
767.08 Annotation See note to Art. I, sec. 1, citing Marshfield Clinic v. Discher, 105 W (2d) 506, 314 NW (2d) 326 (1982).
767.08 Annotation See note to 767.32 citing In re Marriage of Nichols v. Nichols, 162 W (2d) 96, 469 NW (2d) 619 (1991).
767.08 Annotation County child support agencies can initiate actions to compel support under this section without payment of filing fee. 72 Atty. Gen. 72.
767.081 767.081 Information from family court commissioner.
767.081(1)(1) Upon the filing of an action affecting the family, the family court commissioner shall inform the parties of any services, including referral services, offered by the family court commissioner and by the director of family court counseling services under s. 767.11.
767.081(2) (2) Upon request of a party to an action affecting the family, including a revision of judgment or order under s. 767.32 or 767.325:
767.081(2)(a) (a) The family court commissioner shall, with or without charge, provide the party with written information on the following, as appropriate to the action commenced:
767.081(2)(a)1. 1. The procedure for obtaining a judgment or order in the action.
767.081(2)(a)2. 2. The major issues usually addressed in such an action.
767.081(2)(a)3. 3. Community resources and family court counseling services available to assist the parties.
767.081(2)(a)4. 4. The procedure for setting, modifying and enforcing child support awards or modifying and enforcing legal custody or physical placement judgments or orders.
767.081(2)(b) (b) The family court commissioner shall provide a party, for inspection or purchase, with a copy of the statutory provisions in this chapter generally pertinent to the action.
767.081 History History: 1977 c. 105, 271, 447, 449; 1979 c. 32 s. 50; 1987 a. 355.
767.082 767.082 Suspension of proceedings to effect reconciliation. During the pendency of any action for divorce or legal separation, the court may, upon written stipulation of both parties that they desire to attempt a reconciliation, enter an order suspending any and all orders and proceedings for such period, not exceeding 90 days, as the court determines advisable so as to permit the parties to attempt a reconciliation without prejudice to their respective rights. During the period of suspension the parties may resume living together as husband and wife and their acts and conduct shall not constitute an admission that the marriage is not irretrievably broken or a waiver of the ground that the parties have voluntarily lived apart continuously for 12 months or more immediately prior to the commencement of the action if such is the case. Suspension may be revoked upon motion of either party by order of the court. If the parties become reconciled, the court shall dismiss the action. If the parties are not reconciled after the period of suspension, the action shall proceed as though no reconciliation period was attempted.
767.082 History History: 1971 c. 220; 1977 c. 105; 1979 c. 32 s. 50; Stats. 1979 s. 767.082.
767.083 767.083 Waiting period in certain actions. No petition for divorce or legal separation may be brought to trial until the happening of whichever of the following events occurs first:
767.083(1) (1) 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
767.083(2) (2) An order by the court, after consideration of the recommendation of the family 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 order specify the grounds therefor.
767.083 History History: 1977 c. 105; 1979 c. 32 ss. 50, 92 (4); 1979 c. 196; Stats. 1979 s. 767.083; 1987 a. 355.
767.085 767.085 Petition and response.
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