767.12 Annotation
Abolition of guilt in marriage dissolution: Wisconsin's adoption of no-fault divorce. 61 MLR 672 (1978).
767.125
767.125
Order for appearance of litigants. Unless nonresidence in the state is shown by competent evidence, service is by publication, or the court shall for other good cause otherwise order, both parties in actions affecting the family shall be required to appear upon the trial. An order of the court or family court commissioner to that effect shall accordingly be procured by the moving party, and shall be served upon the nonmoving party before the trial. In the case of a joint petition the order is not required.
767.125 History
History: 1977 c. 105;
1979 c. 32 s.
50;
1979 c. 196;
1979 c. 352 s.
39; Stats. 1979 s. 767.125.
767.13
767.13
Family court commissioner; appointment; powers; oaths; assistants. 767.13(1)(a)(a)
Appointment. In each county, except in a county having a population of 500,000 or more, the circuit judges for the county, subject to the approval of the chief judge of the judicial administrative district, shall, by order filed in the office of the clerk of the circuit court on or before the first Monday of July of each year, appoint some reputable attorney of recognized ability and standing at the bar as the family court commissioner for the county.
767.13(1)(b)
(b)
Powers; civil service; oath; temporary appointment; assistants. The family court commissioner, by virtue of the office and to the extent required for the performance of the duties, has the powers of a court commissioner. The family court commissioner is in addition to the maximum number of court commissioners permitted by
s. 757.68. The office of the family court commissioner, or any assistant commissioner, may be placed under a county civil service system by resolution of the county board. Before entering upon the discharge of the duties the family court commissioner shall take and file the official oath. The person appointed shall continue to act until a successor is appointed and qualified, except that in the event of disability or extended absence the judges may appoint another reputable attorney to act as temporary family court commissioner. The county board may provide that one or more assistant family court commissioners shall be appointed by the circuit judges for the county, subject to the approval of the chief judge of the judicial administrative district. An assistant family court commissioner shall have the same qualifications as the commissioner and shall take and file the official oath.
767.13(2)(a)(a)
Appointment; assistants; civil service. In counties having a population of 500,000 or more, there is created in the classified civil service the office of family court commissioner and such additional assistant family court commissioners as the county board shall determine and authorize, who shall be appointed from the membership of the bar residing in the county by the chief judge of the judicial administrative district under
ss. 63.01 to
63.17.
767.13(2)(b)
(b)
Oath; powers; salary; unavailability; duties. Before entering upon the performance of their duties, the family court commissioner and assistant family court commissioners shall take and file the official oath. The family court commissioner and assistant family court commissioners shall, by virtue of their respective positions and to the extent required for the performance of their duties, each have the powers of a court commissioner. They shall receive such salary as may be fixed by the county board, shall perform their duties under the direction of the chief judge of the judicial administrative district or a designee and shall be furnished with quarters and necessary office furnishings and supplies. The county board shall provide them their necessary stenographic and investigational service. When the family court commissioner is unavailable, any assistant family court commissioner shall perform all the duties and have all the powers of the family court commissioner as directed by the commissioner or by the chief judge of the judicial administrative district or other judge as the chief judge may designate. In addition to the duties of the family court commissioner under this chapter, the family court commissioner shall perform other duties as the chief judge of the judicial administrative district, or other judge as the chief judge may designate, directs.
767.13(3)
(3) Menominee county. Menominee county shall be attached to Shawano county to the extent of office and functions of the family court commissioner, and the duly appointed family court commissioner of Shawano county shall serve as family court commissioner for Menominee county with all the duties, rights and power of the family court commissioner therein; and no family court commissioner shall be appointed in Menominee county, the county not being organized for that purpose.
767.13(4)
(4) Retired judges. In any county one or more retired or former judges or retired family court commissioners may be appointed as temporary or temporary assistant family court commissioners by a majority of the judges of the county subject to the approval of the chief judge of the judicial administrative district. The temporary or temporary assistant family court commissioners shall be compensated by the county.
767.13(5)
(5) Judgments in certain actions affecting the family. 767.13(5)(a)(a) Divorce. On authority delegated by a judge, which may be by a standard order, and with the approval of the chief judge of the judicial administrative district, a family court commissioner may preside at any hearing held to determine whether a judgment of divorce shall be granted, if both parties state that the marriage is irretrievably broken and that all material issues, including but not limited to division of property or estate, legal custody, physical placement, child support, spousal maintenance and family support, are resolved or if one party does not participate in the action for divorce. The family court commissioner may grant and enter judgment in any action over which he or she presides under this paragraph unless the judgment modifies an agreement between the parties on material issues. If the family court commissioner does not approve an agreement between the parties on material issues, the action shall be certified to the court for trial.
767.13(5)(b)
(b)
Enforcement or revision; maintenance, custody, physical placement and visitation. On authority delegated by a judge, which may be by a standard order, a family court commissioner may conduct hearings and enter judgments in actions for enforcement of, or revision of judgment for, maintenance, custody, physical placement or visitation.
767.13(5)(c)
(c)
Establishment, enforcement or revision; paternity and support. Except when otherwise ordered by a judge, a family court commissioner may conduct hearings and enter orders and judgments in actions to establish paternity, in actions to establish or enforce a child support or a family support obligation and in actions to revise orders or judgments for child support or family support.
767.13(6)
(6) Review of the decisions of the family court commissioner. Upon the motion of any party any decision of the family court commissioner shall be reviewed by the judge of the branch of the court to which the case has been assigned. Upon the motion of any party any such review shall include a new hearing on the subject of the decision, order or ruling.
767.13(7)
(7) Cooperation. Each family court commissioner shall cooperate with the county and the department to ensure that all dependent children receive reasonable and necessary child support.
767.13 Annotation
Family court commissioners, except those appointed under (4), are county employes and subject to mandatory retirement. State ex rel. Sheets v. Fay, 54 W (2d) 642, 196 NW (2d) 651.
767.13 Annotation
Party may record proceedings, but commissioner may limit recording to extent it interferes with achievement of reasonable settlement. Forsythe v. Family Court Com'r. 131 W (2d) 322, 388 NW (2d) 580 (1986).
767.13 Annotation
Upon motion under (6), trial court must hold new hearing and may not rely upon proceedings before court commissioner. Marriage of Long v. Wasielewski, 147 W (2d) 57, 432 NW (2d) 615 (Ct. App. 1988).
767.13 Annotation
Family court commissioner is without authority to charge $15 fee to hear order to show cause in domestic relations case. 61 Atty. Gen. 358.
767.14
767.14
Service on and appearance by family court commissioner. In any action affecting the family, each party shall, either within 20 days after making service on the opposite party of any petition or pleading or before filing such petition or pleading in court, serve a copy of the same upon the family court commissioner of the county in which the action is begun, whether such action is contested or not. No judgment in any such action shall be granted unless this section is complied with except when otherwise ordered by the court. Such commissioner may appear in an action under this chapter when appropriate; and shall appear when requested by the court.
767.14 History
History: 1977 c. 105;
1979 c. 32 s.
50;
1979 c. 352 s.
39; Stats. 1979 s. 767.14.
767.145
767.145
Enlargement of time. 767.145(1)(1) After the expiration of the period specified by the statute, the court may in its discretion, upon petition and without notice, extend the time within which service shall be made upon the family court commissioner.
767.145(2)
(2) Except as provided in
s. 767.456, extension of time under any other circumstances shall be governed by
s. 801.15 (2), except that the court may, upon the petitioner's demonstration of good cause, and without notice, order one additional 60-day extension for service of the initial papers in the action.
767.145 History
History: Sup. Ct. Order, 67 W (2d) 585, 775 (1975);
1979 c. 32 s.
50;
1979 c. 196; Stats. 1979 s. 767.145;
1983 a. 447.
767.15
767.15
Service on child support program. 767.15(1)
(1) In any action affecting the family in which either party is a recipient of benefits under
ss. 49.141 to
49.161 or aid under
s. 46.261,
49.19 or
49.45, each party shall, either within 20 days after making service on the opposite party of any motion or pleading requesting the court or family court commissioner to order, or to modify a previous order, relating to child support, maintenance or family support, or before filing the motion or pleading in court, serve a copy of the motion or pleading upon the county child support agency under
s. 59.53 (5) of the county in which the action is begun.
767.15(2)
(2) In any appeal of any action affecting the family in which support or maintenance of a child of any party is at issue, the person who initiates the appeal shall notify the department of the appeal by sending a copy of the notice of appeal to the department.
767.15(3)
(3) No judgment in any action affecting the family may be granted unless this section is complied with or a court orders otherwise.
767.16
767.16
Family court commissioner or law partner; when interested; procedure. Neither a family court commissioner nor a partner may appear in any action affecting the family in any court held in the county in which the family court commissioner is acting, except when authorized to appear by
s. 767.14. In case the commissioner or a partner shall be in any way interested in such action, the presiding judge shall appoint some reputable attorney to perform the services enjoined upon such family court commissioner and such attorney, so appointed, shall take and file the oath and receive the compensation provided by law.
767.16 History
History: 1979 c. 32 ss.
50,
92 (4);
1979 c. 176;
1979 c. 352 s.
39; Stats. 1979 s. 767.16.
767.17
767.17
Family court commissioner; salary. In counties having a population of less than 500,000, the county board shall by resolution provide an annual salary for the family court commissioner whether on a full or part-time basis and may furnish an office with necessary office furnishings, supplies and stenographic services and may also by resolution prescribe other duties not in conflict with the duties as family court commissioner.
767.17 History
History: 1979 c. 32 s.
50;
1979 c. 176; Stats. 1979 s. 767.17.
767.19
767.19
Record; impounding. 767.19(1)(1) No record or evidence in any case shall be impounded, or access thereto refused, except by special written order of the court made in its discretion in the interests of public morals. And when impounded no officer or other person shall permit a copy of any of the testimony or pleadings, or the substance thereof, to be taken by any person other than a party to the action, or his or her attorney of record, without the special order of the court.
767.19(2)
(2) The court may on its own motion, or on motion of any party to an action affecting the family, exclude from the courtroom all persons other than the parties, their attorneys and any guardians ad litem.
767.19 History
History: 1977 c. 105,
273;
1979 c. 32 s.
50;
1979 c. 352 s.
39; Stats. s. 767.19.
767.20
767.20
Name of spouse. The court, upon granting a divorce, shall allow either spouse, upon request, to resume a former legal surname, if any.
767.20 History
History: 1975 c. 94;
1979 c. 32 s.
50; Stats. 1979 s. 767.20.
767.20 Annotation
Women's names in Wisconsin: In Re Petition of Kruzel. MacDougall, 1975 WBB No. 4.
767.21
767.21
Full faith and credit; comity. 767.21(1)
(1)
Actions in courts of other states. 767.21(1)(a)(a) Full faith and credit shall be given in all courts of this state to a judgment in any action affecting the family, except an action relating to child custody, by a court of competent jurisdiction in another state, territory or possession of the United States, when both spouses personally appear or when the respondent has been personally served. Full faith and credit shall also be given in all courts of this state to the amount of arrearages owed for nonpayment or late payment of a child support, family support or maintenance payment under an order issued by a court of competent jurisdiction in another state, territory or possession of the United States. A court in this state may not adjust the amount of arrearages owed except as provided in
s. 767.32 (1m).
767.21(1)(b)
(b) Full faith and credit shall be given in all courts of this state to a determination of paternity made by any other state, whether established through voluntary acknowledgment or an administrative or judicial process.
767.21(2)
(2) Actions in courts of foreign countries. Any court of this state may recognize a judgment in any action affecting the family involving Wisconsin domiciliaries, except an action relating to child custody, by a court of competent jurisdiction in a foreign country, in accordance with the principles of international comity.
767.21(3)
(3) Child custody actions. All matters relating to the effect of the judgment of another court concerning child custody shall be governed by
ch. 822.
767.21 History
History: 1977 c. 105;
1979 c. 32 s.
50;
1979 c. 352 s.
39; Stats. 1979 s. 767.21;
1989 a. 212;
1993 a. 481.
767.21 Annotation
Full faith and credit is not applicable where a decree or judgment is obtained in a jurisdiction outside of the U.S. Estate of Steffke, 65 W (2d) 199, 222 NW (2d) 628.
767.21 Annotation
A Wisconsin court has equitable jurisdiction to decide issues of maintenance and property division when an out-of-state divorce judgment fails to address those issues. Haeuser v. Haeuser, 200 W (2d) 750, 548 NW (2d) 750 (Ct. App. 1996).
767.22
767.22
Uniform divorce recognition act. 767.22(1)
(1) A divorce obtained in another jurisdiction shall be of no force or effect in this state, if the court in such other jurisdiction lacks subject matter jurisdiction to hear the case because both parties to the marriage were domiciled in this state at the time the proceeding for the divorce was commenced.
767.22(2)
(2) Proof that a person obtaining a divorce in another jurisdiction was (a) domiciled in this state within 12 months prior to the commencement of the proceeding therefor, and resumed residence in this state within 18 months after the date of the person's departure therefrom, or (b) at all times after the person's departure from this state, and until the person's return maintained a place of residence within this state, shall be prima facie evidence that the person was domiciled in this state when the divorce proceeding was commenced.
767.22(3)
(3) This section shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.
767.22(4)
(4) This section may be cited as the Uniform Divorce Recognition Act.
767.22 History
History: 1977 c. 105;
1979 c. 32 s.
50; Stats. 1979 s. 767.22;
1993 a. 486.
767.22 Annotation
Comity cannot be accorded a Mexican decree where no domicile existed in that foreign jurisdiction. Estate of Steffke, 65 W (2d) 199, 222 NW (2d) 628.
767.23
767.23
Temporary orders for support of spouse and children; suit money; attorney fees. 767.23(1)
(1) Except as provided in
ch. 822, in every action affecting the family, the court or family court commissioner may, during the pendency thereof, make just and reasonable temporary orders concerning the following matters:
767.23(1)(a)
(a) Upon request of one party, granting legal custody of the minor children to the parties jointly, to one party solely or to a relative or agency specified under
s. 767.24 (3). The court or family court commissioner may order joint legal custody without the agreement of the other party and without the findings required under
s. 767.24 (2) (b) 2. This order may not have a binding effect on a final custody determination.
767.23(1)(am)
(am) Upon the request of a party, granting periods of physical placement to a party. The court or family court commissioner shall make a determination under this paragraph within 30 days after the request for a temporary order regarding periods of physical placement is filed.
767.23(1)(c)
(c) Requiring either party or both parties to make payments for the support of minor children, which payment amounts may be expressed as a percentage of parental 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 parental income or a fixed sum.
767.23(1)(d)
(d) Requiring either party to pay for the maintenance of the other party. This maintenance may include the expenses and attorney fees incurred by the other party in bringing or responding to the action affecting the family.
767.23(1)(f)
(f) Requiring either party to execute an assignment of income under
s. 767.265 or an authorization for transfer under
s. 767.267.
767.23(1)(g)
(g) Requiring either party or both parties to pay debts or perform other actions in relation to the persons or property of the parties.
767.23(1)(i)
(i) Requiring counseling of either party or both parties.
767.23(1)(k)
(k) Requiring either party or both parties to maintain minor children as beneficiaries on a health insurance policy or plan.
767.23(1)(L)
(L) Requiring either party or both parties to execute an assignment of income for payment of health care expenses of minor children.
767.23(1m)
(1m) If a family court commissioner believes that a temporary restraining order or injunction under
s. 813.12 is appropriate in an action, the court commissioner shall inform the parties of their right to seek the order or injunction and the procedure to follow. On a motion for such a restraining order or injunction, the family court commissioner shall submit the motion to the court within 5 working days.
767.23(1n)
(1n) Before making any temporary order under
sub. (1), the court or family court commissioner shall consider those factors which the court is required by this chapter to consider before entering a final judgment on the same subject matter. If the court or family court commissioner makes a temporary child support order that deviates from the amount of support that would be required by using the percentage standard established by the department under
s. 49.22 (9), the court or family court commissioner shall comply with the requirements of
s. 767.25 (1n). A temporary order under
sub. (1) may be based upon the written stipulation of the parties, subject to the approval of the court or the family court commissioner. Temporary orders made by the family court commissioner may be reviewed by the court as provided in
s. 767.13 (6).
767.23(2)
(2) Notice of motion for an order or order to show cause under
sub. (1) may be served at the time the action is commenced or at any time thereafter and shall be accompanied by an affidavit stating the basis for the request for relief.
767.23(3)(a)(a) Upon making any order for dismissal of an action affecting the family or for substitution of attorneys in an action affecting the family or for vacation of a judgment theretofore granted in any such action, the court shall prior to or in its order render and grant separate judgment in favor of any attorney who has appeared for a party to the action and in favor of any guardian ad litem for a party or a child for the amount of fees and disbursements to which the attorney or guardian ad litem is, in the court's judgment, entitled and against the party responsible therefor.
767.23(3)(b)
(b) Upon making any order for dismissal of an action affecting the family or for vacation of a judgment granted in any such order, the court shall, prior to or in its order of dismissal or vacation, also preserve the right of the state or a political subdivision of the state to collect any arrearages, by an action under this chapter or under
ch. 785, owed to the state if either party in the case was a recipient of aid under
ch. 49.
767.23 History
History: 1971 c. 149;
1971 c. 211 s.
126;
1971 c. 220,
307;
1975 c. 283; Sup. Ct. Order, 73 W (2d) xxxi (1976);
1977 c. 105;
1979 c. 32 ss.
50,
92 (4);
1979 c. 111,
196;
1979 c. 352 s.
39; Stats. 1979 s. 767.23;
1983 a. 27;
1983 a. 204 s.
22;
1983 a. 447;
1985 a. 29 s.
3202 (9);
1987 a. 355,
364,
413;
1989 a. 212;
1991 a. 39;
1993 a. 78,
481,
490;
1995 a. 27 ss.
7100h,
9126 (19);
1995 a. 70,
404.
767.23 Annotation
Where a guardian ad litem is appointed where the issue of custody of a child is disputed, his fee should be divided between both parties when their ability to pay is equal. Lacey v. Lacey, 45 W (2d) 378, 173 NW (2d) 142.
767.23 Annotation
An order for attorney's fees is enforceable by contempt; if the judgment only refers to a stipulation for attorney's fees, it is not so enforceable. The court cannot enter a judgment in favor of the attorneys directly. Before a contempt order is issued the defendant must have notice of an application for it which must be made by the wife to whom the fees are payable. O'Connor v. O'Connor, 48 W (2d) 535, 180 NW (2d) 735.
767.23 Annotation
Order directing the husband to contribute $2,000 to the wife's attorney's fees is not an abuse of discretion. Tesch v. Tesch, 63 W (2d) 320, 217 NW (2d) 647.
767.23 Annotation
Denial of the wife's motion for attorneys' fees to prosecute the wife's appeal is held to constitute an abuse of discretion, since the issues in the case were vigorously contested and in no way frivolous. Markham v. Markham, 65 W (2d) 735, 223 NW (2d) 616.
767.23 Annotation
Sub. (3) (a) is strictly construed to apply to those situations expressly set forth in the statute, i.e., orders for dismissal, substitution of attorneys and vacation of judgments, in actions affecting families. In other cases, an action to recover legal fees may be instituted. Kotecki & Radtke, S.C. v. Johnson, 192 W (2d) 429, 531 NW (2d) 606 (Ct. App. 1995).
