767.25(1m)(hs)
(hs) The earning capacity of each parent, based on each parent's education, training and work experience and the availability of work in or near the parent's community.
767.25(1m)(i)
(i) Any other factors which the court in each case determines are relevant.
767.25(1n)
(1n) If the court finds under
sub. (1m) that use of the percentage standard is unfair to the child or the requesting party, the court shall state in writing or on the record the amount of support that would be required by using the percentage standard, the amount by which the court's order deviates from that amount, its reasons for finding that use of the percentage standard is unfair to the child or the party, its reasons for the amount of the modification and the basis for the modification.
767.25(2)
(2) The court may protect and promote the best interests of the minor children by setting aside a portion of the child support which either party is ordered to pay in a separate fund or trust for the support, education and welfare of such children.
767.25(3)
(3) Violation of physical placement rights by the custodial parent does not constitute reason for failure to meet child support obligations.
767.25(4)
(4) The court shall order either party or both to pay for the support of any child of the parties who is less than 18 years old, or any child of the parties who is less than 19 years old if the child is pursuing an accredited course of instruction leading to the acquisition of a high school diploma or its equivalent.
767.25(4m)(a)(a) In this subsection, "health insurance" does not include medical assistance provided under
subch. IV of ch. 49.
767.25(4m)(b)
(b) In addition to ordering child support for a child under
sub. (1), the court shall specifically assign responsibility for and direct the manner of payment of the child's health care expenses. In assigning responsibility for a child's health care expenses, the court shall consider whether a child is covered under a parent's health insurance policy or plan at the time the court approves a stipulation for child support under
s. 767.10, enters a judgment of annulment, divorce or legal separation, or enters an order or a judgment in an action under
s. 767.02 (1) (f) or
(j) or
767.08, the availability of health insurance to each parent through an employer or other organization, the extent of coverage available to a child and the costs to the parent for the coverage of the child. A parent may be required to initiate or continue health care insurance coverage for a child under this subsection. If a parent is required to do so, he or she shall provide copies of necessary program or policy identification to the custodial parent and is liable for any health care costs for which he or she receives direct payment from an insurer. This subsection shall not be construed to limit the authority of the court to enter or modify support orders containing provisions for payment of medical expenses, medical costs, or insurance premiums which are in addition to and not inconsistent with this subsection.
767.25(4m)(c)1.1. In directing the manner of payment of a child's health care expenses, the court may order that payment, including payment for health insurance premiums, be withheld from income and sent to the appropriate health care insurer, provider or plan, as provided in
s. 767.265 (3h), or sent to the department or its designee, whichever is appropriate, for disbursement to the person for whom the payment has been awarded if that person is not a health care insurer, provider or plan. If the court orders income withholding and assignment for the payment of health care expenses, the court shall send notice of assignment in the manner provided under
s. 767.265 (2r) and may include the notice of assignment under this subdivision with a notice of assignment under
s. 767.265. The department or its designee, whichever is appropriate, shall keep a record of all moneys received and disbursed by the department or its designee for health care expenses that are directed to be paid to the department or its designee.
Effective date note
NOTE: Subd. 1. is shown as amended eff. 1-4-99 by
1997 Wis. Act 27. Prior to 1-4-99 it reads:
Effective date text
1. In directing the manner of payment of a child's health care expenses, the court may order that payment, including payment for health insurance premiums, be withheld from income and sent to the appropriate health care insurer, provider or plan, as provided in s. 767.265 (3h), or sent to the clerk of court or support collection designee, whichever is appropriate, for disbursement to the person for whom the payment has been awarded if that person is not a health care insurer, provider or plan. If the court orders income withholding and assignment for the payment of health care expenses, the court shall send notice of assignment in the manner provided under s. 767.265 (2r) and may include the notice of assignment under this subdivision with a notice of assignment under s. 767.265. The clerk of court shall keep a record of all moneys received and disbursed by the clerk for health care expenses that are directed to be paid to the clerk and the support collection designee shall keep a record of all moneys received and disbursed by the support collection designee for health care expenses that are directed to be paid to the support collection designee.
767.25(4m)(c)2.
2. If the court orders a parent to initiate or continue health insurance coverage for a child under a health insurance policy that is available to the parent through an employer or other organization but the court does not specify the manner in which payment of the health insurance premiums shall be made, the clerk of court may provide notice of assignment in the manner provided under
s. 767.265 (2r) for the withholding from income of the amount necessary to pay the health insurance premiums. The notice of assignment under this subdivision may be sent with or included as part of any other notice of assignment under
s. 767.265, if appropriate. A person who receives notice of assignment under this subdivision shall send the withheld health insurance premiums to the appropriate health care insurer, provider or plan, as provided in
s. 767.265 (3h).
767.25(4m)(d)
(d) If the court orders a parent to provide coverage of the health care expenses of the parent's child and the parent is eligible for family coverage of health care expenses under a health benefit plan that is provided by an employer on an insured or on a self-insured basis, the employer shall do all of the following:
767.25(4m)(d)1.
1. Permit the parent to obtain family coverage of health care expenses for the child, if eligible for coverage, without regard to any enrollment period or waiting period restrictions that may apply.
767.25(4m)(d)2.
2. Provide family coverage of health care expenses for the child, if eligible for coverage, upon application by the parent, the child's other parent, the department or the county child support agency under
s. 59.53 (5), or upon receiving a notice under
par. (f) 1.
767.25(4m)(d)2m.
2m. Notify the county child support agency under
s. 59.53 (5) when coverage of the child under the health benefit plan is in effect and, upon request, provide copies of necessary program or policy identification to the child's other parent.
767.25(4m)(d)3.
3. After the child has coverage under the employer's health benefit plan, and as long as the parent is eligible for family coverage under the employer's health benefit plan, continue to provide coverage for the child unless the employer receives satisfactory written evidence that the court order is no longer in effect or that the child has coverage of health care expenses under another health insurance policy or health benefit plan that provides comparable coverage of health care expenses.
767.25(4m)(e)1.1. If a parent who has been ordered by a court to provide coverage of the health care expenses of a child who is eligible for medical assistance under
subch. IV of ch. 49 receives payment from a 3rd party for the cost of services provided to the child but does not pay the health care provider for the services or reimburse the department or any other person who paid for the services on behalf of the child, the department may obtain a judgment against the parent for the amount of the 3rd party payment.
767.25(4m)(f)1.1. If a parent who provides coverage of the health care expenses of a child under an order under this subsection changes employers and that parent has a court-ordered child support obligation with respect to the child, the county child support agency under
s. 59.53 (5) shall provide notice of the order to provide coverage of the child's health care expenses to the new employer and to the parent.
767.25(4m)(f)2.
2. The notice provided to the parent shall inform the parent that coverage for the child under the new employer's health benefit plan will be in effect upon the employer's receipt of the notice. The notice shall inform the parent that he or she may, within 10 business days after receiving the notice, by motion request a hearing before the court on the issue of whether the order to provide coverage of the child's health care expenses should remain in effect. A motion under this subdivision may be heard by a family court commissioner. If the parent requests a hearing and the court or family court commissioner determines that the order to provide coverage of the child's health care expenses should not remain in effect, the court shall provide notice to the employer that the order is no longer in effect.
767.25(5)
(5) Liability for past support shall be limited to the period after the birth of the child.
767.25(6)
(6) A party ordered to pay child support under this section shall pay simple interest at the rate of 1.5% per month on any amount in arrears that is equal to or greater than the amount of child support due in one month. If the party no longer has a current obligation to pay child support, interest at the rate of 1.5% per month shall accrue on the total amount of child support in arrears, if any. Interest under this subsection is in lieu of interest computed under
s. 807.01 (4),
814.04 (4) or
815.05 (8) and is paid to the department or its designee under
s. 767.29. Except as provided in
s. 767.29 (1m), the department or its designee, whichever is appropriate, shall apply all payments received for child support as follows:
Effective date note
NOTE: Sub. (6) (intro.) is shown as repealed and recreated eff. 1-4-99 by
1997 Wis. Act 191. Prior to 1-4-99 it reads:
Effective date text
(6) A party ordered to pay child support under this section shall pay simple interest at the rate of 1.5% per month on any amount in arrears that is equal to or greater than the amount of child support due in one month. If the party no longer has a current obligation to pay child support, interest at the rate of 1.5% per month shall accrue on the total amount of child support in arrears, if any. Interest under this subsection is in lieu of interest computed under s. 807.01 (4), 814.04 (4) or 815.05 (8) and is paid to the clerk of court or support collection designee under s. 767.29. Except as provided in s. 767.29 (1m), the clerk of court or support collection designee, whichever is appropriate, shall apply all payments received for child support as follows:
767.25(6)(a)
(a) First, to payment of child support [department or its] due within the calendar month during which the payment is received.
Effective date note
NOTE: Par. (a) is shown as amended eff. 1-4-99 by 2 acts of the 1997 legislature and as merged by the revisor under s. 13.93 (2) (c). The bracketed language was inserted by
1997 Wis. Act 27 but rendered surplusage by
1997 Wis. Act 191. Corrective legislation is pending. Prior to 1-4-99 it reads:
Effective date text
(a) First, to payment of child support due within the calendar month during which the payment is received.
767.25(6)(b)
(b) Second, to payment of unpaid child support due before the payment is received.
767.25(6)(c)
(c) Third, to payment of interest accruing on unpaid child support.
767.25(7)
(7) An order of joint legal custody under
s. 767.24 does not affect the amount of child support ordered.
767.25 History
History: 1971 c. 157;
1977 c. 29,
105,
418;
1979 c. 32 ss.
50,
92 (4);
1979 c. 196; Stats. 1979 s. 767.25;
1981 c. 20;
1983 a. 27;
1985 a. 29;
1987 a. 27,
37,
355,
413;
1989 a. 31,
212;
1991 a. 39;
1993 a. 481;
1995 a. 27 ss.
7101,
7102,
9126 (19);
1995 a. 201,
279,
404;
1997 a. 27,
35,
191; s. 13.93 (2) (c).
767.25 Annotation
A provision in a judgment as to education of children past the age of majority, inserted pursuant to stipulation of the parties, cannot later be challenged and can be enforced by contempt proceedings. Bliwas v. Bliwas, 47 W (2d) 635, 178 NW (2d) 35.
767.25 Annotation
Where parents each own 1/2 interest in future proceeds of real estate and state contributes to child support, court may order only noncustodial parent to pay child support in form of accumulating real estate lien in favor of state. State ex rel. v. Reible, 91 W (2d) 394, 283 NW (2d) 427 (Ct. App. 1979).
767.25 Annotation
Trial court abused its discretion by setting child support payments without considering needs of the children or father's ability to pay. Edwards v. Edwards, 97 W (2d) 111, 293 NW (2d) 160 (1980).
767.25 Annotation
Sub. (4) has retroactive effect. Behnke v. Behnke, 103 W (2d) 449, 309 NW (2d) 21 (Ct. App. 1981).
767.25 Annotation
Personal injury damage award to noncustodial spouse can be considered as change of circumstances justifying increased support. Sommer v. Sommer, 108 W (2d) 586, 323 NW (2d) 144 (Ct. App. 1982).
767.25 Annotation
Sub. (6) imposes interest on arrearages existing on July 2, 1983, as well as on those accruing afterward. Marriage of Greenwood v. Greenwood, 129 W (2d) 388, 385 NW (2d) 213 (Ct. App. 1986).
767.25 Annotation
Federal Supplemental Security Income may not be considered economic resource for purposes of computing child support obligation; however, seek-work order may be appropriate. Marriage of Langlois v. Langlois, 150 W (2d) 101, 441 NW (2d) 286 (Ct. App. 1989).
767.25 Annotation
Educational grants and loans, AFDC, and other child support are not economic resources for purposes of computing child support obligation. Marriage of Thibadeau v. Thibadeau, 150 W (2d) 109, 441 NW (2d) 281 (Ct. App. 1989).
767.25 Annotation
See note to 767.32, citing Marriage of Kuchenbecker v. Schultz, 151 W (2d) 868, 447 NW (2d) 80 (Ct. App. 1989).
767.25 Annotation
On request for modification under (1m), it was error for trial court to consider post-high school educational expenses in setting support; consideration of expenses incurred by child as adult is error. In re Marriage of Resong v. Vier, 157 W (2d) 382, 459 NW (2d) 591 (Ct. App. 1990).
767.25 Annotation
Divorce stipulation waiving or setting ceiling on child support and preventing modification is against public policy and will not be enforced. In re Marriage of Ondrasek v. Tenneson, 158 W (2d) 690, 462 NW (2d) 915 (Ct. App. 1990).
767.25 Annotation
Trial court's use of computer program to analyze financial evidence approved. In re Marriage of Bisone v. Bisone, 165 W (2d) 114, 477 NW (2d) 59 (Ct. App. 1991).
767.25 Annotation
Stepparent has no legal obligation to support a stepchild; under appropriate circumstances the theory of equitable estoppel may apply to cases involving child support. In re Marriage of Ulrich v. Cornell, 168 W (2d) 792, 484 NW (2d) 546 (1992).
767.25 Annotation
In joint legal custody situation the parent with primary physical custody may be ordered to pay child support. In re Marriage of Matz v. Matz, 166 W (2d) 326, 479 NW (2d) 245 (Ct. App. 1991).
767.25 Annotation
The absence of a mortgage obligation is relevant to the assessment of a party's economic circumstances, but does not translate into imputed income under the applicable administrative rule. In Marriage of Zimmerman v. Zimmerman, 169 W (2d) 516, 485 NW (2d) 294 (Ct. App. 1992).
767.25 Annotation
A support order against actual AFDC grants is prohibited by Thibadeau, but an order against earned income of one who also receives AFDC is not. In Support of B., L., T. & K. 171 W (2d) 617, 492 NW (2d) 350 (Ct. App. 1992).
767.25 Annotation
No matter how corporate income is labeled, a family court may pierce the corporate shield if it is convinced the obligor's intent is to avoid financial obligations. In re Marriage of Evjen v. Evjen, 171 W (2d) 677, 492 NW (2d) 360 (Ct. App. 1992).
767.25 Annotation
Parties' extrajudicial agreement that child support payments be discontinued was enforceable via the doctrine of equitable estoppel. Harms v. Harms, 174 W (2d) 780, 498 NW (2d) 229 (1993).
767.25 Annotation
Discussion of the "serial family payer" rule adopted under the percentage standards referred to in sub. (1). Brown v. Brown, 177 W (2d) 512, 503 NW (2d) 280 (Ct. App. 1993).
767.25 Annotation
The mandatory percentage standards for determining support do not allow for deferred payments. Kelly v. Hougham, 178 W (2d) 546, 504 NW (2d) 440 (Ct. App. 1993).
767.25 Annotation
An AFDC recipient assigns all rights to child support payments to the state; as such the payments may not be held in trust for the child under sub. (2). Paternity of Lachelle A.C. 180 W (2d) 708, 510 NW (2d) 718 (Ct. App. 1993).
767.25 Annotation
A lump sum separation benefit received upon termination of employment was properly considered income subject to the percentage standards for support. Gohde v. Gohde, 181 W (2d) 770, 512 NW (2d) 199 (Ct. App. 1993).
767.25 Annotation
In deciding not to apply the percentage standard, the court erred when it compared the parties available incomes after deducting the percentage amount from the payor's income but failing to consider the assumed contribution of the same percentage by the payee. Kjelstrum v. Kjelstrum, 181 W (2d) 973, 512 NW (2d) 264 (Ct. App. 1994).
767.25 Annotation
A trial court could may not set child support at zero, convert post-divorce income to marital property and order that income to be held in trust to be distributed to the child when AFDC benefits ended. Luna v. Luna, 183 W (2d) 20, 515 NW (2d) 480 (Ct. App. 1994).
767.25 Annotation
Parties are free to contract in a settlement agreement that the primary custodian will not have spending discretion over child support if the interests of the children and custodial parent are protected. Jacquart v. Jacquart, 183 W (2d) 372, 515 NW (2d) 539 (Ct. App. 1994).
767.25 Annotation
An asset and its income stream may not be counted both as an asset in the property division and as part of the payor's income from which support is paid. Maley v. Maley, 186 W (2d) 125, 519 NW (2d) 717 (Ct. App. 1994).
767.25 Annotation
Trust income which is income to the beneficiary under federal tax law is subject to a child support order regardless of whether a distribution is made to the beneficiary. Grohmann v. Grohmann, 189 W (2d) 532, 525 NW (2d) 261 (1995).
767.25 Annotation
A minimum fixed child support amount, rather than the percentage standard, based on the payor's "potential income" was appropriate where the court found the payor had a substantial potential to manipulate the amount of support. Doerr v. Doerr, 189 W (2d) 112, 525 NW (2d) 745 (Ct. App. 1994).
767.25 Annotation
The trial court may consider the amount of time a child is placed with the paying parent and the parent's second family in setting support. Molstad v. Molstad, 193 W (2d) 602, 535 NW (2d) 63 (Ct. App. 1995).
767.25 Annotation
The percentage standards may be used to generate future as well as present support. Paternity of Tukker M.O., 199 W (2d) 186, 544 NW (2d) 417 (1996).
767.25 Annotation
The percentage standards presumptively apply in the case of a high income payee absent the payer's showing of unfairness by the greater weight of the credible evidence. Luciani v. Montemurro-Luciani, 199 W (2d) 280, 544 NW (2d) 561 (1996).
767.25 Annotation
A court may consider earning capacity rather than actual earnings in determining child support and maintenance if it find's a spouse's job choice voluntary and unreasonable. Sellers v. Sellers, 201 W (2d) 578, 549 NW (2d) 481 (Ct. App. 1996).
767.25 Annotation
The fact that a party by deliberate conduct frustrates an accurate calculation of the party's income does not prevent the trial court from making the appropriate finding of fact. The court may make its findings based on the available evidence. Lellman v. Mott, 204 W (2d) 166, 554 NW (2d) 525 (Ct. App. 1996).
767.25 Annotation
The court did not abuse its discretion in ruling against a request in a high income payer case for an increase in support according to the percentage standards where the court believed the request was really a disguised claim for extra money to support the custodial parent's own lifestyle. Nelsen v. Candee, 205 W (2d) 625, 556 NW (2d) 789 (Ct. App. 1996).
767.25 Annotation
In certain cases, such as with military retired pay, an asset may be divided in the property division and its income stream considered as income in determining child support. Cook v. Cook, 208 W (2d) 166, 560 NW (2d) 246 (1997).
767.25 Annotation
When a noncustodial parent seeks to impose a trust on arrearages owed under a pre-August 1, 1987 support order, that parent must demonstrate that the trust is in the child's best interest and, when the custodial parent does not agree to the trust, that the primary custodian was unwilling to or incapable of managing the support money. Cameron v. Cameron, 209 W (2d) 88, 562 NW (2d) 126 (1997).
767.25 Annotation
Income disparity resulting from applying the percentage standards is only relevant if the payer can show inability to pay or that the income disparity will adversely affect the children or payer. Equalizing lifestyles between parents is not a support objective. The amount of discretionary income either parent will have to spend on their children is a secondary consideration. Raz v. Brown, 213 W (2d) 296, 570 NW (2d) 605 (Ct. App. 1997).
767.25 Annotation
The repayment to the payer spouse of a loan made by him to a company that he owned was a proper addition to the payer's income available for support. It was properly found to be deferred compensation which is included within the applicable definition of income. Raz v. Brown, 213 W (2d) 296, 570 NW (2d) 605 (Ct. App. 1997).
767.25 Annotation
A stipulation for child support with no time limit or opportunity for review was against public policy and the payer was not estopped form seeking a modification due to a material change in circumstances. Krieman v. Goldberg, 214 W (2d) 163, 571 NW (2d) 425 (1997).
767.25 Annotation
Absent a finding that an individual partner has authority to unilaterally control a partnership asset, partnership assets will be imputed as available income only in accordance with the partnership agreement. Health insurance premiums paid by a partnership are included in the partners income available for child support. Weis v. Weis, 215 W (2d) 135, 572 NW (2d) 123 (Ct. App. 1997).
767.25 Annotation
The trial court properly exercised its discretion under sub. (1m) (i) by excluding from the application of the percentage standards the value of nonassignable trips received by the payor spouse as employment bonuses although the trips constituted taxable income. State v. Wall, 215 W (2d) 591, 573 NW (2d) 862 (Ct. App. 1997).
767.25 Annotation
Sub. (6) makes interest on child support arrearages mandatory. A trial court has no discretion in awarding interest, even if it determines that to do so would be inequitable. Douglas County Child Support v. Fisher, 200 W (2d) 807, 547 NW (2d) 801 (Ct. App. 1996).
767.25 Annotation
Federal preemption doctrine does not prohibit states from requiring payment of child support out of veterans' disability benefits. Rose v. Rose, 481 US 619 (1987).
767.25 Annotation
No-fault divorce: Tax consequences of support, maintenance and property settlement. Case, 1977 WBB 11.
767.25 Annotation
A practitioner's approach to child support. Bailey. WBB June 1987.
767.25 Annotation
HSS 80: New Rules for Child Support Obligations. Hickey. Wis. Law. April, 1995.
767.25 Annotation
Which Came First? The Serial Family Payer Formula. Stansbury. Wis. Law. April, 1995.
767.25 Annotation
See also notes to s. 767.32 for decisions regarding postjudgment modifications.
767.25 Annotation
See also Wisconsin Administrative Code Citations published in the Wisconsin Administrative Code for a list of citations to cases citing ch. HSS 80, the percentage standards developed by the Department of Health and Social Services.
767.253
767.253
Seek-work orders. 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), the court may order either or both parents of the child to seek employment or participate in an employment or training program.
