767.078(1)(c)
(c) An order is not required under
par. (b) if the court makes written findings that there is good cause for not issuing the order.
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).
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 Wis. 2d 474,
555 N.W.2d 152 (Ct. App. 1996).
767.08
767.08
Actions to compel support. 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 blood, marriage or adoption.
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)(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
Discussion of factors required to find a party estopped from seeking a revision of an order. Nichols v. Nichols,
162 Wis. 2d 96,
469 N.W.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)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.
767.082
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. 767.085(1)
(1)
Petition, contents. Except as otherwise provided, in any action affecting the family, the petition shall state:
767.085(1)(a)
(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.
767.085(1)(b)
(b) The name, 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.
767.085(1)(c)
(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), that the marriage is irretrievably broken, or, alternatively, that both parties agree that the marriage is irretrievably broken.
767.085(1)(cm)
(cm) If the relief requested is a legal separation and the parties have filed a petition under
s. 767.12 (3), that both parties agree that the marital relationship is broken.
767.085(1)(d)
(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 either party was previously married, and if so the manner in which such marriage was terminated, and if terminated by court judgment, the name of the court in which the judgment was granted and the time and place the judgment was granted, if known.
767.085(1)(e)
(e) Whether the parties have entered into any written agreements as to support, legal custody and physical placement of the children, maintenance of either party, and property division; and if so, the written agreement shall be attached.
767.085(1)(f)
(f) The relief requested. When the relief requested is a legal separation, the petition shall state the specific reason for requesting such relief.
767.085(1)(h)
(h) That during the pendency of the action, the parties are prohibited from, and may be held in contempt of court for, harassing, intimidating, physically abusing or imposing any restraint on the personal liberty of the other party or a minor child of either party.
767.085(1)(i)
(i) If the action is one under
s. 767.02 (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 family 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.
767.085(1)(j)
(j) Unless the action is one under
s. 767.02 (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 family court commissioner:
767.085(1)(j)1.
1. 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.
767.085(1)(j)2.
2. Removing a minor child of the parties from the state for more than 90 consecutive days.
767.085(1)(j)3.
3. Concealing a minor child of the parties from the other party.
767.085(2)(a)(a) Either or both of the parties to the marriage may initiate the action. The party initiating the action or his or her attorney shall sign the petition. Both parties or their respective attorneys shall sign a joint petition.
767.085(2)(b)
(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 a court may consider under
s. 767.25 (1m).
767.085(2m)(a)(a) Except as provided in
par. (b), if only one party initiates the action and the parties have minor children, the summons served on the other party:
767.085(2m)(a)2.
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 a court may consider under
s. 767.25 (1m).
767.085(2m)(b)
(b) If service is by publication, notification regarding
s. 948.31 may consist of references to the statute numbers and titles, and information relating to the percentage standard and the factors need not be provided.
767.085(3)
(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 family 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.
767.085(4)
(4) Defenses abolished. Previously existing defenses to divorce and legal separation, including but not limited to condonation, connivance, collusion, recrimination, insanity, and lapse of time, are abolished.
767.085 Annotation
Prenuptial and postnuptial agreements. Loeb, WBB March 1981.
767.087
767.087
Prohibited acts during pendency of action. 767.087(1)(1) In an action affecting the family, the petitioner upon filing the petition, the joint petitioners upon filing the joint petition and the respondent upon service of the petition are prohibited from doing any of the following:
767.087(1)(a)
(a) Harassing, intimidating, physically abusing or imposing any restraint on the personal liberty of the other party or a minor child of either of the parties.
767.087(1)(b)
(b) If the action is one under
s. 767.02 (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 family 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.
767.087(1)(c)
(c) Unless the action is one under
s. 767.02 (1) (g) or
(h), without the consent of the other party or an order of the court or family 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.
767.087(2)
(2) 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 family court commissioner orders otherwise.
767.087(3)(a)(a) Except as provided in
par. (b), a party who violates any provision of
sub. (1) may be proceeded against under
ch. 785 for contempt of court.
767.087(3)(b)
(b) An act in violation of
sub. (1) (c) is not a contempt of court if the court finds that the action was taken to protect a party or a minor child of the parties from physical abuse by the other party and that there was no reasonable opportunity under the circumstances for the party to obtain an order under
sub. (2) authorizing the action.
767.087 History
History: 1993 a. 78.
767.09
767.09
Power of court in divorce and legal separation actions. 767.09(1)(1) When a party requests a legal separation rather than a decree of divorce, the court shall grant the decree in that form unless the other party requests a divorce, in which case the court shall hear and determine which decree shall be granted. A decree of separation shall provide that in case of a reconciliation at any time thereafter, the parties may apply for a revocation of the judgment. Upon such application the court shall make such orders as may be just and reasonable.
767.09(2)
(2) By stipulation of both parties, or upon motion of either party not earlier than one year after entry of a decree of legal separation, the court shall convert the decree to a decree of divorce.
767.09 History
History: 1977 c. 105;
1979 c. 32 s.
50; Stats. 1979 s. 767.09.
767.09 Annotation
Factors to be considered in ordering a divorce where the plaintiff has asked for only a separation are discussed. Husting v. Husting,
54 Wis. 2d 87,
194 N.W.2d 801.
767.09 Annotation
If the requirements of sub. (2) are met, conversion to a divorce decree is mandatory. Bartz v. Bartz,
153 Wis. 2d 756,
452 N.W.2d 160 (Ct. App. 1989).
767.10
767.10
Stipulation and property division. 767.10(1)
(1) 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 or for legal custody and physical placement, in case a divorce or legal separation is granted or a marriage annulled.
767.10(2)(a)(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 or
767.51.
767.10(2)(b)
(b) A court may not approve a stipulation for a division of property that assigns substantially all of the property to one of the parties in the action if the other party in the action is in the process of applying for medical assistance under
subch. IV of ch. 49 or if the court determines that it can be reasonably anticipated that the other party in the action will apply for medical assistance under
subch. IV of ch. 49 within 30 months of the stipulation.
767.10 Annotation
A trial court is not required to give effect to a property division agreement entered into before divorce proceedings are instituted. It should make its own determination of whether the agreement adequately provides for the parties. Ray v. Ray,
57 Wis. 2d 77,
203 N.W.2d 724.
767.10 Annotation
Legislative reduction of the age of majority to 18 years in effect emancipated children of the divorced father who had reached that age and terminated both his parental rights and his legal obligation to provide support under the divorce judgment, since parental support past the age of majority is not a concept accepted in Wisconsin. Schmitz v. Schmitz,
70 Wis. 2d 882,
236 N.W.2d 657.
