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 Wis. 2d 372,
515 N.W.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 Wis. 2d 125,
519 N.W.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 Wis. 2d 532,
525 N.W.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 Wis. 2d 112,
525 N.W.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 Wis. 2d 602,
535 N.W.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 Wis. 2d 186,
544 N.W.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 Wis. 2d 280,
544 N.W.2d 561 (1996).
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 Wis. 2d 807,
547 N.W.2d 801 (Ct. App. 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 parent's job choice voluntary and unreasonable. Sellers v. Sellers,
201 Wis. 2d 578,
549 N.W.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 Wis. 2d 166,
554 N.W.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 Wis. 2d 632,
556 N.W.2d 789 (Ct. App. 1996).
767.25 Annotation
In certain cases, such as with military retirement 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 Wis. 2d 166,
560 N.W.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 Wis. 2d 88,
562 N.W.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 Wis. 2d 296,
570 N.W.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 Wis. 2d 296,
570 N.W.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 Wis. 2d 163,
571 N.W.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 Wis. 2d 135,
572 N.W.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 Wis. 2d 591,
573 N.W.2d 862 (Ct. App. 1997).
767.25 Annotation
In concluding that a deviation from the percentage standards is warranted, all listed factors need not be applied. State v. Alonzo R.
230 Wis. 2d 17,
601 N.W.2d 328 (Ct. App. 1999).
767.25 Annotation
The percentage standards under sub. (1j) include the shared-time payer formula in DWD 40.04(2), Wis. Adm. Code, as well as the straight percentage standards in DWD 40.03 (1). The shared-time formula applies if the payer will be assuming costs in proportion to the number of days the court is ordering placement with the parent. Randall v. Randall, 2000 WI App 98,
235 Wis. 2d 1,
612 N.W.2d 737.
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 U.S. 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 and HFS 80, the percentage standards developed by the Department of Health and Family 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), the court may order either or both parents of the child to seek employment or participate in an employment or training program.
767.254
767.254
Unemployed teenage parent. 767.254(1)
(1) In this section, "unemployed teenage parent" means a parent who satisfies all of the following criteria:
767.254(1)(d)
(d) Would be ordered to make payments for the support of a child but for
par. (c).
767.254(2)
(2) In an action for revision of a judgment or order providing for child support 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), the court shall order an unemployed teenage parent to do one or more of the following:
767.254(2)(d)
(d) Pursue or continue to pursue an accredited course of instruction leading to the acquisition of a high school diploma or its equivalent if the unemployed teenage parent has not completed a recognized high school course of study or its equivalent, except that the court may not order the unemployed teenage parent to pursue instruction if the instruction requires the expenditure of funds by the unemployed teenage parent other than normal transportation and personal expenses.
767.255(1)(1) Upon every judgment of annulment, divorce or legal separation, or in rendering a judgment in an action under
s. 767.02 (1) (h), the court shall divide the property of the parties and divest and transfer the title of any such property accordingly. A certified copy of the portion of the judgment that affects title to real estate shall be recorded in the office of the register of deeds of the county in which the lands so affected are situated. The court may protect and promote the best interests of the children by setting aside a portion of the property of the parties in a separate fund or trust for the support, maintenance, education and general welfare of any minor children of the parties.
767.255(2)(a)(a) Except as provided in
par. (b), any property shown to have been acquired by either party prior to or during the course of the marriage in any of the following ways shall remain the property of that party and is not subject to a property division under this section:
767.255(2)(a)2.
2. By reason of the death of another, including, but not limited to, life insurance proceeds; payments made under a deferred employment benefit plan, as defined in
s. 766.01 (4) (a), or an individual retirement account; and property acquired by right of survivorship, by a trust distribution, by bequest or inheritance or by a payable on death or a transfer on death arrangement under
ch. 705.
767.255(2)(b)
(b) Paragraph (a) does not apply if the court finds that refusal to divide the property will create a hardship on the other party or on the children of the marriage. If the court makes such a finding, the court may divest the party of the property in a fair and equitable manner.
767.255(3)
(3) The court shall presume that all property not described in
sub. (2) (a) is to be divided equally between the parties, but may alter this distribution without regard to marital misconduct after considering all of the following:
767.255(3)(b)
(b) The property brought to the marriage by each party.
767.255(3)(c)
(c) Whether one of the parties has substantial assets not subject to division by the court.
767.255(3)(d)
(d) The contribution of each party to the marriage, giving appropriate economic value to each party's contribution in homemaking and child care services.
767.255(3)(e)
(e) The age and physical and emotional health of the parties.
767.255(3)(f)
(f) The contribution by one party to the education, training or increased earning power of the other.
767.255(3)(g)
(g) The earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage.
767.255(3)(h)
(h) The desirability of awarding the family home or the right to live therein for a reasonable period to the party having physical placement for the greater period of time.
767.255(3)(i)
(i) The amount and duration of an order under
s. 767.26 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.
767.255(3)(j)
(j) Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests.
767.255(3)(L)
(L) Any written agreement made by the parties before or during the marriage concerning any arrangement for property distribution; such agreements shall be binding upon the court except that no such agreement shall be binding where the terms of the agreement are inequitable as to either party. The court shall presume any such agreement to be equitable as to both parties.
767.255(3)(m)
(m) Such other factors as the court may in each individual case determine to be relevant.
767.255 Note
NOTE: See notes in
1985 Wis. Act 37, marital property trailer bill.
767.255 Annotation
Accounts receivable of a medical clinic in which the husband was a partner were properly viewed by the trial court as salary. Johnson v. Johnson,
78 Wis. 2d 137,
254 N.W.2d 198.
767.255 Annotation
A service-connected disability pension is to be considered as earned income and not as an asset to be divided between the parties. Leighton v. Leighton,
81 Wis. 2d 620,
261 N.W.2d 457.
767.255 Annotation
Support of stepchildren is a relevant factor in dividing marital property. Fuerst v. Fuerst,
93 Wis. 2d 121,
286 N.W.2d 861 (Ct. App. 1979).
767.255 Annotation
The trial court did not exercise required discretion in valuing a pension fund. Heatwole v. Heatwole,
103 Wis. 2d 613,
309 N.W.2d 380 (Ct. App. 1980).
767.255 Annotation
Compensation for a person who supports a spouse while the spouse is in school can be achieved through both property division and maintenance payments. Lundberg v. Lundberg,
107 Wis. 2d 1,
318 N.W.2d 918 (1982).
767.255 Annotation
A federal pension in lieu of social security must be included in a marital property division. Mack v. Mack,
108 Wis. 2d 604,
323 N.W.2d 153 (Ct. App. 1982).
767.255 Annotation
Unless a divorce decree specifically terminates a spouse as the beneficiary of a life insurance policy and the insurance company is notified, the spouse's beneficiary status is not affected by the divorce decree. Bersch v. VanKleeck,
112 Wis. 2d 594,
334 N.W.2d 114 (1983).
767.255 Annotation
The trial court may consider a cross-purchase formula in a partnership agreement in determining the value of a marital estate, including professional goodwill. Lewis v. Lewis,
113 Wis. 2d 172,
336 N.W.2d 171 (Ct. App. 1983).
767.255 Annotation
A lien on real estate awarded in a divorce judgment was a mortgage, not a judgment lien, even though the term "mortgage" was not used in the court order. Wozniak v. Wozniak,
121 Wis. 2d 330,
359 N.W.2d 147 (1984).
767.255 Annotation
This section does not mandatorily require judge to terminate joint tenancy. Lutzke v. Lutzke,
122 Wis. 2d 24,
361 N.W.2d 640 (1985).
767.255 Annotation
Use of gift money to buy a home as joint tenants changed the character of the money from separate property to marital property. Weiss v. Weiss,
122 Wis. 2d 688,
365 N.W.2d 608 (Ct. App. 1985). See also Zirngibl v. Zirngibl,
165 Wis. 2d 130,
477 N.W.2d 637 (Ct. App. 1991).
767.255 Annotation
A prenuptial agreement entered in 1973 was enforceable and equitable in a divorce in 1982. Hengel v. Hengel,
122 Wis. 2d 737,
365 N.W.2d 16 (Ct. App. 1985).
767.255 Annotation
A premarital agreement intended to apply at death was not applicable to a divorce. Levy v. Levy,
130 Wis. 2d 523,
388 N.W.2d 170 (1986).
767.255 Annotation
Whether property agreements are inequitable under s. 767.255 (11) [now (3) (L)] is discussed. Button v. Button,
131 Wis. 2d 84,
388 N.W.2d 546 (1986).
767.255 Annotation
A premarital agreement was inequitable because the parties did not fairly and reasonably disclose assets or have independent knowledge of one another's financial status. Schumacher v. Schumacher,
131 Wis. 2d 332,
388 N.W.2d 912 (1986).
767.255 Annotation
A personal injury claim for medical malpractice is property subject to division. Richardson v. Richardson,
139 Wis. 2d 778,
407 N.W.2d 231 (1987).
767.255 Annotation
The trial court may consider the former inherited status of divisible property though it has lost exempt status through commingling. Schwartz v. Linders,
145 Wis. 2d 258,
426 N.W.2d 97 (Ct. App. 1988).
767.255 Annotation
Increase in the value of inherited property attributable to the non-owning spouse's efforts is divisible property. It is no t necessary for the non-owning spouse to show that a failure to divide the asset will result in hardship to him or her. Haldemann v. Haldemann,
145 Wis. 2d 296,
426 N.W.2d 107 (Ct. App. 1988).
767.255 Annotation
Chapter 766, the Marital Property Act, does not supplant divorce property division provisions. Kuhlman v. Kuhlman,
146 Wis. 2d 588,
432 N.W.2d 295 (Ct. App. 1988).
767.255 Annotation
Gifted and inherited property is subject to division in cases of hardship. A party seeking division bears the burden of showing that failure to divide will result in financial privation. Popp v. Popp,
146 Wis. 2d 778,
432 N.W.2d 600 (Ct. App. 1988).
767.255 Annotation
A presumption exists that an injured party is entitled to all future payments under a structured settlement, but they are subject to s. 767.255 factors. Krebs v. Krebs,
148 Wis. 2d 51,
435 N.W.2d 240 (1989).
767.255 Annotation
A property division may be modified under s. 806.07. However the supremacy clause prevents a division to be modified after a debt thereunder is discharged in bankruptcy. Spankowski v. Spankowski,
172 Wis. 2d 285,
493 N.W.2d 737 (Ct. App. 1992).
767.255 Annotation
Where gifted or inherited property has appreciated in value during the marriage due to the efforts of the spouses, the appreciation is a part of the marital estate. Schorer v. Schorer,
177 Wis. 2d 387,
501 N.W.2d 916 (Ct. App. 1993).
