767.26 Annotation
The federal tax consequences of divorce. Meldman, Ryan, 57 MLR 229.
767.26 Annotation
No-fault divorce: Tax consequences of support, maintenance and property settlement. Case, 1977 WBB 11.
767.26 Annotation
See also notes to s. 767.32 for decisions regarding postjudgment modifications.
767.261
767.261
Family support. The court may make a financial order designated "family support" as a substitute for child support orders under
s. 767.25 and maintenance payment orders under
s. 767.26. A party ordered to pay family support under this section shall pay simple interest at the rate of 1% 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% per month shall accrue on the total amount of child support in arrears, if any. Interest under this section 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 family support as follows:
767.261(1)
(1) First, to payment of family support due within the calendar month during which the payment is received.
767.261(2)
(2) Second, to payment of unpaid family support due before the payment is received.
767.261(3)
(3) Third, to payment of interest accruing on unpaid family support.
767.261 Annotation
The offset of excess child support payments against arrears in alimony may be permissible. Anderson v. Anderson,
82 Wis. 2d 115,
261 N.W.2d 817.
767.262
767.262
Award of attorney fees. 767.262(1)
(1) The court, after considering the financial resources of both parties, may do the following:
767.262(1)(a)
(a) Order either party to pay a reasonable amount for the cost to the other party of maintaining or responding to an action affecting the family and for attorney fees to either party.
767.262(1)(b)
(b) If one party receives services under
s. 49.22 or services provided by the state or county as a result of an assignment of income under
s. 49.19, order the other party to pay any fee chargeable under
s. 49.22 (6) or the cost of services rendered by the state or county under
s. 49.19.
767.262(2)
(2) Any amount ordered under
sub. (1) may include sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment.
767.262(3)
(3) The court may order that the amount be paid directly to the attorney or to the state or the county providing services under
s. 49.22 or
49.19, who may enforce the order in its name.
767.262(4)(a)(a) Except as provided in
par. (b), no court may order payment of costs under this section by the state or any county which may be a party to the action.
767.262(4)(b)
(b) The court may order payment of costs under this section by the department or its designee, whichever is appropriate, in an action in which the court finds that the record of payments and arrearages kept by the department or its designee is substantially incorrect and that the department or its designee has failed to correct the record within 30 days after having received information that the court determines is sufficient for making the correction.
767.262 Annotation
An allowance of $2,300 as a contribution to the wife's attorney's fees incurred in the litigation was not excessive where it was obvious that the trial court reasonably believed that a considerable portion of the attorney fee liability was attributable to the husband who, represented by 4 successive attorneys or firms, caused a needlessly protracted trial, made numerous defense motions, and prosecuted a meritless appeal, an element which, together with others, constituted a firm basis for fixing such contribution. Martin v. Martin,
46 Wis. 2d 218,
174 N.W.2d 468.
767.262 Annotation
An allowance of $1,000 attorneys fees on appeal, after the award of a generous property settlement, constituted a penalty for appealing. Molloy v. Molloy,
46 Wis. 2d 682,
176 N.W.2d 292.
767.262 Annotation
Attorney fees on appeal depend on need, ability to pay and whether there is reasonable ground for the appeal. Klipstein v. Klipstein,
47 Wis. 2d 314,
177 N.W.2d 57.
767.262 Annotation
A circuit court does not have subject matter jurisdiction in a divorce action to determine attorney fees between an attorney and client that the attorney continues to represent in the divorce action. Stasey v. Stasey,
168 Wis. 2d 37,
483 N.W.2d 221 (1992).
767.262 Annotation
Nonmarital assets may be considered in determining whether to order one party to contribute to the other's fees. Doerr v. Doerr,
189 Wis. 2d 112,
525 N.W.2d 745 (Ct. App. 1994).
767.263
767.263
Notice of change of employer, change of address and change in ability to pay; other information. 767.263(1)(1) Each order for child support, family support or maintenance payments shall include an order that the payer and payee notify the county child support agency under
s. 59.53 (5) of any change of address within 10 business days of such change. Each order for child support, family support or maintenance payments shall also include an order that the payer notify the county child support agency under
s. 59.53 (5), within 10 business days, of any change of employer and of any substantial change in the amount of his or her income such that his or her ability to pay child support, family support or maintenance is affected. The order shall also include a statement that clarifies that notification of any substantial change in the amount of the payer's income will not result in a change of the order unless a revision of the order is sought.
767.263(2)
(2) When an order is entered under
sub. (1), each party shall provide to the county child support agency under
s. 59.53 (5) his or her social security number, residential and mailing addresses, telephone number, operator's license number and the name, address and telephone number of his or her employer. A party shall advise the county child support agency under
s. 59.53 (5) of any change in the information provided under this subsection within 10 business days after the change.
767.263 History
History: 1977 c. 105;
1979 c. 32 s.
50; Stats. 1979 s. 767.263;
1989 a. 212;
1995 a. 279;
1997 a. 27,
191.
767.265
767.265
Income withholding. 767.265(1)(1) Each order for child support under this chapter, for maintenance payments under
s. 767.23 or
767.26, for family support under this chapter, for costs ordered under
s. 767.51 (3) or
767.62 (4), for support by a spouse under
s. 767.02 (1) (f), for maintenance payments under
s. 767.02 (1) (g) or for the annual receiving and disbursing fee under
s. 767.29 (1) (d), each order for a revision in a judgment or order with respect to child support, maintenance or family support payments under
s. 767.32, each stipulation approved by the court or the family court commissioner for child support under this chapter and each order for child or spousal support entered under
s. 948.22 (7) constitutes an assignment of all commissions, earnings, salaries, wages, pension benefits, benefits under
ch. 102 or
108, lottery prizes that are payable in instalments and other money due or to be due in the future to the department or its designee. The assignment shall be for an amount sufficient to ensure payment under the order or stipulation and to pay any arrearages due at a periodic rate not to exceed 50% of the amount of support due under the order or stipulation so long as the addition of the amount toward arrearages does not leave the party at an income below the poverty line established under
42 USC 9902 (2).
767.265(1m)
(1m) If a party's current obligation to pay maintenance, child support, spousal support, family support or the annual receiving and disbursing fee terminates but the party has an arrearage in the payment of one or more of those payments, the assignment shall continue in effect, in an amount up to the amount of the assignment before the party's current obligation terminated, until the arrearage is paid in full.
767.265(2h)
(2h) If a court-ordered assignment, including the assignment specified under
sub. (1) for the payment of any arrearages due, does not require immediately effective withholding and a payer fails to make a required maintenance, child support, spousal support, family support or annual receiving and disbursing fee payment within 10 days after its due date, within 20 days after the payment's due date the court, family court commissioner or county child support agency under
s. 59.53 (5) shall cause the assignment to go into effect by providing notice of the assignment in the manner provided under
sub. (2r) and shall send a notice by regular mail to the last-known address of the payer. The notice sent to the payer shall inform the payer that an assignment is in effect and that the payer may, within a 10-day period, by motion request a hearing on the issue of whether the assignment should remain in effect. The court or family court commissioner shall hold a hearing requested under this subsection within 10 working days after the date of the request. If at the hearing the payer establishes that the assignment is not proper because of a mistake of fact, the court or family court commissioner may direct that the assignment be withdrawn. Either party may, within 15 working days after the date of a decision by a family court commissioner under this subsection, seek review of the decision by the court with jurisdiction over the action.
767.265(2m)(a)1.1. An obligation to pay unpaid fees under
s. 767.29 (1) (dm) 1m. constitutes an assignment of all commissions, earnings, salaries, wages, pension benefits, benefits under
ch. 102 or
108, lottery prizes that are payable in instalments and other money due or to be due in the future to the department or its designee.
767.265(2m)(a)2.
2. An obligation to pay unpaid fees under
s. 767.29 (1) (dm) 2m. constitutes an assignment of all commissions, earnings, salaries, wages, pension benefits, benefits under
ch. 102 or
108, lottery prizes that are payable in instalments and other money due or to be due in the future to the clerk of court to whom the fees are owed, or to his or her successor.
767.265(2m)(b)
(b) The county child support agency under
s. 59.53 (5) may cause an assignment under
par. (a) to go into effect by providing notice of the assignment in the manner provided under
sub. (2r) and sending a notice by regular mail to the last-known address of the payer. The notice sent to the payer shall inform the payer that an assignment is in effect and that the payer may, within a 10-day period, by motion request a hearing on the issue of whether the assignment should remain in effect. The court or family court commissioner shall hold a hearing requested under this paragraph within 10 working days after the date of the request. If at the hearing the payer establishes that the assignment is not proper because of a mistake of fact, the court or family court commissioner may direct that the assignment be withdrawn. The payer or the county child support agency may, within 15 working days after the date of a decision by a family court commissioner under this paragraph, seek review of the decision by the court with jurisdiction over the action.
767.265(2r)
(2r) Upon entry of each order for child support, maintenance, family support, support by a spouse or the annual receiving and disbursing fee, and upon approval of each stipulation for child support, unless the court finds that income withholding is likely to cause the payer irreparable harm or unless
s. 767.267 applies, the court, family court commissioner or county child support agency under
s. 59.53 (5) shall provide notice of the assignment by regular mail or by facsimile machine, as defined in
s. 134.72 (1) (a), or other electronic means to the last-known address of the person from whom the payer receives or will receive money. The notice shall provide that the amount withheld may not exceed the maximum amount that is subject to garnishment under
15 USC 1673 (b) (2). If the department or its designee, whichever is appropriate, does not receive the money from the person notified, the court, family court commissioner or county child support agency under
s. 59.53 (5) shall provide notice of the assignment to any other person from whom the payer receives or will receive money. Notice under this subsection may be a notice of the court, a copy of the executed assignment or a copy of that part of the court order directing payment.
767.265(3h)
(3h) A person who receives notice of assignment under this section or
s. 767.23 (1) (L) or
767.25 (4m) (c) or similar laws of another state shall withhold the amount specified in the notice from any money that person pays to the payer later than one week after receipt of notice of assignment. Within 5 days after the day the person pays money to the payer, the person shall send the amount withheld to the department or its designee, whichever is appropriate, or, in the case of an amount ordered withheld for health care expenses, to the appropriate health care insurer, provider or plan. With each payment sent to the department or its designee, the person from whom the payer receives money shall report to the department or its designee the payer's gross income or other gross amount from which the payment was withheld. Except as provided in
sub. (3m), for each payment sent to the department or its designee, the person from whom the payer receives money shall receive an amount equal to the person's necessary disbursements, not to exceed $3, which shall be deducted from the money to be paid to the payer.
Section 241.09 does not apply to assignments under this section.
767.265(3m)
(3m) Benefits under
ch. 108 may be assigned and withheld only in the manner provided in
s. 108.13 (4). Any order to withhold benefits under
ch. 108 may be for a percentage of benefits payable or for a fixed sum, or for a combination of both in the alternative by requiring the withholding of the greater or lesser of either a percentage of benefits payable or a fixed sum. When money is to be withheld from these benefits, no fee may be deducted from the amount withheld and no fine may be levied for failure to withhold the money.
767.265(4)
(4) A withholding assignment or order under this section or
s. 767.23 (1) (L) or
767.25 (4m) (c) has priority over any other assignment, garnishment or similar legal process under state law.
767.265(6)(a)(a) Except as provided in
sub. (3m), if after receipt of notice of assignment the person from whom the payer receives money fails to withhold the money or send the money to the department or its designee or the appropriate health care insurer, provider or plan as provided in this section or
s. 767.23 (1) (L) or
767.25 (4m) (c), the person may be proceeded against under the principal action under
ch. 785 for contempt of court or may be proceeded against under
ch. 778 and be required to forfeit not less than $50 nor more than an amount, if the amount exceeds $50, that is equal to 1% of the amount not withheld or sent.
767.265(6)(b)
(b) If an employer who receives an assignment under this section or
s. 767.23 (1) (L) or
767.25 (4m) (c) fails to notify the department or its designee, whichever is appropriate, within 10 days after an employee is terminated or otherwise temporarily or permanently leaves employment, the employer may be proceeded against under the principal action under
ch. 785 for contempt of court.
767.265(6)(c)
(c) No employer may use an assignment under this section or
s. 767.23 (1) (L) or
767.25 (4m) (c) as a basis for the denial of employment to a person, the discharge of an employee or any disciplinary action against an employee. An employer who denies employment or discharges or disciplines an employee in violation of this paragraph may be fined not more than $500 and may be required to make full restitution to the aggrieved person, including reinstatement and back pay. Except as provided in this paragraph, restitution shall be in accordance with
s. 973.20. An aggrieved person may apply to the district attorney or to the department for enforcement of this paragraph.
767.265(6)(d)
(d) Compliance by the person from whom the payer receives money with the order operates as a discharge of the person's liability to the payer as to that portion of the payer's commission, earnings, salaries, wages, benefits or other money so affected.
767.265(6m)
(6m) A county child support agency under
s. 59.53 (5) may convert a support amount in an order for income withholding under this section that is expressed as a percentage of income to the equivalent sum certain amount for purposes of enforcing a child support order in another state under
subch. V or
VI of ch. 769. Nothing in this subsection authorizes a change, or may be construed to change, the support obligation specified in the underlying child support order.
767.265(7)
(7) A person who receives more than one notice of assignment under
sub. (3h) may send all money withheld to the department or its designee, whichever is appropriate, in a combined payment, accompanied by any information the department or its designee requires.
767.265(7m)(b)
(b) If after an assignment is in effect the payer's employer changes its payroll period, or the payer changes employers and the new employer's payroll period is different from the former employer's payroll period, the clerk of court may, unless otherwise ordered by a judge, amend the withholding assignment or order so that all of the following apply:
767.265(7m)(b)1.
1. The withholding frequency corresponds to the new payroll period.
767.265(7m)(b)2.
2. The amounts to be withheld reflect the adjustment to the withholding frequency.
767.265(7m)(c)
(c) The clerk of court shall provide notice of the amended withholding assignment or order by regular mail to the payer's employer and to the payer.
767.265(8)
(8) In this section, "employer" includes the state and its political subdivisions.
767.265 History
History: 1971 c. 110;
1975 c. 94 s.
91 (3);
1975 c. 199;
1977 c. 105;
1979 c. 32 ss.
50,
92 (4);
1979 c. 196,
221; Stats. 1979 s. 767.265;
1981 c. 20,
186;
1983 a. 27,
384;
1985 a. 29;
1987 a. 38 s.
136;
1987 a. 332 s.
64;
1987 a. 398,
403;
1989 a. 31,
56,
212,
336;
1991 a. 287;
1993 a. 16,
326,
389,
481;
1995 a. 27 s.
9130 (4);
1995 a. 279,
404;
1997 a. 27,
191;
1999 a. 9.
767.265 Annotation
The maximum amount subject to assignment to collect an arrearage is 50% of the support currently due. A 25% wage assignment for current support limits an assignment for arrearages to an additional 12.5% of wages. Schnetzer v. Schnetzer,
174 Wis. 2d 458,
497 N.W.2d 772 (Ct. App. 1993).
767.265 Annotation
The assignment under sub. (1) does not require earnings to be withheld and therefore is not a garnishment subject to federal restrictions. Carpenter v. Mumaw,
230 Wis. 2d 384,
602 N.W.2d 536 (Ct. App. 1999).
767.265 Annotation
Mandatory wage assignment provisions of this section are constitutional. 68 Atty. Gen. 106.
767.266
767.266
Effect on transfers at death. 767.266(1)
(1)
Revocation of death provisions in marital property agreement. Unless the judgment provides otherwise, a judgment of annulment, divorce or legal separation revokes a provision in a marital property agreement under
s. 766.58 that provides for any of the following:
767.266(1)(a)
(a) That, upon the death of either spouse, any of either or both spouses' property, including after-acquired property, passes without probate to a designated person, trust or other entity by nontestamentary disposition.
767.266(1)(b)
(b) That one or both spouses will make a particular disposition in a will or other governing instrument, as defined in
s. 854.01.
767.266(2)
(2) Revocation of revocable transfers at death. Unless
sub. (1) applies, revocation of revocable transfers at death by a former spouse to the other former spouse, or to relatives of the other former spouse, under an instrument executed before the judgment of annulment, divorce or legal separation is governed by
s. 854.15.
767.266 History
History: 1991 a. 301;
1997 a. 188.
767.266 Note
NOTE: 1991 Wis. Act 301, which affected this section, contains extensive legislative council notes.
767.267(1)(1) If the court or the family court commissioner determines that income withholding under
s. 767.265 is inapplicable, ineffective or insufficient to ensure payment under an order or stipulation specified in
s. 767.265 (1), or that income withholding under
s. 767.25 (4m) (c) is inapplicable, ineffective or insufficient to ensure payment of a child's health care expenses, including payment of health insurance premiums, ordered under
s. 767.25 (4m) [or
767.51 (3m) ], the court or family court commissioner may require the payer to identify or establish a deposit account, owned in whole or in part by the payer, that allows for periodic transfers of funds and to file with the financial institution at which the account is located an authorization for transfer from the account to the department or its designee, whichever is appropriate. The authorization shall be provided on a standard form approved by the court and shall specify the frequency and the amount of transfer, sufficient to meet the payer's obligation under the order or stipulation, as required by the court or family court commissioner. The authorization shall include the payer's consent for the financial institution or an officer, employee or agent of the financial institution to disclose information to the court, family court commissioner, county child support agency under
s. 59.53 (5), department or department's designee regarding the account for which the payer has executed the authorization for transfer.
Effective date note
NOTE: Section 767.51 (3m) was repealed by
1999 Wis. Act 9, eff. 5-1-00. Corrective legislation is pending.
767.267(2)
(2) A financial institution that receives an authorization for transfer under
sub. (1) shall transfer the amounts as specified in the authorization or shall transfer the amount available for transfer if at a time of transfer that amount is less than the amount specified in the authorization. The financial institution may accomplish the transfer by any lawful means, including payment by check, subject to the terms of the account. The financial institution may deduct from the payer's account for each transfer its usual fee for such fund transfers. If the account is closed or if no funds are available at a time of transfer, the financial institution shall notify the county child support agency under
s. 59.53 (5) or the department or its designee, whichever is appropriate, within 10 days after the date on which the funds should have been transferred.
767.267(3)
(3) An authorization for transfer under
sub. (1) has priority over any other authorization for transfer and over an assignment, garnishment or similar legal process under state law or the laws of another state.
767.267(4)
(4) An authorization for transfer under
sub. (1) may not be revoked except by court order.
767.267(5)
(5) A financial institution or an officer, employee or agent of a financial institution may disclose information to the court, family court commissioner, county child support agency under
s. 59.53 (5), department or department's designee concerning an account for which a payer has executed an authorization for transfer under
sub. (1).
767.267(6)
(6) No financial institution or officer, employee or agent of a financial institution is liable to an account owner for any sum transferred, or for any information disclosed, in compliance with this section.
767.27
767.27
Disclosure of assets required. 767.27(1)
(1) In any action affecting the family, except an action to affirm marriage under
s. 767.02 (1) (a), the court shall require each party to furnish, on such standard forms as the court may require, full disclosure of all assets owned in full or in part by either party separately or by the parties jointly. Such disclosure may be made by each party individually or by the parties jointly. Assets required to be disclosed shall include, but shall not be limited to, real estate, savings accounts, stocks and bonds, mortgages and notes, life insurance, interest in a partnership, limited liability company or corporation, tangible personal property, income from employment, future interests whether vested or nonvested, and any other financial interest or source. The court shall also require each party to furnish, on the same standard form, information pertaining to all debts and liabilities of the parties. The form used shall contain a statement in conspicuous print that complete disclosure of assets and debts is required by law and deliberate failure to provide complete disclosure constitutes perjury. The court may on its own initiative and shall at the request of either party require the parties to furnish copies of all state and federal income tax returns filed by them for the past 2 years, and may require copies of such returns for prior years.
767.27(1m)
(1m) In any action affecting the family which involves a minor child, the court shall require, in addition to the disclosure under
sub. (1), that each party furnish the court with information regarding the types and costs of any health insurance policies or plans which are offered through each party's employer or other organization. This disclosure shall include a copy of any health care policy or plan which names the child as a beneficiary at the time that the disclosure is filed under
sub. (2).
767.27(2)
(2) Except as provided in
sub. (2m), disclosure forms required under this section shall be filed within 90 days after the service of summons or the filing of a joint petition or at such other time as ordered by the court or family court commissioner. Information contained on such forms shall be updated on the record to the date of hearing.
767.27(2m)
(2m) In every action in which the court has ordered a party to pay child support under
s. 767.25,
767.51 or
767.62 (4) or family support under
s. 767.261 and the circumstances specified in
s. 767.075 (1) apply, the court shall require the party who is ordered to pay the support to annually furnish the disclosure form required under this section and may require that party to annually furnish a copy of his or her most recently filed state and federal income tax returns to the county child support agency under
s. 59.53 (5) for the county in which the order was entered. In any action in which the court has ordered a party to pay child support under
s. 767.25,
767.51 or
767.62 (4) or family support under
s. 767.261, the court may require the party who is ordered to pay the support to annually furnish the disclosure form required under this section and a copy of his or her most recently filed state and federal income tax returns to the party for whom the support has been awarded. A party who fails to furnish the information as required by the court under this subsection may be proceeded against for contempt of court under
ch. 785.
767.27(3)(a)(a) Except as provided in
par. (b), information disclosed under this section shall be confidential and may not be made available to any person for any purpose other than the adjudication, appeal, modification or enforcement of judgment of an action affecting the family of the disclosing parties.
767.27(3)(b)
(b) The clerk of circuit court shall provide information from court records to the department under
s. 59.40 (2) (p).
767.27(4)
(4) Failure by either party timely to file a complete disclosure statement as required by this section shall authorize the court to accept as accurate any information provided in the statement of the other party or obtained under
s. 49.22 (2m) by the department or the county child support agency under
s. 59.53 (5).
767.27(5)
(5) If any party deliberately or negligently fails to disclose information required by
sub. (1) and in consequence thereof any asset or assets with a fair market value of $500 or more is omitted from the final distribution of property, the party aggrieved by such nondisclosure may at any time petition the court granting the annulment, divorce or legal separation to declare the creation of a constructive trust as to all undisclosed assets, for the benefit of the parties and their minor or dependent children, if any, with the party in whose name the assets are held declared the constructive trustee, said trust to include such terms and conditions as the court may determine. The court shall grant the petition upon a finding of a failure to disclose such assets as required under
sub. (1).
767.275
767.275
Disposition of assets prior to action. In any action affecting the family, except an action to affirm marriage under
s. 767.02 (1) (a), any asset with a fair market value of $500 or more which would be considered part of the estate of either or both of the parties if owned by either or both of them at the time of the action, but which was transferred for inadequate consideration, wasted, given away or otherwise unaccounted for by one of the parties within one year prior to the filing of the petition or the length of the marriage, whichever is shorter, shall be rebuttably presumed to be part of the estate for the purposes of
s. 767.255 and shall be subject to the disclosure requirement of
s. 767.27. Transfers which resulted in an exchange of assets of substantially equivalent value need not be specifically disclosed where such assets are otherwise identified in the statement of net worth.
767.275 History
History: 1977 c. 105;
1979 c. 32 ss.
50,
92 (4);
1979 c. 352 s.
39; Stats. 1979 s. 767.275.
767.28
767.28
Maintenance, legal custody and support when divorce or separation denied. In a judgment in an action for divorce or legal separation, although such divorce or legal separation is denied, the court may make such order for the legal custody of and periods of physical placement with any of the minor children and for the maintenance of either spouse and support of such children by either spouse out of property or income, as the nature of the case may render just and reasonable. If the court orders child support under this section, the court shall determine the child support payments in a manner consistent with
s. 767.25, regardless of the fact that the court has not entered a judgment of divorce or legal separation.
