767.03(1)
(1) A party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of age, because of mental incapacity or infirmity or because of the influence of alcohol, drugs, or other incapacitating substances, or a party was induced to enter into a marriage by force or duress, or by fraud involving the essentials of marriage. Suit may be brought by either party, or by the legal representative of a party lacking the capacity to consent, no later than one year after the petitioner obtained knowledge of the described condition.
767.03(2)
(2) A party lacks the physical capacity to consummate the marriage by sexual intercourse, and at the time the marriage was solemnized the other party did not know of the incapacity. Suit may be brought by either party no later than one year after the petitioner obtained knowledge of the incapacity.
767.03(3)
(3) A party was 16 or 17 years of age and did not have the consent of his or her parent or guardian or judicial approval, or a party was under 16 years of age. Suit may be brought by the underaged party or a parent or guardian at any time prior to the party's attaining the age of 18 years, but a parent or guardian must bring suit within one year of obtaining knowledge of the marriage.
767.03(4)
(4) The marriage is prohibited by the laws of this state. Suit may be brought by either party within 10 years of the marriage, except that the 10-year limitation shall not apply where the marriage is prohibited because either party has another spouse living at the time of the marriage and the impediment has not been removed under
s. 765.24.
767.03 History
History: 1977 c. 105;
1979 c. 32 ss.
50,
92 (2); Stats. 1979 s. 767.03.
767.03 Annotation
A remarriage, although unlawful in Wisconsin and dissolved through an annulment, is sufficient to terminate maintenance under s. 767.32 (3). The requirement that maintenance be terminated following remarriage is unconditional. Falk v. Falk,
158 Wis. 2d 184,
462 N.W.2d 547 (Ct. App. 1990).
767.03 Annotation
Although a marriage may be "void", the marriage governs the parties' legal relations unless it is annulled. Sinai Samaritan Medical Center, Inc. v. McCabe,
197 Wis. 2d 709,
541 N.W.2d 190 (Ct. App. 1995).
767.04
767.04
Actions to affirm marriage. When the validity of any marriage shall be denied or doubted by either of the parties the other party may commence an action to affirm the marriage, and the judgment in such action shall declare such marriage valid or annul the same, and be conclusive upon all persons concerned.
767.04 History
History: 1979 c. 32 s.
50; Stats. 1979 s. 767.04.
767.045
767.045
Guardian ad litem for minor children. 767.045(1)(a)(a) The court shall appoint a guardian ad litem for a minor child in any action affecting the family if any of the following conditions exists:
767.045(1)(a)1.
1. The court has reason for special concern as to the welfare of a minor child.
767.045(1)(a)2.
2. Except as provided in
par. (am), the legal custody or physical placement of the child is contested.
767.045(1)(am)
(am) The court is not required to appoint a guardian ad litem under
par. (a) 2. if all of the following apply:
767.045(1)(am)1.
1. Legal custody or physical placement is contested in an action to modify legal custody or physical placement under
s. 767.325 or
767.327.
767.045(1)(am)2.
2. The modification sought would not substantially alter the amount of time that a parent may spend with his or her child.
767.045(1)(am)3.a.
a. That the appointment of a guardian ad litem will not assist the court in the determination regarding legal custody or physical placement because the facts or circumstances of the case make the likely determination clear.
767.045(1)(am)3.b.
b. That a party seeks the appointment of a guardian ad litem solely for a tactical purpose, or for the sole purpose of delay, and not for a purpose that is in the best interest of the child.
767.045(1)(b)
(b) The court may appoint a guardian ad litem for a minor child in any action affecting the family if the child's legal custody or physical placement is stipulated to be with any person or agency other than a parent of the child or, if at the time of the action, the child is in the legal custody of, or physically placed with, any person or agency other than the child's parent by prior order or by stipulation in this or any other action.
767.045(1)(c)
(c) The attorney responsible for support enforcement under
s. 59.53 (6) (a) may request that the court or a circuit court commissioner appoint a guardian ad litem to bring an action or motion on behalf of a minor who is a nonmarital child whose paternity has not been acknowledged under
s. 767.62 (1) or a substantially similar law of another state or adjudicated for the purpose of determining the paternity of the child, and the court or circuit court commissioner shall appoint a guardian ad litem, if any of the following applies:
767.045(1)(c)2.
2. An application for legal services has been filed with the child support program under
s. 49.22 on behalf of the child, but the state and its delegate under
s. 49.22 (7) are barred by a statute of limitations from commencing an action under
s. 767.45 on behalf of the child.
767.045(1)(d)
(d) A guardian ad litem appointed under
par. (c) shall bring an action or motion for the determination of the child's paternity if the guardian ad litem determines that the determination of the child's paternity is in the child's best interest.
767.045(1)(e)
(e) Nothing in this subsection prohibits the court from making a temporary order under
s. 767.23 that concerns the child before a guardian ad litem is appointed or before the guardian ad litem has made a recommendation to the court, if the court determines that the temporary order is in the best interest of the child.
767.045(2)
(2) Time for appointment. The court shall appoint a guardian ad litem under
sub. (1) (a) 1. or
(b) whenever the court deems it appropriate. The court shall appoint a guardian ad litem under
sub. (1) (a) 2. at the time specified in
s. 767.11 (12) (b), unless upon motion by a party or its own motion, the court determines that earlier appointment is necessary.
767.045(3)
(3) Qualifications. The guardian ad litem shall be an attorney admitted to practice in this state. No person who is an interested party in a proceeding, appears as counsel in a proceeding on behalf of any party or is a relative or representative of an interested party may be appointed guardian ad litem in that proceeding.
767.045(4)
(4) Responsibilities. The guardian ad litem shall be an advocate for the best interests of a minor child as to paternity, legal custody, physical placement and support. The guardian ad litem shall function independently, in the same manner as an attorney for a party to the action, and shall consider, but shall not be bound by, the wishes of the minor child or the positions of others as to the best interests of the minor child. The guardian ad litem shall consider the factors under
s. 767.24 (5) and custody studies under
s. 767.11 (14). The guardian ad litem shall review and comment to the court on any mediation agreement and stipulation made under
s. 767.11 (12). Unless the child otherwise requests, the guardian ad litem shall communicate to the court the wishes of the child as to the child's legal custody or physical placement under
s. 767.24 (5) (b). The guardian ad litem has none of the rights or duties of a general guardian.
767.045(4m)(a)(a) Subject to
par. (b), at any time after 120 days after a guardian ad litem is appointed under this section, a party may request that the court schedule a status hearing related to the actions taken and work performed by the guardian ad litem in the matter.
767.045(4m)(b)
(b) A party may, not sooner than 120 days after a status hearing under this subsection is held, request that the court schedule another status hearing on the actions taken and work performed by the guardian ad litem in the matter.
767.045(5)
(5) Termination and extension of appointment. The appointment of a guardian ad litem under
sub. (1) terminates upon the entry of the court's final order or upon the termination of any appeal in which the guardian ad litem participates. The guardian ad litem may appeal, may participate in an appeal or may do neither. If an appeal is taken by any party and the guardian ad litem chooses not to participate in that appeal, he or she shall file with the appellate court a statement of reasons for not participating. Irrespective of the guardian ad litem's decision not to participate in an appeal, the appellate court may order the guardian ad litem to participate in the appeal. At any time, the guardian ad litem, any party or the person for whom the appointment is made may request in writing that the court extend or terminate the appointment or reappointment. The court may extend that appointment, or reappoint a guardian ad litem appointed under this section, after the final order or after the termination of the appeal, but the court shall specifically state the scope of the responsibilities of the guardian ad litem during the period of that extension or reappointment.
767.045(6)
(6) Compensation. The guardian ad litem shall be compensated at a rate that the court determines is reasonable. The court shall order either or both parties to pay all or any part of the compensation of the guardian ad litem. In addition, upon motion by the guardian ad litem, the court shall order either or both parties to pay the fee for an expert witness used by the guardian ad litem, if the guardian ad litem shows that the use of the expert is necessary to assist the guardian ad litem in performing his or her functions or duties under this chapter. If both parties are indigent, the court may direct that the county of venue pay the compensation and fees. If the court orders a county to pay the compensation of the guardian ad litem, the amount ordered may not exceed the compensation paid to private attorneys under
s. 977.08 (4m) (b). The court may order a separate judgment for the amount of the reimbursement in favor of the county and against the party or parties responsible for the reimbursement. The court may enforce its orders under this subsection by means of its contempt power.
767.045 History
History: Sup. Ct. Order, 50Wis. 2d vii (1971);
1977 c. 105,
299;
1979 c. 32 ss.
50,
92 (4);
1979 c. 196;
1979 c. 352 s.
39; Stats. 1979 s. 767.045;
1987 a. 355; Sup. Ct. Order, 151 Wis. 2d xxv (1989);
1993 a. 16,
481;
1995 a. 27,
201,
289,
404;
1997 a. 105,
191;
1999 a. 9;
2001 a. 61.
767.045 Note
Judicial Council Note, 1990: This section clarifies and expands s. 767.045, as it was amended by
1987 Wisconsin Act 355. It also incorporates the substance of s. 809.85 into it. Sub. (1) (a) specifies the situations in which the court is required to appoint a guardian ad litem. Sub. (1) (a) 1. reflects the desirability of broad discretion for the court to appoint a guardian ad litem. Of special note is sub. (1) (b). While the court has always had the discretion to appoint a guardian ad litem in such situations, the committee concluded that it is desirable to specifically identify these situations as requiring special attention.
767.045 Annotation
Sub. (2) is the present law which takes into account the need for mediation.
767.045 Annotation
Sub. (4) defines the role of the guardian ad litem. It clarifies that the responsibility is as an advocate for the best interests of the child. It emphasizes the need for the guardian ad litem to function independently, while giving broad consideration to the views of others, including the children, social workers and the like. It also specifies that the guardian ad litem shall function in the same manner as the lawyer for a party. Among other things, this means that the guardian ad litem communicates with the court and other lawyers in the same manner as a lawyer for a party, presents information on relevant issues through the presentation of evidence or in other appropriate ways and generally functions as the lawyer for a party. In this case the "party" is the best interests of the children. Sub. (4) also enumerates specific duties to emphasize their particular importance.
767.045 Annotation
The discretion for the guardian ad litem to communicate the wishes of the child in sub. (4) was added in
1987 Wisconsin Act 355, as was much of sub. (6). These are unchanged.
767.045 Annotation
Sub. (5) specifies that the appointment terminates at the final order or the conclusion of the appeal unless the court otherwise directs. The court may reappoint or continue the appointment of the guardian ad litem after this but is required to state the scope of the responsibilities for such period. [Re Order effective Jan. 1, 1990]
767.045 Annotation
If both spouses have ability to pay, each should be required to contribute to the payment of the guardian ad litem's fee, with the percentage to be paid by each to be determined in the court's discretion. Tesch v. Tesch,
63 Wis. 2d 320,
217 N.W.2d 647 (1974).
767.045 Annotation
When the guardian ad litem's report was timely disclosed to both parties, the trial court did not err in failing to introduce the report during a custody hearing. Allen v. Allen,
78 Wis. 2d 263,
254 N.W.2d 244 (1977).
767.045 Annotation
An increase of visitation rights from 24 days to 75 days per year had sufficient impact upon the welfare of the children to require the appointment of a guardian ad litem. Bahr v. Galonski,
80 Wis. 2d 72,
257 N.W.2d 869 (1977).
767.045 Annotation
The appointment of a guardian ad litem pursuant to sub. (1) and s. 891.39 (1) (a) is mandated when paternity is questioned and also when there are special concerns. Special concerns arise when a child's welfare is directly at issue, as is the case when an existing family is disrupted. Johnson v. Johnson,
157 Wis. 2d 490,
460 N.W.2d 166 (Ct. App. 1990).
767.045 Annotation
A guardian ad litem may not be called as a witness in a custody proceeding. The G.A.L. is to communicate with the court as a lawyer for a party and to present information by presenting evidence. Hollister v. Hollister,
173 Wis. 2d 413,
496 N.W.2d 642 (Ct. App. 1992).
767.045 Annotation
A guardian ad litem could act in a separate action involving the child outside of the court of original appointment even though another guardian ad litem had been appointed by the court when the separate action was brought. Interest of Brandon S.S.
179 Wis. 2d 114,
507 N.W.2d 94 (1993).
767.045 Annotation
The court's power to appropriate compensation for court-appointed counsel is necessary for the effective operation of the judicial system. In ordering compensation for court ordered attorneys, a court should abide by the s. 977.08 (4m) rate when it can retain qualified, effective counsel at that rate, but should order compensation at the rate under
SCR 81.01 or 81.02 or a higher rate when necessary to secure effective counsel. Friedrich v. Dane County Circuit Ct.
192 Wis. 2d 1,
531 N.W.2d 32 (1995).
767.045 Annotation
The denial of a child's request to intervene in a divorce action was correct. The guardian ad litem fulfills the requirement that a child is entitled to representation. Joshua K. v. Nancy K.
201 Wis. 2d 655,
549 N.W.2d 494 (Ct. App. 1996).
767.045 Annotation
Quasi-judicial immunity extends to a guardian ad litem's negligent performance in a divorce proceeding. Paige K. B. v. Molepske,
219 Wis. 2d 418,
580 N.W.2d 289 (1998).
767.045 Annotation
Under sub. (6), if only one of the parties is indigent, the court may not order the county or the indigent party to pay guardian ad litem fees. The court's only option is to order the non-indigent party to pay. Olmstead v. Circuit Court for Dane County, 2000 WI App 261,
240 Wis. 2d 197,
622 N.W.2d 29.
767.045 Annotation
The "why" behind appointing guardians ad litem for children in divorce proceedings. Podell, 57 MLR 103.
767.05(1)(1)
Jurisdiction. A court of this state having jurisdiction to hear actions affecting the family may exercise jurisdiction as provided under
ch. 769 or
801.
767.05(1m)
(1m) Residence. No action under
s. 767.02 (1) (a) or
(b) may be brought unless at least one of the parties has been a bona fide resident of the county in which the action is brought for not less than 30 days next preceding the commencement of the action, or unless the marriage has been contracted within this state within one year prior to the commencement of the action. No action under
s. 767.02 (1) (c) or
(d) may be brought unless at least one of the parties has been a bona fide resident of the county in which the action is brought for not less than 30 days next preceding the commencement of the action. No action under
s. 767.02 (1) (c) may be brought unless at least one of the parties has been a bona fide resident of this state for not less than 6 months next preceding the commencement of the action.
767.05(2)
(2) Actions for custody of children. Subject to
ch. 822, the question of a child's custody may be determined as an incident of any action affecting the family or in an independent action for custody. The effect of any determination of a child's custody shall not be binding personally against any parent or guardian unless the parent or guardian has been made personally subject to the jurisdiction of the court in the action as provided under
ch. 801 or has been notified under
s. 822.05 as provided in
s. 822.12. Nothing in this section may be construed to foreclose a person other than a parent who has physical custody of a child from proceeding under
ch. 822.
767.05(3)
(3) Parties. The party initiating an action affecting the family shall be denominated the petitioner. The party responding to the action shall be denominated the respondent. All references to "plaintiff" in
chs. 801 to
807 shall apply to the petitioner, and all references to "defendant" in
chs. 801 to
807 shall apply to the respondent. Both parties together may initiate the petition by signing and filing a joint petition. The parties to a joint petition shall be called joint petitioners. The parties to a joint petition shall state within the joint petition that both parties consent to personal jurisdiction and waive service of summons.
767.05(4)
(4) Petition. All references to a "complaint" in
chs. 801 to
807 shall apply to petitions under
s. 767.085.
767.05(5)
(5) Title of actions. An action affecting the family under
s. 767.02 (1) (a) to
(d) or
(g) to
(k) shall be entitled "In re the marriage of A.B. and C.D.", except that an independent action for visitation under s.767.245 (3) shall be entitled "In re visitation with A. B.". An action affecting the family under
s. 767.02 (1) (f) or
(m) shall be entitled "In re the support of A.B.". A child custody action shall be entitled "In re the custody of A.B.". In all other respects, the general provisions of
chs. 801 and
802 respecting the content and form of the summons and pleadings shall apply.
767.05(6)
(6) Dismissal. An action affecting the family may not be dismissed under
s. 805.04 (1) unless all the parties who have appeared in the action have been served with a copy of the notice of dismissal and have had an opportunity to file a responsive pleading or motion.
767.05(7)
(7) Actions for certain interspousal remedies. If a spouse has begun an action against the other spouse under
s. 766.70 and either or both spouses subsequently bring an action under this chapter for divorce, annulment or legal separation, the actions may be consolidated by the court exercising jurisdiction under this chapter. If the actions are consolidated, to the extent the procedural and substantive requirements of this chapter conflict with the requirements under
s. 766.70, this chapter controls. No action under
s. 766.70 may be brought by a spouse against the other spouse while an action for divorce, annulment or legal separation is pending under this chapter.
767.05 Annotation
As a general matter, the child's best interests will be served by living with a parent. If circumstances compel a contrary conclusion, the interests of the child, not a supposed right of a parent to custody, controls. In a dispute between a father and a deceased mother's parents, the court erred in concluding that it must award custody to a natural parent unless he was unfit or unable to care for the children. LaChapell v. Mawhinney,
66 Wis. 2d 679,
225 N.W.2d 501 (1975).
767.05 Annotation
When a divorce action was brought before the residency requirement was met, an action was never commenced and the petition could not be amended after the requirement was met. Siemering v. Siemering,
95 Wis. 2d 111,
288 N.W.2d 881 (Ct. App. 1980).
767.05 Annotation
The prohibition under sub. (7) of commencing an action under s. 766.70 while a divorce, annulment, or legal separation action is pending is constitutional. Haack v. Haack,
149 Wis. 2d 243,
440 N.W.2d 794 (Ct. App. 1989).
767.05 Annotation
A cause of action under s.766.70 requires that the complained of conduct arise as a result of the marital relationship and a breach of the good faith duty between spouses. Once a divorce is commenced, the claim must be resolved in divorce court. A cause of action between spouses arising outside the marital relationship, such as a stockbroker-client relationship, does not fall within s. 766.70 and may be maintained independent of the divorce. Knafelc v. Dain Bosworth, Inc.
224 Wis. 2d 346,
591 N.W.2d 611 (Ct. App. 1999).
767.07
767.07
Judgment of divorce or legal separation. A court of competent jurisdiction shall grant a judgment of divorce or legal separation if:
767.07(1)
(1) The requirements of this chapter as to residence and marriage assessment counseling have been complied with;
767.07(2)(a)(a) In connection with a judgment of divorce or legal separation, the court finds that the marriage is irretrievably broken under
s. 767.12 (2), unless
par. (b) applies.
767.07(2)(b)
(b) In connection with a judgment of legal separation, the court finds that the marital relationship is broken under
s. 767.12 (3); and
767.07(3)
(3) To the extent it has jurisdiction to do so, the court has considered, approved or made provision for legal custody, the support of any child of the marriage entitled to support, the maintenance of either spouse, the support of the family under
s. 767.261 and the disposition of property.
767.07 History
History: 1971 c. 220;
1977 c. 105;
1979 c. 32 ss.
50,
92 (4); Stats. 1979 s. 767.07;
1987 a. 355;
1989 a. 132.
767.07 Annotation
A divorce judgment did not bar a wife's action against her former husband for torts allegedly committed during the marriage. Stuart v. Stuart,
143 Wis. 2d 347,
421 N.W.2d 505 (1988).
767.075
767.075
State is real party in interest. 767.075(1)
(1) The state is a real party in interest within the meaning of
s. 803.01 for purposes of establishing paternity, securing reimbursement of aid paid, future support and costs as appropriate in an action affecting the family in any of the following circumstances:
767.075(1)(a)
(a) An action to establish paternity whenever there is a completed application for legal services filed with the child support program under
s. 49.22 or whenever
s. 767.45 (6m) or
(6r) applies.
767.075(1)(b)
(b) An action to establish or enforce a child support or maintenance obligation whenever there is a completed application for legal services filed with the child support program under
s. 49.22.
767.075(1)(cm)
(cm) Whenever aid under
s. 46.261,
48.57 (3m) or
(3n),
49.19 or
49.45 has, in the past, been provided on behalf of a dependent child, or benefits have, in the past, been provided to the child's custodial parent under
ss. 49.141 to
49.161, and the child's family is eligible for continuing child support services under
45 CFR 302.33.
767.075(2)(a)(a) Except as provided in
par. (b), in any action affecting the family under a child support enforcement program, an attorney acting under
s. 49.22 or
59.53 (5), including any district attorney or corporation counsel, represents only the state. Child support services provided by an attorney as specified in
sub. (1) do not create an attorney-client relationship with any other party.
767.075(2)(b)
(b) Paragraph (a) does not apply to an attorney who is employed by the department under
s. 49.22 or a county under
s. 59.53 (5) or
(6) (a) to act as the guardian ad litem of the minor child for the purpose of establishing paternity.
767.075 Annotation
When parents each own a 1/2 interest in the future proceeds of real estate and the state contributes to child support, the court may not order the custodial parent to pay child support in the form of an accumulating real estate lien in favor of the state. State ex rel. v. Reible,
91 Wis. 2d 394,
283 N.W.2d 427 (Ct. App. 1979).
767.075 Annotation
A mother is a necessary party in a paternity action brought by the state. Paternity of Joshua E.
171 Wis. 2d 327,
491 N.W.2d 136 (Ct. App. 1992).
767.075 Annotation
A mother's and child's interests in a paternity action are not sufficiently identical to place them in privity for the purpose of res judicata. Chad M.G. v. Kenneth J.Z.
194 Wis. 2d 690,
535 N.W.2d 97 (Ct. App. 1995).
767.075 Annotation
Sub. (2) (b) allows a county corporation counsel to act as the guardian ad litem for a child in a paternity action so long as he or she only represents the child and does not represent the state in the action. Chad M.G. v. Kenneth J.Z.
194 Wis. 2d 690,
535 N.W.2d 97 (Ct. App. 1995).
767.075 Annotation
Because a child has a right to bring an independent action for paternity under s. 767.45, if the child was not a party to an earlier state instituted paternity action, it would be a violation of the child's due process rights to preclude the child from litigating the paternity issue. Mayonia M.M. v. Kieth N.
202 Wis. 2d 461,
551 N.W.2d 34 (Ct. App. 1996).
