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).
767.077(1)
(1) The child has been deprived of parental support by reason of the continued absence of a parent from the home.
767.077(2)
(2) A court has not issued an order under
s. 767.25 requiring the parent who is absent from the home to support the child.
767.078
767.078
Order in case involving dependent child. 767.078(1)(a)(a) In this subsection, "case involving a dependent child" means an action which meets all of the following criteria:
767.078(1)(a)3.
3. The child has been deprived of parental support by reason of the continued absence of a parent from the home.
767.078(1)(b)
(b) Except as provided in
par. (c), in a case involving a dependent child, if the child's parent who is absent from the home is not employed, the court shall order that parent to do one or more of the following:
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 must be expressed as a fixed sum unless the parties have stipulated to expressing the amount as a percentage of the payer's income and the requirements under
s. 767.10 (2) (am) 1. to
3. are satisfied. 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
Four factors required to find a party estopped from seeking a revision of an order are enumerated. 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 the office of family court commissioner. 767.081(1)(1) Upon the filing of an action affecting the family, the office of family court commissioner shall inform the parties of any services, including referral services, offered by the office of 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 office of 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 office of 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 a circuit 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;
2001 a. 61.
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.
