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.
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 a circuit 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 a circuit 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 circuit 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 a circuit 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 a circuit 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 a circuit 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;
2001 a. 61.
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
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)(am)
(am) A court may not approve a stipulation for expressing child support or family support as a percentage of the payer's income unless all of the following apply:
767.10(2)(am)1.
1. The state is not a real party in interest in the action under any of the circumstances specified in
s. 767.075 (1).
767.10(2)(am)2.
2. The payer is not subject to any other order, in any other action, for the payment of child or family support or maintenance.
767.10(2)(am)3.
3. All payment obligations included in the order, other than the annual receiving and disbursing fee under
s. 767.29 (1) (d), are expressed as a percentage of the payer's income.
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 (1973).
767.10 Annotation
There are 2 types of postnuptial agreements: 1) family settlement agreements that contemplate the continuation of the marriage, and 2) separation agreements that are made after separation in contemplation of a separation. The former are presumed binding on the parties under s. 767.255 (3) (L). The latter are governed by s. 767.10 and constitute a recommendation jointly made by the parties to the court regarding what the judgment provide. Evenson v. Evenson,
228 Wis. 2d 676,
598 N.W.2d 232 (Ct. App. 1999). See also VanBoxtel v. VanBoxtel, 2001 WI 40,
242 Wis. 2d 474,
625 N.W.2d 284.
767.10 Annotation
An agreement made in contemplation of divorce, entered into after the parties agreed to the divorce, was subject to s. 767.10, not s. 767.255. When a party withdrew his consent before court approval, the agreement was unenforceable. Ayres v. Ayres,
230 Wis. 2d 431,
602 N.W.2d 132 (Ct. App. 1999).
767.10 Annotation
A trial court may refuse to incorporate a stipulation in a divorce judgment when a party repudiates his or her consent. A party is free to withdraw form a stipulation until it is incorporated in a judgment, and repudiation may render the stipulation nonexistent. VanBoxtel v. VanBoxtel, 2001 WI 40,
242 Wis. 2d 474,
625 N.W.2d 284.
767.10 Annotation
The specific language of sub. (1) controls stipulations in divorces rather than the general language of s. 807.05. All agreements entered into after a divorce is filed are stipulations subject to sub. (1) and must be approved by the court. Polakowski v. Polakowski, 2003 WI App 20,
259 Wis. 2d 765,
657 N.W.2d 102,
02-1961.
767.11
767.11
Family court counseling services. 767.11(1)(a)(a) Except as provided in
par. (b) and subject to approval by the chief judge of the judicial administrative district, the circuit judge or judges in each county shall designate a person meeting the qualifications under
sub. (4) as the director of family court counseling services in that county.
767.11(1)(b)
(b) If 2 or more contiguous counties enter into a cooperative agreement under
sub. (3) (b), the circuit judges for the counties involved shall, subject to approval by the chief judge of the judicial administrative district, designate a person meeting the qualifications under
sub. (4) as the director of family court counseling services for those counties.
767.11(1)(c)
(c) A county or counties may designate the supervisor of the office of family court commissioner as the director under
par. (a) or
(b).
767.11(2)
(2) Duties. A director of family court counseling services designated under
sub. (1) shall administer a family court counseling office if such an office is established under
sub. (3) (a) or
(b). Regardless of whether such an office is established, the director shall:
767.11(2)(a)
(a) Employ staff to perform mediation and to perform any legal custody and physical placement study services authorized under
sub. (14), arrange and monitor staff training, and assign and monitor staff case load.
767.11(2)(b)
(b) Contract under
sub. (3) (c) with a person or public or private entity to perform mediation and to perform any legal custody and physical placement study services authorized under
sub. (14).
767.11(2)(c)
(c) Supervise and perform mediation and any legal custody and physical placement study services authorized under
sub. (14), and evaluate the quality of any such mediation or study services.
767.11(2)(d)
(d) Administer and manage funding for family court counseling services.
767.11(3)
(3) Mediation provided. Mediation shall be provided in every county in this state by any of the following means:
767.11(3)(a)
(a) A county may establish a family court counseling office to provide mediation in that county.
767.11(3)(b)
(b) Two or more contiguous counties may enter into a cooperative agreement to establish one family court counseling office to provide mediation in those counties.
767.11(3)(c)
(c) A director of family court counseling services designated under
sub. (1) may contract with any person or public or private entity, located in a county in which the director administers family court counseling services or in a contiguous county, to provide mediation in such a county.
767.11(4)
(4) Mediator qualifications. Every mediator assigned under
sub. (6) (a) shall have not less than 25 hours of mediation training or not less than 3 years of professional experience in dispute resolution. Every mediator assigned under
sub. (6) (a) shall have training on the dynamics of domestic violence and the effects of domestic violence on victims of domestic violence and on children.
767.11(5)(a)(a) Except as provided in
sub. (8) (b), in any action affecting the family, including a revision of judgment or order under
s. 767.32 or
767.325, in which it appears that legal custody or physical placement is contested, the court or circuit court commissioner shall refer the parties to the director of family court counseling services for possible mediation of those contested issues. The court or circuit court commissioner shall inform the parties of all of the following:
767.11(5)(a)1.
1. That the confidentiality of communications in mediation is waived if the parties stipulate under
sub. (14) (c) that the person who provided mediation to the parties may also conduct the legal custody or physical placement study under
sub. (14).
767.11(5)(a)2.
2. That the court may waive the requirement to attend at least one mediation session if the court determines that attending the session will cause undue hardship or would endanger the health or safety of one of the parties and the bases on which the court may make its determination.
767.11(5)(b)
(b) If both parties to any action affecting the family wish to have joint legal custody of a child, either party may request that the court or circuit court commissioner refer the parties to the director of family court counseling services for assistance in resolving any problem relating to joint legal custody and physical placement of the child. Upon request, the court shall so refer the parties.
767.11(5)(c)
(c) A person who is awarded periods of physical placement, a child of such a person, a person with visitation rights or a person with physical custody of a child may notify a circuit court commissioner of any problem he or she has relating to any of these matters. Upon notification, the circuit court commissioner may refer any person involved in the matter to the director of family court counseling services for assistance in resolving the problem.
767.11(6)(a)(a) Whenever a court or circuit court commissioner refers a party to the director of family court counseling services for possible mediation, the director shall assign a mediator to the case. The mediator shall provide mediation if he or she determines it is appropriate. If the mediator determines mediation is not appropriate, he or she shall so notify the court. Whenever a court or circuit court commissioner refers a party to the director of family court counseling services for any other family court counseling service, the director shall take appropriate action to provide the service.
767.11(6)(b)
(b) Any intake form that the family court counseling services requires the parties to complete before commencement of mediation shall ask each party whether either of the parties has engaged in interspousal battery, as described in
s. 940.19 or
940.20 (1m), or domestic abuse, as defined in
s. 813.12 (1) (am).
767.11(7)
(7) Private mediator. The parties to any action affecting the family may, at their own expense, receive mediation services from a mediator other than one who provides services under
sub. (3). Parties who receive services from such a mediator shall sign and file with the director of family court counseling services and with the court or circuit court commissioner a written notice stating the mediator's name and the date of the first meeting with the mediator.
767.11(8)
(8) Initial session of mediation required. 767.11(8)(a)(a) Except as provided in
par. (b), in any action affecting the family, including an action for revision of judgment or order under
s. 767.32 or
767.325, in which it appears that legal custody or physical placement is contested, the parties shall attend at least one session with a mediator assigned under
sub. (6) (a) or contracted with under
sub. (7) and, if the parties and the mediator determine that continued mediation is appropriate, no court may hold a trial of or a final hearing on legal custody or physical placement until after mediation is completed or terminated.
767.11(8)(b)
(b) A court may, in its discretion, hold a trial or hearing without requiring attendance at the session under
par. (a) if the court finds that attending the session will cause undue hardship or would endanger the health or safety of one of the parties. In making its determination of whether attendance at the session would endanger the health or safety of one of the parties, the court shall consider evidence of the following:
