767.25 Annotation
The percentage standards under sub. (1j) include the shared-time payer formula in DWD 40.04(2), Wis. Adm. Code, as well as the straight percentage standards in DWD 40.03 (1). The shared-time formula applies if the payer will be assuming costs in proportion to the number of days the court is ordering placement with the parent. Randall v. Randall, 2000 WI App 98,
235 Wis. 2d 1,
612 N.W.2d 737.
767.25 Annotation
Incarceration is a valid factor for a court to consider in setting child support because of the impact it may have on the payor's employability due to what may be voluntary and unreasonable acts. It was proper to base child support on earning capacity and to provide for an offset against the payor's property division payout to provide for payment of the support obligation. Morrow v. Modrow, 2001 WI App 200,
247 Wis. 2d 889,
634 N.W.2d 852.
767.25 Annotation
Subs. (1j), (1m), and (1n) give the court authority to determine and order some amount for child support. While that authority implicitly includes the authority to determine the amount to be zero, it does not implicitly include the authority to order the parents to divide expenses for the children among themselves in particular ways as an alternative to ordering one parent to pay child support to the other. Zawistowski v. Zawistowski, 2002 WI App 86,
253 Wis. 2d 630,
644 N.W.2d 252.
767.25 Annotation
This section makes no provision as to splitting child care costs beyond what is provided in the child support payments. The trial court erroneously exercised its discretion when, without addressing the sub. (1m) factors, it deviated from the child support percentage standards by ordering one party to pay one-half of the daycare expenses in addition to support required by the percentage standards. McLaren v. McLaren, 2003 WI App 125,
265 Wis. 2d 529,
665 N.W.2d 405,
02-2451.
767.25 Annotation
A trial court may establish a trust from funds paid for child support for the purpose of funding a child's postminority educational expenses. Because the percentage standards presume a higher standard of living commensurate with the payer's higher income, a child is entitled to the money over and above his or her needs. A trust is in the child's best interests and puts the child in the same position as if in an intact high-income family. Further, consideration of "educational needs" under sub. (1m) (g) is broad enough to encompass the higher educational needs of the child. Kowalski v. Obst, 2003 WI App 218,
267 Wis. 2d 400,
671 N.W.2d 339,
03-0573.
767.25 Annotation
Sub. (6) does not limit the authority a trial court would otherwise have to consider imposing interest on unpaid maintenance arrears. Cashin v. Cashin, 2004 WI App 92, ___ Wis. 2d ___, ___ N.W.2d ___,
03-1010.
767.25 Annotation
When a spouse presented a challenge to the application of the percentage standards on fairness grounds and presented a developed argument based on evidence in support of that challenge, the trial court was required to perform the analysis of the relevant statutory factors in answer to that challenge. Maritato v. Maritato, 2004 WI App 138, ___ Wis. 2d ___,
685 N.W.2d 379,
03-2074 767.25 Annotation
Federal preemption doctrine does not prohibit states from requiring payment of child support out of veterans' disability benefits. Rose v. Rose,
481 U.S. 619 (1987).
767.25 Annotation
Poor Little Rich Kids: Revising Wisconsin's Child Support System to Accommodate High-Income Payers. Dodd. 83 MLR 807.
767.25 Annotation
No-fault divorce: Tax consequences of support, maintenance and property settlement. Case, 1977 WBB 11.
767.25 Annotation
A practitioner's approach to child support. Bailey. WBB June 1987.
767.25 Annotation
HSS 80: New Rules for Child Support Obligations. Hickey. Wis. Law. April, 1995.
767.25 Annotation
Which Came First? The Serial Family Payer Formula. Stansbury. Wis. Law. April, 1995.
767.253
767.253
Seek-work orders. In an action for modification of a child support order under
s. 767.32 or an action in which an order for child support is required under
s. 767.25 (1),
767.51 (3) or
767.62 (4), the court may order either or both parents of the child to seek employment or participate in an employment or training program.
767.254
767.254
Unemployed teenage parent. 767.254(1)
(1) In this section, "unemployed teenage parent" means a parent who satisfies all of the following criteria:
767.254(1)(d)
(d) Would be ordered to make payments for the support of a child but for
par. (c).
767.254(2)
(2) In an action for revision of a judgment or order providing for child support under
s. 767.32 or an action in which an order for child support is required under
s. 767.25 (1),
767.51 (3) or
767.62 (4), the court shall order an unemployed teenage parent to do one or more of the following:
767.254(2)(d)
(d) Pursue or continue to pursue an accredited course of instruction leading to the acquisition of a high school diploma or its equivalent if the unemployed teenage parent has not completed a recognized high school course of study or its equivalent, except that the court may not order the unemployed teenage parent to pursue instruction if the instruction requires the expenditure of funds by the unemployed teenage parent other than normal transportation and personal expenses.
767.255(1)(1) Upon every judgment of annulment, divorce or legal separation, or in rendering a judgment in an action under
s. 767.02 (1) (h), the court shall divide the property of the parties and divest and transfer the title of any such property accordingly. A certified copy of the portion of the judgment that affects title to real estate shall be recorded in the office of the register of deeds of the county in which the lands so affected are situated. The court may protect and promote the best interests of the children by setting aside a portion of the property of the parties in a separate fund or trust for the support, maintenance, education and general welfare of any minor children of the parties.
767.255(2)(a)(a) Except as provided in
par. (b), any property shown to have been acquired by either party prior to or during the course of the marriage in any of the following ways shall remain the property of that party and is not subject to a property division under this section:
767.255(2)(a)2.
2. By reason of the death of another, including, but not limited to, life insurance proceeds; payments made under a deferred employment benefit plan, as defined in
s. 766.01 (4) (a), or an individual retirement account; and property acquired by right of survivorship, by a trust distribution, by bequest or inheritance or by a payable on death or a transfer on death arrangement under
ch. 705.
767.255(2)(b)
(b) Paragraph (a) does not apply if the court finds that refusal to divide the property will create a hardship on the other party or on the children of the marriage. If the court makes such a finding, the court may divest the party of the property in a fair and equitable manner.
767.255(3)
(3) The court shall presume that all property not described in
sub. (2) (a) is to be divided equally between the parties, but may alter this distribution without regard to marital misconduct after considering all of the following:
767.255(3)(b)
(b) The property brought to the marriage by each party.
767.255(3)(c)
(c) Whether one of the parties has substantial assets not subject to division by the court.
767.255(3)(d)
(d) The contribution of each party to the marriage, giving appropriate economic value to each party's contribution in homemaking and child care services.
767.255(3)(e)
(e) The age and physical and emotional health of the parties.
767.255(3)(f)
(f) The contribution by one party to the education, training or increased earning power of the other.
767.255(3)(g)
(g) The earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage.
767.255(3)(h)
(h) The desirability of awarding the family home or the right to live therein for a reasonable period to the party having physical placement for the greater period of time.
767.255(3)(i)
(i) The amount and duration of an order under
s. 767.26 granting maintenance payments to either party, any order for periodic family support payments under
s. 767.261 and whether the property division is in lieu of such payments.
767.255(3)(j)
(j) Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests.
767.255(3)(L)
(L) Any written agreement made by the parties before or during the marriage concerning any arrangement for property distribution; such agreements shall be binding upon the court except that no such agreement shall be binding where the terms of the agreement are inequitable as to either party. The court shall presume any such agreement to be equitable as to both parties.
767.255(3)(m)
(m) Such other factors as the court may in each individual case determine to be relevant.
767.255 Note
NOTE: See notes in
1985 Wis. Act 37, marital property trailer bill.
767.255 Annotation
Accounts receivable of a medical clinic in which the husband was a partner were properly viewed by the trial court as salary. Johnson v. Johnson,
78 Wis. 2d 137,
254 N.W.2d 198 (1977).
767.255 Annotation
A veteran disability pension is to be considered as earned income and not as an asset to be divided between the parties. Leighton v. Leighton,
81 Wis. 2d 620,
261 N.W.2d 457 (1978).
767.255 Annotation
There are at least 3 methods for valuing pension rights. Whether the use of any method is appropriate depends upon the status of the parties and whether the result is a reasonable valuation of the marital asset. Bloomer v. Bloomer,
84 Wis. 2d 124,
267 N.W.2d 235 (1978).
767.255 Annotation
Support of stepchildren is a relevant factor in dividing marital property. Fuerst v. Fuerst,
93 Wis. 2d 121,
286 N.W.2d 861 (Ct. App. 1979).
767.255 Annotation
Compensation for a person who supported a spouse while the spouse was in school can be achieved through both property division and maintenance payments. Lundberg v. Lundberg,
107 Wis. 2d 1,
318 N.W.2d 918 (1982).
767.255 Annotation
A federal pension in lieu of social security must be included in a marital property division. Mack v. Mack,
108 Wis. 2d 604,
323 N.W.2d 153 (Ct. App. 1982).
767.255 Annotation
Unless a divorce decree specifically terminates a spouse as the beneficiary of a life insurance policy and the insurance company is notified, the spouse's beneficiary status is not affected by the divorce decree. Bersch v. VanKleeck,
112 Wis. 2d 594,
334 N.W.2d 114 (1983).
767.255 Annotation
The trial court may consider a cross-purchase formula in a partnership agreement in determining the value of the partnership interest, including professional goodwill. Lewis v. Lewis,
113 Wis. 2d 172,
336 N.W.2d 171 (Ct. App. 1983).
767.255 Annotation
A lien on real estate awarded in a divorce judgment was a mortgage, not a judgment lien, even though the term "mortgage" was not used in the court order. Wozniak v. Wozniak,
121 Wis. 2d 330,
359 N.W.2d 147 (1984).
767.255 Annotation
This section does not require a judge to terminate a joint tenancy. Lutzke v. Lutzke,
122 Wis. 2d 24,
361 N.W.2d 640 (1985).
767.255 Annotation
The use of gift money to buy a home as joint tenants changed the character of the money from separate property to marital property. Weiss v. Weiss,
122 Wis. 2d 688,
365 N.W.2d 608 (Ct. App. 1985). See also Zirngibl v. Zirngibl,
165 Wis. 2d 130,
477 N.W.2d 637 (Ct. App. 1991).
767.255 Annotation
A prenuptial agreement entered into prior to the adoption of sub. (11) [now sub. (3) (L)] was enforceable in a subsequent divorce. Hengel v. Hengel,
122 Wis. 2d 737,
365 N.W.2d 16 (Ct. App. 1985).
767.255 Annotation
A premarital agreement intended to apply at death was not applicable to a divorce. Levy v. Levy,
130 Wis. 2d 523,
388 N.W.2d 170 (1986).
767.255 Annotation
Whether property agreements are inequitable under sub. (11) [now sub. (3) (L)] is discussed. Button v. Button,
131 Wis. 2d 84,
388 N.W.2d 546 (1986).
767.255 Annotation
A premarital agreement was inequitable because the parties did not fairly and reasonably disclose assets or have independent knowledge of one another's financial status. Schumacher v. Schumacher,
131 Wis. 2d 332,
388 N.W.2d 912 (1986).
767.255 Annotation
A personal injury claim for medical malpractice is property subject to division. Richardson v. Richardson,
139 Wis. 2d 778,
407 N.W.2d 231 (1987).
767.255 Annotation
The trial court may consider the former inherited status of divisible property although it has lost its exempt status through commingling. Schwartz v. Linders,
145 Wis. 2d 258,
426 N.W.2d 97 (Ct. App. 1988).
767.255 Annotation
Increase in the value of inherited property attributable to the non-owning spouse's efforts is divisible property. It is not necessary for the non-owning spouse to show that a failure to divide the asset will result in a hardship to him or her. Haldemann v. Haldemann,
145 Wis. 2d 296,
426 N.W.2d 107 (Ct. App. 1988).
767.255 Annotation
Chapter 766, the Marital Property Act, does not supplant the divorce property division provisions of ch. 767. Kuhlman v. Kuhlman,
146 Wis. 2d 588,
432 N.W.2d 295 (Ct. App. 1988).
767.255 Annotation
Gifted and inherited property is subject to division in cases of hardship. A party seeking division bears the burden of showing that failure to divide will result in financial privation. Popp v. Popp,
146 Wis. 2d 778,
432 N.W.2d 600 (Ct. App. 1988).
767.255 Annotation
A presumption exists that an injured party is entitled to all future payments under a structured settlement, but the payments are subject to the s. 767.255 factors. Krebs v. Krebs,
148 Wis. 2d 51,
435 N.W.2d 240 (1989).
767.255 Annotation
A property division may be modified under s. 806.07. However the supremacy clause prevents a division to be modified after a debt thereunder is discharged in bankruptcy. Spankowski v. Spankowski,
172 Wis. 2d 285,
493 N.W.2d 737 (Ct. App. 1992).
767.255 Annotation
When gifted or inherited property has appreciated in value during the marriage due to the efforts of both spouses, the appreciation is a part of the marital estate. Schorer v. Schorer,
177 Wis. 2d 387,
501 N.W.2d 916 (Ct. App. 1993).
767.255 Annotation
Determining fair market value of a closely-held corporation turns on the credibility of the experts as well as the methods and analyses employed by the witness. Schorer v. Schorer,
177 Wis. 2d 387,
501 N.W.2d 916 (Ct. App. 1993).
767.255 Annotation
A buy-sell agreement may provide a method for determining the value of an interest in a partnership, but does not as a matter of law establish the value. Sharon v. Sharon,
178 Wis. 2d 481,
504 N.W.2d 415 (Ct. App. 1993).
767.255 Annotation
Accounts receivable may be excluded from the marital estate if evidence indicates there is a link between the receivables and salary and that dividing the receivables would adversely affect the ability to pay support or maintain professional or personal obligations. Sharon v. Sharon,
178 Wis. 2d 481,
504 N.W.2d 415 (Ct. App. 1993).
767.255 Annotation
While income from gifted property is subject to division, trust income received by a beneficiary with only a future interest in the trust corpus is a gift itself, not income from a gift, and not subject to division. Friebel v. Friebel,
181 Wis. 2d 285,
510 N.W.2d 767 (Ct. App. 1993).
767.255 Annotation
A divorce decree that awarded 1/2 of the husband's pension to the wife divested the husband of that half interest. Although the husband had failed to effectuate the transfer as required by the divorce decree, the wife's half interest was not an asset in the husband's bankruptcy estate and there was no dischargeable debt to the wife. Dewey v. Dewey,
188 Wis. 2d 271,
525 N.W.2d 85 (Ct. App. 1994).
767.255 Annotation
Hardship under sub. (2) (b) and ``privation" under Popp requires something more than an inability to continue living at a predivorce standard. Fair and equitable is not the standard for including gifted and inherited property in a division. Doerr v. Doerr,
189 Wis. 2d 112,
525 N.W.2d 745 (Ct. App. 1994).
767.255 Annotation
That individual property was placed in a joint checking account by the owner and used to pay the owner's individual obligations did not render the property subject to division in divorce. Gardner v. Gardner,
190 Wis. 2d 216,
527 N.W.2d 701 (Ct. App. 1994).
767.255 Annotation
The offspring of gifted or inherited animals are not excluded from division by this section. If an asset no longer exists, a court cannot exclude it from the marital estate. Preuss v. Preuss,
195 Wis. 2d 95,
536 N.W.2d 101 (Ct. App. 1995),
94-1148.
767.255 Annotation
Bonuses and fees, like regular income, are not divisible as property but are to be considered in determining a fair division or maintenance. Long v. Long,
196 Wis. 2d 691,
539 N.W.2d 134 (Ct. App. 1995),
94-2533.
767.255 Annotation
The marital estate is usually valued as of the date of divorce, but when conditions over which a party has no control arise, the special circumstances may warrant deviation from the rule. Long v. Long,
196 Wis. 2d 691,
539 N.W.2d 134 (Ct. App. 1995),
94-2533.
767.255 Annotation
For the character of inherited or gifted property to be changed to marital property subject to division, changes to the property as a result of the marital relationship, whether by labor or expenditures, must substantially increase its value. Spindler v. Spindler,
207 Wis. 2d 329,
558 N.W.2d 645 (Ct. App. 1996).
767.255 Annotation
An uneven property division is not the only remedy to deal with squandering of marital assets. Equitable claims against 3rd parties that affect the rights of parties to the divorce, such as a claim against a 3rd-party title holder of property claimed to actually be part of the marital estate, may be appropriate. Zabel v. Zabel,
210 Wis. 2d 337,
565 N.W.2d 240 (Ct. App. 1997).
767.255 Annotation
Income generated by an asset is separate and distinct from the asset itself. Income from the asset is also separate from the appreciation of the asset. As to property division, retained earnings, or the appreciation in value occasioned by the expenditure of the earnings, are a marital asset subject to division. Metz v. Keener,
215 Wis. 2d 620,
573 N.W.2d 865 (Ct. App. 1997).
767.255 Annotation
Appellate review of a trial court's valuation of a closely-held business in a divorce action should proceed on the clearly erroneous standard. When the buyout provisions of a shareholder agreement did not replicate an arm's length transaction it was reasonable for the trial court to find that the buyout figure was not indicative of fair market value. Siker v. Siker,
225 Wis. 2d 522,
593 N.W.2d 830 (Ct. App. 1999).
767.255 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 to be 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 should 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.
