767.57(1h)
(1h) Nonpayment; enforcement. If maintenance, child support, or family support payments are not paid to the department or its designee at the time provided in the judgment or order, the county child support agency under
s. 59.53 (5) or a circuit court commissioner of the county shall take proceedings to secure the payment of the sum, including enforcement by contempt proceedings under
ch. 785 or by other means. Copies of any order issued to compel the payment shall be mailed to the attorney, if any, who represented each party when the maintenance, child support, or family support payments were awarded. If any fees of officers in any of the proceedings, including the compensation of the circuit court commissioner at the rate of $50 per day unless the commissioner is on a salaried basis, is not collected from the person proceeded against, the fees shall be paid out of the county treasury upon the order of the presiding judge and the certificate of the department.
767.57(1m)
(1m) Overpayment. Notwithstanding
ss. 767.511 (6) and
767.531, if the department or its designee receives support or maintenance money that exceeds the amount due in the month in which it is received and the department or its designee determines that the excess amount is for support or maintenance due in a succeeding month, the department or its designee may hold the amount of overpayment that does not exceed the amount due in the next month for disbursement in the next month if any of the following applies:
767.57(1m)(a)
(a) The payee or the payer requests that the overpayment be held until the month when it is due.
767.57(1m)(b)
(b) The court has ordered that overpayments of child support, family support, or maintenance that do not exceed the amount of support or maintenance due in the next month may be held for disbursement in the next month.
767.57(1m)(c)
(c) The party entitled to the support or maintenance money or a minor child of the party has applied for or is receiving aid under
s. 46.261 or public assistance under
ch. 49 and there is an assignment to the state under
s. 46.261 (3) or
49.19 (4) (h) 1. b. of the party's right to the support or maintenance money.
767.57(1m)(cm)
(cm) A kinship care relative or a long-term kinship care relative of the child who is entitled to the support money has applied for or is receiving kinship care payments or long-term kinship care payments for that child and there is an assignment to the state under
s. 48.57 (3m) (b) 2. or
(3n) (b) 2. of the child's right to the support money.
767.57(1m)(d)
(d) The department or its designee determines that the overpayment should be held until the month when it is due.
767.57(2)
(2) Procedure if recipient on public assistance. If a party entitled to maintenance or support, or both, is receiving public assistance under
ch. 49, the party may assign the party's right to support or maintenance to the county department under
s. 46.215,
46.22, or
46.23 granting the assistance. The assignment shall be approved by order of the court granting the maintenance or support. The assignment may not be terminated if there is a delinquency in the amount to be paid to the assignee of maintenance and support previously ordered without the written consent of the assignee or upon notice to the assignee and a hearing. When an assignment of maintenance or support, or both, has been approved by the order, the assignee shall be deemed a real party in interest within
s. 803.01 solely for the purpose of securing payment of unpaid maintenance or support ordered to be paid, by participating in proceedings to secure the payment of unpaid amounts. Notwithstanding assignment under this subsection, and without further order of the court, the department or its designee, upon receiving notice that a party or a minor child of the parties is receiving aid under
s. 46.261 or public assistance under
ch. 49 or that a kinship care relative or long-term kinship care relative of the minor child is receiving kinship care payments or long-term kinship care payments for the minor child, shall forward all support assigned under
s. 46.261 (3),
48.57 (3m) (b) 2. or
(3n) (b) 2.,
49.19 (4) (h) 1., or
49.45 (19) to the assignee under
s. 46.261 (3),
48.57 (3m) (b) 2. or
(3n) (b) 2.,
49.19 (4) (h) 1., or
49.45 (19).
767.57(3)
(3) Procedure if recipient institutionalized or confined. 767.57(3)(a)(a) If maintenance or support, or both, are ordered to be paid for the benefit of any individual who is committed by court order to an institution, who is in confinement or whose legal custody is vested by court order under
ch. 48 or
938 in an agency, department, relative, or other entity, the court may order that the maintenance or support be paid to the relative, agency, institution, welfare department, or other entity having legal or actual custody of the individual, and that it be used for the person's care and maintenance, without the appointment of a guardian in this state.
767.57 Note
NOTE: Par. (a) is shown as affected by 2 acts of the 2005 Wisconsin legislature and as merged by the revisor under s. 13.93 (2) (c).
767.57(3)(b)
(b) If a child who is the beneficiary of support under a judgment or order is placed by court order in a residential care center for children and youth, juvenile correctional institution, or state mental institution, the right of the child to support during the period of the child's confinement, including any right to unpaid support accruing during that period, is assigned to the state. If the judgment or order providing for the support of a child who is placed in a residential care center for children and youth, juvenile correctional institution, or state mental institution includes support for one or more other children, the support that is assigned to the state shall be the proportionate share of the child placed in the center or institution, except as otherwise ordered by the court or circuit court commissioner on the motion of a party.
767.57(4)
(4) Procedure for certain child recipients. If an order or judgment providing for the support of one or more children not receiving aid under
s. 46.261,
48.57 (3m) or
(3n), or
49.19 includes support for a minor who is the beneficiary of aid under
s. 46.261,
48.57 (3m) or
(3n), or
49.19, any support payment made under the order or judgment is assigned to the state under
s. 46.261 (3),
48.57 (3m) (b) 2. or
(3n) (b) 2., or
49.19 (4) (h) 1. b. in the amount that is the proportionate share of the minor receiving aid under
s. 46.261,
48.57 (3m) or
(3n), or
49.19, except as otherwise ordered by the court on the motion of a party.
767.57(5)
(5) Trustee or receiver may be appointed. The court may appoint a receiver or trustee, as necessary, to receive any payments ordered under this chapter, to invest and pay over the income for the maintenance of the spouse or the support and education of any of the children described in
s. 767.511 (4), or to pay over the principal sum in the amount and at the times that the court directs. The court may require the receiver or trustee to post bond, with or without sureties, in the amount that the court directs.
767.57 History
History: 1971 c. 41 s.
12; Sup. Ct. Order,
67 Wis. 2d 585, 775 (1975);
1975 c. 82,
200;
1975 c. 401 s.
4;
1977 c. 105 s.
59;
1977 c. 271,
418,
447;
1979 c. 32 ss.
50,
92 (4);
1979 c. 257 s.
17; Stats. 1979 s. 767.29;
1981 c. 20 s.
2202 (20) (m);
1983 a. 27,
302;
1985 a. 29,
176;
1991 a. 39;
1993 a. 481;
1995 a. 27 ss.
7104tm,
9126 (19),
9130 (4);
1995 a. 77,
279,
289,
404;
1997 a. 27,
35,
105,
191,
252;
1999 a. 9;
2001 a. 16,
59,
61,
105;
2005 a. 25,
387;
2005 a. 443 ss.
127 to
132,
144,
225; Stats. 2005 s. 767.57; s. 13.93 (2) (c).
767.57 Annotation
A public welfare agency is entitled to collect unpaid alimony and support money that had accumulated prior to the effective date of an assignment under sub. (2) and prior to the assignor's receipt of public assistance. Schiavo v. Schiavo,
71 Wis. 2d 136,
237 N.W.2d 702 (1976).
767.57 Annotation
The defense of laches is not available in an action or proceeding brought to secure enforcement of a child support order in a divorce action. Paterson v. Paterson,
73 Wis. 2d 150,
242 N.W.2d 907 (1976).
767.58
767.58
Notice of change of employer, address, and ability to pay; other information. 767.58(1)
(1)
Support or maintenance order; notice requirements. 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) and the payee, within 10 business days, of any change of employer and of any substantial change in the amount of his or her income, including receipt of bonus compensation, affecting his or her ability to pay child support, family support, or maintenance. The order shall also include a statement 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 under
s. 767.59 or an annual adjustment of the child or family support amount under
s. 767.553 is sought. An order under this subsection is enforceable under
ch. 785.
767.58(2)
(2) Information for child support agency. 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.
767.58 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;
2001 a. 16;
2005 a. 443 ss.
113,
226; Stats. 2005 s. 767.58.
767.58 Note
NOTE: 2005 Wis. Act 443, which affected this section, contains explanatory notes.
767.59
767.59
Revision of support and maintenance orders. 767.59(1)(1)
Definition. In this section, "support or maintenance order" means a judgment or order providing for child support under this chapter or
s. 48.355 (2) (b) 4.,
48.357 (5m) (a),
48.363 (2),
938.183 (4),
938.355 (2) (b) 4.,
938.357 (5m) (a),
938.363 (2), or
948.22 (7), for maintenance payments under
s. 767.56, for family support payments under this chapter, or for the appointment of trustees or receivers under
s. 767.57 (5).
767.59(1c)(a)(a) On the petition, motion, or order to show cause of either of the parties, the department, a county department under
s. 46.215,
46.22, or
46.23, or a county child support agency under
s. 59.53 (5) if an assignment has been made under
s. 46.261,
48.57 (3m) (b) 2. or
(3n) (b) 2.,
49.19 (4) (h), or
49.45 (19) or if either party or their minor children receive aid under
s. 48.57 (3m) or
(3n) or
ch. 49, a court may, except as provided in
par. (b), do any of the following:
767.59(1c)(a)1.
1. Revise and alter a support or maintenance order as to the amount and payment of maintenance or child support and the appropriation and payment of the principal and income of property held in trust.
767.59(1c)(a)2.
2. Make any judgment or order on any matter that the court might have made in the original action.
767.59(1c)(b)
(b) A court may not revise or modify a judgment or order that waives maintenance payments for either party or a judgment or order with respect to final division of property.
767.59(1f)
(1f) Support: substantial change in circumstances. 767.59(1f)(a)(a) Except as provided in
par. (d), a revision under this section of a judgment or order as to the amount of child or family support may be made only upon a finding of a substantial change in circumstances.
767.59(1f)(b)
(b) In an action under this section to revise a judgment or order with respect to the amount of child support, any of the following constitutes a rebuttable presumption of a substantial change in circumstances sufficient to justify a revision of the judgment or order:
767.59(1f)(b)1.
1. Commencement of receipt of aid to families with dependent children under
s. 49.19 or participation in Wisconsin works under
ss. 49.141 to
49.161 by either parent since the entry of the last child support order, including a revision of a child support order under this section.
767.59(1f)(b)2.
2. Unless the amount of child support is expressed in the judgment or order as a percentage of parental income, the expiration of 33 months after the date of the entry of the last child support order, including a revision of a child support order under this section.
767.59(1f)(b)4.
4. A difference between the amount of child support ordered by the court to be paid by the payer and the amount that the payer would have been required to pay based on the percentage standard established by the department under
s. 49.22 (9) if the court did not use the percentage standard in determining the child support payments and did not provide the information required under
s. 46.10 (14) (d),
301.12 (14) (d) or
767.511 (1n), whichever is appropriate.
767.59(1f)(c)
(c) In an action under this section to revise a judgment or order with respect to an amount of child support, any of the following may constitute a substantial change of circumstances sufficient to justify revision of the judgment or order:
767.59(1f)(c)1.
1. Unless the amount of child support is expressed in the judgment or order as a percentage of parental income, a change in the payer's income, evidenced by information received under
s. 49.22 (2m) by the department or the county child support agency under
s. 59.53 (5) or by other information, from the payer's income determined by the court in its most recent judgment or order for child support, including a revision of a child support order under this section.
767.59(1f)(d)
(d) In an action under this section to revise a judgment or order with respect to child or family support, the court is not required to make a finding of a substantial change in circumstances to change to a fixed sum the manner in which the amount of child or family support is expressed in the judgment or order.
767.59(1k)
(1k) Maintenance: change in cost of living. In an action under this section to revise maintenance payments, a substantial change in the cost of living for either party or as measured by the federal bureau of labor statistics may be sufficient to support a revision of the amount of maintenance, except that a change in an obligor's cost of living is not by itself sufficient if payments are expressed as a percentage of income.
767.59(1m)
(1m) Payment revisions prospective. In an action under
sub. (1c) to revise a judgment or order with respect to child support, maintenance payments, or family support payments, the court may not revise the amount of child support, maintenance payments, or family support payments due, or an amount of arrearages in child support, maintenance payments, or family support payments that has accrued, prior to the date that notice of the action is given to the respondent, except to correct previous errors in calculations.
767.59(1r)
(1r) Credit to payer for certain payments. In an action under
sub. (1c) to revise a judgment or order with respect to child support or family support, the court may grant credit to the payer against support due prior to the date on which the petition, motion, or order to show cause is served for payments made by the payer other than payments made as provided in
s. 767.57 or
767.75, in any of the following circumstances:
767.59(1r)(b)
(b) The payer shows by documentary evidence that the payments were made directly to the payee by check or money order, and shows by a preponderance of the evidence that the payments were intended for support and not intended as a gift to or on behalf of the child, or as some other voluntary expenditure, or for the payment of some other obligation to the payee.
767.59(1r)(c)
(c) The payer proves by clear and convincing evidence, with evidence of a written agreement, that the payee expressly agreed to accept the payments in lieu of child or family support paid as provided in
s. 767.57 or
767.75, not including gifts or contributions for entertainment.
767.59(1r)(d)
(d) The payer proves by documentary evidence that, for a period during which unpaid support accrued, the child received benefits under
42 USC 402 (d) based on the payer's entitlement to federal disability insurance benefits under
42 USC 401 to
433. Any credit granted under this paragraph shall be limited to the amount of unpaid support that accrued during the period for which the benefits under
42 USC 402 (d) were paid.
767.59(1r)(e)
(e) The payer proves by a preponderance of the evidence that the child lived with the payer, with the agreement of the payee, for more than 60 days beyond a court-ordered period of physical placement. Credit may not be granted under this paragraph if, with respect to the time that the child lived with the payer beyond the court-ordered period of physical placement, the payee sought to enforce the physical placement order through civil or criminal process or if the payee shows that the child's relocation to the payer's home was not mutually agreed to by both parents.
767.59(1r)(f)
(f) The payer proves by a preponderance of the evidence that the payer and payee resumed living together with the child and that, during the period for which a credit is sought, the payer directly supported the family by paying amounts at least equal to the amount of unpaid court-ordered support that accrued during that period.
767.59(2)
(2) Percentage standard required; exceptions. 767.59(2)(a)(a) Except as provided in
par. (b) or
(c), if the court revises a judgment or order with respect to child support payments, it shall do so by using the percentage standard established by the department under
s. 49.22 (9).
767.59(2)(b)
(b) Upon request by a party, the court may modify the amount of revised child support payments determined under
par. (a) if, after considering the factors listed in
s. 767.511 (1m), the court finds, by the greater weight of the credible evidence, that the use of the percentage standard is unfair to the child or to any of the parties.
767.59(2s)
(2s) Stipulation for revision of support. In an action under
sub. (1c), the court may not approve a stipulation for the revision of a judgment or order with respect to an amount of child support or family support unless the stipulation provides for payment of an amount of child support or family support that is determined in the manner required under
s. 46.10 (14),
301.12 (14),
767.511,
767.805 (4), or
767.89, whichever is appropriate.
767.59(2w)
(2w) When revision effective. A revision of a judgment or order with respect to child support, family support, or maintenance payments has the effect of modifying the original judgment or order with respect to the payments to the extent of the revision from the date on which the order revising the payments is effective. The child support, family support, or maintenance payments modified by the order for revision shall cease to accrue under the original judgment or order from the date on which the order revising the payments is effective.
767.59(3)
(3) Remarriage; vacating maintenance order. After a final judgment requiring maintenance payments has been rendered and the payee has remarried, the court shall, on application of the payer with notice to the payee and upon proof of remarriage, vacate the order requiring the payments.
767.59(4)
(4) Review when the state is a real party in interest. In any case in which the state is a real party in interest under
s. 767.205 (2), the department shall review the support obligation periodically and, if appropriate, petition the court for revision of the judgment or order with respect to the support obligation.
767.59(5)
(5) Notice of child support information. A summons or petition, motion, or order to show cause under this section shall include notification of the availability of information under
s. 767.105 (2).
767.59 History
History: 1971 c. 220;
1977 c. 105 ss.
38,
48,
49;
1977 c. 418;
1979 c. 32 ss.
50,
92 (4); Stats. 1979 s. 767.32;
1981 c. 20 s.
2202 (20) (m);
1981 c. 314 s.
146;
1983 a. 27;
1985 a. 176;
1987 a. 27,
355,
413;
1989 a. 212;
1991 a. 39;
1993 a. 16,
481,
491;
1995 a. 27 s.
9126 (19);
1995 a. 77,
201,
225,
279,
289,
404,
417;
1997 a. 27,
35,
105,
191,
237,
273;
1999 a. 9,
103;
2001 a. 16,
61,
105;
2005 a. 443 ss.
147 to
159,
227,
228; Stats. 2005 s. 767.59.
767.59 Cross-reference
Cross-reference: See also Wisconsin Administrative Code Citations published in the Wisconsin Administrative Code for a list of citations to cases citing ch. HSS 80, HFS 80, and DWD 40, Wis. Adm. Code, the child support percentage of income standard.
767.59 Note
NOTE: 2005 Wis. Act 443, which affected this section, contains explanatory notes.
767.59 Note
NOTE: The standard for modifying child support orders was significantly changed by
1993 Wis. Act 16.
767.59 Annotation
That a child needs more support at age 6 than age 2 is sufficient to justify an increase in payments if the father is able to make them. Klipstein v. Klipstein,
47 Wis. 2d 314,
177 N.W.2d 57 (1970).
767.59 Annotation
Although one parent took the children out of the state without court approval or letting the other know where the children could be visited, the court could not suspend payment of a support allowance without a hearing as to the effect on the children. Krause v. Krause,
58 Wis. 2d 499,
206 N.W.2d 589 (1973).
767.59 Annotation
Even assuming the parties' agreement as to child support gave rise to contractual obligations, these obligations remained subject to modification by the court under this section. Vaccaro v. Vaccaro,
67 Wis. 2d 477,
227 N.W.2d 62 (1975).
767.59 Annotation
While a divorced party owes no duty of sexual fidelity to the former spouse, cohabitation by the party can be a change of circumstances affecting the former spouse's responsibility to provide alimony, with the manner and extent of the cohabitation and surrounding circumstances to be considered in determining whether alimony payments should be modified. Taake v. Taake,
70 Wis. 2d 115,
233 N.W.2d 449 (1975).
767.59 Annotation
A child support provision reducing payments proportionately as each of several minor children attains majority is not against public policy. Severson v. Severson,
71 Wis. 2d 382,
238 N.W.2d 116 (1976).
767.59 Annotation
The trial court abused its discretion in denying the former husband's motion to terminate alimony by failing to consider the former wife's increased estate as the result of an inheritance. Lemm v. Lemm,
72 Wis. 2d 457,
241 N.W.2d 593 (1976).
767.59 Annotation
The trial court abused its discretion by terminating maintenance without sufficiently addressing the factors under s. 767.26. Vander Perren v. Vander Perren,
105 Wis. 2d 219,
313 N.W.2d 813 (1982).
767.59 Annotation
It was improper to discontinue maintenance payments to a former spouse solely upon the ground of cohabitation. Van Gorder v. Van Gorder,
110 Wis. 2d 188,
327 N.W.2d 674 (1983).
767.59 Annotation
When a stipulation required maintenance payments during the wife's lifetime, the husband was estopped from requesting termination of payments under sub. (3) when the wife remarried. Rintelman v. Rintelman,
118 Wis. 2d 587,
348 N.W.2d 498 (1984).
767.59 Annotation
A court may revise a judgment incorporating a stipulation regarding limited maintenance if the petition to revise is filed before expiration of a maintenance obligation. Fobes v. Fobes,
124 Wis. 2d 72,
368 N.W.2d 643 (1985).
767.59 Annotation
A petition for revision filed 20 days after receipt of the final scheduled maintenance payment was properly dismissed as untimely. Lippstreu v. Lippstreu,
125 Wis. 2d 415,
373 N.W.2d 53 (Ct. App. 1985).
767.59 Annotation
A state family court may modify the paying spouse's support obligation following his or her discharge in bankruptcy. Eckert v. Eckert,
144 Wis. 2d 770,
424 N.W.2d 759 (Ct. App. 1988).
767.59 Annotation
Orders assigning health care responsibility pursuant to s. 767.25 (4m) are subject to revision under s. 767.32. Kuchenbecker v. Schultz,
151 Wis. 2d 868,
447 N.W.2d 80 (Ct. App. 1989).
767.59 Annotation
It is within a trial court's discretion to apply the percentage standards to a child support revision. If applied to a remarried parent, gross income must be computed as if the remarried parent is still single. The trial court retains discretion to adjust the percentage calculation based on the circumstances. Abitz v. Abitz,
155 Wis. 2d 161,
455 N.W.2d 609 (1990).
767.59 Annotation
A remarriage, though unlawful in Wisconsin and dissolved through annulment, is sufficient to terminate maintenance under sub. (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).
767.59 Annotation
A party is estopped from seeking a maintenance revision if the parties stipulated to permanent nonmodifiable maintenance that was part of a comprehensive settlement of all property and maintenance issues that was approved by the court and was fair and not illegal or against public policy at the time and relief is being sought on the grounds that the court did not have power to enter the order the parties had agreed to. Nichols v. Nichols,
162 Wis. 2d 96,
469 N.W.2d 619 (1991).
767.59 Annotation
A divorce judgment provision waiving maintenance takes precedence over other provisions arguably reserving or awarding maintenance. Tyson v. Tyson,
162 Wis. 2d 551,
469 N.W.2d 913 (Ct. App. 1991).
767.59 Annotation
In determining income for maintenance revision, investment income from property awarded in an equal property division may be included. Interest payments to the payee spouse under the division may not to be deducted. Hommel v. Hommel,
162 Wis. 2d 782,
471 N.W.2d 1 (1991).
767.59 Annotation
Lottery proceeds won after a divorce may be considered a change in financial circumstances in determining whether a change in maintenance is justified. A maintenance award is to assure the recipient spouse a standard of living comparable to that enjoyed during the marriage. Gerrits v. Gerrits,
167 Wis. 2d 429,
482 N.W.2d 134 (Ct. App. 1992).
767.59 Annotation
The absence of a mortgage obligation is relevant to the assessment of a party's economic circumstances, but does not translate into imputed income under the applicable administrative rule. Zimmerman v. Zimmerman,
169 Wis. 2d 516,
485 N.W.2d 294 (Ct. App. 1992).
767.59 Annotation
When a paying spouse's termination of employment is voluntary, an order may be based on the spouse's earning capacity whether or not bad faith is shown. Roberts v. Roberts,
173 Wis. 2d 406,
496 N.W.2d 210 (Ct. App. 1992).
767.59 Annotation
A paying spouse should be allowed a fair choice of livelihood even though an income reduction may result, but the spouse may be found to be shirking if the choice is not reasonable in light of the payer's support obligation. Van Offeren v. Van Offeren,
173 Wis. 2d 482,
496 N.W.2d 660 (Ct. App. 1992).
767.59 Annotation
The date when a maintenance order is vacated under sub. (3) is a discretionary determination based on the specific facts and equities of the case. Hansen v. Hansen,
176 Wis. 2d 327,
500 N.W.2d 357 (Ct. App. 1993).
767.59 Annotation
In the absence of a specific agreement that maintenance payments continue after the payee's remarriage, the payer was not estopped from seeking termination upon the payee's remarriage. Jacobson v. Jacobson,
177 Wis. 2d 539,
502 N.W.2d 869 (Ct. App. 1993).
767.59 Annotation
An agreement that the husband would complete his education when the wife completed hers and the wife's increased income upon completion of her education were both relevant to the husband's request for a change in support upon returning to graduate school full time. Kelly v. Hougham,
178 Wis. 2d 546,
504 N.W.2d 440 (Ct. App. 1993).
