767.34 Annotation
An agreement made in contemplation of divorce, entered into after the parties agreed to the divorce, was subject to s. 767.10 [now s. 767.34], not s. 767.255 [now s. 767.61]. 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),
98-3450.
767.34 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 from a stipulation until it is incorporated in a judgment, and repudiation may render the stipulation nonexistent. Van Boxtel v. Van Boxtel, 2001 WI 40,
242 Wis. 2d 474,
625 N.W.2d 284,
99-0341.
767.34 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.
767.34 Annotation
A stipulation under this section is not a contract that would be binding on the parties once entered into, but is only a recommendation to the court. The court need not accept it but has a duty to decide whether that recommendation is a fair and reasonable resolution of the issues that the court wants to adopt. When a court adopts a stipulation, it does so on its own responsibility within it's discretion, and the provisions become the court's judgment. Once the court decides to do so, the right of a party to withdraw from the stipulation comes to an end. Hottenroth v. Hetsko, 2006 WI App 249,
298 Wis. 2d 200,
727 N.W.2d 38,
05-1212.
767.34 Annotation
Before approving a stipulation, the circuit court is not required to take evidence and make an investigation in essentially the same manner as if the stipulated matters were contested. Under the facts of this case it was unnecessary to define the minimum requirements that must be met before a court approves a stipulation. Hottenroth v. Hetsko, 2006 WI App 249,
298 Wis. 2d 200,
727 N.W.2d 38,
05-1212.
767.35
767.35
Judgment of divorce or legal separation. 767.35(1)(1)
When granted. A court shall grant a judgment of divorce or legal separation if all of the following conditions are met:
767.35(1)(a)
(a) The requirements of this chapter as to residence and attendance at an educational program under
s. 767.401 have been complied with.
767.35(1)(b)1.1. In connection with a judgment of divorce or legal separation, the court finds that the marriage is irretrievably broken under
s. 767.315 (1) (a) or
(b) 1. or
2., unless
subd. 2. applies.
767.35(1)(b)2.
2. In connection with a judgment of legal separation, the court finds that the marital relationship is broken under
s. 767.315 (2).
767.35(1)(c)
(c) To the extent that it has jurisdiction to do so, the court has considered and approved or made provision for legal custody and physical placement, the support of any child of the marriage entitled to support, the maintenance of either spouse, the support of the family under
s. 767.531, and the disposition of property.
767.35(2)
(2) Granting divorce or legal separation. When a party requests a legal separation rather than a divorce, the court shall grant a judgment of legal separation unless the other party requests a divorce, in which case the court shall hear and determine which judgment shall be granted.
767.35(3)
(3) When divorce judgment effective. A judgment of divorce is effective when granted. A court granting a judgment of divorce shall inform the parties appearing in court that the judgment is effective when granted but that it is unlawful under
s. 765.03 (2) for a party to marry again until 6 months after the judgment is granted.
767.35(4)
(4) Revocation of legal separation judgment upon reconciliation. A judgment of legal separation shall provide that, if a reconciliation occurs at any time after the judgment, the parties may apply for a revocation of the judgment. Upon application for a revocation of the judgment, the court shall make such orders as may be just and reasonable.
767.35(5)
(5) Conversion of legal separation to divorce. By stipulation of both parties, or upon motion of either party not earlier than one year after entry of a judgment of legal separation, the court shall convert the judgment to a judgment of divorce.
767.35(6)
(6) Vacating or modifying divorce judgment as it affects marital status. So far as a judgment of divorce affects the marital status of the parties, the court may vacate or modify the judgment for sufficient cause shown, upon its own motion, or upon the application of both parties to the action, at any time within 6 months from the granting of the judgment. If the judgment is vacated it shall restore the parties to the marital relation that existed before the granting of the judgment. If a judgment of divorce is set aside under this subsection, the court shall order the record in the action impounded without regard to
s. 767.13. After the record is impounded, the record may not be offered or admitted in whole or in part into evidence in any action or proceeding except by special order of the court of jurisdiction upon good cause shown in any paternity proceedings under this chapter or by special order of a court of record upon a showing of necessity to clear title to real estate.
767.35(7)
(7) Divorce judgment revoked on remarriage of parties. When a judgment of divorce has been granted and the parties subsequently intermarry, the court, upon their joint application and upon satisfactory proof of the marriage, shall revoke all judgments and any orders that will not affect the right of 3rd persons. If the judgment is revoked, the court shall order the record impounded without regard to
s. 767.13, and the record may not be offered or admitted, in whole or in part, into evidence in any action or proceeding except by special order of the court of jurisdiction upon good cause shown in a paternity proceeding under this chapter or by special order of a court of record upon a showing of necessity to clear title to real estate.
767.35 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;
2005 a. 443 ss.
35,
36,
53,
172,
173,
174; Stats. 2005 s. 767.35;
2009 a. 180.
767.35 Annotation
Sub. (2) [now sub. (6)] does not authorize vacating or modifying a finding of paternity of children determined in the original divorce judgment. E. v. E.
57 Wis. 2d 436,
204 N.W.2d 503 (1973).
767.35 Annotation
Sub. (2) [now sub. (6)] provides no authority for reopening a divorce judgment as it relates to a property division. Conrad v. Conrad,
92 Wis. 2d 407,
284 N.W.2d 674 (1979).
767.35 Annotation
The death of a party within 6 months of a divorce judgment did not void the judgment or divest the court of jurisdiction to order property division. Roeder v. Roeder,
103 Wis. 2d 411,
308 N.W.2d 904 (Ct. App. 1981).
767.35 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).
767.35 Annotation
If the requirements of sub. (2) [now sub. (5)] are met, conversion to a divorce decree is mandatory. Bartz v. Bartz,
153 Wis. 2d 756,
452 N.W.2d 160 (Ct. App. 1989).
767.36
767.36
Copies of judgment to parties. At the time of filing a judgment for an annulment, divorce, or legal separation, the party who prepared the judgment shall furnish to the clerk of court 2 true copies of the judgment, including any attachments to the judgment referenced in the judgment, in addition to the original judgment. Until the copies are presented, the clerk may refuse to accept the judgment for filing. After the judgment is filed, the clerk shall mail a copy promptly to each party to the action at the last-known address, and the mailing shall be shown in the court record.
767.36 History
History: 2005 a. 443 s.
171.
767.375
767.375
Effect on transfers at death. 767.375(1)
(1)
Revocation of death provisions in marital property agreement. Unless the judgment provides otherwise, a judgment of annulment, divorce or legal separation revokes a provision in a marital property agreement under
s. 766.58 that provides for any of the following:
767.375(1)(a)
(a) That, upon the death of either spouse, any of either or both spouses' property, including after-acquired property, passes without probate to a designated person, trust or other entity by nontestamentary disposition.
767.375(1)(b)
(b) That one or both spouses will make a particular disposition in a will or other governing instrument, as defined in
s. 854.01 (2).
767.375(2)
(2) Revocation of revocable transfers at death. Unless
sub. (1) applies, revocation of revocable transfers at death by a former spouse to the other former spouse, or to relatives of the other former spouse, under an instrument executed before the judgment of annulment, divorce or legal separation is governed by
s. 854.15.
767.375 History
History: 1991 a. 301;
1997 a. 188;
2005 a. 216;
2005 a. 443 s.
119; Stats. 2005 s. 767.375.
767.385
767.385
Maintenance, legal custody, and support when divorce or separation denied. If a judgment in an action for divorce or legal separation denies the divorce or legal separation, the court may make such order as the nature of the case renders just and reasonable for the legal custody of and periods of physical placement with any of the minor children, and for the maintenance of either spouse and support of the children by either spouse out of property or income. If the court orders child support under this section, the court shall determine the child support payments in a manner consistent with
s. 767.511, regardless of the fact that a judgment of divorce or legal separation has not been entered.
767.385 History
History: 1971 c. 220;
1979 c. 32 s.
50; Stats. 1979 s. 767.28;
1987 a. 355;
1993 a. 481;
2005 a. 443 s.
125; Stats. 2005 s. 767.385.
767.395
767.395
Name of spouse. Except as provided in
s. 301.47, the court, upon granting a divorce, shall allow either spouse, upon request, to resume a former legal surname, if any.
767.395 History
History: 1975 c. 94;
1979 c. 32 s.
50; Stats. 1979 s. 767.20;
2003 a. 52;
2005 a. 443 s.
78; Stats. 2005 s. 767.395.
767.395 Annotation
Women's names in Wisconsin: In Re Petition of Kruzel. MacDougall, 1975 WBB No. 4.
CHILD CUSTODY, PLACEMENT, AND VISITATION
767.401
767.401
Educational programs and classes. 767.401(1)
(1)
Programs: effects of dissolution on children; parenting skills. 767.401(1)(a)(a) During the pendency of an action affecting the family in which a minor child is involved and in which the court determines that it is appropriate and in the best interest of the child, the court, on its own motion, may order the parties to attend a program specified by the court concerning the effects on a child of a dissolution of the marriage. If the court orders the parties to attend a program under this paragraph and there is evidence that one or both of the parties have 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), the court may not require the parties to attend the program together or at the same time.
767.401(1)(b)
(b) During the pendency of an action to determine the paternity of a child, or an action affecting the family for which the underlying action was an action to determine the paternity of a child, if the court determines that it is appropriate and in the best interest of the child, the court, on its own motion, may order either or both of the parties to attend a program specified by the court providing training in parenting or coparenting skills, or both.
767.401(1)(c)
(c) A program under
par. (a) or
(b) shall be educational rather than therapeutic in nature and may not exceed a total of 4 hours in length. The parties shall be responsible for the cost, if any, of attendance at the program. The court may specifically assign responsibility for payment of any cost. No facts or information obtained in the course of the program, and no report resulting from the program, is admissible in any action or proceeding.
767.401(1)(d)
(d) Notwithstanding
s. 767.35 (1), the court may require the parties to an action affecting the family in which a minor child is involved to attend a program under
par. (a) or
(b) as a condition to the granting of a final judgment or order in the action affecting the family.
767.401(1)(e)
(e) A party who fails to attend a program ordered under
par. (a) or
(b) or pay costs specifically ordered under
par. (c) may be proceeded against under
ch. 785 for contempt of court.
767.401(2)(a)(a) During the pendency of a divorce or paternity action, the court may order the parties to attend a class that is approved by the court and that addresses such issues as child development, family dynamics, how parental separation affects a child's development, and what parents can do to make raising a child in a separated situation less stressful for the child.
767.401(2)(b)
(b) The court may not require the parties to attend a class under this subsection as a condition to the granting of the final judgment or order in the divorce or paternity action, however, the court may refuse to hear a custody or physical placement motion of a party who refuses to attend a class ordered under this subsection.
767.401(2)(c)1.1. Except as provided in
subd. 2., the parties shall be responsible for any cost of attending the class.
767.401(2)(c)2.
2. If the court finds that a party is indigent, any costs that would be the responsibility of that party shall be paid by the county.
767.401 History
History: 1993 a. 225;
1997 a. 45;
1999 a. 9;
2001 a. 61;
2003 a. 130;
2005 a. 443 ss.
59 to
63,
180; Stats. 2005 s. 767.401.
767.405
767.405
Family court services. 767.405(1)(a)
(a) "Mediation" means a cooperative process involving the parties and a mediator, the purpose of which is to help the parties, by applying communication and dispute resolution skills, define and resolve their own disagreements, with the best interest of the child as the paramount consideration.
767.405(1)(b)
(b) "Mediator" means a person with special skills and training in dispute resolution.
767.405(1m)(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 services in that county.
767.405(1m)(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 services for those counties.
767.405(1m)(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).
767.405(2)
(2) Duties. A director of family court services designated under
sub. (1m) shall administer a family court services office if such an office is established under
sub. (3) (a) or
(b). Regardless of whether the office is established, the director shall:
767.405(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.
767.405(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).
767.405(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 the mediation or study services.
767.405(2)(d)
(d) Administer and manage funding for family court services.
767.405(3)
(3) Mediation provided. Mediation shall be provided in every county in this state by any of the following means:
767.405(3)(a)
(a) A county may establish a family court services office to provide mediation in that county.
767.405(3)(b)
(b) Two or more contiguous counties may enter into a cooperative agreement to establish one family court services office to provide mediation in those counties.
767.405(3)(c)
(c) A director of family court services designated under
sub. (1m) may contract with any person or public or private entity, located in a county in which the director administers family court services or in a contiguous county, to provide mediation in the county in which the person or entity is located.
767.405(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.
767.405(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. 767.451 or
767.59, in which it appears that legal custody or physical placement is contested, the court shall refer the parties to the director of family court services for possible mediation of those contested issues. The court shall inform the parties of all of the following:
767.405(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).
767.405(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.
767.405(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 refer the parties to the director of family court 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.
767.405(5)(c)
(c) A person who is awarded periods of physical placement or a child of that 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 services for assistance in resolving the problem.
767.405(6)(a)(a) Whenever a court refers a party to the director of family court services for possible mediation, the director shall assign a mediator to the case. The mediator shall provide mediation if he or she determines that it is appropriate. If the mediator determines that mediation is not appropriate, he or she shall so notify the court. Whenever a court refers a party to the director of family court services for any other family court service, the director shall take appropriate action to provide the service.
767.405(6)(b)
(b) Any intake form that the family court 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).
767.405(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 a mediator under this subsection shall sign and file with the director of family court services and with the court a written notice stating the mediator's name and the date of the first meeting with the mediator.
767.405(8)
(8) Initial session of mediation required. 767.405(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. 767.451 or
767.59, 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.
767.405(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:
