767.61 Annotation
To require a party to share in the debts created by a spouse's unjustified depletion of marital assets would constitute a failure to consider the total contribution of each of the parties to the marital estate. Chapter 767 makes recompense available when one spouse has mismanaged or dissipated assets. Depending on the circumstances of the case, one spouse's failure to pay tax debts can be considered the mismanagement or dissipation of assets and therefore marital waste. Covelli v. Covelli,
2006 WI App 121,
293 Wis. 2d 707,
718 N.W.2d 260,
05-1960.
767.61 Annotation
Although a circuit court may consider substantial gifted assets when dividing the marital estate, it may not divide the marital estate to work a de facto splitting of those assets where there is no hardship. While substantial assets not subject to division by the court is a factor to be considered in departing from equal division of property under sub. (3), sub. (3) begins with the presumption that the marital estate should be evenly divided. Absent some special circumstances demonstrating that some unfairness would result from equal division, the presumption should stand. Grumbeck v. Grumbeck,
2006 WI App 215,
296 Wis. 2d 611,
723 N.W. 2d 778,
05-2512.
767.61 Annotation
The court did not err in awarding maintenance out of the proceeds of a covenant not to compete that arose from the sale of shares already to be a gift, and not subject to property division under sub. (2). The payments were in exchange for a service to be performed; refraining from doing business in a way that would be harmful to the purchasers. Grumbeck v. Grumbeck,
2006 WI App 215,
296 Wis. 2d 611,
723 N.W. 2d 778,
05-2512.
767.61 Annotation
The burden of proving that property is non-divisible lies with the party arguing that this property is exempt from division who must establish: 1) the original gifted or inherited status of the property; and 2) that the character and identity of the property has been preserved. The identity inquiry addresses whether the gifted or inherited asset has been preserved in some present identifiable form and is more a matter of tracing the asset. The character inquiry examines whether the owning spouse intended to donate non-divisible property to the marriage and is more clearly denoted as donative intent. Wright v. Wright,
2008 WI App 21,
307 Wis. 2d 156,
747 N.W.2d 690,
06-2111.
767.61 Annotation
Retained earnings from a separate asset are usually considered to be a marital asset. However, in the instant case the trial court found that the current retained earnings of disputed stock were not income generated, but rather were insurance proceeds from the loss of an asset. When insurance proceeds compensate for the loss of a gifted asset, they are non-divisible. When insurance proceeds compensate for the loss of income, they are divisible. Wright v. Wright,
2008 WI App 21,
307 Wis. 2d 156,
747 N.W.2d 690,
06-2111.
767.61 Annotation
Commingling of separate and marital property does not automatically taint the gifted asset. When it was undisputed that nothing has ever been withdrawn from a gifted account, it was very easy to trace the original gifted asset, despite the addition of a divisible dividend within the account, and the divisible dividend did not taint the status of the original gift. However, other unaccounted for deposits resulted in the transmutation of the account into a divisible account. Wright v. Wright,
2008 WI App 21,
307 Wis. 2d 156,
747 N.W.2d 690,
06-2111.
767.61 Annotation
Tracing and transmutation principles may be applied to cases that do not involve gifted or inherited property. Tracing can identify such property as originally indivisible, but proof of donative intent can establish that the property's identity and character changed, and it was transmuted into divisible joint property. In particular, when separate property presumed to be indivisible is transmuted through a joint tenancy, it is effectively transferred to marital property, and tracing does not cause the property to revert back to its original separate property identity. Steinmann v. Steinmann,
2008 WI 43,
309 Wis. 2d 29,
749 N.W.2d 145,
05-1588.
767.61 Annotation
Tracing is nothing more than the exercise of following an asset trail. If an asset, or component part of an asset, can be traced to a source, the court relies on other principles and rules to determine whether the traced asset is divisible or non-divisible. That the existence of subsequently purchased property can be traced to income generated by non-divisible property does not mean that the purchased property is non-divisible. Rather, once property is transferred from separate property to joint ownership, the property becomes part of the marital estate subject to division even if it is inherited property generally deemed indivisible. Steinmann v. Steinmann,
2008 WI 43,
309 Wis. 2d 29,
749 N.W.2d 145,
05-1588.
767.61 Annotation
There were no reasonable grounds for reversing the circuit court's decision not to allocate debts based on future tax liability, the exact amount of which was a matter of speculation, based on the lower court's conclusion that the IRS is best qualified to determine what amount a divorcing couple owes the IRS. Steinmann v. Steinmann,
2008 WI 43,
309 Wis. 2d 29,
749 N.W.2d 145,
05-1588.
767.61 Annotation
It was within the trial court's discretion whether to include as part of the marital estate subject to division stock options earned during the marriage that the trial court viewed as having no value at the time of divorce because the cost to exercise the options was greater than the price of the stock. The trial court erroneously exercised its discretion by excluding the options from division because it erroneously viewed their potential value as being almost solely a function of what the owner spouse would do in his business after the divorce, despite their decline in value having been caused largely by the broader economy, and largely ignored the fact that the options were earned while the parties were married. Heppner v. Heppner,
2009 WI App 90,
319 Wis. 2d 237,
768 N.W.2d 261,
08-2020.
767.61 Annotation
When valuing a business interest that is part of the marital estate for purposes of property division, a circuit court shall include the entire value of the salable professional goodwill attendant to the business interest. The circuit court did not double count the value of professional goodwill when it included the goodwill in the divisible marital estate, and then based a maintenance award on the professional spouse's expected future earnings. As with income from an income earning asset, income from a professional practice is separate from the value of the practice as it exists at the time of the property division and is properly considered in determining maintenance. McReath v. McReath,
2011 WI 66,
335 Wis. 2d 643,
800 N.W.2d 399,
09-0639.
767.61 Annotation
Federal law precludes a state court from dividing military nondisability retirement pay pursuant to state community property laws. McCarty v. McCarty,
453 U.S. 210 (1981).
767.61 Annotation
An insured's beneficiary designation under servicemen's group life insurance policy prevailed over a constructive trust imposed by a state court. Ridgeway v. Ridgeway,
454 U.S. 46 (1981).
767.61 Annotation
ERISA did not preempt a Wisconsin court order awarding a spouse 1/2 of a beneficiary's interest in a pension. Savings and Profit Sharing Fund of Sears Employees v. Gago,
717 F.2d 1038 (1983).
767.61 Annotation
Dilemma v. Paradox: Valuation of an advanced degree upon dissolution of a marriage. Loeb and McCann, 66 MLR 495 (1983).
767.61 Annotation
The recognition and valuation of professional goodwill in the marital estate. 66 MLR 697 (1983).
767.61 Annotation
Enhanced value of a closely held corporation at the time of divorce: What role will Wisconsin's marital property act play? Podell, 69 MLR 82 (1985).
767.61 Annotation
No-fault divorce: Tax consequences of support, maintenance and property settlement. Case, 1977 WBB 11.
767.61 Annotation
Prenuptial and postnuptial agreements. Loeb, WBB March 1981.
767.61 Annotation
Drafting enforceable marital agreements. Garczynski. WBB Sept. 1986.
767.61 Annotation
The marital property act does not change Wisconsin's divorce law. Weisberger. WBB May 1987.
767.61 Annotation
Transmutation: Finding extra property to divide in divorce. Kessler. Wis. Law. Aug. 1990.
767.61 Annotation
Divorce Provisions in Opt-out Marital Property Agreements. Rasmussen. Wis. Law. April 1994.
767.61 Annotation
A Decade Post-Button v. Button: Drafting Prenuptial Agreements. Garczynski. Wis. Law. July 1999.
767.61 Annotation
A Primer on Dividing a Military Pension. Halling & Drefahl. Wis. Law. Aug. 1999.
767.61 Annotation
When Lovebirds Split: Dividing the Retirement Nest Egg at Divorce — Properly Dividing Pension Benefits. Patel. Wis. Law. Oct. 2006.
767.61 Annotation
When Lovebirds Split: Dividing the Retirement Nest Egg at Divorce — Dividing Wisconsin Retirement System Benefits. Dennison. Wis. Law. Oct. 2006.
767.61 Annotation
Business Owners in Divorce: A Basic Overview. Krimmer. Wis. Law. June 2008.
767.61 Annotation
Valuing Retirement Benefits in Divorce. Dennison. Wis. law. June 2012.
767.63
767.63
Disposed assets may be subject to division. In an action affecting the family, except an action to affirm marriage under
s. 767.001 (1) (a), any asset with a fair market value of $500 or more that would be considered part of the estate of either or both of the parties if owned by either or both of them at the time of the action and that was transferred for inadequate consideration, wasted, given away, or otherwise unaccounted for by one of the parties within one year prior to the filing of the petition or the length of the marriage, whichever is shorter, is rebuttably presumed to be property subject to division under
s. 767.61 and is subject to the disclosure requirement of
s. 767.127. Transfers that resulted in an exchange of assets of substantially equivalent value need not be specifically disclosed if those assets are otherwise identified in the statement of net worth.
767.63 History
History: 1977 c. 105;
1979 c. 32 ss.
50,
92 (4);
1979 c. 352 s.
39; Stats. 1979 s. 767.275;
2005 a. 443 s.
124; Stats. 2005 s. 767.63.
ENFORCEMENT
767.70
767.70
Child support enforcement: notice and service of process. 767.70(1)(1)
When satisfied. In an action under
s. 767.001 (1) (i) to enforce or modify a judgment or order with respect to child support, due process requirements related to notice and service of process are satisfied if the court finds all of the following:
767.70(1)(a)
(a) That a diligent effort was made to ascertain the location of the respondent.
767.70(1)(b)
(b) That written notice of the action to the respondent has been delivered to the most recent residential address or employer address provided by the respondent under
s. 767.58 (2) to the county child support agency under
s. 59.53 (5).
767.70(2)
(2) Rules on locating respondent. The department shall promulgate rules specifying the process that the department will use under
sub. (1) (a) to ascertain the location of the respondent. Notwithstanding
sub. (1) (b), the process specified in the rules shall utilize all reasonable means to which the department has access, including electronic means, interfaces with other programs, and information provided by the postmaster, for determining the current address of the respondent.
767.70 History
History: 1997 a. 191;
2005 a. 443 s.
21; Stats. 2005 s. 767.70.
767.70 Cross-reference
Cross-reference: See also ch.
DWD 142, Wis. adm. code.
767.71
767.71
Reconciling percentage-expressed support orders. 767.71(1)(a)(a) In this section, "support order" means an order for child support under this chapter or
s. 948.22 (7), an order for family support under this chapter, or a stipulation approved by the court for child support under this chapter.
767.71(1)(b)
(b) If a support order is or has been expressed as a percentage of parental income, a party, including the state or a county child support agency under
s. 59.53 (5) if the state is a real party in interest under
s. 767.205 (2) (a), may request a determination under this section of the amount due under the order. The court may determine the amount due and, if ordered by the court, the county child support agency shall reconcile the amount due with payments actually made to determine if an arrearage exists.
767.71(2)(a)(a) The party seeking the determination under this section shall file with the court a notice of reconciliation of account and a supporting affidavit. No later than 3 business days after filing, the party seeking the determination shall serve the notice and affidavit on all other parties, including the child support agency if the state is a real party in interest, by sending the notice and affidavit by regular mail to the last-known address provided under
s. 767.58 (2), pursuant to
s. 767.70.
767.71(2)(b)
(b) The notice of reconciliation of account shall include all of the following:
767.71(2)(b)1.
1. The period of time for which the reconciliation is sought.
767.71(2)(b)2.
2. A statement that, unless a party requests a hearing no later than 20 business days after the date of the notice, the court may enter an order determining the amount due under the percentage-expressed order and may enter a repayment order that applies if the reconciliation of the amount due with payments made results in an arrearage.
767.71(2)(b)3.
3. The mailing address to which the request for a hearing must be delivered or mailed to schedule a hearing under
sub. (3).
767.71(2)(c)
(c) The supporting affidavit shall state the facts supporting a reasonable basis for determining the payer's income during the period of time for which the reconciliation is sought.
767.71(3)(a)(a) Within 10 business days after receiving a timely request for a hearing, the court shall set the matter for hearing. The court shall send notice of the date, time, and location of the hearing to the parties by regular mail at their last-known addresses.
767.71(3)(b)
(b) At the hearing, the court may establish the appropriate charge under the percentage order by determining the amount of the payer's income that is subject to the percentage-expressed order during the period for which reconciliation is sought and applying the ordered percentage to that amount. The court may enter a repayment order that becomes effective if the reconciliation of the amount due with payments made results in an arrearage.
767.71(4)
(4) If no hearing. If no party requests a hearing, the court shall review the supporting affidavit within 60 days of filing. If the court finds that the affidavit contains a reasonable basis for determining the payer's income during the period for which reconciliation is sought, the court may enter an order determining the amount due under the percentage-expressed order and may enter a repayment order that becomes effective if the reconciliation of the amount due with payments made results in an arrearage. The court shall send the order to the parties by regular mail to their last-known addresses.
767.71(5)
(5) Enforcement. Any arrearage that exists as a result of the reconciliation of the amount due with payments made may be enforced under
ch. 49 or this chapter.
767.71 History
History: 2005 a. 443.
767.73
767.73
Delinquent child or family support; suspension of operating privilege. 767.73(1)(a)(a) In this subsection, "support payment" means a payment ordered for support under
s. 767.521, support under
s. 767.501, child support or family support under
s. 767.225, child support under
s. 767.511, family support under
s. 767.531, revised child or family support under
s. 767.59, child support under
s. 767.863 (3), child support under
s. 767.85, child support under
s. 767.89, child support under
s. 767.805 (4), child support under
ch. 769, or child support under
s. 948.22 (7).
767.73(1)(b)
(b) If a person fails to pay a support payment that is 90 or more days past due and the court finds that the person has the ability to pay the amount ordered, the court may suspend the person's operating privilege, as defined in
s. 340.01 (40), until the person pays all arrearages in full or makes payment arrangements that are satisfactory to the court, except that the suspension period may not exceed 2 years. If otherwise eligible, the person is eligible for an occupational license under
s. 343.10 at any time.
767.73(2)
(2) Notice of suspension to department of transportation. If a court orders suspension of a person's operating privilege under
sub. (1) (b), the court shall notify the department of transportation, in the form and manner prescribed by the department. The notice to the department shall include the name and last-known address of the person against whom the support order was entered, certification by the court that the person has been notified of the entry of the support order and that there are arrearages in support payments that are 90 or more days past due, and the place where the arrearages may be paid. The notice shall also state that the person's operating privilege remains suspended until the person pays all arrearages in full or makes payment arrangements that are satisfactory to the court, except that the suspension period may not exceed 2 years.
767.73(3)
(3) Notice of payment to department. If the person subsequently pays the full amount of the arrearages or makes payment arrangements that are satisfactory to the court, the court shall immediately notify the department of transportation of the payment in the form and manner prescribed by the department.
767.73(4)
(4) Application to past arrearages. This section applies to support arrearages existing on or after October 1, 1996, regardless of when the arrearages accrued or when the order or judgment requiring the payment of support was entered.
767.73(5)
(5) Relationship to other remedies. The remedy permitted under this section is in addition to any other remedies authorized by law.
767.73 History
History: 1995 a. 401;
1997 a. 84,
191;
1999 a. 9,
32;
2005 a. 443 ss.
139,
140,
141,
236; Stats. 2005 s. 767.73.
767.75
767.75
Assignment of income for payment obligations. 767.75(1)(a)
(a) "Employer" includes the state and its political subdivisions.
767.75(1)(b)
(b) "Payment order" means an order for child support under this chapter, for maintenance payments under
s. 767.225 or
767.56, for family support under this chapter, for costs ordered under
s. 767.805 (4) or
767.89 (3), for support by a spouse under
s. 767.001 (1) (f), or for maintenance payments under
s. 767.001 (1) (g); an order for or obligation to pay the annual receiving and disbursing fee under
s. 767.57 (1e) (a); an order for a revision in a judgment or order with respect to child support, maintenance, or family support payments under
s. 767.59; a stipulation approved by the court for child support under this chapter; and an order for child or spousal support entered under
s. 948.22 (7).
767.75(1f)
(1f) Payment order as assignment of income. A payment order constitutes an assignment of all commissions, earnings, salaries, wages, pension benefits, benefits under
ch. 102 or
108, lottery prizes that are payable in installments, and other money due or to be due in the future to the department or its designee. The assignment shall be for an amount sufficient to ensure payment under the order, obligation, or stipulation and to pay any arrearages due at a periodic rate not to exceed 50% of the amount of support due under the order, obligation, or stipulation so long as the addition of the amount toward arrearages does not leave the party at an income below the poverty line established under
42 USC 9902 (2).
767.75(1m)
(1m) Obligation continuing. If a party's current obligation to pay maintenance, child support, spousal support, or family support terminates but the party has an arrearage in the payment of one or more of those payments or in the payment of the annual receiving and disbursing fee, any assignment under
sub. (1f) continues in effect, in an amount up to the amount of the assignment before the party's current obligation terminated, until the arrearage is paid in full.
767.75(2h)
(2h) Delayed withholding; failure to pay. If a court-ordered assignment, including the assignment specified under
sub. (1f) for the payment of any arrearages due, does not require immediately effective withholding and a payer fails to make a required maintenance, child support, spousal support, family support, or annual receiving and disbursing fee payment within 10 days after its due date, within 20 days after the payment's due date the court or county child support agency under
s. 59.53 (5) shall cause the assignment to go into effect by providing notice of the assignment in the manner provided under
sub. (2r) and shall send a notice by regular mail to the last-known address of the payer. The notice sent to the payer shall inform the payer that an assignment is in effect and that the payer may, within a 10-day period after the notice is mailed, by motion request a hearing on the issue of whether the assignment should remain in effect. The court shall hold a hearing requested under this subsection within 10 working days after the date of receipt of the request. If at the hearing the payer establishes that the assignment is not proper because of a mistake of fact, the court may direct that the assignment be withdrawn. Either party may, within 15 working days after the date of a decision by a circuit court commissioner under this subsection, seek review of the decision by the court with jurisdiction over the action.
767.75(2m)
(2m) Unpaid receiving and disbursing fees; assignment. 767.75(2m)(a)1.1. An obligation to pay unpaid fees under
s. 767.57 (1e) (b) 1m. constitutes an assignment of all commissions, earnings, salaries, wages, pension benefits, benefits under
ch. 102 or
108, lottery prizes that are payable in installments, and other money due or to be due in the future to the department or its designee.
767.75(2m)(a)2.
2. An obligation to pay unpaid fees under
s. 767.57 (1e) (b) 2m. constitutes an assignment of all commissions, earnings, salaries, wages, pension benefits, benefits under
ch. 102 or
108, lottery prizes that are payable in installments, and other money due or to be due in the future to the clerk of court to whom the fees are owed, or to his or her successor.
767.75(2m)(b)
(b) The county child support agency under
s. 59.53 (5) may cause an assignment under
par. (a) to go into effect by providing notice of the assignment in the manner provided under
sub. (2r) and sending a notice by regular mail to the last-known address of the payer. The notice sent to the payer shall inform the payer that an assignment is in effect and that the payer may, within a 10-day period after the notice is mailed, by motion request a hearing on the issue of whether the assignment should remain in effect. The court shall hold a hearing requested under this paragraph within 10 working days after the date of receipt of the request. If at the hearing the payer establishes that the assignment is not proper because of a mistake of fact, the court may direct that the assignment be withdrawn. The payer or the county child support agency may, within 15 working days after the date of a decision by a circuit court commissioner under this paragraph, seek review of the decision by the court with jurisdiction over the action.
767.75(2r)
(2r) Notice of assignment to income source. Upon entry of each order for child support, maintenance, family support, support by a spouse, or the annual receiving and disbursing fee, and upon approval of each stipulation for child support, unless the court finds that income withholding is likely to cause the payer irreparable harm or unless
s. 767.76 applies, the court or county child support agency under
s. 59.53 (5) shall provide notice of the assignment by regular mail or by facsimile machine, as defined in
s. 134.72 (1) (a), or other electronic means to the last-known address of the person from whom the payer receives or will receive money. The notice shall provide that the amount withheld may not exceed the maximum amount that is subject to garnishment under
15 USC 1673 (b) (2). If the department or its designee does not receive the money from the person notified, the court or county child support agency under
s. 59.53 (5) shall provide notice of the assignment to any other person from whom the payer receives or will receive money. Notice under this subsection may be a notice of the court, a copy of the executed assignment, or a copy of that part of the court order directing payment.
767.75(3h)
(3h) Duties of person receiving assignment notice. A person who receives notice of assignment under this section or
s. 767.225 (1) (L) or
767.513 (3) or similar laws of another state shall withhold the amount specified in the notice from any money that person pays to the payer later than one week after receipt of notice of assignment. Within 5 days after the day the person pays money to the payer, the person shall send the amount withheld to the department or its designee or, in the case of an amount ordered withheld for health care expenses, to the appropriate health care insurer, provider, or plan. With each payment sent to the department or its designee, the person from whom the payer receives money shall report to the department or its designee the payer's gross income or other gross amount from which the payment was withheld. Except as provided in
sub. (3m), for each payment sent to the department or its designee, the person from whom the payer receives money shall receive an amount equal to the person's necessary disbursements, not to exceed $3, which shall be deducted from the money to be paid to the payer.
Section 241.09 does not apply to assignments under this section.
767.75(3m)
(3m) Assignment of unemployment compensation benefits. Benefits under
ch. 108 may be assigned and withheld only in the manner provided in
s. 108.13 (4). Any order to withhold benefits under
ch. 108 shall be for a fixed sum unless the court-ordered obligation on which the withholding order is based is expressed in the court order as a percentage of the payer's income, in which case an order to withhold benefits under
ch. 108 shall be for a percentage of benefits payable. When money is to be withheld from these benefits, no fee may be deducted from the amount withheld and no fine may be levied for failure to withhold the money.
767.75(4)
(4) Assignment priority. A withholding assignment or order under this section or
s. 767.225 (1) (L) or
767.513 (3) has priority over any other assignment, garnishment, or similar legal process under state law.
767.75(6)
(6) Failure to comply with assignment obligations. 767.75(6)(a)(a) Except as provided in
sub. (3m), if after receipt of notice of assignment the person from whom the payer receives money fails to withhold the money or send the money to the department or its designee or the appropriate health care insurer, provider, or plan as provided in this section or
s. 767.225 (1) (L) or
767.513 (3), the person may be proceeded against under the principal action under
ch. 785 for contempt of court or may be proceeded against under
ch. 778 and be required to forfeit not less than $50 nor more than an amount, if the amount exceeds $50, that is equal to 1% of the amount not withheld or sent.
767.75(6)(b)
(b) If an employer who receives an assignment under this section or
s. 767.225 (1) (L) or
767.513 (3) fails to notify the department or its designee within 10 days after an employee is terminated or otherwise temporarily or permanently leaves employment, the employer may be proceeded against under the principal action under
ch. 785 for contempt of court.
767.75(6)(c)
(c) No employer may use an assignment under this section or
s. 767.225 (1) (L) or
767.513 (3) as a basis for the denial of employment to a person, the discharge of an employee, or any disciplinary action against an employee. An employer who denies employment or discharges or disciplines an employee in violation of this paragraph may be fined not more than $500 and may be required to make full restitution to the aggrieved person, including reinstatement and back pay. Except as provided in this paragraph, restitution shall be in accordance with
s. 973.20. An aggrieved person may apply to the district attorney or to the department for enforcement of this paragraph.
767.75(6m)
(6m) Conversion of certain support orders to fixed amount. A county child support agency under
s. 59.53 (5) may convert a support amount in an order for income withholding under this section that is expressed as a percentage of income to the equivalent sum certain amount for purposes of enforcing a child support order in another state under
subch. V or
VI of ch. 769. Nothing in this subsection authorizes a change, or may be construed to change, the support obligation specified in the underlying child support order.
767.75(7)
(7) Receipt of more than one notice of assignment. A person who receives more than one notice of assignment under
sub. (3h) may send all money withheld to the department or its designee, whichever is appropriate, in a combined payment, accompanied by any information the department or its designee requires.
