Chapter 767

767.481 Annotation Airing the Controversy: Wisconsin’s Child Removal Law. Herman, Cooper, & Melli. Wis. Law. June 1993.

767.481 Annotation Dissecting the New Family Relocation Statute. Krimmer. Wis. Law. July/Aug. 2018.

subch. VI of ch. 767 SUBCHAPTER VI

SUPPORT AND MAINTENANCE

767.501 767.501 Actions to compel support.

767.501(1) (1) Definitions. In this section:

767.501(1)(a) (a) “Nonlegally responsible relative” means a relative who assumes responsibility for the care of a child without legal custody, but is not in violation of a court order. “Nonlegally responsible relative” does not include a relative who has physical custody of a child during a court-ordered visitation period.

767.501(1)(b) (b) “Relative” means any person connected with a child by blood, marriage or adoption.

767.501(2) (2) Who may commence; support determination.

767.501(2)(a) (a) If a person does not provide for the support and maintenance of his or her spouse or minor child, any of the following may commence a court action to compel the person to provide support and maintenance:

767.501(2)(a)1. 1. The person’s spouse.

767.501(2)(a)2. 2. The minor child.

767.501(2)(a)3. 3. The person with legal custody of the child.

767.501(2)(a)4. 4. A nonlegally responsible relative.

767.501(2)(b) (b) The court in the action shall, under s. 767.511 or 767.56, determine the amount, if any, that the person should reasonably contribute to the support and maintenance of the spouse or child and how the sum shall be paid. The amount shall be expressed as a fixed sum unless the parties have stipulated to expressing the amount as a percentage of the payer’s income and the requirements under s. 767.34 (2) (am) 1. to 3. are satisfied. The amount ordered to be paid may be modified by the court under s. 767.59 upon sufficient evidence.

767.501(2)(c) (c) The determination may be enforced by contempt proceedings, an account transfer under s. 767.76, or other enforcement mechanisms under s. 767.77.

767.501(2)(d) (d) In an action under this section, no filing fee or other costs are taxable to the person’s spouse, the minor child, the person with legal custody, or the nonlegally responsible relative, but after the action has been commenced the court may order that all or part of any fees and costs incurred be paid by either party.

767.501(3) (3) Public assistance recipients; action by state. If the state or any subdivision of the state furnishes public aid to a spouse or dependent child for support and maintenance and the spouse, person with legal custody, or nonlegally responsible relative does not commence an action under this chapter for support or maintenance, the person in charge of county welfare activities, the county child support agency under s. 59.53 (5), or the department is a real party in interest under s. 767.205 (2) and shall commence an action under this section. An attorney employed by the state or a subdivision of the state may commence an action under this section. The title of the action shall be “In re the support or maintenance of A.B. (Child)”.

767.501(4) (4) Legal custody and physical placement. Upon request of a party to an action under this section, the court may make orders concerning the legal custody and physical placement of any minor child of the parties in accordance with s. 767.41.

767.501 History History: 1971 c. 220; 1971 c. 307 s. 116; 1973 c. 237; 1975 c. 82; 1977 c. 105, 271; 1979 c. 32 ss. 50, 92 (4); Stats. 1979 s. 767.08; 1981 c. 317; 1983 a. 27; 1985 a. 29, 176; 1987 a. 413; 1989 a. 212; 1993 a. 481; 1995 a. 27 s. 9126 (19); 1995 a. 201, 404; 1997 a. 27, 35; 1999 a. 162; 2001 a. 16; 2005 a. 443 ss. 42, 216, 217; Stats. 2005 s. 767.501.

767.501 Note NOTE: 2005 Wis. Act 443 contains explanatory notes.

767.501 Annotation To find a party estopped from seeking a revision of a stipulation incorporated into a divorce judgment: 1) both parties must have entered into the stipulation knowingly and freely; 2) the overall settlement must be fair and equitable and not illegal or against public policy; and 3) one party subsequently seeks to be released from its terms on grounds that the court could not have entered the order it did without the parties’ agreement. Nichols v. Nichols, 162 Wis. 2d 96, 469 N.W.2d 619 (1991).

767.501 Annotation County child support agencies can initiate actions to compel support under this section without payment of a filing fee. 72 Atty. Gen. 72.

767.511 767.511 Child support.

767.511(1) (1) When ordered. When the court approves a stipulation for child support under s. 767.34, enters a judgment of annulment, divorce, or legal separation, or enters an order or a judgment in a paternity action or in an action under s. 767.001 (1) (f) or (j), 767.501, 767.804 (2), or 767.805 (3), the court shall do all of the following:

767.511(1)(a) (a) Order either or both parents to pay an amount reasonable or necessary to fulfill a duty to support a child. The support amount must be expressed as a fixed sum unless the parties have stipulated to expressing the amount as a percentage of the payer’s income and the requirements under s. 767.34 (2) (am) 1. to 3. are satisfied.

767.511(1)(b) (b) Ensure that the parties have stipulated which party, if either is eligible, will claim each child as an exemption for federal income tax purposes under 26 USC 151 (c) or as an exemption for state income tax purposes under the laws of another state. If the parties are unable to reach an agreement about the tax exemption for each child, the court shall make the decision in accordance with state and federal tax laws. In making its decision, the court shall consider whether the parent who is assigned responsibility for the child’s health care expenses under s. 767.513 is covered under a health insurance policy or plan, including a self-insured plan, that is not subject to s. 632.897 (10) and that conditions coverage of a dependent child on whether the child is claimed by the insured parent as an exemption for purposes of federal or state income taxes.

767.511(1)(c) (c) In addition to ordering child support for a child under par. (a), assign as a support obligation responsibility for, and direct the manner of payment of, the child’s health care expenses under s. 767.513.

767.511(1g) (1g) Consideration of financial information. In determining child support payments, the court may consider all relevant financial information or other information relevant to the parent’s earning capacity, including information reported under s. 49.22 (2m) to the department or the county child support agency under s. 59.53 (5).

767.511(1j) (1j) Percentage standard generally required. Except as provided in sub. (1m), the court shall determine child support payments by using the percentage standard established by the department under s. 49.22 (9).

767.511(1m) (1m) Deviation from standard; factors. Upon request by a party, the court may modify the amount of child support payments determined under sub. (1j) if, after considering the following factors, the court finds by the greater weight of the credible evidence that use of the percentage standard is unfair to the child or to any of the parties:

767.511(1m)(a) (a) The financial resources of the child.

767.511(1m)(b) (b) The financial resources of both parents.

767.511(1m)(bj) (bj) Maintenance received by either party.

767.511(1m)(bp) (bp) The needs of each party in order to support himself or herself at a level equal to or greater than that established under 42 USC 9902 (2).

767.511(1m)(bz) (bz) The needs of any person, other than the child, whom either party is legally obligated to support.

767.511(1m)(c) (c) If the parties were married, the standard of living the child would have enjoyed had the marriage not ended in annulment, divorce or legal separation.

767.511(1m)(d) (d) The desirability that the custodian remain in the home as a full-time parent.

767.511(1m)(e) (e) The cost of child care if the custodian works outside the home, or the value of custodial services performed by the custodian if the custodian remains in the home.

767.511(1m)(ej) (ej) The award of substantial periods of physical placement to both parents.

767.511(1m)(em) (em) Extraordinary travel expenses incurred in exercising the right to periods of physical placement under s. 767.41.

767.511(1m)(f) (f) The physical, mental, and emotional health needs of the child, including any costs for health insurance as provided for under s. 767.513.

767.511(1m)(g) (g) The child’s educational needs.

767.511(1m)(h) (h) The tax consequences to each party.

767.511(1m)(hm) (hm) The best interests of the child.

767.511(1m)(hs) (hs) The earning capacity of each parent, based on each parent’s education, training and work experience and the availability of work in or near the parent’s community.

767.511(1m)(i) (i) Any other factors which the court in each case determines are relevant.

767.511(1n) (1n) Deviation from standard; record. If the court finds under sub. (1m) that use of the percentage standard is unfair to the child or the requesting party, the court shall state in writing or on the record the amount of support that would be required by using the percentage standard, the amount by which the court’s order deviates from that amount, its reasons for finding that use of the percentage standard is unfair to the child or the party, its reasons for the amount of the modification and the basis for the modification.

767.511(2) (2) Separate fund or trust. The court may protect and promote the best interests of the minor children by setting aside a portion of the child support which either party is ordered to pay in a separate fund or trust for the support, education and welfare of such children.

767.511(3) (3) Effect of physical placement violation. Violation of physical placement rights by the custodial parent does not constitute reason for failure to meet child support obligations.

767.511(4) (4) Age of child eligible for support. The court shall order either party or both to pay for the support of any child of the parties who is less than 18 years old, or any child of the parties who is less than 19 years old if the child is pursuing an accredited course of instruction leading to the acquisition of a high school diploma or its equivalent.

767.511(5) (5) Liability for past support. Subject to ss. 767.804 (4), 767.805 (4m), and 767.89 (4), liability for past support is limited to the period after the birth of the child.

767.511(6) (6) Interest on arrearage. Subject to sub. (6m), a party ordered to pay child support under this section shall pay simple interest at the rate of 1 percent per month on any amount in arrears that is equal to or greater than the amount of child support due in one month. Subject to sub. (6m), if the party no longer has a current obligation to pay child support, interest at the rate of 1 percent per month shall accrue on the total amount of child support in arrears, if any. Interest under this subsection is in lieu of interest computed under s. 807.01 (4), 814.04 (4), or 815.05 (8) and is paid to the department or its designee under s. 767.57. Except as provided in s. 767.57 (1m) and except as required under federal statutes or regulations, the department or its designee shall apply all payments received for child support as follows:

767.511(6)(a) (a) First, to payment of child support due within the calendar month during which the payment is received.

767.511(6)(b) (b) Second, to payment of unpaid child support due before the payment is received.

767.511(6)(c) (c) Third, to payment of interest accruing on unpaid child support.

767.511(6m) (6m) Pilot program on interest rate. The department may conduct a pilot program under which the interest that accrues on the amounts in arrears specified in s. 767.531, 2019 stats., and in sub. (6) shall be at the rate of 0.5 percent per month instead of 1 percent per month. If the department conducts a pilot program under this subsection, the program may begin at any time after December 31, 2013, and the new rate shall apply to interest that accrues during that time.

767.511(7) (7) Effect of joint legal custody. An order of joint legal custody under s. 767.41 does not affect the amount of child support ordered.

767.511 History History: 1971 c. 157; 1977 c. 29, 105, 418; 1979 c. 32 ss. 50, 92 (4); 1979 c. 196; Stats. 1979 s. 767.25; 1981 c. 20; 1983 a. 27; 1985 a. 29; 1987 a. 27, 37, 355, 413; 1989 a. 31, 212; 1991 a. 39; 1993 a. 481; 1995 a. 27 ss. 7101, 7102, 9126 (19); 1995 a. 201, 279, 404; 1997 a. 27, 35, 191; 1999 a. 9, 32; 2001 a. 16, 61; 2005 a. 253, 342; 2005 a. 443 ss. 103, 105, 219; Stats. 2005 s. 767.511; 2009 a. 185; 2011 a. 32; 2013 a. 20; 2017 a. 366; 2019 a. 95; 2021 a. 35, 127.

767.511 Cross-reference Cross-reference: See also ch. DCF 150, Wis. adm. code.

767.511 Cross-reference Cross-reference: See also Wisconsin Administrative Code Citations published in the Wisconsin Administrative Code for a list of citations to cases citing chs. DCF 150, HSS 80, HFS 80, and DWD 40, the child support percentage of income standard.

767.511 Cross-reference Cross-reference: See also notes to s. 767.59 for decisions regarding postjudgment modifications.

767.511 Annotation A provision in a judgment as to the education of children past the age of majority, inserted pursuant to a stipulation of the parties, cannot later be challenged and can be enforced by contempt proceedings. Bliwas v. Bliwas, 47 Wis. 2d 635, 178 N.W.2d 35 (1970).

767.511 Annotation When parents each own a one-half interest in future proceeds of real estate and the state contributes to child support, the court may not order the custodial parent to pay child support in the form of an accumulating real estate lien in favor of the state. State v. Reible, 91 Wis. 2d 394, 283 N.W.2d 427 (Ct. App. 1979).

767.511 Annotation The trial court abused its discretion by setting child support payments without considering the needs of the children or the payer’s ability to pay. Edwards v. Edwards, 97 Wis. 2d 111, 293 N.W.2d 160 (1980).

767.511 Annotation A personal injury damage award to a noncustodial spouse can be considered as a change of circumstances justifying increased support. Sommer v. Sommer, 108 Wis. 2d 586, 323 N.W.2d 144 (Ct. App. 1982).

767.511 Annotation Sub. (6) imposes interest on arrearages existing on July 2, 1983, as well as on those accruing afterward. Greenwood v. Greenwood, 129 Wis. 2d 388, 385 N.W.2d 213 (Ct. App. 1986).

767.511 Annotation Federal Supplemental Security Income may not be considered to be an economic resource for purposes of computing a child support obligation. However, a seek-work order may be appropriate. Langlois v. Langlois, 150 Wis. 2d 101, 441 N.W.2d 286 (Ct. App. 1989).

767.511 Annotation Educational grants and loans, AFDC, and other child support are not economic resources for purposes of computing a child support obligation. Thibadeau v. Thibadeau, 150 Wis. 2d 109, 441 N.W.2d 281 (Ct. App. 1989).

767.511 Annotation Consideration of expenses incurred by a child as an adult, including education expenses, is error. Resong v. Vier, 157 Wis. 2d 382, 459 N.W.2d 591 (Ct. App. 1990).

767.511 Annotation A divorce stipulation waiving or setting a ceiling on child support and preventing modification is against public policy and will not be enforced. Ondrasek v. Tenneson, 158 Wis. 2d 690, 462 N.W.2d 915 (Ct. App. 1990).

767.511 Annotation The trial court’s use of a computer program to analyze financial evidence was not error. Bisone v. Bisone, 165 Wis. 2d 114, 477 N.W.2d 59 (Ct. App. 1991).

767.511 Annotation In a joint custody situation, the parent with primary physical custody may be ordered to pay child support. Matz v. Matz, 166 Wis. 2d 326, 479 N.W.2d 245 (Ct. App. 1991).

767.511 Annotation A stepparent has no legal obligation to support a stepchild. Under appropriate circumstances the theory of equitable estoppel may apply to cases involving child support. Ulrich v. Cornell, 168 Wis. 2d 792, 484 N.W.2d 545 (1992).

767.511 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).

767.511 Annotation A support order against actual AFDC grants is prohibited by Thibadeau, 150 Wis. 2d 109 (1989), but an order against earned income of one who also receives AFDC is not. State v. Rose, 171 Wis. 2d 617, 492 N.W.2d 350 (Ct. App. 1992).

767.511 Annotation No matter how corporate income is labeled, a family court may pierce the corporate shield if it is convinced the obligor’s intent is to avoid financial obligations. Evjen v. Evjen, 171 Wis. 2d 677, 492 N.W.2d 361 (Ct. App. 1992).

767.511 Annotation The parties’ extrajudicial agreement that child support payments be discontinued was enforceable via the doctrine of equitable estoppel. Harms v. Harms, 174 Wis. 2d 780, 498 N.W.2d 229 (1993).

767.511 Annotation Discussing the “serial family payer” rule adopted under the percentage standards referred to in sub. (1) [now sub. (1j)]. Brown v. Brown, 177 Wis. 2d 512, 503 N.W.2d 280 (Ct. App. 1993).

767.511 Annotation The mandatory percentage standards for determining support do not allow for deferred payments. Kelly v. Hougham, 178 Wis. 2d 546, 504 N.W.2d 440 (Ct. App. 1993).

767.511 Annotation An AFDC recipient assigns all rights to child support payments to the state. As such the payments may not be held in trust for the child under sub. (2). State v. William W., 180 Wis. 2d 708, 510 N.W.2d 718 (Ct. App. 1993).

767.511 Annotation A lump sum separation benefit received upon termination of employment was properly considered to be income subject to the percentage standards for support. Gohde v. Gohde, 181 Wis. 2d 770, 512 N.W.2d 199 (Ct. App. 1993).

767.511 Annotation In deciding not to apply the percentage standard, the court erred when it compared the parties’ available incomes after deducting the percentage amount from the payer’s income, but failed to consider the assumed contribution of the same percentage by the payee. Kjelstrup v. Kjelstrup, 181 Wis. 2d 973, 512 N.W.2d 264 (Ct. App. 1994).

767.511 Annotation A trial court could not set child support at zero, convert post-divorce income to marital property, and order that income to be held in trust to be distributed to the child when AFDC benefits ended. Luna v. Luna, 183 Wis. 2d 20, 515 N.W.2d 480 (Ct. App. 1994).

767.511 Annotation If the interests of the children and custodial parent are protected, parties are free to contract in a settlement agreement that the primary custodian will not have spending discretion over child support. Jacquart v. Jacquart, 183 Wis. 2d 372, 515 N.W.2d 539 (Ct. App. 1994).

767.511 Annotation An asset and its income stream may not be counted both as an asset in the property division and as part of the payer’s income from which support is paid. State v. Maley, 186 Wis. 2d 125, 519 N.W.2d 717 (Ct. App. 1994).

767.511 Annotation A minimum fixed child support amount, rather than the percentage standard, based on the payer’s “potential income” was appropriate when the court found that the payer had a substantial potential to manipulate the amount of support. Doerr v. Doerr, 189 Wis. 2d 112, 525 N.W.2d 745 (Ct. App. 1994).

767.511 Annotation Trust income that is income to the beneficiary under federal tax law is subject to a child support order regardless of whether a distribution is made to the beneficiary. Grohmann v. Grohmann, 189 Wis. 2d 532, 525 N.W.2d 261 (1995).

767.511 Annotation The trial court may consider the amount of time a child is placed with the paying parent and that parent’s second family in setting support. Molstad v. Molstad, 193 Wis. 2d 602, 535 N.W.2d 63 (Ct. App. 1995).