Subject to s. 767.85
, requiring either party or both parties to make payments for the support of minor children, which payment amounts 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.
Requiring either party to pay for the maintenance of the other party. Maintenance under this paragraph may include the expenses and attorney fees incurred by the other party in bringing or responding to the action affecting the family.
Requiring either party to execute an assignment of income under s. 767.75
or an authorization for transfer under s. 767.76
Requiring either party or both parties to pay debts or perform other actions in relation to the persons or property of the parties.
Requiring counseling of either party or both parties.
Subject to s. 767.85
, requiring either party or both parties to maintain minor children as beneficiaries on a health insurance policy or plan.
Requiring either party or both parties to execute an assignment of income for payment of health care expenses of minor children.
Before making a temporary order under sub. (1)
, the court shall consider those factors that the court is required by this chapter to consider before entering a final judgment on the same subject matter. In making a determination under sub. (1) (a)
, the court shall consider the factors under s. 767.41 (5) (am)
, subject to s. 767.41 (5) (bm)
If the court makes a temporary child support order that deviates from the amount of support that would be required by using the percentage standard established by the department under s. 49.22 (9)
, the court shall comply with the requirements of s. 767.511 (1n)
If the court finds by a preponderance of the evidence that a party has engaged in a pattern or serious incident of interspousal battery, as described under s. 940.19
or 940.20 (1m)
, or domestic abuse, as defined in s. 813.12 (1) (am)
, and makes a temporary order awarding joint or sole legal custody or periods of physical placement to the party, the court shall comply with the requirements of s. 767.41 (6) (f)
and, if appropriate, s. 767.41 (6) (g)
If the court or circuit court commissioner requires one party to cover the child under a health insurance policy or plan under sub. (1) (k)
, the court or circuit court commissioner shall order the party to provide to the other party a health insurance identification card for the child. Section 767.513 (2m) (b)
applies to a failure to comply with a temporary order under this subdivision.
A temporary order under sub. (1)
may be based upon the written stipulation of the parties, subject to the approval of the court. Temporary orders made by a circuit court commissioner may be reviewed by the court.
(2) Notice of motion for order.
Notice of motion for an order or order to show cause under sub. (1)
may be served at the time the action is commenced or at any time after commencement and shall be accompanied by an affidavit stating the basis for the request for relief.
(3m) Availability of domestic abuse restraining order.
If a circuit court commissioner believes that a temporary restraining order or injunction under s. 813.12
is appropriate in an action, the circuit court commissioner shall inform the parties of their right to seek the order or injunction and the procedure to follow. On a motion for such a restraining order or injunction, the circuit court commissioner shall submit the motion to the court within 5 working days.
History: 1971 c. 149
; 1971 c. 211
; 1971 c. 220
; 1975 c. 283
; Sup. Ct. Order, 73 Wis. 2d xxxi (1976); 1977 c. 105
; 1979 c. 32
, 92 (4)
; 1979 c. 111
; 1979 c. 352
; Stats. 1979 s. 767.23; 1983 a. 27
; 1983 a. 204
; 1983 a. 447
; 1985 a. 29
s. 3202 (9)
; 1987 a. 355
; 1989 a. 212
; 1991 a. 39
; 1993 a. 78
; 1995 a. 27
, 9126 (19)
; 1995 a. 70
; 1999 a. 9
; 2001 a. 16
; 2003 a. 130
; 2005 a. 174
; 2005 a. 443
; Stats. 2005 s. 767.225; 2007 a. 96
See also ch. DCF 150
, Wis. adm. code.
Trial or hearing on judgment. 767.235(1)
In an action affecting the family, all hearings and trials to determine whether judgment shall be granted, except hearings under s. 757.69 (1) (p) 3.
, shall be before the court. Testimony shall be taken by the reporter and shall be transcribed and filed with the record if so ordered by the court. Custody proceedings have priority in being set for hearing.
(2) Appearance of litigants.
Unless nonresidence in the state is shown by competent evidence, service is by publication, or the court for other good cause orders otherwise, both parties in actions affecting the family shall appear upon the final hearing or trial. An order of the court to that effect shall be procured by the moving party, and shall be served upon the nonmoving party before the hearing or trial. No order is required in the case of a joint petition.
(3) Exclusion from courtroom.
The court may on its own motion, or on motion of any party to an action affecting the family, exclude from the courtroom all persons other than the parties, their attorneys and any guardians ad litem.
History: 2005 a. 443
Award of attorney fees and other fees and costs. 767.241(1)(1)
The court, after considering the financial resources of both parties, may do the following:
Order either party to pay a reasonable amount for the cost to the other party of maintaining or responding to an action affecting the family and for attorney fees to either party.
If one party receives services under s. 49.22
or services provided by the state or county as a result of an assignment of income under s. 49.19
, order the other party to pay any fee chargeable under s. 49.22 (6)
or the cost of services rendered by the state or county under s. 49.19
(2) Preaction and postaction fees.
Any amount ordered under sub. (1)
may include sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment.
(3) To whom paid.
The court may order that the amount be paid directly to the attorney or to the state or the county providing services under s. 49.22
, who may enforce the order in its name.
Except as provided in par. (b)
, no court may order payment of costs under this section by the state or any county which may be a party to the action.
The court may order payment of costs under this section by the department or its designee, whichever is appropriate, in an action in which the court finds that the record of payments and arrearages kept by the department or its designee is substantially incorrect and that the department or its designee has failed to correct the record within 30 days after having received information that the court determines is sufficient for making the correction.
History: 1977 c. 105
; 1979 c. 32
; 1979 c. 352
; Stats. 1979 s. 767.262; 1983 a. 27
; 1993 a. 481
; 1995 a. 201
; 1997 a. 27
; 2005 a. 443
; Stats. 2005 s. 767.241.
An allowance for the wife's attorney fees was not excessive when it was obvious that the court reasonably believed that a considerable portion of the attorney fees were attributable to the husband who, represented by 4 successive attorneys, caused a needlessly protracted trial, made numerous defense motions, and prosecuted a meritless appeal. Martin v. Martin, 46 Wis. 2d 218
, 174 N.W.2d 468
An allowance of $1,000 attorney fees on appeal, after the award of a generous property settlement, constituted a penalty for appealing. Molloy v. Molloy, 46 Wis. 2d 682
, 176 N.W.2d 292
Attorney fees on appeal depend on need, ability to pay, and whether there is a reasonable ground for the appeal. Klipstein v. Klipstein, 47 Wis. 2d 314
, 177 N.W.2d 57
An order for attorney fees is enforceable by contempt. The court cannot enter a judgment in favor of the attorney directly. Before a contempt order is issued, the defendant must have notice of an application by the spouse to whom the fees are payable. O'Connor v. O'Connor, 48 Wis. 2d 535
, 180 N.W.2d 735
Denial of the wife's motion for her husband to contribute to attorney fees to prosecute the wife's appeal was an abuse of discretion when the issues in the case were vigorously contested and in no way frivolous. Markham v. Markham, 65 Wis. 2d 735
, 223 N.W.2d 616
A circuit court does not have subject matter jurisdiction in a divorce action to determine attorney fees between an attorney and client who the attorney continues to represent in the divorce action. Stasey v. Stasey, 168 Wis. 2d 37
, 483 N.W.2d 221
Nonmarital assets may be considered in determining whether to order one party to contribute to the other's fees. Doerr v. Doerr, 189 Wis. 2d 112
, 525 N.W.2d 745
(Ct. App. 1994).
The public policy that an innocent party who is the victim of overtrial should not be burdened with the payment of extra and unnecessary attorney fees occasioned by the other party under Ondrasek
, 126 Wis. 2d at 484, is equally applicable with respect to guardian ad litem fees. Hottenroth v. Hetsko, 2006 WI App 249
, 298 Wis. 2d 200
, 727 N.W.2d 38
Content, preparation, and approval of judgment. 767.251(1)(1)
In an action affecting the family, if the court orders maintenance payments or other allowances for a party or children or retains jurisdiction in those matters, the written judgment shall include a statement that disobedience of the court order is punishable under ch. 785
by commitment to the county jail or house of correction until the judgment is complied with and the costs and expenses of the proceedings are paid or until the party committed is otherwise discharged, according to law. Final written agreements and stipulations of the parties shall, unless set forth in the judgment, be appended to the judgment and incorporated by reference.
The findings of fact, conclusions of law, and the written judgment shall be drafted by the petitioner unless the court otherwise directs, and shall be submitted to the court and filed with the clerk of the court within 30 days after judgment is granted.
The draft findings, conclusions, and judgment shall be approved by all counsel appearing, including a guardian ad litem and county child support enforcement agency attorney, and any other person designated by the court or local rule. After necessary approvals are obtained, the findings of fact, conclusions of law, and judgment shall be submitted to the court.
History: 2005 a. 443
Dismissal; vacation; substitution or withdrawal of attorney. 767.264(1)(1)
Opportunity to respond.
An action affecting the family may not be dismissed under s. 805.04 (1)
unless all the parties who have appeared in the action have been served with a copy of the notice of dismissal and have had an opportunity to file a responsive pleading or motion.
(2) Attorney fees and other amounts owing. 767.264(2)(a)(a)
Upon making an order for dismissal of, for substitution of attorney in, for withdrawal of attorney from, or for vacation of a judgment granted in an action affecting the family, the court shall, prior to or in its order, grant separate judgment in favor of an attorney who has appeared for a party to the action and in favor of a guardian ad litem for a party or a child for the amount of fees and disbursements to which the attorney or guardian ad litem is, in the court's judgment, entitled and against the party responsible for the fees and disbursements.
Upon making an order for dismissal of an action affecting the family or for vacation of a judgment granted in the order, the court shall, prior to or in its order of dismissal or vacation, preserve the right of the state or a political subdivision of the state to collect any arrearages, by an action under this chapter or under ch. 785
, owed to the state if either party in the case was a recipient of aid under ch. 49
History: 2005 a. 443
Sub. (3) (a) [now sub. (2) (a)] is strictly construed to apply to those situations expressly set forth in the statute, such as orders for dismissal, substitution of attorneys, and vacation of judgments, in actions affecting families. In other cases an action to recover legal fees may be instituted. Kotecki & Radtke, S.C. v. Johnson, 192 Wis. 2d 429
, 531 N.W.2d 606
(Ct. App. 1995).
The only reasonable meaning of sub. (3) (a) [now sub. (2) (a)] is that it gives the court authority to enter a judgment for the fees owed by the client to an attorney who is permitted by order of the court to withdraw, regardless when or if the client retains another attorney to replace the withdrawing attorney in that action. Kohl v. DeWitt Ross & Stevens, 2005 WI App 196
, 287 Wis. 2d 289
, 704 N.W.2d 586
The federal tax consequences of divorce. Meldman, Ryan, 57 MLR 229.
Allowances pending appeal.
In an action affecting the family pending in appellate court, an allowance for suit money, counsel fees, or disbursements in the court or for temporary maintenance or support payments to the spouse or the children during the pendency of the appeal may be made by the proper trial court upon motion made and decided after entry of the order or judgment appealed from and prior to the return of the record to appellate court. If the allowance is ordered before the appeal is taken, the order shall be conditioned upon the taking of the appeal and is not effective until the record is transmitted to appellate court.
History: 1975 c. 94
; 1977 c. 105
; 1977 c. 187
; 1979 c. 32
; 1979 c. 352
; Stats. 1979 s. 767.39; Sup. Ct. Order, 146 Wis. 2d xiii (1988); 2005 a. 443
Filing procedures and orders for enforcement or modification of judgments or orders. 767.281(1)
This section applies to all enforcement or modification petitions, motions or orders to show cause filed for actions affecting the family under s. 767.001 (1) (i)
Except as provided in sub. (2)
, if a petition, motion, or order to show cause requesting enforcement or modification of a judgment or order in an action affecting the family that was granted by a court of this state is filed in a county other than the county in which the judgment or order was rendered, the petitioner or party bringing the motion or order to show cause shall send a copy of the petition, motion, or order to show cause and summons to the clerk of the court in which the judgment or order was rendered. If a question arises as to which court should exercise jurisdiction, a conference involving both judges, all counsel, and guardians ad litem may be convened under s. 807.13 (3)
to resolve the question. The petitioner shall send a copy of any order rendered pursuant to the petition, motion, or order to show cause to the clerk of the court in which the original judgment or order was rendered.
Except as provided in ch. 769
, if the petition, motion or order to show cause is for enforcement or modification of a child support, family support or maintenance order, the petition, motion or order to show cause shall be filed in the county in which the original judgment or order was rendered or in the county where the minor children reside unless any of the following applies:
All parties, including the state or its delegate if support, support arrearages, costs or expenses are assigned under ch. 49
, stipulate to filing in another county.
The court in the county which rendered the original judgment or order orders, upon good cause shown, the enforcement or modification petition, motion or order to show cause to be filed in another county.
If the parties have stipulated to filing in another county under par. (a) 1.
, the petitioner or party bringing the motion or order to show cause shall send a copy of the petition, motion or order to show cause and the summons to the clerk of court in the county in which the original judgment or order was rendered.
If the court in the county which rendered the original judgment or order orders the petition, motion or order to show cause to be filed in another county under par. (a) 2.
, the petitioner or party bringing the motion or order to show cause shall attach a copy of the order when filing the petition, motion or order to show cause in the other county.
(4) Support and maintenance payments to department.
If a petition, motion or order to show cause for enforcement or modification of a child support, family support or maintenance order is filed and heard, regardless of whether it is filed and heard in a county other than the county in which the original judgment or order was rendered, any judgment or order enforcing or modifying the original judgment or order shall specify that payments of support or maintenance, and payments of arrearages in support or maintenance, if any, are payable to the department or its designee, whichever is appropriate.
History: 1989 a. 212
; 1993 a. 326
; 1995 a. 279
; 1997 a. 27
; 2005 a. 443
; Stats. 2005 s. 767.281.
Venue for a petition to modify or enforce an out-of-state custody decree is the county where the judgment is filed even though the judgment may be filed in any county. Sharp v. Sharp, 185 Wis. 2d 416
, 518 N.W.2d 254
(Ct. App. 1994).
ANNULMENT, DIVORCE, AND LEGAL SEPARATION
No action to affirm marriage or for annulment under s. 767.001 (1) (a)
may be brought unless at least one of the parties has been a bona fide resident of the county in which the action is brought for not less than 30 days next preceding the commencement of the action, or unless the marriage has been contracted within this state within one year prior to the commencement of the action. No action for divorce or legal separation under s. 767.001 (1) (c)
may be brought unless at least one of the parties has been a bona fide resident of the county in which the action is brought for not less than 30 days next preceding the commencement of the action. No action for divorce under s. 767.001 (1) (c)
may be brought unless at least one of the parties has been a bona fide resident of this state for not less than 6 months next preceding the commencement of the action.
History: 2005 a. 443
When a divorce action was brought before the residency requirement was met, an action was never commenced and the petition could not be amended after the requirement was met. Siemering v. Siemering, 95 Wis. 2d 111
, 288 N.W.2d 881
(Ct. App. 1980).
Grounds; when suit may be brought.
A court may annul a marriage upon any of the following grounds:
A party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of age, because of mental incapacity or infirmity or because of the influence of alcohol, drugs, or other incapacitating substances, or a party was induced to enter into a marriage by force or duress, or by fraud involving the essentials of marriage. Suit may be brought by either party, or by the legal representative of a party lacking the capacity to consent, no later than one year after the petitioner obtained knowledge of the described condition.
A party lacks the physical capacity to consummate the marriage by sexual intercourse, and at the time the marriage was solemnized the other party did not know of the incapacity. Suit may be brought by either party no later than one year after the petitioner obtained knowledge of the incapacity.
A party was 16 or 17 years of age and did not have the consent of his or her parent or guardian or judicial approval, or a party was under 16 years of age. Suit may be brought by the underaged party or a parent or guardian at any time prior to the party's attaining the age of 18 years, but a parent or guardian must bring suit within one year of obtaining knowledge of the marriage.
The marriage is prohibited by the laws of this state. Suit may be brought by either party within 10 years of the marriage, except that the 10-year limitation shall not apply where the marriage is prohibited because either party has another spouse living at the time of the marriage and the impediment has not been removed under s. 765.24
(2) Judicial proceeding required; no annulment after death.
A judicial proceeding is required to annul a marriage. A marriage may not be annulled after the death of a party to the marriage.