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.
History: 1977 c. 105
; 1979 c. 32
, 92 (2)
; Stats. 1979 s. 767.03; 2005 a. 443
; Stats. 2005 s. 767.313.
A remarriage, although unlawful in Wisconsin and dissolved through an annulment, is sufficient to terminate maintenance under s. 767.32 (3) [now s. 767.59 (2)]. 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).
Although a marriage may be “void," the marriage governs the parties' legal relations unless it is annulled. Sinai Samaritan Medical Center, Inc. v. McCabe, 197 Wis. 2d 709
, 541 N.W.2d 190
(Ct. App. 1995), 95-0012
Annulment is an appropriate remedy to void a marriage when the parties to the marriage are still alive, but it is not the exclusive remedy to challenge the validity of a marriage. The common law drew a distinction between an annulment and a declaration that a marriage was void, especially a declaration after the death of one of the parties. Statutes and case law have preserved that distinction. McLeod v. Mudlaff, 2013 WI 76
, 350 Wis. 2d 182
, 833 N.W.2d 735
Grounds for divorce and legal separation. 767.315(1)(a)(a)
If both of the parties to a legal separation or divorce action by petition or otherwise have stated under oath or affirmation that the marriage is irretrievably broken, or if the parties have voluntarily lived apart continuously for 12 months or more immediately prior to commencement of the action and one party has so stated, the court, after hearing, shall make a finding that the marriage is irretrievably broken for purposes of s. 767.35 (1) (b) 1.
If the parties to a legal separation or divorce action have not voluntarily lived apart for at least 12 months immediately prior to commencement of the action and if only one party has stated under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to filing the petition and the prospect of reconciliation, and proceed as follows:
If the court finds no reasonable prospect of reconciliation, it shall make a finding that the marriage is irretrievably broken for purposes of s. 767.35 (1) (b) 1.
If the court finds that there is a reasonable prospect of reconciliation, it shall continue the matter for further hearing not fewer than 30 nor more than 60 days later, or as soon thereafter as the matter may be reached on the court's calendar, and may suggest to the parties that they seek counseling. The court, at the request of either party or on its own motion, may order counseling. At the adjourned hearing, if either party states under oath or affirmation that the marriage is irretrievably broken, the court shall make a finding whether the marriage is irretrievably broken for purposes of s. 767.35 (1) (b) 1.
(2) Breakdown of marital relationship.
If both of the parties to a legal separation or divorce action by petition or otherwise have stated under oath or affirmation that the marital relationship is broken, the court, after hearing, shall make a finding that the marital relationship is broken for purposes of s. 767.35 (1) (b) 2.
History: 2005 a. 443
Abolition of guilt in marriage dissolution: Wisconsin's adoption of no-fault divorce. 61 MLR 672 (1978).
Previously existing defenses to divorce and legal separation, including but not limited to condonation, connivance, collusion, recrimination, insanity, and lapse of time, are abolished.
History: 2005 a. 443
Suspension of proceedings to effect reconciliation.
During the pendency of an action for divorce or legal separation, the court may, upon written stipulation of both parties that they desire to attempt a reconciliation, enter an order suspending any and all orders and proceedings for such period, not exceeding 90 days, as the court determines advisable to permit the parties to attempt a reconciliation without prejudice to their respective rights. During the suspension period, the parties may resume living together as husband and wife and their acts and conduct do not constitute an admission that the marriage is not irretrievably broken or a waiver of the ground that the parties have voluntarily lived apart continuously for 12 months or more immediately prior to the commencement of the action. Suspension may be revoked upon the motion of either party by an order of the court. If the parties become reconciled, the court shall dismiss the action. If the parties are not reconciled after the period of suspension, the action shall proceed as though no reconciliation period was attempted.
History: 1971 c. 220
; 1977 c. 105
; 1979 c. 32
; Stats. 1979 s. 767.082; 2005 a. 443
; Stats. 2005 s. 767.323.
Actions for certain interspousal remedies.
If a spouse has begun an action against the other spouse under s. 766.70
and either or both spouses subsequently bring an action under this chapter for divorce, annulment or legal separation, the actions may be consolidated by the court exercising jurisdiction under this chapter. If the actions are consolidated, to the extent the procedural and substantive requirements of this chapter conflict with the requirements under s. 766.70
, this chapter controls. No action under s. 766.70
may be brought by a spouse against the other spouse while an action for divorce, annulment or legal separation is pending under this chapter.
History: 2005 a. 443
The prohibition under sub. (7) [now s. 767.331] of commencing an action under s. 766.70 while a divorce, annulment, or legal separation action is pending is constitutional. Haack v. Haack, 149 Wis. 2d 243
, 440 N.W.2d 794
(Ct. App. 1989).
Waiting period for final hearing or trial.
An action for divorce or legal separation may not be brought to final hearing or trial until the first of the following occurs:
The expiration of 120 days after service of the summons and petition upon the respondent or the expiration of 120 days after the filing of the joint petition.
An order by the court, after consideration of the recommendation of a circuit court commissioner, directing an immediate hearing on the petition for the protection of the health or safety of either of the parties or of any child of the marriage or for other emergency reasons consistent with the policies of this chapter. The court shall, upon granting the order, specify the grounds for the order.
History: 1977 c. 105
; 1979 c. 32
, 92 (4)
; 1979 c. 196
; Stats. 1979 s. 767.083; 1987 a. 355
; 2001 a. 61
; 2005 a. 443
; Stats. 2005 s. 767.335.
Court-approved stipulation. 767.34(1)
The parties in an action for an annulment, divorce, or legal separation may, subject to the approval of the court, stipulate for a division of property, for maintenance payments, for the support of children, for periodic family support payments under s. 767.531
, or for legal custody and physical placement, in case a divorce or legal separation is granted or a marriage annulled.
A court may not approve a stipulation for child support or family support unless the stipulation provides for payment of child support determined in a manner consistent with s. 767.511
A court may not approve a stipulation for expressing child support or family support as a percentage of the payer's income unless all of the following apply:
The payer is not subject to any other order, in any other action, for the payment of child or family support or maintenance.
All payment obligations included in the order, other than the annual receiving and disbursing fee under s. 767.57 (1e) (a)
, are expressed as a percentage of the payer's income.
A court may not approve a stipulation for a division of property that assigns substantially all of the property to one of the parties in the action if the other party in the action is in the process of applying for medical assistance under subch. IV of ch. 49
or if the court determines that it can be reasonably anticipated that the other party in the action will apply for medical assistance under subch. IV of ch. 49
within 30 months of the stipulation.
A trial court is not required to give effect to a property division agreement entered into before divorce proceedings are instituted. It should make its own determination of whether the agreement adequately provides for the parties. Ray v. Ray, 57 Wis. 2d 77
, 203 N.W.2d 724
There are 2 types of postnuptial agreements: 1) family settlement agreements that contemplate the continuation of the marriage, and 2) separation agreements that are made after separation or in contemplation of separation. The former are presumed binding on the parties under s. 767.255 (3) (L) [now s. 767.61 (3) (L)]. The latter are governed by s. 767.10 [now s. 767.34] and constitute a recommendation jointly made by the parties to the court regarding what the judgment should provide. Evenson v. Evenson, 228 Wis. 2d 676
, 598 N.W.2d 232
(Ct. App. 1999), 98-0803
. See also Van Boxtel v. Van Boxtel, 2001 WI 40
, 242 Wis. 2d 474
, 625 N.W.2d 284
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
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
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
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
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
Judgment of divorce or legal separation. 767.35(1)(1)
A court shall grant a judgment of divorce or legal separation if all of the following conditions are met:
The requirements of this chapter as to residence and attendance at an educational program under s. 767.401
have been complied with.
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.
, unless subd. 2.
In connection with a judgment of legal separation, the court finds that the marital relationship is broken under s. 767.315 (2)
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.
(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.
(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.
(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.
(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.
(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.