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767.313 Annotation 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).
767.313 Annotation 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.
767.313 Annotation 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, ___ Wis. 2d ___, ___ N.W.2d ___, 11-1176.
767.315 767.315 Grounds for divorce and legal separation.
767.315(1)(1) Irretrievable breakdown.
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.
767.315(1)(b) (b) 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:
767.315(1)(b)1. 1. 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.
767.315(1)(b)2. 2. 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.
767.315(2) (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.
767.315 History History: 2005 a. 443 ss. 66, 146.
767.315 Annotation Abolition of guilt in marriage dissolution: Wisconsin's adoption of no-fault divorce. 61 MLR 672 (1978).
767.317 767.317 Defenses abolished. Previously existing defenses to divorce and legal separation, including but not limited to condonation, connivance, collusion, recrimination, insanity, and lapse of time, are abolished.
767.317 History History: 2005 a. 443 s. 50.
767.323 767.323 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.
767.323 History History: 1971 c. 220; 1977 c. 105; 1979 c. 32 s. 50; Stats. 1979 s. 767.082; 2005 a. 443 s. 44; Stats. 2005 s. 767.323.
767.331 767.331 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.
767.331 History History: 2005 a. 443 s. 34.
767.331 Annotation 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).
767.335 767.335 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:
767.335(1) (1)Generally. 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.
767.335(2) (2)Emergency. 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.
767.335 History History: 1977 c. 105; 1979 c. 32 ss. 50, 92 (4); 1979 c. 196; Stats. 1979 s. 767.083; 1987 a. 355; 2001 a. 61; 2005 a. 443 s. 45; Stats. 2005 s. 767.335.
767.34 767.34 Court-approved stipulation.
767.34(1) (1) Authority. 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.
767.34(2) (2)Limitations on court approval.
767.34(2)(a)(a) 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 or 767.89.
767.34(2)(am) (am) 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:
767.34(2)(am)1. 1. The state is not a real party in interest in the action under any of the circumstances specified in s. 767.205 (2) (a).
767.34(2)(am)2. 2. The payer is not subject to any other order, in any other action, for the payment of child or family support or maintenance.
767.34(2)(am)3. 3. 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.
767.34(2)(b) (b) 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.
767.34 History History: 1971 c. 220; 1977 c. 105; 1979 c. 32 ss. 50, 92 (4); Stats. 1979 s. 767.10; 1985 a. 29; 1987 a. 355; 1993 a. 16; 1993 a. 490 s. 276; 1995 a. 27; 2001 a. 16; 2005 a. 443 ss. 54, 168; Stats. 2005 s. 767.34.
767.34 Annotation 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 (1973).
767.34 Annotation 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 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, 99-0341.
767.34 Annotation An agreement made in contemplation of divorce, entered into after the parties agreed to the divorce, was subject to s. 767.10 [now s. 767.34], not s. 767.255 [now s. 767.61]. When a party withdrew his consent before court approval, the agreement was unenforceable. Ayres v. Ayres, 230 Wis. 2d 431, 602 N.W.2d 132 (Ct. App. 1999), 98-3450.
767.34 Annotation A trial court may refuse to incorporate a stipulation in a divorce judgment when a party repudiates his or her consent. A party is free to withdraw from a stipulation until it is incorporated in a judgment, and repudiation may render the stipulation nonexistent. Van Boxtel v. Van Boxtel, 2001 WI 40, 242 Wis. 2d 474, 625 N.W.2d 284, 99-0341.
767.34 Annotation The specific language of sub. (1) controls stipulations in divorces rather than the general language of s. 807.05. All agreements entered into after a divorce is filed are stipulations subject to sub. (1) and must be approved by the court. Polakowski v. Polakowski, 2003 WI App 20, 259 Wis. 2d 765, 657 N.W.2d 102, 02-1961.
767.34 Annotation A stipulation under this section is not a contract that would be binding on the parties once entered into, but is only a recommendation to the court. The court need not accept it but has a duty to decide whether that recommendation is a fair and reasonable resolution of the issues that the court wants to adopt. When a court adopts a stipulation, it does so on its own responsibility within it's discretion, and the provisions become the court's judgment. Once the court decides to do so, the right of a party to withdraw from the stipulation comes to an end. Hottenroth v. Hetsko, 2006 WI App 249, 298 Wis. 2d 200, 727 N.W.2d 38, 05-1212.
767.34 Annotation Before approving a stipulation, the circuit court is not required to take evidence and make an investigation in essentially the same manner as if the stipulated matters were contested. Under the facts of this case it was unnecessary to define the minimum requirements that must be met before a court approves a stipulation. Hottenroth v. Hetsko, 2006 WI App 249, 298 Wis. 2d 200, 727 N.W.2d 38, 05-1212.
767.35 767.35 Judgment of divorce or legal separation.
767.35(1)(1) When granted. A court shall grant a judgment of divorce or legal separation if all of the following conditions are met:
767.35(1)(a) (a) The requirements of this chapter as to residence and attendance at an educational program under s. 767.401 have been complied with.
767.35(1)(b)1.1. In connection with a judgment of divorce or legal separation, the court finds that the marriage is irretrievably broken under s. 767.315 (1) (a) or (b) 1. or 2., unless subd. 2. applies.
767.35(1)(b)2. 2. In connection with a judgment of legal separation, the court finds that the marital relationship is broken under s. 767.315 (2).
767.35(1)(c) (c) To the extent that it has jurisdiction to do so, the court has considered and approved or made provision for legal custody and physical placement, the support of any child of the marriage entitled to support, the maintenance of either spouse, the support of the family under s. 767.531, and the disposition of property.
767.35(2) (2)Granting divorce or legal separation. When a party requests a legal separation rather than a divorce, the court shall grant a judgment of legal separation unless the other party requests a divorce, in which case the court shall hear and determine which judgment shall be granted.
767.35(3) (3)When divorce judgment effective. A judgment of divorce is effective when granted. A court granting a judgment of divorce shall inform the parties appearing in court that the judgment is effective when granted but that it is unlawful under s. 765.03 (2) for a party to marry again until 6 months after the judgment is granted.
767.35(4) (4)Revocation of legal separation judgment upon reconciliation. A judgment of legal separation shall provide that, if a reconciliation occurs at any time after the judgment, the parties may apply for a revocation of the judgment. Upon application for a revocation of the judgment, the court shall make such orders as may be just and reasonable.
767.35(5) (5)Conversion of legal separation to divorce. By stipulation of both parties, or upon motion of either party not earlier than one year after entry of a judgment of legal separation, the court shall convert the judgment to a judgment of divorce.
767.35(6) (6)Vacating or modifying divorce judgment as it affects marital status. So far as a judgment of divorce affects the marital status of the parties, the court may vacate or modify the judgment for sufficient cause shown, upon its own motion, or upon the application of both parties to the action, at any time within 6 months from the granting of the judgment. If the judgment is vacated it shall restore the parties to the marital relation that existed before the granting of the judgment. If a judgment of divorce is set aside under this subsection, the court shall order the record in the action impounded without regard to s. 767.13. After the record is impounded, the record may not be offered or admitted in whole or in part into evidence in any action or proceeding except by special order of the court of jurisdiction upon good cause shown in any paternity proceedings under this chapter or by special order of a court of record upon a showing of necessity to clear title to real estate.
767.35(7) (7)Divorce judgment revoked on remarriage of parties. When a judgment of divorce has been granted and the parties subsequently intermarry, the court, upon their joint application and upon satisfactory proof of the marriage, shall revoke all judgments and any orders that will not affect the right of 3rd persons. If the judgment is revoked, the court shall order the record impounded without regard to s. 767.13, and the record may not be offered or admitted, in whole or in part, into evidence in any action or proceeding except by special order of the court of jurisdiction upon good cause shown in a paternity proceeding under this chapter or by special order of a court of record upon a showing of necessity to clear title to real estate.
767.35 History History: 1971 c. 220; 1977 c. 105; 1979 c. 32 ss. 50, 92 (4); Stats. 1979 s. 767.07; 1987 a. 355; 1989 a. 132; 2005 a. 443 ss. 35, 36, 53, 172, 173, 174; Stats. 2005 s. 767.35; 2009 a. 180.
767.35 Note NOTE: 2005 Wis. Act 443 contains explanatory notes.
767.35 Annotation Sub. (2) [now sub. (6)] does not authorize vacating or modifying a finding of paternity of children determined in the original divorce judgment. E. v. E. 57 Wis. 2d 436, 204 N.W.2d 503 (1973).
767.35 Annotation Sub. (2) [now sub. (6)] provides no authority for reopening a divorce judgment as it relates to a property division. Conrad v. Conrad, 92 Wis. 2d 407, 284 N.W.2d 674 (1979).
767.35 Annotation The death of a party within 6 months of a divorce judgment did not void the judgment or divest the court of jurisdiction to order property division. Roeder v. Roeder, 103 Wis. 2d 411, 308 N.W.2d 904 (Ct. App. 1981).
767.35 Annotation A divorce judgment did not bar a wife's action against her former husband for torts allegedly committed during the marriage. Stuart v. Stuart, 143 Wis. 2d 347, 421 N.W.2d 505 (1988).
767.35 Annotation If the requirements of sub. (2) [now sub. (5)] are met, conversion to a divorce decree is mandatory. Bartz v. Bartz, 153 Wis. 2d 756, 452 N.W.2d 160 (Ct. App. 1989).
767.36 767.36 Copies of judgment to parties. At the time of filing a judgment for an annulment, divorce, or legal separation, the party who prepared the judgment shall furnish to the clerk of court 2 true copies of the judgment, including any attachments to the judgment referenced in the judgment, in addition to the original judgment. Until the copies are presented, the clerk may refuse to accept the judgment for filing. After the judgment is filed, the clerk shall mail a copy promptly to each party to the action at the last-known address, and the mailing shall be shown in the court record.
767.36 History History: 2005 a. 443 s. 171.
767.36 Note NOTE: 2005 Wis. Act 443 contains explanatory notes.
767.375 767.375 Effect on transfers at death.
767.375(1) (1) Revocation of death provisions in marital property agreement. Unless the judgment provides otherwise, a judgment of annulment, divorce or legal separation revokes a provision in a marital property agreement under s. 766.58 that provides for any of the following:
767.375(1)(a) (a) That, upon the death of either spouse, any of either or both spouses' property, including after-acquired property, passes without probate to a designated person, trust or other entity by nontestamentary disposition.
767.375(1)(b) (b) That one or both spouses will make a particular disposition in a will or other governing instrument, as defined in s. 854.01 (2).
767.375(2) (2)Revocation of revocable transfers at death. Unless sub. (1) applies, revocation of revocable transfers at death by a former spouse to the other former spouse, or to relatives of the other former spouse, under an instrument executed before the judgment of annulment, divorce or legal separation is governed by s. 854.15.
767.375 History History: 1991 a. 301; 1997 a. 188; 2005 a. 216; 2005 a. 443 s. 119; Stats. 2005 s. 767.375.
767.375 Note NOTE: 1991 Wis. Act 301 contains extensive legislative council notes.
767.385 767.385 Maintenance, legal custody, and support when divorce or separation denied. If a judgment in an action for divorce or legal separation denies the divorce or legal separation, the court may make such order as the nature of the case renders just and reasonable for the legal custody of and periods of physical placement with any of the minor children, and for the maintenance of either spouse and support of the children by either spouse out of property or income. If the court orders child support under this section, the court shall determine the child support payments in a manner consistent with s. 767.511, regardless of the fact that a judgment of divorce or legal separation has not been entered.
767.385 History History: 1971 c. 220; 1979 c. 32 s. 50; Stats. 1979 s. 767.28; 1987 a. 355; 1993 a. 481; 2005 a. 443 s. 125; Stats. 2005 s. 767.385.
767.395 767.395 Name of spouse. Except as provided in s. 301.47, the court, upon granting a divorce, shall allow either spouse, upon request, to resume a former legal surname, if any.
767.395 History History: 1975 c. 94; 1979 c. 32 s. 50; Stats. 1979 s. 767.20; 2003 a. 52; 2005 a. 443 s. 78; Stats. 2005 s. 767.395.
767.395 Annotation Women's names in Wisconsin: In Re Petition of Kruzel. MacDougall, 1975 WBB No. 4.
subch. V of ch. 767 SUBCHAPTER V
CHILD CUSTODY, PLACEMENT, AND VISITATION
767.401 767.401 Educational programs and classes.
767.401(1) (1) Programs: effects of dissolution on children; parenting skills.
767.401(1)(a)(a) During the pendency of an action affecting the family in which a minor child is involved and in which the court determines that it is appropriate and in the best interest of the child, the court, on its own motion, may order the parties to attend a program specified by the court concerning the effects on a child of a dissolution of the marriage. If the court orders the parties to attend a program under this paragraph and there is evidence that one or both of the parties have engaged in interspousal battery, as described in s. 940.19 or 940.20 (1m), or domestic abuse, as defined in s. 813.12 (1) (am), the court may not require the parties to attend the program together or at the same time.
767.401(1)(b) (b) During the pendency of an action to determine the paternity of a child, or an action affecting the family for which the underlying action was an action to determine the paternity of a child, if the court determines that it is appropriate and in the best interest of the child, the court, on its own motion, may order either or both of the parties to attend a program specified by the court providing training in parenting or coparenting skills, or both.
767.401(1)(c) (c) A program under par. (a) or (b) shall be educational rather than therapeutic in nature and may not exceed a total of 4 hours in length. The parties shall be responsible for the cost, if any, of attendance at the program. The court may specifically assign responsibility for payment of any cost. No facts or information obtained in the course of the program, and no report resulting from the program, is admissible in any action or proceeding.
767.401(1)(d) (d) Notwithstanding s. 767.35 (1), the court may require the parties to an action affecting the family in which a minor child is involved to attend a program under par. (a) or (b) as a condition to the granting of a final judgment or order in the action affecting the family.
767.401(1)(e) (e) A party who fails to attend a program ordered under par. (a) or (b) or pay costs specifically ordered under par. (c) may be proceeded against under ch. 785 for contempt of court.
767.401(2) (2)Classes on parenting.
767.401(2)(a)(a) During the pendency of a divorce or paternity action, the court may order the parties to attend a class that is approved by the court and that addresses such issues as child development, family dynamics, how parental separation affects a child's development, and what parents can do to make raising a child in a separated situation less stressful for the child.
767.401(2)(b) (b) The court may not require the parties to attend a class under this subsection as a condition to the granting of the final judgment or order in the divorce or paternity action, however, the court may refuse to hear a custody or physical placement motion of a party who refuses to attend a class ordered under this subsection.
767.401(2)(c)1.1. Except as provided in subd. 2., the parties shall be responsible for any cost of attending the class.
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2011-12 Wisconsin Statutes updated though 2013 Wis. Act 200 and all Supreme Court Orders entered before April 18, 2014. Published and certified under s. 35.18. Changes effective after April 18, 2014 are designated by NOTES. (Published 4-18-14)