Chapter 767

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

767.127 Annotation In the event of a property division determined by arbitration, the closing of the arbitration record does not create a categorical exception under sub. (2) to alter the general rule of valuing property at the date of divorce, although the closing of the arbitration record could serve as the date of valuation. Franke v. Franke, 2004 WI 8, 268 Wis. 2d 360, 674 N.W.2d 832, 01-3316.

767.127 Annotation While under s. 767.61 (2) (a) 1. gifted property is generally not subject to division, that is not a hard and fast rule. It was not for a party to unilaterally decide not to disclose property because the party believed it was not subject to division. Jezeski v. Jezeski, 2009 WI App 8, 316 Wis. 2d 178, 763 N.W.2d 176, 07-2823.

767.127 Annotation In not revealing that he was a trust beneficiary, a father failed to make proper financial disclosure at the time of a divorce as was required by this section. Under both grantor and nongrantor trusts if there is an obligation to report that trust’s income as one’s own, there is an obligation to report the income, and that obligation makes the income reachable for calculations of child support. Stevenson v. Stevenson, 2009 WI App 29, 316 Wis. 2d 442, 765 N.W.2d 811, 07-2143.

767.13 767.13 Impoundment of record. Except as provided in s. 767.127 (3), the record or evidence in an action affecting the family may not be impounded, and access to the record or evidence may not be refused, except by written order of the court for good cause shown. No person may permit a copy of any impounded record or evidence, or the substance of the record or evidence, to be taken by any person other than a party to the action or his or her attorney of record, unless a court orders otherwise.

767.13 History History: 1977 c. 105, 273; 1979 c. 32 s. 50; 1979 c. 352 s. 39; Stats. s. 767.19; 2005 a. 443 s. 76; Stats. 2005 s. 767.13.

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

767.14 767.14 Change of address. Within 5 business days after receiving notice of an address change by a party to an action affecting the family, the clerk of circuit court shall enter the new address in the case file for the action.

767.14 History History: 2017 a. 203.

767.16 767.16 Circuit court commissioner or law partner; when interested; procedure. A circuit court commissioner assisting in matters affecting the family or a member of the commissioner’s law firm may not appear in any action affecting the family in any court held in the county in which the circuit court commissioner is acting. If a circuit court commissioner or a member of the commissioner’s law firm is interested in an action affecting the family and no other circuit court commissioner is available, the presiding judge shall appoint an attorney to act as circuit court commissioner in that action. The appointed attorney shall take and file the oath and receive the compensation provided by law.

767.16 History History: 1979 c. 32 ss. 50, 92 (4); 1979 c. 176; 1979 c. 352 s. 39; Stats. 1979 s. 767.16; 2001 a. 61; 2005 a. 443.

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

767.17 767.17 De novo review.

767.17(1) (1) Right to de novo review. Any decision of a circuit court commissioner under this chapter shall be reviewed by the judge of the branch of court to which the case has been assigned, upon motion of any party. Any determination, order, or ruling by a circuit court commissioner under this chapter may be certified to the branch of court to which the case has been assigned, upon a motion of any party for a hearing de novo. A party is required to be present at the hearing in order to seek a de novo review. The right to seek a de novo review does not apply to stipulations entered into between the parties. Notices requesting a hearing de novo will not stay the order unless the trial court specifically grants a stay of the order.

767.17(2) (2) Time limits. If a party seeks to have the trial court conduct a hearing de novo of a determination, order, or ruling entered by a court commissioner in an action affecting the family under this chapter, the party shall file a motion for a hearing de novo within 20 calendar days of the oral decision of the court commissioner or within 20 calendar days of the mailing of a written decision or order by the court commissioner if the decision or order was not given orally by the court commissioner at the time of the hearing. As set forth under s. 801.15 (1), 20 calendar days are counted consecutively and include weekends and holidays.

767.17(3) (3) Hearing. The court shall hold a hearing de novo no later than 60 days from the date of the filing of the motion under this section, except as otherwise required under s. 767.481.

767.17 History History: 2005 a. 443; 2021 a. 205.

767.17 Annotation The phrase “hearing de novo” means that the circuit court conducts literally a new hearing, which requires the circuit court to take a fresh look at the issues, including the taking of testimony. Jahimiak v. Jahimiak, 2024 WI App 5, 410 Wis. 2d 557, 2 N.W.3d 756, 23-0573.

767.17 Annotation The 60-day time limit in sub. (3) is directory, not mandatory. Jahimiak v. Jahimiak, 2024 WI App 5, 410 Wis. 2d 557, 2 N.W.3d 756, 23-0573.

767.18 767.18 Actions to affirm marriage. If the validity of a marriage is denied or doubted by either of the parties the other party may commence an action to affirm the marriage. The judgment in an action to affirm marriage shall declare the marriage valid or annul the marriage, and is conclusive upon all persons concerned.

767.18 History History: 1979 c. 32 s. 50; Stats. 1979 s. 767.04; 2005 a. 443 s. 24; Stats. 2005 s. 767.18.

subch. III of ch. 767 SUBCHAPTER III

GENERAL PROCEDURE

767.201 767.201 Civil procedure generally governs. Except as otherwise provided in the statutes, chs. 801 to 847 govern procedure and practice in an action affecting the family. Except as provided in this chapter, chs. 801 and 802 apply to the content and form of the pleadings and summons in an action affecting the family.

767.201 History History: 2005 a. 443.

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

767.201 Annotation Because this chapter does not prohibit civil sanctions for frivolous proceedings under s. 802.05, a motion for sanctions under s. 802.05 (2) and (3) in a divorce action under this chapter is governed by the rules of civil procedure. Wenzel v. Wenzel, 2017 WI App 75, 378 Wis. 2d 670, 904 N.W.2d 384, 16-1771.

767.205 767.205 Parties; title of actions.

767.205(1) (1) Parties. The party initiating an action affecting the family is the petitioner. The party responding to the action is the respondent. All references to “plaintiff” in chs. 801 to 807 apply to the petitioner, and all references to “defendant” in chs. 801 to 807 apply to the respondent. Both parties may initiate the petition together by signing and filing a joint petition. The parties to a joint petition are joint petitioners. The parties to a joint petition shall state in the petition that both parties consent to personal jurisdiction and waive service of summons.

767.205(2) (2) When the state is a real party in interest.

767.205(2)(a) (a) The state is a real party in interest within the meaning of s. 803.01 for purposes of establishing paternity, securing reimbursement of aid paid, future support and costs as appropriate in an action affecting the family in any of the following circumstances:

767.205(2)(a)1. 1. An action to establish paternity whenever there is a completed application for legal services filed with the child support program under s. 49.22 or whenever s. 767.80 (6m) or (6r) applies.

767.205(2)(a)2. 2. An action to establish or enforce a child support or maintenance obligation whenever there is a completed application for legal services filed with the child support program under s. 49.22.

767.205(2)(a)3. 3. Whenever aid under s. 48.57 (3m) or (3n), 48.645, 49.19, or 49.45 is provided on behalf of a dependent child or benefits are provided to the child’s custodial parent under ss. 49.141 to 49.161.

767.205(2)(a)4. 4. Whenever aid under s. 48.57 (3m) or (3n), 48.645, 49.19, or 49.45 has, in the past, been provided on behalf of a dependent child, or benefits have, in the past, been provided to the child’s custodial parent under ss. 49.141 to 49.161, and the child’s family is eligible for continuing child support services under 45 CFR 302.33.

767.205(2)(b) (b)

767.205(2)(b)1. 1. Except as provided in subd. 2., in any action affecting the family under a child support enforcement program, an attorney acting under s. 49.22 or 59.53 (5), including any district attorney or corporation counsel, represents only the state. Child support services provided by an attorney as specified in par. (a) do not create an attorney-client relationship with any other party.

767.205(2)(b)2. 2. Subdivision 1. does not apply to an attorney who is employed by the department under s. 49.22 or a county under s. 59.53 (5) or (6) (a) to act as the guardian ad litem of the minor child for the purpose of establishing paternity.

767.205(3) (3) Title of actions. An action affecting the family described in s. 767.001 (1) (a) to (d) or (g) to (k) shall be entitled “In re the marriage of A.B. and C.D.”, except that an independent action for visitation under s. 767.43 (3) shall be entitled “In re visitation with A. B.”. An action affecting the family described in s. 767.001 (1) (f) or (m) shall be entitled “In re the support of A.B.”. A child custody action shall be entitled “In re the custody of A.B.”.

767.205 History History: 1977 c. 418; 1979 c. 32 s. 50; 1979 c. 352 s. 39; Stats. 1979 s. 767.075; 1983 a. 27 s. 2202 (57); 1987 a. 413; 1989 a. 31; 1993 a. 326, 481; 1995 a. 27 s. 9126 (19); 1995 a. 201, 275, 289, 404; 1997 a. 35, 105; 2005 a. 443 ss. 30, 32, 37, 81; 2007 a. 20.

767.205 Annotation When parents each own a one-half interest in the 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).

767.205 Annotation A mother is a necessary party in a paternity action brought by the state. State v. Jody A.E., 171 Wis. 2d 327, 491 N.W.2d 136 (Ct. App. 1992).

767.205 Annotation A mother’s and child’s interests in a paternity action are not sufficiently identical to place them in privity for the purpose of res judicata. Chad M.G. v. Kenneth J.Z., 194 Wis. 2d 689, 535 N.W.2d 97 (Ct. App. 1995).

767.205 Annotation Sub. (2) (b) [now sub. (2) (b) 2.] allows a county corporation counsel to act as the guardian ad litem for a child in a paternity action so long as he or she only represents the child and does not represent the state in the action. Chad M.G. v. Kenneth J.Z., 194 Wis. 2d 689, 535 N.W.2d 97 (Ct. App. 1995).

767.205 Annotation Because a child has a right to bring an independent action for paternity under s. 767.45 [now s. 767.80], if the child was not a party to an earlier state instituted paternity action, it would be a violation of the child’s due process rights to preclude the child from litigating the paternity issue. Mayonia M.M. v. Keith N., 202 Wis. 2d 460, 551 N.W.2d 31 (Ct. App. 1996), 95-2838.

767.215 767.215 Initiating action; petition and response.

767.215(1) (1) Initiation of action.

767.215(1)(a) (a) Either or both of the parties to the marriage may initiate the action. The party initiating the action or his or her attorney shall sign the petition. Both parties or their respective attorneys shall sign a joint petition.

767.215(1)(b) (b) The clerk of court shall provide without charge, to each person filing a petition requesting child support, a document setting forth the percentage standard established by the department under s. 49.22 (9) and listing the factors that a court may consider under s. 767.511 (1m).

767.215(1)(c) (c) The clerk of court shall provide, without charge, to each person filing a petition showing that the parties have a minor child, a copy of s. 767.41 (1m) or a parenting plan form if a standard form for parenting plans is used in the county.

767.215(2) (2) Petition content. Except as otherwise provided, in an action affecting the family, the petition shall state:

767.215(2)(a) (a) The name and birthdate of the parties, the date and place of marriage, and the facts relating to the residence of both parties.

767.215(2)(b) (b) The name and birthdate of each minor child of the parties and each other child born to the wife during the marriage, and whether the wife is pregnant.

767.215(2)(c) (c) If the relief requested is a divorce or a legal separation in which the parties do not file a petition under s. 767.315 (2), that the marriage is irretrievably broken, or, alternatively, that both parties agree that the marriage is irretrievably broken.

767.215(2)(cm) (cm) If the relief requested is a legal separation and the parties have filed a petition under s. 767.315 (2), that both parties agree that the marital relationship is broken.

767.215(2)(d) (d) Whether an action for divorce or legal separation by either of the parties has been at any time commenced, or is pending in any other court, in this state or elsewhere.

767.215(2)(dm) (dm) Whether either party was previously married and, if so, the manner in which the marriage was terminated, and, if terminated by court judgment, the name of the court that granted the judgment and the time and place the judgment was granted, if known.

767.215(2)(e) (e) Whether the parties have entered into a written agreement as to support, legal custody, and physical placement of the children, maintenance of either party, or property division. If so, the written agreement shall be attached.

767.215(2)(f) (f) The relief requested. If the relief requested is a legal separation, the petition shall state the specific reason for requesting that relief.

767.215(2)(h) (h) That during the pendency of the action, the parties are prohibited from, and may be held in contempt of court for, harassing, intimidating, physically abusing or imposing any restraint on the personal liberty of the other party or a minor child of either party.

767.215(2)(i) (i) If the action is one under s. 767.001 (1) (a), (b), (c), (d), (h), or (i), that during the pendency of the action, without the consent of the other party or an order of the court, the parties are prohibited from, and may be held in contempt of court for, encumbering, concealing, damaging, destroying, transferring, or otherwise disposing of property owned by either or both of the parties, except in the usual course of business, in order to secure necessities, or in order to pay reasonable costs and expenses of the action, including attorney fees.

767.215(2)(j) (j) Unless the action is one under s. 767.001 (1) (g) or (h), that during the pendency of the action the parties are prohibited from, and may be held in contempt of court for, doing any of the following without the consent of the other party or an order of the court:

767.215(2)(j)1. 1. Relocating and establishing a residence with a minor child of the parties more than 100 miles from the residence of the other party.

767.215(2)(j)2. 2. Removing a minor child of the parties from the state for more than 90 consecutive days.

767.215(2)(j)3. 3. Concealing a minor child of the parties from the other party.

767.215(2e) (2e) Relationship of petition to complaint. All references to a “complaint” in chs. 801 to 807 apply to petitions under this section.

767.215(2m) (2m) Summons, content.

767.215(2m)(a) (a) Except as provided in par. (b), if only one party initiates the action and the parties have minor children, the summons served on the other party:

767.215(2m)(a)1. 1. Shall include notification of the availability of information under s. 767.105 (2) and of the contents of s. 948.31.

767.215(2m)(a)2. 2. Shall be accompanied by a document, provided without charge by the clerk of court, setting forth the percentage standard established by the department under s. 49.22 (9) and listing the factors that a court may consider under s. 767.511 (1m).

767.215(2m)(a)3. 3. Shall be accompanied by a copy of s. 767.41 (1m) or a standard parenting plan form used in the county, provided without charge by the clerk of court.

767.215(2m)(b) (b) If service is by publication, notification regarding s. 948.31 may consist of references to the statute numbers and titles, and information relating to the percentage standard and the factors and completing and filing parenting plans need not be provided.

767.215(3) (3) Service. If only one party initiates the action, the other shall be served under ch. 801 and may serve a response or counterclaim within 20 days after the date of service, except that questions of jurisdiction may be raised at any time prior to judgment. Service shall be made upon the petitioner, and the original copy of the response shall be filed in court. If the parties together initiate the action with a joint petition, service of summons is not required.

767.215(4) (4) Extension of time for service.

767.215(4)(a) (a) Except as provided in par. (b) and s. 767.815, extension of time is governed by s. 801.15 (2).

767.215(4)(b) (b) The court may, upon the petitioner’s demonstration of good cause, and without notice, order one additional 60-day extension for service of the initial papers in the action if the extension motion is made within 90 days after filing the initial papers. If the extension motion is not made within the 90-day period, the court may grant the motion only if it finds excusable neglect for failure to act and good cause shown for granting the extension.

767.215(5) (5) Social security numbers.

767.215(5)(a) (a) Except as provided in par. (am), when the petition under this section is filed with the court, the party filing the petition shall submit a separate form, furnished by the court, containing all of the following:

767.215(5)(a)1. 1. The name, date of birth, and social security number of each party.

767.215(5)(a)2. 2. The name, date of birth, and social security number of each minor child of the parties and of each child who was born to the wife during the marriage and who is a minor.

767.215(5)(am) (am) In an action to determine the paternity of a child, the party who filed the petition shall submit the form under par. (a) within 5 days after paternity is adjudicated.

767.215(5)(b) (b) A form submitted under this subsection shall be maintained with the confidential information required under s. 767.127 or maintained separately from the case file. The form may be disclosed only to the parties and their attorneys, a county child support enforcement agency, and any other person authorized by law or court order to have access to the information on the form.

767.215 History History: 1971 c. 220; 1977 c. 105; 1979 c. 32 ss. 50, 92 (4); 1979 c. 196; 1979 c. 352 s. 39; Stats. 1979 s. 767.085; 1985 a. 29; 1987 a. 332 s. 64; 1987 a. 355, 403; 1989 a. 31, 56, 132; 1993 a. 78, 481; 1995 a. 27 s. 9126 (19); 1995 a. 201, 404; 1997 a. 191; 2001 a. 61; 2005 a. 443 ss. 31, 46 to 49, 71, 83, 84; Stats. 2005 s. 767.215; 2007 a. 187; 2011 a. 32; 2017 a. 203.

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

767.217 767.217 Notice to Child Support Program.

767.217(1) (1) Notice of pleading or motion. In an action affecting the family in which either party is a recipient of benefits under ss. 49.141 to 49.161 or aid under s. 48.645, 49.19, or 49.45, each party shall, either within 20 days after serving the opposite party with a motion or pleading requesting the court to order or to modify a previous order relating to child support, maintenance, or family support, or before filing the motion or pleading in court, serve a copy of the motion or pleading on the county child support agency under s. 59.53 (5) of the county in which the action is begun.

767.217(2) (2) Notice of appeal. In an appeal of an action affecting the family in which support or maintenance of a child of any party is at issue, the person who initiates the appeal shall notify the department of the appeal by sending a copy of the notice of appeal to the department.

767.217(3) (3) Noncompliance. A judgment in an action affecting the family may not be granted unless this section is complied with or a court orders otherwise.

767.217 History History: 1977 c. 418; 1979 c. 32 s. 50; 1979 c. 196; 1979 c. 352 s. 39; Stats. 1979 s. 767.15; 1983 a. 27; 1987 a. 413; 1995 a. 27 s. 9126 (19); 1995 a. 201, 289, 404; 1997 a. 27, 35; 2001 a. 61; 2005 a. 443 s. 72; Stats. 2005 s. 767.217; 2007 a. 20.