Chapter 767

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.

767.225 767.225 Orders during pendency of action.

767.225(1) (1) Temporary orders. Except as provided in ch. 822, in an action affecting the family the court may, during the pendency of the action, make just and reasonable temporary orders concerning the following matters:

767.225(1)(a) (a) Upon request of one party, granting legal custody of the minor children to the parties jointly, to one party solely, or to a relative or agency specified under s. 767.41 (3), in a manner consistent with s. 767.41, except that the court may order sole legal custody without the agreement of the other party and without the findings required under s. 767.41 (2) (b) 2. An order under this paragraph is not binding on a final custody determination.

767.225(1)(am) (am) Upon the request of a party, granting periods of physical placement to a party in a manner consistent with s. 767.41. The court shall make a determination under this paragraph within 30 days after the request for a temporary order regarding periods of physical placement is filed. If the court grants physical placement to one parent for less than 25 percent of the time, as determined under s. 49.22 (9), the court shall enter specific findings of fact as to the reasons that a greater allocation of physical placement with that parent is not in the best interests of the child.

767.225(1)(ap) (ap) Upon the request of a party, granting periods of electronic communication to a party in a manner consistent with s. 767.41. The court or circuit court commissioner shall make a determination under this paragraph within 30 days after the request for a temporary order regarding periods of electronic communication is filed.

767.225(1)(b) (b) Notwithstanding ss. 767.117 (1) (c) and 767.215 (2) (j), prohibiting the removal of minor children from the jurisdiction of the court.

767.225(1)(bm) (bm) Allowing a party to relocate and reside with a child pending a final hearing under s. 767.481 (3).

767.225(1)(c) (c) 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. to 3. are satisfied.

767.225(1)(d) (d) 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.

767.225(1)(f) (f) Requiring either party to execute an assignment of income under s. 767.75 or an authorization for transfer under s. 767.76.

767.225(1)(g) (g) Requiring either party or both parties to pay debts or perform other actions in relation to the persons or property of the parties.

767.225(1)(h) (h) Notwithstanding ss. 767.117 (1) (b) and 767.215 (2) (i), prohibiting either party from disposing of assets within the jurisdiction of the court.

767.225(1)(i) (i) Requiring counseling of either party or both parties.

767.225(1)(k) (k) Subject to s. 767.85, requiring either party or both parties to maintain minor children as beneficiaries on a health insurance policy or plan.

767.225(1)(L) (L) Requiring either party or both parties to execute an assignment of income for payment of health care expenses of minor children.

767.225(1n) (1n) Considerations; stipulations; review.

767.225(1n)(a) (a) 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) or (am), the court shall consider the factors under s. 767.41 (5) (am), subject to s. 767.41 (5) (bm).

767.225(1n)(b) (b)

767.225(1n)(b)1. 1. 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).

767.225(1n)(b)2. 2. 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).

767.225(1n)(b)3. 3. 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) and (c) applies to a failure to comply with a temporary order under this subdivision.

767.225(1n)(c) (c) 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.

767.225(2) (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.

767.225(3m) (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.