Chapter 767

767.235 History History: 2005 a. 443 ss. 65, 67, 77, 93.

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

767.241 767.241 Award of attorney fees and other fees and costs.

767.241(1) (1) Court authority. The court, after considering the financial resources of both parties, may do the following:

767.241(1)(a) (a) 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.

767.241(1)(b) (b) 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.

767.241(2) (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.

767.241(3) (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 or 49.19, who may enforce the order in its name.

767.241(4) (4) Payment by state or county.

767.241(4)(a) (a) 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.

767.241(4)(b) (b) 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.

767.241 History History: 1977 c. 105; 1979 c. 32 s. 50; 1979 c. 352 s. 39; Stats. 1979 s. 767.262; 1983 a. 27; 1993 a. 481, 490; 1995 a. 201, 279, 404; 1997 a. 27, 35, 252; 2005 a. 443 ss. 99, 112; Stats. 2005 s. 767.241.

767.241 Annotation 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 (1970).

767.241 Annotation 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 (1970).

767.241 Annotation 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 (1970).

767.241 Annotation 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 (1974).

767.241 Annotation 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 (1992).

767.241 Annotation 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).

767.241 Annotation Under Ondrasek, 126 Wis. 2d 469 (1985), the overtrial doctrine may be invoked in family law cases when one party’s unreasonable approach to litigation causes the other party to incur extra and unnecessary fees. 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 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, 05-1212.

767.251 767.251 Content, preparation, and approval of judgment.

767.251(1) (1) Content. 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.

767.251(2) (2) Preparation. 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.

767.251(3) (3) Approval. 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.

767.251 History History: 2005 a. 443 ss. 169, 170.

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

767.264 767.264 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.

767.264(2) (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.

767.264(2)(b) (b) 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.

767.264 History History: 2005 a. 443 ss. 33, 92, 114.

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

767.264 Annotation 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).

767.264 Annotation 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, 04-0328.

767.264 Annotation The Federal Tax Consequences of Divorce. Meldman & Ryan. 57 MLR 229 (1974).

767.273 767.273 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.

767.273 History History: 1975 c. 94; 1977 c. 105; 1977 c. 187 s. 89; 1979 c. 32 s. 50; 1979 c. 352 s. 39; Stats. 1979 s. 767.39; Sup. Ct. Order, 146 Wis. 2d xiii (1988); 2005 a. 443 s. 176.

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

767.281 767.281 Filing procedures and orders for enforcement or modification of judgments or orders.

767.281(1) (1) Applicability. 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).

767.281(1m) (1m) Generally. 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.

767.281(2) (2) Support or maintenance orders.

767.281(2)(a) (a) 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:

767.281(2)(a)1. 1. 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.

767.281(2)(a)2. 2. 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.

767.281(2)(b) (b) 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.

767.281(2)(c) (c) 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.

767.281(4) (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.

767.281 History History: 1989 a. 212; 1993 a. 326, 481; 1995 a. 279; 1997 a. 27; 2005 a. 443 ss. 17 to 20, 126; Stats. 2005 s. 767.281.

767.281 Annotation 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).

subch. IV of ch. 767 SUBCHAPTER IV

ANNULMENT, DIVORCE, AND LEGAL SEPARATION

767.301 767.301 Residence requirements. No action to affirm marriage or for annulment under s. 767.001 (1) (a) or (b) 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) or (d) 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.

767.301 History History: 2005 a. 443 s. 27.

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

767.301 Annotation 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).

767.313 767.313 Annulment.

767.313(1) (1) Grounds; when suit may be brought. A court may annul a marriage upon any of the following grounds:

767.313(1)(a) (a) 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.

767.313(1)(b) (b) 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.

767.313(1)(c) (c) 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.

767.313(1)(d) (d) 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.

767.313(2) (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.

767.313 History History: 1977 c. 105; 1979 c. 32 ss. 50, 92 (2); Stats. 1979 s. 767.03; 2005 a. 443 ss. 22, 23, 145; Stats. 2005 s. 767.313.

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

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. Mc Cabe, 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 draws a distinction between an annulment and a declaration that a marriage is 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, 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. Di Pronio. 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 this section] 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).

767.333 767.333 Initial orders based on stipulation prior to judgment.

767.333(1) (1) Initial orders based on stipulation allowed. Prior to obtaining a judgment of divorce, annulment, or legal separation, the parties may agree to physical placement, legal custody, child support, property division, maintenance, or related provisions. If the parties agree on one or more of the issues set forth under this section, the parties shall file a stipulation with the court that specifies the agreed-upon terms.

767.333(2) (2) Stipulations regarding legal custody, physical placement, or related provisions.

767.333(2)(a) (a) If the judge approves the stipulation, the judge shall incorporate and enter the terms of a stipulation regarding legal custody, physical placement, or related provisions as an initial order of physical placement or legal custody unless the judge finds that the terms are not in the best interest of the child.

767.333(2)(b) (b) The provisions for modifications of orders regarding legal custody or physical placement under this section shall commence on the date of entry of the order, not the date of judgment, for purposes of s. 767.451.