Chapter 767

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.

767.333(2)(c) (c) Prior to entering a stipulation under this section, the judge shall comply with any requirements under s. 767.41.

767.333(2)(d) (d) If the judge finds that a parent 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), the safety and well-being of the child and the safety of the parent who was the victim of the battery or abuse shall be paramount concerns in determining legal custody and periods of physical placement.

767.333(2)(e) (e) A stipulation under this section is effective and enforceable as an initial order regarding legal custody or physical placement when entered, pursuant to s. 767.41.

767.333(3) (3) Stipulations regarding child support. Prior to approving a stipulation under this section regarding child support, the judge shall comply with any requirements under s. 767.511. A party seeking modification of a stipulation entered under this section regarding child support must comply with s. 767.59.

767.333(4) (4) Stipulations regarding maintenance. Prior to approving a stipulation under this section regarding maintenance, the judge shall comply with any requirements under s. 767.56. A party seeking modification of a stipulation entered under this section regarding maintenance must comply with s. 767.59.

767.333(5) (5) Stipulations regarding property division. Prior to approving a stipulation under this section regarding property division, the judge shall comply with any requirements under s. 767.61. A party seeking relief from a stipulation entered under this section regarding property division must comply with s. 806.07.

767.333(6) (6) Hearing.

767.333(6)(a) (a) Prior to entering a stipulation under this section, the judge shall hold a hearing on the record with both parties and the child support agency, if a party, to determine the parties’ understanding of the stipulation and ensure that it is intended by both parties as the initial order on the terms set forth.

767.333(6)(b) (b) Any hearing held under par. (a) may be held by telephone, video, or electronic means. A party or a party’s attorney may appear via telephone or video for good cause shown, but each party is required to attend the hearing by telephone, video, electronic means, or in person.

767.333 History History: 2021 a. 204.

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, 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(3) (3) Approval of stipulation for modifications contingent on future event.

767.34(3)(a) (a) In this subsection, “future event” means a life event of a party or of the child or a change in the developmental or educational needs of the child.

767.34(3)(b) (b) A court may approve a stipulation for legal custody and physical placement that includes modifications to legal custody or physical placement upon the occurrence of a specified future event that is reasonably certain to occur within 2 years of the date of the stipulation. A court may not approve a stipulation under this subsection that is based on an anticipated behavior modification of a party.

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; 2021 a. 20, 35.

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 two 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 this section] 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, 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 this section], not s. 767.255 [now s. 767.61]. When a party withdrew the party’s 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 the party’s 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 its 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) (b)

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, 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. This section does not prevent application of enforceable orders prior to the divorce judgment as set forth in s. 767.333.

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; 2021 a. 35, 204.

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

767.35 Annotation Section 247.37 (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 Section 247.37 (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 six 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 s. 767.09 (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).

767.35 Annotation A judgment of legal separation does not terminate a marriage—only divorce proceedings do. There are rights and obligations remaining in the marriage after a legal separation. Although s. 766.01 (7) contemplates that the “dissolution” of a marriage may involve a judgment of legal separation, ch. 766 is not intended to change the law of divorce or other forms of dissolution under this chapter. Kemper Independence Insurance Co. v. Islami, 2021 WI 53, 397 Wis. 2d 394, 959 N.W.2d 912, 19-0488.