Chapter 767

767.511 Annotation The percentage standards under sub. (1j) include the shared-time payer formula in s. DWD 40.04 (2) [now s. DCF 150.04 (2)], Wis. Adm. Code, as well as the straight percentage standards in s. DWD 40.03 (1) [now s. DCF 150.03 (1)]. The shared-time formula applies if the payer will be assuming costs in proportion to the number of days the court is ordering placement with the parent. Randall v. Randall, 2000 WI App 98, 235 Wis. 2d 1, 612 N.W.2d 737, 99-0531.

767.511 Annotation Incarceration is a valid factor for a court to consider in setting child support because of the impact it may have on the payor’s employability due to what may be voluntary and unreasonable acts. It was proper to base child support on earning capacity and to provide for an offset against the payor’s property division payout to provide for payment of the support obligation. Modrow v. Modrow, 2001 WI App 200, 247 Wis. 2d 889, 634 N.W.2d 852, 00-1868.

767.511 Annotation Subs. (1j), (1m), and (1n) give the court authority to determine and order some amount for child support. While that authority implicitly includes the authority to determine the amount to be zero, it does not implicitly include the authority to order the parents to divide expenses for the children among themselves in particular ways as an alternative to ordering one parent to pay child support to the other. Zawistowski v. Zawistowski, 2002 WI App 86, 253 Wis. 2d 630, 644 N.W.2d 252, 01-0655.

767.511 Annotation This section makes no provision as to splitting child care costs beyond what is provided in the child support payments. The trial court erroneously exercised its discretion when, without addressing the sub. (1m) factors, it deviated from the child support percentage standards by ordering one party to pay one-half of the daycare expenses in addition to support required by the percentage standards. McLaren v. McLaren, 2003 WI App 125, 265 Wis. 2d 529, 665 N.W.2d 405, 02-2451.

767.511 Annotation A trial court may establish a trust from funds paid for child support for the purpose of funding a child’s postminority educational expenses. Because the percentage standards presume a higher standard of living commensurate with the payer’s higher income, a child is entitled to the money over and above the child’s needs. A trust is in the child’s best interests and puts the child in the same position as if in an intact high-income family. Further, consideration of “educational needs” under sub. (1m) (g) is broad enough to encompass the higher educational needs of the child. Kowalski v. Obst, 2003 WI App 218, 267 Wis. 2d 400, 671 N.W.2d 339, 03-0573.

767.511 Annotation Sub. (6) does not limit the authority a trial court would otherwise have to consider imposing interest on unpaid maintenance arrears. Cashin v. Cashin, 2004 WI App 92, 273 Wis. 2d 754, 681 N.W.2d 255, 03-1010.

767.511 Annotation When a spouse presented a challenge to the application of the percentage standards on fairness grounds and presented a developed argument based on evidence in support of that challenge, the trial court was required to perform the analysis of the relevant statutory factors in answer to that challenge. Maritato v. Maritato, 2004 WI App 138, 275 Wis. 2d 252, 685 N.W.2d 379, 03-2074.

767.511 Annotation When information the payer spouse supplied did not permit more than an approximate determination of the payer’s true gross income, the court was not required to precisely subtract the amount the payer alleged the payer would have to pay to service a new debt. Derr v. Derr, 2005 WI App 63, 280 Wis. 2d 681, 696 N.W.2d 170, 03-2181.

767.511 Annotation The trial court erred when it ordered that child support be held open based upon the asset of the wife’s Ph.D. in psychology and upon her imputed enhanced education income upon her expected, but as yet unattained, licensure to practice. Child support determinations are to be made upon the basis of the circumstances existing at the time of the divorce and a held-open determination indicates that an order for child support is not necessary based upon current circumstances. Weiler v. Boerner, 2005 WI App 64, 280 Wis. 2d 519, 695 N.W.2d 833, 03-2606.

767.511 Annotation When undistributed company earnings are at issue, the court must: 1) ascertain whether the child support payer has the ability to individually control or access the undistributed earnings; and 2) determine whether there is a valid business reason for the company’s decision to retain the earnings. If the payer has the ability to individually control or access earnings and the company has no valid reason for retaining its earnings, the undistributed income can be considered when calculating the payer’s child support obligation. Winters v. Winters, 2005 WI App 94, 281 Wis. 2d 798, 699 N.W.2d 229, 04-0747.

767.511 Annotation A lump sum payment as the result of a pension plan enhancement was gross income subject to the child support standards. There is no windfall exception to the application of child support to gross income. Absent a finding of unfairness, grounded in the specific facts of the case, and after considering all enumerated factors in sub. (1m) and any other factors relevant to the particular case, a trial court is not authorized to deviate from the percentage standards. Winkler v. Winkler, 2005 WI App 100, 282 Wis. 2d 746, 699 N.W.2d 652, 04-1231.

767.511 Annotation The circuit court erred when it upheld the court commissioner’s decision to exclude overtime pay as a general policy without exception when applying the percentage standard. Overtime income clearly constitutes a portion of salary and wages, and Wisconsin law does not exclude overtime income in the application of the percentage standard. Jarman v. Welter, 2006 WI App 54, 289 Wis. 2d 857, 711 N.W.2d 705, 05-1616.

767.511 Annotation A provision providing that neither parent could request a change in the amount of child support payments for a period of at least seven years from the date of the judgment entered, except in catastrophic circumstances, was unenforceable. As is implicit from Ondrasek, 158 Wis. 2d 690 (1990), any marital settlement agreement entered into by divorcing parties that purports to limit a child support payee’s ability to seek a support modification upon a substantial change in circumstances is against public policy and cannot provide a basis to estop the payee from seeking a modification. Ondrasek is not limited to unilateral waivers of a payee’s right to obtain increased child support. Wood v. Propeck, 2007 WI App 24, 299 Wis. 2d 470, 728 N.W.2d 757, 05-2674.

767.511 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 s. 767.127. The rationale of Grohmann, 189 Wis. 2d 532 (1995), is applicable to both grantor and nongrantor trusts if there is an obligation to report that trust’s income as one’s own because it is the obligation to report the income that makes the income reachable for calculations of a child support obligation. Stevenson v. Stevenson, 2009 WI App 29, 316 Wis. 2d 442, 765 N.W.2d 811, 07-2143.

767.511 Annotation There is no basis upon which a trial court can reduce that support owed to a payor spouse’s marital child based on nonchild-support amounts paid to the payee spouse’s nonmarital child. However, the benefit received by the nonmarital child for amounts received from the payor spouse would be appropriately accounted for in the maintenance award or property division. Ladwig v. Ladwig, 2010 WI App 78, 325 Wis. 2d 497, 785 N.W.2d 664, 09-1202.

767.511 Annotation Ordinarily bonus income should be considered income when setting a child support order. In this case, the trial court made the necessary findings to deviate from the child support guidelines when the court awarded a percentage of a future bonus to make up for a gap in support when no order was in effect, rather than applying the bonus to current support. Tierney v. Berger, 2012 WI App 91, 343 Wis. 2d 681, 820 N.W.2d 459, 11-0565.

767.511 Annotation While the statute suggests that child support orders be expressed as a fixed sum, it does not completely prohibit percentage orders. Permitting percentage orders on unknown future bonus income is an exception to the preferred method of having percentage orders expressed as a fixed sum. Tierney v. Berger, 2012 WI App 91, 343 Wis. 2d 681, 820 N.W.2d 459, 11-0565.

767.511 Annotation Federal preemption doctrine does not prohibit states from requiring payment of child support out of veterans’ disability benefits. Rose v. Rose, 481 U.S. 619, 107 S. Ct. 2029, 95 L. Ed. 2d 599 (1987).

767.511 Annotation Poor Little Rich Kids: Revising Wisconsin’s Child Support System to Accommodate High-Income Payers. Dodd. 83 MLR 807 (2000).

767.511 Annotation No-Fault Divorce: Tax Consequences of Support, Maintenance and Property Settlement. Case. WBB Dec. 1977.

767.511 Annotation A practitioner’s approach to child support. Bailey. WBB June 1987.

767.511 Annotation HSS 80: New Rules for Child Support Obligations. Hickey. Wis. Law. Apr. 1995.

767.511 Annotation Which Came First? The Serial Family Payer Formula. Stansbury. Wis. Law. Apr. 1995.

767.513 767.513 Child health care expenses.

767.513(1) (1) Definition. In this section, “health insurance” does not include medical assistance provided under subch. IV of ch. 49.

767.513(2) (2) Responsibility and payment. In addition to ordering child support for a child under s. 767.511 (1), the court shall specifically assign responsibility for and direct the manner of payment of the child’s health care expenses. In assigning responsibility for a child’s health care expenses, the court shall consider whether a child is covered under a parent’s health insurance policy or plan at the time the court approves a stipulation for child support under s. 767.34, enters a judgment of annulment, divorce, or legal separation, or enters an order or a judgment in a paternity action or in an action under s. 767.001 (1) (f) or (j), 767.501, 767.804 (2), or 767.805 (3), the availability of health insurance to each parent through an employer or other organization, the extent of coverage available to a child, and the costs to the parent for the coverage of the child. A parent may be required to initiate or continue health care insurance coverage for a child under this section. If a parent is required to do so, he or she shall provide copies of necessary program or policy identification to the custodial parent and is liable for any health care costs for which he or she receives direct payment from an insurer. This section shall not be construed to limit the authority of the court to enter or modify support orders containing provisions for payment of medical expenses, medical costs, or insurance premiums that are in addition to and not inconsistent with this section.

767.513(2m) (2m) Health insurance identification card.

767.513(2m)(a) (a) The court shall order a parent who is required to provide health insurance coverage for a child under this section to provide to the other parent a health insurance identification card evidencing the child’s health insurance coverage.

767.513(2m)(b) (b) If the parent ordered to provide a health insurance identification card for the child fails to do so, the other parent may attempt to obtain a card for the child by presenting to the health insurance provider or to the employer through which the insurance is provided a copy of the order requiring the provision of a card.

767.513(2m)(c) (c) If the other parent is unable to obtain a health insurance identification card for the child in the manner provided in par. (b), the intentional failure to comply with the order to provide the card by the parent so ordered constitutes a contempt of court, punishable under ch. 785.

767.513(3) (3) Income withholding and assignment.

767.513(3)(a) (a) In directing the manner of payment of a child’s health care expenses, the court may order that payment, including payment for health insurance premiums, be withheld from income and sent to the appropriate health care insurer, provider, or plan, as provided in s. 767.75 (3h), or sent to the department or its designee for disbursement to the person for whom the payment has been awarded if that person is not a health care insurer, provider, or plan. If the court orders income withholding and assignment for the payment of health care expenses, the court or county child support agency under s. 59.53 (5) shall send notice of assignment in the manner provided under s. 767.75 (2r) and may include the notice of assignment under this paragraph with a notice of assignment under s. 767.75. The department or its designee shall keep a record of all moneys received and disbursed for health care expenses that are directed to be paid to the department or its designee.

767.513(3)(b) (b) If the court orders a parent to initiate or continue health insurance coverage for a child under a health insurance policy that is available to the parent through an employer or other organization but the court does not specify the manner in which payment of the health insurance premiums shall be made, the court or county child support agency under s. 59.53 (5) may provide notice of assignment in the manner provided under s. 767.75 (2r) for the withholding from income of the amount necessary to pay the health insurance premiums. The notice of assignment under this paragraph may be sent with or included as part of any other notice of assignment under s. 767.75. A person who receives notice of assignment under this paragraph shall send the withheld health insurance premiums to the appropriate health care insurer, provider, or plan, as provided in s. 767.75 (3h).

767.513(4) (4) Health benefit plan; employer obligation. If the court orders a parent to provide coverage of the health care expenses of the parent’s child and the parent is eligible for family coverage of health care expenses under a health benefit plan that is provided by an employer on an insured or on a self-insured basis, the employer shall do all of the following:

767.513(4)(a) (a) Permit the parent to obtain family coverage of health care expenses for the child, if eligible for coverage, without regard to any enrollment period or waiting period restrictions that may apply.

767.513(4)(b) (b) Provide family coverage of health care expenses for the child, if eligible for coverage, upon application by the parent, the child’s other parent, the department, or the county child support agency under s. 59.53 (5), or upon receiving a notice under sub. (6) (a).

767.513(4)(bm) (bm) Notify the county child support agency under s. 59.53 (5) when coverage of the child under the health benefit plan is in effect and, upon request, provide copies of necessary program or policy identification to the child’s other parent.

767.513(4)(c) (c) After the child has coverage under the employer’s health benefit plan, and as long as the parent is eligible for family coverage under the employer’s health benefit plan, continue to provide coverage for the child unless the employer receives satisfactory written evidence that the court order is no longer in effect or that the child has coverage of health care expenses under another health insurance policy or health benefit plan that provides comparable coverage of health care expenses.

767.513(5) (5) Recovery by state of 3rd party payments.

767.513(5)(a) (a) If a parent who has been ordered by a court to provide coverage of the health care expenses of a child who is eligible for medical assistance under subch. IV of ch. 49 receives payment from a 3rd party for the cost of services provided to the child but does not pay the health care provider for the services or reimburse the department or any other person who paid for the services on behalf of the child, the department may obtain a judgment against the parent for the amount of the 3rd-party payment.

767.513(5)(b) (b) Section 767.75 (4) applies to a garnishment based on a judgment obtained under par. (a).

767.513(6) (6) Change of employment; notice.

767.513(6)(a) (a) If a parent who provides coverage of the health care expenses of a child under an order under this section changes employers and that parent has a court-ordered child support obligation with respect to the child, the county child support agency under s. 59.53 (5) shall provide notice of the order to provide coverage of the child’s health care expenses to the new employer and to the parent.

767.513(6)(b) (b) The notice provided to the parent shall inform the parent that coverage for the child under the new employer’s health benefit plan will be in effect upon the employer’s receipt of the notice. The notice shall inform the parent that he or she may, within 10 business days after receiving the notice, by motion request a hearing before the court on the issue of whether the order to provide coverage of the child’s health care expenses should remain in effect. A motion under this paragraph may be heard by a circuit court commissioner. If the parent requests a hearing and the court determines that the order to provide coverage of the child’s health care expenses should not remain in effect, the court shall provide notice to the employer that the order is no longer in effect.

767.513 History History: 2005 a. 443 ss. 104, 220; 2007 a. 96; 2019 a. 95.

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

767.513 Annotation Orders assigning health care responsibility pursuant to s. 767.25 (4m) [now this section] are subject to revision under s. 767.32 [now s. 767.59]. Kuchenbecker v. Schultz, 151 Wis. 2d 868, 447 N.W.2d 80 (Ct. App. 1989).

767.521 767.521 Action by state for child support. The state or its delegate under s. 49.22 (7) shall bring an action for support of a minor child under s. 767.001 (1) (f) or for paternity determination and child support under s. 767.80 if the child’s right to support is assigned to the state under s. 48.57 (3m) (b) 2. or (3n) (b) 2., 48.645 (3), 49.145 (2) (s), 49.19 (4) (h) 1. b., or 49.775 (2) (bm) and all of the following apply:

767.521(1) (1) The child has been deprived of parental support by reason of the continued absence of a parent from the home.

767.521(2) (2) A court has not issued an order under s. 767.511 requiring the parent who is absent from the home to support the child.

767.521 History History: 1987 a. 27; 1995 a. 289, 404; 1997 a. 27, 105; 2005 a. 443 s. 38; Stats. 2005 s. 767.521; 2007 a. 20.

767.531 767.531 Family support. Subject to s. 767.511 (6m), a party ordered to pay family support under this section, 2019 stats., shall pay simple interest at the rate of 1 percent per month on any amount in arrears that is equal to or greater than the amount of child support due in one month. Subject to s. 767.511 (6m), if the party no longer has a current obligation to pay child support, interest at the rate of 1 percent per month shall accrue on the total amount of child support in arrears, if any. Interest under this section is in lieu of interest computed under s. 807.01 (4), 814.04 (4), or 815.05 (8) and is paid to the department or its designee under s. 767.57. Except as provided in s. 767.57 (1m), the department or its designee shall apply all payments received for family support ordered under this section, 2019 stats., as follows:

767.531(1) (1) First, to payment of family support due within the calendar month during which the payment is received.

767.531(2) (2) Second, to payment of unpaid family support due before the payment is received.

767.531(3) (3) Third, to payment of interest accruing on unpaid family support.

767.531 History History: 1977 c. 105; 1979 c. 32 ss. 50, 92 (4); Stats. 1979 s. 767.261; 1983 a. 27; 1985 a. 29; 1993 a. 481; 1995 a. 279; 1997 a. 27, 191; 1999 a. 9, 32; 2005 a. 443 s. 111; Stats. 2005 s. 767.531; 2013 a. 20; 2021 a. 35.

767.531 Annotation This section does not limit the authority a trial court would otherwise have to consider imposing interest on unpaid maintenance arrears. Cashin v. Cashin, 2004 WI App 92, 273 Wis. 2d 754, 681 N.W.2d 255, 03-1010.

767.531 Annotation Under former s. 767.531, 2019 stats., the circuit court must separately calculate child support and maintenance as a condition precedent to calculating family support. If the court applies the percentage guidelines when setting child support, it must set family support at an amount that results in a net payment, after state and federal taxes are paid, of no less than the child support as calculated under the guidelines. Even if a court makes detailed findings as to all of the factors for family support, the court erroneously exercises its discretion if it neglects to provide a rational explanation of how its findings lead to the support award. Vlies v. Brookman, 2005 WI App 158, 285 Wis. 2d 411, 701 N.W.2d 642, 04-0315.

767.531 Annotation It is evident from the statutory framework and the purpose of family support that at least a portion of family support ordered in any case involving minor children is child support. With respect to child support, any provision in a marital settlement agreement that purports to limit a child support payee’s ability to seek a support modification upon a substantial change in circumstances is against public policy and cannot provide a basis to estop the payee from seeking a modification. Huhn v. Stuckmann, 2009 WI App 127, 321 Wis. 2d 169, 772 N.W.2d 744, 08-3102.

767.54 767.54 Required exchange of financial information.

767.54(1) (1) In an action in which the court has ordered a party to pay family support under s. 767.225, 2019 stats., or s. 767.531, 2019 stats., or child support or maintenance under this chapter, including an action to revise a judgment or order under s. 767.59, the court shall require the parties annually to exchange financial information. Information required under this section shall be exchanged no later than May 1 of each calendar year, unless otherwise agreed upon in writing by the parties. The information required to be exchanged shall include all of the following:

767.54(1)(a) (a) A complete copy of the party’s federal and state income tax return for the prior calendar year, including all W-2 forms and 1099 forms.

767.54(1)(b) (b) A year-end paycheck stub from all sources of employment for the prior calendar year.

767.54(1)(c) (c) The party’s most recent paycheck stub from all sources of employment showing year-to-date gross and net income.

767.54(1)(d) (d) Any other documentation of the party’s income from all sources for the 12-month period preceding the exchange of information.

767.54(2) (2) A party may redact or remove the following personally identifying information from documents provided under sub. (1) unless otherwise ordered by the court:

767.54(2)(a) (a) The party’s home or work address, if the party is participating in the program under s. 165.68, or if the party’s address is otherwise protected or sealed.

767.54(2)(b) (b) The name, date of birth, and address of the party’s spouse.

767.54(2)(c) (c) The name, date of birth, and other personally identifying information of a minor child not related to the other party.

767.54(2)(d) (d) Any social security number.

767.54(2)(e) (e) An identification number assigned by an employer.

767.54(2)(f) (f) A taxpayer identification number assigned by the department of revenue or federal internal revenue service.

767.54(2)(g) (g) Any depository account number, investment account number, or other personally identifying number related to any investment tool.

767.54(2)(h) (h) A military identification number.

767.54(2)(i) (i) Any other personally identifying information that is intended to be used to access services, funds, or benefits of any kind to which an individual is entitled.

767.54(2)(j) (j) Any other personally identifying information that is not required to determine the income or financial status of the party.

767.54(3) (3) Information disclosed under this section is subject to s. 767.127 (3). A party who fails to furnish information required by the court under this section may be proceeded against for contempt of court under ch. 785. If the court finds that a party has failed to furnish information required under this section, the court may award to the party bringing the action costs and, notwithstanding s. 814.04 (1), reasonable attorney fees.

767.54 History History: 2005 a. 443 s. 122; 2021 a. 35, 259.

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

767.55 767.55 Child support: employment-related orders.

767.55(1) (1) Generally. In an action for modification of a child support order under s. 767.59 or an action in which an order for child support is required under s. 767.511 (1), 767.804 (3), 767.805 (4), or 767.89 (3), the court may order either or both parents of the child to seek employment or participate in an employment or training program.

767.55(2) (2) Noncustodial parent.

767.55(2)(a) (a) In this subsection, “custodial parent” means a parent who lives with his or her child for substantial periods of time.

767.55(2)(am) (am) In an action for modification of a child support order under s. 767.59, an action in which an order for child support is required under s. 767.511 (1), 767.804 (3), 767.805 (4), or 767.89 (3), or a contempt of court proceeding to enforce a child support or family support order in a county that contracts under s. 49.36 (2), the court may order a parent who is not a custodial parent to register for a work experience and job training program under s. 49.36 if all of the following conditions are met:

767.55(2)(am)1. 1. The parent is able to work full time.

767.55(2)(am)1m. 1m. The parent resides in a county, or resides within a reasonable driving distance, as determined by the court, from a county, that has a work experience and job training program under s. 49.36 and that agrees to enroll the parent in the program.

767.55(2)(am)2. 2. The parent works, on average, less than 32 hours per week, and is not participating in an employment or training program which meets guidelines established by the department.

767.55(2)(am)3. 3. The parent’s actual weekly gross income averages less than 40 times the federal minimum hourly wage under 29 USC 206 (a) (1) or the parent is earning less than the parent has the ability to earn, as determined by the court.

767.55(2)(b) (b) Under this subsection, the parent is presumed to be able to work full time. The parent has the burden of proving that he or she is not able to work full time.