Chapter 767

767.56 Annotation Equal income division is a reasonable starting point in determining maintenance, but the goal is the standard of living enjoyed during the marriage, not 50 percent of the total predivorce earnings. Maintenance may surpass 50 percent of the couple’s predivorce income, but the payee is not entitled to live a richer lifestyle than that enjoyed during the marriage. Johnson v. Johnson, 225 Wis. 2d 513, 593 N.W.2d 827 (Ct. App. 1999), 98-2141.

767.56 Annotation Maintenance is not intended to provide a permanent annuity. Generally, limited-term maintenance provides funds for training intended to enable the recipient to be self-supporting by the end of the maintenance period and may also be used to limit the responsibility of the payer to a certain time and to avoid future litigation. Absent a substantial change of circumstances, the parties may rightfully expect no change. The law of change of circumstances should not require a paying spouse to finance unwise financial decisions of the recipient. Murray v. Murray, 231 Wis. 2d 71, 604 N.W.2d 912 (Ct. App. 1999), 99-1369.

767.56 Annotation Under sub. (9), the contribution by one party to the other’s education is not limited to contributions that arose only during the marital period. The court may freely consider the total contributions. Meyer v. Meyer, 2000 WI 132, 239 Wis. 2d 731, 620 N.W.2d 382, 99-0178.

767.56 Annotation It was not error for the trial court to consider under sub. (10) evidence of the parties having lived “separate lives” for much of their marriage. By not equalizing their incomes, the court in effect implemented what the parties had already agreed to in practice. Schmitt v. Schmitt, 2001 WI App 78, 242 Wis. 2d 565, 626 N.W.2d 14, 00-0695.

767.56 Annotation When a pension is divided by a qualified domestic relations order, and no value is assigned to either spouse’s interest to be offset by other property awarded in the property division, a court is not prohibited by double-counting rules from considering pension distributions when determining maintenance. Wettstaedt v. Wettstaedt, 2001 WI App 94, 242 Wis. 2d 709, 625 N.W.2d 900, 00-3061.

767.56 Annotation A court’s authority to order maintenance includes authority to impose obligations on the payee to ensure compliance with the payment order if those obligations are reasonably necessary to effect compliance with the payment order. Finley v. Finley, 2002 WI App 144, 256 Wis. 2d 508, 648 N.W.2d 536, 01-1705.

767.56 Annotation Sections 767.25 (6) and 767.261 [now ss. 767.511 (6) and 767.531] regarding a fixed amount of interest on child support do not limit the trial court’s authority to consider imposing interest on unpaid maintenance. A trial court has discretionary authority under s. 767.01 (1) to impose interest on maintenance arrearages. If the court decides to impose interest, it is under the trial court’s discretion to determine the amount to impose. Cashin v. Cashin, 2004 WI App 92, 273 Wis. 2d 754, 681 N.W.2d 255, 03-1010.

767.56 Annotation The general rule is that maintenance decisions are based on the parties’ financial circumstances at the time the determination is made. A financial benefit flowing from one spouse’s cohabitation with a third party at the time of divorce is an appropriate consideration in setting maintenance. Woodard v. Woodard, 2005 WI App 65, 281 Wis. 2d 217, 696 N.W.2d 221, 03-3356.

767.56 Annotation A factual finding that one spouse’s cohabitation relationship with a third party was likely to end in the near future, supported by evidence in the record, might be an appropriate basis for disregarding the financial benefit from the relationship if the expected duration was so short that the benefit to the cohabiting spouse would be insignificant. A court’s speculation that because a relationship was new and non-marital and could terminate at any time and that the boyfriend had no legal obligation of support was insufficient to support a finding that the relationship was likely to end in the near future. Woodard v. Woodard, 2005 WI App 65, 281 Wis. 2d 217, 696 N.W.2d 221, 03-3356.

767.56 Annotation The absence of a formal finding of a substantial change in circumstances is sufficient to establish an erroneous exercise of discretion. Hacker v. Hacker, 2005 WI App 211, 287 Wis. 2d 180, 704 N.W.2d 371, 05-0223.

767.56 Annotation Alcoholism is not equated with the kind of career choice on which the opinion in Forester, 174 Wis. 2d 78 (1993), turns, but is a disease that can limit or destroy an individual’s earning capacity. An alcoholic spouse’s refusal to obtain recommended treatment may be a relevant factor in a maintenance decision, but unsuccessful treatment is not the same as refusing treatment. Even if the court determines that a history of failed treatment is a relevant factor, the court’s award must still reflect a proper concern for both objectives of maintenance—fairness and maintenance. Hacker v. Hacker, 2005 WI App 211, 287 Wis. 2d 180, 704 N.W.2d 371, 05-0223.

767.56 Annotation The court did not err in awarding maintenance out of the proceeds of a covenant not to compete that arose from the sale of shares determined to be a gift, and not subject to property division under s. 767.61 (2). The payments were in exchange for a service to be performed; refraining from doing business in a way that would be harmful to the purchasers. Grumbeck v. Grumbeck, 2006 WI App 215, 296 Wis. 2d 611, 723 N.W. 2d 778, 05-2512.

767.56 Annotation In setting maintenance, the trial court should have included in the calculation income from the investments in which a spouse has a substantial ownership interest. That the entities are not producing income at the time of the divorce does not mean they should not be considered. Wright v. Wright, 2008 WI App 21, 307 Wis. 2d 156, 747 N.W.2d 690, 06-2111.

767.56 Annotation Parties with marital property agreements are not exempt from maintenance awards. Unless the agreement contains a waiver of maintenance rights as described in sub. (8), a court may conclude that a maintenance award is appropriate. Steinmann v. Steinmann, 2008 WI 43, 309 Wis. 2d 29, 749 N.W.2d 145, 05-1588.

767.56 Annotation Sub. (6) contemplates maintenance being awarded to help a former spouse maintain an opulent standard of living reasonably comparable to that enjoyed during the marriage. There is nothing requiring that such spouses first have contributed to the household or child rearing to a certain degree. Nor does the statute condition a court’s order maintaining that standard of living upon it being the result of both incomes when one party received personal benefits from the use of corporate property. Steinmann v. Steinmann, 2008 WI 43, 309 Wis. 2d 29, 749 N.W.2d 145, 05-1588.

767.56 Annotation “Fairness” has a special meaning under the law of maintenance. A reasonable maintenance award is not measured by the average annual earnings over the duration of a long marriage but by the lifestyle that the parties enjoyed in the years immediately before the divorce and could anticipate enjoying if they were to stay married. When a recipient spouse can reasonably reach that lifestyle level by the recipient’s own efforts following the expiration of limited-term maintenance, putting a time cap on the payment of maintenance may be appropriate. The payment of maintenance is not to be viewed as a permanent annuity. Heppner v. Heppner, 2009 WI App 90, 319 Wis. 2d 237, 768 N.W.2d 261, 08-2020.

767.56 Annotation Despite the trial court’s recognition of the stay-at-home wife’s expectations of what her lifestyle would have been after her husband retired, the trial court obliterated those expectations because it seemed to assume that it should cut off maintenance once the husband retired, as retirement would cut off his sources of income. By ending maintenance, the trial court ignored the applicable principles of fairness and erroneously exercised its discretion. If the former wife was to be able to enjoy the life she would have enjoyed if the parties had not divorced, she was entitled to maintenance even though her former husband retired. Heppner v. Heppner, 2009 WI App 90, 319 Wis. 2d 237, 768 N.W.2d 261, 08-2020.

767.56 Annotation Income received from the exercise of stock options that would be exercised after the divorce should be included in the income pool taken into consideration for the payment of maintenance. Heppner v. Heppner, 2009 WI App 90, 319 Wis. 2d 237, 768 N.W.2d 261, 08-2020.

767.56 Annotation A maintenance award in a marriage of medium duration that exceeds the length of the marriage is within the trial court’s discretion. When deciding whether to limit maintenance, and for how long, the trial court must consider: 1) the ability of the recipient to become self-supporting by the end of the term at a standard of living reasonably comparable to that enjoyed before divorce; 2) the ability of the payor to continue support for an indefinite time; and 3) the need for the court to continue its jurisdiction concerning maintenance. Ladwig v. Ladwig, 2010 WI App 78, 325 Wis. 2d 497, 785 N.W.2d 664, 09-1202.

767.56 Annotation When valuing a business interest that is part of the marital estate for purposes of property division, a circuit court shall include the entire value of the salable professional goodwill attendant to the business interest. The circuit court did not double count the value of professional goodwill when it included the goodwill in the divisible marital estate and then based a maintenance award on the professional spouse’s expected future earnings. As with income from an income earning asset, income from a professional practice is separate from the value of the practice as it exists at the time of the property division and is properly considered in determining maintenance. McReath v. McReath, 2011 WI 66, 335 Wis. 2d 643, 800 N.W.2d 399, 09-0639.

767.56 Annotation Sub. (2) requires a court to consider the physical health of the parties and does not suggest that health problems that have been the subject of settlement proceeds may be ignored. There is no qualifier in this section relieving parties of the requirement to support each other if one of the parties receives a monetary award for injuries received in an accident. Lemke v. Lemke, 2012 WI App 96, 343 Wis. 2d 748, 820 N.W.2d 470, 11-1974.

767.56 Annotation The trial court’s conclusion that a payee spouse had shirked employment, requiring the termination of the payee’s family support, ignored the requirement in sub. (5) that the court consider the parties’ “earning capacity.” Once the court accepted an opinion regarding the payee’s earning capacity, the court was required to compare the payee’s earning capacity with the payor’s, given the payor’s actual earnings and the payee’s imputed earnings, to determine whether they were able to enjoy the lifestyle they enjoyed during their marriage. Lemke v. Lemke, 2012 WI App 96, 343 Wis. 2d 748, 820 N.W.2d 470, 11-1974.

767.56 Annotation Inasmuch as both parties were about 79 years old at the time of the hearing; had been divorced for 21 years; were both living solely on their investment income and social security benefits; and the payor had been paying maintenance for ten years after retiring; the trial court properly exercised its discretion when it reduced maintenance to $0, finding that the payee had ample funds to support herself. Brin v. Brin, 2014 WI App 68, 354 Wis. 2d 510, 849 N.W.2d 900, 13-1739.

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

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

767.57 767.57 Maintenance, child support, and family support payments; fees.

767.57(1) (1) Payment to department.

767.57(1)(a) (a) All orders or judgments providing for temporary or permanent maintenance, child support, or family support payments shall direct that the payments be made to the department or its designee for the use of the person for whom the payments have been awarded. A party obtaining an order for temporary maintenance, child support, or family support payments shall promptly file the order, together with all pleadings in the action, with the clerk of court.

767.57(1)(b) (b) Upon request, after the filing of an order or judgment or the receipt of an interim disbursement order, the clerk of court shall advise the county child support agency under s. 59.53 (5) of the terms of the order or judgment within 2 business days after the filing or receipt. The county child support agency shall, within the time required by federal law, enter the terms of the order or judgment into the statewide support data system, as required by s. 59.53 (5) (b).

767.57(1)(c) (c) Except as provided in sub. (1m), the department or its designee shall disburse, and take receipts for, the money received under the judgment or order in the manner required by federal regulations, unless the department or its designee is unable to disburse the moneys because the moneys were paid by check or other draft drawn upon an account containing insufficient funds. All moneys received or disbursed under this section shall be entered in a record kept by the department or its designee. The record shall be open to inspection by the parties to the action, their attorneys, and the circuit court commissioner.

767.57(1)(d) (d) The department or its designee shall offer to every individual to whom child support or family support payments are disbursed under this section the option to receive a paper statement of account that will be sent to the individual whenever money is received on behalf of or disbursed to the individual under this section. The department or its designee may not charge an individual a fee for providing the statements of account.

767.57(1e) (1e) Receiving and disbursing fees.

767.57(1e)(a) (a) For receiving and disbursing maintenance, child support, or family support payments, including payments in arrears, and for maintaining the records required under sub. (1) (c), the department or its designee shall collect an annual fee of $65 from a party ordered to make payments. The court shall order each party ordered to make payments to pay the fee in each year for which payments are ordered or in which an arrearage in any of those payments is owed. In directing the manner of payment, the court shall order that the fee be withheld from income and sent to the department or its designee, as provided under s. 767.75. Fees under this paragraph shall be deposited in the appropriation account under s. 20.437 (2) (ja). At the time of ordering payment of the fee, the court shall notify each party ordered to make payments of the requirement to pay, and the amount of, the fee. If the fee under this paragraph is not paid when due, the department or its designee may not deduct the fee from any maintenance, child or family support, or arrearage payment, but may move the court for a remedial sanction under ch. 785.

767.57(1e)(b) (b)

767.57(1e)(b)1m. 1m. The department or its designee may collect any unpaid fees under s. 814.61 (12) (b), 1997 stats., that are shown on the department’s automated payment and collection system on December 31, 1998, and shall deposit all fees collected under this subdivision in the appropriation account under s. 20.437 (2) (ja). The department or its designee may collect unpaid fees under this subdivision through income withholding under s. 767.75 (2m). If the department or its designee determines that income withholding is inapplicable, ineffective, or insufficient for the collection of any unpaid fees under this subdivision, the department or its designee may move the court for a remedial sanction under ch. 785. The department or its designee may contract with or employ a collection agency or other person for the collection of any unpaid fees under this subdivision and, notwithstanding s. 20.930, may contract with or employ an attorney to appear in any action in state or federal court to enforce the payment obligation. The department or its designee may not deduct the amount of unpaid fees from any maintenance, child or family support, or arrearage payment.

767.57(1e)(b)2m. 2m. A clerk of court may collect any unpaid fees under s. 814.61 (12) (b), 1997 stats., that are owed to the clerk of court, or to his or her predecessor, and that were not shown on the department’s automated payment and collection system on December 31, 1998, through income withholding under s. 767.75 (2m). If the clerk of court determines that income withholding is inapplicable, ineffective, or insufficient for the collection of any unpaid fees under this subdivision, the clerk of court may move the court for a remedial sanction under ch. 785.

767.57(1e)(c) (c) The department or its designee shall collect an annual fee of $35 from every individual receiving child support or family support payments. In applicable cases, the fee shall comply with all requirements under 42 USC 654 (6) (B). The department or its designee may deduct the fee from maintenance, child or family support, or arrearage payments. Fees collected under this paragraph shall be deposited in the appropriation account under s. 20.437 (2) (ja).

767.57(1h) (1h) Nonpayment; enforcement. If maintenance, child support, or family support payments are not paid to the department or its designee at the time provided in the judgment or order, the county child support agency under s. 59.53 (5) or a circuit court commissioner of the county shall take proceedings to secure the payment of the sum, including enforcement by contempt proceedings under ch. 785 or by other means. Copies of any order issued to compel the payment shall be mailed to the attorney, if any, who represented each party when the maintenance, child support, or family support payments were awarded. If any fees of officers in any of the proceedings, including the compensation of the circuit court commissioner at the rate of $50 per day unless the commissioner is on a salaried basis, is not collected from the person proceeded against, the fees shall be paid out of the county treasury upon the order of the presiding judge and the certificate of the department.

767.57(1m) (1m) Overpayment. If the department or its designee receives support or maintenance money that exceeds the amount due in the month in which it is received and the department or its designee determines that the excess amount is for support or maintenance due in a succeeding month, the department or its designee may hold the amount of overpayment that does not exceed the amount due in the next month for disbursement in the next month if any of the following applies:

767.57(1m)(a) (a) The payee or the payer requests that the overpayment be held until the month when it is due.

767.57(1m)(b) (b) The court has ordered that overpayments of child support, family support, or maintenance that do not exceed the amount of support or maintenance due in the next month may be held for disbursement in the next month.

767.57(1m)(c) (c) The party entitled to the support or maintenance money or a minor child of the party has applied for or is receiving aid under s. 48.645 or public assistance under ch. 49 and there is an assignment to the state under s. 48.645 (3) or 49.19 (4) (h) 1. b. of the party’s right to the support or maintenance money.

767.57(1m)(cm) (cm) A kinship care provider or a long-term kinship care provider of the child who is entitled to the support money has applied for or is receiving kinship care payments or long-term kinship care payments for that child and there is an assignment to the state under s. 48.57 (3m) (b) 2. or (3n) (b) 2. of the child’s right to the support money.

767.57(1m)(d) (d) The department or its designee determines that the overpayment should be held until the month when it is due.

767.57(2) (2) Procedure if recipient on public assistance. If a party entitled to maintenance or support, or both, is receiving public assistance under ch. 49, the party may assign the party’s right to support or maintenance to the county department under s. 46.215, 46.22, or 46.23 granting the assistance. The assignment shall be approved by order of the court granting the maintenance or support. The assignment may not be terminated if there is a delinquency in the amount to be paid to the assignee of maintenance and support previously ordered without the written consent of the assignee or upon notice to the assignee and a hearing. When an assignment of maintenance or support, or both, has been approved by the order, the assignee shall be deemed a real party in interest within s. 803.01 solely for the purpose of securing payment of unpaid maintenance or support ordered to be paid, by participating in proceedings to secure the payment of unpaid amounts. Notwithstanding assignment under this subsection, and without further order of the court, the department or its designee, upon receiving notice that a party or a minor child of the parties is receiving aid under s. 48.645 or public assistance under ch. 49 or that a kinship care provider or long-term kinship care provider of the minor child is receiving kinship care payments or long-term kinship care payments for the minor child, shall forward all support assigned under s. 48.57 (3m) (b) 2. or (3n) (b) 2., 48.645 (3), 49.19 (4) (h) 1., or 49.45 (19) to the assignee under s. 48.57 (3m) (b) 2. or (3n) (b) 2., 48.645 (3), 49.19 (4) (h) 1., or 49.45 (19).

767.57(3) (3) Procedure if recipient institutionalized or confined.

767.57(3)(a) (a) If maintenance or support, or both, are ordered to be paid for the benefit of any individual who is committed by court order to an institution, who is in confinement, or whose legal custody is vested by court order under ch. 48 or 938 in an agency, department, relative, or other entity, the court may order that the maintenance or support be paid to the relative, agency, institution, welfare department, or other entity having legal or actual custody of the individual, and that it be used for the person’s care and maintenance, without the appointment of a guardian in this state.

767.57(3)(b) (b) If a child who is the beneficiary of support under a judgment or order is placed by court order in a residential care center for children and youth, juvenile correctional institution, or state mental institution, the right of the child to support during the period of the child’s confinement, including any right to unpaid support accruing during that period, is assigned to the state. If the judgment or order providing for the support of a child who is placed in a residential care center for children and youth, juvenile correctional institution, or state mental institution includes support for one or more other children, the support that is assigned to the state shall be the proportionate share of the child placed in the center or institution, except as otherwise ordered by the court or circuit court commissioner on the motion of a party.

767.57(4) (4) Procedure for certain child recipients. If an order or judgment providing for the support of one or more children not receiving aid under s. 48.57 (3m) or (3n), 48.645, or 49.19 includes support for a minor who is the beneficiary of aid under s. 48.57 (3m) or (3n), 48.645, or 49.19, any support payment made under the order or judgment is assigned to the state under s. 48.57 (3m) (b) 2. or (3n) (b) 2., 48.645 (3), or 49.19 (4) (h) 1. b. in the amount that is the proportionate share of the minor receiving aid under s. 48.57 (3m) or (3n), 48.645, or 49.19, except as otherwise ordered by the court on the motion of a party.

767.57(5) (5) Trustee or receiver may be appointed. The court may appoint a receiver or trustee, as necessary, to receive any payments ordered under this chapter, to invest and pay over the income for the maintenance of the spouse or the support and education of any of the children described in s. 767.511 (4), or to pay over the principal sum in the amount and at the times that the court directs. The court may require the receiver or trustee to post bond, with or without sureties, in the amount that the court directs.

767.57 History History: 1971 c. 41 s. 12; Sup. Ct. Order, 67 Wis. 2d 585, 775 (1975); 1975 c. 82, 200; 1975 c. 401 s. 4; 1977 c. 105 s. 59; 1977 c. 271, 418, 447; 1979 c. 32 ss. 50, 92 (4); 1979 c. 257 s. 17; Stats. 1979 s. 767.29; 1981 c. 20 s. 2202 (20) (m); 1983 a. 27, 302; 1985 a. 29, 176; 1991 a. 39; 1993 a. 481; 1995 a. 27 ss. 7104tm, 9126 (19), 9130 (4); 1995 a. 77, 279, 289, 404; 1997 a. 27, 35, 105, 191, 252; 1999 a. 9; 2001 a. 16, 59, 61, 105; 2005 a. 25, 387; 2005 a. 443 ss. 127 to 132, 144, 225; Stats. 2005 s. 767.57; 2007 a. 20, 96; 2009 a. 28, 180; 2013 a. 20; 2019 a. 9; 2023 a. 119.

767.57 Annotation An agency assigned benefits under sub. (2) was entitled to collect unpaid alimony and support money that had accumulated prior to the effective date of the assignment and prior to the assignor’s receipt of public assistance. Schiavo v. Schiavo, 71 Wis. 2d 136, 237 N.W.2d 702 (1976).

767.57 Annotation The defense of laches is not available in an action or proceeding brought to secure enforcement of a child support order in a divorce action. Paterson v. Paterson, 73 Wis. 2d 150, 242 N.W.2d 907 (1976).

767.58 767.58 Notice of change of employer, address, and ability to pay; other information.

767.58(1) (1) Support or maintenance order; notice requirements.

767.58(1)(a) (a) Each order for child support, family support, or maintenance payments shall include an order that the payer and payee notify the county child support agency under s. 59.53 (5) of any change of address within 10 business days of the change.

767.58(1)(b) (b) Each order for child support, family support, or maintenance payments shall also include an order that the payer notify the county child support agency under s. 59.53 (5) and the payee, within 10 business days, of any change of employer and of any substantial change in the amount of his or her income, including receipt of bonus compensation, affecting his or her ability to pay child support, family support, or maintenance. The order shall also include a statement that notification of any substantial change in the amount of the payer’s income will not result in a change of the order unless a revision of the order under s. 767.59 or an annual adjustment of the child or family support amount under s. 767.553 is sought.

767.58(1)(c) (c) Each order for family support or maintenance payments shall include an order requiring the payee to notify the court and the payer within 10 business days of the payee’s remarriage.

767.58(1)(d) (d) An order under this subsection is enforceable under ch. 785.

767.58(2) (2) Information for child support agency. When an order is entered under sub. (1), each party shall provide to the county child support agency under s. 59.53 (5) his or her social security number, residential and mailing addresses, telephone number, operator’s license number and the name, address and telephone number of his or her employer. A party shall advise the county child support agency under s. 59.53 (5) of any change in the information provided under this subsection within 10 business days after the change.

767.58 History History: 1977 c. 105; 1979 c. 32 s. 50; Stats. 1979 s. 767.263; 1989 a. 212; 1995 a. 279; 1997 a. 27, 191; 2001 a. 16; 2005 a. 443 ss. 113, 226; Stats. 2005 s. 767.58; 2013 a. 209.

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

767.59 767.59 Revision of support and maintenance orders.

767.59(1) (1) Definition. In this section, “support or maintenance order” means a judgment or order providing for child support under this chapter or s. 48.355 (2) (b) 4. or (4g) (a), 48.357 (5m) (a), 48.363 (2), 938.183 (4), 938.355 (2) (b) 4. or (4g) (a), 938.357 (5m) (a), 938.363 (2), or 948.22 (7), for maintenance payments under s. 767.56, for family support payments under s. 767.531, 2019 stats., or for the appointment of trustees or receivers under s. 767.57 (5).

767.59(1c) (1c) Court authority.

767.59(1c)(a) (a) On the petition, motion, or order to show cause of either of the parties, the department, a county department under s. 46.215, 46.22, or 46.23, or a county child support agency under s. 59.53 (5) if an assignment has been made under s. 48.57 (3m) (b) 2. or (3n) (b) 2., 48.645 (3), 49.19 (4) (h), or 49.45 (19) or if either party or their minor children receive aid under s. 48.57 (3m) or (3n) or 48.645 or ch. 49, a court may, except as provided in par. (b), do any of the following:

767.59(1c)(a)1. 1. Revise and alter a support or maintenance order as to the amount and payment of maintenance or child support and the appropriation and payment of the principal and income of property held in trust.

767.59(1c)(a)2. 2. Make any judgment or order on any matter that the court might have made in the original action.

767.59(1c)(b) (b) A court may not revise or modify a judgment or order that waives maintenance payments for either party or a judgment or order with respect to final division of property.

767.59(1f) (1f) Support: substantial change in circumstances.

767.59(1f)(a) (a) Except as provided in par. (d), a revision under this section of a judgment or order as to the amount of child or family support may be made only upon a finding of a substantial change in circumstances.

767.59(1f)(b) (b) In an action under this section to revise a judgment or order with respect to the amount of child support, any of the following constitutes a rebuttable presumption of a substantial change in circumstances sufficient to justify a revision of the judgment or order:

767.59(1f)(b)1. 1. Commencement of receipt of aid to families with dependent children under s. 49.19 or participation in Wisconsin works under ss. 49.141 to 49.161 by either parent since the entry of the last child support order, including a revision of a child support order under this section.

767.59(1f)(b)2. 2. Unless the amount of child support is expressed in the judgment or order as a percentage of parental income, the expiration of 33 months after the date of the entry of the last child support order, including a revision of a child support order under this section.

767.59(1f)(b)3. 3. Failure of the payer to furnish a timely disclosure under s. 767.54.

767.59(1f)(b)4. 4. A difference between the amount of child support ordered by the court to be paid by the payer and the amount that the payer would have been required to pay based on the percentage standard established by the department under s. 49.22 (9) if the court did not use the percentage standard in determining the child support payments and did not provide the information required under s. 46.10 (14) (d), 49.345 (14) (d), 301.12 (14) (d), or 767.511 (1n), whichever is appropriate.

767.59(1f)(c) (c) In an action under this section to revise a judgment or order with respect to an amount of child support, any of the following may constitute a substantial change of circumstances sufficient to justify revision of the judgment or order:

767.59(1f)(c)1. 1. Unless the amount of child support is expressed in the judgment or order as a percentage of parental income, a change in the payer’s income, evidenced by information received under s. 49.22 (2m) by the department or the county child support agency under s. 59.53 (5) or by other information, from the payer’s income determined by the court in its most recent judgment or order for child support, including a revision of a child support order under this section.

767.59(1f)(c)2. 2. A change in the needs of the child.

767.59(1f)(c)3. 3. A change in the payer’s earning capacity.

767.59(1f)(c)4. 4. Any other factor that the court determines is relevant.

767.59(1f)(d) (d) In an action under this section to revise a judgment or order with respect to child or family support, the court is not required to make a finding of a substantial change in circumstances to change to a fixed sum the manner in which the amount of child or family support is expressed in the judgment or order.

767.59(1k) (1k) Maintenance: change in cost of living. In an action under this section to revise maintenance payments, a substantial change in the cost of living for either party or as measured by the federal bureau of labor statistics may be sufficient to support a revision of the amount of maintenance, except that a change in an obligor’s cost of living is not by itself sufficient if payments are expressed as a percentage of income.

767.59(1m) (1m) Payment revisions prospective. In an action under sub. (1c) to revise a judgment or order with respect to child support, maintenance payments, or family support payments, the court may not revise the amount of child support, maintenance payments, or family support payments due, or an amount of arrearages in child support, maintenance payments, or family support payments that has accrued, prior to the date that notice of the action is given to the respondent, except to correct previous errors in calculations.

767.59(1r) (1r) Credit to payer for certain payments. In an action under sub. (1c) to revise a judgment or order with respect to child support or family support, the court may grant credit to the payer against support due prior to the date on which the petition, motion, or order to show cause is served for payments made by the payer other than payments made as provided in s. 767.57 or 767.75, in any of the following circumstances:

767.59(1r)(b) (b) The payer shows by documentary evidence that the payments were made directly to the payee by check or money order, and shows by a preponderance of the evidence that the payments were intended for support and not intended as a gift to or on behalf of the child, or as some other voluntary expenditure, or for the payment of some other obligation to the payee.

767.59(1r)(c) (c) The payer proves by clear and convincing evidence, with evidence of a written agreement, that the payee expressly agreed to accept the payments in lieu of child or family support paid as provided in s. 767.57 or 767.75, not including gifts or contributions for entertainment.

767.59(1r)(d) (d) The payer proves by documentary evidence that, for a period during which unpaid support accrued, the child received benefits under 42 USC 402 (d) based on the payer’s entitlement to federal disability insurance benefits under 42 USC 401 to 433. Any credit granted under this paragraph shall be limited to the amount of unpaid support that accrued during the period for which the benefits under 42 USC 402 (d) were paid.

767.59(1r)(e) (e) The payer proves by a preponderance of the evidence that the child lived with the payer, with the agreement of the payee, for more than 60 days beyond a court-ordered period of physical placement. Credit may not be granted under this paragraph if, with respect to the time that the child lived with the payer beyond the court-ordered period of physical placement, the payee sought to enforce the physical placement order through civil or criminal process or if the payee shows that the child’s relocation to the payer’s home was not mutually agreed to by both parents.