Chapter 767

767.75(1m) (1m) Obligation continuing. If a party’s current obligation to pay maintenance, child support, spousal support, or family support terminates but the party has an arrearage in the payment of one or more of those payments or in the payment of the annual receiving and disbursing fee, any assignment under sub. (1f) continues in effect, in an amount up to the amount of the assignment before the party’s current obligation terminated, until the arrearage is paid in full.

767.75(2h) (2h) Delayed withholding; failure to pay. If a court-ordered assignment, including the assignment specified under sub. (1f) for the payment of any arrearages due, does not require immediately effective withholding and a payer fails to make a required maintenance, child support, spousal support, family support, or annual receiving and disbursing fee payment within 10 days after its due date, within 20 days after the payment’s due date the court or county child support agency under s. 59.53 (5) shall cause the assignment to go into effect by providing notice of the assignment in the manner provided under sub. (2r) and shall send a notice by regular mail to the last-known address of the payer. The notice sent to the payer shall inform the payer that an assignment is in effect and that the payer may, within a 10-day period after the notice is mailed, by motion request a hearing on the issue of whether the assignment should remain in effect. The court shall hold a hearing requested under this subsection within 10 working days after the date of receipt of the request. If at the hearing the payer establishes that the assignment is not proper because of a mistake of fact, the court may direct that the assignment be withdrawn. Either party may, within 15 working days after the date of a decision by a circuit court commissioner under this subsection, seek review of the decision by the court with jurisdiction over the action.

767.75(2m) (2m) Unpaid receiving and disbursing fees; assignment.

767.75(2m)(a) (a)

767.75(2m)(a)1. 1. An obligation to pay unpaid fees under s. 767.57 (1e) (b) 1m. constitutes an assignment of all commissions, earnings, salaries, wages, pension benefits, income continuation insurance benefits under s. 40.62, duty disability benefits under s. 40.65, benefits under ch. 102 or 108, lottery prizes that are payable in installments, and other money due or to be due in the future to the department or its designee.

767.75(2m)(a)2. 2. An obligation to pay unpaid fees under s. 767.57 (1e) (b) 2m. constitutes an assignment of all commissions, earnings, salaries, wages, pension benefits, income continuation insurance benefits under s. 40.62, duty disability benefits under s. 40.65, benefits under ch. 102 or 108, lottery prizes that are payable in installments, and other money due or to be due in the future to the clerk of court to whom the fees are owed, or to his or her successor.

767.75(2m)(b) (b) The county child support agency under s. 59.53 (5) may cause an assignment under par. (a) to go into effect by providing notice of the assignment in the manner provided under sub. (2r) and sending a notice by regular mail to the last-known address of the payer. The notice sent to the payer shall inform the payer that an assignment is in effect and that the payer may, within a 10-day period after the notice is mailed, by motion request a hearing on the issue of whether the assignment should remain in effect. The court shall hold a hearing requested under this paragraph within 10 working days after the date of receipt of the request. If at the hearing the payer establishes that the assignment is not proper because of a mistake of fact, the court may direct that the assignment be withdrawn. The payer or the county child support agency may, within 15 working days after the date of a decision by a circuit court commissioner under this paragraph, seek review of the decision by the court with jurisdiction over the action.

767.75(2r) (2r) Notice of assignment to income source. Upon entry of each order for child support, maintenance, family support, support by a spouse, or the annual receiving and disbursing fee, and upon approval of each stipulation for child support, unless the court finds that income withholding is likely to cause the payer irreparable harm or unless s. 767.76 applies, the court or county child support agency under s. 59.53 (5) shall provide notice of the assignment by regular mail or by facsimile machine, as defined in s. 134.72 (1) (a), or other electronic means to the last-known address of the person from whom the payer receives or will receive money. The notice shall provide that the amount withheld may not exceed the maximum amount that is subject to garnishment under 15 USC 1673 (b) (2). If the department or its designee does not receive the money from the person notified, the court or county child support agency under s. 59.53 (5) shall provide notice of the assignment to any other person from whom the payer receives or will receive money. Notice under this subsection may be a notice of the court, a copy of the executed assignment, or a copy of that part of the court order directing payment.

767.75(3h) (3h) Duties of person receiving assignment notice. A person who receives notice of assignment under this section or s. 767.225 (1) (L) or 767.513 (3) or similar laws of another state shall withhold the amount specified in the notice from any money that person pays to the payer later than one week after receipt of notice of assignment. Within 5 days after the day the person pays money to the payer, the person shall send the amount withheld to the department or its designee or, in the case of an amount ordered withheld for health care expenses, to the appropriate health care insurer, provider, or plan. With each payment sent to the department or its designee, the person from whom the payer receives money shall report to the department or its designee the payer’s gross income or other gross amount from which the payment was withheld. Except as provided in sub. (3m), for each payment sent to the department or its designee, the person from whom the payer receives money shall receive an amount equal to the person’s necessary disbursements, not to exceed $3, which shall be deducted from the money to be paid to the payer. Section 241.09 does not apply to assignments under this section.

767.75(3m) (3m) Assignment of unemployment compensation benefits. Benefits under ch. 108 may be assigned and withheld only in the manner provided in s. 108.13 (4). Any order to withhold benefits under ch. 108 shall be for a fixed sum regardless of whether the court-ordered obligation on which the withholding order is based is expressed in the court order as a percentage of the payer’s income. When money is to be withheld from these benefits, no fee may be deducted from the amount withheld and no fine may be levied for failure to withhold the money.

767.75(4) (4) Assignment priority. A withholding assignment or order under this section or s. 767.225 (1) (L) or 767.513 (3) has priority over any other assignment, garnishment, or similar legal process under state law.

767.75(6) (6) Failure to comply with assignment obligations.

767.75(6)(a) (a) Except as provided in sub. (3m), if after receipt of notice of assignment the person from whom the payer receives money fails to withhold the money or send the money to the department or its designee or the appropriate health care insurer, provider, or plan as provided in this section or s. 767.225 (1) (L) or 767.513 (3), the person may be proceeded against under the principal action under ch. 785 for contempt of court or may be proceeded against under ch. 778 and be required to forfeit not less than $50 nor more than an amount, if the amount exceeds $50, that is equal to 1 percent of the amount not withheld or sent.

767.75(6)(b) (b) If an employer who receives an assignment under this section or s. 767.225 (1) (L) or 767.513 (3) fails to notify the department or its designee within 10 days after an employee is terminated or otherwise temporarily or permanently leaves employment, the employer may be proceeded against under the principal action under ch. 785 for contempt of court.

767.75(6)(c) (c) No employer may use an assignment under this section or s. 767.225 (1) (L) or 767.513 (3) as a basis for the denial of employment to a person, the discharge of an employee, or any disciplinary action against an employee. An employer who denies employment or discharges or disciplines an employee in violation of this paragraph may be fined not more than $500 and may be required to make full restitution to the aggrieved person, including reinstatement and back pay. Except as provided in this paragraph, restitution shall be in accordance with s. 973.20. An aggrieved person may apply to the district attorney or to the department for enforcement of this paragraph.

767.75(6m) (6m) Conversion of certain support orders to fixed amount. A county child support agency under s. 59.53 (5) may convert a support amount in an order for income withholding under this section that is expressed as a percentage of income to the equivalent sum certain amount for purposes of enforcing a child support order in another state under subch. V or VI of ch. 769. Nothing in this subsection authorizes a change, or may be construed to change, the support obligation specified in the underlying child support order.

767.75(7) (7) Receipt of more than one notice of assignment. A person who receives more than one notice of assignment under sub. (3h) may send all money withheld to the department or its designee, whichever is appropriate, in a combined payment, accompanied by any information the department or its designee requires.

767.75(7m) (7m) Change in payroll period.

767.75(7m)(a) (a) In this subsection, “payroll period” has the meaning given in s. 71.63 (5).

767.75(7m)(b) (b) If after an assignment is in effect the payer’s employer changes its payroll period, or the payer changes employers and the new employer’s payroll period is different from the former employer’s payroll period, the county child support agency under s. 59.53 (5) may, unless otherwise ordered by a judge, amend the withholding assignment or order so that all of the following apply:

767.75(7m)(b)1. 1. The withholding frequency corresponds to the new payroll period.

767.75(7m)(b)2. 2. The amounts to be withheld reflect the adjustment to the withholding frequency.

767.75(7m)(c) (c) The county child support agency shall provide notice of the amended withholding assignment or order by regular mail to the payer’s employer and to the payer.

767.75 History History: 1971 c. 110; 1975 c. 94 s. 91 (3); 1975 c. 199; 1977 c. 105; 1979 c. 32 ss. 50, 92 (4); 1979 c. 196, 221; Stats. 1979 s. 767.265; 1981 c. 20, 186; 1983 a. 27, 384; 1985 a. 29; 1987 a. 38 s. 136; 1987 a. 332 s. 64; 1987 a. 398, 403; 1989 a. 31, 56, 212, 336; 1991 a. 287; 1993 a. 16, 326, 389, 481; 1995 a. 27 s. 9130 (4); 1995 a. 279, 404; 1997 a. 27, 191; 1999 a. 9; 2001 a. 16, 61, 105; 2005 a. 443 ss. 116 to 118, 237; Stats. 2005 s. 767.75; 2015 a. 55, 172; 2017 a. 365; 2019 a. 95; 2021 a. 35.

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

767.75 Annotation The maximum amount subject to assignment to collect an arrearage is 50 percent of the support currently due. A 25 percent wage assignment for current support limits an assignment for arrearages to an additional 12.5 percent of wages. Schnetzer v. Schnetzer, 174 Wis. 2d 458, 497 N.W.2d 772 (Ct. App. 1993).

767.75 Annotation The assignment under sub. (1) [now sub. (1f)] does not require earnings to be withheld and therefore is not a garnishment subject to federal restrictions. Carpenter v. Mumaw, 230 Wis. 2d 384, 602 N.W.2d 536 (Ct. App. 1999), 98-2874.

767.75 Annotation The mandatory wage assignment provisions of this section are constitutional. 68 Atty. Gen. 106.

767.76 767.76 Account transfers.

767.76(1) (1) Authority of court to require. If the court determines that income withholding under s. 767.75 is inapplicable, ineffective, or insufficient to ensure payment under an order or stipulation specified in s. 767.75 (1), or that income withholding under s. 767.513 (3) is inapplicable, ineffective, or insufficient to ensure payment of a child’s health care expenses, including payment of health insurance premiums, ordered under s. 767.513, the court may require the payer to identify or establish a deposit account, owned in whole or in part by the payer, that allows for periodic transfers of funds and to file with the financial institution at which the account is located an authorization for transfer from the account to the department or its designee. The authorization shall be provided on a standard form approved by the court and shall specify the frequency and the amount of transfer, sufficient to meet the payer’s obligation under the order or stipulation, as required by the court. The authorization shall include the payer’s consent for the financial institution or an officer, employee, or agent of the financial institution to disclose information to the court, county child support agency under s. 59.53 (5), department, or department’s designee regarding the account for which the payer has executed the authorization for transfer.

767.76(2) (2) Transfer of funds by financial institutions. A financial institution that receives an authorization for transfer under sub. (1) shall transfer the amounts as specified in the authorization or shall transfer the amount available for transfer if at a time of transfer that amount is less than the amount specified in the authorization. The financial institution may accomplish the transfer by any lawful means, including payment by check, subject to the terms of the account. The financial institution may deduct from the payer’s account for each transfer its usual fee for such fund transfers. If the account is closed or if no funds are available at a time of transfer, the financial institution shall notify the county child support agency under s. 59.53 (5) or the department or its designee, whichever is appropriate, within 10 days after the date on which the funds should have been transferred.

767.76(3) (3) Priority of transfer authorization. An authorization for transfer under sub. (1) has priority over any other authorization for transfer and over an assignment, garnishment or similar legal process under state law or the laws of another state.

767.76(4) (4) Revocation of transfer authorization. An authorization for transfer under sub. (1) may not be revoked except by court order.

767.76(5) (5) Authorized disclosure. A financial institution or an officer, employee, or agent of a financial institution may disclose information to the court, county child support agency under s. 59.53 (5), department, or department’s designee concerning an account for which a payer has executed an authorization for transfer under sub. (1).

767.76(6) (6) Liability immunity. No financial institution or officer, employee or agent of a financial institution is liable to an account owner for any sum transferred, or for any information disclosed, in compliance with this section.

767.76 History History: 1993 a. 481; 1995 a. 279; 1997 a. 27; 1999 a. 9; 2001 a. 38, 61, 105; 2005 a. 443 ss. 120, 238; Stats. 2005 s. 767.76.

767.77 767.77 Enforcement of payment obligations.

767.77(1) (1) Definition. In this section, “payment obligation” means an obligation to pay support under 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), or 938.363 (2), support or maintenance under s. 767.501, child support or maintenance under s. 767.225, child support under s. 767.511, maintenance under s. 767.56, family support under s. 767.225, 2019 stats., or s. 767.531, 2019 stats., attorney fees under s. 767.241, child support or a child’s health care expenses under s. 767.85, paternity obligations under s. 767.804 (3), 767.805 (4), 767.863 (3), or 767.89, support arrearages under s. 767.71, or child or spousal support under s. 948.22 (7).

767.77(1m) (1m) Terms of payment. The court may order that a payment obligation be paid in the amounts and at the times that it considers expedient.

767.77(2) (2) Security for payment. The court may impose liability for a payment obligation as a charge upon specific real estate of the obligated party or may require that party to give sufficient security for payment. No charge upon real estate is effective until the order or judgment imposing liability or a certified copy of it is recorded in the office of the register of deeds in the county in which the real estate is situated.

767.77(3) (3) Noncompliance; enforcement. If a party fails to pay a payment ordered under sub. (1m) or to give security under sub. (2), the court may by any appropriate remedy enforce the judgment, or the order as if it were a final judgment, including any past due payment and interest. Appropriate remedies include but are not limited to:

767.77(3)(a) (a) Execution of the order or judgment.

767.77(3)(b) (b) Contempt of court under ch. 785.

767.77(3)(c) (c) Money judgment for past due payments.

767.77(3)(d) (d) Satisfaction under s. 811.23 of any property attached under ch. 811.

767.77(3)(e) (e) Garnishment under ch. 812.

767.77(3)(f) (f) For failure to pay child support or family support, satisfaction under s. 780.10 out of the proceeds of the sale of any ship, boat or vessel attached and sold under ch. 780.

767.77(4) (4) Information on boat ownership. Upon the request of a county, the department of natural resources shall provide the county with a list of the names and addresses of all of the owners of boats that have a valid certificate of number or registration that has been issued by the department under s. 30.52. The department shall prepare the list annually before May 31 of each year.

767.77 History History: 1971 c. 220; 1975 c. 401 s. 4; 1977 c. 105; 1979 c. 32 ss. 50, 92 (4); 1979 c. 196, 221; 1979 c. 257 s. 17; 1979 c. 355; Stats. 1979 s. 767.30; 1983 a. 27; 1985 a. 29; 1987 a. 332 s. 64; 1993 a. 481; 1995 a. 77, 287; 1997 a. 27, 191; 1999 a. 103; 2005 a. 443 ss. 137, 239; Stats. 2005 s. 767.77; 2015 a. 373; 2019 a. 95; 2021 a. 35.

767.77 Annotation A court is justified in requiring the creation of a trust to secure the payment of support money when a spouse has a record of failing to obey prior court orders. Foregger v. Foregger, 48 Wis. 2d 512, 180 N.W.2d 578 (1970).

767.77 Annotation When parents each own a one-half interest in future proceeds of real estate and the state contributes to child support, the court may not order the custodial parent to pay child support in the form of an accumulating real estate lien in favor of the state. State ex rel. v. Reible, 91 Wis. 2d 394, 283 N.W.2d 427 (Ct. App. 1979).

767.77 Annotation The trial court had the power to order a parent to look for additional or alternative employment or be held in contempt. Discussing proper contempt procedures. Dennis v. State, 117 Wis. 2d 249, 344 N.W.2d 128 (1984).

767.77 Annotation There is no authority under this section to grant credits against arrearages. To grant a credit requires modification of the judgment under s. 767.32 [now s. 767.59]. Under s. 767.32 (1r) [now s. 767.59 (1r)], a court is without discretion to grant credits against arrearages for direct payments made for child support regardless of when the order was entered. Douglas County Child Support Enforcement Unit v. Fisher, 200 Wis. 2d 807, 547 N.W.2d 801 (Ct. App. 1996), 95-1960.

767.78 767.78 Enforcement; contempt proceedings.

767.78(1) (1) Definition. In this section, “financial obligation” means an obligation for payment incurred under s. 767.531, 2019 stats., or s. 48.355 (2) (b) 4. or (4g) (a), 48.357 (5m) (a), 48.363 (2), 767.225, 767.241, 767.511, 767.56, 767.61, 767.71, 767.804 (3), 767.805 (4), 767.85, 767.863 (3), 767.89, 938.183 (4), 938.355 (2) (b) 4. or (4g) (a), 938.357 (5m) (a), or 938.363 (2).

767.78(2) (2) Noncompliance; order to show cause. If a person has incurred a financial obligation and has failed within a reasonable time or as ordered by the court to satisfy the obligation, and the wage assignment proceeding under s. 767.75 and the account transfer under s. 767.76 are inapplicable, impractical, or unfeasible, the court may on its own initiative, and shall on the application of the receiving party, issue an order requiring the payer to show cause at a reasonable time specified in the order why he or she should not be subject to contempt of court under ch. 785.

767.78 History History: 1977 c. 105; 1979 c. 32 ss. 50, 92 (4); 1979 c. 196; 1979 c. 257 s. 17; Stats. 1979 s. 767.305; 1993 a. 481; 1995 a. 77; 1997 a. 27, 191; 1999 a. 103; 2005 a. 443 ss. 142, 143; Stats. 2005 s. 767.78; 2015 a. 373; 2019 a. 95; 2021 a. 35.

767.78 Annotation Contempt is an appropriate means to enforce child support arrearages after a child has reached majority. Griffin v. Reeve, 141 Wis. 2d 699, 416 N.W.2d 612 (1987).

767.78 Annotation When a contemnor’s liberty interests are at risk, the contemnor must be given an opportunity to show the court that the failure to comply with the purge conditions was not willful and intentional. State ex rel. V.J.H. v. C.A.B., 163 Wis. 2d 833, 472 N.W.2d 839 (Ct. App. 1991).

subch. IX of ch. 767 SUBCHAPTER IX

PATERNITY

767.80 767.80 Determination of paternity.

767.80(1) (1) Who may bring action or file motion. The following persons may bring an action or file a motion, including an action or motion for declaratory judgment, for the purpose of determining the paternity of a child, or for the purpose of rebutting the presumption of paternity under s. 891.405, 891.407, or 891.41 (1):

767.80(1)(a) (a) The child.

767.80(1)(b) (b) The child’s natural mother.

767.80(1)(c) (c) Unless s. 767.804 (1) or 767.805 (1) applies, a male presumed to be the child’s father under s. 891.405, 891.407, or 891.41 (1).

767.80(1)(d) (d) A male alleged or alleging himself to be the father of the child.

767.80(1)(e) (e) The personal representative of a person specified under pars. (a) to (d) if that person has died.

767.80(1)(f) (f) The legal or physical custodian of the child.

767.80(1)(g) (g) This state whenever the circumstances specified in s. 767.205 (2) (a) apply, including the delegates of the state as specified in sub. (6).

767.80(1)(h) (h) This state as provided under sub. (6m).

767.80(1)(hm) (hm) The state as provided under s. 767.804 (1) (d).

767.80(1)(i) (i) A guardian ad litem appointed for the child under s. 48.235, 767.407 (1) (c), or 938.235.

767.80(1)(j) (j) A parent of a person listed under par. (b), (c) or (d), if the parent is liable or is potentially liable for maintenance of a child of a dependent person under s. 49.90 (1) (a) 2.

767.80(1)(k) (k) In conjunction with the filing of a petition for visitation with respect to the child under s. 767.43 (3), a parent of a person who has filed a declaration of paternal interest under s. 48.025 with respect to the child or a parent of a person who, before April 1, 1998, signed and filed a statement acknowledging paternity under s. 69.15 (3) (b) 3. with respect to the child.

767.80(1m) (1m) Venue. An action under this section may be brought in the county in which the child or the alleged father resides or is found or, if the father is deceased, in which proceedings for probate of his estate have been or could be commenced.

767.80(2) (2) Certain agreements not a bar to action. Regardless of its terms, an agreement made after July 1, 1981, other than an agreement approved by the court between an alleged or presumed father and the mother or child, does not bar an action under this section. Whenever the court approves an agreement in which one of the parties agrees not to commence an action under this section, the court shall first determine whether or not the agreement is in the best interest of the child. The court shall not approve any provision waiving the right to bring an action under this section if this provision is contrary to the best interests of the child.

767.80(3) (3) Stay if action before birth. If an action under this section is brought before the birth of the child, all proceedings shall be stayed until after the birth, except that service of process, service and filing of pleadings, the first appearance and the taking of depositions to preserve testimony may be done before the birth of the child.

767.80(4) (4) Child as party. The child may be a party to any action under this section.

767.80(5) (5) Petition.

767.80(5)(a) (a) In this subsection, “any alleged father” includes any male who has engaged in sexual intercourse with the child’s mother during a possible time of conception of the child.

767.80(5)(b) (b) An action under this section may be joined with any other action for child support and is governed by the procedures specified in s. 767.205 relating to child support, except that the title of the action shall be “In re the paternity of A.B.” The petition shall state the name and date of birth of the child if born or that the mother is pregnant if the child is unborn, the name of any alleged father, whether or not an action by any of the parties to determine the paternity of the child or rebut the presumption of paternity to the child has at any time been commenced, or is pending before any court, in this state or elsewhere. If a paternity judgment has been rendered, or if a paternity action has been dismissed, the petition shall state the court that rendered the judgment or dismissed the action, and the date and the place the judgment was granted if known. The petition shall also give notice of a party’s right to request a genetic test under s. 49.225 or 767.84.

767.80(5)(c) (c) If a matter is referred under s. 48.299 (6) (a) or 938.299 (6) (a) to an attorney designated under sub. (6) (a), that attorney shall also include in the petition notification to the court that the matter was referred under s. 48.299 (6) (a) or 938.299 (6) (a).

767.80(5m) (5m) Applicable procedure; exceptions. Except as provided in ss. 767.804, 767.805, 767.863 (3), 767.85, 767.893 (2) and (2m), and 769.401, unless a male is presumed the child’s father under s. 891.41 (1), is adjudicated the child’s father either under s. 767.89 or by final order or judgment of a court of competent jurisdiction in another state, is conclusively determined to be the child’s father from genetic test results under s. 767.804, or has acknowledged himself to be the child’s father under s. 767.805 (1) or a substantially similar law of another state, no order or temporary order may be entered for child support, legal custody, or physical placement until the male is adjudicated the father using the procedure set forth in this subchapter, except s. 767.804 or 767.805. Except as provided in ss. 767.804, 767.805, 767.85, and 769.401, the exclusive procedure for establishment of child support obligations, legal custody, or physical placement rights for a male who is not presumed the child’s father under s. 891.41 (1), adjudicated the father, conclusively determined to be the child’s father from genetic test results under s. 767.804, or acknowledged under s. 767.805 (1) or a substantially similar law of another state to be the father is by an action under this subchapter, except s. 767.804 or 767.805, or under s. 769.402. No person may waive the use of this procedure. If a presumption under s. 891.41 (1) exists, a party denying paternity has the burden of rebutting the presumption.

767.80(6) (6) Which attorney represents state.

767.80(6)(a) (a) The attorney responsible for support enforcement under s. 59.53 (6) (a) shall provide the representation for the state as specified under s. 767.205 (2) (a) in cases brought under this section.

767.80(6)(b) (b) The attorney under s. 59.53 (6) (a) is the only county attorney who may provide representation when the state delegates its authority under sub. (1) (g).

767.80(6)(c) (c) The attorney under s. 59.53 (6) (a) or any state attorney acting under par. (b) may not represent the state as specified under s. 767.205 (2) (a) in an action under this section and at the same time act as guardian ad litem for the child or the alleged child of the party.

767.80(6m) (6m) When action must be commenced. The attorney designated under sub. (6) (a) shall commence an action under this section on behalf of the state within 6 months after receiving notification under s. 69.03 (15) that no father is named on the birth record of a child who is a resident of the county if paternity has not been conclusively determined from genetic test results under s. 767.804, acknowledged under s. 767.805 (1) or a substantially similar law of another state, or adjudicated, except in situations under s. 69.14 (1) (g) and (h) and as provided by the department by rule.