Chapter 767

767.001(1m) (1m) “Genetic test” means a test that examines genetic markers present on blood cells, skin cells, tissue cells, bodily fluid cells or cells of another body material for the purpose of determining the statistical probability of an alleged father’s paternity.

767.001(1s) (1s) “Joint legal custody” means the condition under which both parties share legal custody and neither party’s legal custody rights are superior, except with respect to specified decisions as set forth by the court or the parties in the final judgment or order.

767.001(2) (2) “Legal custody” means:

767.001(2)(a) (a) With respect to any person granted legal custody of a child, other than a county agency or a licensed child welfare agency under par. (b), the right and responsibility to make major decisions concerning the child, except with respect to specified decisions as set forth by the court or the parties in the final judgment or order.

767.001(2)(b) (b) With respect to the department or a county agency specified in s. 48.56 (1) or a licensed child welfare agency granted legal custody of a child, the rights and responsibilities specified under s. 48.02 (12).

767.001(2m) (2m) “Major decisions” includes, but is not limited to, decisions regarding consent to marry, consent to enter military service, consent to obtain a motor vehicle operator’s license, authorization for nonemergency health care and choice of school and religion.

767.001(5) (5) “Physical placement” means the condition under which a party has the right to have a child physically placed with that party and has the right and responsibility to make, during that placement, routine daily decisions regarding the child’s care, consistent with major decisions made by a person having legal custody.

767.001(6) (6) “Sole legal custody” means the condition under which one party has legal custody.

767.001 History History: 1987 a. 355; 1995 a. 100, 279, 404; 1997 a. 3, 27, 35; 2005 a. 174; 2005 a. 443 ss. 7, 8, 15, 16; 2007 a. 20; 2015 a. 373; 2017 a. 203.

767.001 Note NOTE: 1987 Wis. Act 355 and 2005 Wis. Act 443, contain explanatory notes.

767.001 Annotation Sub. (2m) confers the right to choose a child’s religion on the custodial parent. Lange v. Lange, 175 Wis. 2d 373, 502 N.W.2d 143 (Ct. App. 1993).

767.001 Annotation A custodial parent’s right to make major decisions for the children does not give that parent the right to decide whether the actions of the noncustodial parent are consistent with those decisions. Wood v. DeHahn, 214 Wis. 2d 221, 571 N.W.2d 186 (Ct. App. 1997), 96-3642.

767.001 Annotation Sub. (1) (i) allows all actions to modify a judgment in an action affecting marriage to be commenced in any court having jurisdiction under s. 767.01. 68 Atty. Gen. 106.

767.001 Annotation Family Court or Not? Raising Child Abuse Allegations Against a Parent. Kornblum & Pollack. Wis. Law. Mar. 2020.

767.005 767.005 Scope. This chapter applies to actions affecting the family.

767.005 History History: 2005 a. 443.

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

767.01 767.01 Jurisdiction.

767.01(1) (1) Generally. The circuit courts have jurisdiction of all actions affecting the family and have authority to do all acts and things necessary and proper in those actions and to carry their orders and judgments into execution as prescribed in this chapter. Except as provided in subs. (2) and (2m), jurisdiction may be exercised as provided under ch. 801.

767.01(2) (2) Paternity and child support. In an action to establish paternity or to establish or enforce a child support obligation, in regard to a child who is the subject of the action, a person is subject to the jurisdiction of the courts of this state as provided in s. 769.201 (1m) or 801.05.

767.01(2m) (2m) Child custody. All proceedings relating to the custody of children shall comply with the requirements of ch. 822.

767.01 History History: 1975 c. 39; 1977 c. 449; 1979 c. 32 s. 50; 1979 c. 196, 352; Stats. 1979 s. 767.01; 1987 a. 27; 1993 a. 326; 2005 a. 443 ss. 10 to 13; 2009 a. 321; 2015 a. 82 s. 12.

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

767.01 Cross-reference Cross-reference: See s. 765.001 for provision as to intent and construction of this chapter.

767.01 Annotation The trial court has broad authority to enforce its family court judgments and may employ any remedy customarily available to courts of equity. It was appropriate to direct the defendant to pay the plaintiff’s medical expenses when the defendant had not converted an insurance policy as ordered under a divorce decree. Rotter v. Rotter, 80 Wis. 2d 56, 257 N.W.2d 861 (1977).

767.01 Annotation When a husband complied with the original court order to make property division installment payments, the court had no authority to order the husband to pay the wife’s income tax on installments. Wright v. Wright, 92 Wis. 2d 246, 284 N.W.2d 894 (1979).

767.01 Annotation When possession of the partys’ homestead was awarded by the divorce judgment to the wife to be sold upon her death with the proceeds divided between the parties, the family court and probate court had concurrent jurisdiction. Morrissette v. Morrissette, 99 Wis. 2d 467, 299 N.W.2d 590 (Ct. App. 1980).

767.01 Annotation A circuit court does not have subject matter jurisdiction in a divorce action to determine attorney fees between an attorney and client that the attorney continues to represent in the divorce action. Stasey v. Stasey, 168 Wis. 2d 37, 483 N.W.2d 221 (1992).

767.01 Annotation The joinder of divorce and contract actions between spouses is not required. Caulfield v. Caulfield, 183 Wis. 2d 83, 515 N.W.2d 278 (Ct. App. 1994).

767.01 Annotation When one party to a divorce dies during the action, the court loses jurisdiction, including jurisdiction to enforce prior orders. Socha v. Socha, 183 Wis. 2d 390, 515 N.W.2d 337 (Ct. App. 1994).

767.01 Annotation An injunction against a man, whose petition to establish himself as father of two children had been denied, to stay away from the children until they reach age 18 was within the court’s power to enforce its judgments and orders. W.W.W. v. M.C.S., 185 Wis. 2d 468, 518 N.W.2d 285 (Ct. App. 1994).

767.01 Annotation A divorce action terminates on the death of a spouse. After the death, an order prohibiting an act in regard to marital property entered in the divorce may not be enforced under this chapter. As the parties are legally married at the time of death, the sole remedy for resolving disputes over marital property lies under s. 766.70. Socha v. Socha, 204 Wis. 2d 474, 555 N.W.2d 152 (Ct. App. 1996), 95-1641.

767.01 Annotation A family court has jurisdiction to hear equitable claims against third parties that affect the rights of parties to a divorce, such as a claim against a third-party title holder of property claimed to actually be part of the marital estate. Zabel v. Zabel, 210 Wis. 2d 336, 565 N.W.2d 240 (Ct. App. 1997), 96-3092.

767.01 Annotation There is no authority in this chapter to allow a name change for children in a divorce action. Jocius v. Jocius, 218 Wis. 2d 103, 580 N.W.2d 708 (Ct. App. 1998), 96-2746.

767.01 Annotation A cause of action under s. 766.70 requires that the complained of conduct arise as a result of the marital relationship and a breach of the good faith duty between spouses. Once a divorce is commenced, the claim must be resolved in divorce court. A cause of action between spouses arising outside the marital relationship, such as a stockbroker-client relationship, does not fall within s. 766.70 and may be maintained independent of the divorce. Knafelc v. Dain Bosworth, Inc., 224 Wis. 2d 346, 591 N.W.2d 611 (Ct. App. 1999), 98-0067.

767.01 Annotation Ch. 822, the Uniform Child Custody Jurisdiction Act, does not, in and of itself, establish a sufficient statutory basis for personal jurisdiction over a nonresident defendant in a paternity proceeding. Paula M.S. v. Neal A.R., 226 Wis. 2d 79, 593 N.W.2d 486 (Ct. App. 1999), 98-1158.

767.01 Annotation A common law action for unjust enrichment cannot be litigated in a divorce action. Dahlke v. Dahlke, 2002 WI App 282, 258 Wis. 2d 764, 654 N.W.2d 73, 02-0194.

767.041 767.041 Full faith and credit; comity.

767.041(1) (1) Actions in courts of other states.

767.041(1)(a) (a) Full faith and credit shall be given in all courts of this state to a judgment in any action affecting the family, except an action relating to child custody, by a court of competent jurisdiction in another state, territory, or possession of the United States, when both spouses personally appear or when the respondent has been personally served. Full faith and credit shall also be given in all courts of this state to the amount of arrearages owed for nonpayment or late payment of a child support, family support, or maintenance payment under an order issued by a court of competent jurisdiction in another state, territory, or possession of the United States. A court in this state may not adjust the amount of arrearages owed except as provided in s. 767.59 (1m).

767.041(1)(b) (b) Full faith and credit shall be given in all courts of this state to a determination of paternity made by any other state, whether established through voluntary acknowledgment or an administrative or judicial process.

767.041(2) (2) Actions in courts of foreign countries. Any court of this state may recognize a judgment in any action affecting the family involving Wisconsin domiciliaries, except an action relating to child custody, by a court of competent jurisdiction in a foreign country, in accordance with the principles of international comity.

767.041(3) (3) Child custody actions. All matters relating to the effect of the judgment of another court concerning child custody are governed by ch. 822.

767.041 History History: 1977 c. 105; 1979 c. 32 s. 50; 1979 c. 352 s. 39; Stats. 1979 s. 767.21; 1989 a. 212; 1993 a. 481; 2005 a. 443 s. 82; Stats. 2005 s. 767.041.

767.041 Annotation Full faith and credit is not applicable when a decree or judgment is obtained in a jurisdiction outside of the United States. Wisconsin Valley Trust Co. v. DOR, 65 Wis. 2d 199, 222 N.W.2d 628 (1974).

767.041 Annotation A Wisconsin court has equitable jurisdiction to decide issues of maintenance and property division when an out-of-state divorce judgment fails to address those issues. Haeuser v. Haeuser, 200 Wis. 2d 750, 548 N.W.2d 535 (Ct. App. 1996), 95-1087.

767.055 767.055 Uniform Divorce Recognition Act.

767.055(1) (1) Effect of foreign divorce by state domiciliary. A divorce obtained in another jurisdiction is of no force or effect in this state if the court in the other jurisdiction lacks subject matter jurisdiction to hear the case because both parties to the marriage were domiciled in this state at the time the proceeding for the divorce was commenced.

767.055(2) (2) Proof. Proof that a person obtaining a divorce in another jurisdiction was domiciled in this state within 12 months prior to the commencement of the divorce proceeding and resumed residence in this state within 18 months after the date of the person’s departure from this state, or that at all times after the person’s departure from this state and until the person’s return the person maintained a place of residence within this state, is prima facie evidence that the person was domiciled in this state when the divorce proceeding was commenced.

767.055(3) (3) Construction. This section shall be interpreted and construed so as to effectuate its general purpose to make uniform the law of those states that enact it.

767.055(4) (4) Title. This section may be cited as the Uniform Divorce Recognition Act.

767.055 History History: 1977 c. 105; 1979 c. 32 s. 50; Stats. 1979 s. 767.22; 1993 a. 486; 2005 a. 443 s. 85; Stats. 2005 s. 767.055.

767.055 Annotation Comity cannot be accorded a Mexican decree if no domicile existed in that foreign jurisdiction. Wisconsin Valley Trust Co. v. DOR, 65 Wis. 2d 199, 222 N.W.2d 628 (1974).

subch. II of ch. 767 SUBCHAPTER II

PROVISIONS OF GENERAL APPLICATION

767.105 767.105 Information from the office of family court commissioner.

767.105(1) (1) Information on available services. Upon the filing of an action affecting the family, the office of family court commissioner shall inform the parties of any services, including referral services, offered by the office of family court commissioner and by the director of family court services under s. 767.405.

767.105(2) (2) Other information on request. Upon request of a party to an action affecting the family, including a revision of judgment or order under s. 767.451 or 767.59:

767.105(2)(a) (a) The office of family court commissioner shall, with or without charge, provide the party with written information on the following, as appropriate to the action commenced:

767.105(2)(a)1. 1. The procedure for obtaining a judgment or order in the action.

767.105(2)(a)2. 2. The major issues usually addressed in such an action.

767.105(2)(a)3. 3. Community resources and family court services available to assist the parties.

767.105(2)(a)4. 4. The procedure for setting, modifying and enforcing child support awards or modifying and enforcing legal custody or physical placement judgments or orders.

767.105(2)(b) (b) The office of family court commissioner shall provide a party, for inspection or purchase, with a copy of the statutory provisions in this chapter generally pertinent to the action.

767.105 History History: 1977 c. 105, 271, 447, 449; 1979 c. 32 s. 50; 1987 a. 355; 2001 a. 61; 2005 a. 443 s. 43; Stats. 2005 s. 767.105.

767.117 767.117 Prohibited acts during pendency of action.

767.117(1) (1) Prohibitions. In an action affecting the family, the petitioner upon filing the petition, the joint petitioners upon filing the joint petition and the respondent upon service of the petition are prohibited from doing any of the following:

767.117(1)(a) (a) Harassing, intimidating, physically abusing or imposing any restraint on the personal liberty of the other party or a minor child of either of the parties.

767.117(1)(b) (b) If the action is one under s. 767.001 (1) (a), (b), (c), (d), (h), or (i), encumbering, concealing, damaging, destroying, transferring, or otherwise disposing of property owned by either or both of the parties, without the consent of the other party or an order of the court, except in the usual course of business, in order to secure necessities, or in order to pay reasonable costs and expenses of the action, including attorney fees.

767.117(1)(c) (c) Unless the action is one under s. 767.001 (1) (g) or (h), without the consent of the other party or an order of the court, relocating and establishing a residence with a minor child of the parties more than 100 miles from the residence of the other party, removing a minor child of the parties from the state for more than 90 consecutive days, or concealing a minor child of the parties from the other party.

767.117(2) (2) Duration of prohibitions. The prohibitions under sub. (1) shall apply until the action is dismissed, until a final judgment in the action is entered, or until the court orders otherwise.

767.117(3) (3) Violations.

767.117(3)(a) (a) Except as provided in par. (b), a party who violates any provision of sub. (1) may be proceeded against under ch. 785 for contempt of court.

767.117(3)(b) (b) An act in violation of sub. (1) (c) is not a contempt of court if the court finds that the action was taken to protect a party or a minor child of the parties from physical abuse by the other party and that there was no reasonable opportunity under the circumstances for the party to obtain an order under sub. (2) authorizing the action.

767.117 History History: 1993 a. 78; 2001 a. 61; 2005 a. 443 ss. 51, 64; Stats. 2005 s. 767.117; 2017 a. 203.

767.127 767.127 Financial disclosure.

767.127(1) (1) Required disclosure. In an action affecting the family, except an action to affirm marriage under s. 767.001 (1) (a), the court shall require each party to furnish, on standard forms required by the court, full disclosure of all assets owned in full or in part by either party separately or by the parties jointly. Disclosure may be made by each party individually or by the parties jointly. Assets required to be disclosed include, but are not limited to, real estate, savings accounts, stocks and bonds, mortgages and notes, life insurance, retirement interests, interest in a partnership, limited liability company, or corporation, tangible personal property, future interests whether vested or nonvested, and any other financial interest or source. The court shall also require each party to furnish, on the same standard form, information pertaining to all debts and liabilities of the parties. The form used shall contain a statement in conspicuous print that complete disclosure of assets and debts is required by law and deliberate failure to provide complete disclosure constitutes perjury. The court shall require each party to attach to the disclosure form a statement reflecting income earned to date for the current year and the most recent statement under s. 71.65 (1) (a) that the party has received. The court may on its own initiative and shall at the request of either party require the parties to furnish copies of all state and federal income tax returns filed by them for the past 2 years, and may require copies of those returns for prior years.

767.127(1m) (1m) Health insurance information for minor child. In any action affecting the family that involves a minor child, the court shall require, in addition to the disclosure under sub. (1), that each party furnish the court with information regarding the types and costs of any health insurance policies or plans that are offered through each party’s employer or other organization. This disclosure shall include a copy of any health care policy or plan that names the child as a beneficiary at the time that the disclosure is filed under sub. (2).

767.127(2) (2) Filing disclosure forms. Disclosure forms required under this section shall be filed within 90 days after the service of summons or the filing of a joint petition or at a time ordered by the court. Information on the forms shall be updated on the record to the date of hearing.

767.127(3) (3) Confidentiality of disclosed information.

767.127(3)(a) (a) Except as provided in par. (b), information disclosed under this section and under s. 767.54 is confidential and may not be made available to any person for any purpose other than the adjudication, appeal, modification, or enforcement of judgment of an action affecting the family of the disclosing parties.

767.127(3)(b) (b) The clerk of circuit court shall provide information from court records to the department under s. 59.40 (2) (p).

767.127(4) (4) Failure to timely file. If either party fails timely to file a complete disclosure statement as required by this section, the court may accept as accurate any information provided in the statement of the other party or obtained under s. 49.22 (2m) by the department or the county child support agency under s. 59.53 (5).

767.127(5) (5) Failure to disclose; constructive trust. If a party intentionally or negligently fails to disclose information required by sub. (1) and as a result any asset with a fair market value of $500 or more is omitted from the final distribution of property, the party aggrieved by the nondisclosure may at any time petition the court granting the annulment, divorce, or legal separation to declare the creation of a constructive trust as to all undisclosed assets, for the benefit of the parties and their minor or dependent children, if any, with the party in whose name the assets are held declared the constructive trustee. The trust shall include such terms and conditions as the court may determine. The court shall grant the petition upon a finding of a failure to disclose assets as required under sub. (1).

767.127 History History: 1977 c. 105; 1979 c. 32 ss. 50, 92 (4); 1979 c. 196; 1979 c. 352 s. 39; Stats. 1979 s. 767.27; 1985 a. 29; 1987 a. 413; 1993 a. 112, 481; 1995 a. 27 s. 9126 (19); 1995 a. 201, 404; 1997 a. 27, 35, 191; 2001 a. 16, 61, 105; 2005 a. 443 ss. 68, 121, 123; Stats. 2005 s. 767.127; 2011 a. 258.

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

767.127 Annotation In the event of a property division determined by arbitration, the closing of the arbitration record does not create a categorical exception under sub. (2) to alter the general rule of valuing property at the date of divorce, although the closing of the arbitration record could serve as the date of valuation. Franke v. Franke, 2004 WI 8, 268 Wis. 2d 360, 674 N.W.2d 832, 01-3316.

767.127 Annotation While under s. 767.61 (2) (a) 1. gifted property is generally not subject to division, that is not a hard and fast rule. It was not for a party to unilaterally decide not to disclose property because the party believed it was not subject to division. Jezeski v. Jezeski, 2009 WI App 8, 316 Wis. 2d 178, 763 N.W.2d 176, 07-2823.

767.127 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 this section. Under both grantor and nongrantor trusts if there is an obligation to report that trust’s income as one’s own, there is an obligation to report the income, and that obligation makes the income reachable for calculations of child support. Stevenson v. Stevenson, 2009 WI App 29, 316 Wis. 2d 442, 765 N.W.2d 811, 07-2143.