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Divorce Law
767.12(2) (2)
Irretrievable breakdown.
767.12(2)(a)
(a) If both of the parties by petition or otherwise have stated under oath
or affirmation that the marriage is irretrievably broken, or if the parties
have voluntarily lived apart continuously for 12 months or more immediately
prior to commencement of the action and one party has so stated, the court,
after hearing, shall make a finding that the marriage is irretrievably
broken.
767.12(2)(b)
(b) If the parties have not voluntarily lived apart for at least 12 months
immediately prior to commencement of the action and if only one party has
stated under oath or affirmation that the marriage is irretrievably broken,
the court shall consider all relevant factors, including the circumstances
that gave rise to filing the petition and the prospect of reconciliation.
767.12(2)(b)1.
1. If the court finds no reasonable prospect of reconciliation, it shall
make a finding that the marriage is irretrievably broken; or
767.12(2)(b)2.
2. If the court finds that there is a reasonable prospect of reconciliation,
it shall continue the matter for further hearing not fewer than 30 nor more
than 60 days later, or as soon thereafter as the matter may be reached on
the court's calendar, and may suggest to the parties that they seek
counseling. The court, at the request of either party or on its own motion,
may order counseling. At the adjourned hearing, if either party states under
oath or affirmation that the marriage is irretrievably broken, the court
shall make a finding whether the marriage is irretrievably broken.
767.12(3)
(3) Breakdown of marital relationship. If both of the parties by petition or
otherwise have stated under oath or affirmation that the marital
relationship is broken, the court, after hearing, shall make a finding that
the marital relationship is broken.
767.05(1)
(1) Jurisdiction. A court of this state having jurisdiction to hear actions
affecting the family may exercise jurisdiction as provided under ch. 769 or
801 .
767.05(1m)
(1m) Residence. No action under s. 767.02 (1) (a) or (b) may be brought
unless at least one of the parties has been a bona fide resident of the
county in which the action is brought for not less than 30 days next
preceding the commencement of the action, or unless the marriage has been
contracted within this state within one year prior to the commencement of
the action. No action under s. 767.02 (1) (c) or (d) may be brought unless
at least one of the parties has been a bona fide resident of the county in
which the action is brought for not less than 30 days next preceding the
commencement of the action. No action under s. 767.02 (1) (c) may be brought
unless at least one of the parties has been a bona fide resident of this
state for not less than 6 months next preceding the commencement of the
action.
767.05(3)
(3) Parties. The party initiating an action affecting the family shall be
denominated the petitioner. The party responding to the action shall be
denominated the respondent. All references to "plaintiff" in chs. 801 to 807
shall apply to the petitioner, and all references to "defendant" in chs. 801
to 807 shall apply to the respondent. Both parties together may initiate the
petition by signing and filing a joint petition. The parties to a joint
petition shall be called joint petitioners. The parties to a joint petition
shall state within the joint petition that both parties consent to personal
jurisdiction and waive service of summons.
767.083
Waiting period in certain actions. No petition for divorce or legal
separation may be brought to trial until the happening of whichever of the
following events occurs first:
767.083(1)
(1) The expiration of 120 days after service of the summons and petition
upon the respondent or the expiration of 120 days after the filing of the
joint petition; or
767.083(2)
(2) An order by the court, after consideration of the recommendation of a
circuit court commissioner, directing an immediate hearing on the petition
for the protection of the health or safety of either of the parties or of
any child of the marriage or for other emergency reasons consistent with the
policies of this chapter. The court shall upon granting such order specify
the grounds therefor.
Child Support
767.25 Child support. (abbreviated)
767.25(1)
(1) Whenever the court approves a stipulation for child support under s.
767.10 , 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.
767.02 (1) (f) or (j) , 767.08 or 767.62 (3) , the court shall do all of the
following:
767.25(1)(a)
(a) Order either or both parents to pay an amount reasonable or necessary to
fulfill a duty to support a child. The support amount must be expressed as a
fixed sum unless the parties have stipulated to expressing the amount as a
percentage of the payer's income and the requirements under s. 767.10 (2)
(am) 1. to 3. are satisfied.
767.25(1)(b)
(b) Ensure that the parties have stipulated which party, if either is
eligible, will claim each child as an exemption for federal income tax
purposes under 26 USC 151 (c) (1) (B), or as an exemption for state income
tax purposes under s. 71.07 (8) (b) or under the laws of another state. If
the parties are unable to reach an agreement about the tax exemption for
each child, the court shall make the decision in accordance with state and
federal tax laws. In making its decision, the court shall consider whether
the parent who is assigned responsibility for the child's health care
expenses under sub. (4m) is covered under a health insurance policy or plan,
including a self-insured plan, that is not subject to s. 632.897 (10) and
that conditions coverage of a dependent child on whether the child is
claimed by the insured parent as an exemption for purposes of federal or
state income taxes.
767.25(1g)
(1g) In determining child support payments, the court may consider all
relevant financial information or other information relevant to the parent's
earning capacity, including information reported under s. 49.22 (2m) to the
department or the county child support agency under s. 59.53 (5) .
767.25(1j)
(1j) Except as provided in sub. (1m) , the court shall determine child
support payments by using the percentage standard established by the
department under s. 49.22 (9) .
767.25(1m)
(1m) Upon request by a party, the court may modify the amount of child
support payments determined under sub. (1j) if, after considering the
following factors, the court finds by the greater weight of the credible
evidence that use of the percentage standard is unfair to the child or to
any of the parties:
767.25(1m)(a)
(a) The financial resources of the child.
767.25(1m)(b)
(b) The financial resources of both parents.
767.25(1m)(bj)
(bj) Maintenance received by either party.
767.25(1m)(bp)
(bp) The needs of each party in order to support himself or herself at a
level equal to or greater than that established under 42 USC 9902 (2).
767.25(1m)(bz)
(bz) The needs of any person, other than the child, whom either party is
legally obligated to support.
767.25(1m)(c)
(c) If the parties were married, the standard of living the child would have
enjoyed had the marriage not ended in annulment, divorce or legal
separation.
767.25(1m)(d)
(d) The desirability that the custodian remain in the home as a full-time
parent.
767.25(1m)(e)
(e) The cost of day care if the custodian works outside the home, or the
value of custodial services performed by the custodian if the custodian
remains in the home.
767.25(1m)(ej)
(ej) The award of substantial periods of physical placement to both parents.
767.25(1m)(em)
(em) Extraordinary travel expenses incurred in exercising the right to
periods of physical placement under s. 767.24 .
767.25(1m)(f)
(f) The physical, mental and emotional health needs of the child, including
any costs for health insurance as provided for under sub. (4m) .
767.25(1m)(g)
(g) The child's educational needs.
767.25(1m)(h)
(h) The tax consequences to each party.
767.25(1m)(hm)
(hm) The best interests of the child.
767.25(1m)(hs)
(hs) The earning capacity of each parent, based on each parent's education,
training and work experience and the availability of work in or near the
parent's community.
767.25(1m)(i)
(i) Any other factors which the court in each case determines are relevant.
767.25(1n)
(1n) If the court finds under sub. (1m) that use of the percentage standard
is unfair to the child or the requesting party, the court shall state in
writing or on the record the amount of support that would be required by
using the percentage standard, the amount by which the court's order
deviates from that amount, its reasons for finding that use of the
percentage standard is unfair to the child or the party, its reasons for the
amount of the modification and the basis for the modification.
767.25(2)
(2) The court may protect and promote the best interests of the minor
children by setting aside a portion of the child support which either party
is ordered to pay in a separate fund or trust for the support, education and
welfare of such children.
767.25(3)
(3) Violation of physical placement rights by the custodial parent does not
constitute reason for failure to meet child support obligations.
767.25(4)
(4) The court shall order either party or both to pay for the support of any
child of the parties who is less than 18 years old, or any child of the
parties who is less than 19 years old if the child is pursuing an accredited
course of instruction leading to the acquisition of a high school diploma or
its equivalent.
767.25(4m)(4m)
767.25(4m)(a)
(a) In this subsection, "health insurance" does not include medical
assistance provided under subch. IV of ch. 49.
767.25(4m)(b)
(b) In addition to ordering child support for a child under sub. (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. 767.10 , 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. 767.02 (1) (f) or
(j) , 767.08 or 767.62 (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 subsection. 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
subsection 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 which are in addition to and
not inconsistent with this subsection.
767.25(4m)(bm)(bm)
767.25(4m)(bm)1.
1. The court shall order a parent who is required to provide health
insurance coverage for a child under this subsection to provide to the other
parent a health insurance identification card evidencing the child's health
insurance coverage.
767.25(4m)(bm)2.
2. 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.
767.25(4m)(bm)3.
3. If the other parent is unable to obtain a health insurance identification
card for the child in the manner provided in subd. 2. , 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 .
767.25(4m)(c)(c)
767.25(4m)(c)1.
1. 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. 767.265 (3h) , or sent to the
department or its designee, whichever is appropriate, 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 shall send notice of assignment in the manner provided under s.
767.265 (2r) and may include the notice of assignment under this subdivision
with a notice of assignment under s. 767.265 . The department or its
designee, whichever is appropriate, shall keep a record of all moneys
received and disbursed by the department or its designee for health care
expenses that are directed to be paid to the department or its designee.
767.25(4m)(c)2.
2. 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 clerk of court may provide notice of assignment in the manner
provided under s. 767.265 (2r) for the withholding from income of the amount
necessary to pay the health insurance premiums. The notice of assignment
under this subdivision may be sent with or included as part of any other
notice of assignment under s. 767.265 , if appropriate. A person who
receives notice of assignment under this subdivision shall send the withheld
health insurance premiums to the appropriate health care insurer, provider
or plan, as provided in s. 767.265 (3h) .
767.25(4m)(d)
(d) 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:
767.25(4m)(d)1.
1. 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.
767.25(4m)(d)2.
2. 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 par. (f) 1.
767.25(4m)(d)2m.
2m. 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.
Child Custody
and Visitation Law
767.24 Custody and physical placement.
767.24(1)
(1) General provisions. In rendering a judgment of annulment, divorce, legal
separation or paternity, or in rendering a judgment in an action under s.
767.02 (1) (e) or 767.62 (3) , the court shall make such provisions as it
deems just and reasonable concerning the legal custody and physical
placement of any minor child of the parties, as provided in this section.
767.24(1m)
(1m) Parenting plan. In an action for annulment, divorce or legal
separation, an action to determine paternity or an action under s. 767.02
(1) (e) or 767.62 (3) in which legal custody or physical placement is
contested, a party seeking sole or joint legal custody or periods of
physical placement shall file a parenting plan with the court before any
pretrial conference. Except for cause shown, a party required to file a
parenting plan under this subsection who does not timely file a parenting
plan waives the right to object to the other party's parenting plan. A
parenting plan shall provide information about the following questions:
767.24(1m)(a)
(a) What legal custody or physical placement the parent is seeking.
767.24(1m)(b)
(b) Where the parent lives currently and where the parent intends to live
during the next 2 years. If there is evidence that the other parent engaged
in interspousal battery, as described under s. 940.19 or 940.20 (1m) , or
domestic abuse, as defined in s. 813.12 (1) (am) , with respect to the
parent providing the parenting plan, the parent providing the parenting plan
is not required to disclose the specific address but only a general
description of where he or she currently lives and intends to live during
the next 2 years.
767.24(1m)(c)
(c) Where the parent works and the hours of employment. If there is evidence
that the other parent engaged in interspousal battery, as described under s.
940.19 or 940.20 (1m) , or domestic abuse, as defined in s. 813.12 (1) (am)
, with respect to the parent providing the parenting plan, the parent
providing the parenting plan is not required to disclose the specific
address but only a general description of where he or she works.
767.24(1m)(d)
(d) Who will provide any necessary child care when the parent cannot and who
will pay for the child care.
767.24(1m)(e)
(e) Where the child will go to school.
767.24(1m)(f)
(f) What doctor or health care facility will provide medical care for the
child.
767.24(1m)(g)
(g) How the child's medical expenses will be paid.
767.24(1m)(h)
(h) What the child's religious commitment will be, if any.
767.24(1m)(i)
(i) Who will make decisions about the child's education, medical care,
choice of child care providers and extracurricular activities.
767.24(1m)(j)
(j) How the holidays will be divided.
767.24(1m)(k)
(k) What the child's summer schedule will be.
767.24(1m)(L)
(L) Whether and how the child will be able to contact the other parent when
the child has physical placement with the parent providing the parenting
plan, and what electronic communication, if any, the parent is seeking.
767.24(1m)(Lm)
(Lm) Whether equipment for providing electronic communication is reasonably
available to both parents.
767.24(1m)(m)
(m) How the parent proposes to resolve disagreements related to matters over
which the court orders joint decision making.
767.24(1m)(n)
(n) What child support, family support, maintenance or other income transfer
there will be.
767.24(1m)(o)
(o) If there is evidence that either party engaged in interspousal battery,
as described under s. 940.19 or 940.20 (1m) , or domestic abuse, as defined
in s. 813.12 (1) (am) , with respect to the other party, how the child will
be transferred between the parties for the exercise of physical placement to
ensure the safety of the child and the parties.
767.24(2)
(2) Custody to party; joint or sole.
767.24(2)(a)
(a) Subject to pars. (am) , (b) , (c) , and (d) , based on the best interest
of the child and after considering the factors under sub. (5) (am) , subject
to sub. (5) (bm) , the court may give joint legal custody or sole legal
custody of a minor child.
767.24(2)(am)
(am) Except as provided in par. (d) , the court shall presume that joint
legal custody is in the best interest of the child.
767.24(2)(b)
(b) Except as provided in par. (d) , the court may give sole legal custody
only if it finds that doing so is in the child's best interest and that
either of the following applies:
767.24(2)(b)1.
1. Both parties agree to sole legal custody with the same party.
767.24(2)(b)2.
2. The parties do not agree to sole legal custody with the same party, but
at least one party requests sole legal custody and the court specifically
finds any of the following:
767.24(2)(b)2.a.
a. One party is not capable of performing parental duties and
responsibilities or does not wish to have an active role in raising the
child.
767.24(2)(b)2.b.
b. One or more conditions exist at that time that would substantially
interfere with the exercise of joint legal custody.
767.24(2)(b)2.c.
c. The parties will not be able to cooperate in the future decision making
required under an award of joint legal custody. In making this finding the
court shall consider, along with any other pertinent items, any reasons
offered by a party objecting to joint legal custody. Evidence that either
party engaged in abuse, as defined in s. 813.122 (1) (a) , of the child, as
defined in s. 48.02 (2) , or evidence of interspousal battery, as described
under s. 940.19 or 940.20 (1m) , or domestic abuse, as defined in s. 813.12
(1) (am) , creates a rebuttable presumption that the parties will not be
able to cooperate in the future decision making required.
767.24(2)(c)
(c) Except as provided in par. (d) , the court may not give sole legal
custody to a parent who refuses to cooperate with the other parent if the
court finds that the refusal to cooperate is unreasonable.
767.24(2)(d)(d)
767.24(2)(d)1.
1. Except as provided in subd. 4. , if the court finds by a preponderance of
the evidence that a party has engaged in a pattern or serious incident of
interspousal battery, as described under s. 940.19 or 940.20 (1m) , or
domestic abuse, as defined in s. 813.12 (1) (am) , pars. (am) , (b) , and
(c) do not apply and there is a rebuttable presumption that it is
detrimental to the child and contrary to the best interest of the child to
award joint or sole legal custody to that party. The presumption under this
subdivision may be rebutted only by a preponderance of evidence of all of
the following:
767.24(2)(d)1.a.
a. The party who committed the battery or abuse has successfully completed
treatment for batterers provided through a certified treatment program or by
a certified treatment provider and is not abusing alcohol or any other drug.
767.24(2)(d)1.b.
b. It is in the best interest of the child for the party who committed the
battery or abuse to be awarded joint or sole legal custody based on a
consideration of the factors under sub. (5) (am).
767.24(2)(d)2.
2. If the court finds under subd. 1. that both parties engaged in a pattern
or serious incident of interspousal battery, as described under s. 940.19 or
940.20 (1m) , or domestic abuse, as defined in s. 813.12 (1) (am) , the
party who engaged in the battery or abuse for purposes of the presumption
under subd. 1. is the party that the court determines was the primary
physical aggressor. Except as provided in subd. 3. , in determining which
party was the primary physical aggressor, the court shall consider all of
the following:
767.24(2)(d)2.a.
a. Prior acts of domestic violence between the parties.
767.24(2)(d)2.b.
b. The relative severity of the injuries, if any, inflicted upon a party by
the other party in any of the prior acts of domestic violence under subd. 2.
a.
767.24(2)(d)2.c.
c. The likelihood of future injury to either of the parties resulting from
acts of domestic violence.
767.255(1)
(1) Upon every judgment of annulment, divorce or legal separation, or in
rendering a judgment in an action under s. 767.02 (1) (h) , the court shall
divide the property of the parties and divest and transfer the title of any
such property accordingly. A certified copy of the portion of the judgment
that affects title to real estate shall be recorded in the office of the
register of deeds of the county in which the lands so affected are situated.
The court may protect and promote the best interests of the children by
setting aside a portion of the property of the parties in a separate fund or
trust for the support, maintenance, education and general welfare of any
minor children of the parties.
767.255(2)(2)
767.255(2)(a)
(a) Except as provided in par. (b) , any property shown to have been
acquired by either party prior to or during the course of the marriage in
any of the following ways shall remain the property of that party and is not
subject to a property division under this section:
767.255(2)(a)1.
1. As a gift from a person other than the other party.
767.255(2)(a)2.
2. By reason of the death of another, including, but not limited to, life
insurance proceeds; payments made under a deferred employment benefit plan,
as defined in s. 766.01 (4) (a) , or an individual retirement account; and
property acquired by right of survivorship, by a trust distribution, by
bequest or inheritance or by a payable on death or a transfer on death
arrangement under ch. 705 .
767.255(2)(a)3.
3. With funds acquired in a manner provided in subd. 1. or 2.
767.255(2)(b)
(b) Paragraph (a) does not apply if the court finds that refusal to divide
the property will create a hardship on the other party or on the children of
the marriage. If the court makes such a finding, the court may divest the
party of the property in a fair and equitable manner.
767.255(3)
(3) The court shall presume that all property not described in sub. (2) (a)
is to be divided equally between the parties, but may alter this
distribution without regard to marital misconduct after considering all of
the following:
767.255(3)(a)
(a) The length of the marriage.
767.255(3)(b)
(b) The property brought to the marriage by each party.
767.255(3)(c)
(c) Whether one of the parties has substantial assets not subject to
division by the court.
767.255(3)(d)
(d) The contribution of each party to the marriage, giving appropriate
economic value to each party's contribution in homemaking and child care
services.
767.255(3)(e)
(e) The age and physical and emotional health of the parties.
767.255(3)(f)
(f) The contribution by one party to the education, training or increased
earning power of the other.
767.255(3)(g)
(g) The earning capacity of each party, including educational background,
training, employment skills, work experience, length of absence from the job
market, custodial responsibilities for children and the time and expense
necessary to acquire sufficient education or training to enable the party to
become self-supporting at a standard of living reasonably comparable to that
enjoyed during the marriage.
767.255(3)(h)
(h) The desirability of awarding the family home or the right to live
therein for a reasonable period to the party having physical placement for
the greater period of time.
767.255(3)(i)
(i) The amount and duration of an order under s. 767.26 granting maintenance
payments to either party, any order for periodic family support payments
under s. 767.261 and whether the property division is in lieu of such
payments.
767.255(3)(j)
(j) Other economic circumstances of each party, including pension benefits,
vested or unvested, and future interests.
767.255(3)(k)
(k) The tax consequences to each party.
767.255(3)(L)
(L) Any written agreement made by the parties before or during the marriage
concerning any arrangement for property distribution; such agreements shall
be binding upon the court except that no such agreement shall be binding
where the terms of the agreement are inequitable as to either party. The
court shall presume any such agreement to be equitable as to both parties.
767.255(3)(m)
(m) Such other factors as the court may in each individual case determine to
be relevant.
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