WI Stat § 767.511 (2021)
2021 Wisconsin Statutes & Annotations|Chapter 767 - Actions affecting the family.|767.511 - Child support.

767.511  Child support. (1) When ordered. When the court approves a stipulation for child support under s. 767.34, enters a judgment of annulment, divorce, or legal separation, or enters an order or a judgment in a paternity action or in an action under s. 767.001 (1) (f) or (j), 767.501, 767.804 (2), or 767.805 (3), the court shall do all of the following:(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. 767.34 (2) (am) 1. to 3. are satisfied.(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), 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 s. 767.513 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.(c) In addition to ordering child support for a child under par. (a), assign as a support obligation responsibility for, and direct the manner of payment of, the child's health care expenses under s. 767.513. (1g)  Consideration of financial information. 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). (1j)  Percentage standard generally required. 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). (1m)  Deviation from standard; factors. 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:(a) The financial resources of the child.(b) The financial resources of both parents.(bj) Maintenance received by either party.(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).(bz) The needs of any person, other than the child, whom either party is legally obligated to support.(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.(d) The desirability that the custodian remain in the home as a full-time parent.(e) The cost of child 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.(ej) The award of substantial periods of physical placement to both parents.(em) Extraordinary travel expenses incurred in exercising the right to periods of physical placement under s. 767.41.(f) The physical, mental, and emotional health needs of the child, including any costs for health insurance as provided for under s. 767.513.(g) The child's educational needs.(h) The tax consequences to each party.(hm) The best interests of the child.(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.(i) Any other factors which the court in each case determines are relevant. (1n)  Deviation from standard; record. 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. (2)  Separate fund or trust. 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. (3)  Effect of physical placement violation. Violation of physical placement rights by the custodial parent does not constitute reason for failure to meet child support obligations. (4)  Age of child eligible for support. 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. (5)  Liability for past support. Subject to ss. 767.804 (4), 767.805 (4m), and 767.89 (4), liability for past support is limited to the period after the birth of the child. (6)  Interest on arrearage. Subject to sub. (6m), a party ordered to pay child support under this section shall pay simple interest at the rate of 1 percent per month on any amount in arrears that is equal to or greater than the amount of child support due in one month. Subject to sub. (6m), if the party no longer has a current obligation to pay child support, interest at the rate of 1 percent per month shall accrue on the total amount of child support in arrears, if any. Interest under this subsection is in lieu of interest computed under s. 807.01 (4), 814.04 (4), or 815.05 (8) and is paid to the department or its designee under s. 767.57. Except as provided in s. 767.57 (1m) and except as required under federal statutes or regulations, the department or its designee shall apply all payments received for child support as follows: (a) First, to payment of child support due within the calendar month during which the payment is received. (b) Second, to payment of unpaid child support due before the payment is received.(c) Third, to payment of interest accruing on unpaid child support. (6m)  Pilot program on interest rate. The department may conduct a pilot program under which the interest that accrues on the amounts in arrears specified in s. 767.531, 2019 stats., and in sub. (6) shall be at the rate of 0.5 percent per month instead of 1 percent per month. If the department conducts a pilot program under this subsection, the program may begin at any time after December 31, 2013, and the new rate shall apply to interest that accrues during that time. (7)  Effect of joint legal custody. An order of joint legal custody under s. 767.41 does not affect the amount of child support ordered.History:  1971 c. 157; 1977 c. 29, 105, 418; 1979 c. 32 ss. 50, 92 (4); 1979 c. 196; Stats. 1979 s. 767.25; 1981 c. 20; 1983 a. 27; 1985 a. 29; 1987 a. 27, 37, 355, 413; 1989 a. 31, 212; 1991 a. 39; 1993 a. 481; 1995 a. 27 ss. 7101, 7102, 9126 (19); 1995 a. 201, 279, 404; 1997 a. 27, 35, 191; 1999 a. 9, 32; 2001 a. 16, 61; 2005 a. 253, 342; 2005 a. 443 ss. 103, 105, 219; Stats. 2005 s. 767.511; 2009 a. 185; 2011 a. 32; 2013 a. 20; 2017 a. 366; 2019 a. 95; 2021 a. 35.Cross-reference:  See also Wisconsin Administrative Code Citations published in the Wisconsin Administrative Code for a list of citations to cases citing chs. DCF 150, HSS 80, HFS 80, and DWD 40, the child support percentage of income standard.Cross-reference:  See also notes to s. 767.59 for decisions regarding postjudgment modifications.A provision in a judgment as to the education of children past the age of majority, inserted pursuant to a stipulation of the parties, cannot later be challenged and can be enforced by contempt proceedings. Bliwas v. Bliwas, 47 Wis. 2d 635, 178 N.W.2d 35 (1970).When parents each own a 1/2 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).The trial court abused its discretion by setting child support payments without considering the needs of the children or the payer's ability to pay. Edwards v. Edwards, 97 Wis. 2d 111, 293 N.W.2d 160 (1980).A personal injury damage award to a noncustodial spouse can be considered as a change of circumstances justifying increased support. Sommer v. Sommer, 108 Wis. 2d 586, 323 N.W.2d 144 (Ct. App. 1982).Sub. (6) imposes interest on arrearages existing on July 2, 1983, as well as on those accruing afterward. Greenwood v. Greenwood, 129 Wis. 2d 388, 385 N.W.2d 213 (Ct. App. 1986).Federal Supplemental Security Income may not be considered to be an economic resource for purposes of computing a child support obligation. However, a seek-work order may be appropriate. Langlois v. Langlois, 150 Wis. 2d 101, 441 N.W.2d 286 (Ct. App. 1989).Educational grants and loans, AFDC, and other child support are not economic resources for purposes of computing a child support obligation. Thibadeau v. Thibadeau, 150 Wis. 2d 109, 441 N.W.2d 281 (Ct. App. 1989).Consideration of expenses incurred by a child as an adult, including education expenses, is error. Resong v. Vier, 157 Wis. 2d 382, 459 N.W.2d 591 (Ct. App. 1990).A divorce stipulation waiving or setting a ceiling on child support and preventing modification is against public policy and will not be enforced. Ondrasek v. Tenneson, 158 Wis. 2d 690, 462 N.W.2d 915 (Ct. App. 1990).The trial court's use of a computer program to analyze financial evidence was not error. Bisone v. Bisone, 165 Wis. 2d 114, 477 N.W.2d 59 (Ct. App. 1991).In a joint custody situation, the parent with primary physical custody may be ordered to pay child support. Matz v. Matz, 166 Wis. 2d 326, 479 N.W.2d 245 (Ct. App. 1991).A stepparent has no legal obligation to support a stepchild. Under appropriate circumstances the theory of equitable estoppel may apply to cases involving child support. Ulrich v. Cornell, 168 Wis. 2d 792, 484 N.W.2d 546 (1992).The absence of a mortgage obligation is relevant to the assessment of a party's economic circumstances, but does not translate into imputed income under the applicable administrative rule. In Marriage of Zimmerman v. Zimmerman, 169 Wis. 2d 516, 485 N.W.2d 294 (Ct. App. 1992).A support order against actual AFDC grants is prohibited by Thibadeau, but an order against earned income of one who also receives AFDC is not. In Support of B., L., T. & K., 171 Wis. 2d 617, 492 N.W.2d 350 (Ct. App. 1992).No matter how corporate income is labeled, a family court may pierce the corporate shield if it is convinced the obligor's intent is to avoid financial obligations. Evjen v. Evjen, 171 Wis. 2d 677, 492 N.W.2d 360 (Ct. App. 1992).The parties' extrajudicial agreement that child support payments be discontinued was enforceable via the doctrine of equitable estoppel. Harms v. Harms, 174 Wis. 2d 780, 498 N.W.2d 229 (1993).The “serial family payer" rule adopted under the percentage standards referred to in sub. (1) [now sub. (1j)] is discussed. Brown v. Brown, 177 Wis. 2d 512, 503 N.W.2d 280 (Ct. App. 1993).The mandatory percentage standards for determining support do not allow for deferred payments. Kelly v. Hougham, 178 Wis. 2d 546, 504 N.W.2d 440 (Ct. App. 1993).An AFDC recipient assigns all rights to child support payments to the state. As such the payments may not be held in trust for the child under sub. (2). Paternity of Lachelle A.C., 180 Wis. 2d 708, 510 N.W.2d 718 (Ct. App. 1993).A lump sum separation benefit received upon termination of employment was properly considered to be income subject to the percentage standards for support. Gohde v. Gohde, 181 Wis. 2d 770, 512 N.W.2d 199 (Ct. App. 1993).In deciding not to apply the percentage standard, the court erred when it compared the parties available incomes after deducting the percentage amount from the payer's income, but failed to consider the assumed contribution of the same percentage by the payee. Kjelstrum v. Kjelstrum, 181 Wis. 2d 973, 512 N.W.2d 264 (Ct. App. 1994).A trial court could not set child support at zero, convert post-divorce income to marital property and order that income to be held in trust to be distributed to the child when AFDC benefits ended. Luna v. Luna, 183 Wis. 2d 20, 515 N.W.2d 480 (Ct. App. 1994).If the interests of the children and custodial parent are protected, parties are free to contract in a settlement agreement that the primary custodian will not have spending discretion over child support. Jacquart v. Jacquart, 183 Wis. 2d 372, 515 N.W.2d 539 (Ct. App. 1994).An asset and its income stream may not be counted both as an asset in the property division and as part of the payer's income from which support is paid. Maley v. Maley, 186 Wis. 2d 125, 519 N.W.2d 717 (Ct. App. 1994).A minimum fixed child support amount, rather than the percentage standard, based on the payer's “potential income" was appropriate when the court found that the payer had a substantial potential to manipulate the amount of support. Doerr v. Doerr, 189 Wis. 2d 112, 525 N.W.2d 745 (Ct. App. 1994).Trust income that is income to the beneficiary under federal tax law is subject to a child support order regardless of whether a distribution is made to the beneficiary. Grohmann v. Grohmann, 189 Wis. 2d 532, 525 N.W.2d 261 (1995).The trial court may consider the amount of time a child is placed with the paying parent and that parent's second family in setting support. Molstad v. Molstad, 193 Wis. 2d 602, 535 N.W.2d 63 (Ct. App. 1995).The percentage standards may be used to generate future as well as present support. Paternity of Tukker M.O., 199 Wis. 2d 186, 544 N.W.2d 417 (1996), 93-1929.The percentage standards presumptively apply in the case of a high income payee absent the payer's showing of unfairness by the greater weight of the credible evidence. Luciani v. Montemurro-Luciani, 199 Wis. 2d 280, 544 N.W.2d 561 (1996), 93-2899.Sub. (6) makes interest on child support arrearages mandatory. A trial court has no discretion in awarding interest, even if it determines that to do so would be inequitable. Douglas County Child Support v. Fisher, 200 Wis. 2d 807, 547 N.W.2d 801 (Ct. App. 1996), 95-1960.A court may consider earning capacity rather than actual earnings in determining child support and maintenance if it finds a parent's job choice voluntary and unreasonable. Sellers v. Sellers, 201 Wis. 2d 578, 549 N.W.2d 481 (Ct. App. 1996), 95-2730.The fact that a party, by deliberate conduct, frustrates an accurate calculation of the party's income does not prevent the trial court from making the appropriate finding of fact. The court may make its findings based on the available evidence. Lellman v. Mott, 204 Wis. 2d 166, 554 N.W.2d 525 (Ct. App. 1996), 96-0618.The court did not abuse its discretion in ruling against a request in a high income payer case for an increase in support according to the percentage standards when the court believed that the request was really a disguised claim for extra money to support the custodial parent's own lifestyle. Nelsen v. Candee, 205 Wis. 2d 632, 556 N.W.2d 789 (Ct. App. 1996), 95-2208.In certain cases, such as with military retirement pay, an asset may be divided in the property division and its income stream considered as income in determining child support. Cook v. Cook, 208 Wis. 2d 166, 560 N.W.2d 246 (1997), 95-1963.When a noncustodial parent seeks to impose a trust on arrearages owed under a pre-August 1, 1987, support order, that parent must demonstrate that the trust is in the child's best interest and, when the custodial parent does not agree to the trust, that the primary custodian was unwilling to or incapable of managing the support money. Cameron v. Cameron, 209 Wis. 2d 88, 562 N.W.2d 126 (1997), 95-0311.Income disparity resulting from applying the percentage standards is only relevant if the payer can show inability to pay or that the income disparity will adversely affect the children or payer. Equalizing lifestyles between parents is not a support objective. The amount of discretionary income either parent will have to spend on their children is a secondary consideration. Raz v. Brown, 213 Wis. 2d 296, 570 N.W.2d 605 (Ct. App. 1997), 96-1997.The repayment to the payer spouse of a loan made by him to a company that he owned was a proper addition to the payer's income available for support. It was properly found to be deferred compensation, which is included within the applicable definition of income. Raz v. Brown, 213 Wis. 2d 296, 570 N.W.2d 605 (Ct. App. 1997), 96-1997.A stipulation for child support with no time limit or opportunity for review was against public policy and the payer was not estopped from seeking a modification due to a material change in circumstances. Krieman v. Goldberg, 214 Wis. 2d 163, 571 N.W.2d 425 (1997), 96-3489.Absent a finding that an individual partner has authority to unilaterally control a partnership asset, partnership assets will be imputed as available income only in accordance with the partnership agreement. Health insurance premiums paid by a partnership are included in the partners income available for child support. Weis v. Weis, 215 Wis. 2d 135, 572 N.W.2d 123 (Ct. App. 1997), 96-3576.The trial court properly exercised its discretion under sub. (1m) (i) by excluding from the application of the percentage standards the value of nonassignable trips received by the paying spouse as employment bonuses although the trips constituted taxable income. State v. Wall, 215 Wis. 2d 595, 573 N.W.2d 862 (Ct. App. 1997), 97-0826.In concluding that a deviation from the percentage standards is warranted, all listed factors need not be applied. State v. Alonzo R., 230 Wis. 2d 17, 601 N.W.2d 328 (Ct. App. 1999), 98-3333.The percentage standards under sub. (1j) include the shared-time payer formula in DWD 40.04 (2) [now DCF 150.04 (2)], Wis. Adm. Code, as well as the straight percentage standards in DWD 40.03 (1) [now DCF 150.03 (1)]. The shared-time formula applies if the payer will be assuming costs in proportion to the number of days the court is ordering placement with the parent. Randall v. Randall, 2000 WI App 98, 235 Wis. 2d 1, 612 N.W.2d 737, 99-0531.Incarceration is a valid factor for a court to consider in setting child support because of the impact it may have on the payor's employability due to what may be voluntary and unreasonable acts. It was proper to base child support on earning capacity and to provide for an offset against the payor's property division payout to provide for payment of the support obligation. Modrow v. Modrow, 2001 WI App 200, 247 Wis. 2d 889, 634 N.W.2d 852, 00-1868.Subs. (1j), (1m), and (1n) give the court authority to determine and order some amount for child support. While that authority implicitly includes the authority to determine the amount to be zero, it does not implicitly include the authority to order the parents to divide expenses for the children among themselves in particular ways as an alternative to ordering one parent to pay child support to the other. Zawistowski v. Zawistowski, 2002 WI App 86, 253 Wis. 2d 630, 644 N.W.2d 252, 01-0655.This section makes no provision as to splitting child care costs beyond what is provided in the child support payments. The trial court erroneously exercised its discretion when, without addressing the sub. (1m) factors, it deviated from the child support percentage standards by ordering one party to pay one-half of the daycare expenses in addition to support required by the percentage standards. McLaren v. McLaren, 2003 WI App 125, 265 Wis. 2d 529, 665 N.W.2d 405, 02-2451.A trial court may establish a trust from funds paid for child support for the purpose of funding a child's postminority educational expenses. Because the percentage standards presume a higher standard of living commensurate with the payer's higher income, a child is entitled to the money over and above his or her needs. A trust is in the child's best interests and puts the child in the same position as if in an intact high-income family. Further, consideration of “educational needs" under sub. (1m) (g) is broad enough to encompass the higher educational needs of the child. Kowalski v. Obst, 2003 WI App 218, 267 Wis. 2d 400, 671 N.W.2d 339, 03-0573.Sub. (6) does not limit the authority a trial court would otherwise have to consider imposing interest on unpaid maintenance arrears. Cashin v. Cashin, 2004 WI App 92, 273 Wis. 2d 754, 681 N.W.2d 255, 03-1010.When a spouse presented a challenge to the application of the percentage standards on fairness grounds and presented a developed argument based on evidence in support of that challenge, the trial court was required to perform the analysis of the relevant statutory factors in answer to that challenge. Maritato v. Maritato, 2004 WI App 138, 275 Wis. 2d 252, 685 N.W.2d 379, 03-2074.When information the payer spouse supplied did not permit more than an approximate determination of his true gross income, the court was not required to precisely subtract the amount the payer alleged he would have to pay to service a new debt. Derr v. Derr, 2005 WI App 63, 280 Wis. 2d 681, 696 N.W.2d 170, 03-2181.The trial court erred when it ordered that child support be held open based upon the asset of the wife's Ph.D. in psychology and upon her imputed enhanced education income upon her expected, but as yet unattained, licensure to practice. Child support determinations are to be made upon the basis of the circumstances existing at the time of the divorce and a held-open determination indicates that an order for child support is not necessary based upon current circumstances. Weiler v. Boerner, 2005 WI App 64, 280 Wis. 2d 519, 695 N.W.2d 833, 03-2606.When undistributed company earnings are at issue, the court must: 1) ascertain whether the child support payer has the ability to individually control or access the undistributed earnings; and 2) determine whether there is a valid business reason for the company's decision to retain the earnings. If the payer has the ability to individually control or access earnings and the company has no valid reason for retaining its earnings, the undistributed income can be considered when calculating the payer's child support obligation. Winters v. Winters, 2005 WI App 94, 281 Wis. 2d 798, 699 N.W.2d 229, 04-0747.A lump sum payment as the result of a pension plan enhancement was gross income subject to the child support standards. There is no windfall exception to the application of child support to gross income. Absent a finding of unfairness, grounded in the specific facts of the case, and after considering all enumerated factors in sub. (1m) and any other factors relevant to the particular case, a trial court is not authorized to deviate from the percentage standards. Winkler v. Winkler, 2005 WI App 100, 282 Wis. 2d 746, 699 N.W.2d 652, 04-1231.The circuit court erred when it upheld the court commissioner's decision to exclude overtime pay as a general policy without exception when applying the percentage standard. Overtime income clearly constitutes a portion of salary and wages, and Wisconsin law does not exclude overtime income in the application of the percentage standard. Jarman v. Welter, 2006 WI App 54, 289 Wis. 2d 857, 711 N.W.2d 705, 05-1616.A provision providing that neither parent could request a change in the amount of child support payments for a period of at least seven years from the date of the judgment entered, except in catastrophic circumstances was unenforceable. As is implicit from Ondrasek: any marital settlement agreement entered into by divorcing parties that purports to limit a child support payee's ability to seek a support modification upon a substantial change in circumstances is against public policy and cannot provide a basis to estop the payee from seeking a modification. Ondrasek is not limited to unilateral waivers of a payee's right to obtain increased child support. Wood v. Propeck, 2007 WI App 24, 299 Wis. 2d 470, 728 N.W.2d 757, 05-2674.In not revealing that he was a trust beneficiary, a father failed to make proper financial disclosure at the time of a divorce as was required by s. 767.127. The rationale of Grohmann is applicable to both grantor and nongrantor trusts if there is an obligation to report that trust's income as one's own because it is the obligation to report the income that makes the income reachable for calculations of a child support obligation. Stevenson v. Stevenson, 2009 WI App 29, 316 Wis. 2d 442, 765 N.W.2d 811, 07-2143.There is no basis upon which a trial court can reduce that support owed to a payor spouse's marital child based on nonchild-support amounts paid to the payee spouse's nonmarital child. However, the benefit received by the non marital child for amounts received from the payor spouse would be appropriately accounted for in the maintenance award or property division. Ladwig v. Ladwig, 2010 WI App 78, 325 Wis. 2d 497, 785 N.W.2d 664, 09-1202.Ordinarily bonus income should be considered income when setting a child support order. In this case the trial court made the necessary findings to deviate from the child support guidelines when the court awarded a percentage of a future bonus to make up for a gap in support when no order was in effect, rather than applying the bonus to current support. Tierney v. Berger, 2012 WI App 91, 343 Wis. 2d 681, 820 N.W.2d 459, 11-0565.While the statute suggests that child support orders be expressed as a fixed sum, it does not completely prohibit percentage orders. Permitting percentage orders on unknown future bonus income is an exception to the preferred method of having percentage orders expressed as a fixed sum. Tierney v. Berger, 2012 WI App 91, 343 Wis. 2d 681, 820 N.W.2d 459, 11-0565.Federal preemption doctrine does not prohibit states from requiring payment of child support out of veterans' disability benefits. Rose v. Rose, 481 U.S. 619 (1987).Poor Little Rich Kids: Revising Wisconsin's Child Support System to Accommodate High-Income Payers. Dodd. 83 MLR 807.No-Fault Divorce: Tax Consequences of Support, Maintenance and Property Settlement. Case. WBB Dec. 1977.A practitioner's approach to child support. Bailey. WBB June 1987.HSS 80: New Rules for Child Support Obligations. Hickey. Wis. Law. Apr. 1995.Which Came First? The Serial Family Payer Formula. Stansbury. Wis. Law. Apr. 1995.