2023 Wisconsin Statutes & Annotations › Chapter 767 - Actions affecting the family. › 767.34 - Court-approved stipulation.

767.34
Court-approved stipulation.
(1)
Authority. The parties in an action for an annulment, divorce, or legal separation may, subject to the approval of the court, stipulate for a division of property, for maintenance payments, for the support of children, or for legal custody and physical placement, in case a divorce or legal separation is granted or a marriage annulled.
(2)
Limitations on court approval.
(a)
A court may not approve a stipulation for child support or family support unless the stipulation provides for payment of child support determined in a manner consistent with s. 767.511 or 767.89.
(am)
A court may not approve a stipulation for expressing child support or family support as a percentage of the payer's income unless all of the following apply:
1.
The state is not a real party in interest in the action under any of the circumstances specified in s. 767.205 (2) (a).
2.
The payer is not subject to any other order, in any other action, for the payment of child or family support or maintenance.
3.
All payment obligations included in the order, other than the annual receiving and disbursing fee under s. 767.57 (1e) (a), are expressed as a percentage of the payer's income.
(b)
A court may not approve a stipulation for a division of property that assigns substantially all of the property to one of the parties in the action if the other party in the action is in the process of applying for medical assistance under subch. IV of ch. 49 or if the court determines that it can be reasonably anticipated that the other party in the action will apply for medical assistance under subch. IV of ch. 49 within 30 months of the stipulation.
(3)
Approval of stipulation for modifications contingent on future event.
(a)
In this subsection, “future event” means a life event of a party or of the child or a change in the developmental or educational needs of the child.
(b)
A court may approve a stipulation for legal custody and physical placement that includes modifications to legal custody or physical placement upon the occurrence of a specified future event that is reasonably certain to occur within 2 years of the date of the stipulation. A court may not approve a stipulation under this subsection that is based on an anticipated behavior modification of a party.
History:  1971 c. 220; 1977 c. 105; 1979 c. 32 ss. 50, 92 (4); Stats. 1979 s. 767.10; 1985 a. 29; 1987 a. 355; 1993 a. 16; 1993 a. 490 s. 276; 1995 a. 27; 2001 a. 16; 2005 a. 443 ss. 54, 168; Stats. 2005 s. 767.34; 2021 a. 20, 35.
A trial court is not required to give effect to a property division agreement entered into before divorce proceedings are instituted. It should make its own determination of whether the agreement adequately provides for the parties. Ray v. Ray, 57 Wis. 2d 77, 203 N.W.2d 724 (1973).
There are two types of postnuptial agreements: 1) family settlement agreements that contemplate the continuation of the marriage; and 2) separation agreements that are made after separation or in contemplation of separation. The former are presumed binding on the parties under s. 767.255 (3) (L) [now s. 767.61 (3) (L)]. The latter are governed by s. 767.10 [now this section] and constitute a recommendation jointly made by the parties to the court regarding what the judgment should provide. Evenson v. Evenson, 228 Wis. 2d 676, 598 N.W.2d 232 (Ct. App. 1999), 98-0803. See also Van Boxtel v. Van Boxtel, 2001 WI 40, 242 Wis. 2d 474, 625 N.W.2d 284, 99-0341.
An agreement made in contemplation of divorce, entered into after the parties agreed to the divorce, was subject to s. 767.10 [now this section], not s. 767.255 [now s. 767.61]. When a party withdrew the party's consent before court approval, the agreement was unenforceable. Ayres v. Ayres, 230 Wis. 2d 431, 602 N.W.2d 132 (Ct. App. 1999), 98-3450.
A trial court may refuse to incorporate a stipulation in a divorce judgment when a party repudiates the party's consent. A party is free to withdraw from a stipulation until it is incorporated in a judgment, and repudiation may render the stipulation nonexistent. Van Boxtel v. Van Boxtel, 2001 WI 40, 242 Wis. 2d 474, 625 N.W.2d 284, 99-0341.
The specific language of sub. (1) controls stipulations in divorces rather than the general language of s. 807.05. All agreements entered into after a divorce is filed are stipulations subject to sub. (1) and must be approved by the court. Polakowski v. Polakowski, 2003 WI App 20, 259 Wis. 2d 765, 657 N.W.2d 102, 02-1961.
A stipulation under this section is not a contract that would be binding on the parties once entered into, but is only a recommendation to the court. The court need not accept it but has a duty to decide whether that recommendation is a fair and reasonable resolution of the issues that the court wants to adopt. When a court adopts a stipulation, it does so on its own responsibility within its discretion, and the provisions become the court's judgment. Once the court decides to do so, the right of a party to withdraw from the stipulation comes to an end. Hottenroth v. Hetsko, 2006 WI App 249, 298 Wis. 2d 200, 727 N.W.2d 38, 05-1212.
Before approving a stipulation, the circuit court is not required to take evidence and make an investigation in essentially the same manner as if the stipulated matters were contested. Under the facts of this case, it was unnecessary to define the minimum requirements that must be met before a court approves a stipulation. Hottenroth v. Hetsko, 2006 WI App 249, 298 Wis. 2d 200, 727 N.W.2d 38, 05-1212.