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Section 767.59 – Revision of support and maintenance orders

May 14, 2021 | Family Law, Wisconsin

(1) DEFINITION. In this section, “support or maintenance order” means a judgment or order providing for child support under this chapter or 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) , 938.363(2) , or 948.22(7) , for maintenance payments under s. 767.56 , for family support payments under this chapter, or for the appointment of trustees or receivers under s. 767.57(5) .
(1c) COURT AUTHORITY.

(a) On the petition, motion, or order to show cause of either of the parties, the department, a county department under s. 46.215 , 46.22 , or 46.23 , or a county child support agency under s. 59.53(5) if an assignment has been made under s. 48.57(3m) (b) 2. or (3n) (b) 2 , 48.645(3) , 49.19(4) (h) , or 49.45(19) or if either party or their minor children receive aid under s. 48.57(3m) or (3n) or 48.645 or ch. 49, a court may, except as provided in par. (b), do any of the following:

1. Revise and alter a support or maintenance order as to the amount and payment of maintenance or child support and the appropriation and payment of the principal and income of property held in trust.
2. Make any judgment or order on any matter that the court might have made in the original action.
(b) A court may not revise or modify a judgment or order that waives maintenance payments for either party or a judgment or order with respect to final division of property.
(1f) SUPPORT: SUBSTANTIAL CHANGE IN CIRCUMSTANCES.

(a) Except as provided in par. (d), a revision under this section of a judgment or order as to the amount of child or family support may be made only upon a finding of a substantial change in circumstances.
(b) In an action under this section to revise a judgment or order with respect to the amount of child support, any of the following constitutes a rebuttable presumption of a substantial change in circumstances sufficient to justify a revision of the judgment or order:

1. Commencement of receipt of aid to families with dependent children under s. 49.19 or participation in Wisconsin works under ss. 49.141 to 49.161 by either parent since the entry of the last child support order, including a revision of a child support order under this section.
2. Unless the amount of child support is expressed in the judgment or order as a percentage of parental income, the expiration of 33 months after the date of the entry of the last child support order, including a revision of a child support order under this section.
3. Failure of the payer to furnish a timely disclosure under s. 767.54 .
4. A difference between the amount of child support ordered by the court to be paid by the payer and the amount that the payer would have been required to pay based on the percentage standard established by the department under s. 49.22(9) if the court did not use the percentage standard in determining the child support payments and did not provide the information required under s. 46.10(14) (d) , 49.345(14) (d) , 301.12(14) (d) , or 767.511(1n) , whichever is appropriate.
(c) In an action under this section to revise a judgment or order with respect to an amount of child support, any of the following may constitute a substantial change of circumstances sufficient to justify revision of the judgment or order:

1. Unless the amount of child support is expressed in the judgment or order as a percentage of parental income, a change in the payer’s income, evidenced by information received under s. 49.22(2m) by the department or the county child support agency under s. 59.53(5) or by other information, from the payer’s income determined by the court in its most recent judgment or order for child support, including a revision of a child support order under this section.
2. A change in the needs of the child.
3. A change in the payer’s earning capacity.
4. Any other factor that the court determines is relevant.
(d) In an action under this section to revise a judgment or order with respect to child or family support, the court is not required to make a finding of a substantial change in circumstances to change to a fixed sum the manner in which the amount of child or family support is expressed in the judgment or order.
(1k) MAINTENANCE: CHANGE IN COST OF LIVING. In an action under this section to revise maintenance payments, a substantial change in the cost of living for either party or as measured by the federal bureau of labor statistics may be sufficient to support a revision of the amount of maintenance, except that a change in an obligor’s cost of living is not by itself sufficient if payments are expressed as a percentage of income.
(1m) PAYMENT REVISIONS PROSPECTIVE. In an action under sub. (1c) to revise a judgment or order with respect to child support, maintenance payments, or family support payments, the court may not revise the amount of child support, maintenance payments, or family support payments due, or an amount of arrearages in child support, maintenance payments, or family support payments that has accrued, prior to the date that notice of the action is given to the respondent, except to correct previous errors in calculations.
(1r) CREDIT TO PAYER FOR CERTAIN PAYMENTS. In an action under sub. (1c) to revise a judgment or order with respect to child support or family support, the court may grant credit to the payer against support due prior to the date on which the petition, motion, or order to show cause is served for payments made by the payer other than payments made as provided in s. 767.57 or 767.75 , in any of the following circumstances:

(b) The payer shows by documentary evidence that the payments were made directly to the payee by check or money order, and shows by a preponderance of the evidence that the payments were intended for support and not intended as a gift to or on behalf of the child, or as some other voluntary expenditure, or for the payment of some other obligation to the payee.
(c) The payer proves by clear and convincing evidence, with evidence of a written agreement, that the payee expressly agreed to accept the payments in lieu of child or family support paid as provided in s. 767.57 or 767.75 , not including gifts or contributions for entertainment.
(d) The payer proves by documentary evidence that, for a period during which unpaid support accrued, the child received benefits under 42 USC 402(d) based on the payer’s entitlement to federal disability insurance benefits under 42 USC 401 to 433 . Any credit granted under this paragraph shall be limited to the amount of unpaid support that accrued during the period for which the benefits under 42 USC 402(d) were paid.
(e) The payer proves by a preponderance of the evidence that the child lived with the payer, with the agreement of the payee, for more than 60 days beyond a court-ordered period of physical placement. Credit may not be granted under this paragraph if, with respect to the time that the child lived with the payer beyond the court-ordered period of physical placement, the payee sought to enforce the physical placement order through civil or criminal process or if the payee shows that the child’s relocation to the payer’s home was not mutually agreed to by both parents.
(f) The payer proves by a preponderance of the evidence that the payer and payee resumed living together with the child and that, during the period for which a credit is sought, the payer directly supported the family by paying amounts at least equal to the amount of unpaid court-ordered support that accrued during that period.
(2) PERCENTAGE STANDARD REQUIRED; EXCEPTIONS.

(a) Except as provided in par. (b) or (c), if the court revises a judgment or order with respect to child support payments, it shall do so by using the percentage standard established by the department under s. 49.22(9) .
(b) Upon request by a party, the court may modify the amount of revised child support payments determined under par. (a) if, after considering the factors listed in s. 767.511(1m) , the court finds, by the greater weight of the credible evidence, that the use of the percentage standard is unfair to the child or to any of the parties.
(c) If the court revises a judgment or order providing for child support that was entered 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) , the court shall determine child support in the manner provided in s. 49.345(14) or 301.12(14) , whichever is applicable.
(2s) STIPULATION FOR REVISION OF SUPPORT. In an action under sub. (1c), the court may not approve a stipulation for the revision of a judgment or order with respect to an amount of child support or family support unless the stipulation provides for payment of an amount of child support or family support that is determined in the manner required under s. 46.10(14) , 49.345(14) , 301.12(14) , 767.511 , 767.804(3), 767.805(4) , or 767.89 , whichever is appropriate.
(2w) WHEN REVISION EFFECTIVE. A revision of a judgment or order with respect to child support, family support, or maintenance payments has the effect of modifying the original judgment or order with respect to the payments to the extent of the revision from the date on which the order revising the payments is effective. The child support, family support, or maintenance payments modified by the order for revision shall cease to accrue under the original judgment or order from the date on which the order revising the payments is effective.
(3) REMARRIAGE; VACATING MAINTENANCE ORDER. After a final judgment requiring maintenance payments has been rendered and the payee has remarried, the court shall, on application of the payer with notice to the payee and upon proof of the payee’s remarriage, or upon receiving notice from the payee of the payee’s remarriage, as required under s. 767.58(1) (c) , vacate the order requiring the maintenance payments.
(4) REVIEW WHEN THE STATE IS A REAL PARTY IN INTEREST. In any case in which the state is a real party in interest under s. 767.205(2) , the department shall review the support obligation periodically and, if appropriate, petition the court for revision of the judgment or order with respect to the support obligation.
(5) NOTICE OF CHILD SUPPORT INFORMATION. A summons or petition, motion, or order to show cause under this section shall include notification of the availability of information under s. 767.105(2) .

Wis. Stat. ยง 767.59

Amended by Acts 2019 ch, 95,s 28, eff. 8/1/2020.
Amended by Acts 2015 ch, 373,s 107, eff. 10/1/2016.
Amended by Acts 2015 ch, 373,s 106, eff. 10/1/2016.
Amended by Acts 2013 ch, 209,s 6, eff. 4/10/2014.
1971 c. 220; 1977 c. 105 ss. 38, 48, 49; 1977 c. 418; 1979 c. 32 ss. 50, 92 (4); Stats. 1979 s. 767.32; 1981 c. 20 s. 2202 (20) (m); 1981 c. 314 s. 146; 1983 a. 27; 1985 a. 176; 1987 a. 27, 355, 413; 1989 a. 212; 1991 a. 39; 1993 a. 16, 481, 491; 1995 a. 27 s. 9126 (19); 1995 a. 77, 201, 225, 279, 289, 404, 417; 1997 a. 27, 35, 105, 191, 237, 273; 1999 a. 9, 103; 2001 a. 16, 61, 105; 2005 a. 443 ss. 147 to 159, 227, 228; Stats. 2005 s. 767.59; 2007 a. 20.

2005 Wis. Act 443 contains explanatory notes.

The standard for modifying child support orders was significantly changed by 1993 Wis. Act 16.