2021 - 2022 LEGISLATURE
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2021 ASSEMBLY BILL 104
February 18, 2021 - Introduced by Representatives BROOKS, BRANDTJEN, BOWEN,
DITTRICH, GUNDRUM, MOSES, MURSAU, SKOWRONSKI, TUSLER and WICHGERS,
cosponsored by Senators JACQUE and BALLWEG. Referred to Committee on
Family Law.
1 AN ACT to repeal 767.225 (1) (e); and to amend 565.30 (5m) (a), 767.34 (1),
2 767.35 (1) (c), 767.511 (6m), 767.531 (intro.), 767.54, 767.553 (1) (a), 767.59 (1),
3 767.61 (3) (i), 767.71 (1) (a), 767.73 (1) (a), 767.75 (1) (b), 767.77 (1) and 767.78
4 (1) of the statutes; relating to: calculating the child support obligation and
5 elimination of family support.
Analysis by the Legislative Reference Bureau
This bill reorganizes certain aspects of the Department of Children and
Families administrative rules relating to commonly used child support formulas in
order to reflect current practices. The manner of calculating the amount of child
support and the applicable formulas are not changed in the bill. The bill also makes
statutory changes to eliminate future family support orders.
Under current DCF rules, the child support formula that applies in a shared
physical placement arrangement is included among the formula for “special
circumstances.” The bill moves the formula that applies in a shared physical
placement arrangement to a new section of DCF's rules before all of the child support
formula variations. The bill also specifies that, under DCF rules, the designated
percentage that applies in a nonshared physical placement arrangement applies
only if the conditions for the shared placement formula do not apply.
The bill creates a new defined term under the DCF rules for a “designated
percentage,” to mean the applicable percentage of a parent's monthly income, or
adjusted monthly income, that is available for child support. The “designated
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ASSEMBLY BILL 104
percentage” phrase is then used within the calculations for a shared-placement
arrangement and circumstances of a serial-family parent, split-placement parents,
and combinations of special circumstances.
The bill retitles the applicable DCF administrative code chapter from “Child
Support Percentage of Income Standard” to “Child Support Standard.” The bill also
removes the definition of the term “standard” or “percentage standard” from DCF's
rules and moves a Note appended to the definition of “standard” in the DCF rules to
the new definition of the “designated percentage.” The Note specifies that the
standard is based on national studies and is adjusted downward to reflect costs
incurred by a parent when a child is in the parent's care and costs to maintain a
child's health insurance.
The bill moves the listing of the designated percentage amounts, and the
standard that applies to a request for a deviation from the percentage standard, to
be placed with and follow the shared physical placement arrangement formula under
DCF's rules. The new section is titled, “Determining the child support obligation.”
The bill also updates cross-references within the DCF rules to reflect the
reorganization of the shared physical placement and designated percentage
provisions.
In addition to the administrative code changes, the bill also changes the
statutes to eliminate family support orders, providing that no new family support
orders may be issued beginning on the bill's effective date. Family support orders
issued before the bill's effective date would remain in effect and be subject to all
provisions in current law that apply to family support orders, including provisions
relating to calculating interest and the duties of DCF regarding application of
payments received.
Under current law, family support is an alternative that combines the
component parts of child support and maintenance in a single obligation, and is
based upon the same criteria that apply to orders for child support and maintenance.
Family support payments are treated as maintenance payments for federal and state
tax purposes, so that the family support payment amount is deductible to the
payor-spouse, and taxable to the recipient-spouse. However, under s. 11051 of the
federal Tax Cuts and Jobs Act of 2017, maintenance payments are no longer
deductible by the payor-spouse and are not included in income to the
recipient-spouse. This change applies to any divorce or separation instrument
executed after December 31, 2018. Divorce and separation instruments modified
after the December 31, 2018, effective date are subject to prior law unless the
modification expressly provides that the modified agreement be governed by the new
law.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
1 SECTION 1. 565.30 (5m) (a) of the statutes is amended to read:
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1 565.30 (5m) (a) The administrator shall report to the department of children
2 and families the name, address, and social security number of each winner of a
3 lottery prize that is payable in installments and the name, address, and social
4 security number or federal income tax number of the person who has been assigned
5 a lottery prize that is payable in installments. Upon receipt of the report, the
6 department of children and families shall certify to the administrator whether any
7 payee or assignee named in the report is obligated to provide child support, spousal
8 support, maintenance, or family support under s. 767.531, 2019 stats., or s. 767.001
9 (1) (f) or (g), 767.225, 767.34, 767.511, 767.531, 767.56, 767.804 (3), 767.805 (4),
10 767.85, 767.863 (3), 767.89 (3), 767.893 (2m), or 948.22 (7) or ch. 769 and the amount
11 required to be withheld from the lottery prize under s. 767.75. Subject to par. (b), the
12 administrator shall withhold the certified amount from each payment made to the
13 winner or assignee and remit the certified amount to the department of children and
14 families.
15 SECTION 2. 767.225 (1) (e) of the statutes is repealed.
16 SECTION 3. 767.34 (1) of the statutes is amended to read:
17 767.34 (1) AUTHORITY. The parties in an action for an annulment, divorce, or
18 legal separation may, subject to the approval of the court, stipulate for a division of
19 property, for maintenance payments, for the support of children, for periodic family
20 support payments under s. 767.531, or for legal custody and physical placement, in
21 case a divorce or legal separation is granted or a marriage annulled.
22 SECTION 4. 767.35 (1) (c) of the statutes is amended to read:
23 767.35 (1) (c) To the extent that it has jurisdiction to do so, the court has
24 considered and approved or made provision for legal custody and physical placement,
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1 the support of any child of the marriage entitled to support, the maintenance of either
2 spouse, the support of the family under s. 767.531, and the disposition of property.
3 SECTION 5. 767.511 (6m) of the statutes is amended to read:
4 767.511 (6m) PILOT PROGRAM ON INTEREST RATE. The department may conduct
5 a pilot program under which the interest that accrues on the amounts in arrears
6 specified in sub. (6) and in s. 767.531, 2019 stats., and in sub. (6) shall be at the rate
7 of 0.5 percent per month instead of 1 percent per month. If the department conducts
8 a pilot program under this subsection, the program may begin at any time after
9 December 31, 2013, and the new rate shall apply to interest that accrues during that
10 time.
11 SECTION 6. 767.531 (intro.) of the statutes is amended to read:
12 767.531 Family support. (intro.) The court may make a financial order
13 designated “family support" as a substitute for child support orders under s. 767.511
14 and maintenance payment orders under s. 767.56. Subject to s. 767.511 (6m), a party
15 ordered to pay family support under this section, 2019 stats., shall pay simple
16 interest at the rate of 1 percent per month on any amount in arrears that is equal to
17 or greater than the amount of child support due in one month. Subject to s. 767.511
18 (6m), if the party no longer has a current obligation to pay child support, interest at
19 the rate of 1 percent per month shall accrue on the total amount of child support in
20 arrears, if any. Interest under this section is in lieu of interest computed under s.
21 807.01 (4), 814.04 (4), or 815.05 (8) and is paid to the department or its designee
22 under s. 767.57. Except as provided in s. 767.57 (1m), the department or its designee
23 shall apply all payments received for family support ordered under this section, 2019
24 stats., as follows:
25 SECTION 7. 767.54 of the statutes is amended to read:
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1 767.54 Required exchange of financial information. In an action in
2 which the court has ordered a party to pay child or family support under s. 767.225,
3 2019 stats., or s.767.531, 2019 stats., or child support under this chapter, including
4 an action to revise a judgment or order under s. 767.59, the court shall require the
5 parties annually to exchange financial information. Information disclosed under
6 this section is subject to s. 767.127 (3). A party who fails to furnish information
7 required by the court under this section may be proceeded against for contempt of
8 court under ch. 785. If the court finds that a party has failed to furnish information
9 required under this section, the court may award to the party bringing the action
10 costs and, notwithstanding s. 814.04 (1), reasonable attorney fees.
11 SECTION 8. 767.553 (1) (a) of the statutes is amended to read:
12 767.553 (1) (a) An order for child or family support under this chapter may
13 provide for an annual adjustment in the amount to be paid based on a change in the
14 payer's income if the amount of child or family support is expressed in the order as
15 a fixed sum and based on the percentage standard established by the department
16 under s. 49.22 (9). No adjustment may be made under this section unless the order
17 provides for the adjustment.
18 SECTION 9. 767.59 (1) of the statutes is amended to read:
19 767.59 (1) DEFINITION. In this section, “support or maintenance order" means
20 a judgment or order providing for child support under this chapter or s. 48.355 (2)
21 (b) 4. or (4g) (a), 48.357 (5m) (a), 48.363 (2), 938.183 (4), 938.355 (2) (b) 4. or (4g) (a),
22 938.357 (5m) (a), 938.363 (2), or 948.22 (7), for maintenance payments under s.
23 767.56, for family support payments under this chapter s. 767.531, 2019 stats., or for
24 the appointment of trustees or receivers under s. 767.57 (5).
25 SECTION 10. 767.61 (3) (i) of the statutes is amended to read:
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ASSEMBLY BILL 104 SECTION 10
1 767.61 (3) (i) The amount and duration of an order under s. 767.56 granting
2 maintenance payments to either party, any order for periodic family support
3 payments under s. 767.531, 2019 stats., and whether the property division is in lieu
4 of such payments.
5 SECTION 11. 767.71 (1) (a) of the statutes is amended to read:
6 767.71 (1) (a) In this section, “support order" means an order for child support
7 under this chapter or s. 948.22 (7), an order for family support under this chapter,
8 2019 stats., or a stipulation approved by the court for child support under this
9 chapter.
10 SECTION 12. 767.73 (1) (a) of the statutes is amended to read:
11 767.73 (1) (a) In this subsection, “support payment" means a payment ordered
12 for support under s. 767.521, support under s. 767.501, child support or family
13 support under s. 767.225, family support under s. 767.531, 2019 stats., revised child
14 or family support under s. 767.59, or child support under s. 767.511, 767.804 (3),
15 767.805 (4), 767.85, 767.863 (3), 767.89, or 948.22 (7) or ch. 769.
16 SECTION 13. 767.75 (1) (b) of the statutes is amended to read:
17 767.75 (1) (b) “Payment order" means an order for child support under this
18 chapter, for maintenance payments under s. 767.225 or 767.56, for family support
19 under this chapter, 2019 stats., for costs ordered under s. 767.804 (3), 767.805 (4), or
20 767.89 (3), for support by a spouse under s. 767.001 (1) (f), or for maintenance
21 payments under s. 767.001 (1) (g); an order for or obligation to pay the annual
22 receiving and disbursing fee under s. 767.57 (1e) (a); an order for a revision in a
23 judgment or order with respect to child support, maintenance, or family support
24 payments under s. 767.59; a stipulation approved by the court for child support
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ASSEMBLY BILL 104 SECTION 13
1 under this chapter; and an order for child or spousal support entered under s. 948.22
2 (7).
3 SECTION 14. 767.77 (1) of the statutes is amended to read:
4 767.77 (1) DEFINITION. In this section, “payment obligation" means an
5 obligation to pay support under s. 48.355 (2) (b) 4. or (4g) (a), 48.357 (5m) (a), 48.363
6 (2), 938.183 (4), 938.355 (2) (b) 4. or (4g) (a), 938.357 (5m) (a), or 938.363 (2), support
7 or maintenance under s. 767.501, child support, family support, or maintenance
8 under s. 767.225, child support under s. 767.511, maintenance under s. 767.56,
9 family support under s. 767.225, 2019 stats., or s. 767.531, 2019 stats., attorney fees
10 under s. 767.241, child support or a child's health care expenses under s. 767.85,
11 paternity obligations under s. 767.804 (3), 767.805 (4), 767.863 (3), or 767.89, support
12 arrearages under s. 767.71, or child or spousal support under s. 948.22 (7).
13 SECTION 15. 767.78 (1) of the statutes is amended to read:
14 767.78 (1) DEFINITION. In this section, “financial obligation" means an
15 obligation for payment incurred under s. 767.531, 2019 stats., or s. 48.355 (2) (b) 4.
16 or (4g) (a), 48.357 (5m) (a), 48.363 (2), 767.225, 767.241, 767.511, 767.531, 767.56,
17 767.61, 767.71, 767.804 (3), 767.805 (4), 767.85, 767.863 (3), 767.89, 938.183 (4),
18 938.355 (2) (b) 4. or (4g) (a), 938.357 (5m) (a), or 938.363 (2).
19 SECTION 16. Chapter DCF 150 (title) of the administrative code is amended to
20 read:
21 CHAPTER DCF 150
22 CHILD SUPPORT PERCENTAGE OF
23 INCOME STANDARD
24 SECTION 17. DCF 150.02 (9m) of the administrative code is created to read:
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ASSEMBLY BILL 104 SECTION 17
1 DCF 150.02 (9m) “Designated percentage” means the applicable percentage
2 of a parent's monthly income available for child support or adjusted monthly income
3 available for child support under s. DCF 150.035 (2) or 150.04 (4) or (5).
4 SECTION 18. DCF 150.02 (19) of the administrative code is amended to read:
5 DCF 150.02 (19) “Low-income payer" means a payer for whom the court uses
6 the monthly support amount provided in the schedule in Appendix C based on the
7 court's determination that the payer's total economic circumstances limit his or her
8 ability to pay support at the level provided under s. DCF 150.03 (1) 150.035 and the
9 payer's income available for child support is at a level set forth in the schedule in
10 Appendix C.
11 SECTION 19. DCF 150.02 (26) of the administrative code is amended to read:
12 DCF 150.02 (26) “Shared-placement payer" means the shared-placement
13 parent who is determined to owe a greater support amount than the other parent
14 under the calculation in s. DCF 150.04 (2) (b) 150.035 (1).
15 SECTION 20. DCF 150.02 (28) of the administrative code is repealed.
16 SECTION 21. DCF 150.02 (28) Note of the administrative code is renumbered
17 DCF 150.02 (9m) Note.
18 SECTION 22. DCF 150.03 (1) (intro.) of the administrative code is renumbered
19 DCF 150.03 (1) and amended to read:
20 DCF 150.03 (1) DETERMINING INCOME AVAILABLE FOR CHILD SUPPORT USING THE
21 PERCENTAGE STANDARD. The court shall determi