From eliminating family support to adopting protections for deployed service-member parents, the Wisconsin Legislature has been busy over the past four years with various family law enactments and revised statutes. In 2021 and early 2022, the legislature enacted the following family-law related legislation: approval of narrowly construed contingent-placement agreements (2021 Wis. Act 20); changes to Wis. Stat. section 757.69 to allow commissioners to preside over final stipulated or default legal separations (2021 Wis. Act 169); newly created Wis. Stat. section 767.333 regarding approval of prejudgment stipulations in divorces and legal separations (2021 Wis. Act 204); a family-law specific rule related to de novo review requests (2021 Wis. Act 205); and revisions to Wis. Stat. section 767.54 regarding exchanges of financial information (2021 Wis. Act 259).
Although the legislation generally has the goal of making family-law proceedings easier and more efficient, lawyers and litigants, including the many people who represent themselves in divorces and related matters, should learn about the changes so as not to unintentionally impede their cases.
Contingent-Placement Agreements – 2021 Wis. Act 20
Until Act 20 took effect on March 28, 2021, court orders, even those based on parties’ stipulations, that changed legal custody or physical placement of a minor child could not be contingent on future events. The Wisconsin Court of Appeals ruled in Koeller v. Koeller1 that circuit court orders had to “embody a sense of contemporaneity in custody determinations.” Furthermore, circuit court judges did not have the power to “order a change in custody that is to take place at some unknown time in the future, upon the occurrence of some stated contingency.”2
Mark R. Fremgen, John Marshall 1990, is a Dane County Circuit Court commissioner. He previously served as a family court commissioner in Winnebago County and as a circuit court commissioner in Jefferson County. He is the past president of the Wisconsin Family Court Commissioner’s Association, past chair of the State Bar of Wisconsin’s Family Law Section, and past chair of the Wisconsin Board of Bar Examiners. He has participated on the Legislative Council Committee to address changes in placement and support and the Governor’s Task Force on changes to OWI/OAR rules and provides training to judges, commissioners, and attorneys on rules of evidence, family law matters, and issues related to guardian ad litem appointments.
Jolene D. Schneider, U.W. 1997 cum laude, is a shareholder with Remley Law S.C., Neenah, representing clients throughout the Fox Valley in divorce and family law matters. She is also a trained mediator and arbitrator. She is a board member of the State Bar of Wisconsin’s Family Law Section and co-chair of its Legislative Committee and a member of the Collaborative Family Law Council of Wisconsin and the Association of Family and Conciliation Courts. She is an editor of the Wisconsin Journal of Family Law.
Paul W. Stenzel, U.W. 1995, practices family law with Hansen & Hildebrand S.C., Milwaukee, with an emphasis on mediation and client-centered problem-solving. He has extensive experience in court and as a mediator. He is a board member of the State Bar of Wisconsin’s Alternative Dispute Resolution Section and the Family Law Section and is a member of the Indian Law Section. He is also a member of the Collaborative Family Law Council of Wisconsin, the Wisconsin Association of Mediators, and the Association of Family and Conciliation Courts. He has testified before the Wisconsin Supreme Court about family law mediation and tribal issues.
Some limits are necessary; court orders predicated on uncertain eventualities for the future invite trouble and future trips to court. One example of an inappropriate court order is the following: “Father’s/mother’s placement time will be restored when they have overcome their addiction to alcohol and are in recovery.”
However, under previous law, even the most amicable parents making very practical and reasonable agreements in anticipation of almost-certain changes not too far in the future were forced to wait and submit a new stipulation.
Act 20 opens the door slightly for some prospective, contingent orders as long as the parties have stipulated and three basic requirements are met: 1) The order must be based on a future life event of a party or a child or a change in the development or educational needs of the child, 2) the future event must be reasonably certain to occur, and 3) the future event will occur within two years. Furthermore, the change cannot be based on “anticipated behavior modification of a party.”3
In addition, the life event cannot be based on completion of any of the following: 1) an anger-management course or therapy, 2) a batterers intervention program, 3) drug or alcohol therapy or treatment, or 4) a term of incarceration for any of a list of crimes related to domestic abuse or violence.
Although there likely will be some court interpretation of the terms “life event” and “reasonably certain,” parties and courts now have the legal support to make anticipatory orders for simple and commonsense situations such as when a child is about to change schools or a parent knows the parent is changing employment.
Commissioners May Preside Over Final Stipulated or Default Legal Separations – 2021 Wis. Act 169
A few years ago, an informal survey of court commissioners throughout Wisconsin revealed that some counties allow the commissioner to handle the final stipulated or default legal separation, whereas other counties do not allow the commissioner to handle the final stipulated or default legal separation. Under former Wis. Stat. section 757.69(1)(p)1., court commissioners could preside over the final stipulated or default divorce, but the statute did not specifically allow the same authority over legal separations.
The two primary forms of changing marital status, legal separation and divorce, are relatively similar. Exceptions to the similarities are some differing jurisdictional requirements, a different standard for the dissolution of the marriage (for example, “broken marriage” in legal separations versus “irretrievably broken” for divorce matters), and no right to change a legal surname. Under the former law, a court commissioner could approve and grant the seemingly more final divorce by agreement or unilaterally after the one-year anniversary following the granting of a legal separation, despite not having the apparent authority to grant the legal separation itself.
As amended by Act 169, the statute now grants court commissioners the authority to preside over final stipulated or default legal separations no differently than over final stipulated or default divorces. This change provides consistency and makes it more likely that judges will have time to address more of the contested matters. Since this authority was granted, court commissioners in Dane County have been able to schedule final stipulated legal separations much sooner in many cases than the circuit court judges’ calendars can accommodate (in most cases it is 120-150 days after the filing of the joint petition or service of the summons), which the family law attorneys and self-represented litigants appreciate.
The statute now grants court commissioners the authority to preside over final stipulated or default legal separations no differently than over final stipulated or default divorces.
Approval of Prejudgment Stipulations in Divorce and Legal Separations – 2021 Wis. Act 204
Act 204 amended Wis. Stat. section 767.35(3) and created Wis. Stat. section 767.333. These provisions codify the ruling in Keller v. Keller4 and create a standard procedure for processing partial agreements intended by parties to finalize some issues during the pendency of a family action. The statutes provide a formal pathway for such stipulations (commonly referred to as Keller agreements) to be presented to the judge for approval and ultimate incorporation as initial (“final”) orders, before entry of final judgment in the case.
Under the common law pursuant to Keller and its progeny, practices varied widely around the state as to whether courts addressed these agreements at all, and if so, whether they could be approved in the absence of any inquiry, creating significant uncertainty as to whether such stipulations could be made and relied on with finality.
Keller agreements can address any category of disputed issue at any stage of a case. For example, a common type of Keller agreement establishes arrangements for legal custody and physical placement. The new law makes clear that if the court considers the proper statutory factors and standards and then finds the agreement is in the best interests of the child,5 the court can adopt its terms as an initial order upon entry.6 In a situation such as this, with arrangements for a child or children solidified, parents can move on to address the financial ramifications of their decisions without fear of the other party repudiating the agreement.
The statute further clarifies that the date of entry of the initial order, not the date of the entry of final judgment, starts the clock for calculating evidentiary burdens for future modification pursuant to the so-called two-year rule.7
Parties also can enter into Keller stipulations relating to financial matters, including child support, maintenance, and property division. The judge can approve such agreements if the terms comply with all applicable statutory requirements and any deviations therefrom, such as the child support guidelines.8
The judge is not required to act on a proposed Keller stipulation within a certain time (or at all) before finalizing the case. However, the statute requires that if the judge wants to address the proposed agreement, the judge must hold a hearing on the record to determine the parties’ understanding and whether the agreement is intended to serve as an initial order.9 The hearing must include the parties and, if the state of Wisconsin is a party, the county child support agency.10 If a guardian ad litem is involved in the case and the agreement implicates custody and placement, the guardian ad litem should also attend. The judge can permit parties to appear at the hearing by telephone or videoconferencing technology, if good cause is shown.11 The statute does not specifically require the court to take testimony.
The law does not appear to permit court commissioners to approve agreements because the statutory language specifically identifies the “judge” as the hearing official (versus the more generic “court”).12
To help ensure that judges address proposed Keller stipulations and that approved agreements are enforceable, attorneys should refrain from submitting Keller agreements as “proposed orders” in a vacuum; instead, they should simultaneously contact the court to request a hearing. However, once the hearing is held, an approved stipulation can be incorporated into a final, initial order for the case.
Finally, the “initial order” procedure is distinguishable from the process to obtain enforceable temporary orders, which courts may enter as before, during the pendency of an action.13 Act 204 took effect on March 20, 2022.
De Novo Review Requests – 2021 Wis. Act 205
De novo hearings occur when one of the parties files a request for a new hearing before a family court judge, typically seeking a “do-over” from the original hearing in front of a family court commissioner. In a de novoreview, the judge hears arguments and receives evidence as if the original hearing never took place. Before the law change, either party had the right to request a de novo review of the family court commissioner’s order or ruling. However, there was no language defining the parameters of the review, the timing of the request, the timely scheduling of the review, or standing to request review.
In response to the lack of statutory guidelines, most counties had adopted rules to address these issues.14 However, local rules varied, sometimes significantly. The inconsistencies in de novo review procedures from county to county created difficulties for self-represented litigants, who make up a majority of family court litigants, and for attorneys. In fact, before the law changed, there were more than 27 different versions of local court de novo rules in the state’s 72 counties.
Act 205 was designed to create consistency as to the de novo review process in family court. There are now four distinct guidelines: 1) The request for de novo review must be made no later than 20 days after the oral ruling (or after mailing of the written order if the decision or order was not given orally at the hearing); 2) a party must have been present at the hearing to have standing to request a de novo review; 3) the notice requesting a de novo review will not stay the order (absent further judicial stay); and 4) the circuit court must hold a de novo review no later than 60 days after the date of the filing of the request.15
The law now requires that all financial information be exchanged “no later than May 1, unless otherwise agreed upon in writing by the parties.”
Exchanges of Financial Information – 2021 Wis. Act 259
The legislature significantly clarified and enhanced the annual exchange of financial information through the passage of Act 259. This legislation amended Wis. Stat. section 767.54, which applies in cases involving the payment of family support, child support, and maintenance.16
Whereas the previous version only required exchange of information “annually,” the law now requires that all financial information be exchanged “no later than May 1, unless otherwise agreed upon in writing by the parties.”17 The information that must be exchanged includes 1) a complete copy of the parties’ state and federal income tax returns including all W-2 and 1099 forms; 2) the parties’ final paystubs from all sources of employment for the previous calendar year; 3) the parties’ most recent paystubs, from all sources of employment, showing both year-to-date gross and net income from the current year; and 4) ”any other documentation of a party’s income” from all sources of employment for the previous year.18
The statute now also specifically addresses which information a party can properly redact from the exchanged documents to limit personally identifying information that is not needed to identify the income of a party; such information includes account numbers and sensitive information pertaining to subsequent spouses and children.19
Finally, the statute confirms that the information to be exchanged is subject to the confidentiality provisions that apply to financial disclosure statements under Wis. Stat. section 767.127.20 The effective date of this revision was April 17, 2022 (after the 2021 tax filing deadline), and it is likely the new exchange procedures will be used more widely beginning in spring 2023 with “new” cases. Families who finalized their arrangements under the prior version of the statute probably will be unaware of the statutory updates and might need to be informed of the changes.
Conclusion
The legislative enactments discussed above provide clarity and uniformity across cases and throughout Wisconsin in the procedures for de novo hearings, stipulated legal separations, Keller agreements, and exchanges of financial information. By expressly permitting limited contingent placement orders and enforceable Keller agreements, the new laws encourage families to reach agreement and conclude issues more quickly. All the new statutory provisions will benefit families, attorneys, and courts in reducing confusion and making standards easily identifiable for all concerned.
Endnotes
1 Koeller v. Koeller, 195 Wis. 2d 660, 536 N.W.2d 216 (Ct. App. 1995).
2 Id.
3 Wis. Stat. §. 767.34(3)(b).
4 214 Wis. 2d 32, 571 N.W.2d 182 (Ct. App. 1997) (holding that stipulation on custody and placement resolved those issues with finality, once approved by the court for incorporation into a final judgment of divorce).
5 See Wis. Stat. § 767.41.
6 Wis. Stat. § 767.333.
7 Wis. Stat. § 767.333(2)(b); see also Wis. Stat. § 767.451.
8 Wis. Stat. § 767.333.
9 Wis. Stat. § 767.333(6)(a).
10 Id. Though not spelled out, the hearing should also include the guardian ad litem if one has been previously appointed pursuant to Wis. Stat. section 767.407.
11 Wis. Stat. § 767.407(6)(b).
12 Wis. Stat. § 767.407(6).
13 See Wis. Stat. § 767.225.
14 SeeNehls v. Nehls,2012 WI App 85, 343 Wis. 2d 499, 819 N.W.2d 335.
15 Wis. Stat. § 767.17.
16 Wis. Stat. § 767.54(1). Maintenance cases were specifically added to the statute.
17 Id.
18 Id.
19 Wis. Stat. § 767.54(2).
20 Wis. Stat. § 767.54(3).
» Cite this article: 96 Wis. Law. 18-22 (April 2023).
