Wisconsin Statute 767: Divorce, Custody, Support, and Property

Wisconsin Statute 767 is the chapter of state law that controls every family court case in Wisconsin, including divorce, legal separation, paternity, custody, physical placement, child support, spousal maintenance, property division, relocation, and any later motion to enforce or modify those orders.¹ If a family dispute involves finances, children, or the legal status of a marriage, the rules you’ll be measured against are here.

What Chapter 767 Governs

The statute uses a broad definition of an “action affecting the family.” That category covers divorce, legal separation, annulment, affirming a marriage, paternity, legal custody and physical placement, child support, periodic family support, spousal maintenance, property division, relocation disputes, and motions to enforce or modify any earlier family court order.¹ One chapter, one framework, from the first petition through post-judgment enforcement years later.

Who Can File and Where

To file for divorce in Wisconsin, at least one spouse must have lived in the state for at least six consecutive months immediately before filing. One of the spouses must also have been a resident of the county where the case is filed for at least 30 days before filing.² Legal separation keeps the 30-day county requirement but drops the six-month state residency.

The filing fee for a divorce petition is $184.50 without a request for support or maintenance, or $194.50 when support or maintenance is requested.³ A fee waiver is available if you can’t afford the cost.

Once you file, the other spouse has to be personally served within 90 calendar days. If service doesn’t happen correctly in that window, the court cannot hear the case. Service can be handled by a signed acceptance from the respondent, by a sheriff’s department or private process server, or by any Wisconsin resident over 18 who isn’t a party to the case. Service by publication is a last resort and requires an affidavit confirming the server genuinely tried and could not locate the respondent.⁴

No-Fault Grounds and the 120-Day Waiting Period

Wisconsin is a no-fault state. You don’t prove adultery, abandonment, or any kind of misconduct. Under section 767.315, the court grants a divorce once it finds the marriage is “irretrievably broken,” meaning there’s no reasonable prospect of reconciliation.⁵ If both spouses say the marriage is broken, the court makes that finding after a hearing. If only one spouse says so, the court evaluates whether reconciliation is realistic. When reconciliation looks possible, the court can continue the case 30 to 60 days and suggest counseling, but if either party still maintains the marriage is broken at the follow-up, the finding typically goes through.

Even after that finding, the divorce cannot be finalized until 120 days have passed from the date the respondent was served or from the date a joint petition was filed.⁶ The only way around the wait is an emergency order to protect the health or safety of a spouse or child. Agreement between the parties doesn’t shorten it.

Mediation and Parent Education

If parents disagree about legal custody or physical placement, the court requires at least one mediation session before holding a final hearing or trial on those issues.⁷ Mediation covers placement schedules, custody, and co-parenting communication. It does not cover child support, property, or any financial issues. If the mediator and both parents agree continued mediation would be productive, the trial waits until mediation finishes or ends.

The court can waive mediation when attending would cause undue hardship or endanger a party’s health or safety. Evidence of domestic abuse, battery, or a serious substance abuse problem all weigh toward a waiver.⁷ Only the parents and the mediator attend sessions.

When minor children are involved, the court may also order both parents to complete a program on how divorce affects children. The program can run up to four hours, and completion can be made a condition of the final judgment.⁸ If there’s evidence of domestic abuse, the parents attend separately.

Legal Custody vs. Physical Placement

Chapter 767 treats these as two different things, and people routinely mix them up. Legal custody is the authority to make major decisions about a child’s life, such as healthcare, education, and religious upbringing. Physical placement is the schedule of where the child lives and when. A parent can share legal custody equally while having a minority share of placement time.

The Joint Custody Presumption

Wisconsin law presumes joint legal custody is in the child’s best interest.⁹ The court starts from the position that both parents should share decision-making unless specific evidence pushes against it. Sole legal custody is awarded when evidence shows a pattern of domestic abuse or when a parent is unable or unwilling to take part in joint decisions.

Best-Interest Factors for Placement

Physical placement is set using a list of factors centered on the child’s best interest.¹⁰ The court considers each parent’s wishes, including any parenting plan filed; the child’s wishes, often through a guardian ad litem; whether each parent supports the child’s relationship with the other and whether either has unreasonably interfered; the quality of the child’s relationships with parents, siblings, and other significant people; the amount of time each parent has historically spent with the child and necessary changes going forward; any significant substance abuse problem in a parent, their partner, or the proposed household; the child’s adjustment to home, school, and community; the mental and physical health of each parent, the child, and others in the household; and the criminal history or any domestic abuse, child abuse, or neglect by a parent, their partner, or a household member. The court cannot prefer a parent based on sex or race. The aim is to maximize each parent’s time with the child while keeping the child safe and stable.

Guardian ad Litem

When custody or placement is contested, the court must appoint a guardian ad litem to represent the child’s best interests.¹¹ The GAL investigates the family, interviews parents and the child, checks for domestic abuse, and reports to the court. The court also appoints a GAL whenever it has a special concern about a child’s welfare, even outside contested custody. GAL fees are a real expense: the court sets an initial deposit, the GAL bills hourly, and the judge decides how the fees are split between the parties.

How Child Support Is Calculated

Wisconsin uses a percentage-of-income model. The paying parent owes a fixed percentage of monthly income available for support, scaled to the number of children:¹²

One child: 17%
Two children: 25%
Three children: 29%
Four children: 31%
Five or more: 34%

Income includes wages, salary, interest, and most other earnings. The percentages are the default, but the court can deviate when the standard amount would be unfair to the child or a parent. Deviation factors include each parent’s financial resources, the child’s health and educational needs, child care costs, extraordinary travel expenses tied to placement exchanges, and the standard of living the child would have had if the parents had stayed together.¹³

Shared Placement

When each parent has the child for at least 25% of overnights (roughly 92 nights a year), the court uses a shared-placement formula instead of the straight percentage.¹⁴ It calculates each parent’s obligation based on income, multiplies by 150%, and adjusts for the time the child spends with the other parent. The two figures are offset, and the parent with the larger obligation pays the difference. The approach reflects that both households carry daily costs when placement is meaningfully split.

Variable Costs

Support orders usually address variable costs on top of the base amount. These are expenses beyond day-to-day needs: child care, tuition, extracurricular activities, special needs costs, and similar items. In shared-placement cases, parents commonly split variable costs in proportion to their placement time. The order will say whether parents reimburse each other or pay providers directly.

How Property Gets Divided

Wisconsin presumes an equal split of divisible property. The presumption applies to everything acquired during the marriage, including bank accounts, real estate, retirement funds, vehicles, and debts, regardless of whose name is on the account or title.¹⁵

Property That Stays Out of the Pot

Gifts from someone other than your spouse, inherited assets, and life insurance proceeds received because of a death stay with the individual spouse and aren’t divisible.¹⁵ Commingling is the trap. If you deposit an inheritance into a joint account or use it to pay down a joint mortgage, the tracing gets hard and the asset often loses its protected status.

When the Split Isn’t 50/50

The court can shift away from an equal division after weighing a set of statutory factors.¹⁵ Those include the length of the marriage; each party’s contributions, with homemaking and child care given specific economic value; contribution to the other spouse’s earning power; the parties’ ages, health, and earning capacity; whether the parent with more placement time should stay in the family home; vested and unvested pension and retirement interests; tax consequences; and any written prenuptial agreement, which is generally binding unless its terms are inequitable. Marital misconduct is explicitly off the table. The court cannot punish a spouse with an unequal division because of how they behaved during the marriage.

Retirement Accounts and QDROs

Retirement accounts can’t just be withdrawn and handed over. Dividing a 401(k), pension, or similar plan requires a Qualified Domestic Relations Order, a separate court order telling the plan administrator to transfer a share to the other spouse. Without a valid QDRO, federal law (ERISA) prohibits the plan from distributing assets to a non-participant. For the Wisconsin Retirement System, the QDRO must name the system, specify a single percentage not exceeding 50%, and use the divorce decree date to value the account.¹⁶ Missing the QDRO during the divorce is one of the costliest oversights in property division. Fixing it later adds legal fees and can create tax problems.

When Spousal Maintenance Is Awarded

Maintenance (what most people call alimony) is not automatic. The court may award it for a limited or indefinite period after weighing a statutory list.¹⁷ The key factors are the length of the marriage; each party’s age and physical and emotional health; the education level of each party at marriage and at filing; earning capacity, including work experience and time away from the job market and how long it would take the requesting spouse to become self-supporting; contribution by one spouse to the other’s education, training, or increased earning power; financial arrangements the parties made during the marriage, such as one spouse staying home while the other built a career; and the property division itself, since a larger property award can reduce or eliminate the need for maintenance. Longer marriages tend to produce larger and longer awards.

Tax Treatment

For divorces finalized after December 31, 2018, maintenance payments are neither deductible by the payer nor taxable to the recipient under federal law.¹⁸ The Tax Cuts and Jobs Act ended the old rule where the payer deducted the payments and the recipient reported them as income. If your divorce was finalized before 2019, the old treatment still applies unless a modification agreement opts into the new rule. Maintenance is now more expensive for the payer and worth less in negotiations than it was before 2019.

When Maintenance Ends

A maintenance obligation terminates automatically when either the payer or the recipient dies.¹⁹ It also ends when the recipient remarries. On proof of remarriage, the court vacates the order.²⁰ A recipient who remarries has to notify the court and the paying ex-spouse. The payer’s own remarriage doesn’t affect the obligation.

Changing or Enforcing an Order After Judgment

Modifications

Chapter 767 lets parties come back to court when circumstances change significantly. Child support and maintenance can be revised when there has been a substantial change in circumstances. A significant income change, job loss, serious illness, or a major shift in the cost of living can qualify.²⁰ Two limits matter. The court cannot revise a judgment that waived maintenance entirely, and it cannot reopen a final property division. For physical placement, courts generally won’t consider a change unless at least two years have passed since the prior order, with an exception when the child faces physical or emotional harm under the current arrangement.

Contempt and Enforcement

When a parent or ex-spouse ignores a family court order, the other party can file for contempt. You need to show a valid order existed, the other party knew about it, and they willfully violated it despite being able to comply. Civil contempt is meant to force compliance going forward, and sanctions lift once the violating party does what the order requires. Enforcement tools include fines, makeup parenting time, wage withholding for unpaid support, asset seizure, orders making the violator pay the other side’s attorney fees, and jail in serious or repeated cases. In civil contempt, the person jailed walks out as soon as they comply.

Moving With a Child

If you share placement and want to move 100 or more driving miles from the other parent, you must file a motion with the court seeking permission before relocating with the child.²¹ The motion has to list the proposed new city and state, the move date, the reason for the relocation, a proposed new placement schedule covering school year, summers, and holidays, and a plan for dividing transportation costs. The other parent has until five days before the initial hearing to file an objection and any counterproposal.

If the parents already live more than 100 driving miles apart when one proposes to move, the requirement changes to a 60-day written notice instead of a court motion.²¹ Moving without following these steps can lead the court to order the child’s immediate return and to modify custody or placement against the relocating parent. Acting first and asking permission later almost always backfires here.

1
Wisconsin State Legislature. Wisconsin Code Chapter 767 – Actions Affecting the Family
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Wisconsin State Legislature. Wisconsin Code 767.301 – Residence Requirements
3
Wisconsin Court System. Wisconsin Circuit Court Fee, Forfeiture, Fine and Surcharge Tables
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Wisconsin Court System. Service
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Wisconsin State Legislature. Wisconsin Code 767.315 – Grounds for Divorce and Legal Separation
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Wisconsin State Legislature. Wisconsin Code 767.335 – Waiting Period for Final Hearing or Trial
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Wisconsin State Legislature. Wisconsin Code 767.405 – Family Court Counseling
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Wisconsin State Legislature. Wisconsin Code 767.401 – Program for Children of Divorcing Parents
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Wisconsin State Legislature. Wisconsin Code 767.41(2) – Custody and Physical Placement
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Wisconsin State Legislature. Wisconsin Code 767.41(5) – Custody and Physical Placement
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Wisconsin State Legislature. Wisconsin Code 767.407 – Guardian ad Litem
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Wisconsin State Legislature. Wisconsin Administrative Code DCF 150.03 – Determining the Child Support Obligation
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Wisconsin State Legislature. Wisconsin Code 767.511 – Child Support
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Wisconsin State Legislature. Wisconsin Administrative Code DCF 150.04 – Shared Placement Formula
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Wisconsin State Legislature. Wisconsin Code 767.61 – Property Division
16
Wisconsin State Legislature. Wisconsin Code 40.02(48m) – Qualified Domestic Relations Order
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Wisconsin State Legislature. Wisconsin Code 767.56 – Maintenance
18
Office of the Law Revision Counsel. 26 USC 71 – Alimony and Separate Maintenance Payments (Repealed)
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Wisconsin State Legislature. Wisconsin Code 767.56(2c) – Maintenance Termination
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Wisconsin State Legislature. Wisconsin Code 767.59 – Revision of Judgment or Order
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Wisconsin State Legislature. Wisconsin Code 767.481 – Relocation