Badger Lawyer's Family Law Support & Maintenance Information

When you and your spouse and kids all lived together, you shared income and expenses. Now that you are separating, you’ve only got your income, and the expenses aren’t going away. Chances are your expenses, and the costs of raising your kids, are out of proportion to your income. The law provides to ways to equalize the income to expense ratio in a post divorce environment: child support and spousal maintenance.

Check these topics for more information:

When Will A Court Order Child Support? What Will The Court Order?
How Does The Court Determine How Much I Pay?
How Will My Child's Medical Care Be Handled?
I'm Thinking About Changing Jobs or Not Working
Can I Get a Child Support Award Adjusted?
How Do I Pay Child Support?
How Does The Court Determine Whether I Will Get Or Pay Spousal Maintenance?
Who Can Go To Court About Child Support Or Spousal Maintenance?
Can I Get The Amount Of My Support Or Maintenance Changed?
They're Saying I'm Behind In My Support, But I Paid Some Of It. Can I Get a Credit?
My Ex Is Getting Remarried. Do I Have To Keep Paying?

When Will A Court Order Child Support? What Will The Court Order?

The court will order child support when it

approves a stipulation for child support
enters a judgment of annulment, divorce, or legal separation, or
enters an order or a judgment in a paternity action.

The court will order

Either or both parents to pay an amount reasonable or necessary to support the child or children.
One party to claim the child as an exemption on income taxes
Assign obligations for and directing payment of the child’s health care expenses

How Does The Court Determine How Much I Pay?

The court first considers all relevant financial information or other information relevant to each parent’s earning capacity. The court is then supposed to determine who pays what according to the “percentage standard,” a formula created by the Department of Children and Families. The goal of this formula is to consider the income of each parent and the amount of time each parent has with the child to determine support obligation. You can learn more from the Department’s Guide to Setting Child Support Amounts.

The court may deviate from the amounts the formula calls for if the court determines those results are unfair. The court will consider:

The financial resources of the child.
The financial resources of both parents.
Maintenance received by either party.
The needs of each party to stay above the official poverty line.
The needs of any person, other than the child, whom either party is legally obligated to support.
If the parties were married, the standard of living the child would have enjoyed had the marriage not ended.
The desirability that the custodial parent remain in the home as a full-time parent.
The cost of day care if the custodial parent works outside the home,
The value of custodial services performed by the custodial parent if the/she remains in the home.
The award of substantial periods of physical placement to both parents.
Extraordinary travel expenses incurred in exercising the right to periods of physical placement.
The physical, mental, and emotional health needs of the child, including any costs for health insurance.
The child’s educational needs.
The tax consequences to each party.
The best interests of the child.
The earning capacity of each parent, based on each parent’s education, training and work experience and the availability of work in or near the parent’s community.
Any other factors which the court in each case determines are relevant.

The support amount must be expressed as a fixed sum unless the parties have stipulated to expressing the amount as a percentage of the payer’s income.

The court may set up a trust fund for the child if that is in the child’s best interests.

Violation of your visitation rights is not an excuse to stop support payments.

Joint custody does not effect the amount of child support.
How Will My Child’s Medical Care Be Handled?

The court will specifically assign responsibility for and direct the manner of payment of the child’s health care expenses. The court will consider:

Whether a child is covered under a parent’s health insurance policy or plan.
The availability of health insurance to each parent through an employer
The extent of coverage available to a child, and the costs to the parent for the coverage of the child.

The court can order the parent providing health insurance to continue doing so, and the court will order the providing parent to give a health insurance card to the other parent.
I’m Thinking About Changing Jobs or Not Working
That’s fine, but the court can order you to pay child support based on the level of income you could earn. The court can order you to look for a job or participate in an employment training program. If you are still a teen, the court can order you to stay in school.

The law assumes you are able to work full time. If you want to do otherwise, it’s up to you to prove that to the court.
Can I Get a Child Support Award Adjusted?

An order for child support may provide for an annual adjustment in the amount to be paid based on a change in your income (unless your support amount is set as a percentage of your income, in which case the change is automatic). Adjustments cannot be made more than once a year, and will be determined using the formula created by the Department of Children and Families. You and your ex can also stipulate to changes. The order will contain provisions for annual exchanges of financial information.

You may file a motion, petition, or order to show cause for an annual adjustment if:

Your ex refuses to provide the financial information required.
Your income changes, but your ex refuses to sign the stipulation for an adjustment in the amount of support.

The court can order that the changes take effect at a later date if circumstances require. The court can order sanctions if you or your ex fail to comply.
How Do I Pay Child Support?

The old days of handing your ex a check when you picked the kids up on Sunday are gone. Now, all support must be paid through the Wisconsin Support Collections Trust Fund. The law requires support to be withdrawn from your income by your employer, but there are other ways to pay as well, including mailing in a check or online payments. You must pay a $65 annual fee to use the Trust Fund, and no, you don’t have a choice.

If you do not make your payments, the court can take enforcement actions.
How Does The Court Determine Whether I Will Get Or Pay Spousal Maintenance?

The court may grant an order requiring maintenance payments to either party for a limited or indefinite length of time after considering:

The length of the marriage.
The age and physical and emotional health of the parties.
The division of property.
The educational level of each party at the time of marriage and at the time the divorce.
The earning capacity of the party seeking maintenance, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to find appropriate employment.
The feasibility that the party seeking maintenance can become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and, if so, the length of time necessary to achieve this goal.
The tax consequences to each party.
Any mutual agreement made by the parties before or during the marriage where one spouse promises to provide support for the other at a later time, often in recognition of the spouse’s support at the time the promise is made.
The contribution by one party to the education, training or increased earning power of the other.
Such other factors as the court may determine to be relevant.

Who Can Go To Court About Child Support Or Spousal Maintenance?

If a person does not provide for the support and maintenance of his or her spouse or minor child, an action to compel the person to provide support and maintenance may be started by

the person’s spouse
the minor child
the person with legal custody of the child, or
a “nonlegally responsible relative.”

A “nonlegally responsible relative” is a person who:

is connected with a child by blood, marriage or adoption, and
does not have legal custody, and
has assumed responsibility for the child’s care, and
is not in violation of a court order by doing so.

It does not include a relative who only has physical custody of a child during a court-ordered visitation period. (An example might be if a parent left her child with grandma, then never returned. Grandma takes care of the child, feeds and supports it, even though she does not have legal custody. She could bring a court action to get child support from both parents.)

In these actions, the court determines the fixed amount, if any, that the person should reasonably contribute to the support and maintenance of the spouse or child and how the sum shall be paid. The determination may be enforced by contempt proceedings, an account transfer, or other enforcement mechanisms.
Can I Get The Amount Of My Support Or Maintenance Changed?

On the petition, motion, or order to show cause filed by either ex-spouse (or other authorized individual or agency), the court can revise and alter a support or maintenance order, including changing the amount paid, eliminating payment, or changing the apportionments of property held in trust. The court may do anything under its revision power that it could have done during the original divorce action, except it cannot 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.

So that’s what a court can do. How can you figure out what a court will do?

The rule is that the court will only make a change if there has been a “substantial change in circumstances,” which can include

A parent going on a welfare-related program.
The passage of 33 months since the last child support order was entered.
Failure of the payer to furnish a timely disclosure
A difference between the court-ordered payment of child support and the Dept. of Children and Families standard percentages.
A change in the needs of the child.
A change in the payer’s earning capacity.
“Any other factor that the court determines is relevant.”
For maintenance, a substantial change in the cost of living for either party

The judge is required to revise support based on the Dept. of Children & Families percentages, unless the court finds that amount to be unfair.
They’re Saying I’m Behind In My Support, But I Paid Some Of It. Can I Get a Credit?

You can ask the court for a credit against future support payments during a revision proceeding. To get a credit, you have to prove one of these to the judge’s satisfaction:

the payments were made directly to the payee by check or money order,
the payments weren’t meant as a gift,
the payee accepted the money as a payment of support under the order,
the child received federal benefits based on your disability,
the child lived with you for 60 or more days longer than the placement order, with consent,
you and your ex resumed living together.

My Ex Is Getting Remarried. Do I Have To Keep Paying?

Yes, if you’re asking about child support. No, if you are asking about spousal maintenance.

BUT WAIT! This is the law, so of course it isn’t as easy as not writing a check. You can’t just stop paying. You have to apply to the court and provide proof of your ex’s remarriage, and the court then has to order your payments stopped.

Another exception is that if you are behind in payments, you have to keep paying until you are caught up.