Current through August 26, 2024
(1) DETERMINING INCOME AVAILABLE FOR CHILD
SUPPORT. The court shall determine a parent's monthly income available for
child support by adding together the parent's annual gross income or, if
applicable, the parent's annual income modified for business expenses; the
parent's annual income imputed based on earning capacity; the parent's annual
income imputed when no or little information is known; and the parent's annual
income imputed from assets, and dividing that total by 12. This may be done by
completing the worksheet in Appendix B, although use of the worksheet for this
purpose is not required.
(2)
DETERMINING INCOME MODIFIED FOR BUSINESS EXPENSES. In determining a parent's
monthly income available for child support under sub. (1), the court may adjust
a parent's gross income as follows:
(a) Adding
wages paid to dependent household members.
(b) Adding undistributed income that meets
the criteria in s.
DCF 150.02 (13)
(a) 9. and that the court determines is not
reasonably necessary for the growth of the business. The parent shall have the
burden of proof to show that any undistributed income is reasonably necessary
for the growth of the business.
(c)
Reducing gross income by the business expenses that the court determines are
reasonably necessary for the production of that income or operation of the
business and that may differ from the determination of allowable business
expenses for tax purposes.
(3) INCOME IMPUTED BASED ON EARNING CAPACITY.
If a parent is voluntarily unemployed or underemployed without good cause, the
court may impute income to the parent based on the parent's earning capacity. A
parent's incarceration may not be treated as voluntary unemployment for
purposes of establishing or modifying a child support order. In determining a
parent's earning capacity, the court may consider the following factors:
(a) The parent's recent work
experience.
(b) The parent's
earnings during previous periods of employment.
(c) The parent's job skills and
training.
(d) The parent's
education.
(e) A vocational
evaluation of the parent, if available.
(f) The parent's diligence in seeking
appropriate employment.
(g)
Employment barriers the parent faces, such as homelessness, lack of a driver's
license, alcohol or other drug dependence, or immigration status.
(h) The parent's criminal history and history
of incarceration.
(i) If the parent
is unemployed, whether the unemployment is due to the parent's job-related
misconduct.
(j) If the parent is
the caretaker of a child common to the parties, the relationship between the
parent's earning capacity and the child care costs that would be incurred if
the parent obtained paid employment.
(k) If the parent is the caretaker of a child
common to the parties who has unusual emotional or physical needs, whether the
child requires that parent's presence in the home.
(l) The parent's participation in reasonable
career or occupational training to establish basic skills or enhance earning
capacity.
(m) The parent's
age.
(n) The location of the
parent's residence.
(o) The
parent's receipt of Wisconsin Works cash assistance under s.
49.148, Stats.
(p) The parent's receipt of Supplemental
Security Income under 42 USC
1381 to
1383f.
(q) Any other factor that the court
determines is relevant.
(3m) INCOME IMPUTED WHEN NO OR LITTLE
INFORMATION IS KNOWN. If a parent's income is unknown and evidence is presented
that due diligence has been exercised to ascertain information on the parent's
actual income or ability to earn and no or little information is known, the
court may impute the income to the parent that an individual would earn by
working 10 to 35 hours per week for the higher of the federal minimum hourly
wage under 29 USC
206 (a) (1) or the state
minimum hourly wage under s.
104.035 (1) (a), Stats. The court may use any factors in
sub. (3), if known, to determine the number of hours to impute.
(4) DETERMINING INCOME IMPUTED FROM ASSETS.
(a) The court may impute a reasonable earning
potential to a parent's assets if the court finds both of the following:
1. The parent has ownership and control over
any real or personal property, including but not limited to, life insurance,
cash and deposit accounts, stocks and bonds, business interests, net proceeds
resulting from worker's compensation or other personal injury awards not
intended to replace income, and cash and corporate income in a corporation in
which the parent has an ownership interest sufficient to individually exercise
control and the cash or corporate income is not included as gross income under
s.
DCF 150.02(13).
2. The parent's assets are underproductive
and at least one of the following applies:
a.
The parent has diverted income into assets to avoid paying child
support.
b. Income from the
parent's assets is necessary to maintain the child or children at the standard
of living they would have had if they were living with both parents.
(b) The court shall
impute income to assets by multiplying the total net value of the assets by the
current 6-month treasury bill rate or any other rate that the court determines
is reasonable and subtracting the actual income from the assets that was
included as gross income under s.
DCF 150.02(13).
(5) ADJUSTMENT FOR CHILD'S SOCIAL SECURITY.
(a) The court may consider a child's benefit
under 42 USC
402 (d) based on a parent's
entitlement to federal disability or old-age insurance benefits under
42 USC
401 to
433 and adjust a payer's child
support obligation by subtracting the amount of the child's benefit received by
the payee. In no case may this adjustment require the payee to reimburse the
payer for any portion of the child's benefit. If the payer is receiving the
child's benefit, the support amount is either the designated percentage applied
to the payer's income or the amount of the child's benefit, whichever is
greater.
(b) If the
shared-placement guidelines under s.
DCF 150.035(1) apply, the child's benefit is split
between the parents in proportion to the amount of time the child spends with
each parent. Add the proportion of the child's benefit that represents the
proportion of time the child spends with the parent not receiving the benefit
to the support obligation of the parent who is receiving the child's benefit.
Support shall be determined as follows:
1.
Determine each parent's monthly income available for child support under sub.
(1). If a parent has one or more previous child support obligations, determine
the parent's monthly income available for child support adjusted for the
previous obligations as provided in s.
DCF 150.04(1). Include the parent's federal disability
or old age insurance benefits under
42 USC
401 to
433 in that parent's income, but
do not include the child's benefit under
42 USC 402
(d) in either parent's income.
2. Multiply each parent's monthly income
available for child support by the designated percentage.
3. Multiply each amount determined under
subd. 2. by 150%.
4. Multiply the
amount determined for each parent in subd. 3. by the proportion of time that
the child spends with the other parent.
5. Multiply the amount of the child's benefit
by the proportion of the time the child spends with the parent who is not
receiving the child's benefit.
6.
Add the amount in subd. 5. to the child support obligation calculated in subd.
4. for the parent who is receiving the child's benefit.
7. Offset the resulting amounts against each
other. The parent with the greater child support obligation is the
shared-placement payer. The shared-placement payer shall pay either the lesser
of the amount determined in this subsection or the amount determined using the
designated percentage.
Note: The following example shows how the child
support obligation is determined for a shared-placement parent who receives a
child's benefit under 42 USC
402 (d):
Assumptions:
Two children
Parent A has placement 146 days or 40% of the year.
Parent B has placement 219 days or 60% of the year.
Parent A's current monthly income available for support is
$2000.
Parent B's current monthly income available for support is
$2500
Parent B receives a $1000 per month child's benefit under 42 USC 402(d) based on Parent A's entitlement to federal disability or old-age
insurance benefits under 42 USC 401 to 433.
Calculation:
|
Calculation: | | |
|
Parent A |
Parent B
|
|
Monthly income available for child support
|
$2,000 |
$2,500 |
|
Monthly income available for child support X
percentage standard for two children |
$2,000 X 25% = $500 |
$2,500 X 25% = $625
|
|
Amount X 150% |
$500 X 150% = $750 |
$625 X 150% = $937.50 |
|
Amount X proportion of time spent with other
parent |
$750 X 60% = $450 |
$937.50 X 40% = $375 |
|
Child's benefit X proportion of time spent with
parent not receiving the child's benefit | |
$1,000 X 40% = $400
|
|
Add last two amounts | |
$375 + $400 = $775
|
|
Offset | |
$775 - $450 = $325 (Parent B)
|
(5m) ADJUSTMENT FOR ADOPTION ASSISTANCE. The
court may consider adoption assistance received by either parent under s.
48.975 (3) (a),
Stats. If the shared placement guidelines under s.
DCF 150.035(1) apply, the adoption assistance should be
split between the parents in proportion to the amount of time the child spends
with each parent. Add the proportion of the adoption assistance that represents
the proportion of time the child spends with the parent not receiving the
adoption assistance to the support obligation of the parent who is receiving
the adoption assistance. Support shall be determined as follows:
(a) Determine each parent's monthly income
available for child support under s.
DCF 150.03(1). If a parent has one or more previous
child support obligations, determine the parent's monthly income available for
child support adjusted for the previous obligations as provided in s.
DCF 150.04(1). Do not include the adoption assistance
under s. 48.975 (3) (a),
Stats., in either parent's income.
(b) Multiply each parent's monthly income
available for child support by the designated percentage.
(c) Multiply each amount determined under
par. (b) by 150%.
(d) Multiply the
amount determined for each parent in par. (c) by the proportion of time that
the child spends with the other parent.
(e) Multiply the amount of the adoption
assistance by the proportion of the time the child spends with the parent who
is not receiving the child's benefit.
(f) Add the amount in par. (e) to the child
support obligation calculated in par. (d) for the parent who is receiving the
adoption assistance.
(g) Offset the
resulting amounts against each other. The parent with the greater child support
obligation is the shared-placement payer. The shared-placement payer shall pay
the lesser of the amount determined in this subsection or the amount determined
using the designated percentage.
Note: Section
46.10 (14) (cm) 1, Stats., caps the amount that adoptive
parent/s may be ordered to pay for child support to the amount of the adoption
assistance.
(6)
DETERMINE CHILD SUPPORT BEFORE MAINTENANCE. If a payer will have obligations
for both child support and maintenance to the same payee, the court shall
determine the payer's child support obligation under this chapter before
determining the payer's maintenance obligation under s.
767.56, Stats.
(7) CALCULATION OF FAMILY SUPPORT. When the
designated percentage is used to calculate support under s.
767.531, 2019 Stats., the amount
determined shall be increased by the amount necessary to provide a net family
support payment, after state and federal income taxes are paid, of at least the
amount of a child support payment under the standard.
(8) EXPRESSION OF ORDERED SUPPORT. The
support amount shall be expressed as a fixed sum unless the parties have
stipulated to expressing the amount as a percentage of the payer's income and
the requirements under s.
767.34 (2) (am) 1 to 3., Stats., are satisfied.
(9) TRUST. The court may protect and promote
the best interests of the minor children by setting aside a portion of the
child support that either party is ordered to pay in a separate fund or trust
for the support, education, and welfare of such children.
(10) DEPENDENCY EXEMPTION. The court may
order the payee to waive the federal dependency exemption provided that the
payee's execution of the exemption waiver is made contingent on the receipt of
child support payments.
Sub. (11) is renumbered to DCF 150.035(3) and amended eff.
12-1-21 by 2021 Wis. Act 35.
