Journal Of Family Law: Family Law Legislation

• Lisa Derr
• November 5, 2012
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 Family Law Legislation

Legislative debate on family law legislation has been dominated by two contradictory measures to revise the way child support is calculated. As detailed in the last issue, the choice is between revisions to Chapter DWD 40 (supported by the Family Law Section), and a pair of companion bills-Assembly Bill 250 and Senate Bill 156 that would establish the child support formula by statute (opposed by the Family Law Section).

DWD 40 Revisions-Clearinghouse Rule 03-022

In late June, the Department of Workforce Development submitted its proposed revisions to the Legislature as Clearinghouse Rule 03-022.

This submission triggered a legislative review process that is continuing as of this writing.1 In the Senate, the proposed rule was referred to committee2, which held a public hearing on July 22, 2003. The committee heard a great deal of testimony expressing concern about the low income provisions that were advanced by the DWD.3 As a result, it requested that DWD modify the low-income payer provisions.

As it developed modifications to the low-income payer provisions in response to the Senate Committee’s request, the DWD considered input from a variety of sources including the Committee of Chief Judges and the Wisconsin Council on Children and Families.The low income revisions by DWD incorporate a schedule with reduced percentage rates similar to what was originally recommended by the Advisory Committee. Use of the schedule is permissive.

For payers with income below approximately 125% of the federal poverty guidelines, if the court determines that the payer’s total economic circumstances limit his or her ability to pay support at the level determined using the full percentage rates, the new proposal provides a schedule with reduced percentage rates to determine child support.If a payer’s monthly income is below approximately 75% of the federal poverty guidelines, the court may set an order at an amount appropriate for the payer’s total economic circumstances. This amount may be lower than the lowest support amount in the schedule, which is $64 per month.

For income between approximately 75% and 125% of the federal poverty guidelines, the percentage rates in the schedule gradually increase as income increases. The full percentages rates apply to payers with income greater than or equal to approximately 125% of the federal poverty guidelines.

The modified proposed rule also provides that when income is imputed based on earning capacity, the court shall consider a parent’s history of child care responsibilities as the parent with primary placement, along with the other factors of the parent’s education, training and work experience, earnings during previous periods, physical and mental health, and the availability of work in or near the parent’s community. Imputation of income is permissive under the modified proposed rule.

In addition, if the court is imputing income at minimum wage because information on the parent’s income or ability to earn is unavailable, the court may impute income that a person would earn by working 35 hours per week (rather than 40) for the federal minimum hourly wage.

The Department (DWD) resubmitted the modified low-income provisions to the two legislative committees on August 28, 2003. The committees will then have 10 working days (or until September 12, 2003) to review the modifications and to approve them, reject them or request additional modifications.

In the Assembly, the rule was referred to the Committee on Children and Families, which held a public hearing on August 7, 2003. John Short testified that the Family Law Section would support whatever reasonable compromise could be worked out. As of this writing, the Assembly committee has not yet requested any modifications; however, it gets its own chance to independently review the modifications requested by the Senate committee and is free to request modifications during the review period.

Assembly Bill 250 and Senate Bill 156

Assembly Bill 250 received a public hearing in the same committee that is reviewing CR 03-0224 on August 7, 2003.

Proponents of the bill stressed the need for uniform, predictable child support orders and a minimum of court discretion. They argued for a dramatic reduction in child support orders for high-income payers on the ground that child support should address only the basic economic needs of the child. Proponents also suggested that the Legislature had been too lax in dealing with child support issues and that it should consider either establish the child support formula in the statutes or review the child support formula through regular Legislative Council studies, rather than by committees appointed by DWD, the administrative agency in charge of child support enforcement.An amendment to Assembly Bill 250 (Assembly Amendment 1) has been offered by Rep. Terry Musser, the bill’s main author, to address some issues concerning low-income payers that were raised during the hearing.

The amendment would allow courts to waive future interest charges on arrearages as long as the payer fully complies with the court’s order for future support and installment payments on arrears if the court finds: 1) the payer has no ability to reasonably comply with the support obligation or arrearages, and 2) the payer has made a reasonable effort to maximize his or her earning capacity.It would also replace the low-income payer imputation language in the bill with language that requires the court to use the actual current income of the parent for the purpose of calculating child support or impute income.

The court shall impute income based on a normal work schedule for that parent’s occupation, the parent’s educational attainment and work experience, and the type of employment opportunities in the parent’s community for which the parent is qualified if the court finds that: 1) the actual current income is not available or the parent is intentionally not working at least 35 hours a week, 2) the parent is available to work, and 3) employment opportunities exist in the parent’s community for which the parent is qualified.

Here is a link to the text of the bill: http://www.legis.state.wi.us/2003/data/AB-250.pdf and a link to the amendment text: http://www.legis.state.wi.us/2003/data/AB250-AA1.pdf

The Senate Version of the bill, Senate Bill 156 received a public hearing5 on August 26, 2003. Testimony in the Senate hearing was similar to that received in the Assembly Committee but somewhat more subdued. The Family Law section testified in opposition to the bills in both the Assembly and Senate committees6 and sincerely hopes that both houses will not take up either bill to allow the proposed rule to move forward. To date, not action has been taken on either Assembly Bill 250 or Senate Bill 156.

AB 198-Permitting a Court to Require a Child Support Payee to Notify the County Child Support Agency and the Payer of any Substantial Income Changes.

As originally drafted, this bill would have required child support payees to notify county child support agencies and the payer of a substantial change in income or employer. The Family Law Section opposed the original bill but worked with Rep. Bob Ziegelbauer (D-Manitowoc), the author of the bill, to try to soften its impact as much as possible. The result was a substitute amendment in which the notification is permissive only, and may be applied only in cases where the court considered the income of the payee in determining the support amount (i.e., shared time or split placement cases). The requirement that information about change of employer be disclosed was also dropped in the substitute amendment version. The Family Law Section now supports to the bill as amended.

Here is a link to the original bill: http://www.legis.state.wi.us/2003/data/AB-198.pdf and a link to the substitute amendment: http://www.legis.state.wi.us/2003/data/AB198-ASA1.pdf.

The Assembly Children and Families Committee voted to adopt the Substitute amendment on August 7, 2003 and recommended the bill for passage as amended