Wisconsin does not ask a judge to decide what raising your child costs. It asks a judge to apply a percentage. Section 767.511 (1j) of the Wisconsin Statutes says the court shall determine child support by using the percentage standard the Department of Children and Families adopts under § 49.22 (9), and that standard — Chapter DCF 150 of the Wisconsin Administrative Code — is a table, not a discussion.
Which means the fight in a Wisconsin child support case is almost never about the percentage. It is about the number the percentage gets applied to, and about whether one of the several formulas that displace the flat percentage applies to your placement schedule. Those are the two places where cases are won and lost, and they are the two places most online summaries skip.
The percentages
Under § DCF 150.035 (2), where the shared-placement conditions are not met, the child support obligation is a percentage of the payer’s monthly income available for child support:
- 17% for one child
- 25% for 2 children
- 29% for 3 children
- 31% for 4 children
- 34% for 5 or more children
A note on citation, because it matters if you are reading anything else about this: 2021 Wis. Act 35 renumbered these provisions. The percentage table used to live at § DCF 150.03 (1) (a) to (e) and the shared-placement formula used to live at § DCF 150.04 (2). A great deal of published commentary — including older reported decisions — still cites the old numbers. The rules are the same; the addresses changed.
Income available for child support is not your paycheck
Here is where the real work is. Section DCF 150.03 (1) tells the court to build a parent’s monthly income available for child support by adding together four things and dividing by twelve:
- annual gross income, or, if applicable, income modified for business expenses;
- income imputed based on earning capacity;
- income imputed when little or no information is known; and
- income imputed from assets.
Gross, not net. The percentage is applied before taxes, not after. Clients arrive expecting the calculation to start with take-home pay, and it does not.
What counts as gross income is defined at § DCF 150.02 (13) (a) and it is broad: salary and wages, interest and investment income, Social Security disability and old-age insurance benefits, unemployment insurance, income continuation benefits, the net proceeds of worker’s compensation or personal injury awards intended to replace income, voluntary deferred compensation and employee contributions to benefit and retirement plans, veterans disability compensation and military allowances for subsistence and housing, undistributed income of a closely held business the parent can control, and — the catch-all — all other income, whether taxable or not.
The exclusions are narrow and specific: child support received, foster care and kinship care payments, public assistance under ch. 49, food stamps, county cash benefits, and Supplemental Security Income with its state supplement. The courts have enforced those exclusions. Federal SSI may not be treated as an economic resource for computing support, Langlois v. Langlois, 150 Wis. 2d 101, 441 N.W.2d 286 (Ct. App. 1989), and neither may educational grants and loans, AFDC, or child support received for another child, Thibadeau v. Thibadeau, 150 Wis. 2d 109, 441 N.W.2d 281 (Ct. App. 1989).
What is not excluded surprises people. A lump-sum separation benefit paid on termination of employment is gross income subject to the standard. Gohde v. Gohde, 181 Wis. 2d 770, 512 N.W.2d 199 (Ct. App. 1993). Health insurance premiums a partnership pays on a partner’s behalf are included in that partner’s income available for support. Weis v. Weis, 215 Wis. 2d 135, 572 N.W.2d 123 (Ct. App. 1997). Repayment to a business owner of a loan he had made to his own company was properly added to his income as deferred compensation. Raz v. Brown, 213 Wis. 2d 296, 570 N.W.2d 605 (Ct. App. 1997).
Business owners and the undistributed-earnings problem
Self-employment does not lower the percentage; it changes the evidence. Under § DCF 150.03 (2) the court may add back wages paid to dependent household members, add back undistributed business income it finds is not reasonably necessary for the growth of the business — with the burden of proof on the parent to show that it is — and reduce gross income only by business expenses the court determines are reasonably necessary, which the rule expressly says may differ from what the tax code allows.
Where undistributed earnings are at issue, the court asks two questions: whether the payer has the ability to individually control or access those earnings, and whether the company has a valid business reason for retaining them. If the answer is yes to the first and no to the second, the undistributed income counts. Winters v. Winters, 2005 WI App 94, 281 Wis. 2d 798, 699 N.W.2d 229. And where a court is convinced the obligor’s intent is to avoid financial obligations, it may pierce the corporate shield no matter how the corporate income is labeled. Evjen v. Evjen, 171 Wis. 2d 677, 492 N.W.2d 361 (Ct. App. 1992).
Imputed income
If a parent is voluntarily unemployed or underemployed without good cause, § DCF 150.03 (3) permits the court to impute income based on earning capacity, weighing a long list of factors: recent work experience, prior earnings, job skills and training, education, any vocational evaluation, diligence in seeking work, employment barriers such as homelessness or lack of a driver’s license, criminal history, whether unemployment resulted from job-related misconduct, child care costs that paid employment would create, a child’s unusual emotional or physical needs, participation in reasonable career training, age, and residence.
Two points the rule makes explicitly. First, incarceration may not be treated as voluntary unemployment for purposes of establishing or modifying support. Second, where a parent’s income is genuinely unknown and due diligence has been exercised to find it, § DCF 150.03 (3m) lets the court impute what someone would earn working 10 to 35 hours per week at the higher of the federal or the Wisconsin minimum wage — a floor, not a punishment.
Assets are harder to reach than clients hope. Section DCF 150.03 (4) requires two findings: that the parent’s assets are underproductive, and either that the parent diverted income into assets to avoid paying support or that income from those assets is necessary to maintain the children at the standard of living they would have had living with both parents. Only then does the court impute, by multiplying net asset value by the current 6-month treasury bill rate or another rate it finds reasonable, less asset income already counted. Absence of a mortgage payment, by contrast, is relevant to a party’s economic circumstances but does not translate into imputed income. Zimmerman v. Zimmerman, 169 Wis. 2d 516, 485 N.W.2d 294 (Ct. App. 1992).
Shared placement rewrites the formula
This is the single most consequential exception, and the flat percentages do not apply when it is in play. Under § DCF 150.035 (1) (a), the shared-placement formula may be used when both parents have court-ordered periods of placement of at least 25 percent, or 92 days per year, measured in overnights or equivalent care, and each parent is ordered to assume the child’s basic support costs in proportion to that time.
Placement is counted in overnights under § DCF 150.035 (1) (ag), with a real accommodation for parents whose schedules make overnights impossible: under sub. (1) (ar), a block of at least 6 hours during which the parent provides a meal may count as a half-day, and two half-days equal one overnight — the rule’s own example is a third-shift parent. Because equivalent care is added to overnights, the denominator can exceed 365, and the rule says so.
The calculation itself, at § DCF 150.035 (1) (b), runs in five steps:
- Determine each parent’s monthly income available for child support.
- Multiply each parent’s income by the designated percentage for the number of children.
- Multiply each result by 150%. The rule’s note explains the uplift: it accounts for household expenditures both parents duplicate — a bedroom, clothes, personal items.
- Multiply each parent’s figure by the proportion of time the child spends with the other parent.
- Offset the two results. The parent with the larger obligation is the payer, and pays the lesser of the offset amount or the amount the straight designated percentage would produce.
Two consequences worth understanding before you negotiate a schedule. The offset means that as placement approaches equal, the payment shrinks toward the income differential — which is why placement and support are negotiated together, and why they should never be traded against each other. And the lesser-of cap means the shared-placement formula can never produce more than the flat percentage would.
The formula is not a favor the court grants. It is part of the percentage standard itself: the shared-time payer formula is included within the standard § 767.511 (1j) makes mandatory, and it applies where the payer will be assuming costs in proportion to the days of ordered placement. Randall v. Randall, 2000 WI App 98, 235 Wis. 2d 1, 612 N.W.2d 737.
Variable costs are separate, and mandatory
Under § DCF 150.035 (1) (b) 6., in addition to the support obligation, the court shall assign responsibility for the child’s variable costs in proportion to each parent’s share of placement, working from a detailed list the parties provide, with consideration of income disparity and the transportation costs of each parent’s placement periods. The court directs whether payment runs between the parents or to a third-party provider, and it may not route variable costs through the state disbursement unit. One caution built into the rule at sub. (1) (b) 7.: a change in variable costs is not, by itself, a substantial change in circumstances justifying revision.
The other special circumstances
Split placement. Where there are two or more children and each parent has placement of some but not all of them, § DCF 150.04 (3) prorates. The designated percentage for the total number of children is divided by that number and reapplied per child: 12.5% each for 2 children, 9.67% for 3, 7.75% for 4, 6.8% for 5. Each parent’s obligation is computed for the children placed with the other parent, and the two are offset.
Serial-family payers. Section DCF 150.04 (1) handles the parent with children in more than one family: obligations are ordered by the date each was incurred, support for the earlier obligation is subtracted from income before the later one is calculated, and the process repeats down the line. The limit is stated plainly in the rule and it is the part clients most want to be otherwise — a parent may not use a later-incurred support obligation as the basis for seeking a reduction of an existing order. The new family does not reopen the old case.
Low-income payers. Section DCF 150.04 (4) allows the court to use the reduced schedule in DCF 150 Appendix C where the payer’s total economic circumstances limit the ability to pay at the standard rate, and to set an amount appropriate to those circumstances if income falls below the schedule’s lowest level. The schedule provides reduced percentage rates for payers below 150% of the federal poverty guidelines and is revised annually as those guidelines change — which is why any specific dollar figure you read for this schedule should be checked against the current version rather than trusted.
High-income payers. Section DCF 150.04 (5) tiers the percentages downward as income rises, while requiring that the payer’s full income be considered. The full percentages apply below $7,000 of monthly income available for child support. On the portion between $7,000 and $12,500 the court may apply 14% for one child, 20% for 2, 23% for 3, 25% for 4, and 27% for 5 or more. On the portion above $12,500 it may apply 10% for one child, 15% for 2, 17% for 3, 19% for 4, and 20% for 5 or more. The rule’s notes give the annual equivalents: $7,000 a month is $84,000 a year, $12,500 a month is $150,000 a year.
Under § DCF 150.04 (6) (a) these provisions combine. A shared-placement payer who is also a high-income or low-income payer gets both adjustments.
Health insurance and medical support
Support and medical support are separate orders. Section 767.513 (2) requires the court, in addition to ordering child support, to specifically assign responsibility for and direct the manner of payment of the child’s health care expenses, considering existing coverage, availability of insurance through each parent’s employer, the extent of coverage, and cost.
Section DCF 150.05 supplies the tests. Coverage is generally accessible if providers are within 30 minutes or 30 miles of the child’s residence, with more distance allowed in rural areas. It is available at a reasonable cost if the policy does not exceed 10% of the insuring parent’s monthly income available for child support and covers hospitalization without large deductibles or copayments. The non-insuring parent may be ordered to contribute, capped at 10% of that parent’s income available for support and at the cost of adding the child to existing coverage — and that contribution is handled as an upward or downward adjustment to the support order rather than as a separate percentage. A parent whose income is below 150% of the federal poverty level may not be ordered to enroll a child or contribute unless there is no cost to that parent.
One procedural trap worth knowing: under § 767.513 (2m) the parent ordered to provide coverage must give the other parent an insurance identification card, and intentional failure to do so after the other parent has tried to obtain one directly is contempt of court under ch. 785.
Deviation: when the percentage does not govern
Section 767.511 (1m) permits the court, upon request by a party, to modify the amount the standard produces if it finds by the greater weight of the credible evidence that the standard is unfair to the child or to a party. The factors are enumerated: the financial resources of the child; the financial resources of both parents; maintenance received; each party’s own needs measured against the federal poverty guidelines; the needs of others either party is legally obligated to support; the standard of living the child would have enjoyed had the marriage not ended; the desirability of a custodian remaining a full-time parent; child care costs or the value of custodial services; the award of substantial placement to both parents; extraordinary travel expenses for exercising placement; the child’s physical, mental, and emotional health needs including health insurance costs; educational needs; tax consequences; the best interests of the child; each parent’s earning capacity; and any other relevant factor.
Three things constrain that discretion in practice.
First, the record requirement. Under § 767.511 (1n) a deviating court must state — in writing or on the record — what the standard would have produced, how far the order departs from it, why the standard is unfair, why the modification is in that amount, and the basis for it. A deviation without those findings is an appealable defect, and under § 767.59 (1f) (b) 4. it also creates a rebuttable presumption of a substantial change in circumstances supporting revision later.
Second, the courts have narrowed the arguments that work. Equalizing the households is not an objective of child support; income disparity resulting from the percentages matters only if the payer shows an inability to pay or shows that the disparity will adversely affect the children. Raz v. Brown, 213 Wis. 2d 296, 570 N.W.2d 605 (Ct. App. 1997). Expenses a child will incur as an adult may not be considered. Resong v. Vier, 157 Wis. 2d 382, 459 N.W.2d 591 (Ct. App. 1990).
Third, the court cannot substitute a private arrangement for a support order. Section 767.511 (1j), (1m), and (1n) authorize the court to set an amount — including, implicitly, zero — but not to order the parents to divide the children’s expenses among themselves as an alternative to ordering support. Zawistowski v. Zawistowski, 2002 WI App 86, 253 Wis. 2d 630, 644 N.W.2d 252. Nor may a court bolt an expense-sharing order onto full percentage support without doing the deviation analysis: ordering one parent to pay half the daycare on top of the standard amount, without addressing the sub. (1m) factors, was an erroneous exercise of discretion. McLaren v. McLaren, 2003 WI App 125, 265 Wis. 2d 529, 665 N.W.2d 405.
Mechanics that catch people out
The amount is a fixed sum. Under § 767.511 (1) (a) and § DCF 150.03 (8), support must be expressed as a fixed dollar amount unless the parties have stipulated to a percentage of income and the requirements of § 767.34 (2) (am) 1. to 3. are met. And under § 767.75 (1f), the assignment of income is for a fixed sum regardless of whether the order is written as a percentage.
Payment comes out of income automatically. A payment order is an assignment of commissions, earnings, wages, pension benefits, worker’s compensation and unemployment benefits, installment lottery prizes, and other money due, under § 767.75 (1f). Arrears may be collected through the same assignment at a periodic rate not exceeding 50 percent of the support due, so long as the addition does not push the payer below the federal poverty line, and the assignment continues after the current obligation ends until the arrears are paid.
Interest runs at 1 percent per month. Section 767.511 (6) imposes simple interest at that rate on any arrearage equal to or greater than one month’s support, and dictates the order in which payments are applied: current month first, then past-due support, then interest. Interest is therefore the last thing to be paid and the thing that compounds a problem quietly. The department has statutory authority under sub. (6m) to run a pilot program at half that rate.
Support ends at 18, or 19 in school. Section 767.511 (4) requires support for a child under 18, or under 19 if the child is pursuing an accredited course of instruction leading to a high school diploma or its equivalent. There is no general obligation to fund college — though under § 767.511 (2) a court may set aside part of support in a separate fund or trust, and in a high-income case a trust for postminority educational expenses has been upheld on the reasoning that the percentages presume a standard of living above the child’s bare needs. Kowalski v. Obst, 2003 WI App 218, 267 Wis. 2d 400, 671 N.W.2d 339.
Joint legal custody changes nothing about the amount. Section 767.511 (7) says so directly, and the parent with primary physical custody can be the payer in a joint custody case. Matz v. Matz, 166 Wis. 2d 326, 479 N.W.2d 245 (Ct. App. 1991). The distinction between decision-making authority and placement time is the one that matters here, and we cover it separately in our article on legal custody versus physical placement.
Withheld placement is not a defense. Under § 767.511 (3), violation of physical placement rights by the custodial parent is not a reason for failing to meet a support obligation. The two obligations are enforced separately, and self-help in either direction creates a second problem instead of solving the first.
A stepparent owes nothing. There is no legal obligation to support a stepchild, though equitable estoppel can apply in support cases under appropriate circumstances. Ulrich v. Cornell, 168 Wis. 2d 792, 484 N.W.2d 545 (1992).
Support is calculated before maintenance. Where the same payer will owe both, § DCF 150.03 (6) requires the court to determine child support first, then maintenance under § 767.56. The order of operations affects both numbers.
Changing an order later
Support, unlike a property division, is revisable. Section 767.59 (1c) (b) bars modification of a final property division; support has no such bar. But under § 767.59 (1f) (a) a revision requires a finding of a substantial change in circumstances.
Four situations create a rebuttable presumption of substantial change under sub. (1f) (b): a parent’s commencement of AFDC or participation in Wisconsin Works; the expiration of 33 months since the last support order — unless support is expressed as a percentage of income; the payer’s failure to make a timely financial disclosure under § 767.54; and a difference between the ordered amount and the percentage-standard amount where the court deviated without making the required findings.
Other circumstances may constitute substantial change under sub. (1f) (c): a change in the payer’s income from what the court found in the last order, a change in the child’s needs, a change in the payer’s earning capacity, and any other factor the court finds relevant. On revision the court applies the percentage standard again under sub. (2) (a), subject to the same deviation analysis on request. And note § DCF 150.01 (3): an amendment to the rules is not itself a substantial change in circumstances.
The timing rule is the one that costs real money. Under § 767.59 (1m), the court may not revise support — or accrued arrears — for any period before the date notice of the action is given to the other party, except to correct previous calculation errors. A parent whose income drops in January and who files in September has lost the intervening months permanently. File when the change happens, not when the arrears become unmanageable.
Two related points. Support cannot be bargained away for good: a divorce stipulation that waives support or sets a ceiling on it and prevents modification is against public policy and will not be enforced. Ondrasek v. Tenneson, 158 Wis. 2d 690, 462 N.W.2d 915 (Ct. App. 1990). And the mandatory percentage standards do not permit deferred payments. Kelly v. Hougham, 178 Wis. 2d 546, 504 N.W.2d 440 (Ct. App. 1993).
What this means for your case
Because the percentage is fixed, a Wisconsin child support case is an evidence case about two things: what a parent’s income available for support actually is, and how many overnights the placement order actually contains. Tax returns that understate a business owner’s real access to earnings, an imputation argument against a parent who left a job, a placement schedule sitting a few overnights short of the 25 percent threshold — those are the arguments that move the number, and each of them is proved with documents rather than with argument about fairness.
If you are heading into a divorce, the support calculation is one piece of a larger financial picture that also includes how the marital estate gets divided and how the process itself unfolds. They interact, and they should be planned together.
Talk to a New Berlin family law attorney
A child support order is a monthly obligation that can run for eighteen years and accrues interest at 1 percent a month when it goes unpaid. Getting the income figure and the placement count right at the outset is worth considerably more than litigating them later.
Carson Law Office handles family law matters — divorce, legal separation, custody and placement, child support, maintenance, paternity, and post-judgment modification — throughout New Berlin, Waukesha County, Milwaukee, West Allis, Wauwatosa, and the surrounding communities. Call (262) 860-8932 or contact us here to have your own numbers run against the standard before someone else runs them for you.
This article provides general information about Wisconsin law and is not legal advice. Reading it does not create an attorney-client relationship. Every case is different; for advice about your own situation, speak with a licensed Wisconsin attorney.