Modification Guide
PLEASE PRINT AND USE THE CHECKLIST STEP-BY-STEP
You may use this packet to request a change or an addition to a court order or judgment when the other party will not agree to what you want changed or added. Filing the Notice of Motion and Motion from this packet essentially tells the court that you and the other party could not agree and that you need the court to make the decision. It requires that you serve the other party and that you appear in court and provide a legal argument/explanation as to why the court should rule in your favor.
This packet is generally used for individuals who have already been granted a divorce/legal separation or judgment of paternity. If you need to make changes to a Temporary Order (your divorce/legal separation has not yet been granted), you may use this packet. However, you must write the word "Pre-Judgment" above the title on the form, and upon filing, alert the Family Court customer service representative that you are requesting a modification to a Temporary Order.
This is not the correct packet if:
Requesting Changes to the Current Child Support Payment Amount:
The State of Wisconsin has set standard guidelines for determining child support (referred to as the child support percentage of income standards and are outlined in DCF Ch. 150. These guidelines first take into account the number of children and the placement arrangements for each child and then uses the gross monthly income of one or both parties to make the calculation. Other factors, also referred to as deviations, such as health insurance and those listed in WI. Stat. 767.511, may be considered and a final support amount is determined. To begin calculating a proposed child support amount, parents must first determine which guideline applies to them. There is a standard guideline that applies to every case. The percentage standard guidelines are as follows:
- Split-placement standard: There are two or more children subject to support and each parent has placement of at least one of the children.
- Shared-placement standard: Both parents have been court ordered to have placement of at least 25% or 92 days per year with the child(ren).
- Serial-family standard: The paying parent has a previous court ordered child support obligation.
- low-income payer standard: The paying parent's gross monthly income is less than $1,350 (based on 2009 poverty guidelines).
- high income payer standard: The paying parent's gross monthly income is more than $7,000.
- If none of the above apply, then a straight percentage standard applies as follows:
- 17% for one child
- 25% for two children
- 29% for three children
- 31% for four children
- 34% for five or more children
Once you determine the standard calculation that applies to your case, there are interactive calculators, worksheets, and charts available to assist you in determining the amount support would be using this standard calculation. Make note of this amount. It will be necessary for you to report it on the forms attached and in future court proceedings.
Deviations
Once the standard child support amount is determined, you must consider health insurance as a deviation and may consider others as defined in WI. Stat. 767.511. Depending on the circumstance, deviations can either increase or decrease the standard child support guideline amount. Although there are many reasons parents may agree or courts may order the child support to deviate from the standard, health insurance is required to be considered in determining a final child support amount.
Parents are required to provide private health insurance for their minor child(ren) if:
- service providers are located within 30 miles or 30 minutes from the child’s residence, and
- the cost is reasonable (the difference between single and family coverage does not exceed 5% of the insuring parent’s gross monthly income or the child support payer's gross monthly income, if not the insuring parent).
When insurance meets the above criteria, the parent paying for the insurance may receive a deviation from the child support amount. In other words, if the parent paying for insurance is:
- The parent paying child support, he/she may get a reduction in the amount of child support he/she has to pay OR
- The parent receiving child support, he/she may get an increase in the amount of child support he/she receives.
For other deviations, it is important that you be able to explain why/how they affect your situation and also be able to quantify them. In other words, determine how much money (actual dollar amount) that particular issue will affect child support. After considering the health insurance deviation and others as applicable, you must then add or subtract any deviation amount(s) from the standard child support amount. This amount becomes the actual child support amount that is ordered by the court.
Legal Custody and/or Physical Placement Disputes:
If you are requesting changes to the current legal custody or physical placement orders, the court will automatically order you and the other party to attend mediation. Mediation involves both parties meeting with an impartial third party or mediator from Family Court Services to try to come to an agreement. If you come to an agreement, a Stipulation and Order may be drafted, signed, and submitted to the court to be made a court order.
The first session of is free; however, once you have used the first session there is a fee for additional sessions. If you think that you and the other party are likely to come to an agreement with the help of a mediator, you may file a Request for Mediation before you complete this packet, which will allow you try mediation before you pay the fee to file the Notice of Motion and Motion.
If the parties are unable to come to an agreement, the court may order a Physical Placement Study to be conducted by a social worker in Family Court Services, for which there is a fee. The Social Worker will conduct the study and then make a recommendation to the court, and if necessary, appoint an attorney to represent the best interest (not wishes) of the children known as a Guardian ad Litem (GAL). A deposit is required and will be applied to the fees incurred by the GAL. The court will determine who must pay which portion of the deposit and any additional fees that may be assessed.
NOTICE: Family and divorce laws change often. These forms may not be appropriate for all situations. They are intended to be useful in many cases and may have to be changed in some way to fit your case. Talk to a lawyer or make an appointment with the Family Legal Clinic if you are unsure whether these forms are the most appropriate for your situation. The staff in the Family Division office cannot give legal advice, but can review forms for completeness and answer basic procedural questions.
FEES
| Modify Legal Custody or Physical Placement |
50.00 |
| Modify all other types of orders |
30.00 |
| Mediation (first session) |
FREE |
| Mediation (2nd and subsequent sessions) |
200.00 |
| Custody and Physical Placement Study |
2,000.00 |
| GAL Deposit (minimum) |
2,000.00 |
The party filing this motion should be prepared to pay any and all fees up front.
PROCEDURAL CHECKLIST
Getting a Court Date
- Complete the Notice of Motion and Motion (FA-4170). (When filing a Motion that includes Property Division please indicate this on the Motion)
- Come to the Family Division Office between 8:30 am and 4:00 pm, Monday through Friday, to have your form reviewed for completeness.
- Make three (3) additional copies (4 if the State is a party). You can make your own copies in the Family Division office for $.25 per page on the coin-operated copier. Please bring cash as it accepts $1, $5, $10 bills and coins only.
- Go to the customer service window of the Family Division Office. The clerks will:
- Collect the appropriate filing fee, original form, and copies.
- Assign you a court date.
- Return the appropriate number of copies to you.
Notifying the Other Party (Service)
- Give the other party(s) notice of the hearing by having them served with the Notice of Motion and Motion (FA-4170) and the Income and Expense Statement (FA-4138). See the Service Packet for options and procedural instructions for having someone served.
- Deadline: The other party(s) must be notified properly and provided with the forms no later than five (5) business days before the date of the hearing if served by personal service and mailed eight (8) business days before the date of the hearing if served by mail.
- Make a copy of the proof of service (Affidavit of Service, Admission of Service, or Affidavit of Mailing) for your records and bring the original to court on the date of the hearing.
Warning: Without proof of service, the court cannot proceed with the hearing.
NOTE: If, for any reason, you need to cancel or postpone your court hearing, you may complete the Request to Reschedule form and follow the accompanying procedural guide.
Preparing for and Going to Court
- Take the following items with you to court:
- Original proof of service.
- Original and two additional (2) copies (3 if the State is a party) of your completed, dated, and signed Income and Expense Statement (FA-4138) and required attachments.
- Any other documents (including copies) you think may help you make your case.
- If you wish to have other people testify for you, make sure they come to court in person. A letter from them is not acceptable. If you need to order witnesses to appear in court you may complete the subpoena.
- Go to the assigned courtroom at least 20 minutes before your assigned court time and let the bailiff or court clerk know that you have arrived (you may sit in the hall or watch court).
- When your case is called, present your case to the Judge/Court Commissioner:
- Be prepared to state your side of each issue clearly and completely.
- Be prepared to answer questions that may be asked of you by the Court or others.
- If you wish to offer written evidence or documents to the court, give the original to the court and a copy to the other side.
- While you are in court, use the forms you prepared as an outline to remind you of each issue you want resolved.
- The Judge/Court Commissioner will state his/her decisions/rulings to you. Take notes because you must be able to write the ruling on a specific form called Decision and Order (FA-4175). The court may also set another hearing for the you to return to court.
After Court
- After your court hearing, complete the Decision and Order (FA-4175).
- Complete the Ten-Day Rule cover letter.
- Come to the Family Division between 8:30 am and 4:00 pm, Monday through Friday, to have your forms reviewed for completeness.
- Make four (4) additional copies (5 if the State is a party) of the completed Decision and Order.
- Make two (2) additional copies (3 if the State is a party) of the Ten-Day Rule cover letter.
- Before filing, send one copy of the Decision and Order and Ten-Day Rule cover letter to the other party(s).
- File the original Decision and Order, the remaining three copies of the Order, a copy of the cover letter, and two self-addressed stamped envelopes (one addressed to you, one addressed to the other party) in the Family Division Office in person or by mail.
- The court will hold the Decision and Order for ten (10) days to give the other party(s) time to review the order and object to how accurately it has been completed. If there are no objections within the ten days and the court agrees with how you have written the order, the assigned court official will approve and send each party a signed copy.
