The Wisconsin Court of Appeals recently certified a child support issue to the Wisconsin Supreme Court in an appeal pursued by Wessel, Lehker & Fumelle.

One glaring disparity in Wisconsin law is its treatment of child support agreements. Parents are free to agree to a minimum amount of child support, but agreements to a maximum amount of child support are unenforceable because they violate public policy. The reasoning goes something like this: It’s good for children to share in their parents’ increased earnings, and good for children to have a minimum amount of child support despite a parent’s decreased earnings.

This analysis may have been defensible back in the days when kids spent most of their time in one home – usually mom’s – and had brief visits in the other home. Now that physical placement (sometimes called custody) is usually shared, it makes no sense to allow child support to increase as the payer’s income increases, but not allow child support to decrease as the payer’s income decreases.

Wessel, Lehker & Fumelle raised this issue in a case argued at the trial court by Attorney Keith Wessel and briefed on appeal by Attorneys Kris Lehker and Keith Wessel. We argued that a child support payer who suffered an involuntary income decrease should be allowed to seek a corresponding child support modification despite a prior agreement.

On January 6, 2011, the Court of Appeals certified the case to the Wisconsin Supreme Court. This means that the Court of Appeals declined to decide the case, and instead asked the Wisconsin Supreme Court to make the decision. While the Supreme Court has not yet indicated that it will take this case, it does accept most of the cases it receives by certification. In its certification in this case, the Court of Appeals stated, “The issue we certify is whether, or under what circumstances, stipulations imposing a ‘floor’ [on child support] are unenforceable because they are against public policy.”

Stay tuned.

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