HO-CHUNK NATION CODE (HCC)

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TITLE 4 – CHILDREN, FAMILY, AND ELDER WELFARE CODE

SECTION 9 – DIVORCE ORDINANCE

ENACTED BY LEGISLATURE: October 19, 2004

LAST AMENDED: January 23, 2024

CITE AS: 4 HCC § 9

TABLE OF CONTENTS

1. Authority .........................................................................

2. Purpose and Personal Jurisdiction ..................................

3. Definitions .......................................................................

4. Petition and Response .....................................................

5. Prohibited Acts During the Pendency of Divorce ..........

6. Judgment of Divorce .......................................................

7. Irretrievable Breakdown .................................................

8. Actions of the Court Pending Divorce ............................

9. Provisions for Judgment .................................................

10. Effect of Judgment ..........................................................

11. Fees ..................................................................................

12. Severability ......................................................................

1. Authority.

a. Article V, Section 2(a) of the Constitution grants the Legislature the power to

make laws, including codes, ordinances, resolution, and statutes.

b. Article V, Section 2(e) of the Constitution grants the Legislature the power to

raise revenue, including the power to levy and collect taxes and license fees.

c. Article V, Section 2(p) of the Constitution grants the Legislature the power to enact

laws to create and regulate a system of property including but not limited to use, title,

deed, estate, inheritance, transfer, conveyance, and devise.

d. Article V, Section 2(r) of the Constitution grants the Legislature the power to

protect and foster Ho-Chunk religious freedom, culture, language, and traditions.

e. Article V, Section 2(u) of the Constitution grants the Legislature the power to enact

laws to regulate domestic relations of persons within the jurisdiction of the Nation.

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2. Purpose and Construction. The Ho-Chunk Nation Trial Court is authorized to

dissolve a marriage by divorce when the parties are incompatible for any reason when

either party is a member of the Hooca\k Nation.

This Ordinance is to provide guidance and direction to ensure Hooca\k Nation values,

tradition and culture as well as the sovereignty of the Nation itself is a part of these

proceeding regardless of the background of the parties or adjudicators in these cases. Any

decision under this Ordinance must adhere to this Ordinance as well as the several Hooca\k

Laws enacted to protect our membership and children including but not limited to; 4

HCC § 3; 4 HCC § 7; 4 HCC §18 and their subsequent amendments with any conflicts

being interpreted wholly in favor of the tribal member's interests.

3. Definitions.

a. “Court” means the Ho-Chunk Nation Trial Court.

b. “Divorce” means the dissolution of the marriage relationship.

c. “Ho-Chunk land” means any land held in trust by the United States of America for the

benefit of the Ho-Chunk Nation or its members or any land owned in fee simple by the

descendant of a Ho-Chunk tribal member.

d. “Legal separation” means an order that acknowledges that a married couple is living

separate lives and regulates the rights and responsibilities of each spouse.

e. “Maintenance” means the allowance one spouse pays to the other for support when they

are, or are in the process of becoming, legally separate or divorced.

f. “Nation” means the Hooca\k (Ho-Chunk) Nation.

4. Petition and Response.

a. Except as otherwise provided, in dissolution of marriage action the petition shall

state:

(1) The name and birth date of the parties, the social security numbers of the

husband and wife and their occupations, the date and place of marriage and the facts

relating to the residence of both parties.

(2) The name and birth date of each minor child born to the wife during the

marriage, and whether the wife is pregnant.

(3) That the marriage is irretrievably broken or that the parties agree it is

irretrievably broken.

(4) Whether or not an action for divorce or legal separation by either of the parties

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was or has been at any time commenced, or is pending in any other court or before any judge,

in the state of Wisconsin, in another tribal court, or any other state.

(5) Whether the parties have entered into any written agreement as to support, legal

custody and physical placement of the children, the maintenance of either party, and property

division; and if so, the written Agreement shall be attached.

(6) The relief requested.

(7) That during the pendency of the action, the parties are prohibited from, and may

be held in contempt of court for, harassing, intimidating, physically abusing or imposing

any restraint on the personal liberty of the other party or a minor child or children of either

party.

(8) That during the pendency of the action, without the consent of the other party or

an order from the Court, the parties are prohibited from, and may be held in contempt of court

for, encumbering, concealing, damaging, destroying, transferring, or otherwise disposing of

property owned by either or both of the parties, except in the usual course of business, in order

to secure necessities or in order to pay reasonable costs and expenses of the action, including

attorney fees.

b. Either or both parties to the marriage may initiate the action. The party initiate the

action or his or her attorneys or advocates shall sign the petition. Both parties or their

respective attorneys or advocates shall sign a joint petition if the parties are filing together.

c. The summons shall be in the form of a regular summons used by the Trial Court for

civil cases.

d. Service shall be made in accordance with regular court procedures. If only one party

initiates the action, the other party may serve a response and/or counterclaim within 20

business days after the date of service

5. Prohibited Acts During the Pendency of Divorce.

a. In an action for divorce, the petitioner upon filing the petition, the joint petitioners

upon filing the joint petition and the respondent upon service of the petition are prohibited

from doing any of the following:

(1) Harassing, intimidating, physically abusing or imposing any restraint on the

personal liberty of the other party or a minor child of either of the parties.

(2) Encumbering, concealing, damage, destroying, transferring, or otherwise

disposing of property owned by either or both of the parties, except in the usual course of

business, in order to secure necessities or in order to pay reasonable costs and expenses of the

action, including attorney fees.

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b. The prohibitions listed in this section shall apply until the action is dismissed, until a

final judgment in the action is entered or until the Court orders otherwise.

c. Any person violating the provisions of this section will be subject to the regular

contempt provision in the Ho-Chunk Nation.

6. Judgment of Divorce. The Trial Court shall grant a judgment of divorce if:

a. The requirements of this Ordinance as to marriage counseling have been complied with

and the Court finds that the marriage is irretrievably broken under Section 6. This is not required

if the parties have been living separately for 12 months or longer.

b. To the extent it has jurisdiction to do so, the Court has considered, approved, or made

provision under 4 HCC § 18 the HO-CHUNK NATION CUSTODY AND PLACEMENT

ORDINANCE, for the legal custody and physical placement of any minor children of the

marriage, the support of any child of the marriage entitled to support, the maintenance of

either spouse, the support of the family and the disposition of property.

7. Irretrievable Breakdown.

a. If both of the parties by petition or otherwise have stated under oath or affirmation

that the marriage is irretrievably broken, or if the parties voluntarily lived apart continuously

for twelve (12) months or more immediately prior to commencement of the divorce action

and one party had so started, the Court, after hearing, shall make a finding that the marriage

is irretrievably broken.

b. If the parties have not voluntarily lived apart for at least twelve (12) months

immediately prior to commencement of the action and if only one party had stated under

oath or affirmation that the marriage is irretrievably broken, the Court shall consider all

relevant factors, including the circumstances that gave rise to filling the petition and the

prospect of reconciliation.

(1) If the Court finds no reasonable prospect of reconciliation, it shall make a

finding that the marriage is irretrievably broken; or

(2) If the Court finds that there is a reasonable prospect of reconciliation, it shall

continue the matter for further hearing not fewer than thirty (30) nor more than sixty (60) days

later, or as soon thereafter as the matter may be reached on the Court’s calendar, and may

suggest to the parties that they seek counseling. The Court, at the request of either party or on

its own motion, may order counseling. At the adjourned hearing, if either party states under

oath or affirmation that the marriage is irretrievably broken, the Court shall make a finding

that the marriage is irretrievably broken.

8. Actions of the Court Pending Divorce. The Trial Court may order:

a. The husband and wife to provide for the separate maintenance of his or her spouse and

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children as the Court may deem just upon application therefore or in the disposition of a

divorce proceeding.

b. The care, custody and maintenance of the minor child of the marriage during the

pendency of the proceedings. Pursuant to THE HO-CHUNK NATION CUSTODY AND

PLACEMENT ORDINANCE, 4HCC § 18.

c. The restraint of either spouse from, in any manner, molesting or interfering with

the other or the minor children.

The restraint and enjoining of either spouse or both from disposing of their individually or

jointly owned property during the pendency of the action except as approved by the Court.

9. Provision for Judgment. In addition to voiding or dissolving the marriage, the Court shall

have the power to impose judgment as follows:

a. Custody.

(1) For the future legal custody and physical placement and care of the minor

children of the marriage as may be in the best interest of the children and in accordance

with 4 HCC § 18, the HO-CHUNK NATION CUSTODY AND PLACEMENT ORDINANCE.

(2) Approve any agreement between the parties as to the legal custody and physical

placement and care of minor children if deemed by the Court to be in the best interests of

the children. Pursuant to 4 HCC 18, the HO-CHUNK NATION CUSTODY AND PLACEMENT

ORDINANCE.

b. For the recovery from either spouse to allow for the care and support of the minor

children an amount of money as may be just and proper for the party to contribute toward

their education and support. Pursuant to 4 HCC § 7, the CHILD SUPPORT CODE.

c. For the recovery from either spouse an amount of money or other personal

property as may be just and proper for the maintenance of the other.

(1) In considering an order under this subsection, the Court shall consider the

following:

(a) The length of marriage.

(b) The age and physical and emotional health of the parties.

(d) The education level of each party at the time of marriage and at the time the

action is commenced.

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(e) The earning capacity of the party seeking maintenance, including educational

background, training, employment skills, work experience, length of absence from the job

market, custodial responsibilities for children and the time and expense necessary to acquire

sufficient education or training to enable the party to find appropriate employment.

(f) The feasibility that the party seeking maintenance can become selfsupporting as a standard of living reasonably comparable to that enjoyed during the

marriage, and, if so, the length of time necessary to achieve this goal.

(g) The tax consequences to each party.

Any mutual agreement made by the parties before or during the marriage, according to the

terms of which one party has made financial service contributions to the

other with the expectation of reciprocation or other compensation in the future, where such

repayment has not been made, or any mutual agreement made by the parties before or during

the marriage concerning any arrangement for the financial support of the parties.

(a) The contribution by one party to the education, training or increased

earning power of the other.

(b) Such other factors as the Court may in each individual case determine to be

relevant.

b. Property Division. For the approval of any property settlement between the parties or

recovery and delivery to each of the parties any of their personal property in the possession or

control of the other at the time of the giving of the judgment.

(1) Non-Divisible Property. Except as provided in paragraph (2), below, any property

shown to have been acquired by either party prior to or during the course of the marriage in

any of the following ways shall remain the property of that party and is not subject to a

property division under this paragraph d.

(a) A gift from a person other than the other party.

(b) By reason of the death of another, including, but not limited to life

insurance proceeds; payments made under a deferred employment benefit plan, of an

individual retirement account; a property acquired by right of survivorship, by a trust

distribution, by bequest or inheritance or by a payable on death or a transfer in death

arrangement.

(d) A per capita or other payment received by a party other than the spouse.

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(e) Monies, accounts, or properties acquired by one spouse with their per capita or

trust fund money.

1 If one spouse contributes partial equity to the purchase of property they

shall be entitled to that equity upon the granting of a divorce. This shall include sweat equity,

but shall not include routine maintenance that both parties benefited from while living in the

home.

• For instance if one party performed significant remodels to the home

they shall receive appropriate monetary compensation at the time of divorce. However,

replacing items like a broken water heater or air conditioning unit would be merely routine

maintenance and would not warrant compensation.

(f) Generally properties located on Ho-Chunk land, as defined in this Ordinance,

are only divisible if both parties are members of the Ho-Chunk Nation. A non-member party

may overcome this presumption by demonstrating, through a preponderance of evidence, their

contribution to the equity in the property as discussed in section (e)1 above.

The Court shall never order that properties located on Ho-Chunk land be

put up for sale to achieve an equitable division of property. Rather the Court shall determine

another method of division to ensure a fair distribution of assets.

(2) The Court shall presume that all property not described in paragraph (1), above, is

to be equally divided between the parties, but may alter this distribution without regard to

marital misconduct after considering all of the following:

(a) The length of the marriage.

(b) The property brought to the marriage by each party.

Court.

(d) The contribution of each party to the marriage, giving appropriate

economic value to each party’s contribution in homemaking and child care services.

(e) The age and physical and emotional health of the parties.

(f) The contribution by one party to the education, training or increased

earning power of the other.

(g) The earning capacity of the party, including educational background,

training, employment skills, work experience, length of absence from the job market,

custodial responsibilities for children and the time and expense necessary to acquire

sufficient education or training to enable the party to find appropriate employment.

(h) The desirability of awarding the family home or the right to live therein for a

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reasonable period to the party having physical placement for the greater period of time.

(i) The tax consequences to each party.

(j) Any written agreement made by the parties before or during the marriage

concerning any arrangements for property distribution; such agreements shall be binding upon.

(k) Pursuant to the HOUSING FOR THE GENERAL WELFARE OF VETERANS, ELDERS

AND NON-ELDERS ACT, 8 HCC § 5.12b, if a home located on fee simple land is granted to a

non-enrolled Ho-Chunk Nation member through a divorce, and such home was purchased

through financing under that Act, the non-Ho-Chunk Nation member shall have ninety (90)

calendar days to pay the full balance of the Department of Housing mortgage otherwise the

home shall revert back to the Nation.

10. Effect of Judgment.

a. In any action affecting the family under this Ordinance, if the court orders maintenance

payment or other allowances for a party or children or retains jurisdiction in such matters, the

written judgment shall include a provision that disobedience of the court order with respect to

the same is punishable in accordance with the Ho-Chunk Nation CHILD SUPPORT CODE (4

HCC § 7) until such judgment is complied with.

b. The Court has the power to vacate or modify the judgment of sufficient cause shown

upon its own motion, or upon the application of both parties to the action, at any time within

six (6) months from the granting of such judgment. If the judgment is vacated it shall

restore the parties to the marital relation that existed before the granting of such judgment.

c. When a judgment of divorce is granted it shall be effective immediately.

11. Fees. The filing fee for a petition for dissolution of marriage shall be set by the

Court.

12. Severability. If any provision or provisions of this Code shall in the future be

declared invalid by the Ho-Chunk Nation Judiciary, the invalid provision or provisions

shall be severed and the remaining provisions shall continue in full force and effect.

Legislative History:

8/17/04

Legislature places draft Divorce and Custody Ordinance (4 HCC § 9) out for 45-Day Public Review.

10/19/04

Enacted as Divorce and Custody Ordinance (4 HCC § 9) by Legislative Resolution 10-19-04E.

11/21/23

Legislature places draft Divorce and Custody Ordinance (4 HCC § 9) out for 45-Day Public Comment

by Legislative Resolution 11-21-23O.

01/23/24

Legislature adopts amendments to the Divorce and Custody Ordinance (4 HCC § 9), including

separating custody and placement issues out of the Ordinance into its own Ordinance and renaming

this Ordinance to the Divorce Ordinance (4 HCC § 9).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.