The new law will take effect on January 1,
2007. Modification cases will not be
available automatically until January 1,
The new child support law will undoubtedly
create a number of filings in 2005 through
The new law modifies existing laws related
to determining child support. Prior to
the new law. Minnesota was one of only
13 states that did not consider the income
of both parents in determining child
The new child support law also modifies
existing statutes related to child care
contributions by parents and contributions
for a child's medical support and insurance.
In the past, a parent that did not hold the
label of having "primary physical custody"
was required to pay child support based on
net income and child support guidelines.
Under the new law, the label of custodial
parent or non-custodial parent becomes
irrelevant. Child support is based on
the gross incomes of both parents and the
amount of time that each spends with the
Child support that is
paid under the new statutory guidelines is
specifically designated as a payment for
It specifically excludes
costs related to child care (daycare)
There are two systems for
computing child support under the new
guidelines. One system applies where
the parents do not have equal parenting time
and second system applies where the parents
have equal parenting time.
The computation of child
support where the parents do not have
presumed equal parenting time can be
calculated as follows:
the lower figure from the higher figure to
arrive at $234.00 and divide that figure in
half for a monthly obligation from dad to
mom of $117.00 per month.
Are additional children from another
relationship a basis for a reduction?
Under the new law, the child of one parent,
but not both (but excluding step children),
are called "non-joint" children." A
parent may reduce their gross income by the
amount of any child support obligation for a
non-joint child. If that child lives with
the parent, a credit from gross income is
still allowed based on Minnesota Statutes
What is gross income under the new Minnesota
Child Support Statute?
Gross income includes income from
all sources including salaries, wages,
bonuses, commissions, advances, unemployment
benefits, severance pay, honoraria, trust
income, gifts, prizes and in-kind payments
or benefits such as free housing. It
also includes social security or veteran's
benefits received on behalf of the child
under Minnesota Statutes Sec. 518.718 before
it is reduced by taxes, 401K contributions,
health insurance or cafeteria plans.
It does not include compensation in excess
of a 40 hour work week if not worked
consistently for two years preceding the
order. It also does not include child
support received for other children or the
income of the parent's new spouse.
Gross Income for child support may also
include potential income.
Potential income is income that includes:
What if the other parent is a stay at home
parent with children?
Imputed income based on earning
capacity if a parent is determined to be
unemployed, underemployed or employed
less than full-time, or if there is no
direct evidence of income. It is
rebuttably presumed that a parent can be
gainfully employed on a full time basis.
In short, it is based on what the parent
could a earn on a full time basis.
Determining earning capacity is a
tricky question and may require a
vocational evaluation. The court
must consider the parent's probable
earnings, recent work history, and
occupational qualifications in light of
prevailing job opportunities and income
levels in their community. A vocational
evaluation may often be necessary to
determine earning capacity. You
should consult an attorney on these
issues. For a consultation call (952)
Worker's Compensation Benefits or
Unemployment benefits may be used to
calculate a parent's income; or
The amount or the amount of income a
parent could earn working full time at
150% of the current state and federal
minimum wage, whichever is higher.
This is generally considered the floor
for income levels unless the parent is
If the child in question is a child from a
different relationship, the parent will be
If it is a joint child, in most instances
income will be imputed based upon that
parent's probable earnings, recent work
history, and occupational qualifications in
light of prevailing job opportunities and
income levels in their community.
However, the court may also consider:
the parties' parenting and child care
arrangements before the child support
the relationship between the employment
and the related child care expenses such
as child care, transportation costs
necessary to work.
the child's age and health including
whether the child is physically of
What if a parent goes to college or other
training, is incarcerated, disabled or
changes careers to reduce or eliminate their
A parent is not considered underemployed if
that parent can demonstrate that:
the unemployment or underemployment is
temporary and will ultimately lead to an
the unemployment or underemployment
represents a bona fide career change
that outweighs the adverse effects of
that parent's income on the child; or
the parent is unable to work full time
due to a medically verified disability
or due to incarceration.
What if a parent receives temporary
assistance to a needy family (TANF) cash
No potential income is imputed to that
How is Parenting time calculated under the
new Minnesota Child Support Law?
The court considers the time that a child is
scheduled to spend with the parent based on
existing court orders. It will not
consider time that is not reflected in a
court order. The label for that
parenting time does not matter. In other
words, it does not matter whether it is
called custody, visitation, or parenting
The percentage of parenting time for
purposes of calculating child support is
based on overnight visits or by using a
method other than overnights if the parent
has significant time periods where the child
is in the parent's care but does not stay
overnight. This provision of the law
will likely be the subject of significant
litigation and is unlikely to be clarified
until a number of cases have been heard by
the Minnesota Courts of Appeal.
How is financial information provided in a
Motion to modify or set child support?
In any case where child support must be
determined, each parent must serve on the
other party and file a financial affidavit
with their pleadings or motion disclosing
all sources of income. This affidavit must
include all supporting documentation such
- 3 months of the most recent pay stubs for
- employer statements
- statements of receipts and expenses if
- most recent federal tax returns with W-2
forms and/or 1099 forms;
- unemployment or worker's compensation
- Any other evidence of earnings including
Who can seek a child support modification?
The change in the child support laws does
not mean that ever person can seek to modify
their child support. If that were the
case, the courts would be flooded with so
many motions for modification that the
dockets would be clogged. Moreover, new systems are being put into place to process cases that will apply the new law. New child
support orders will implement the new law as
of January 1, 2007. However, most
modifications will not be allowed until
after January 1, 2008.
There are some exceptions for modifications under the new law in 2007. Those exceptions include:
After January 1, 2008, a party may apply for a modification if a substantial change in circumstance has occurred, which mean that:
- substantially increased or deceased income of the obligor;
- either party or the child subject to the proceedings have substantially increased or decreased need;
receipt of public assistance;
- A change in the cost of living for either party which makes the obligation unreasonable or unfair;
- extraordinary medical expenses of the child not provided for in a previous order regarding health insurance or division of uninsured medical expenses;
- the addition of work or education related child care expenses of the obligee or a substantial increase or decrease in the exiting work or education related child care expenses;
- the emancipation of a child.
A substantial change is presumed to have occurred if:
There is also a proviso under the law that a
court has the discretion to limit the first
modification under the new income share
child support law if the new amount would
create an undue hardship for either party.
This will undoubtedly be the subject of much
- the gross income of either party has increased or decreased substantially;
- the need of either party or the children has increased or decreased substantially;
- one party has been forced onto public assistance;
- there has been a significant increase or decrease in the Cost of Living as determined by the Federal Bureau of Labor Statistics;
- extraordinary medical expenses for the child exist that are not covered by other provisions of the partiesí court order;
- there has been a substantial change in work or education related child care expenses;
- a child has been emancipated.
- both parents consent to a modification and application of the new law.
Can child support be retroactively modified?
No. Any modification will only date back to
the date that a Motion is filed.
Will the Child Support be reviewed in the
Yes. Every family
court order or divorce judgment that
addresses the issues of child support,
custody or parenting time will include an
attached form and instructions for either
party to seek a review of the order after a
six month period. Once that written request
for review is filed with the Court
Administrator, a hearing date will be
scheduled. At that hearing, the Court may
impose penalties for contempt on either
party based on their failure to comply with
the court orders. The hearing is designed
to review the following issues:
Court and all other statutory remedies are
available at that six month review hearing.
Child Support. Whether
child support is current. The burden of
demonstrating that child support is
current will fall upon the person paying
support. He/she may request an
accounting of child support from the
child support enforcement office no less
than 14 days prior to the hearing;
Parenting Time. Whether
both parties are complying with the
parenting provisions of the Court order.
How will medical support be determined?
The new law is
similar to the old law. It requires the
court to order parties to maintain or
obtain appropriate health insurance if it is
The court must
consider the needs of the child, the
accessibility of the insurance to each
party, its affordability, the comprehensive
nature of the coverage and any special needs
of the child.
The court will
allocate a division of out of pocket medical
expenses and premiums based on each parents
percentage of total income.
How are child care expenses divided?
This portion of the law remains the same as
the old law. Any child care expenses
necessitated by a parents work or educations
schedule will be prorated between the
parents based on their income share.
the amount of the child care that is divided
will take into account the tax reduction
allotted to the custodial parents (which is
generally about 25% of the total).
That means you would take the total child
care amount per month, subtract out 25% or
the allotted tax benefit, and divide the
remaining portion proportionate to income.
can I do now?
The new law creates some logistical
nightmares for the Courts. There is very
likely to be a rush to adjust support
before the new law takes effect. Many
parents will seek
to increase child support based on the
existing law so that the child support payer
may be less likely to qualify for a
modification under the new law.
Certainly after the law takes effect there
will be a number of new filings to modify
support obligations. As a
result, it is clear that those wishing to
have their child support modified should
prepare well in advance and file early
before the glut of cases back logs the court
dockets and delays motion hearings.
For a review of your child support
obligation call (612) 240-8005.