Index:

1. When Does the New Minnesota Child Support Law go into effect?

The new law will take effect on January 1, 2007. Modification cases will not be available automatically until January 1, 2008.

The new child support law will undoubtedly create a number of filings in 2005 through 2008.

First, many parents are likely to seek child support reviews before the effective date for the new law. One of the reasons for filing for a child support modification before the deadline may include:

• Seeking an increase in child support Seeking an increase in 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. Modifications are not automatic simply because a new law is in place. The payer must demonstrate that it will substantially change his or her obligation.

2. What does the new child support law address?

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 support.

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.

3. Does it Matter if I am not the Custodial Parent?

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.

4. How will Child Support be calculated under the new child support law in Minnesota?

Child support that is paid under the new statutory guidelines is specifically designated as a payment for “basic support.”

Basic support relates to the child’s:

• housing;
• food;
• clothing;
• transportation;
• education costs; and
• other expenses related to the child’s care.

It specifically excludes costs related to child care (daycare) and medical/dental expenses.

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.

SYSTEM ONE: Parenting Time is not Equal.

The computation of child support where the parents do not have presumed equal parenting time can be calculated as follows:

1. Determine the monthly gross income for each parent;
2. Add the monthly gross incomes of both parents together.
3. Once those figures have been determined, a parent may locate the income bracket based on combined income on the child support guideline chart (See New Child Support Guideline - Chart at bottom of page);
4. Find the presumptive child support amount under the column indicating the number of joint children between the parties;
5. Multiply the presumptive child support amount by the percentage of the total income represented by each parent’s individual income. In other words, determine each parent’s proportionate share of the total child support amount. This can be accomplished by using each parent’s monthly gross income as the numerator and dividing by gross income as the denominator. For example, if mom earns $2,000 gross per month and dad earns $3,000 gross per month, the total income is $5,000 per month. Child support for one child is presumed to be $780.00 per month. That figure is divided proportionate to income. For dad, that would be $3,000/5000 or 60%. As a result, his obligation would be $780.00 x .6 = 468.00. For mom it would be 40% or $312.00. The parent with the child less than 45.1% of the time would have a child support obligation to pay. There is no offset of the amounts.
6. Next, apply a parenting time adjustment to the obligor's basic child support figure. If the parent has the child less than 10% of the time there is no adjustment. If the parent has the child 10 percent to 45 percent of the time, there is a 12% adjustment. If the parent has the child 45.1 percent of the time to 50 percent of the time, it is presumed that the parenting time is equal. The calculation for equal parenting will be discussed in more detail below. Using the example above, if dad has the children 30% of the time, his obligation is reduced as follows: 468 x .12= 56.16; 468 - 56.16= $411.84. As a result, dad would pay child support to mom in the amount of $411.84 per month.

SYSTEM TWO: Parenting Time is Equal.

Parents that have presumed equal parenting time (45.1 to 50 percent of the time) would pay no child support if their incomes were also equal. If their incomes are not equal, the parent with the greater income would pay child support as follows:

1. Take combined presumptive support amount found in Step 4 above and multiply it by 1.5. Using our existing example, that would be $780 x 1.5 = $1,170.00.
2. Prorate this obligation based on respective income. That is 60% for dad in the example or $702.00; and 40% for mom or $468.00.
3. Subtract 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.

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 Sec. 518.717.

6. 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:

• 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) 746-2153.
• 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 disabled.

If the child in question is a child from a different relationship, the parent will be deemed underemployed.

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 action;
• 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 mentally disabled.

8. What if a parent goes to college or other training, is incarcerated, disabled or changes careers to reduce or eliminate their income?

A parent is not considered underemployed if that parent can demonstrate that:

• the unemployment or underemployment is temporary and will ultimately lead to an increase income.
• 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.

9. What if a parent receives temporary assistance to a needy family (TANF) cash grants?

No potential income is imputed to that parent.

10. 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 time.

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.

11. 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 as:

• 3 months of the most recent pay stubs for each party;
• employer statements
• statements of receipts and expenses if self employed;
• most recent federal tax returns with W-2 forms and/or 1099 forms;
• unemployment or worker's compensation benefit statements;
• Any other evidence of earnings including trust income.

12. 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:

1. substantially increased or deceased income of the obligor;
2. either party or the child subject to the proceedings have substantially increased or decreased need; receipt of public assistance;
3. A change in the cost of living for either party which makes the obligation unreasonable or unfair;
4. extraordinary medical expenses of the child not provided for in a previous order regarding health insurance or division of uninsured medical expenses;
5. 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;
6. the emancipation of a child.

1. the gross income of either party has increased or decreased substantially;
2. the need of either party or the children has increased or decreased substantially;
3. one party has been forced onto public assistance;
4. there has been a significant increase or decrease in the Cost of Living as determined by the Federal Bureau of Labor Statistics;
5. extraordinary medical expenses for the child exist that are not covered by other provisions of the parties’ court order;
6. there has been a substantial change in work or education related child care expenses;
7. a child has been emancipated.
8. both parents consent to a modification and application of the new law.

• the change in the law would result in a change in child support of $75 or more per month. This will be considered a rebuttable presumption of unfairness. this will most likely affect those parents who have a significant amount of parenting time with a child but who still pay guideline child support. To seek a modification call us at (612) 240-8005.

• either parent has a decrease in gross income of 20% or more through no fault or choice of their own.

13. Can child support be retroactively modified?

No. Any modification will only date back to the date that a Motion is filed.

14. Will the Child Support be reviewed in the future?

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:

• 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.

For a review of your child support obligation call (612) 240-8005.

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