|
|
|
|
CHILD SUPPORT
CHILD SUPPORT: YOUR COMPLETE
GUIDE
By Maury D. Beaulier, Esq.
1. IS INCOME WITHHOLDING NECESSARY?
Non-custodial parents often ask if child support must be automatically
deducted from their paychecks. The answer to that question is “yes”,
unless the other parent agrees to direct payments. Automatic income withholding
is prescribed by Minnesota law (M.S.A. § 518.551) and automatically occurs
unless it is specifically waived by agreement of the parties. Automatic income
withholding provides regular payments to a custodial parent. Regular payments,
however, do not mean that they always occur on the same day of the month. In
fact Minnesota’s child support collection system almost always seems to ensure
inconsistent payments that occur regularly.
2. WHAT ARE CHILD SUPPORT GUIDELINES?
The amount of child support paid by a non-custodial parent is dictated by
Minnesota Statutes (M.S.A.§ 518.551). It states that the court cannot use vague
percentages in determining child support and must derive “a specific
dollar amount” which is calculated by multiplying the obligor's net
income by the percentage indicated by the following guidelines:
| Net Income Per
Month of Obligor |
Child
1 |
Child
2 |
Child
3 |
Child
4 |
Child
5 |
Child
6 |
Child
7 or more |
| $550 and Below |
Order based on the ability
of the obligor to provide support at these income levels, or at higher
levels, if the obligor has the earning ability |
| $551 - 600 |
16% |
19% |
22% |
25% |
28% |
30% |
32% |
| $601 - 650 |
17% |
21% |
24% |
27% |
29% |
32% |
34% |
| $651 - 700 |
18% |
22% |
25% |
28% |
31% |
34% |
36% |
| $601 - 750 |
19% |
23% |
27% |
30% |
33% |
36% |
38% |
| $751 - 800 |
20% |
24% |
28% |
31% |
35% |
38% |
40% |
| $801 - 850 |
21% |
25% |
29% |
33% |
36% |
40% |
42% |
| $851 - 900 |
22% |
27% |
31% |
34% |
38% |
41% |
44% |
| $901 - 950 |
23% |
28% |
32% |
36% |
40% |
43% |
46% |
| $951-1000 |
24% |
29% |
34% |
38% |
41% |
45% |
48% |
| $1001 - 5000 |
25% |
30% |
35% |
39% |
43% |
47% |
50% |
3. WHAT IS “NET INCOME?”
Net Income is defined as:
Total monthly income less:
| |
*(i) Federal Income
Tax |
| |
*(ii) State Income
Tax |
| |
(iii) Social
Security Deductions |
| |
(iv)
Reasonable Pension Deductions (usually up to 10%) |
| |
(v) Union
Dues |
| |
(vi) Cost of
Dependent Health and/or Dental Insurance Coverage |
| |
(vii) Cost
of Individual or Group Health - Hospitalization Coverage or an Amount
for Actual Medical Expenses |
| |
(viii) A Child Support or Maintenance
Order that is currently Being Paid. |
“Net income"
specifically excludes:
- INCOME OF OBLIGOR'S SPOUSE (but does consider spouse’s
contribution to monthly household); or
- OVERTIME INCOME, provided that:
- support is nonetheless ordered in an amount at least equal to the
guidelines for a 40 hour work week; and
- the party demonstrates, and the court finds, that:
- the excess employment began after the filing of the petition for
divorce;
- the excess employment reflects an increase in the work schedule
or hours worked over that of the two years immediately preceding the
filing of the petition;
- the excess employment is voluntary and not a condition of
employment;
- the excess employment is in the nature of additional, part-time
or overtime employment compensable by the hour or fraction of an
hour; and
- the party's compensation structure has not been changed for the
purpose of affecting a support or maintenance obligation.
4. CAN A COURT DEVIATE FROM CHILD SUPPORT GUIDELINES?
The child support guidelines create a “rebuttable presumption”
regarding the amount of support paid. That means that they are used to determine
child support unless sufficient factual information exists to rebut the fairness
of the amount. Under current Minnesota law, it is very difficult to convince a
court or a magistrate to deviate from these guidelines.
- Deviating Upward.
As you will note, the child support guidelines have a cap at $5000 net
income per month. If an obligor earns in excess of $5000 per month net,
their child support is generally calculated based on $5000 net per month. I
use the terms “generally calculated” because child support guidelines
may be exceeded if you demonstrate to the court a very high standard of
living. Case law states that the child is entitled to the same standard of
living had the marriage continued. In many cases our attorneys have
convinced the court to ignore the cap on child support guidelines and to
calculate child support based on the top percentage of actual income. In
cases where an upward deviation is allowed, the obligor usually has income
significantly greater that the guideline cap or the child(ren) have special
needs medically or developmentally.
Minnesota Statutes § 518.551, Subd 5(c) specifically allows the Court to
consider the following factors when considering a deviation from guidelines:
- all earnings, income, and resources of the parents, including real
and personal property, but excluding income from excess employment of
the obligor or obligee;
- the financial needs and resources, physical and emotional condition,
and educational needs of the child or children to be supported;
- the standard of living the child would have enjoyed had the marriage
not been dissolved, but recognizing that the parents now have separate
households;
- which parent receives the income taxation dependency exemption and
what financial benefit the parent receives from it;
- the obligor's receipt of public assistance under the AFDC program.
Deviating Downward.
In order for a court to deviate downward from the guidelines, the Judge must
make specific findings that the deviation is in the best interests of the
child(ren). In other words, the Court must find that receiving “less”
is “better”. Obviously, this may be a difficult challenge. Arguing
hardship for the non-custodial parent generally does little good since the
statute looks only at what is best for the minor child(ren), not what is best
for the non-custodial parent. As a result, when seeking a downward deviation
form child support guidelines, it is important to focus on how the deviation is
necessary for the minor child.
In addition to the factors above for an upward deviation, Minnesota Statutes
allow the court to consider, following factors in setting or modifying child
support or in determining whether to deviate from the guidelines:
SECOND FAMILY ISSUES. Minnesota Statutes specifically state that
the a person owing child support may not seek a reduction of a pre-existing
child support obligation because he/she later has more children. The statute
is unmerciful, stating “the fact that an obligor had additional
children after the entry of a child support order is not grounds for a
modification to decrease the amount of support owed.” However, the
fact that an obligor has subsequent children may be use as a defense
to a motion to increase child support by an obligee. In order to deviate
from the support guidelines based on the needs of subsequent children, the
trial court must:
- find the obligor's total ability to contribute to dependent
children, taking into account the obligor's income and reasonable
expenses exclusive of child care. The obligor's expenses must be:
- reduced as appropriate to take into account contributions to
those costs by other adults who share the obligor's current
household; and
- apportioned between the parent and any subsequent child with
regard to shared benefits, including but not limited to, housing and
transportation;
- find the total needs of all the obligor's children, and if these
needs are less than the obligor's ability to pay, the needs may
become the obligor's child support obligation. When considering the
needs of subsequent children, the trial court must reduce those
amounts as appropriate to take into account the ability to
contribute to those needs by another parent of the children;
- make specific findings on the needs of the child or children who
are the subject of the support order under consideration; and
- exercise discretion to fairly determine the current support
obligation and the contribution left available for other children,
considering that the support obligation being determined should be
in an amount at least equal to the contribution for a subsequent
child.
5. CAN PARENTS AGREE ON THE CHILD SUPPORT AMOUNT?
Parties may not agree to a child support amount that does not reflect child
support guidelines or that does not provide a reason to depart from the
guidelines as set out in Minnesota Statutes. Child support is considered a right
of the child, not a right of the parents. As a result, parents cannot agree to
modify the child’s rights. It is considered by the Court to be the equivalent of
having a disinterested party agreeing to modify someone else’s contract. Court’s
review all stipulations related to child support and must find the necessary
facts required under Minnesota Statutes before ratifying a stipulation by
entering it as an order.
Agreements relating to child support that are not memorialized as a Court
order are unenforceable. Moreover, child support cannot be determined
retroactively except in cases of paternity. In paternity cases, the Court may
reach back two years prior to the filing of a paternity action seeking child
support reimbursement.
Though this sounds like a harsh result where parents are willing to agree on
a child support amount, from a practical standpoint there are ways to ensure
that most agreements reached by parents are ratified by the Court.
*Often it is just a matter of providing some additional facts or the correct
language for the Court to accept an agreement on child support.
6. WHO PAYS DAYCARE/CHILD CARE EXPENSES?
Contribution to daycare expenses is a child support obligation in addition to
support set by Child support guidelines. Only certain qualified child care
expenses are divided between parents. The child care expenses must be incurred
based on the custodial parent’s attendance in an educational program or work.
Generally, daycare providers require weekly contracts even if the children)
do not attend the daycare full time. As such, parents are often required to
divide the cost of weekly daycare even though the child may not attend the
daycare full time each week.
The costs of daycare are divided in proportion to each parent's net income
after the transfer of child support and spousal maintenance, unless the
allocation would be substantially unfair to either parent. There is a
presumption of substantial unfairness if after the sum total of child support,
spousal maintenance, and child care costs is subtracted from the non-custodial
parent's income, the income is at or below 100 percent of the federal poverty
guidelines. The cost of child care for purposes of this paragraph is 75 percent
of the actual cost paid for child care, to reflect the approximate value of
state and federal tax credits available to the custodial parent. If child care
expenses fluctuate during the year because of seasonal employment or school
attendance of the obligee or extended periods of visitation with the obligor,
the court shall determine child care expenses based on an average monthly cost.
Minnesota Statutes specifically allows a court to order the non-custodial
parent to care for the child while the custodial parent is working. Though this
may decrease contribution to daycare costs, the statute specifically states that
allowing the non- custodial parent to care for the child is not a reason to
deviate from the child support guidelines.
7. IF A CHILD RECEIVES INCOME FROM SOCIAL SECURITY OR OTHER INSURANCE
BENEFITS DOES IT REDUCE CHILD SUPPORT?
In establishing or modifying child support, if a child receives a child's
insurance benefits for Social Security or Social Security Disability because the
obligor is entitled to benefits, the amount of support is offset dollar for
dollar by the amount received by the child.
8. CAN THE COURT ORDER COMMUNITY SERVICE FOR THE UNEMPLOYED?
If the court finds that the obligor earns $400 or less per month and does not
have the ability to provide support based on the guidelines, the court may order
the community services to fulfill the support obligation. In ordering community
services subdivision, the court must consider whether the obligor has the
physical capability of performing community services, and must order community
services that are appropriate for the obligor's abilities.
9. IS THE NON-CUSTODIAL PARENT LIMITING INCOME TO AVOID SUPPORT?
Oftentimes it is argued that a parent is self-limiting his or her income in
order to avoid paying child support. Minnesota Statutes do allow a court to
“impute income” in select instances. Imputed income means the estimated
earning ability of a parent based on the parent's prior earnings history,
education, and job skills, and on availability of jobs within the community for
an individual with the parent's qualifications.
Minn.Stat. §518.551, subd. 5b(d) specifically states that “a parent is not
considered voluntarily unemployed or underemployed if the unemployment or
underemployment:
- is temporary and will ultimately lead to an increase in income; or
- represents a bona fide career change that outweighs the adverse effect
of that parent's diminished income on the child.
10. WHO PAYS COLLEGE COSTS?
The Court may not require any parent to contribute to college fund or share
costs related to post-secondary education. However, the court may order
contribution to a college fund and or payment of college cost only if the
parents agree on that issue. Once the agreement is memorialized by a Court
order, it becomes enforceable through contempt proceedings.
11. CAN CHILD SUPPORT BE REDUCED DURING EXTENDED VISITATION?
Minnesota Statutes § 518.551, Subd. 5e specifically allows the Court to
adjust child support if a child will be with a non-custodial parent for a period
of time of 30 consecutive days or longer. This simply means that the court has
discretion to order a reduction. It does not always occur. That is particularly
true where the custodial parent can demonstrate that certain monthly expenses do
not decrease in the child’s absence. (Eg. Maintaining a home, feed, clothing
etc...).
|
DivorceInteractive.com tries to provide
quality information, but cannot guarantee the accuracy, completeness or adequacy
of the information, opinions or other content posted on the site. It is not
intended as a substitute for and should not be relied upon as legal, financial,
accounting, tax, medical or other professional advice. It should not be
construed as establishing a professional-client or professional-patient
relationship. The applicability of legal principles is subject to amendment by
the legislature, interpretation by the courts and different application by
different judges and may differ substantially in individual situations or
different states. Before acting on what you have read, it is important to obtain
appropriate professional advice about your particular situation and facts.
Access to and use of DivorceInteractive.com is subject to additional
Terms and Conditions. DivorceInteractive.com
is a secure site and respects your Privacy.
Home |
Advertise With Us |
Professional & Resource Directory
Divorce News | Glossary | Divorce Discussion Forums
Change Area Code | Terms & Conditions/Legal Disclaimer | Privacy Policy | About Us |
Contact Us
© 2001-2010
DivorceInteractive.com All Rights Reserved.
|
