Archives: Child Support

In Minnesota, child support is determined pursuant to certain guidelines. The income of each parent is taken into account, along with parenting time schedules, cost for daycare and cost for medical and dental insurance. While the support guidelines are not necessarily binding, the vast majority of judges embrace them.

When a parent fails to make good on child support payments, the negative effects impact not only the children and the other parent but also the entire dynamic of the post-divorce relationship. In some cases, the delinquent parent simply cannot afford to pay. In other cases, the parent deliberately refuses out of a belief that the arrangement isn’t fair. Finally, the parent may be a victim of bad luck. For instance, he loses his job or gets demoted when his company eliminates his position, and he no longer can make child support payments without an income stream. However, his obligation to pay won’t necessarily stop, and the child support debt can continue to mount.

When delinquency becomes chronic, consequences ensue.

An Unfair Burden on the Poorest Parents?

Not surprisingly, the lowest paid earners bear the heaviest child support burden and owe the most in back payments.

Republicans and Democrats alike agree that the federal system needs an overhaul and that payments should stop for those in prison across the nation. While conservatives in general want checks in place to prevent parents from taking advantage of this system, liberals in general prefer broader parameters, so that disadvantaged parents can climb out of what can become the bottomless pit of child support.

Stopping Child Support During Incarceration

If you are arrested and owe child support, your county child support worker might be able to assist you. Minnesota laws state that you can request child support to be reduced or stopped while you are in custody. However, the courts do not automatically stop child support. Instead, you will need to take the following steps:

1.    Submit a letter to the child support office, asking for a review of your case. Include your reason for the letter.
2.    Personnel at the agency will decide whether your case meets the criteria for modifications. They will notify the parent with an approval or a denial.
3.    If the request is denied, the parent can submit a motion directly to the court, asking for a modification of the order.

After you are released from custody, the court will again review your financial situation and establish a new order. It will consider your employment status in addition to your efforts to obtain employment.

If you’re a parent owed child support from a delinquent ex, you also have rights and options to seek fair compensation, so you can provide for yourself and your children.

Of the issues involved in a divorce in Minnesota, child support is generally recognized as the simplest to resolve. That does not mean, however, that the determination of basic support, medical support and daycare support is necessarily easy in every case.

Here are some of the more common questions our child support lawyers are asked concerning child support in Minnesota:

Who Must Pay Child Support?

Parents of minor children have a duty to provide for their financial support. Marital status does not matter. In other words, the same standards apply in a paternity case (involving unmarried individuals) and a traditional marital dissolution action.

Who Is A Child?

Pursuant to the Minnesota child support statutes, a child is defined as an individual under 18 years of age, or 20 years of age who is either: (1) still in high school; or (2) incapable of self support because of physical or mental impairment.

Can I Be Ordered To Pay Support For An Adult Child?

If a child has emancipated, or reaches the age of majority (18) , the Court loses jurisdiction over the issue of child support – again, unless one of the exceptions noted above is triggered.

What Is Basic Child Support?

Basic child support is the more traditional form of child support – a cash payment made from one parent to the other for the needs of the minor child (such as food, housing, clothing, education, and transportation).

What Is Medical Support?

Under Minnesota law, parents are obligated to divide, in proportion to their income, the cost for medical and dental insurance premiums for a child. They are also required to divide uninsured medical and dental expenses in proportion to their income (known as the PICS).

What Is Childcare Support?

Pursuant to Minnesota’s child support statutes, parents will be ordered to divide, pursuant to the PICS, the work-related childcare costs associated with minor children.

Can Parents Waive Child Support?

Because the Court considers child support to be “the child’s money,” it will not permit an outright waiver of child support. Instead, a “reservation” of support may take place. A reservation simply allows the parties to have no order on the issue in the moment, but return to Court later to address it, if they choose to do so.

The question most commonly asked of our divorce (and sometimes custody and paternity) clients involves how much support (either alimony or child support) they may receive, or pay, as part of their case.

The the answer to that inquiry can be rather complex, but the starting point in either situation involves a determination of “income” for each side.

Often overlooked by the litigants, “income” includes more than straight wages; it also involves unearned income, retained earnings, self-employment income, gifts, imputed income, housing benefits, per diem payments, and perks received as the owner of a business, or highly compensated individual.

For individuals who are W-2 employees, the determination of income is relatively straightforward. More digging occurs, however, when an individual is self-employed.

We often think of litigants as landing in one of four broad categories of earners: (1) W-2 employees; (2) self-employed individuals who run a “legitimate” business; (3) self-employed individuals who run a business haphazardly – often working for cash under the table; and (4) individuals who are not earning any income at all.

For the W-2 employee, a simple review of payroll records usually answers all questions.

A “legit” business owner typically employs an accountant, manages cashflow accurately, and files taxes on time. An interview the accountant and review of the relevant profit and loss statements and tax returns will typically result in a solid income figure.

Individuals who are unemployed will have income “imputed” to them at 150% of the state or federal minimum wage, whichever is larger.

The most difficulty arises in trying to determine the income of a business owner who is hiding money – either from their spouse, or the IRS. We often rely on a “lifestyle” argument in that situation, by presenting the Court with the basic facts about how large his/her home is (we’ve argued with “broke” parents who live in a $900,000 home), and what kind of car they drive, clothes they wear and vacations they take.

In general, the relevant statutes define income as “any periodic payment to an individual.” These types of payment can include:

  • Wages;
  • Tips;
  • Commissions;
  • Bonuses;
  • Workers’ Compensation Benefits;
  • Unemployment Benefits;
  • Annuity Payments;
  • Pension Payments;
  • Spousal Maintenance from a Prior Order;
  • Child Support from a Prior Order;
  • Social Security Benefits; or
  • Veteran’s Benefits.

Our clients also regularly ask about overtime pay. The law generally disfavors the inclusion of overtime pay (or other moonlighting earnings), unless overtime is required for employment, and was regularly worked during the relationship of the parties.

We’re often asked about how long child support payments must be made. Pursuant to Minn. Stat. Sec. 518A.39, Subdvision 5, a “child support obligation in a specific amount per child terminates automatically and without any action by the obligor to reduce, modify, or terminate the order upon the emancipation of the child.”

The answer, accordingly, is “until a child emancipates.” But what, exactly, is “emancipation?”

The emancipation of a child occurs in a number of ways.

The most typical form of emancipation involves a child graduating from high school, or reaching 18 years of age, whichever is later. In other words, if your high school graduate doesn’t turn 18 until August of the year they graduate, support payments will continue beyond high school for a few months. Well over 99% of the child support cases involve this type of standard.

There are situations in which a child qualifies for support until age 20 – usually when a minor has a disability of some sort. Support payments, however, need not continue beyond age 20, regardless of the circumstances.

Further, a minor can emancipate by agreement of the parties. If the facts and circumstances justify, the Court may approve an agreement to terminate child support prior to age 18, or high school graduation. The critical issue in such a situation involves whether parents have relinquished control and authority over a child’s upbringing. You should know that it is extremely rare for a judge to terminate support payments – even if agreement on this issue has been reached.

Emancipation may also take place if a child moves from a parent’s residence, and assumes responsibility for themselves. The child, in that circumstance, gives up the right to financial support by a parent.

There is no formal court process for determining whether a child is emancipated under the law. The concept of emancipation applies in a number of situations, including juvenile court and family court.

In the family court area, the simplest way to seek a finding that a child has emancipated involves filing a motion with the Court. Once you have presented all of the relevant information to the judge, s/he will be in position to determine whether, in fact, your child is self-supporting.

In January of 2007 the Minnesota child support guidelines underwent significant changes. Prior to the enactment of the present legislation found in Minnesota Statutes Section 518A, child support was based soley on the income of the obligor (the paying parent). Today, child support is based upon the relative income of both the obligor and obligee (the receiving parent), taking into account the nature of the physical custody of the minor children of the parties. The intent of the legislature was to enact guidelines that strike a balance in the income of each parent, the time each parent spends with the children and expenses non-custodial parents incur during their parenting time.

Child support involves three types of financial contribution: (1) basic support; (2) medical expenses; and (3) child care costs. Basic support is a monthly cash payment made from one parent to another for the support of the children. Medical support involves the payment of insurance premiums and uninsured expenses. Child care costs involve all work or education-related child care expenses incurred by the parents of a child.

The PICS (percentage of income for child support) of each parent is critical to determining how much support will change hands. The guidelines call for the Court to combine the gross (pre-tax) income of each parent and assign a relative percentage of the combined income to each. Once determined, this percentage (or PICS) is multiplied against the total support figure listed in the guidelines to determine how much basic support must change hands. A non-custodial parent receives a credit against the amount of support to be paid based upon the amount of parenting time they exercise. That same PICS is applied to the actual cost of health premiums, uninsured expenses and daycare to appropriately allocate the obligations of each parent.

The Minneapolis Star Tribune recently published an article about the Minnesota child support guidelines that were amended as of January 1, 2007. Seems no one is happy with what was sold as a more equitable approach to calculating child support, despite the legislature’s goal of reducing acrimony among split parents.

Reporter Jean Hopfensperger provides examples of mothers who are upset about the reduction in support received and writes that that “Fathers’ rights groups say orders still are set too high and the formula is based on unrealistic child-rearing expenses.”

Unlike the old child support guidelines that looked only at the net income of the paying parent, the new guidelines examine the gross income of both parents and divides support based upon their relative incomes – like most other states. Hopfensperger says that with the sagging economy, more parents are seeking to re-open the issue and see if they can increase the amount received or decrease the amount paid. Many are shocked to learn that the opposite will result.

If you are interested, you can access the Minnesota Child Support Calculator found at the Minnesota Department of Human Services web site to determine updated support amounts in your situation. Keep in mind that a “substantial” change in circumstance must present itself – meaning that under the new guidelines the difference paid or received per month must be at least 20% of the prior obligation and total more than $75.00.

Many couples question whether they can deviate from the Minnesota child support guidelines by agreement. While the court ultimately has discretion to do so, it does not happen very often. In fact, we’ve had orders kicked back because our stipulated support calculation was off by as little as $5.00 per month. Courts consider child support the “child’s money,” and, as a result, rarely afford parents the ability to unilaterally negotiate a different figure.

At the same time, however, we have successfully persuaded the courts to deviate. In considering a deviation from the child support guidelines, the court will examine factors such as:

  • Earnings, income and resources of the parties;
  • Financial needs and resources of the child;
  • Physical and emotional needs of the child;
  • Educational needs of the child;
  • Standard of living the child would enjoy in the absence of divorce;
  • Tax implications associated with the child’s dependency exemption;
  • Debts of the parties; and
  • Receipt of public assistance.

If the court deems appropriate, it may order or permit a child support obligation greater than, or less than, the Minnesota child support support guidelines. Still, the odds are against.

The court will “impute” income if your spouse is voluntarily underemployed. Rest assured, you have nothing to fear.

Let’s suppose your spouse is trained as a physician and decides, for the time being, to work as a waiter at a local restaurant. The court can take an individual’s education, work history, job opportunities in the local market and earnings associated with those jobs into account in calculating appropriate child or spousal support. Assuming your spouse is reasonably assured of obtaining a position as a doctor with a six-figure salary, a doctor’s salary will be attributed to them.

One of the more common discussions we have with new clients involves a spouse’s claim (with laughter) that they will quit their job and our client will receive nothing. “I’ll quit my job” they say. Wrong strategy. Your spouse is free to work in whatever capacity they wish. At the end of the day, however, the amount of support they pay is based on what they actually earn or have the potential to earn, whichever is greater.

Following the entry of a child support order, the recipient of support has the option of receiving payment directly from the payor or through collection by the county child support office. Most recipients find the services offered by their local child support collection agency very beneficial. Child support officers not only collect monthly support payments through wage withholding, but they also pursue unpaid support (arrears) with the assistance of the county attorney.

The Minnesota Department of Human Services has established a link to every child support office in the State of Minnesota. Visit the link here to obtain contact information about the child support office in your county.