HF 3602

as introduced - 81st Legislature (1999 - 2000) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to family law; imposing certain limitations 
  1.3             on child support, maintenance, and wage garnishment; 
  1.4             requiring a notice; amending Minnesota Statutes 1998, 
  1.5             sections 518.131, subdivision 7; 571.72, by adding a 
  1.6             subdivision; and 571.922; Minnesota Statutes 1999 
  1.7             Supplement, section 518.551, subdivision 5. 
  1.8   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.9      Section 1.  Minnesota Statutes 1998, section 518.131, 
  1.10  subdivision 7, is amended to read: 
  1.11     Subd. 7.  The court shall be guided by the factors set 
  1.12  forth in sections 518.551 (concerning child support), 518.552 
  1.13  (concerning maintenance), 518.17 to 518.175 (concerning custody 
  1.14  and visitation), and 518.14 (concerning costs and attorney fees) 
  1.15  in making temporary orders and restraining orders.  The 
  1.16  limitation on support and maintenance orders in section 518.551, 
  1.17  subdivision 5, paragraph (m), applies to temporary orders under 
  1.18  this section. 
  1.19     Sec. 2.  Minnesota Statutes 1999 Supplement, section 
  1.20  518.551, subdivision 5, is amended to read: 
  1.21     Subd. 5.  [NOTICE TO PUBLIC AUTHORITY; GUIDELINES.] (a) The 
  1.22  petitioner shall notify the public authority of all proceedings 
  1.23  for dissolution, legal separation, determination of parentage or 
  1.24  for the custody of a child, if either party is receiving public 
  1.25  assistance or applies for it subsequent to the commencement of 
  1.26  the proceeding.  The notice must contain the full names of the 
  2.1   parties to the proceeding, their social security account 
  2.2   numbers, and their birth dates.  After receipt of the notice, 
  2.3   the court shall set child support as provided in this 
  2.4   subdivision.  The court may order either or both parents owing a 
  2.5   duty of support to a child of the marriage to pay an amount 
  2.6   reasonable or necessary for the child's support, without regard 
  2.7   to marital misconduct.  The court shall approve a child support 
  2.8   stipulation of the parties if each party is represented by 
  2.9   independent counsel, unless the stipulation does not meet the 
  2.10  conditions of paragraph (i).  In other cases the court shall 
  2.11  determine and order child support in a specific dollar amount in 
  2.12  accordance with the guidelines and the other factors set forth 
  2.13  in paragraph (c) and any departure therefrom.  The court may 
  2.14  also order the obligor to pay child support in the form of a 
  2.15  percentage share of the obligor's net bonuses, commissions, or 
  2.16  other forms of compensation, in addition to, or if the obligor 
  2.17  receives no base pay, in lieu of, an order for a specific dollar 
  2.18  amount. 
  2.19     (b) The court shall derive a specific dollar amount for 
  2.20  child support by multiplying the obligor's net income by the 
  2.21  percentage indicated by the following guidelines:  
  2.22  Net Income Per            Number of Children 
  2.23  Month of Obligor 
  2.24                1     2     3     4     5     6    7 or 
  2.25                                                   more 
  2.26  $550 and Below     Order based on the ability of the 
  2.27                     obligor to provide support  
  2.28                     at these income levels, or at higher  
  2.29                     levels, if the obligor has 
  2.30                     the earning ability. 
  2.31  $551 - 600   16%   19%   22%   25%   28%   30%   32% 
  2.32  $601 - 650   17%   21%   24%   27%   29%   32%   34% 
  2.33  $651 - 700   18%   22%   25%   28%   31%   34%   36% 
  2.34  $701 - 750   19%   23%   27%   30%   33%   36%   38% 
  2.35  $751 - 800   20%   24%   28%   31%   35%   38%   40% 
  2.36  $801 - 850   21%   25%   29%   33%   36%   40%   42% 
  3.1   $851 - 900   22%   27%   31%   34%   38%   41%   44% 
  3.2   $901 - 950   23%   28%   32%   36%   40%   43%   46% 
  3.3   $951 - 1000  24%   29%   34%   38%   41%   45%   48% 
  3.4   $1001- 5000  25%   30%   35%   39%   43%   47%   50% 
  3.5   or the amount 
  3.6   in effect under
  3.7   paragraph (k)
  3.8      Guidelines for support for an obligor with a monthly income 
  3.9   in excess of the income limit currently in effect under 
  3.10  paragraph (k) shall be the same dollar amounts as provided for 
  3.11  in the guidelines for an obligor with a monthly income equal to 
  3.12  the limit in effect. 
  3.13  Net Income defined as: 
  3.14           
  3.15           Total monthly 
  3.16           income less           *(i) Federal Income Tax 
  3.17                                *(ii) State Income Tax 
  3.18                                (iii) Social Security
  3.19                                       Deductions 
  3.20                                 (iv) Reasonable
  3.21                                       Pension Deductions
  3.22           *Standard 
  3.23           Deductions apply-      (v) Union Dues 
  3.24           use of tax tables     (vi) Cost of Dependent Health
  3.25           recommended                 Insurance Coverage  
  3.26                                (vii) Cost of Individual or Group
  3.27                                       Health/Hospitalization
  3.28                                       Coverage or an        
  3.29                                       Amount for Actual 
  3.30                                       Medical Expenses   
  3.31                               (viii) A Child Support or  
  3.32                                       Maintenance Order that is
  3.33                                       Currently Being Paid. 
  3.34     "Net income" does not include: 
  3.35     (1) the income of the obligor's spouse, but does include 
  3.36  in-kind payments received by the obligor in the course of 
  4.1   employment, self-employment, or operation of a business if the 
  4.2   payments reduce the obligor's living expenses; or 
  4.3      (2) compensation received by a party for employment in 
  4.4   excess of a 40-hour work week, provided that: 
  4.5      (i) support is nonetheless ordered in an amount at least 
  4.6   equal to the guidelines amount based on income not excluded 
  4.7   under this clause; and 
  4.8      (ii) the party demonstrates, and the court finds, that: 
  4.9      (A) the excess employment began after the filing of the 
  4.10  petition for dissolution; 
  4.11     (B) the excess employment reflects an increase in the work 
  4.12  schedule or hours worked over that of the two years immediately 
  4.13  preceding the filing of the petition; 
  4.14     (C) the excess employment is voluntary and not a condition 
  4.15  of employment; 
  4.16     (D) the excess employment is in the nature of additional, 
  4.17  part-time or overtime employment compensable by the hour or 
  4.18  fraction of an hour; and 
  4.19     (E) the party's compensation structure has not been changed 
  4.20  for the purpose of affecting a support or maintenance obligation.
  4.21     The court shall review the work-related and 
  4.22  education-related child care costs paid and shall allocate the 
  4.23  costs to each parent in proportion to each parent's net income, 
  4.24  as determined under this subdivision, after the transfer of 
  4.25  child support and spousal maintenance, unless the allocation 
  4.26  would be substantially unfair to either parent.  There is a 
  4.27  presumption of substantial unfairness if after the sum total of 
  4.28  child support, spousal maintenance, and child care costs is 
  4.29  subtracted from the noncustodial parent's income, the income is 
  4.30  at or below 100 percent of the federal poverty guidelines.  The 
  4.31  cost of child care for purposes of this paragraph is 75 percent 
  4.32  of the actual cost paid for child care, to reflect the 
  4.33  approximate value of state and federal tax credits available to 
  4.34  the custodial parent.  The actual cost paid for child care is 
  4.35  the total amount received by the child care provider for the 
  4.36  child or children of the obligor from the obligee or any public 
  5.1   agency.  The court shall require verification of employment or 
  5.2   school attendance and documentation of child care expenses from 
  5.3   the obligee and the public agency, if applicable.  If child care 
  5.4   expenses fluctuate during the year because of seasonal 
  5.5   employment or school attendance of the obligee or extended 
  5.6   periods of visitation with the obligor, the court shall 
  5.7   determine child care expenses based on an average monthly cost.  
  5.8   The amount allocated for child care expenses is considered child 
  5.9   support but is not subject to a cost-of-living adjustment under 
  5.10  section 518.641.  The amount allocated for child care expenses 
  5.11  terminates when either party notifies the public authority that 
  5.12  the child care costs have ended and without any legal action on 
  5.13  the part of either party.  The public authority shall verify the 
  5.14  information received under this provision before authorizing 
  5.15  termination.  The termination is effective as of the date of the 
  5.16  notification.  In other cases where there is a substantial 
  5.17  increase or decrease in child care expenses, the parties may 
  5.18  modify the order under section 518.64. 
  5.19     The court may allow the noncustodial parent to care for the 
  5.20  child while the custodial parent is working, as provided in 
  5.21  section 518.175, subdivision 8.  Allowing the noncustodial 
  5.22  parent to care for the child under section 518.175, subdivision 
  5.23  8, is not a reason to deviate from the guidelines. 
  5.24     (c) In addition to the child support guidelines, the court 
  5.25  shall take into consideration the following factors in setting 
  5.26  or modifying child support or in determining whether to deviate 
  5.27  from the guidelines: 
  5.28     (1) all earnings, income, and resources of the parents, 
  5.29  including real and personal property, but excluding income from 
  5.30  excess employment of the obligor or obligee that meets the 
  5.31  criteria of paragraph (b), clause (2)(ii); 
  5.32     (2) the financial needs and resources, physical and 
  5.33  emotional condition, and educational needs of the child or 
  5.34  children to be supported; 
  5.35     (3) the standard of living the child would have enjoyed had 
  5.36  the marriage not been dissolved, but recognizing that the 
  6.1   parents now have separate households; 
  6.2      (4) which parent receives the income taxation dependency 
  6.3   exemption and what financial benefit the parent receives from 
  6.4   it; 
  6.5      (5) the parents' debts as provided in paragraph (d); and 
  6.6      (6) the obligor's receipt of public assistance under the 
  6.7   AFDC program formerly codified under sections 256.72 to 256.82 
  6.8   or 256B.01 to 256B.40 and chapter 256J or 256K.  
  6.9      (d) In establishing or modifying a support obligation, the 
  6.10  court may consider debts owed to private creditors, but only if: 
  6.11     (1) the right to support has not been assigned under 
  6.12  section 256.741; 
  6.13     (2) the court determines that the debt was reasonably 
  6.14  incurred for necessary support of the child or parent or for the 
  6.15  necessary generation of income.  If the debt was incurred for 
  6.16  the necessary generation of income, the court shall consider 
  6.17  only the amount of debt that is essential to the continuing 
  6.18  generation of income; and 
  6.19     (3) the party requesting a departure produces a sworn 
  6.20  schedule of the debts, with supporting documentation, showing 
  6.21  goods or services purchased, the recipient of them, the amount 
  6.22  of the original debt, the outstanding balance, the monthly 
  6.23  payment, and the number of months until the debt will be fully 
  6.24  paid. 
  6.25     (e) Any schedule prepared under paragraph (d), clause (3), 
  6.26  shall contain a statement that the debt will be fully paid after 
  6.27  the number of months shown in the schedule, barring emergencies 
  6.28  beyond the party's control.  
  6.29     (f) Any further departure below the guidelines that is 
  6.30  based on a consideration of debts owed to private creditors 
  6.31  shall not exceed 18 months in duration, after which the support 
  6.32  shall increase automatically to the level ordered by the court.  
  6.33  Nothing in this section shall be construed to prohibit one or 
  6.34  more step increases in support to reflect debt retirement during 
  6.35  the 18-month period.  
  6.36     (g) If payment of debt is ordered pursuant to this section, 
  7.1   the payment shall be ordered to be in the nature of child 
  7.2   support.  
  7.3      (h) Nothing shall preclude the court from receiving 
  7.4   evidence on the above factors to determine if the guidelines 
  7.5   should be exceeded or modified in a particular case.  
  7.6      (i) The guidelines in this subdivision are a rebuttable 
  7.7   presumption and shall be used in all cases when establishing or 
  7.8   modifying child support.  If the court does not deviate from the 
  7.9   guidelines, the court shall make written findings concerning the 
  7.10  amount of the obligor's income used as the basis for the 
  7.11  guidelines calculation and any other significant evidentiary 
  7.12  factors affecting the determination of child support.  If the 
  7.13  court deviates from the guidelines, the court shall make written 
  7.14  findings giving the amount of support calculated under the 
  7.15  guidelines, the reasons for the deviation, and shall 
  7.16  specifically address the criteria in paragraph (c) and how the 
  7.17  deviation serves the best interest of the child.  The court may 
  7.18  deviate from the guidelines if both parties agree and the court 
  7.19  makes written findings that it is in the best interests of the 
  7.20  child, except that in cases where child support payments are 
  7.21  assigned to the public agency under section 256.741, the court 
  7.22  may deviate downward only as provided in paragraph (j).  Nothing 
  7.23  in this paragraph prohibits the court from deviating in other 
  7.24  cases.  The provisions of this paragraph apply whether or not 
  7.25  the parties are each represented by independent counsel and have 
  7.26  entered into a written agreement.  The court shall review 
  7.27  stipulations presented to it for conformity to the guidelines 
  7.28  and the court is not required to conduct a hearing, but the 
  7.29  parties shall provide the documentation of earnings required 
  7.30  under subdivision 5b. 
  7.31     (j) If the child support payments are assigned to the 
  7.32  public agency under section 256.741, the court may not deviate 
  7.33  downward from the child support guidelines unless the court 
  7.34  specifically finds that the failure to deviate downward would 
  7.35  impose an extreme hardship on the obligor. 
  7.36     (k) The dollar amount of the income limit for application 
  8.1   of the guidelines must be adjusted on July 1 of every 
  8.2   even-numbered year to reflect cost-of-living changes.  The 
  8.3   supreme court shall select the index for the adjustment from the 
  8.4   indices listed in section 518.641.  The state court 
  8.5   administrator shall make the changes in the dollar amount 
  8.6   required by this paragraph available to courts and the public on 
  8.7   or before April 30 of the year in which the amount is to change. 
  8.8      (l) In establishing or modifying child support, if a child 
  8.9   receives a child's insurance benefit under United States Code, 
  8.10  title 42, section 402, because the obligor is entitled to old 
  8.11  age or disability insurance benefits, the amount of support 
  8.12  ordered shall be offset by the amount of the child's benefit.  
  8.13  The court shall make findings regarding the obligor's income 
  8.14  from all sources, the child support amount calculated under this 
  8.15  section, the amount of the child's benefit, and the obligor's 
  8.16  child support obligation.  Any benefit received by the child in 
  8.17  a given month in excess of the child support obligation shall 
  8.18  not be treated as an arrearage payment or a future payment. 
  8.19     (m) A court may not establish or modify child support at a 
  8.20  level that, together with other child support or spousal 
  8.21  maintenance orders, requires a payment of more of the obligor's 
  8.22  aggregate disposable earnings than is allowed for wage 
  8.23  garnishment under section 571.922.  
  8.24     Sec. 3.  Minnesota Statutes 1998, section 571.72, is 
  8.25  amended by adding a subdivision to read: 
  8.26     Subd. 4a.  [NOTICE OF GARNISHMENT LIMITATION.] A 
  8.27  garnishment summons must be accompanied by a notice of the 
  8.28  limitations on wage garnishment contained in section 571.922. 
  8.29     Sec. 4.  Minnesota Statutes 1998, section 571.922, is 
  8.30  amended to read: 
  8.31     571.922 [LIMITATION ON WAGE GARNISHMENT.] 
  8.32     Unless the judgment is for child support, the maximum part 
  8.33  of the aggregate disposable earnings of an individual for any 
  8.34  pay period subjected to garnishment may not exceed the lesser of:
  8.35     (1) 25 percent of the debtor's disposable earnings; or 
  8.36     (2) the amount by which the debtor's disposable earnings 
  9.1   exceed the following product:  40 times the federal minimum 
  9.2   hourly wages prescribed by section 6(a)(1) of the Fair Labor 
  9.3   Standards Act of 1938, United States Code, title 29, section 
  9.4   206(a)(1), in effect at the time the earnings are payable, times 
  9.5   the number of work weeks in the pay period.  When a pay period 
  9.6   consists of other than a whole number of work weeks, each day of 
  9.7   that pay period in excess of the number of completed work weeks 
  9.8   shall be counted as a fraction of a work week equal to the 
  9.9   number of excess work days divided by the number of days in the 
  9.10  normal work week. 
  9.11     If the judgment is for child support, the total garnishment 
  9.12  for the combination of the child support judgment and any 
  9.13  court-ordered spousal maintenance and child support may not 
  9.14  exceed: 
  9.15     (1) 50 percent of the judgment debtor's disposable income, 
  9.16  if the judgment debtor is supporting a spouse or dependent child 
  9.17  and the judgment is 12 weeks old or less (12 weeks to be 
  9.18  calculated to the beginning of the work week in which the 
  9.19  execution levy is received); 
  9.20     (2) 55 percent of the judgment debtor's disposable income, 
  9.21  if the judgment debtor is supporting a spouse or dependent 
  9.22  child, and the judgment is over 12 weeks old (12 weeks to be 
  9.23  calculated to the beginning of the work week in which the 
  9.24  garnishment summons is received); 
  9.25     (3) 60 percent of the judgment debtor's disposable income, 
  9.26  if the judgment debtor is not supporting a spouse or dependent 
  9.27  child and the judgment is 12 weeks old or less (12 weeks to be 
  9.28  calculated to the beginning of the work week in which the 
  9.29  execution levy is received); or 
  9.30     (4) 65 percent of the judgment debtor's disposable income, 
  9.31  if the judgment debtor is not supporting a spouse or dependent 
  9.32  child, and the judgment is over 12 weeks old (12 weeks to be 
  9.33  calculated to the beginning of the work week in which the 
  9.34  garnishment summons is received). 
  9.35     Wage garnishments on judgments for child support are 
  9.36  effective until the judgments are satisfied if the judgment 
 10.1   creditor is a county and the employer is notified by the county 
 10.2   when the judgment is satisfied. 
 10.3      No court or public authority may make, execute, or enforce 
 10.4   an order or any process in violation of this section.