HF 935

as introduced - 79th Legislature (1995 - 1996) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to human services; changing provisions for 
  1.3             child support; amending Minnesota Statutes 1994, 
  1.4             sections 518.171, subdivision 1; 518.54, subdivisions 
  1.5             2 and 6, and by adding a subdivision; 518.551, 
  1.6             subdivisions 1, 5, 5a, 5b, and by adding a 
  1.7             subdivision; 518.57, subdivision 2; and 518.64, 
  1.8             subdivisions 2 and 4. 
  1.9   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.10     Section 1.  Minnesota Statutes 1994, section 518.171, 
  1.11  subdivision 1, is amended to read: 
  1.12     Subdivision 1.  [ORDER.] (a) Every child support order must 
  1.13  expressly assign or reserve the responsibility for maintaining 
  1.14  medical insurance for the minor children and the division of 
  1.15  uninsured medical and dental costs.  The court shall order the 
  1.16  party with the better group dependent health and dental 
  1.17  insurance coverage or health insurance plan to name the minor 
  1.18  child as beneficiary on any health and dental insurance plan 
  1.19  that is available to the party on: 
  1.20     (i) a group basis; 
  1.21     (ii) through an employer or union; or 
  1.22     (iii) through a group health plan governed under the ERISA 
  1.23  and included within the definitions relating to health plans 
  1.24  found in section 62A.011, 62A.048, or 62E.06, subdivision 2.  
  1.25  "Health insurance" or "health insurance coverage" as used in 
  1.26  this section means coverage that is comparable to or better than 
  1.27  a number two qualified plan as defined in section 62E.06, 
  2.1   subdivision 2.  "Health insurance" or "health insurance 
  2.2   coverage" as used in this section does not include medical 
  2.3   assistance provided under chapter 256, 256B, or 256D. 
  2.4      (b) If the court finds that dependent health or dental 
  2.5   insurance is not available to the obligor or obligee on a group 
  2.6   basis or through an employer or union, or that group insurance 
  2.7   is not accessible to the obligee, the court may shall require 
  2.8   the obligor (1) to obtain other dependent health or dental 
  2.9   insurance, (2) to be liable for reasonable and necessary medical 
  2.10  or dental expenses of the child, or (3) to pay no less than $50 
  2.11  per month to be applied to the medical and dental expenses of 
  2.12  the children or to the cost of health insurance dependent 
  2.13  coverage. 
  2.14     (c) If the court finds that the available dependent health 
  2.15  or dental insurance does not pay all the reasonable and 
  2.16  necessary medical or dental expenses of the child, including any 
  2.17  existing or anticipated extraordinary medical expenses, and the 
  2.18  court finds that the obligor has the financial ability to 
  2.19  contribute to the payment of these medical or dental expenses, 
  2.20  the court shall require the obligor to be liable for all or a 
  2.21  portion of the medical or dental expenses of the child not 
  2.22  covered by the required health or dental plan.  Medical and 
  2.23  dental expenses include, but are not limited to, necessary 
  2.24  orthodontia and eye care, including prescription lenses. 
  2.25     (d) Unless otherwise agreed by the parties and approved by 
  2.26  the court, if the court finds that the obligee is not receiving 
  2.27  public assistance for the child and has the financial ability to 
  2.28  contribute to the cost of medical and dental expenses for the 
  2.29  child, including the cost of insurance, The court shall order 
  2.30  the obligee and obligor to each assume a portion of 
  2.31  these medical expenses, including health and dental insurance 
  2.32  premiums and medical and dental expenses not covered by the 
  2.33  health or dental plans, based on their proportionate share 
  2.34  of their total net the combined income available for child 
  2.35  support as defined in section 518.54, subdivision 6 518.551, 
  2.36  subdivision 5, paragraph (b).  Health and dental insurance 
  3.1   premiums shall be allocated under this section only if the 
  3.2   parent naming the child as a beneficiary on a plan must incur 
  3.3   additional cost to cover the child. 
  3.4      (e) Payments ordered under this section are subject to 
  3.5   section 518.611.  An obligee who fails to apply payments 
  3.6   received to the medical expenses of the dependents may be found 
  3.7   in contempt of this order. 
  3.8      Sec. 2.  Minnesota Statutes 1994, section 518.54, 
  3.9   subdivision 2, is amended to read: 
  3.10     Subd. 2.  [CHILD.] "Child" means an individual under 18 
  3.11  years of age, an individual under age 20 who is still attending 
  3.12  secondary school, as defined in section 123.70, subdivision 9, 
  3.13  paragraph (a), or engaged full time in a GED program, or an 
  3.14  individual who, by reason of physical or mental condition, is 
  3.15  incapable of self-support.  A child who ceases to attend 
  3.16  secondary school prior to graduation and later reenrolls is 
  3.17  entitled to support upon reenrollment, up to the age of 20. 
  3.18     Sec. 3.  Minnesota Statutes 1994, section 518.54, 
  3.19  subdivision 6, is amended to read: 
  3.20     Subd. 6.  [INCOME.] (a) "Income" means any form of periodic 
  3.21  payment to an individual including, but not limited to, wages, 
  3.22  salaries, payments to an independent contractor, workers' 
  3.23  compensation, reemployment insurance, annuity, military and 
  3.24  naval retirement, pension and disability payments.  Benefits 
  3.25  received under sections 256.72 to 256.87 and chapter 256D are 
  3.26  not income under this section., tips, commissions, royalties, 
  3.27  interest and dividend payments, social security, money from 
  3.28  trusts, spousal support actually received, rental payments, 
  3.29  money from self-employment, money from business and 
  3.30  partnerships, deferred compensation, perquisites or in-kind 
  3.31  compensation and capital gains in real or personal property to 
  3.32  the extent that they represent a source of income.  
  3.33     (b) Income also includes other resources of an individual 
  3.34  including but not limited to, nonperiodic distributions of 
  3.35  workers' compensation claims, reemployment claims, personal 
  3.36  injury settlements, severance pay, bonuses, and lottery or 
  4.1   gambling winnings.  
  4.2      (c) Income of members of any branch of the United States 
  4.3   armed services or national guard includes, but is not limited 
  4.4   to, amounts representing base pay, basic allowance for quarters, 
  4.5   supplemental subsistence allowance, cost of living adjustments, 
  4.6   specialty pay, variable housing allowance, and pay for training 
  4.7   or other types of drills.  Income includes cash benefits 
  4.8   received from means-tested public assistance including, but not 
  4.9   limited to, aid to families with dependent children, Minnesota 
  4.10  family investment plan, supplemental security income, and 
  4.11  general assistance.  Income does not include noncash transfers 
  4.12  such as food stamps, child care subsidies, housing assistance, 
  4.13  energy assistance, or medical assistance.  Income does not 
  4.14  include any earned income tax credit amounts.  
  4.15     (d) Income does not include income of a parent's spouse or 
  4.16  child support payments received for children for whom support is 
  4.17  not being determined. 
  4.18     Sec. 4.  Minnesota Statutes 1994, section 518.54, is 
  4.19  amended by adding a subdivision to read: 
  4.20     Subd. 13.  [FEDERAL POVERTY LEVEL.] "Federal poverty level" 
  4.21  means the annual federal poverty figures as published by the 
  4.22  United States Department of Health and Human Services in the 
  4.23  Federal Register. 
  4.24     Sec. 5.  Minnesota Statutes 1994, section 518.551, 
  4.25  subdivision 1, is amended to read: 
  4.26     Subdivision 1.  [SCOPE; PAYMENT TO PUBLIC AGENCY.] (a) This 
  4.27  section applies to all proceedings involving an award of child 
  4.28  support.  There is a rebuttable presumption that the amount of 
  4.29  child support which would result from applying the guidelines is 
  4.30  the correct amount of child support to be ordered.  
  4.31     The court shall consider the following principles when 
  4.32  determining a child support amount:  
  4.33     (1) providing child support is a personal parental 
  4.34  responsibility.  Being a parent creates an irrevocable, 
  4.35  nontransferable lien on the income and assets of that parent.  
  4.36  The obligation for each parent's share of a child's support 
  5.1   should not be transferred to the other parent or to others, 
  5.2   including taxpayers, except under very limited circumstances.  
  5.3   Every parent, regardless of age or income, has the 
  5.4   responsibility to provide at least a minimum amount of support; 
  5.5   and 
  5.6      (2) maintenance of two separate households means higher per 
  5.7   person costs, duplication of expenses, and less resource 
  5.8   sharing.  Each parent should be able to keep sufficient income 
  5.9   to meet the parent's own basic needs.  Children of separated, 
  5.10  divorced, or never married parents are entitled to a standard of 
  5.11  living sufficient to meet their basic needs.  Parents must meet 
  5.12  the basic needs of their children before they keep income above 
  5.13  the self support level.  A child is entitled to share in the 
  5.14  standard of living of the child's parents to the extent that 
  5.15  either parent's standard of living exceeds that necessary to 
  5.16  provide for the child's basic needs.  
  5.17     (b) The court shall direct that all payments ordered for 
  5.18  maintenance and support be made to the public agency responsible 
  5.19  for child support enforcement so long as the obligee is 
  5.20  receiving or has applied for public assistance, or has applied 
  5.21  for child support and maintenance collection services.  The 
  5.22  public authority shall enforce the most current order.  If 
  5.23  income withholding has been implemented on a previous order 
  5.24  pursuant to sections 518.611 and 518.613, the public authority 
  5.25  providing enforcement services shall administratively terminate 
  5.26  the income withholding.  The public authority shall notify the 
  5.27  obligee and obligor of the intent to terminate income 
  5.28  withholding on the previous order.  Five days following this 
  5.29  notice, the public authority shall issue a notice to the payor 
  5.30  of funds, informing them of the withholding amount without a 
  5.31  requirement for a court order unless a hearing has been 
  5.32  requested by the obligee or obligor.  Public authorities 
  5.33  responsible for child support enforcement may act on behalf of 
  5.34  other public authorities responsible for child support 
  5.35  enforcement.  This includes the authority to represent the legal 
  5.36  interests of or execute documents on behalf of the other public 
  6.1   authority in connection with the establishment, enforcement, and 
  6.2   collection of child support, maintenance, or medical support, 
  6.3   and collection on judgments.  Amounts received by the public 
  6.4   agency responsible for child support enforcement greater than 
  6.5   the amount granted to the obligee shall be remitted to the 
  6.6   obligee.  
  6.7      Sec. 6.  Minnesota Statutes 1994, section 518.551, 
  6.8   subdivision 5, is amended to read: 
  6.9      Subd. 5.  [NOTICE TO PUBLIC AUTHORITY; GUIDELINES.] (a) The 
  6.10  petitioner shall notify the public authority of all proceedings 
  6.11  for dissolution, legal separation, determination of parentage or 
  6.12  for the custody of a child, if either party is receiving aid to 
  6.13  families with dependent children or applies for it subsequent to 
  6.14  the commencement of the proceeding.  The notice must contain the 
  6.15  full names of the parties to the proceeding, their social 
  6.16  security account numbers, and their birth dates.  After receipt 
  6.17  of the notice, the court shall set child support as provided in 
  6.18  this subdivision.  The court may order either or both parents 
  6.19  owing a duty of support to a child of the marriage to pay an 
  6.20  amount reasonable or necessary for the child's support, without 
  6.21  regard to marital misconduct.  The court shall approve a child 
  6.22  support stipulation of the parties if each party is represented 
  6.23  by independent counsel, unless the stipulation does not meet the 
  6.24  conditions of paragraph (i) (e).  In other cases the court shall 
  6.25  determine and order child support in a specific dollar amount in 
  6.26  accordance with the guidelines and the other factors set forth 
  6.27  in paragraph (b) and any departure therefrom.  The court may 
  6.28  also order the obligor to pay child support in the form of a 
  6.29  percentage share of the obligor's net bonuses, commissions, or 
  6.30  other forms of compensation, in addition to, or if the obligor 
  6.31  receives no base pay, in lieu of, an order for a specific dollar 
  6.32  amount. 
  6.33     (b) The court shall derive a specific dollar amount for 
  6.34  child support by multiplying the obligor's net income by the 
  6.35  percentage indicated by the following guidelines:  
  6.36  Net Income Per            Number of Children 
  7.1   Month of Obligor 
  7.2                 1     2     3     4     5     6    7 or 
  7.3                                                    more 
  7.4   $550 and Below     Order based on the ability of the 
  7.5                      obligor to provide support  
  7.6                      at these income levels, or at higher  
  7.7                      levels, if the obligor has 
  7.8                      the earning ability. 
  7.9   $551 - 600   16%   19%   22%   25%   28%   30%   32% 
  7.10  $601 - 650   17%   21%   24%   27%   29%   32%   34% 
  7.11  $651 - 700   18%   22%   25%   28%   31%   34%   36% 
  7.12  $701 - 750   19%   23%   27%   30%   33%   36%   38% 
  7.13  $751 - 800   20%   24%   28%   31%   35%   38%   40% 
  7.14  $801 - 850   21%   25%   29%   33%   36%   40%   42% 
  7.15  $851 - 900   22%   27%   31%   34%   38%   41%   44% 
  7.16  $901 - 950   23%   28%   32%   36%   40%   43%   46% 
  7.17  $951 - 1000  24%   29%   34%   38%   41%   45%   48% 
  7.18  $1001- 5000  25%   30%   35%   39%   43%   47%   50% 
  7.19  or the amount 
  7.20  in effect under
  7.21  paragraph (k)
  7.22     Guidelines for support for an obligor with a monthly income 
  7.23  in excess of the income limit currently in effect under 
  7.24  paragraph (k) shall be the same dollar amounts as provided for 
  7.25  in the guidelines for an obligor with a monthly income equal to 
  7.26  the limit in effect. 
  7.27  Net Income defined as: 
  7.28    
  7.29           Total monthly 
  7.30           income less           *(i) Federal Income Tax 
  7.31                                *(ii) State Income Tax 
  7.32                                (iii) Social Security
  7.33                                       Deductions 
  7.34                                 (iv) Reasonable
  7.35                                       Pension Deductions
  7.36           *Standard 
  8.1            Deductions apply-      (v) Union Dues 
  8.2            use of tax tables     (vi) Cost of Dependent Health
  8.3            recommended                 Insurance Coverage  
  8.4                                 (vii) Cost of Individual or Group
  8.5                                        Health/Hospitalization
  8.6                                        Coverage or an  
  8.7                                        Amount for Actual 
  8.8                                        Medical Expenses  
  8.9                                (viii) A Child Support or  
  8.10                                       Maintenance Order that is
  8.11                                       Currently Being Paid. 
  8.12     "Net income" does not include: 
  8.13     (1) the income of the obligor's spouse, but does include 
  8.14  in-kind payments received by the obligor in the course of 
  8.15  employment, self-employment, or operation of a business if the 
  8.16  payments reduce the obligor's living expenses; or 
  8.17     (2) compensation received by a party for employment in 
  8.18  excess of a 40-hour work week, provided that: 
  8.19     (i) support is nonetheless ordered in an amount at least 
  8.20  equal to the guidelines amount based on income not excluded 
  8.21  under this clause; and 
  8.22     (ii) the party demonstrates, and the court finds, that: 
  8.23     (A) the excess employment began after the filing of the 
  8.24  petition for dissolution; 
  8.25     (B) the excess employment reflects an increase in the work 
  8.26  schedule or hours worked over that of the two years immediately 
  8.27  preceding the filing of the petition; 
  8.28     (C) the excess employment is voluntary and not a condition 
  8.29  of employment; 
  8.30     (D) the excess employment is in the nature of additional, 
  8.31  part-time or overtime employment compensable by the hour or 
  8.32  fraction of an hour; and 
  8.33     (E) the party's compensation structure has not been changed 
  8.34  for the purpose of affecting a support or maintenance obligation.
  8.35     The court shall review the work-related and 
  8.36  education-related child care costs paid and shall allocate the 
  9.1   costs to each parent in proportion to each parent's net income, 
  9.2   as determined under this subdivision, after the transfer of 
  9.3   child support and spousal maintenance, unless the allocation 
  9.4   would be substantially unfair to either parent.  There is a 
  9.5   presumption of substantial unfairness if after the sum total of 
  9.6   child support, spousal maintenance, and child care costs is 
  9.7   subtracted from the noncustodial parent's income, the income is 
  9.8   at or below 100 percent of the federal poverty guidelines.  The 
  9.9   cost of child care for purposes of this paragraph is 75 percent 
  9.10  of the actual cost paid for child care, to reflect the 
  9.11  approximate value of state and federal tax credits available to 
  9.12  the custodial parent.  The actual cost paid for child care is 
  9.13  the total amount received by the child care provider for the 
  9.14  child or children from the obligee or any public agency.  The 
  9.15  amount allocated for child care expenses is considered child 
  9.16  support but is not subject to a cost-of-living adjustment under 
  9.17  section 518.641.  The amount allocated for child care expenses 
  9.18  terminates when the child care costs end. proceed as follows: 
  9.19     (1) determine the basic support needs of the child.  The 
  9.20  basic support need of the child is the minimum amount that a 
  9.21  child requires for food, shelter, and clothing.  The basic 
  9.22  support need for one child shall be equal to one-half of the 
  9.23  federal poverty level for a family of two.  The basic support 
  9.24  need for multiple children shall be as follows:  (a) for two 
  9.25  children, two-thirds of the federal poverty level for a family 
  9.26  of three; (b) for three children, three-fourths of the federal 
  9.27  poverty level for a family of four; (c) for four children, 
  9.28  four-fifths of the federal poverty level for a family of five; 
  9.29  (d) for five children, five-sixths of the federal poverty level 
  9.30  for a family of six; (e) for six children, six-sevenths of the 
  9.31  federal poverty level for a family of seven.  The basic support 
  9.32  need for additional children shall be determined in the same 
  9.33  manner.  The basic support need shall be increased by 15 percent 
  9.34  if the child or the oldest child in a multiple child household 
  9.35  is more than 11 years of age.  
  9.36     The commissioner of human services shall prepare and update 
 10.1   a table of basic support needs that reflects current federal 
 10.2   poverty levels by April 1 of each year.  
 10.3      (2) determine the medical support pursuant to section 
 10.4   518.171.  The medical support amount includes health and dental 
 10.5   insurance premiums and uncovered medical and dental expenses, 
 10.6   including deductible amounts and copayments.  
 10.7      (3) determine the work-related and education-related child 
 10.8   care costs.  The costs of child care for purposes of this 
 10.9   paragraph is 75 percent of the actual cost paid for child care, 
 10.10  to reflect the approximate value of state and federal tax 
 10.11  credits available to the custodial parent.  The actual cost paid 
 10.12  for child care is the total amount received by the child care 
 10.13  provider for the child or children from the obligee or any 
 10.14  public agency.  
 10.15     (4) determine the total basic support needed by adding 
 10.16  together the basic support need, the medical support amount, and 
 10.17  the child care costs.  
 10.18     (5) determine adjusted child support income for each parent.
 10.19  Adjusted child support income is equal to gross income minus 
 10.20  state, federal, FICA, and medicare tax amounts.  Federal and 
 10.21  state tax obligations shall be determined for a single person, 
 10.22  on a withholding filing basis.  The commissioner of human 
 10.23  services shall prepare a table that reflects the gross income to 
 10.24  adjusted child support income conversion by April 1 of each year.
 10.25     (6) determine the income available for child support for 
 10.26  each parent by subtracting from gross monthly income any child 
 10.27  support or maintenance orders that are being paid and each 
 10.28  parent's household needs allowance.  
 10.29     Each parent is entitled to a separate household needs 
 10.30  allowance.  A parent's income is available for child support 
 10.31  only when it exceeds the household needs allowance subject to 
 10.32  the provisions of clause (12).  The household needs allowance is 
 10.33  based on household size.  Household size includes the parent and 
 10.34  the parent's legal dependents which includes: (1) the parent's 
 10.35  parent, if claimed as a dependent for income tax purposes; (2) 
 10.36  natural or adopted children; (3) adult relatives of the parent 
 11.1   with special needs residing in the parent's household; and (4) 
 11.2   any other persons who reside with the parent and earns income.  
 11.3   Household size does not include the child who is the subject of 
 11.4   the support action, other legal dependents for whom a 
 11.5   preexisting support order has been established, or other 
 11.6   children who are not the biological or adopted children of the 
 11.7   parent.  
 11.8      For purposes of this subdivision, the household needs 
 11.9   allowance is equal to the annually updated federal poverty level 
 11.10  for a household of the same size plus $100 for every adult, 
 11.11  including the parent, who works and provides income to the 
 11.12  household divided by the number of adult income earners in the 
 11.13  household.  $100 shall not be added to the household support 
 11.14  reserve of a parent who has income imputed pursuant to 
 11.15  subdivision 5b, paragraph (d).  
 11.16     The commissioner of human services shall prepare and update 
 11.17  a table of household needs allowances that reflects the current 
 11.18  federal poverty levels by April 1 of each year.  
 11.19     (7) determine each parent's proportionate share of the 
 11.20  combined income by dividing each parent's income available for 
 11.21  child support by the parents' combined income available for 
 11.22  child support.  
 11.23     (8) allocate the total basic support amount to each parent 
 11.24  in proportion to each parent's share of the combined income 
 11.25  available for child support.  If the parent's income available 
 11.26  for child support is less than the parent's proportionate share 
 11.27  of the basic support amount, the parent's obligation for the 
 11.28  basic support amount shall be the parent's income available for 
 11.29  child support.  If the obligor pays the dependent health care 
 11.30  coverage, the cost of the coverage that is attributable to the 
 11.31  child shall be subtracted from the obligor's share of the total 
 11.32  basic support amount as a credit for direct payment.  
 11.33     (9) determine the amount of the standard of living 
 11.34  adjustment.  The income available for the standard of living 
 11.35  adjustment is the excess income remaining after deducting the 
 11.36  parents' proportionate shares of the total basic support 
 12.1   amount.  The income available for the standard of living 
 12.2   adjustment is multiplied by the percentage from the following 
 12.3   table which corresponds to the number of children for whom 
 12.4   support is being determined. 
 12.5   Standard of Living           Number of Children 
 12.6   Adjusted Income 
 12.7   Per Month 
 12.8                           1    2    3    4    5    6 or more 
 12.9   $1 to $12,500           19%  23%  27%  32%  35%  39% 
 12.10     the court may order additional child support when the 
 12.11  parent's income exceeds the income limit, taking into 
 12.12  consideration the standard of living the child would have had if 
 12.13  the child's parents lived together including, but not limited 
 12.14  to, the amounts that would have been expended on private 
 12.15  schooling, music, sports, camps, vacations, and savings for 
 12.16  post-secondary education.  
 12.17     (10) determine the monthly child support obligation as the 
 12.18  sum of the basic support needs, medical support, child care 
 12.19  costs, the standard of living adjustment, and any additional 
 12.20  amounts ordered pursuant to paragraph (c).  The court shall 
 12.21  order the obligor to pay to the obligee the obligor's 
 12.22  proportionate share of the total monthly child support 
 12.23  obligation.  All remedies available for the collection and 
 12.24  enforcement of child support apply to the total monthly child 
 12.25  support obligation except the child care costs and the medical 
 12.26  support amounts are not subject to the cost of living adjustment 
 12.27  under section 518.641.  
 12.28     (11) order the parent to pay a minimum child support 
 12.29  obligation of $50 per month if the court determines that a 
 12.30  parent's income is less than the parents' household needs 
 12.31  allowance, unless that parent's sole income is from aid to 
 12.32  families with dependent children, supplemental security income, 
 12.33  general assistance, or other means-tested public assistance 
 12.34  benefit.  
 12.35     (12) calculate, in situations of court-ordered split 
 12.36  custody, each parent's child support obligation for the child or 
 13.1   children in the custody of the other parent, in accordance with 
 13.2   this subdivision.  The parent owing the larger obligation shall 
 13.3   pay the difference to the parent owing the smaller obligation.  
 13.4      (c) The guidelines in this subdivision assume that the 
 13.5   obligor may spend time with the child.  No reduction in child 
 13.6   support shall be ordered unless the child spends at least 45 
 13.7   percent of their time with the obligor.  In cases in which the 
 13.8   court-ordered visitation or physical custody reaches or exceeds 
 13.9   45 percent, the obligor's obligation shall be reduced to reflect 
 13.10  the obligee's decreased food-related expenditures unless the 
 13.11  court determines that this reduction is substantially unfair to 
 13.12  the obligee.  There is a presumption of substantial unfairness 
 13.13  if the reduced child support obligation plus the obligee's gross 
 13.14  income is less than the poverty level for a household of the 
 13.15  same size as the obligee's household.  Food-related expenditures 
 13.16  are presumed to be equivalent to the moderate cost food plan 
 13.17  published by the United States Department of Agriculture in the 
 13.18  Family Economics Review.  
 13.19     (d) The commissioner of human services shall prepare and 
 13.20  make available instructional materials and a work sheet for the 
 13.21  determination of child support pursuant to this subdivision.  
 13.22  The rulemaking provisions of chapter 14 shall not apply to the 
 13.23  preparation of the work sheet.  The court shall attach a copy of 
 13.24  the work sheet to the order. 
 13.25     (c) (e) In addition to the child support guidelines, the 
 13.26  court shall take into consideration the following factors in 
 13.27  setting or modifying child support or in determining whether to 
 13.28  deviate from the guidelines: 
 13.29     (1) all earnings, income, and resources of the parents, 
 13.30  including real and personal property, but excluding income from 
 13.31  excess employment of the obligor or obligee that meets the 
 13.32  criteria of paragraph (b), clause (2)(ii); 
 13.33     (2) the financial needs and resources, physical and 
 13.34  emotional condition, and educational needs of the child or 
 13.35  children to be supported; 
 13.36     (3) the standards of living the child would have enjoyed 
 14.1   had the marriage not been dissolved, but recognizing that the 
 14.2   parents now have separate households; 
 14.3      (4) which parent receives the income taxation dependency 
 14.4   exemption and what financial benefit the parent receives from 
 14.5   it; 
 14.6      (5) the parents' debts as provided in paragraph (d); and 
 14.7      (6) the obligor's receipt of assistance under sections 
 14.8   256.72 to 256.87 or 256B.01 to 256B.40.  
 14.9      (d) In establishing or modifying a support obligation, the 
 14.10  court may consider debts owed to private creditors, but only if: 
 14.11     (1) the right to support has not been assigned under 
 14.12  section 256.74; 
 14.13     (2) the court determines that the debt was reasonably 
 14.14  incurred for necessary support of the child or parent or for the 
 14.15  necessary generation of income.  If the debt was incurred for 
 14.16  the necessary generation of income, the court shall consider 
 14.17  only the amount of debt that is essential to the continuing 
 14.18  generation of income; and 
 14.19     (3) the party requesting a departure produces a sworn 
 14.20  schedule of the debts, with supporting documentation, showing 
 14.21  goods or services purchased, the recipient of them, the amount 
 14.22  of the original debt, the outstanding balance, the monthly 
 14.23  payment, and the number of months until the debt will be fully 
 14.24  paid. 
 14.25     (e) Any schedule prepared under paragraph (d), clause (3), 
 14.26  shall contain a statement that the debt will be fully paid after 
 14.27  the number of months shown in the schedule, barring emergencies 
 14.28  beyond the party's control.  
 14.29     (f) Any further departure below the guidelines that is 
 14.30  based on a consideration of debts owed to private creditors 
 14.31  shall not exceed 18 months in duration, after which the support 
 14.32  shall increase automatically to the level ordered by the court.  
 14.33  Nothing in this section shall be construed to prohibit one or 
 14.34  more step increases in support to reflect debt retirement during 
 14.35  the 18-month period.  
 14.36     (g) If payment of debt is ordered pursuant to this section, 
 15.1   the payment shall be ordered to be in the nature of child 
 15.2   support.  
 15.3      (1) extraordinary medical or dental expenses of the child; 
 15.4      (2) special needs of the child, including special housing 
 15.5   needs and special education needs; and 
 15.6      (3) visitation related expenses incurred because the 
 15.7   parents live more than 250 miles from each other.  
 15.8      (f) In addition to the child support guidelines, the court 
 15.9   may take into consideration the following factors in setting or 
 15.10  modifying child support or in determining whether to deviate 
 15.11  from the guidelines: 
 15.12     (1) the potential income from the assets of the parent 
 15.13  including, but not limited to, any recreational vehicles, boats, 
 15.14  vacation homes, and real property based upon the net market 
 15.15  value of each asset at the average ten-year United States 
 15.16  Treasury constant maturity rate for the previous calendar year; 
 15.17  and 
 15.18     (2) other factors that the court considers to be necessary 
 15.19  in the interests of justice.  
 15.20     (h) (g) Nothing shall preclude the court from receiving 
 15.21  evidence on the above factors to determine if the guidelines 
 15.22  should be exceeded or modified in a particular case.  
 15.23     (i) The guidelines in this subdivision are a rebuttable 
 15.24  presumption and shall be used in all cases when establishing or 
 15.25  modifying child support.  If the court does not deviate from the 
 15.26  guidelines, (h) The court shall make written findings concerning 
 15.27  the amount of the obligor's income used as the basis for the 
 15.28  guidelines calculation and any other significant evidentiary 
 15.29  factors affecting the determination of child support of the 
 15.30  calculation of child support pursuant to this subdivision.  If 
 15.31  the court deviates from the guidelines, the court shall make 
 15.32  written findings giving the amount of support calculated under 
 15.33  the guidelines, the reasons for the deviation, and shall 
 15.34  specifically address the criteria in paragraph (b) and how the 
 15.35  deviation serves the best interest of the child.  The provisions 
 15.36  of this paragraph apply whether or not the parties are each 
 16.1   represented by independent counsel and have entered into a 
 16.2   written agreement.  The court shall review stipulations 
 16.3   presented to it for conformity to the guidelines and the court 
 16.4   is not required to conduct a hearing, but the parties shall 
 16.5   provide the documentation of earnings required under subdivision 
 16.6   5b. 
 16.7      (j) (i) If the child support payments are assigned to the 
 16.8   public agency under section 256.74, the court may not deviate 
 16.9   downward from the child support guidelines unless the court 
 16.10  specifically finds that the failure to deviate downward would 
 16.11  impose an extreme hardship on the obligor. 
 16.12     (k) (j) The dollar amount of the income limit for 
 16.13  application of the guidelines must be adjusted on July 1 of 
 16.14  every even-numbered year to reflect cost-of-living changes.  The 
 16.15  supreme court shall select the index for the adjustment from the 
 16.16  indices listed in section 518.641.  The state court 
 16.17  administrator shall make the changes in the dollar amount 
 16.18  required by this paragraph available to courts and the public on 
 16.19  or before April 30 of the year in which the amount is to change. 
 16.20     Sec. 7.  Minnesota Statutes 1994, section 518.551, 
 16.21  subdivision 5a, is amended to read: 
 16.22     Subd. 5a.  [ORDER FOR COMMUNITY SERVICES.] If the court 
 16.23  finds that the obligor earns $400 or less per month has no 
 16.24  income available for child support and does not have the ability 
 16.25  to provide support based on the guidelines and factors under 
 16.26  subdivision 5 pay the $50 minimum support amount pursuant to 
 16.27  subdivision 5, paragraph (b), clause (12), the court may order 
 16.28  the obligor to perform community services to fulfill the 
 16.29  obligor's support obligation.  In ordering community services 
 16.30  under this subdivision, the court shall consider whether the 
 16.31  obligor has the physical capability of performing community 
 16.32  services, and shall order community services that are 
 16.33  appropriate for the obligor's abilities.  
 16.34     Sec. 8.  Minnesota Statutes 1994, section 518.551, 
 16.35  subdivision 5b, is amended to read: 
 16.36     Subd. 5b.  [DETERMINATION OF INCOME.] (a) The parties shall 
 17.1   timely serve and file documentation of earnings and income. When 
 17.2   there is a prehearing conference, the court must receive the 
 17.3   documentation of income at least ten days prior to the 
 17.4   prehearing conference.  Documentation of earnings and income 
 17.5   also includes, but is Each parent shall submit a financial 
 17.6   affidavit to the court in each case.  Each parent shall sign a 
 17.7   financial affidavit under penalties of perjury.  Financial 
 17.8   affidavits shall include supporting documentation including, but 
 17.9   not limited to, pay stubs for the most recent three months, 
 17.10  employer statements, or statement of receipts and expenses if 
 17.11  self-employed.  Documentation of earnings and income also 
 17.12  includes Copies of each parent's most recent federal tax 
 17.13  returns, including W-2 forms, 1099 forms, reemployment insurance 
 17.14  statements, workers' compensation statements, and all other 
 17.15  documents evidencing income as received that provide 
 17.16  verification of income over a longer period. shall be attached 
 17.17  to the financial affidavit.  When there is a prehearing 
 17.18  conference, the court must receive the documentation of income 
 17.19  at least ten days prior to the prehearing conference.  
 17.20     The financial affidavit shall be on a form prepared by the 
 17.21  commissioner of human services.  The rulemaking provisions of 
 17.22  chapter 14 do not apply to the preparation of this form. 
 17.23     (b) In addition to the requirements of paragraph (a), at 
 17.24  any time after an action seeking child support has been 
 17.25  commenced or when a child support order is in effect, a party or 
 17.26  the public authority may require the other party to give them a 
 17.27  copy of the party's most recent federal tax returns that were 
 17.28  filed with the Internal Revenue Service.  The party shall 
 17.29  provide a copy of the tax returns within 30 days of receipt of 
 17.30  the request unless the request is not made in good faith.  A 
 17.31  request under this paragraph may not be made more than once 
 17.32  every two years, in the absence of good cause. 
 17.33     (c) If a parent under the jurisdiction of the court does 
 17.34  not appear at a court hearing after proper notice of the time 
 17.35  and place of the hearing, the court shall set income for that 
 17.36  parent based on credible evidence before the court or in 
 18.1   accordance with paragraph (d).  Credible evidence may include 
 18.2   documentation of current or recent income, testimony of the 
 18.3   other parent concerning recent earnings and income levels, and 
 18.4   the parent's wage reports filed with the Minnesota department of 
 18.5   economic security under section 268.121.  
 18.6      (d) If the court finds that a parent is voluntarily 
 18.7   unemployed or underemployed, child support shall be calculated 
 18.8   based on a determination of imputed income.  A parent is not 
 18.9   considered voluntarily unemployed or underemployed upon a 
 18.10  showing by the parent that the unemployment or underemployment:  
 18.11  (1) is temporary and will ultimately lead to an increase in 
 18.12  income; or (2) represents a bona fide career change that 
 18.13  outweighs the adverse effect of that parent's diminished income 
 18.14  on the child.  Imputed income means the estimated earning 
 18.15  ability of a parent based on the parent's prior earnings 
 18.16  history, education, and job skills, and on availability of jobs 
 18.17  within the community for an individual with the parent's 
 18.18  qualifications.  Income may be imputed to a parent who is not 
 18.19  employed for wages but is a full-time caretaker of children.  
 18.20  Whenever income is imputed to a full-time caretaker of children, 
 18.21  if that parent would be required to incur child care expenses if 
 18.22  employed at the imputed level, then the imputed income shall be 
 18.23  reduced by the estimated cost of the child care expenses.  If 
 18.24  the court is unable to determine or estimate the earning ability 
 18.25  of a parent, the court may shall calculate child support based 
 18.26  on full-time employment of 40 hours per week at the federal 
 18.27  minimum wage or the Minnesota minimum wage, whichever is 
 18.28  higher.  If a parent is a recipient of public assistance under 
 18.29  sections 256.72 to 256.87 or chapter 256D, or is physically or 
 18.30  mentally incapacitated, it shall be presumed that the parent is 
 18.31  not voluntarily unemployed or underemployed. 
 18.32     (e) Compensation received by a party for employment in 
 18.33  excess of a 40-hour week shall be included as income as follows: 
 18.34     (i) child support shall be ordered in an amount based on 
 18.35  the income received for the first 40 hours of employment.  The 
 18.36  40 hours may be from one full-time job or two or more part-time 
 19.1   jobs; 
 19.2      (ii) income received by a party for hours worked in excess 
 19.3   of 40 hours and equal to or less than 50 hours per week shall be 
 19.4   included as income unless:  
 19.5      (A) the party demonstrates, and the court finds, that:  
 19.6      (1) the excess employment began after the filing of the 
 19.7   action; 
 19.8      (2) the excess employment reflects an increase in the work 
 19.9   schedule or hours worked over that of the two years immediately 
 19.10  preceding the filing of the action; 
 19.11     (3) the excess employment is in the nature of additional, 
 19.12  part-time, or overtime employment compensable by the hour or 
 19.13  fraction of an hour; and 
 19.14     (4) the party's compensation structure has not been changed 
 19.15  for the purpose of affecting a support or maintenance obligation.
 19.16     Income does not include compensation received by a party in 
 19.17  excess of a 50-hour week.  The court or the public authority, in 
 19.18  cases in which the public authority is a party or provides 
 19.19  services to a party, shall make reasonable efforts to verify the 
 19.20  overtime income with the party's employer.  In the event the 
 19.21  overtime income is no longer available to a party, the party may 
 19.22  request a modification.  The child support order may be modified 
 19.23  to the amount of the child support based on a 40-hour week. 
 19.24     (f) Income from self-employment is equal to gross receipts 
 19.25  minus ordinary and necessary expenses.  Ordinary and necessary 
 19.26  expenses do not include amounts allowed by the Internal Revenue 
 19.27  Service for accelerated depreciation expenses or investment tax 
 19.28  credits or any other business expenses determined by the court 
 19.29  to be inappropriate for determining income for purposes of child 
 19.30  support.  The person seeking to deduct an expense, including 
 19.31  depreciation, has the burden of proving that the expense is 
 19.32  ordinary and necessary.  
 19.33     Income available for child support may be different from 
 19.34  taxable income. 
 19.35     Sec. 9.  Minnesota Statutes 1994, section 518.551, is 
 19.36  amended by adding a subdivision to read: 
 20.1      Subd. 13.  [APPLICATION OF CHILD SUPPORT GUIDELINES.] The 
 20.2   court shall apply the child support guidelines in this section 
 20.3   that are in effect at the time of the decision or hearing, 
 20.4   regardless of the guidelines in effect at the time the action 
 20.5   was commenced. 
 20.6      Sec. 10.  Minnesota Statutes 1994, section 518.57, 
 20.7   subdivision 2, is amended to read: 
 20.8      Subd. 2.  [SEASONAL INCOME.] The court shall establish the 
 20.9   annual support of an obligor with a seasonal income so that the 
 20.10  obligor makes either the same monthly payments throughout the 
 20.11  year or monthly payments that reflect variations in income. 
 20.12     Sec. 11.  Minnesota Statutes 1994, section 518.64, 
 20.13  subdivision 2, is amended to read: 
 20.14     Subd. 2.  [MODIFICATION.] (a) The terms of an order 
 20.15  respecting maintenance or support may be modified upon a showing 
 20.16  of one or more of the following:  (1) substantially increased or 
 20.17  decreased earnings of a party; (2) substantially increased or 
 20.18  decreased need of a party or the child or children that are the 
 20.19  subject of these proceedings; (3) receipt of assistance under 
 20.20  sections 256.72 to 256.87 or 256B.01 to 256B.40; (4) a change in 
 20.21  the cost of living for either party as measured by the federal 
 20.22  bureau of statistics, any of which makes the terms unreasonable 
 20.23  and unfair; (5) extraordinary medical expenses of the child not 
 20.24  provided for under section 518.171; or (6) the addition of 
 20.25  work-related or education-related child care expenses of the 
 20.26  obligee or a substantial increase or decrease in existing 
 20.27  work-related or education-related child care expenses.  
 20.28     It is presumed that there has been a substantial change in 
 20.29  circumstances under clause (1), (2), or (4) and the terms of a 
 20.30  current support order shall be rebuttably presumed to be 
 20.31  unreasonable and unfair if the application of the child support 
 20.32  guidelines in section 518.551, subdivision 5, to the current 
 20.33  circumstances of the parties results in a calculated court order 
 20.34  that is at least 20 percent and at least $50 per month higher or 
 20.35  lower than the current support order.  The amount allocated for 
 20.36  child care expenses terminates when the child care costs end.  
 21.1      (b) On a motion for modification of maintenance, including 
 21.2   a motion for the extension of the duration of a maintenance 
 21.3   award, the court shall apply, in addition to all other relevant 
 21.4   factors, the factors for an award of maintenance under section 
 21.5   518.552 that exist at the time of the motion.  On a motion for 
 21.6   modification of support, the court:  
 21.7      (1) shall apply section 518.551, subdivision 5, and shall 
 21.8   not consider the financial circumstances of each party's spouse, 
 21.9   if any; and 
 21.10     (2) shall not consider compensation received by a party for 
 21.11  employment in excess of a 40-hour work week, provided that the 
 21.12  party demonstrates, and the court finds, that: 
 21.13     (i) the excess employment began after entry of the existing 
 21.14  support order; 
 21.15     (ii) the excess employment is voluntary and not a condition 
 21.16  of employment; 
 21.17     (iii) the excess employment is in the nature of additional, 
 21.18  part-time employment, or overtime employment compensable by the 
 21.19  hour or fractions of an hour; 
 21.20     (iv) the party's compensation structure has not been 
 21.21  changed for the purpose of affecting a support or maintenance 
 21.22  obligation; 
 21.23     (v) in the case of an obligor, current child support 
 21.24  payments are at least equal to the guidelines amount based on 
 21.25  income not excluded under this clause; and 
 21.26     (vi) in the case of an obligor who is in arrears in child 
 21.27  support payments to the obligee, any net income from excess 
 21.28  employment must be used to pay the arrearages until the 
 21.29  arrearages are paid in full. 
 21.30     (c) A modification of support or maintenance may be made 
 21.31  retroactive only with respect to any period during which the 
 21.32  petitioning party has pending a motion for modification but only 
 21.33  from the date of service of notice of the motion on the 
 21.34  responding party and on the public authority if public 
 21.35  assistance is being furnished or the county attorney is the 
 21.36  attorney of record.  However, modification may be applied to an 
 22.1   earlier period if the court makes express findings that the 
 22.2   party seeking modification was precluded from serving a motion 
 22.3   by reason of a significant physical or mental disability, a 
 22.4   material misrepresentation of another party, or fraud upon the 
 22.5   court and that the party seeking modification, when no longer 
 22.6   precluded, promptly served a motion.  
 22.7      (d) Except for an award of the right of occupancy of the 
 22.8   homestead, provided in section 518.63, all divisions of real and 
 22.9   personal property provided by section 518.58 shall be final, and 
 22.10  may be revoked or modified only where the court finds the 
 22.11  existence of conditions that justify reopening a judgment under 
 22.12  the laws of this state, including motions under section 518.145, 
 22.13  subdivision 2.  The court may impose a lien or charge on the 
 22.14  divided property at any time while the property, or subsequently 
 22.15  acquired property, is owned by the parties or either of them, 
 22.16  for the payment of maintenance or support money, or may 
 22.17  sequester the property as is provided by section 518.24. 
 22.18     (e) The court need not hold an evidentiary hearing on a 
 22.19  motion for modification of maintenance or support. 
 22.20     (f) Section 518.14 shall govern the award of attorney fees 
 22.21  for motions brought under this subdivision. 
 22.22     Sec. 12.  Minnesota Statutes 1994, section 518.64, 
 22.23  subdivision 4, is amended to read: 
 22.24     Subd. 4.  Unless otherwise agreed in writing or expressly 
 22.25  provided in the order, provisions for the support of a child are 
 22.26  not terminated by emancipation of the child but not by the death 
 22.27  of a parent obligated to support the child.  When a parent 
 22.28  obligated to pay support dies, the amount of support may be 
 22.29  modified, revoked, or commuted to a lump sum payment, to the 
 22.30  extent just and appropriate in the circumstances. 
 22.31     Sec. 13.  [EFFECTIVE DATE.] 
 22.32     Sections 1 to 12 are effective July 1, 1996, and apply to 
 22.33  all child support orders established or modified on or after 
 22.34  July 1, 1996.