SF 1013

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

  1.1                          A bill for an act
  1.2             relating to family law; child support; providing for 
  1.3             consideration of other children in setting or 
  1.4             modifying a child support order; making the existence 
  1.5             of other children a ground for modification of child 
  1.6             support; amending Minnesota Statutes 1994, sections 
  1.7             518.551, subdivision 5; and 518.64, subdivision 2. 
  1.8   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.9      Section 1.  Minnesota Statutes 1994, section 518.551, 
  1.10  subdivision 5, is amended to read: 
  1.11     Subd. 5.  [NOTICE TO PUBLIC AUTHORITY; GUIDELINES.] (a) The 
  1.12  petitioner shall notify the public authority of all proceedings 
  1.13  for dissolution, legal separation, determination of parentage or 
  1.14  for the custody of a child, if either party is receiving aid to 
  1.15  families with dependent children or applies for it subsequent to 
  1.16  the commencement of the proceeding.  The notice must contain the 
  1.17  full names of the parties to the proceeding, their social 
  1.18  security account numbers, and their birth dates.  After receipt 
  1.19  of the notice, the court shall set child support as provided in 
  1.20  this subdivision.  The court may order either or both parents 
  1.21  owing a duty of support to a child of the marriage to pay an 
  1.22  amount reasonable or necessary for the child's support, without 
  1.23  regard to marital misconduct.  The court shall approve a child 
  1.24  support stipulation of the parties if each party is represented 
  1.25  by independent counsel, unless the stipulation does not meet the 
  1.26  conditions of paragraph (i).  In other cases the court shall 
  2.1   determine and order child support in a specific dollar amount in 
  2.2   accordance with the guidelines and the other factors set forth 
  2.3   in paragraph (b) and any departure therefrom.  The court may 
  2.4   also order the obligor to pay child support in the form of a 
  2.5   percentage share of the obligor's net bonuses, commissions, or 
  2.6   other forms of compensation, in addition to, or if the obligor 
  2.7   receives no base pay, in lieu of, an order for a specific dollar 
  2.8   amount. 
  2.9      (b) The court shall derive a specific dollar amount for 
  2.10  child support by multiplying the obligor's net income by the 
  2.11  percentage indicated by the following guidelines:  
  2.12  Net Income Per            Number of Children 
  2.13  Month of Obligor 
  2.14                1     2     3     4     5     6    7 or 
  2.15                                                   more 
  2.16  $550 and Below     Order based on the ability of the 
  2.17                     obligor to provide support  
  2.18                     at these income levels, or at higher  
  2.19                     levels, if the obligor has 
  2.20                     the earning ability. 
  2.21  $551 - 600   16%   19%   22%   25%   28%   30%   32% 
  2.22  $601 - 650   17%   21%   24%   27%   29%   32%   34% 
  2.23  $651 - 700   18%   22%   25%   28%   31%   34%   36% 
  2.24  $701 - 750   19%   23%   27%   30%   33%   36%   38% 
  2.25  $751 - 800   20%   24%   28%   31%   35%   38%   40% 
  2.26  $801 - 850   21%   25%   29%   33%   36%   40%   42% 
  2.27  $851 - 900   22%   27%   31%   34%   38%   41%   44% 
  2.28  $901 - 950   23%   28%   32%   36%   40%   43%   46% 
  2.29  $951 - 1000  24%   29%   34%   38%   41%   45%   48% 
  2.30  $1001- 5000  25%   30%   35%   39%   43%   47%   50% 
  2.31  or the amount 
  2.32  in effect under
  2.33  paragraph (k)
  2.34     Guidelines for support for an obligor with a monthly income 
  2.35  in excess of the income limit currently in effect under 
  2.36  paragraph (k) shall be the same dollar amounts as provided for 
  3.1   in the guidelines for an obligor with a monthly income equal to 
  3.2   the limit in effect. 
  3.3   Net Income defined as: 
  3.4            
  3.5            Total monthly 
  3.6            income less           *(i) Federal Income Tax 
  3.7                                 *(ii) State Income Tax 
  3.8                                 (iii) Social Security
  3.9                                        Deductions 
  3.10                                 (iv) Reasonable
  3.11                                       Pension Deductions
  3.12           *Standard 
  3.13           Deductions apply-      (v) Union Dues 
  3.14           use of tax tables     (vi) Cost of Dependent Health
  3.15           recommended                 Insurance Coverage  
  3.16                                (vii) Cost of Individual or Group
  3.17                                       Health/Hospitalization
  3.18                                       Coverage or an        
  3.19                                       Amount for Actual 
  3.20                                       Medical Expenses   
  3.21                               (viii) A Child Support or  
  3.22                                       Maintenance Order that is
  3.23                                       Currently Being Paid. 
  3.24     "Net income" does not include: 
  3.25     (1) the income of the obligor's spouse, but does include 
  3.26  in-kind payments received by the obligor in the course of 
  3.27  employment, self-employment, or operation of a business if the 
  3.28  payments reduce the obligor's living expenses; or 
  3.29     (2) compensation received by a party for employment in 
  3.30  excess of a 40-hour work week, provided that: 
  3.31     (i) support is nonetheless ordered in an amount at least 
  3.32  equal to the guidelines amount based on income not excluded 
  3.33  under this clause; and 
  3.34     (ii) the party demonstrates, and the court finds, that: 
  3.35     (A) the excess employment began after the filing of the 
  3.36  petition for dissolution; 
  4.1      (B) the excess employment reflects an increase in the work 
  4.2   schedule or hours worked over that of the two years immediately 
  4.3   preceding the filing of the petition; 
  4.4      (C) the excess employment is voluntary and not a condition 
  4.5   of employment; 
  4.6      (D) the excess employment is in the nature of additional, 
  4.7   part-time or overtime employment compensable by the hour or 
  4.8   fraction of an hour; and 
  4.9      (E) the party's compensation structure has not been changed 
  4.10  for the purpose of affecting a support or maintenance obligation.
  4.11     The court shall review the work-related and 
  4.12  education-related child care costs paid and shall allocate the 
  4.13  costs to each parent in proportion to each parent's net income, 
  4.14  as determined under this subdivision, after the transfer of 
  4.15  child support and spousal maintenance, unless the allocation 
  4.16  would be substantially unfair to either parent.  There is a 
  4.17  presumption of substantial unfairness if after the sum total of 
  4.18  child support, spousal maintenance, and child care costs is 
  4.19  subtracted from the noncustodial parent's income, the income is 
  4.20  at or below 100 percent of the federal poverty guidelines.  The 
  4.21  cost of child care for purposes of this paragraph is 75 percent 
  4.22  of the actual cost paid for child care, to reflect the 
  4.23  approximate value of state and federal tax credits available to 
  4.24  the custodial parent.  The actual cost paid for child care is 
  4.25  the total amount received by the child care provider for the 
  4.26  child or children from the obligee or any public agency.  The 
  4.27  amount allocated for child care expenses is considered child 
  4.28  support but is not subject to a cost-of-living adjustment under 
  4.29  section 518.641.  The amount allocated for child care expenses 
  4.30  terminates when the child care costs end. 
  4.31     (c) In addition to the child support guidelines, the court 
  4.32  shall take into consideration the following factors in setting 
  4.33  or modifying child support or in determining whether to deviate 
  4.34  from the guidelines: 
  4.35     (1) all earnings, income, and resources of the parents, 
  4.36  including real and personal property, but excluding income from 
  5.1   excess employment of the obligor or obligee that meets the 
  5.2   criteria of paragraph (b), clause (2)(ii); 
  5.3      (2) the financial needs and resources, physical and 
  5.4   emotional condition, and educational needs of the child or 
  5.5   children to be supported; 
  5.6      (3) the standards of living the child would have enjoyed 
  5.7   had the marriage not been dissolved, but recognizing that the 
  5.8   parents now have separate households; 
  5.9      (4) which parent receives the income taxation dependency 
  5.10  exemption and what financial benefit the parent receives from 
  5.11  it; 
  5.12     (5) the parents' debts as provided in paragraph (d); and 
  5.13     (6) the obligor's receipt of assistance under sections 
  5.14  256.72 to 256.87 or 256B.01 to 256B.40; and 
  5.15     (7) any child of the obligor other than a child who is the 
  5.16  subject of the support order currently before the court, if the 
  5.17  obligor provides a home, care, and support for the child or pays 
  5.18  support for the child under a court order.  
  5.19     (d) In establishing or modifying a support obligation, the 
  5.20  court may consider debts owed to private creditors, but only if: 
  5.21     (1) the right to support has not been assigned under 
  5.22  section 256.74; 
  5.23     (2) the court determines that the debt was reasonably 
  5.24  incurred for necessary support of the child or parent or for the 
  5.25  necessary generation of income.  If the debt was incurred for 
  5.26  the necessary generation of income, the court shall consider 
  5.27  only the amount of debt that is essential to the continuing 
  5.28  generation of income; and 
  5.29     (3) the party requesting a departure produces a sworn 
  5.30  schedule of the debts, with supporting documentation, showing 
  5.31  goods or services purchased, the recipient of them, the amount 
  5.32  of the original debt, the outstanding balance, the monthly 
  5.33  payment, and the number of months until the debt will be fully 
  5.34  paid. 
  5.35     (e) Any schedule prepared under paragraph (d), clause (3), 
  5.36  shall contain a statement that the debt will be fully paid after 
  6.1   the number of months shown in the schedule, barring emergencies 
  6.2   beyond the party's control.  
  6.3      (f) Any further departure below the guidelines that is 
  6.4   based on a consideration of debts owed to private creditors 
  6.5   shall not exceed 18 months in duration, after which the support 
  6.6   shall increase automatically to the level ordered by the court.  
  6.7   Nothing in this section shall be construed to prohibit one or 
  6.8   more step increases in support to reflect debt retirement during 
  6.9   the 18-month period.  
  6.10     (g) If payment of debt is ordered pursuant to this section, 
  6.11  the payment shall be ordered to be in the nature of child 
  6.12  support.  
  6.13     (h) Nothing shall preclude the court from receiving 
  6.14  evidence on the above factors to determine if the guidelines 
  6.15  should be exceeded or modified in a particular case.  
  6.16     (i) The guidelines in this subdivision are a rebuttable 
  6.17  presumption and shall be used in all cases when establishing or 
  6.18  modifying child support.  If the court does not deviate from the 
  6.19  guidelines, the court shall make written findings concerning the 
  6.20  amount of the obligor's income used as the basis for the 
  6.21  guidelines calculation and any other significant evidentiary 
  6.22  factors affecting the determination of child support.  If the 
  6.23  court deviates from the guidelines, the court shall make written 
  6.24  findings giving the amount of support calculated under the 
  6.25  guidelines, the reasons for the deviation, and shall 
  6.26  specifically address the criteria in paragraph (b) and how the 
  6.27  deviation serves the best interest of the child.  The provisions 
  6.28  of this paragraph apply whether or not the parties are each 
  6.29  represented by independent counsel and have entered into a 
  6.30  written agreement.  The court shall review stipulations 
  6.31  presented to it for conformity to the guidelines and the court 
  6.32  is not required to conduct a hearing, but the parties shall 
  6.33  provide the documentation of earnings required under subdivision 
  6.34  5b. 
  6.35     (j) If the child support payments are assigned to the 
  6.36  public agency under section 256.74, the court may not deviate 
  7.1   downward from the child support guidelines unless the court 
  7.2   specifically finds that the failure to deviate downward would 
  7.3   impose an extreme hardship on the obligor. 
  7.4      (k) The dollar amount of the income limit for application 
  7.5   of the guidelines must be adjusted on July 1 of every 
  7.6   even-numbered year to reflect cost-of-living changes.  The 
  7.7   supreme court shall select the index for the adjustment from the 
  7.8   indices listed in section 518.641.  The state court 
  7.9   administrator shall make the changes in the dollar amount 
  7.10  required by this paragraph available to courts and the public on 
  7.11  or before April 30 of the year in which the amount is to change. 
  7.12     Sec. 2.  Minnesota Statutes 1994, section 518.64, 
  7.13  subdivision 2, is amended to read: 
  7.14     Subd. 2.  [MODIFICATION.] (a) The terms of an order 
  7.15  respecting maintenance or support may be modified upon a showing 
  7.16  of one or more of the following:  (1) substantially increased or 
  7.17  decreased earnings of a party; (2) substantially increased or 
  7.18  decreased need of a party or the child or children that are the 
  7.19  subject of these proceedings; (3) receipt of assistance under 
  7.20  sections 256.72 to 256.87 or 256B.01 to 256B.40; (4) a change in 
  7.21  the cost of living for either party as measured by the federal 
  7.22  bureau of statistics, any of which makes the terms unreasonable 
  7.23  and unfair; (5) extraordinary medical expenses of the child not 
  7.24  provided for under section 518.171; or (6) the addition of 
  7.25  work-related or education-related child care expenses of the 
  7.26  obligee or a substantial increase or decrease in existing 
  7.27  work-related or education-related child care expenses; or (7) 
  7.28  the obligor's acquisition of a child by birth or adoption, or 
  7.29  the imposition on the obligor by court order of a support 
  7.30  obligation for a child other than any child who is the subject 
  7.31  of the support order the obligor seeks to modify.  
  7.32     It is presumed that there has been a substantial change in 
  7.33  circumstances under clause (1), (2), or (4) and the terms of a 
  7.34  current support order shall be rebuttably presumed to be 
  7.35  unreasonable and unfair if the application of the child support 
  7.36  guidelines in section 518.551, subdivision 5, to the current 
  8.1   circumstances of the parties results in a calculated court order 
  8.2   that is at least 20 percent and at least $50 per month higher or 
  8.3   lower than the current support order.  
  8.4      (b) On a motion for modification of maintenance, including 
  8.5   a motion for the extension of the duration of a maintenance 
  8.6   award, the court shall apply, in addition to all other relevant 
  8.7   factors, the factors for an award of maintenance under section 
  8.8   518.552 that exist at the time of the motion.  On a motion for 
  8.9   modification of support, the court:  
  8.10     (1) shall apply section 518.551, subdivision 5, and shall 
  8.11  not consider the financial circumstances of each party's spouse, 
  8.12  if any; and 
  8.13     (2) shall not consider compensation received by a party for 
  8.14  employment in excess of a 40-hour work week, provided that the 
  8.15  party demonstrates, and the court finds, that: 
  8.16     (i) the excess employment began after entry of the existing 
  8.17  support order; 
  8.18     (ii) the excess employment is voluntary and not a condition 
  8.19  of employment; 
  8.20     (iii) the excess employment is in the nature of additional, 
  8.21  part-time employment, or overtime employment compensable by the 
  8.22  hour or fractions of an hour; 
  8.23     (iv) the party's compensation structure has not been 
  8.24  changed for the purpose of affecting a support or maintenance 
  8.25  obligation; 
  8.26     (v) in the case of an obligor, current child support 
  8.27  payments are at least equal to the guidelines amount based on 
  8.28  income not excluded under this clause; and 
  8.29     (vi) in the case of an obligor who is in arrears in child 
  8.30  support payments to the obligee, any net income from excess 
  8.31  employment must be used to pay the arrearages until the 
  8.32  arrearages are paid in full. 
  8.33     (c) A modification of support or maintenance may be made 
  8.34  retroactive only with respect to any period during which the 
  8.35  petitioning party has pending a motion for modification but only 
  8.36  from the date of service of notice of the motion on the 
  9.1   responding party and on the public authority if public 
  9.2   assistance is being furnished or the county attorney is the 
  9.3   attorney of record.  However, modification may be applied to an 
  9.4   earlier period if the court makes express findings that the 
  9.5   party seeking modification was precluded from serving a motion 
  9.6   by reason of a significant physical or mental disability, a 
  9.7   material misrepresentation of another party, or fraud upon the 
  9.8   court and that the party seeking modification, when no longer 
  9.9   precluded, promptly served a motion.  
  9.10     (d) Except for an award of the right of occupancy of the 
  9.11  homestead, provided in section 518.63, all divisions of real and 
  9.12  personal property provided by section 518.58 shall be final, and 
  9.13  may be revoked or modified only where the court finds the 
  9.14  existence of conditions that justify reopening a judgment under 
  9.15  the laws of this state, including motions under section 518.145, 
  9.16  subdivision 2.  The court may impose a lien or charge on the 
  9.17  divided property at any time while the property, or subsequently 
  9.18  acquired property, is owned by the parties or either of them, 
  9.19  for the payment of maintenance or support money, or may 
  9.20  sequester the property as is provided by section 518.24. 
  9.21     (e) The court need not hold an evidentiary hearing on a 
  9.22  motion for modification of maintenance or support. 
  9.23     (f) Section 518.14 shall govern the award of attorney fees 
  9.24  for motions brought under this subdivision. 
  9.25     Sec. 3.  [EFFECTIVE DATE; APPLICATION.] 
  9.26     Sections 1 and 2 are effective August 1, 1995, and apply to 
  9.27  new orders for support and modifications of existing support 
  9.28  orders on or after that date.