Office of the Revisor of Statutes
Minnesota Session Laws - 1988, Regular Session
Key: (1) language to be deleted (2) new language
Laws of Minnesota 1988
CHAPTER 668-S.F.No. 2009
An act relating to family law; modifying and
clarifying provisions for the collection and
enforcement of child support; providing for
cost-of-living adjustments in spousal maintenance
awards; providing for grandparent visitation rights in
all family law proceedings; providing for reopening of
judgments; providing for custody rights; clarifying
and modifying provisions relating to pension plan
rights in marriage dissolutions; amending Minnesota
Statutes 1986, sections 69.62; 123.35, by adding a
subdivision; 256.978; 257.022, subdivision 2; 270A.03,
subdivision 4; 383B.51; 423A.16; 424A.02, subdivision
6; 490.126, by adding a subdivision; 518.145; 518.17,
subdivision 3; 518.171, by adding a subdivision;
518.175, by adding a subdivision; 518.551, subdivision
5, and by adding a subdivision; 518.552, by adding a
subdivision; 518.54, by adding a subdivision; 518.611,
subdivision 10; 518.64, subdivision 2; and 518.641;
Minnesota Statutes 1987 Supplement, sections 356.80;
518.54, subdivision 10; 518.58, subdivision 2;
518.581, subdivision 4; and 518.611, subdivision 2.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 1986, section 69.62, is
amended to read:
69.62 [PENSION PAYMENTS EXEMPT FROM PROCESS.]
No payment made or to be made by any fire department relief
association in a city of the first class under the provisions of
section sections 69.25 to 69.53 to any member of the pension
roll shall be subject to judgment, garnishment, execution, or
other legal process, except as provided in section 518.58,
518.581, or 518.611; and. No person entitled to this a
payment from a fire department relief association shall have the
right to assign the same, nor shall the association have the
authority to recognize any assignment or pay over any sum which
has been assigned.
Sec. 2. Minnesota Statutes 1986, section 123.35, is amended
by adding a subdivision to read:
Subd. 18. [NONCUSTODIAL PARENT ACCESS TO RECORDS.] Upon
request, a noncustodial parent has the right of access to, and
to receive copies of, school records and information, to attend
conferences, and to be informed about the child's welfare,
educational progress, and status, as authorized under section
518.17, subdivision 3. The school is not required to hold a
separate conference for each parent.
Sec. 3. Minnesota Statutes 1986, section 256.978, is
amended to read:
256.978 [LOCATION OF PARENTS DESERTING THEIR CHILDREN,
ACCESS TO RECORDS.]
The commissioner of human services, in order to carry out
the child support enforcement program and to assist in the
location of parents who have, or appear to have, deserted their
children, may request information from the records of all
departments, boards, bureaus or other agencies of this state,
which shall, notwithstanding the provisions of section 290.61,
section 268.12, subdivision 12 or any other law to the contrary,
provide the information necessary for this purpose. Employers
and utility companies doing business in this state shall provide
information upon written request by an agency responsible for
child support enforcement regarding individuals owing or
allegedly owing a duty to support. A request for this
information may be made to an employer when there is reasonable
cause to believe that the subject of the inquiry is or was
employed by the employer where the request is made. The request
must include a statement that reasonable cause exists.
Information to be released by utility companies is restricted to
place of residence. Information to be released by employers is
restricted to place of residence, employment status and wage
information. Information relative to the identity, whereabouts,
employment, income, and property of a person owing or alleged to
be owing an obligation of support may be requested and used or
transmitted by the commissioner pursuant to the authority
conferred by this section. The commissioner of human services
may make such information available only to public officials and
agencies of this state and its political subdivisions and other
states of the union and their political subdivisions who are
seeking to enforce the support liability of parents or to locate
parents who have, or appear to have, deserted their children.
Any person who, pursuant to this section, obtains information
from the department of revenue the confidentiality of which is
protected by law shall not divulge the information except to the
extent necessary for the administration of the child support
enforcement program or when otherwise authorized by law.
Sec. 4. Minnesota Statutes 1986, section 257.022,
subdivision 2, is amended to read:
Subd. 2. [WHEN PARENTS' MARRIAGE IS DISSOLVED FAMILY COURT
PROCEEDINGS.] In all proceedings for dissolution, custody, legal
separation, annulment, or parentage subsequent to the
commencement of the proceeding and continuing thereafter during
the minority of the child, the court may, upon the request of
the parent or grandparent of a party, grant reasonable
visitation rights to the unmarried minor child, after
dissolution of marriage, legal separation, annulment, or
determination of parentage during minority if it finds that
visitation rights would be in the best interests of the child
and would not interfere with the parent child relationship. The
court shall consider the amount of personal contact between the
parents or grandparents of the party and the child prior to the
application.
Sec. 5. Minnesota Statutes 1986, section 270A.03,
subdivision 4, is amended to read:
Subd. 4. "Debtor" means a natural person obligated on a
debt to a claimant agency or having a delinquent account with a
public agency responsible for child support enforcement.
Sec. 6. Minnesota Statutes 1987 Supplement, section
356.80, is amended to read:
356.80 [PROVISION OF INFORMATION IN THE EVENT OF MARRIAGE
DISSOLUTION.]
Subdivision 1. [INFORMATION FOR A PENDING MARRIAGE
DISSOLUTION.] (a) Upon written request by a person with access
to the data under subdivision 3 who cites this statute, a public
or private pension plan administrator must provide the court and
the parties to a marriage dissolution action involving a plan
member or former plan member with information regarding pension
benefits or rights of the plan member or former plan member.
The pension plan shall provide this information upon request of
the court or a party to the action without requiring a signed
authorization from the plan member or former plan member.
(b) The information must include the pension benefits or
rights of the plan member or former plan member as of the first
day of the month following the date of the request, as of the
first day of the seventh month following the date of the request
if the action involves an active plan member, and as of the date
of valuation of marital assets under section 518.58, if the
person requesting the information specifies that date. The
information must also include the accrued service credit of the
person, the credited salary of the person for the most current
five-year period, a summary of the benefit plan, and any other
information relevant to the calculation of the present value of
the benefits or rights.
Subd. 2. [INFORMATION FOR AN EXISTING DISSOLUTION DECREE.]
If a marriage dissolution decree rendered by a court of
competent jurisdiction prior to August 1, 1987, provided a
procedure for dividing pension benefits or rights in the form of
the distribution of future pension plan payments, upon request
the applicable pension plan administrator shall provide on a
timely basis to the court and the parties to the action the
required information to implement that procedure without
requiring a signed authorization from the plan member or former
plan member.
Subd. 3. [ACCESS TO DATA.] Notwithstanding any provision
of chapter 13 to the contrary, a responsible authority an
administrator may release private or confidential data on
individuals to the court, the parties to a marriage dissolution,
their attorneys, and an actuary appointed under section 518.582,
to the extent necessary to comply with this section.
Sec. 7. Minnesota Statutes 1986, section 383B.51, is
amended to read:
383B.51 [NO ASSIGNMENT OR GARNISHMENT.]
The right of a participant who has shares to the credit of
the participant's share account record to redeem all or any
portion of the shares is a personal right only and shall not be
assignable. Legal title to the assets of the Hennepin county
supplemental retirement program shall be in the state of
Minnesota or the state board of investment or the nominee of
either, subject to the rights of the county of Hennepin. Any
assignment or attempted assignment of shares to the credit of a
participant's share account record by any person is null and
void. The shares are exempt from garnishment or levy under
attachment or execution and or other legal process, except as
provided in section 518.58, 518.581, or 518.611. The shares are
also exempt from all taxation by the state of Minnesota.
Sec. 8. Minnesota Statutes 1986, section 423A.16, is
amended to read:
423A.16 [EXEMPTION FROM ASSIGNMENTS; PROCESS.]
Notwithstanding any law to the contrary, none of the
moneys, annuities, or other benefits provided by any police or
salaried firefighters' relief association shall be assignable in
law or in equity, nor be subject to execution, levy, attachment,
garnishment, or other legal process, except as provided in
section 518.58, 518.581, or 518.611.
Sec. 9. Minnesota Statutes 1986, section 424A.02,
subdivision 6, is amended to read:
Subd. 6. [PAYMENT OF SERVICE PENSIONS; NONASSIGNABILITY.]
The method of calculating service pensions shall be applied
uniformly for all years of active service and credit shall be
given for all years of active service, except as otherwise
provided in this section. No service pension shall be paid to
any person while the person remains an active member of the
respective fire department, and no person who is receiving a
service pension shall be entitled to receive any other benefits
from the special fund of the relief association. No service
pension or ancillary benefits paid or payable from the special
fund of a relief association to any person receiving or entitled
to receive a service pension or ancillary benefits shall be
subject to garnishment, judgment, execution or other legal
process, except as provided in section 518.58, 518.581, or
518.611. No person entitled to a service pension or ancillary
benefits from the special fund of a relief association may
assign any service pension or ancillary benefit payments, nor
shall the association have the authority to recognize any
assignment or pay over any sum which has been assigned.
Sec. 10. Minnesota Statutes 1986, section 490.126, is
amended by adding a subdivision to read:
Subd. 5. [EXEMPTION FROM PROCESS; NO ASSIGNMENT.] None of
the money, annuities, or other benefits provided in this chapter
is assignable either in law or equity or is subject to
execution, levy, attachment, garnishment, or other legal
process, except as provided in section 518.58, 518.581, or
518.611.
Sec. 11. Minnesota Statutes 1986, section 518.145, is
amended to read:
518.145 [DECREE, FINALITY AND REOPENING.]
Subdivision 1. [APPEAL.] A decree of dissolution of
marriage or of legal separation is final when entered, subject
to the right of appeal. When entered, the findings of fact and
conclusions of law may constitute the judgment and decree. An
appeal from the decree of dissolution that does not challenge
the finding that the marriage is irretrievably broken does not
delay the finality of that provision of the decree which
dissolves the marriage beyond the time for appealing from that
provision. A party may remarry before the time for appeal has
run if it is not contested that the marriage is irretrievably
broken or if a stipulation that the marriage is irretrievably
broken is incorporated in the decree of dissolution.
Subd. 2. [REOPENING.] On motion and upon terms as are
just, the court may relieve a party from a judgment and decree,
order, or proceeding under chapter 518, except for provisions
dissolving the bonds of marriage, annulling the marriage, or
directing that the parties are legally separated, and may order
a new trial or grant other relief as may be just for the
following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial under
the rules of civil procedure, rule 59.03;
(3) fraud, whether denominated intrinsic or extrinsic,
misrepresentation, or other misconduct of an adverse party;
(4) the judgment and decree or order is void; or
(5) the judgment has been satisfied, released, or
discharged, or a prior judgment and decree or order upon which
it is based has been reversed or otherwise vacated, or it is no
longer equitable that the judgment and decree or order should
have prospective application.
The motion must be made within a reasonable time, and for a
reason under clause (1), (2), or (3), not more than one year
after the judgment and decree, order, or proceeding was entered
or taken. A motion under this subdivision does not affect the
finality of a judgment and decree or order or suspend its
operation. This subdivision does not limit the power of a court
to entertain an independent action to relieve a party from a
judgment and decree, order, or proceeding or to grant relief to
a party not actually personally notified as provided in the
rules of civil procedure, or to set aside a judgment for fraud
upon the court.
Sec. 12. Minnesota Statutes 1986, section 518.17,
subdivision 3, is amended to read:
Subd. 3. [CUSTODY ORDER.] (a) Upon adjudging the nullity
of a marriage, or in a dissolution or separation proceeding,
or in a child custody proceeding, the court shall make such
further order as it deems just and proper concerning:
(a) (1) the legal custody of the minor children of the
parties which shall be sole or joint;
(b) (2) their physical custody and residence; and
(c) (3) their support. In determining custody, the court
shall consider the best interests of the each child and shall
not prefer one parent over the other solely on the basis of the
sex of the parent.
(b) The court shall grant the following rights to each of
the parties, unless specific findings are made under paragraph
(c), and every custody order must include the following notice
to the parties:
NOTICE IS HEREBY GIVEN TO THE PARTIES:
Each party has the right of access to, and to receive
copies of, school, medical, dental, religious training, and
other important records and information about the minor
children. Presentation of a copy of this order to the
custodian of a record or other information about the minor
children constitutes sufficient authorization for the
release of the record or information to the requesting
party.
Each party shall keep the other party informed as to the
name and address of the school of attendance of the minor
children. Each party has the right to be informed by
school officials about the children's welfare, educational
progress and status, and to attend school and
parent-teacher conferences. The school is not required to
hold a separate conference for each party.
In case of an accident or serious illness of a minor child,
each party shall notify the other party of the accident or
illness, and the name of the health care provider and the
place of treatment.
Each party has the right to reasonable access and telephone
contact with the minor children.
(c) The court may waive all or part of the notice required
under paragraph (b) if it finds that it is necessary to protect
the welfare of a party or child.
Sec. 13. Minnesota Statutes 1986, section 518.171, is
amended by adding a subdivision to read:
Subd. 10. [ENFORCEMENT.] Remedies available for the
collection and enforcement of child support apply to medical
support. For the purpose of enforcement, the costs of
individual or group health or hospitalization coverage or
liabilities established pursuant to section 518.171, subdivision
8, are additional child support.
Sec. 14. Minnesota Statutes 1986, section 518.175, is
amended by adding a subdivision to read:
Subd. 7. [GRANDPARENT VISITATION.] In all proceedings for
dissolution or legal separation, the court may make an order
granting visitation rights to grandparents under section
257.022, subdivision 2.
Sec. 15. Minnesota Statutes 1987 Supplement, section
518.54, subdivision 10, is amended to read:
Subd. 10. [PUBLIC PENSION PLAN BENEFITS OR RIGHTS.]
"Public Pension plan benefits or rights" means a benefit or
right from a public or private pension plan accrued to the end
of the month in which marital assets are valued, as determined
under the terms of the laws or other plan document provisions
governing the plan, including section 356.30.
Sec. 16. Minnesota Statutes 1986, section 518.54, is
amended by adding a subdivision to read:
Subd. 12. [PRIVATE PENSION PLAN.] "Private pension plan"
means a plan, fund, or program maintained by an employer or
employee organization that provides retirement income to
employees or results in a deferral of income by employees for a
period extending to the termination of covered employment or
beyond.
Sec. 17. Minnesota Statutes 1986, section 518.551,
subdivision 5, is amended to read:
Subd. 5. [NOTICE TO PUBLIC AUTHORITY; GUIDELINES.] (a) The
petitioner shall notify the public authority of all proceedings
for dissolution, legal separation, determination of parentage or
for the custody of a child, if either party is receiving aid to
families with dependent children or applies for it subsequent to
the commencement of the proceeding. After receipt of the
notice, the court shall set child support as provided in this
subdivision. The court may order either or both parents owing a
duty of support to a child of the marriage to pay an amount
reasonable or necessary for the child's support, without regard
to marital misconduct. The court shall approve a child support
agreement of the parties if each party is represented by
independent counsel, unless the agreement is not in the interest
of justice. In other cases the court shall order child support
in accordance with the guidelines and the other factors set
forth in paragraph (b) and any departure therefrom.
The court shall multiply the obligor's net income by the
percentage indicated by the following guidelines:
Net Income Per Number of Children
Month of Obligor
1 2 3 4 5 6 7 or
more
$400 and Below Order based on the ability of the
obligor to provide support
at these income levels, or at higher
levels, if the obligor has
the earning ability.
$401 - 500 14% 17% 20% 22% 24% 26% 28%
$501 - 550 15% 18% 21% 24% 26% 28% 30%
$551 - 600 16% 19% 22% 25% 28% 30% 32%
$601 - 650 17% 21% 24% 27% 29% 32% 34%
$651 - 700 18% 22% 25% 28% 31% 34% 36%
$701 - 750 19% 23% 27% 30% 33% 36% 38%
$751 - 800 20% 24% 28% 31% 35% 38% 40%
$801 - 850 21% 25% 29% 33% 36% 40% 42%
$851 - 900 22% 27% 31% 34% 38% 41% 44%
$901 - 950 23% 28% 32% 36% 40% 43% 46%
$951 - 1000 24% 29% 34% 38% 41% 45% 48%
$1001- 4000 25% 30% 35% 39% 43% 47% 50%
Guidelines for support for an obligor with a monthly income
of $4001 or more shall be the same dollar amounts as provided
for in the guidelines for an obligor with a monthly income of
$4000.
Net Income defined as:
Total monthly
income less *(i) Federal Income Tax
*(ii) State Income Tax
(iii) Social Security
Deductions
(iv) Reasonable
Pension Deductions
*Standard
Deductions apply- (v) Union Dues
use of tax tables (vi) Cost of Dependent
recommended Insurance Coverage
(vii) Cost of Individual or Group
Health/Hospitalization
Coverage or an
Amount for Actual
Medical Expenses
(viii) A Child Support or
Maintenance Order that is
Currently Being Paid.
"Net income" does not include the income of the obligor's
spouse.
(b) In addition to the child support guidelines, the court
shall take into consideration the following factors in setting
or modifying child support:
(1) all earnings, income, and resources of the parents,
including real and personal property;
(2) the financial needs and resources, physical and
emotional condition, and educational needs of the child or
children to be supported;
(3) the standards of living the child would have enjoyed
had the marriage not been dissolved, but recognizing that the
parents now have separate households;
(4) the amount of the aid to families with dependent
children grant for the child or children; and
(5) which parent receives the income taxation dependency
exemption and what financial benefit the parent receives from
it; and
(6) the parents' debts as provided in paragraph (c).
(c) In establishing or modifying a support obligation, the
court may consider debts owed to private creditors, but only if:
(1) the right to support has not been assigned under
section 256.74;
(2) the court determines that the debt was reasonably
incurred for necessary support of the child or parent or for the
necessary generation of income. If the debt was incurred for
the necessary generation of income, the court shall consider
only the amount of debt that is essential to the continuing
generation of income; and
(3) the party requesting a departure produces a sworn
schedule of the debts, with supporting documentation, showing
goods or services purchased, the recipient of them, the amount
of the original debt, the outstanding balance, the monthly
payment, and the number of months until the debt will be fully
paid.
Any schedule prepared under paragraph (c), clause (3),
shall contain a statement that the debt will be fully paid after
the number of months shown in the schedule, barring emergencies
beyond the party's control.
Any further departure below the guidelines that is based on
a consideration of debts owed to private creditors shall not
exceed 18 months in duration, after which the support shall
increase automatically to the level ordered by the court.
Nothing in this section shall be construed to prohibit one or
more step increases in support to reflect debt retirement during
the 18-month period.
Where payment of debt is ordered pursuant to this section,
the payment shall be ordered to be in the nature of child
support.
(d) Nothing shall preclude the court from receiving
evidence on the above factors to determine if the guidelines
should be exceeded or modified in a particular case.
(e) The above guidelines are binding in each case unless
the court makes express findings of fact as to the reason for
departure below or above the guidelines.
Sec. 18. Minnesota Statutes 1986, section 518.551, is
amended by adding a subdivision to read:
Subd. 11. [REOPENING SUPPORT AWARDS.] Section 518.145,
subdivision 2, applies to awards of child support.
Sec. 19. Minnesota Statutes 1986, section 518.552, is
amended by adding a subdivision to read:
Subd. 4. [REOPENING MAINTENANCE AWARDS.] Section 518.145,
subdivision 2, applies to awards of spousal maintenance.
Sec. 20. Minnesota Statutes 1987 Supplement, section
518.58, subdivision 2, is amended to read:
Subd. 2. [PENSION PLANS.] The division of marital property
that represents vested public pension plan benefits or rights in
the form of future public pension plan payments:
(1) may not commence until the public plan member submits a
valid application for a public pension plan benefit and the
benefit becomes payable;
(2) is payable only to the extent of the amount of the
public pension plan benefit payable under the terms of the plan;
(3) (2) is not payable for a period that exceeds the time
that public pension plan benefits are payable to the public
pension plan benefit recipient;
(4) (3) is not payable in a lump sum amount from public
pension plan assets attributable in any fashion to a spouse with
the status of an active member, deferred retiree, or benefit
recipient of a public pension plan; and
(5) (4) if the former spouse to whom the payments are to be
made dies prior to the end of the specified payment period with
the right to any remaining payments accruing to an estate or to
more than one survivor, is payable only to a trustee on behalf
of the estate or the group of survivors for subsequent
apportionment by the trustee; and
(5) in the case of public pension plan benefits or rights,
may not commence until the public plan member submits a valid
application for a public pension plan benefit and the benefit
becomes payable.
Sec. 21. Minnesota Statutes 1987 Supplement, section
518.581, subdivision 4, is amended to read:
Subd. 4. [DEFINITIONS.] For purposes of this section, the
following terms have the meanings given in this subdivision.
(a) "Current or former public employee" or "employee" means
an individual who has an interest in a pension plan.
(b) "Surviving spouse benefit" means (1) a benefit a
surviving spouse may be eligible for under the laws and bylaws
of the pension plan if the employee dies before retirement, or
(2) a benefit selected for or available to a surviving spouse
under the laws and bylaws of the pension plan upon the death of
the employee after retirement.
Sec. 22. Minnesota Statutes 1987 Supplement, section
518.611, subdivision 2, is amended to read:
Subd. 2. [CONDITIONS OF INCOME WITHHOLDING.] (a)
Withholding shall result whenever the obligor fails to make the
maintenance or support payments, and the following conditions
are met:
(1) The obligor is at least 30 days in arrears;
(2) The obligee or the public authority serves written
notice of income withholding, showing arrearage, on the obligor
at least 15 days before service of the notice of income
withholding and a copy of the court's order on the payor of
funds;
(3) Within the 15-day period, the obligor fails to move the
court to deny withholding on the grounds that an arrearage of at
least 30 days does not exist as of the date of the notice of
income withholding, or on other grounds limited to mistakes of
fact, and, ex parte, to stay service on the payor of funds until
the motion to deny withholding is heard; and
(4) The obligee or the public authority serves a copy of
the notice of income withholding, a copy of the court's order,
and the provisions of this section on the payor of funds; and
(5) The obligee serves on the public authority a copy of
the notice of income withholding, a copy of the court's order,
an application, and the fee to use the public authority's
collection services.
(b) To pay the arrearage specified in the notice of income
withholding, the employer or payor of funds shall withhold from
the obligor's income an additional amount equal to 20 percent of
the monthly child support or maintenance obligation until the
arrearage is paid.
(c) The obligor may, at any time, waive the written notice
required by this subdivision.
(d) The obligor may move the court, under section 518.64,
to modify the order respecting the amount of maintenance or
support.
(e) Every order for support or maintenance shall provide
for a conspicuous notice of the provisions of this subdivision.
An order without this notice remains subject to this subdivision.
Sec. 23. Minnesota Statutes 1986, section 518.611,
subdivision 10, is amended to read:
Subd. 10. [ORDER TERMINATING INCOME WITHHOLDING.] (a)
Whenever an obligation for support of a child or maintenance of
a spouse, or both, terminates under the terms of the order or
decree establishing the obligation, and where the obligation is
enforced by an order for income withholding from the obligor,
the court shall enter an order, directed to the obligor's
employer or other payer of funds, which terminates the income
withholding. The order terminating income withholding must
specify the effective date of the order, referencing the initial
order or decree establishing the support obligation.
The order must be entered once the following conditions
have been met:
(1) the obligor serves written notice of the application
for termination of income withholding by mail upon the obligee
at the obligee's last known mailing address; and a duplicate
copy of the application is served upon the public authority
responsible for the processing of support collection services;
(2) the application for termination of income withholding
specifies the event that terminates the support obligation, the
effective date of the termination of the support obligation, and
the applicable provisions of the order or decree that
established the support obligation;
(3) the application includes the complete name of the
obligor's employer or other payer of funds, the business mailing
address, the court action and court file number, and the support
and collections file number, if known; and
(4) after receipt of the application for termination of
income withholding, the obligee or the public authority fails
within 20 days to request a hearing on the issue of whether
income withholding of support should continue clearly specifying
the basis for the continued support obligation and, ex parte, to
stay the service of the order terminating income withholding
upon the obligor's employer or other payer of funds, pending the
outcome of the hearing.
(b) If the public authority determines that the support
obligation has terminated under the terms of the order or decree
establishing the obligation, the public authority shall notify
the obligee and obligor of intent to terminate income
withholding. Five days following this notice, the public
authority shall issue a notice to the payor of funds terminating
income withholding, without a requirement for a court order
terminating income withholding, unless a hearing has been
requested under paragraph (a).
Sec. 24. Minnesota Statutes 1986, section 518.64,
subdivision 2, is amended to read:
Subd. 2. [MODIFICATION.] The terms of a decree respecting
maintenance or support may be modified upon a showing of one or
more of the following: (1) substantially increased or decreased
earnings of a party; (2) substantially increased or decreased
need of a party; (3) receipt of assistance under sections 256.72
to 256.87; or (4) a change in the cost-of-living for either
party as measured by the federal bureau of statistics, any of
which makes the terms unreasonable and unfair. On a motion for
modification of maintenance, the court shall apply, in addition
to all other relevant factors, the factors for an award of
maintenance under section 518.552 that exist at the time of the
motion. On a motion for modification of support, the court
shall take into consideration the needs of the children and
shall not consider the financial circumstances of each party's
spouse, if any. A modification which decreases support or
maintenance may be made retroactive only with respect to any
period during which the support obligor has pending a motion for
modification but only from the date that notice of the motion
has been given to the obligee and to the court or other entity
which issued each support order. A modification which increases
support or maintenance shall not be made retroactive if the
obligor has substantially complied with the previous order.
Except for an award of the right of occupancy of the homestead,
provided in section 518.63, all divisions of real and personal
property provided by section 518.58 shall be final, and may be
revoked or modified only where the court finds the existence of
conditions that justify reopening a judgment under the laws of
this state, including motions under section 518.145, subdivision
2. The court may impose a lien or charge on the divided
property at any time while the property, or subsequently
acquired property, is owned by the parties or either of them,
for the payment of maintenance or support money, or may
sequester the property as is provided by section 518.24.
Sec. 25. Minnesota Statutes 1986, section 518.641, is
amended to read:
518.641 [COST-OF-LIVING ADJUSTMENTS IN MAINTENANCE OR CHILD
SUPPORT ORDER.]
Subdivision 1. [REQUIREMENT.] An order for maintenance or
child support shall provide for a biennial adjustment in the
amount to be paid based on a change in the cost-of-living. The
An order that provides for a cost-of-living adjustment shall
specify the cost-of-living index to be applied. The court may
use the consumer price index for all urban consumers,
Minneapolis-St. Paul (CPI-U), the consumer price index for wage
earners and clerical, Minneapolis-St. Paul (CPI-W), or another
cost-of-living index published by the department of labor which
it specifically finds is more appropriate. The court may
specify that the housing component be excluded from the
cost-of-living adjustment. Cost-of-living increases under this
section shall be compounded. It The court may also increase the
amount by more than the cost-of-living adjustment by agreement
of the parties or by making further findings. The adjustment
becomes effective on the first of May of the year in which it is
made. A court may waive the requirement of the cost-of-living
clause if it expressly finds that the obligor's occupation or
income, or both, does not provide for cost-of-living adjustment
or that the order for maintenance or child support has a
provision such as a step increase that has the effect of a
cost-of-living clause. The court may waive a cost-of-living
adjustment in a maintenance order if the parties so agree in
writing. The commissioner of human services may promulgate
rules for child support adjustments under this section in
accordance with the rulemaking provisions of chapter 14.
Subd. 2. [CONDITIONS.] No adjustment under this section
may be made unless the order provides for it and until the
following conditions are met:
(a) the obligee or public authority serves notice of its
application for adjustment by mail on the obligor at the
obligor's last known address at least 20 days before the
effective date of the adjustment;
(b) the notice to the obligor shall inform the obligor that
an adjustment in payments shall become effective on the first of
May; and
(c) after receipt of notice and before the effective day of
the adjustment, the obligor fails to request a hearing on the
issue of whether the adjustment should take effect, and ex
parte, to stay imposition of the adjustment pending outcome of
the hearing.
Subd. 3. [RESULT OF HEARING.] If, at a hearing pursuant to
this section, the obligor establishes an insufficient cost of
living or other increase in income that prevents fulfillment of
the adjusted maintenance or child support obligation, the court
may direct that all or part of the adjustment not take effect.
If, at the hearing, the obligor does not establish this
insufficient increase in income, the adjustment shall take
effect as of the date it would have become effective had no
hearing been requested.
Subd. 4. [FORM.] The department of human services shall
prepare and make available to the court and obligors a form to
be submitted to the department by the obligor in support of a
request for hearing under this section regarding a child support
order. The rulemaking provisions of chapter 14 shall not apply
to the preparation of the form.
Subd. 5. [REQUEST FOR COST-OF-LIVING CLAUSE.] A motion for
enforcement or modification of an existing maintenance or child
support order shall include a request for a cost-of-living
clause. The court may deny the request only upon an express
finding that the obligor's occupation, income, or both, does not
provide for a cost-of-living adjustment or that the
existing maintenance or child support order either has a
cost-of-living clause or sets forth a step increase which has
the effect of a cost-of-living adjustment.
Approved April 26, 1988
Official Publication of the State of Minnesota
Revisor of Statutes