On August 1, 2018 a new and substantial change will occur in the Minnesota child support laws.
An historical perspective of child support may be of interest to some but not to others. If you are in the “not” category head down to the section called: The Current Change.
Prior to August 2007 if parents involved in a child support proceeding could not agree on the amount of child support to be paid the matter was resolved in a court order through judicial discretion. A general belief that things needed to change developed over time because there was no reasonable consistency in the application of judicial discretion, which lead to substantially different results based on similar facts.
A fix was needed, or so everyone believed.
In 2007 the Minnesota Legislature made a massive change to the child support laws. They adopted an “income share” model which took the gross income of both parties and allocated an amount for child support based on whether the parenting time fell into one of three categories. There was a category for Less than 10% (parenting time was less than 36.5 overnights per year); a category for Between 10 and 45% (parenting time was at least 36.5 and 164.25 overnights per year) and Between 45.1% and 50% (parenting time was between 164.26 and 182.5 overnights with the children per year).
Overnights is the measurement that determines parenting time for these categories. To base child support on a different measure requires agreement of the parties or a Court Order.
As an example, assume that Parent A earns a gross income, before any deductions, in the amount of $6,000 per month. Parent B earns a gross income, before any deductions, in the amount of $4,000 per month. There are 3 children of the marriage and none from other relationships. No daycare expenses and no medical insurance is being factored into the calculation. There is no spousal maintenance. There are 3 different outcomes for the same incomes:
- Less than 10% parenting time, child support is $1,428 per month.
- 10% to 45% parenting time, child support is $1,257 per month.
- 1% to 50% parenting time, child support is $357 per month.
Based on the foregoing, the parent who spent 36 overnights per year (i.e. less than 10%) paid $171 more in child support than the parent who spent 37 overnights per year (i.e. 10%-45%). This is because of the aforementioned categories which are based on categories of time not actual parenting overnights.
The parent who spent 37 overnights would pay the same child support as the parent who spent 164 overnights with the children because both numbers fall into the 10% to 45% category.
The parent who spent 164 overnights pays $900 more than the parent who spends 165 overnights with the children.
These disparate results were unfair because of the significant differences that resulted from small changes in parenting time. Parents often spurred on by zealous family attorneys weaponized parenting time to get more money from the other parent.
The law was intended to give both parents comparable sums from which to provide for the needs of the children but for many reasons, too complex for this article on child support, inequities arose and reared their head to replace the inequities under the laws that existed before 2007.
Another fix has been created it goes into effect on August 1, 2018. Under the new (and some say improved law) the 3 noted categories are eliminated and the actual number of overnights will determine how much support is paid. The divorce decree or child support order will include a provision that identifies the number of overnights each parent will have with the children. These overnights will then be inserted into a new child support calculator and a more fair and equitable child support amount is supposed to be identified.
The Current Change
Child support falls into three categories. Basic Support (basic daily living expenses related to a child’s care), Child Care Support (work-related or education-related child care costs of joint children); Medical Support (covering health insurance, unreimbursed and uninsured expenses).
There is one primary change to these three categories but it is a big one. The change is to the calculation of basic support.
Basic support is based on income and amount of time spent with children.
Minnesota Statutes §518A.35 provides the guideline chart of income for the number of children requiring support. Basic support is based on the combined income of parents. The statute caps the calculation of income for basic support at $180,000.00 per year. To calculate basic support with consideration of more than $180,000 would require a motion to the Court to deviate from the guidelines and order more than the guidelines provide. See Minnesota Statutes §518A.35 subd.3(b), §518A.36 subd.2 and §518A.37 subd.2.
Most families do not have combined incomes in excess of 180K and in my experience most couples reach agreement on how to share expenses that may not be covered by basic support such as summer activities and other extracurricular expenses and necessary medical expenses not covered by insurance.
Prior to August 1, 2018 time with children was determined by selecting one of 3 categories noted earlier.
As of August 1, 2018, the law provides that new orders for child support will be based on overnights with the children translating that time into a percentage. Minnesota Statutes §518A.35 effective August 1, 2018 specifically states:
“Every child support order shall specify the percentage of parenting time granted to or presumed for each parent. For purposes of this section, the percentage of parenting time means the percentage of time a child is scheduled to spend with the parent during a calendar year according to a court order averaged over a two-year period. Parenting time includes time with the child whether it is designated as visitation, physical custody, or parenting time. The percentage of parenting time may be determined by calculating the number of overnights or overnight equivalents that a parent spends with a child pursuant to a court order. For purposes of this section, overnight equivalents are calculated by using a method other than overnights if the parent has significant time periods on separate days where the child is in the parent’s physical custody and under the direct care of the parent but does not stay overnight. The court may consider the age of the child in determining whether a child is with a parent for a significant period of time.”
The new method for calculating child support is found in an interactive calculator that is available to the public at: https://childsupportcalculator.dhs.state.mn.us/calculator.aspx.
To change a previously ordered payment of child support the payor needs to petition the court and needs to meet the standard for modification. The law is not retroactive in its application.
Potential Issues and Concerns
The potential problems with the new law, for there are always problems lurking, include:
- The parent who is overpowered by an emotionally and/or physically abusive other parent and is bullied into a parenting agreement that provides the bully parent with significant overnights resulting in significantly lower child support. The parent then fails to exercise the time allocated to them. The result is the other parent is in a position of having to provide for the children with a sum of money that is not enough. The fix requires maintaining a calendar as evidence and a return to court, which is not inexpensive.
- If the presumptive child support obligation provides for a level of support that is inadequate to support the children, the Court does have discretion to deviate from the presumptive calculation of child support and make an award of additional support under Minn.Stat.§ 518A.37, subd.2. A basis for deviation might include private school expenses, special activity expenses (e.g. equestrian related, sports related) or standard of living expenses that could not be covered by the presumptive child support obligation.
A parent who is able to show a lack of prior parenting and parenting interest might be able to convince a Court to issue a decree or order that makes special findings and provides for a different level of support. Many judges and referees are not provided sufficient facts and evidence to do this and if they are it is often difficult for a judge or referee to take the road less travelled and have the courage to use the alternative option to provide a fair level of support, especially if there is any question about whether the past is a good indicator of future behavior.
The new law will not be a silver bullet success but maybe it will correct some of the inequities that currently exist. Time will tell.