In 0rder for a Court to deviate downward from the guidelines, the Judge must make specific findings that the deviation is in the best interests of the child(ren). In other words, the Court must find that receiving “less” is “better”. Obviously, this may be a difficult challenge. Arguing hardship for the non-custodial parent generally does little good since the statute looks only at what is best for the minor child(ren), not what is best for the non-custodial parent. As a result, when seeking a downward deviation form child support guidelines, it is important to focus on how the deviation is necessary for the minor child.
In addition to the factors above for an upward deviation, Minnesota Statutes allow the court to consider, following factors in setting or modifying child support or in determining whether to deviate from the guidelines:
- DEBTS. In establishing or modifying a support obligation, the court may consider debts owed to private creditors, but only if:
- the right to support has not been assigned under to the County because of receipt of pubic assistance or medical assistance;
- 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
- 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.
Downward deviations are most often allowed where there is a pre-existing child support obligation or where the non-custodial parent provides a significant amount of the child’s care.
- SECOND FAMILY ISSUES. Minnesota Statutes specifically state that the a person owing child support may not seek a reduction of a pre-existing child support obligation because he/she later has more children. The statute is unmerciful, stating “the fact that an obligor had additional children after the entry of a child support order is not grounds for a modification to decrease the amount of support owed.” However, the fact that an obligor has subsequent children may be use as a defense to a motion to increase child support by an obligee. In order to deviate from the support guidelines based on the needs of subsequent children, the trial court must:
- find the obligor's total ability to contribute to dependent children, taking into account the obligor's income and reasonable expenses exclusive of child care. The obligor's expenses must be:
- reduced as appropriate to take into account contributions to those costs by other adults who share the obligor's current household; and
- apportioned between the parent and any subsequent child with regard to shared benefits, including but not limited to, housing and transportation;
- find the total needs of all the obligor's children, and if these needs are less than the obligor's ability to pay, the needs may become the obligor's child support obligation. When considering the needs of subsequent children, the trial court must reduce those amounts as appropriate to take into account the ability to contribute to those needs by another parent of the children;
- make specific findings on the needs of the child or children who are the subject of the support order under consideration; and
- exercise discretion to fairly determine the current support obligation and the contribution left available for other children, considering that the support obligation being determined should be in an amount at least equal to the contribution for a subsequent child.
5. CAN PARENTS AGREE ON THE CHILD SUPPORT AMOUNT?
Parties may not agree to a child support amount that does not reflect child support guidelines or that does not provide a reason to depart from the guidelines as set out in Minnesota Statutes. Child support is considered a right of the child, not a right of the parents. As a result, parents cannot agree to modify the child’s rights. It is considered by the Court to be the equivalent of having a disinterested party agreeing to modify someone else’s contract. Court’s review all stipulations related to child support and must find the necessary facts required under Minnesota Statutes before ratifying a stipulation by entering it as an order.
Agreements relating to child support that are not memorialized as a Court order are unenforceable. Moreover, child support cannot be determined retroactively except in cases of paternity. In paternity cases, the Court may reach back two years prior to the filing of a paternity action seeking child support reimbursement.
Though this sounds like a harsh result where parents are willing to agree on a child support amount, from a practical standpoint there are ways to ensure that most agreements reached by parents are ratified by the Court.
*Often it is just a matter of providing some additional facts or the correct language for the Court to accept an agreement on child support.
6. WHO PAYS DAYCARE/CHILD CARE EXPENSES?
Contribution to daycare expenses is a child support obligation in addition to support set by Child support guidelines. Only certain qualified child care expenses are divided between parents. The child care expenses must be incurred based on the custodial parent’s attendance in an educational program or work.
Generally, daycare providers require weekly contracts even if the children) do not attend the daycare full time. As such, parents are often required to divide the cost of weekly daycare even though the child may not attend the daycare full time each week.
The costs of daycare are divided in proportion to each parent's net income after the transfer of child support and spousal maintenance, unless the allocation would be substantially unfair to either parent. There is a presumption of substantial unfairness if after the sum total of child support, spousal maintenance, and child care costs is subtracted from the non-custodial parent's income, the income is at or below 100 percent of the federal poverty guidelines. The cost of child care for purposes of this paragraph is 75 percent of the actual cost paid for child care, to reflect the approximate value of state and federal tax credits available to the custodial parent. If child care expenses fluctuate during the year because of seasonal employment or school attendance of the obligee or extended periods of visitation with the obligor, the court shall determine child care expenses based on an average monthly cost.
Minnesota Statutes specifically allows a court to order the non-custodial parent to care for the child while the custodial parent is working. Though this may decrease contribution to daycare costs, the statute specifically states that allowing the non- custodial parent to care for the child is not a reason to deviate from the child support guidelines.
7. IF A CHILD RECEIVE INCOME FROM SOCIAL SECURITY OR OTHER INSURANCE BENEFITS DOES IT REDUCE CHILD SUPPORT?
In establishing or modifying child support, if a child receives a child's insurance benefits for Social Security or Social Security Disability because the obligor is entitled to benefits, the amount of support is offset dollar for dollar by the amount received by the child.
8. CAN THE COURT ORDER COMMUNITY SERVICE FOR THE UNEMPLOYED?
If the court finds that the obligor earns $400 or less per month and does not have the ability to provide support based on the guidelines, the court may order the community services to fulfill the support obligation. In ordering community services subdivision, the court must consider whether the obligor has the physical capability of performing community services, and must order community services that are appropriate for the obligor's abilities.
9. IS THE NON-CUSTODIAL PARENT LIMITING INCOME TO AVOID SUPPORT?
Oftentimes it is argued that a parent is self-limiting his or her income in order to avoid paying child support. Minnesota Statutes do allow a court to “impute income” in select instances. Imputed income means the estimated earning ability of a parent based on the parent's prior earnings history, education, and job skills, and on availability of jobs within the community for an individual with the parent's qualifications.
Minn. Stat. §518.551, subd. 5b(d) specifically states that “a parent is not considered voluntarily unemployed or underemployed if the unemployment or underemployment:
- is temporary and will ultimately lead to an increase in income; or
- represents a bona fide career change that outweighs the adverse effect of that parent's diminished income on the child.
10. WHO PAYS COLLEGE COSTS?
The Court may not require any parent to contribute to college fund or share costs related to post-secondary education. However, the court may order contribution to a college fund and or payment of college cost only if the parents agree on that issue. Once the agreement is memorialized by a Court order, it becomes enforceable through contempt proceedings.
11. CAN CHILD SUPPORT BE REDUCED DURING EXTENDED VISITATION?
Minnesota Statutes § 518.551, Subd. 5e specifically allows the Court to adjust child support if a child will be with a non-custodial parent for a period of time of 30 consecutive days or longer. This simply means that the court has discretion to order a reduction. It does not always occur. That is particularly true where the custodial parent can demonstrate that certain monthly expenses do not decrease in the child’s absence. (Eg. Maintaining a home, feed, clothing etc...).
