Minnesota Legislature
Office of the Revisor of Statutes
Minnesota Session Laws - 2001, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 51-H.F.No. 1260
An act relating to family law; neutralizing certain
terminology; amending Minnesota Statutes 2000,
sections 518.131, subdivision 2; 518.155; 518.171,
subdivisions 1, 4, 5, 6, and 8; 518.175; 518.1751,
subdivision 1b; 518.176, subdivision 1; 518.18;
518.55, subdivision 1; 518.551, subdivisions 5 and 5e;
518.612; and 518.64, subdivision 2.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 2000, section 518.131,
subdivision 2, is amended to read:
Subd. 2. [IMPERMISSIBLE ORDERS.] No temporary order shall:
(a) Deny parenting time to a noncustodial parent unless the
court finds that the parenting time by the noncustodial parent
is likely to cause physical or emotional harm to the child;
(b) Exclude a party from the family home of the parties
unless the court finds that physical or emotional harm to one of
the parties or to the children of the parties is likely to
result, or that the exclusion is reasonable in the
circumstances; or
(c) Vacate or modify an order granted under section
518B.01, subdivision 6, paragraph (a), clause (1), restraining
an abusing party from committing acts of domestic abuse, except
that the court may hear a motion for modification of an order
for protection concurrently with a proceeding for dissolution of
marriage upon notice of motion and motion. The notice required
by court rule shall not be waived. If the proceedings are
consolidated and the motion to modify is granted, a separate
order for modification of an order for protection shall be
issued.
Sec. 2. Minnesota Statutes 2000, section 518.155, is
amended to read:
518.155 [CUSTODY DETERMINATIONS.]
Notwithstanding any law to the contrary, a court in which a
proceeding for dissolution, legal separation, or child custody
has been commenced shall not issue, revise, modify or amend any
order, pursuant to sections 518.131, 518.165, 518.168, 518.17,
518.175 or 518.18, which affects the custody of a minor child or
the parenting time of a noncustodial parent unless the court has
jurisdiction over the matter pursuant to the provisions of
chapter 518D.
Sec. 3. Minnesota Statutes 2000, section 518.171,
subdivision 1, is amended to read:
Subdivision 1. [ORDER.] Compliance with this section
constitutes compliance with a qualified medical child support
order as described in the federal Employee Retirement Income
Security Act of 1974 (ERISA) as amended by the federal Omnibus
Budget Reconciliation Act of 1993 (OBRA).
(a) Every child support order must:
(1) expressly assign or reserve the responsibility for
maintaining medical insurance for the minor children and the
division of uninsured medical and dental costs; and
(2) contain the names, last known addresses, and social
security number numbers of the custodial parent and noncustodial
parent, parents of the dependents unless the court prohibits the
inclusion of an address or social security number and orders the
custodial parent parents to provide the address their addresses
and social security number numbers to the administrator of the
health plan. The court shall order the party parent with the
better group dependent health and dental insurance coverage or
health insurance plan to name the minor child as beneficiary on
any health and dental insurance plan that is available to
the party parent on:
(i) a group basis;
(ii) through an employer or union; or
(iii) through a group health plan governed under the ERISA
and included within the definitions relating to health plans
found in section 62A.011, 62A.048, or 62E.06, subdivision 2.
"Health insurance" or "health insurance coverage" as used in
this section means coverage that is comparable to or better than
a number two qualified plan as defined in section 62E.06,
subdivision 2. "Health insurance" or "health insurance
coverage" as used in this section does not include medical
assistance provided under chapter 256, 256B, 256J, 256K, or 256D.
(b) If the court finds that dependent health or dental
insurance is not available to the obligor or obligee on a group
basis or through an employer or union, or that group insurance
is not accessible to the obligee, the court may require the
obligor (1) to obtain other dependent health or dental
insurance, (2) to be liable for reasonable and necessary medical
or dental expenses of the child, or (3) to pay no less than $50
per month to be applied to the medical and dental expenses of
the children or to the cost of health insurance dependent
coverage.
(c) If the court finds that the available dependent health
or dental insurance does not pay all the reasonable and
necessary medical or dental expenses of the child, including any
existing or anticipated extraordinary medical expenses, and the
court finds that the obligor has the financial ability to
contribute to the payment of these medical or dental expenses,
the court shall require the obligor to be liable for all or a
portion of the medical or dental expenses of the child not
covered by the required health or dental plan. Medical and
dental expenses include, but are not limited to, necessary
orthodontia and eye care, including prescription lenses.
(d) Unless otherwise agreed by the parties and approved by
the court, if the court finds that the obligee is not receiving
public assistance for the child and has the financial ability to
contribute to the cost of medical and dental expenses for the
child, including the cost of insurance, the court shall order
the obligee and obligor to each assume a portion of these
expenses based on their proportionate share of their total net
income as defined in section 518.54, subdivision 6.
(e) Payments ordered under this section are subject to
section 518.6111. An obligee who fails to apply payments
received to the medical expenses of the dependents may be found
in contempt of this order.
Sec. 4. Minnesota Statutes 2000, section 518.171,
subdivision 4, is amended to read:
Subd. 4. [EFFECT OF ORDER.] (a) The order is binding on
the employer or union and the health and dental insurance plan
when service under subdivision 3 has been made. In the case of
an obligor who changes employment and is required to provide
health coverage for the child, a new employer that provides
health care coverage shall enroll the child in the obligor's
health plan upon receipt of an order or notice for health
insurance, unless the obligor contests the enrollment. The
obligor may contest the enrollment on the limited grounds that
the enrollment is improper due to mistake of fact or that the
enrollment meets the requirements of section 518.64, subdivision
2. If the obligor chooses to contest the enrollment, the
obligor must do so no later than 15 days after the employer
notifies the obligor of the enrollment, by doing all of the
following:
(1) filing a request for contested hearing according to
section 484.702;
(2) serving a copy of the request for contested hearing
upon the public authority and the obligee; and
(3) securing a date for the contested hearing no later than
45 days after the notice of enrollment.
(b) The enrollment must remain in place during the time
period in which the obligor contests the withholding.
An employer or union that is included under ERISA may not deny
enrollment based on exclusionary clauses described in section
62A.048. Upon application of the obligor according to the order
or notice, the employer or union and its health and dental
insurance plan shall enroll the minor child as a beneficiary in
the group insurance plan and withhold any required premium from
the obligor's income or wages. If more than one plan is offered
by the employer or union, the child shall be enrolled in the
least costly health insurance plan otherwise available to the
obligor that is comparable to a number two qualified plan. If
the obligor is not enrolled in a health insurance plan, the
employer or union shall also enroll the obligor in the chosen
plan if enrollment of the obligor is necessary in order to
obtain dependent coverage under the plan. Enrollment of
dependents and the obligor shall be immediate and not dependent
upon open enrollment periods. Enrollment is not subject to the
underwriting policies described in section 62A.048.
(c) An employer or union that willfully fails to comply
with the order is liable for any health or dental expenses
incurred by the dependents during the period of time the
dependents were eligible to be enrolled in the insurance
program, and for any other premium costs incurred because the
employer or union willfully failed to comply with the order. An
employer or union that fails to comply with the order is subject
to contempt under section 518.615 and is also subject to a fine
of $500 to be paid to the obligee or public authority. Fines
paid to the public authority are designated for child support
enforcement services.
(d) Failure of the obligor to execute any documents
necessary to enroll the dependent in the group health and dental
insurance plan will not affect the obligation of the employer or
union and group health and dental insurance plan to enroll the
dependent in a plan. Information and authorization provided by
the public authority responsible for child support enforcement,
or by the custodial parent obligee or guardian, is valid for the
purposes of meeting enrollment requirements of the health plan.
The insurance coverage for a child eligible under subdivision 5
shall not be terminated except as authorized in subdivision 5.
Sec. 5. Minnesota Statutes 2000, section 518.171,
subdivision 5, is amended to read:
Subd. 5. [ELIGIBLE CHILD.] A minor child that an obligor
is required to cover as a beneficiary pursuant to this section
is eligible for insurance coverage as a dependent of the obligor
until the child is emancipated or until further order of the
court. The health or dental insurance carrier or employer may
not disenroll or eliminate coverage of the child unless the
health or dental insurance carrier or employer is provided
satisfactory written evidence that the court order is no longer
in effect, or the child is or will be enrolled in comparable
health coverage through another health or dental insurance plan
that will take effect no later than the effective date of the
disenrollment, or the employer has eliminated family health and
dental coverage for all of its employees, or that the required
premium has not been paid by or on behalf of the child. If
disenrollment or elimination of coverage of a child under this
subdivision is based upon nonpayment of premium, the health or
dental insurance plan must provide 30 days' written notice to
the child's nonobligor parent obligee prior to the disenrollment
or elimination of coverage.
Sec. 6. Minnesota Statutes 2000, section 518.171,
subdivision 6, is amended to read:
Subd. 6. [PLAN REIMBURSEMENT; CORRESPONDENCE AND NOTICE.]
(a) The signature of the custodial either parent of the insured
dependent is a valid authorization to a health or dental
insurance plan for purposes of processing an insurance
reimbursement payment to the provider of the medical services or
to the custodial parent if who has prepaid for the medical
services have been prepaid by the custodial parent.
(b) The health or dental insurance plan shall send copies
of all correspondence regarding the insurance coverage to both
parents. When an order for dependent insurance coverage is in
effect and the obligor's employment is terminated, or the
insurance coverage is terminated, the health or dental insurance
plan shall notify the obligee within ten days of the termination
date with notice of conversion privileges.
Sec. 7. Minnesota Statutes 2000, section 518.171,
subdivision 8, is amended to read:
Subd. 8. [OBLIGOR LIABILITY.] (a) An obligor who fails to
maintain medical or dental insurance for the benefit of the
children as ordered or fails to provide other medical support as
ordered is liable to the obligee for any medical or dental
expenses incurred from the effective date of the court order,
including health and dental insurance premiums paid by the
obligee because of the obligor's failure to obtain coverage as
ordered. Proof of failure to maintain insurance or
noncompliance with an order to provide other medical support
constitutes a showing of increased need by the obligee pursuant
to section 518.64 and provides a basis for a modification of the
obligor's child support order.
(b) Payments for services rendered to the dependents that
are directed to the obligor, in the form of reimbursement by the
health or dental insurance carrier or employer, must be endorsed
over to and forwarded to the vendor or custodial parent obligee
or public authority when the reimbursement is not owed to the
obligor. An obligor retaining insurance reimbursement not owed
to the obligor may be found in contempt of this order and held
liable for the amount of the reimbursement. Upon written
verification by the health or dental insurance carrier or
employer of the amounts paid to the obligor, the reimbursement
amount is subject to all enforcement remedies available under
subdivision 10, including income withholding pursuant to section
518.6111. The monthly amount to be withheld until the
obligation is satisfied is 20 percent of the original debt or
$50, whichever is greater.
Sec. 8. Minnesota Statutes 2000, section 518.175, is
amended to read:
518.175 [VISITATION OF CHILDREN AND NONCUSTODIAL
PARENT PARENTING TIME.]
Subdivision 1. [GENERAL.] (a) In all proceedings for
dissolution or legal separation, subsequent to the commencement
of the proceeding and continuing thereafter during the minority
of the child, the court shall, upon the request of either
parent, grant such parenting time on behalf of the child and
noncustodial a parent as will enable the child and the
noncustodial parent to maintain a child to parent relationship
that will be in the best interests of the child.
If the court finds, after a hearing, that parenting
time with a parent is likely to endanger the child's physical or
emotional health or impair the child's emotional development,
the court shall restrict parenting time with the noncustodial
that parent as to time, place, duration, or supervision and may
deny parenting time entirely, as the circumstances warrant. The
court shall consider the age of the child and the child's
relationship with the noncustodial parent prior to the
commencement of the proceeding.
A parent's failure to pay support because of the parent's
inability to do so shall not be sufficient cause for denial of
parenting time.
(b) The court may provide that a law enforcement officer or
other appropriate person will accompany a party seeking to
enforce or comply with parenting time.
(c) Upon request of either party, to the extent practicable
an order for parenting time must include a specific schedule for
parenting time, including the frequency and duration of
visitation and visitation during holidays and vacations, unless
parenting time is restricted, denied, or reserved.
(d) The court administrator shall provide a form for a pro
se motion regarding parenting time disputes, which includes
provisions for indicating the relief requested, an affidavit in
which the party may state the facts of the dispute, and a brief
description of the parenting time expeditor process under
section 518.1751. The form may not include a request for a
change of custody. The court shall provide instructions on
serving and filing the motion.
Subd. 1a. [DOMESTIC ABUSE; SUPERVISED PARENTING TIME.] (a)
If a custodial parent requests supervised parenting time under
subdivision 1 or 5 and an order for protection under chapter
518B or a similar law of another state is in effect against
the noncustodial other parent to protect the custodial parent
with whom the child resides or the child, the judge or judicial
officer must consider the order for protection in making a
decision regarding parenting time.
(b) The state court administrator, in consultation with
representatives of custodial and noncustodial parents and other
interested persons, shall develop standards to be met by persons
who are responsible for supervising parenting time. Either
parent may challenge the appropriateness of an individual chosen
by the court to supervise parenting time.
Subd. 2. [RIGHTS OF CHILDREN AND NONCUSTODIAL PARENT
PARENTS.] Upon the request of either parent, the court may
inform any child of the parties, if eight years of age or older,
or otherwise of an age of suitable comprehension, of the rights
of the child and the noncustodial each parent under the order or
decree or any substantial amendment thereof. The custodial
parent with whom the child resides shall present the child for
parenting time with the noncustodial other parent, at such times
as the court directs.
Subd. 3. [MOVE TO ANOTHER STATE.] The custodial parent
with whom the child resides shall not move the residence of the
child to another state except upon order of the court or with
the consent of the noncustodial other parent, when if the
noncustodial other parent has been given parenting time by the
decree. If the purpose of the move is to interfere with
parenting time given to the noncustodial other parent by the
decree, the court shall not permit the child's residence to be
moved to another state.
Subd. 5. [MODIFICATION OF PARENTING PLAN OR ORDER FOR
PARENTING TIME.] If modification would serve the best interests
of the child, the court shall modify the decision-making
provisions of a parenting plan or an order granting or denying
parenting time, if the modification would not change the child's
primary residence. Except as provided in section 631.52, the
court may not restrict parenting time unless it finds that:
(1) parenting time is likely to endanger the child's
physical or emotional health or impair the child's emotional
development; or
(2) the noncustodial parent has chronically and
unreasonably failed to comply with court-ordered parenting time.
If the custodial a parent makes specific allegations that
parenting time by the other parent places the custodial parent
or child in danger of harm, the court shall hold a hearing at
the earliest possible time to determine the need to modify the
order granting parenting time. Consistent with subdivision 1a,
the court may require a third party, including the local social
services agency, to supervise the parenting time or may restrict
a parent's parenting time if necessary to protect the
custodial other parent or child from harm. In addition, If
there is an existing order for protection governing the parties,
the court shall consider the use of an independent, neutral
exchange location for parenting time.
Subd. 6. [REMEDIES.] (a) The court may provide for one or
more of the following remedies for denial of or interference
with court-ordered parenting time as provided under this
subdivision. All parenting time orders must include notice of
the provisions of this subdivision.
(b) If the court finds that a person has been deprived of
court-ordered parenting time, the court shall order the
custodial parent who has interfered to permit additional allow
compensatory parenting time to compensate for the parenting time
of which the person was deprived the other parent or the court
shall make specific findings as to why a request for
compensatory parenting time is denied. If compensatory
parenting time is awarded, additional parenting time must be:
(1) at least of the same type and duration as the deprived
parenting time and, at the discretion of the court, may be in
excess of or of a different type than the deprived parenting
time;
(2) taken within one year after the deprived parenting
time; and
(3) at a time acceptable to the person parent deprived of
parenting time.
(c) If the court finds that a party has wrongfully failed
to comply with a parenting time order or a binding agreement or
decision under section 518.1751, the court may:
(1) impose a civil penalty of up to $500 on the party;
(2) require the party to post a bond with the court for a
specified period of time to secure the party's compliance;
(3) award reasonable attorney's fees and costs;
(4) require the party who violated the parenting time order
or binding agreement or decision of the parenting time expeditor
to reimburse the other party for costs incurred as a result of
the violation of the order or agreement or decision; or
(5) award any other remedy that the court finds to be in
the best interests of the children involved.
A civil penalty imposed under this paragraph must be
deposited in the county general fund and must be used to fund
the costs of a parenting time expeditor program in a county with
this program. In other counties, the civil penalty must be
deposited in the state general fund.
(d) If the court finds that a party has been denied
parenting time and has incurred expenses in connection with the
denied parenting time, the court may require the party who
denied parenting time to post a bond in favor of the other party
in the amount of prepaid expenses associated with upcoming
planned parenting time.
(e) Proof of an unwarranted denial of or interference with
duly established parenting time may constitute contempt of court
and may be sufficient cause for reversal of custody.
Subd. 7. [GRANDPARENT VISITATION.] In all proceedings for
dissolution or legal separation, after the commencement of the
proceeding or at any time after completion of the proceedings,
and continuing during the minority of the child, the court may
make an order granting visitation rights to grandparents under
section 257.022, subdivision 2.
Subd. 8. [ADDITIONAL PARENTING TIME FOR CHILD CARE OF
CHILD BY NONCUSTODIAL PARENT.] The court may allow additional
parenting time to the noncustodial a parent to provide child
care while the custodial other parent is working if this
arrangement is reasonable and in the best interests of the
child, as defined in section 518.17, subdivision 1. In
addition, the court shall consider:
(1) the ability of the parents to cooperate;
(2) methods for resolving disputes regarding the care of
the child, and the parents' willingness to use those methods;
and
(3) whether domestic abuse, as defined in section 518B.01,
has occurred between the parties.
Sec. 9. Minnesota Statutes 2000, section 518.1751,
subdivision 1b, is amended to read:
Subd. 1b. [PURPOSE; DEFINITIONS.] (a) The purpose of a
parenting time expeditor is to resolve parenting time disputes
by enforcing, interpreting, clarifying, and addressing
circumstances not specifically addressed by an existing
parenting time order and, if appropriate, to make a
determination as to whether the existing parenting time order
has been violated. A parenting time expeditor may be appointed
to resolve a one-time parenting time dispute or to provide
ongoing parenting time dispute resolution services.
(b) For purposes of this section, "parenting time dispute"
means a disagreement among parties about parenting time with a
child, including a dispute about an anticipated denial of future
scheduled parenting time. "Parenting time dispute" includes a
claim by a custodial parent that a noncustodial the other parent
is not spending time with a child as well as a claim by
a noncustodial parent that a custodial the other parent is
denying or interfering with parenting time.
(c) A "parenting time expeditor" is a neutral person
authorized to use a mediation-arbitration process to resolve
parenting time disputes. A parenting time expeditor shall
attempt to resolve a parenting time dispute by facilitating
negotiations between the parties to promote settlement and, if
it becomes apparent that the dispute cannot be resolved by an
agreement of the parties, the parenting time expeditor shall
make a decision resolving the dispute.
Sec. 10. Minnesota Statutes 2000, section 518.176,
subdivision 1, is amended to read:
Subdivision 1. [LIMITS ON CUSTODIAN'S PARENT'S AUTHORITY;
HEARING.] Except as otherwise agreed by the parties in writing
at the time of the custody order, the custodian parent with whom
the child resides may determine the child's upbringing,
including education, health care, and religious training, unless
the court after hearing, finds, upon motion by the noncustodial
other parent, that in the absence of a specific limitation of
the custodian's authority of the parent with whom the child
resides, the child's physical or emotional health is likely to
be endangered or the child's emotional development impaired.
Sec. 11. Minnesota Statutes 2000, section 518.18, is
amended to read:
518.18 [MODIFICATION OF ORDER.]
(a) Unless agreed to in writing by the parties, no motion
to modify a custody order or parenting plan may be made earlier
than one year after the date of the entry of a decree of
dissolution or legal separation containing a provision dealing
with custody, except in accordance with paragraph (c).
(b) If a motion for modification has been heard, whether or
not it was granted, unless agreed to in writing by the parties
no subsequent motion may be filed within two years after
disposition of the prior motion on its merits, except in
accordance with paragraph (c).
(c) The time limitations prescribed in paragraphs (a) and
(b) shall not prohibit a motion to modify a custody order or
parenting plan if the court finds that there is persistent and
willful denial or interference with parenting time, or has
reason to believe that the child's present environment may
endanger the child's physical or emotional health or impair the
child's emotional development.
(d) If the court has jurisdiction to determine child
custody matters, the court shall not modify a prior custody
order or a parenting plan provision which specifies the child's
primary residence unless it finds, upon the basis of facts,
including unwarranted denial of, or interference with, a duly
established parenting time schedule, that have arisen since the
prior order or that were unknown to the court at the time of the
prior order, that a change has occurred in the circumstances of
the child or the parties and that the modification is necessary
to serve the best interests of the child. In applying these
standards the court shall retain the custody arrangement or the
parenting plan provision specifying the child's primary
residence that was established by the prior order unless:
(i) the court finds that a change in the custody
arrangement or primary residence is in the best interests of the
child and the parties previously agreed, in a writing approved
by a court, to apply the best interests standard in section
518.17 or 257.025, as applicable; and, with respect to
agreements approved by a court on or after April 28, 2000, both
parties were represented by counsel when the agreement was
approved or the court found the parties were fully informed, the
agreement was voluntary, and the parties were aware of its
implications;
(ii) both parties agree to the modification;
(iii) the child has been integrated into the family of the
petitioner with the consent of the other party; or
(iv) the child's present environment endangers the child's
physical or emotional health or impairs the child's emotional
development and the harm likely to be caused by a change of
environment is outweighed by the advantage of a change to the
child.
In addition, a court may modify a custody order or
parenting plan under section 631.52.
(e) In deciding whether to modify a prior joint custody
order, the court shall apply the standards set forth in
paragraph (d) unless: (1) the parties agree in writing to the
application of a different standard, or (2) the party seeking
the modification is asking the court for permission to move the
residence of the child to another state.
(f) If a custodial parent has been granted sole physical
custody of a minor and the child subsequently lives with the
noncustodial other parent, and temporary sole physical custody
has been approved by the court or by a court-appointed referee,
the court may suspend the noncustodial parent's obligor's child
support obligation pending the final custody determination. The
court's order denying the suspension of child support must
include a written explanation of the reasons why continuation of
the child support obligation would be in the best interests of
the child.
Sec. 12. Minnesota Statutes 2000, section 518.55,
subdivision 1, is amended to read:
Subdivision 1. [CONTENTS OF ORDER.] Every award of
maintenance or support money in a judgment of dissolution or
legal separation shall clearly designate whether the same is
maintenance or support money, or what part of the award is
maintenance and what part is support money. An award of
payments from future income or earnings of the custodial parent
with whom the child resides is presumed to be maintenance and an
award of payments from the future income or earnings of
the noncustodial parent with whom the child does not reside is
presumed to be support money, unless otherwise designated by the
court. In a judgment of dissolution or legal separation the
court may determine, as one of the issues of the case, whether
or not either spouse is entitled to an award of maintenance
notwithstanding that no award is then made, or it may reserve
jurisdiction of the issue of maintenance for determination at a
later date.
Sec. 13. Minnesota Statutes 2000, 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 public
assistance or applies for it subsequent to the commencement of
the proceeding. The notice must contain the full names of the
parties to the proceeding, their social security account
numbers, and their birth dates. 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
stipulation of the parties if each party is represented by
independent counsel, unless the stipulation does not meet the
conditions of paragraph (i). In other cases the court shall
determine and order child support in a specific dollar amount in
accordance with the guidelines and the other factors set forth
in paragraph (c) and any departure therefrom. The court may
also order the obligor to pay child support in the form of a
percentage share of the obligor's net bonuses, commissions, or
other forms of compensation, in addition to, or if the obligor
receives no base pay, in lieu of, an order for a specific dollar
amount.
(b) The court shall derive a specific dollar amount for
child support by multiplying 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
$550 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.
$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- 5000 25% 30% 35% 39% 43% 47% 50%
or the amount
in effect under
paragraph (k)
Guidelines for support for an obligor with a monthly income
in excess of the income limit currently in effect under
paragraph (k) shall be the same dollar amounts as provided for
in the guidelines for an obligor with a monthly income equal to
the limit in effect.
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 Health
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:
(1) the income of the obligor's spouse, but does include
in-kind payments received by the obligor in the course of
employment, self-employment, or operation of a business if the
payments reduce the obligor's living expenses; or
(2) compensation received by a party for employment in
excess of a 40-hour work week, provided that:
(i) support is nonetheless ordered in an amount at least
equal to the guidelines amount based on income not excluded
under this clause; and
(ii) the party demonstrates, and the court finds, that:
(A) the excess employment began after the filing of the
petition for dissolution;
(B) the excess employment reflects an increase in the work
schedule or hours worked over that of the two years immediately
preceding the filing of the petition;
(C) the excess employment is voluntary and not a condition
of employment;
(D) the excess employment is in the nature of additional,
part-time or overtime employment compensable by the hour or
fraction of an hour; and
(E) the party's compensation structure has not been changed
for the purpose of affecting a support or maintenance obligation.
The court shall review the work-related and
education-related child care costs paid and shall allocate the
costs to each parent in proportion to each parent's net income,
as determined under this subdivision, 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 noncustodial parent's obligor'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 obligee. The actual
cost paid for child care is the total amount received by the
child care provider for the child or children of the obligor
from the obligee or any public agency. The court shall require
verification of employment or school attendance and
documentation of child care expenses from the obligee and the
public agency, if applicable. If child care expenses fluctuate
during the year because of seasonal employment or school
attendance of the obligee or extended periods of parenting time
with the obligor, the court shall determine child care expenses
based on an average monthly cost. The amount allocated for
child care expenses is considered child support but is not
subject to a cost-of-living adjustment under section 518.641.
The amount allocated for child care expenses terminates when
either party notifies the public authority that the child care
costs have ended and without any legal action on the part of
either party. The public authority shall verify the information
received under this provision before authorizing termination.
The termination is effective as of the date of the
notification. In other cases where there is a substantial
increase or decrease in child care expenses, the parties may
modify the order under section 518.64.
The court may allow the noncustodial obligor parent to care
for the child while the custodial obligee parent is working, as
provided in section 518.175, subdivision 8. Allowing the
noncustodial parent to care for the child under section 518.175,
subdivision 8, but this is not a reason to deviate from the
guidelines.
(c) In addition to the child support guidelines, the court
shall take into consideration the following factors in setting
or modifying child support or in determining whether to deviate
from the guidelines:
(1) all earnings, income, and resources of the parents,
including real and personal property, but excluding income from
excess employment of the obligor or obligee that meets the
criteria of paragraph (b), clause (2)(ii);
(2) the financial needs and resources, physical and
emotional condition, and educational needs of the child or
children to be supported;
(3) the standard of living the child would have enjoyed had
the marriage not been dissolved, but recognizing that the
parents now have separate households;
(4) which parent receives the income taxation dependency
exemption and what financial benefit the parent receives from
it;
(5) the parents' debts as provided in paragraph (d); and
(6) the obligor's receipt of public assistance under the
AFDC program formerly codified under sections 256.72 to 256.82
or 256B.01 to 256B.40 and chapter 256J or 256K.
(d) 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 256.741;
(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.
(e) Any schedule prepared under paragraph (d), 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.
(f) 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.
(g) If payment of debt is ordered pursuant to this section,
the payment shall be ordered to be in the nature of child
support.
(h) 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.
(i) The guidelines in this subdivision are a rebuttable
presumption and shall be used in all cases when establishing or
modifying child support. If the court does not deviate from the
guidelines, the court shall make written findings concerning the
amount of the obligor's income used as the basis for the
guidelines calculation and any other significant evidentiary
factors affecting the determination of child support. If the
court deviates from the guidelines, the court shall make written
findings giving the amount of support calculated under the
guidelines, the reasons for the deviation, and shall
specifically address the criteria in paragraph (c) and how the
deviation serves the best interest of the child. The court may
deviate from the guidelines if both parties agree and the court
makes written findings that it is in the best interests of the
child, except that in cases where child support payments are
assigned to the public agency under section 256.741, the court
may deviate downward only as provided in paragraph (j). Nothing
in this paragraph prohibits the court from deviating in other
cases. The provisions of this paragraph apply whether or not
the parties are each represented by independent counsel and have
entered into a written agreement. The court shall review
stipulations presented to it for conformity to the guidelines
and the court is not required to conduct a hearing, but the
parties shall provide the documentation of earnings required
under subdivision 5b.
(j) If the child support payments are assigned to the
public agency under section 256.741, the court may not deviate
downward from the child support guidelines unless the court
specifically finds that the failure to deviate downward would
impose an extreme hardship on the obligor.
(k) The dollar amount of the income limit for application
of the guidelines must be adjusted on July 1 of every
even-numbered year to reflect cost-of-living changes. The
supreme court shall select the index for the adjustment from the
indices listed in section 518.641. The state court
administrator shall make the changes in the dollar amount
required by this paragraph available to courts and the public on
or before April 30 of the year in which the amount is to change.
(l) In establishing or modifying child support, if a child
receives a child's insurance benefit under United States Code,
title 42, section 402, because the obligor is entitled to old
age or disability insurance benefits, the amount of support
ordered shall be offset by the amount of the child's benefit.
The court shall make findings regarding the obligor's income
from all sources, the child support amount calculated under this
section, the amount of the child's benefit, and the obligor's
child support obligation. Any benefit received by the child in
a given month in excess of the child support obligation shall
not be treated as an arrearage payment or a future payment.
Sec. 14. Minnesota Statutes 2000, section 518.551,
subdivision 5e, is amended to read:
Subd. 5e. [ADJUSTMENT TO SUPPORT ORDER.] A support order
issued under this section may provide that during any period of
time of 30 consecutive days or longer that the child is residing
with the noncustodial parent obligor, the amount of support
otherwise due under the order may be reduced.
Sec. 15. Minnesota Statutes 2000, section 518.612, is
amended to read:
518.612 [INDEPENDENCE OF PROVISIONS OF DECREE OR TEMPORARY
ORDER.]
Failure by a party to make support payments is not a
defense to:
(1) interference with parenting time; or
(2) without the permission of the court or the noncustodial
other parent, removing a child from this state.
Nor is Interference with parenting time or taking a child
from this state without permission of the court or
the noncustodial other parent is not a defense to nonpayment of
support. If a party fails to make support payments, or
interferes with parenting time, or removes a child from the
state without permission of the court or the noncustodial other
parent removes a child from this state, the other party may
petition the court for an appropriate order.
Sec. 16. Minnesota Statutes 2000, section 518.64,
subdivision 2, is amended to read:
Subd. 2. [MODIFICATION.] (a) The terms of an order
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 or the child or children that are the
subject of these proceedings; (3) receipt of assistance under
the AFDC program formerly codified under sections 256.72 to
256.87 or 256B.01 to 256B.40, or chapter 256J or 256K; (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; (5) extraordinary medical expenses of
the child not provided for under section 518.171; or (6) the
addition of work-related or education-related child care
expenses of the obligee or a substantial increase or decrease in
existing work-related or education-related child care expenses.
On a motion to modify support, the needs of any child the
obligor has after the entry of the support order that is the
subject of a modification motion shall be considered as provided
by section 518.551, subdivision 5f.
(b) It is presumed that there has been a substantial change
in circumstances under paragraph (a) and the terms of a current
support order shall be rebuttably presumed to be unreasonable
and unfair if:
(1) the application of the child support guidelines in
section 518.551, subdivision 5, to the current circumstances of
the parties results in a calculated court order that is at least
20 percent and at least $50 per month higher or lower than the
current support order;
(2) the medical support provisions of the order established
under section 518.171 are not enforceable by the public
authority or the custodial parent obligee;
(3) health coverage ordered under section 518.171 is not
available to the child for whom the order is established by the
parent ordered to provide; or
(4) the existing support obligation is in the form of a
statement of percentage and not a specific dollar amount.
(c) On a motion for modification of maintenance, including
a motion for the extension of the duration of a maintenance
award, 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:
(1) shall apply section 518.551, subdivision 5, and shall
not consider the financial circumstances of each party's spouse,
if any; and
(2) shall not consider compensation received by a party for
employment in excess of a 40-hour work week, provided that the
party demonstrates, and the court finds, that:
(i) the excess employment began after entry of the existing
support order;
(ii) the excess employment is voluntary and not a condition
of employment;
(iii) the excess employment is in the nature of additional,
part-time employment, or overtime employment compensable by the
hour or fractions of an hour;
(iv) the party's compensation structure has not been
changed for the purpose of affecting a support or maintenance
obligation;
(v) in the case of an obligor, current child support
payments are at least equal to the guidelines amount based on
income not excluded under this clause; and
(vi) in the case of an obligor who is in arrears in child
support payments to the obligee, any net income from excess
employment must be used to pay the arrearages until the
arrearages are paid in full.
(d) A modification of support or maintenance, including
interest that accrued pursuant to section 548.091, may be made
retroactive only with respect to any period during which the
petitioning party has pending a motion for modification but only
from the date of service of notice of the motion on the
responding party and on the public authority if public
assistance is being furnished or the county attorney is the
attorney of record. However, modification may be applied to an
earlier period if the court makes express findings that:
(1) the party seeking modification was precluded from
serving a motion by reason of a significant physical or mental
disability, a material misrepresentation of another party, or
fraud upon the court and that the party seeking modification,
when no longer precluded, promptly served a motion;
(2) the party seeking modification was a recipient of
federal Supplemental Security Income (SSI), Title II Older
Americans, Survivor's Disability Insurance (OASDI), other
disability benefits, or public assistance based upon need during
the period for which retroactive modification is sought; or
(3) the order for which the party seeks amendment was
entered by default, the party shows good cause for not
appearing, and the record contains no factual evidence, or
clearly erroneous evidence regarding the individual obligor's
ability to pay.
The court may provide that a reduction in the amount
allocated for child care expenses based on a substantial
decrease in the expenses is effective as of the date the
expenses decreased.
(e) 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.
(f) The court need not hold an evidentiary hearing on a
motion for modification of maintenance or support.
(g) Section 518.14 shall govern the award of attorney fees
for motions brought under this subdivision.
Sec. 17. [REVISOR INSTRUCTION.]
The revisor of statutes must renumber Minnesota Statutes,
section 518.175, subdivision 7, as section 518.1752.
Presented to the governor April 23, 2001
Signed by the governor April 26, 2001, 10:25 a.m.
Official Publication of the State of Minnesota
Revisor of Statutes