1.1                          A bill for an act 
  1.2             relating to family law; clarifying and rearranging 
  1.3             certain child support provisions; changing time for 
  1.4             filing a notice to remove; eliminating certain 
  1.5             requirements; amending Minnesota Statutes 1998, 
  1.6             section 542.16, subdivision 1; Minnesota Statutes 1999 
  1.7             Supplement, sections 518.171, subdivision 1; and 
  1.8             518.551, subdivision 5; repealing Minnesota Statutes 
  1.9             1998, sections 518.147; and 518.583. 
  1.10  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.11     Section 1.  Minnesota Statutes 1999 Supplement, section 
  1.12  518.171, subdivision 1, is amended to read: 
  1.13     Subdivision 1.  [ORDER.] Compliance with this section 
  1.14  constitutes compliance with a qualified medical child support 
  1.15  order as described in the federal Employee Retirement Income 
  1.16  Security Act of 1974 (ERISA) as amended by the federal Omnibus 
  1.17  Budget Reconciliation Act of 1993 (OBRA).  
  1.18     (a) Every child support order must: 
  1.19     (1) expressly assign or reserve the responsibility for 
  1.20  maintaining medical insurance for the minor children and the 
  1.21  division of uninsured medical and dental costs; and 
  1.22     (2) contain the names, last known addresses, and social 
  1.23  security number of the ~~custodial parent~~ obligee and ~~noncustodial~~ 
  1.24  ~~parent~~ obligor, and of the dependents, unless the court 
  1.25  prohibits the inclusion of an address or social security number 
  1.26  and orders the obligee or custodial parent to provide the 
  1.27  address and social security number to the administrator of the 
  2.1   health plan~~.~~; and 
  2.2      (3) ~~The court shall~~ order the party with the better group 
  2.3   dependent health and dental insurance coverage or health 
  2.4   insurance plan to name the minor child as beneficiary on any 
  2.5   health and dental insurance plan that is available to the party 
  2.6   on: 
  2.7      (i) a group basis; 
  2.8      (ii) through an employer or union; or 
  2.9      (iii) through a group health plan governed under the ERISA 
  2.10  and included within the definitions relating to health plans 
  2.11  found in section 62A.011, 62A.048, or 62E.06, subdivision 2.  
  2.12  "Health insurance" or "health insurance coverage" as used in 
  2.13  this section means coverage that is comparable to or better than 
  2.14  a number two qualified plan as defined in section 62E.06, 
  2.15  subdivision 2.  "Health insurance" or "health insurance 
  2.16  coverage" as used in this section does not include medical 
  2.17  assistance provided under chapter 256, 256B, 256J, 256K, or 256D.
  2.18     (b) If the court finds that dependent health or dental 
  2.19  insurance is not available and not accessible to the obligor or 
  2.20  obligee on a group basis or through an employer or union, ~~or~~ 
  2.21  ~~that group insurance is not accessible to the obligee,~~ the court 
  2.22  may require ~~the obligor (1)~~ either party to obtain other 
  2.23  dependent health or dental insurance~~, (2) to be liable for~~ 
  2.24  ~~reasonable and necessary medical or dental expenses of the~~ 
  2.25  ~~child, or (3) to pay no less than $50 per month to be applied to~~ 
  2.26  ~~the medical and dental expenses of the children or to the cost~~ 
  2.27  ~~of health insurance dependent coverage~~. 
  2.28     (c) ~~If the court finds that the available dependent health~~ 
  2.29  ~~or dental insurance does not pay all the reasonable and~~ 
  2.30  ~~necessary medical or dental expenses of the child~~ The court 
  2.31  shall order each party to pay the cost of the health and dental 
  2.32  insurance premiums and uninsured medical and dental expenses of 
  2.33  the children, including any existing or anticipated 
  2.34  extraordinary medical expenses, ~~and the court finds that the~~ 
  2.35  ~~obligor has the financial ability to contribute to the payment~~ 
  2.36  ~~of these medical or dental expenses, the court shall require the~~ 
  3.1   ~~obligor to be liable for all or a portion of the medical or~~ 
  3.2   ~~dental expenses of the child not covered by the required health~~ 
  3.3   ~~or dental plan.~~ in proportion to each parent's net income, as 
  3.4   determined under section 518.551, subdivision 5, paragraph (b), 
  3.5   clause (3), after the transfer of child support and spousal 
  3.6   maintenance, unless the allocation would be substantially unfair 
  3.7   to either parent or unless otherwise agreed by the parties.  
  3.8   There is a presumption of substantial unfairness if after the 
  3.9   sum total of child support, spousal maintenance, health and 
  3.10  dental insurance premiums, and child care costs is subtracted 
  3.11  from the obligor's income, the income is at or below 100 percent 
  3.12  of the federal poverty guidelines.  Medical and dental expenses 
  3.13  include, but are not limited to, necessary orthodontia and eye 
  3.14  care, including prescription lenses. 
  3.15     (d) ~~Unless otherwise agreed by the parties and approved by~~ 
  3.16  ~~the court, if the court finds that the obligee is not receiving~~ 
  3.17  ~~public assistance for the child and has the financial ability to~~ 
  3.18  ~~contribute to the cost of medical and dental expenses for the~~ 
  3.19  ~~child, including the cost of insurance, the court shall order~~ 
  3.20  ~~the obligee and obligor to each assume a portion of these~~ 
  3.21  ~~expenses based on their proportionate share of their total net~~ 
  3.22  ~~income as defined in section 518.54, subdivision 6.~~ 
  3.23     ~~(e)~~ Payments ordered under this section are subject to 
  3.24  section 518.6111.  An obligee who fails to apply payments 
  3.25  received to the medical expenses of the dependents may be found 
  3.26  in contempt of this order. 
  3.27     Sec. 2.  Minnesota Statutes 1999 Supplement, section 
  3.28  518.551, subdivision 5, is amended to read: 
  3.29     Subd. 5.  [NOTICE TO PUBLIC AUTHORITY; GUIDELINES.] (a) The 
  3.30  petitioner shall notify the public authority of all proceedings 
  3.31  for dissolution, legal separation, determination of parentage or 
  3.32  for the custody of a child, if either party is receiving public 
  3.33  assistance or applies for it subsequent to the commencement of 
  3.34  the proceeding.  The notice must contain the full names of the 
  3.35  parties to the proceeding, their social security account 
  3.36  numbers, and their birth dates.  After receipt of the notice, 
  4.1   the court shall set child support as provided in this 
  4.2   subdivision.  The court may order either or both parents owing a 
  4.3   duty of support to a child of the marriage to pay an amount 
  4.4   reasonable or necessary for the child's support, without regard 
  4.5   to marital misconduct.  The court shall approve a child support 
  4.6   stipulation of the parties if each party is represented by 
  4.7   independent counsel, unless the stipulation does not meet the 
  4.8   conditions of paragraph (i).  In other cases the court shall 
  4.9   determine and order child support in a specific dollar amount in 
  4.10  accordance with the guidelines and the other factors set forth 
  4.11  in paragraph (c) and any departure therefrom.  The court may 
  4.12  also order the obligor to pay child support in the form of a 
  4.13  percentage share of the obligor's net bonuses, commissions, or 
  4.14  other forms of compensation, in addition to, or if the obligor 
  4.15  receives no base pay, in lieu of, an order for a specific dollar 
  4.16  amount. 
  4.17     (b)(1) The court shall derive a specific dollar amount for 
  4.18  child support by multiplying the obligor's net income by the 
  4.19  percentage indicated by the following guidelines:  
  4.20  Net Income Per            Number of Children 
  4.21  Month of Obligor 
  4.22                1     2     3     4     5     6    7 or 
  4.23                                                   more 
  4.24  $550 and Below     Order based on the ability of the 
  4.25                     obligor to provide support  
  4.26                     at these income levels, or at higher  
  4.27                     levels, if the obligor has 
  4.28                     the earning ability. 
  4.29  $551 - 600   16%   19%   22%   25%   28%   30%   32% 
  4.30  $601 - 650   17%   21%   24%   27%   29%   32%   34% 
  4.31  $651 - 700   18%   22%   25%   28%   31%   34%   36% 
  4.32  $701 - 750   19%   23%   27%   30%   33%   36%   38% 
  4.33  $751 - 800   20%   24%   28%   31%   35%   38%   40% 
  4.34  $801 - 850   21%   25%   29%   33%   36%   40%   42% 
  4.35  $851 - 900   22%   27%   31%   34%   38%   41%   44% 
  4.36  $901 - 950   23%   28%   32%   36%   40%   43%   46% 
  5.1   $951 - 1000  24%   29%   34%   38%   41%   45%   48% 
  5.2   $1001- 5000  25%   30%   35%   39%   43%   47%   50% 
  5.3   or the amount 
  5.4   in effect under
  5.5   paragraph (k)
  5.6      (2) Guidelines for support for an obligor with a monthly 
  5.7   income in excess of the income limit currently in effect under 
  5.8   paragraph (k) shall be the same dollar amounts as provided for 
  5.9   in the guidelines for an obligor with a monthly income equal to 
  5.10  the limit in effect. 
  5.11       (3) Net Income defined as: 
  5.12           
  5.13           Total monthly 
  5.14           income less           *(i) Federal Income Tax 
  5.15                                *(ii) State Income Tax 
  5.16                                (iii) Social Security
  5.17                                       Deductions 
  5.18                                 (iv) Reasonable
  5.19                                       Pension Deductions
  5.20           *Standard 
  5.21           Deductions apply-      (v) Union Dues 
  5.22           use of tax tables     (vi) ~~Cost of Dependent Health~~
  5.23           recommended                 ~~Insurance Coverage~~  
  5.24                                ~~(vii)~~ Cost of Individual or Group
  5.25                                       Health/Hospitalization
  5.26                                       Coverage or an        
  5.27                                       Amount for Actual 
  5.28                                       Medical Expenses   
  5.29                               ~~(viii)~~ (vii) A Child Support or  
  5.30                                       Maintenance Order that is
  5.31                                       Currently Being Paid. 
  5.32     (4) "Net income" does not include: 
  5.33     ~~(1)~~ (i) the income of the obligor's spouse, but does 
  5.34  include in-kind payments received by the obligor in the course 
  5.35  of employment, self-employment, or operation of a business if 
  5.36  the payments reduce the obligor's living expenses; or 
  6.1      ~~(2)~~ (ii) compensation received by a party for employment in 
  6.2   excess of a 40-hour work week, provided that~~:~~ 
  6.3      ~~(i)~~ support is nonetheless ordered in an amount at least 
  6.4   equal to the guidelines amount based on income not excluded 
  6.5   under this clause~~;~~, and 
  6.6      ~~(ii)~~ the party demonstrates, and the court finds, that: 
  6.7      (A) the excess employment began after the filing of the 
  6.8   petition for dissolution; 
  6.9      (B) the excess employment reflects an increase in the work 
  6.10  schedule or hours worked over that of the two years immediately 
  6.11  preceding the filing of the petition; 
  6.12     (C) the excess employment is voluntary and not a condition 
  6.13  of employment; 
  6.14     (D) the excess employment is in the nature of additional, 
  6.15  part-time or overtime employment compensable by the hour or 
  6.16  fraction of an hour; and 
  6.17     (E) the party's compensation structure has not been changed 
  6.18  for the purpose of affecting a support or maintenance obligation.
  6.19     (5) The court shall review the work-related and 
  6.20  education-related child care costs paid and shall allocate the 
  6.21  costs to each parent in proportion to each parent's net income, 
  6.22  as determined under this subdivision, after the transfer of 
  6.23  child support and spousal maintenance, unless the allocation 
  6.24  would be substantially unfair to either parent.  There is a 
  6.25  presumption of substantial unfairness if after the sum total of 
  6.26  child support, spousal maintenance, health and dental insurance 
  6.27  premiums, and child care costs is subtracted from the 
  6.28  noncustodial parent's income, the income is at or below 100 
  6.29  percent of the federal poverty guidelines.  The cost of child 
  6.30  care for purposes of this paragraph is 75 percent of the actual 
  6.31  cost paid for child care, to reflect the approximate value of 
  6.32  state and federal tax credits available to the custodial 
  6.33  parent.  The actual cost paid for child care is the total amount 
  6.34  received by the child care provider for the child or children of 
  6.35  the obligor from the obligee or any public agency.  The court 
  6.36  shall require verification of employment or school attendance 
  7.1   and documentation of child care expenses from the obligee and 
  7.2   the public agency, if applicable.  If child care expenses 
  7.3   fluctuate during the year because of seasonal employment or 
  7.4   school attendance of the obligee or extended periods of 
  7.5   visitation with the obligor, the court shall determine child 
  7.6   care expenses based on an average monthly cost.  The amount 
  7.7   allocated for child care expenses is considered child support 
  7.8   but is not subject to a cost-of-living adjustment under section 
  7.9   518.641.  The amount allocated for child care expenses 
  7.10  terminates when either party notifies the public authority that 
  7.11  the child care costs have ended and without any legal action on 
  7.12  the part of either party.  The public authority shall verify the 
  7.13  information received under this provision before authorizing 
  7.14  termination.  The termination is effective as of the date of the 
  7.15  notification.  In other cases where there is a substantial 
  7.16  increase or decrease in child care expenses, the parties may 
  7.17  modify the order under section 518.64. 
  7.18     (6) The cost of medical and dental insurance and uninsured 
  7.19  medical and dental expenses must be divided as provided in 
  7.20  section 518.171, subdivision 1, paragraph (c).  Child support 
  7.21  must be reduced by the amount of the obligee's share of the 
  7.22  medical insurance premium.  If the obligee carries the medical 
  7.23  insurance, the obligor's share of the premium must be added to 
  7.24  the amount of support. 
  7.25     The court may allow the noncustodial parent to care for the 
  7.26  child while the custodial parent is working, as provided in 
  7.27  section 518.175, subdivision 8.  Allowing the noncustodial 
  7.28  parent to care for the child under section 518.175, subdivision 
  7.29  8, is not a reason to deviate from the guidelines. 
  7.30     (c) In addition to the child support guidelines, the court 
  7.31  shall take into consideration the following factors in setting 
  7.32  or modifying child support or in determining whether to deviate 
  7.33  from the guidelines: 
  7.34     (1) all earnings, income, and resources of the parents, 
  7.35  including real and personal property, but excluding income from 
  7.36  excess employment of the obligor or obligee that meets the 
  8.1   criteria of paragraph (b), clause (2)(ii); 
  8.2      (2) the financial needs and resources, physical and 
  8.3   emotional condition, and educational needs of the child or 
  8.4   children to be supported; 
  8.5      (3) the standard of living the child would have enjoyed had 
  8.6   the marriage not been dissolved, but recognizing that the 
  8.7   parents now have separate households; 
  8.8      (4) which parent receives the income taxation dependency 
  8.9   exemption and what financial benefit the parent receives from 
  8.10  it; 
  8.11     (5) the parents' debts as provided in paragraph (d); and 
  8.12     (6) the obligor's receipt of public assistance under the 
  8.13  AFDC program formerly codified under sections 256.72 to 256.82 
  8.14  or 256B.01 to 256B.40 and chapter 256J or 256K.  
  8.15     (d) In establishing or modifying a support obligation, the 
  8.16  court may consider debts owed to private creditors, but only if: 
  8.17     (1) the right to support has not been assigned under 
  8.18  section 256.741; 
  8.19     (2) the court determines that the debt was reasonably 
  8.20  incurred for necessary support of the child or parent or for the 
  8.21  necessary generation of income.  If the debt was incurred for 
  8.22  the necessary generation of income, the court shall consider 
  8.23  only the amount of debt that is essential to the continuing 
  8.24  generation of income; and 
  8.25     (3) the party requesting a departure produces a sworn 
  8.26  schedule of the debts, with supporting documentation, showing 
  8.27  goods or services purchased, the recipient of them, the amount 
  8.28  of the original debt, the outstanding balance, the monthly 
  8.29  payment, and the number of months until the debt will be fully 
  8.30  paid. 
  8.31     (e) Any schedule prepared under paragraph (d), clause (3), 
  8.32  shall contain a statement that the debt will be fully paid after 
  8.33  the number of months shown in the schedule, barring emergencies 
  8.34  beyond the party's control.  
  8.35     (f) Any further departure below the guidelines that is 
  8.36  based on a consideration of debts owed to private creditors 
  9.1   shall not exceed 18 months in duration, after which the support 
  9.2   shall increase automatically to the level ordered by the court.  
  9.3   Nothing in this section shall be construed to prohibit one or 
  9.4   more step increases in support to reflect debt retirement during 
  9.5   the 18-month period.  
  9.6      (g) If payment of debt is ordered pursuant to this section, 
  9.7   the payment shall be ordered to be in the nature of child 
  9.8   support.  
  9.9      (h) Nothing shall preclude the court from receiving 
  9.10  evidence on the above factors to determine if the guidelines 
  9.11  should be exceeded or modified in a particular case.  
  9.12     (i) The guidelines in this subdivision are a rebuttable 
  9.13  presumption and shall be used in all cases when establishing or 
  9.14  modifying child support.  If the court does not deviate from the 
  9.15  guidelines, the court shall make written findings concerning the 
  9.16  amount of the obligor's income used as the basis for the 
  9.17  guidelines calculation and any other significant evidentiary 
  9.18  factors affecting the determination of child support.  If the 
  9.19  court deviates from the guidelines, the court shall make written 
  9.20  findings giving the amount of support calculated under the 
  9.21  guidelines, the reasons for the deviation, and shall 
  9.22  specifically address the criteria in paragraph (c) and how the 
  9.23  deviation serves the best interest of the child.  The court may 
  9.24  deviate from the guidelines if both parties agree and the court 
  9.25  makes written findings that it is in the best interests of the 
  9.26  child, except that in cases where child support payments are 
  9.27  assigned to the public agency under section 256.741, the court 
  9.28  may deviate downward only as provided in paragraph (j).  Nothing 
  9.29  in this paragraph prohibits the court from deviating in other 
  9.30  cases.  The provisions of this paragraph apply whether or not 
  9.31  the parties are each represented by independent counsel and have 
  9.32  entered into a written agreement.  The court shall review 
  9.33  stipulations presented to it for conformity to the guidelines 
  9.34  and the court is not required to conduct a hearing, but the 
  9.35  parties shall provide the documentation of earnings required 
  9.36  under subdivision 5b. 
 10.1      (j) If the child support payments are assigned to the 
 10.2   public agency under section 256.741, the court may not deviate 
 10.3   downward from the child support guidelines unless the court 
 10.4   specifically finds that the failure to deviate downward would 
 10.5   impose an extreme hardship on the obligor. 
 10.6      (k) The dollar amount of the income limit for application 
 10.7   of the guidelines must be adjusted on July 1 of every 
 10.8   even-numbered year to reflect cost-of-living changes.  The 
 10.9   supreme court shall select the index for the adjustment from the 
 10.10  indices listed in section 518.641.  The state court 
 10.11  administrator shall make the changes in the dollar amount 
 10.12  required by this paragraph available to courts and the public on 
 10.13  or before April 30 of the year in which the amount is to change. 
 10.14     (l) In establishing or modifying child support, if a child 
 10.15  receives a child's insurance benefit under United States Code, 
 10.16  title 42, section 402, because the obligor is entitled to old 
 10.17  age or disability insurance benefits, the amount of support 
 10.18  ordered shall be offset by the amount of the child's benefit.  
 10.19  The court shall make findings regarding the obligor's income 
 10.20  from all sources, the child support amount calculated under this 
 10.21  section, the amount of the child's benefit, and the obligor's 
 10.22  child support obligation.  Any benefit received by the child in 
 10.23  a given month in excess of the child support obligation shall 
 10.24  not be treated as an arrearage payment or a future payment. 
 10.25     Sec. 3.  Minnesota Statutes 1998, section 542.16, 
 10.26  subdivision 1, is amended to read: 
 10.27     Subdivision 1.  [INITIAL DISQUALIFICATION.] Any party, or 
 10.28  the party's attorney, to a cause pending in a district court~~,~~ 
 10.29  ~~within one day after it is ascertained which judge is to preside~~ 
 10.30  ~~at the trial or hearing thereof, or at the hearing of any motion~~ 
 10.31  ~~or order to show cause,~~ may make and file with the court 
 10.32  administrator in which the action is pending and serve on the 
 10.33  opposite party a notice to remove.  The notice must be served 
 10.34  and filed within ten days after the party receives notice of 
 10.35  which judge or judicial officer is to preside at the trial or 
 10.36  hearing, or, if no notice of a hearing is served with the 
 11.1   summons, then within the time to answer the summons, whichever 
 11.2   is later.  Thereupon without any further act or proof, the chief 
 11.3   judge of the judicial district shall assign any other judge of 
 11.4   any court within the district to preside at the trial of the 
 11.5   cause or the hearing of the motion or order to show cause, and 
 11.6   the cause shall be continued on the calendar, until the assigned 
 11.7   judge can be present.  In criminal actions the notice to remove 
 11.8   shall be made and filed with the court administrator by the 
 11.9   defendant, or the defendant's attorney, not less than two days 
 11.10  before the expiration of the time allowed by law to prepare for 
 11.11  trial and in any of those cases the presiding judge shall be 
 11.12  incapacitated to try the cause.  In criminal cases, the chief 
 11.13  judge, for the purpose of securing a speedy trial, may change 
 11.14  the place of trial to another county. 
 11.15     Sec. 4.  [REPEALER.] 
 11.16     Minnesota Statutes 1998, sections 518.147 and 518.583, are 
 11.17  repealed.