Child Support Modification

Pursuant to Minn. Stat. 518A.39, subd. 2, child support may be modified if there has been a substantial change in the gross income of either the obligor or obligee. Since 2007, child support is based upon the gross incomes of both the mother and father (income shares method). Previously child support was a percentage of the obligor's net income. The first time child support is modified using the income shares method, the new child support amount may cause a financial hardship on either the obligor or obligee. As a result, the legislators included 518A.39, subd. 2(k) which states "On the first modification under the income shares method of calculation, the modification of basic support may be limited if the amount of the full variance would create hardship for either the obligor or the obligee." With proper preparation and evidence, an obligor or obligee may successfully limit the modification of child support using this statute.

Parenting time and child support

During consultations, people ask me if parenting time affects child support. The answer is yes it can but it depends. Child support can be reduced depending upon the amount of court ordered parenting time. For instance, if there is no court ordered parenting time, then child support will not be reduced even if the parent exercises parenting time on a regular basis. People should be aware too that if a parent has court ordered parenting time but does not exercise their parenting time, that parent can still get a reduction in child support based upon the percent of court ordered parenting time. This was recently addressed by the Court of Appeals in an unpublished opinion, Hesse v. Hesse, A08-2255 (Minn. App. 12/1/2009) (Minn. Appl. 2009). In this case, the father had court ordered parenting time of more than 45.1%; therefore, he met the requirement for a reduction in his child support obligation. The mother argued that since the father did not exercise his two weeks of vacation, his parenting time was less than 45.1%. Minn. Stat. 518A.36, subd. 1(a) states that 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." As a result, the child support was modified based on the court ordered percentage of parenting time and not the amount of actual parenting time that the father exercised during a calendar year.

Thanksgiving

At this time of year, there is much to be thankful for. Even those individuals who are going through divorces, having child support difficulties, or are frustrated with their parenting time, can find something to be thankful for. For instance, the health of their children, their friends and family, food, clothing, and shelter. That is not to say that life is not hard, but there is always something to be thankful for. My hope for you is that you can find a golden lining in the midst of life's conflicts. In the St. Francis/Nowthen area, we are blessed with the beauty of lakes and the Rum River. May you also find a blessing in your present circumstances.

Happy Holidays!

Grandparents and visitation with grandchildren

Grandparents have visitation rights with their grandchildren. Minnesota Statute 257C.08 gives grandparents the right to visitation in three situations:

1. When the parent, who is their child, is deceased;
2. When there is a proceeding for divorce, custody, legal separation, annulment, or parentage (a paternity action); and
3. When the child(ren) resided with the grandparents for 12 months or more. These 12 months do not need to be consecutive.

If you or someone you know is being deprived of visitation with their grandchildren, consult with an attorney. There may be a remedy.

Child Support continues after death of obligor

Estate of Thomas J. McCarthy, unpublished, September 15, 2009, Minnesota Court of Appeals.

Mr. McCarthy had a child support obligation for his disabled son. (There can be a child support obligation past the age of 18 if a child is disabled.) After Mr. McCarthy's death, his 48-year-old son made a claim against his father's estate for child support, medical expenses and insurance coverage that the father was or potentially could be obligated to pay to his son. The Court of Appeals found that the district court erred when its determined that the son's claim for child support after his father's death was barred. The Court looked to Minnesota Statute Section 518A.39, subd. 4 (2008) which states "Unless otherwise agreed in writing or expressly provided in the order, provisions for the support of a child are not terminated by the death of a parent obligated to support the child. When a parent obligated to pay support dies, the amount of support may be modified, revoked, or commuted to a lump-sum payment, to the extent just and appropriate in the circumstances." In other words, if an obligor dies before his or her child support obligation is terminated and there are assets in the obligor's estate, a claim can be made against the obligor's estate for the unpaid child support.

After divorce bankruptcy

Fast v. Fast (May 5, 2009): The Minnesota Court of Appeals examined the issue of one party having their debts discharged through bankruptcy and the effect on the other party. Prior to the divorce, both parties were liable for a Wells Fargo loan. Mr. Fast was awarded the parties' business and was to take full responsibility for the parties business debt, the Wells Fargo loan, holding Ms. Fast "harmless therefrom". After the divorce, Mr. Fast filed Chapter 11 bankruptcy and had this Wells Fargo loan discharged; whereupon, Wells Fargo sought payment from Ms. Fast. "The primary issue [was] whether the district court erred in concluding that [Mr. Fast's] obligation in the marriage dissolution to hold [Ms. Fast] harmless on the Wells Fargo debt was discharged in the bankruptcy proceeding." The Minnesota Court of Appeals found that the district court erred in it interpretation of the Bankruptcy Code and that Mr. Fast must meet his hold-harmless obligation. In other words, Mr. Fast was still responsible for the Wells Fargo loan, not Ms. Fast. Bankrutpcy cannot shift the debt from one party to another if there is hold harmless language in the dissolution.

Spousal Maintenance

The Minnesota Court of Appeals continues to hold that monthly expenses claimed by a party seeking spousal maintenance must be support by evidence on the record. In Williams v. Williams, an unpublished opinion dated June 30, 2009, the Court of Appeals held that since the expenses referenced by the district court were not support by any evidence, the district court's finding that respondent's expenses were actually $3,000 to $3,500 was clearly erroneous. The Court of Appeals reversed and remanded this portion of the order back to district court.

What can we learn from this? In any spousal maintenance case, the spouse seeking spousal maintenance should provide verification of their monthly expenses before the parties agree to a spousal maintenance amount.

Heidi A. Swisher, Esq.
St. Francis, MN