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Archive for Child Support – Page 2

The Value of an Attorney During Divorce

Posted by Gerald Williams 
· March 26, 2013 
· No Comments

Times are tough.  Many families and individuals have struggled the past few years because home values have dropped and jobs are difficult to come by.  Financial problems add to or are the cause of marital discord.   Not surprisingly, when couples decide to divorce, many find the idea of hiring an attorney distasteful, if for no other reason than that it will be an additional financial cost.  More and more divorcing parties decide to represent themselves during the divorce process.  For some families, this makes good sense.  If the issues are straightforward and you agree on all relevant terms, then you may be able to effectively fill out the paperwork and complete the process on your own.  Minnesota makes all of the necessary forms available online here: http://www.mncourts.gov/selfhelp/?page=342.

Unfortunately, the issues are not always as straightforward as they seem and the agreement is not always as complete as it should be.  We see two common situations in which parties have represented themselves during a divorce — or some portion of it — and have required the services of an attorney after the fact.  One situation is when parties fill out the divorce paperwork on their own, but the Court refuses to sign off on it.  Sometimes the Court tells the parties what is wrong with the paperwork, but it can be confusing to identify the problems and know how to fix them.  Judges often suggest or strongly urge one or both parties to hire an attorney to review and revise the paperwork.  The set-back can be frustrating.

The second common scenario presents an even tougher issue for unrepresented parties.  Not uncommonly, self-represented parties will submit an agreement to the Court and it will be accepted and approved.  If you are not aware of your rights at the time of the divorce, but then later realize that you have gotten an unfair deal, or are stuck in a difficult situation, it can be hard to go back and remedy the situation.  Common pitfalls include issues with real estate, retirement account transfers, custody or parenting time agreements, and child support collection.

The difficult thing about property division issues is that property division is final upon entry of the divorce.  If an attorney is involved with the drafting of the divorce agreement, the attorney can offer advice to protect you against common contingencies.  For example, what if the house doesn’t sell?  Or, what if you or your spouse are unable to refinance?  Who will pay for unforeseen fees associated with a QDRO (the separate document that provides for both spouses to share in a retirement account)?  While hindsight is 20/20, there is often little a party can do to remedy a property-related problem that has popped up after the divorce is final.

With the child-related issues like parenting time and child support, the Court always retains jurisdiction to revisit these issues if need be.  However, the standard for changing the agreement can be quite high.  For example, it may not be enough to realize after-the-fact that the parenting time schedule doesn’t work well for your child(ren).  Unless the other parent agrees with you and you jointly undertake to change the schedule, it may remain “as is” unless you can show that it endangers the child.  When it come to enforcement of child support, it is likely that you will be able to update the Court Order to promote enforcement of it, but it will cost you additional money to do that.  If it were drafted correctly initially, that cost could be avoided.

For these reasons and more, we strongly recommend that anyone thinking about or starting the divorce process hire an attorney.  At a minimum, it makes good sense to hire an attorney to either draft the agreement that you and your spouse have reached or to have the attorney review the paperwork that you and your spouse have filled out together.  As they say “an ounce of prevention is worth a pound of cure.”

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Categories : Child Custody, Child Support, Divorce, General Family Law

Four Primary Issues in Divorce

Posted by Gerald Williams 
· January 24, 2013 
· No Comments

While a divorce can be a challenging process, there are four primary issues in divorce that must be addressed .  After the initial difficult decision of whether to pursue a dissolution action, many parties wonder where to begin in sorting through the many pieces of the marital relationship.  One helpful place to start is to realize that there are two primary issues that apply to every divorce and two additional primary issues that apply when the divorcing couple has minor or dependent children:

Property Division

Almost every marital estate includes assets and debts.  Both must be identified, disclosed, and divided equitably between the parties.  Assets commonly include: the marital homestead, other real estate, stocks and bonds, retirement accounts, business interests, motor vehicles, and personal property (such as jewelry, electronics, home goods and furnishings, etc.).  Debts commonly include: second mortgages, credit card balances, personal loans, lines of credit, student loans, and medical bills.

Whether a party intends to hire an attorney or proceed without one, it is helpful to write out the list of assets and debts with even a rough estimate of their values.  Doing so allows the party and / or his or her attorney to conceptualize the marital estate and to begin to formulate potential options for a fair property settlement.

Spousal Maintenance

Spousal maintenance was formerly known as “alimony.”  It is less commonly awarded now than it was in the past, but there are still plenty of situations in which spousal maintenance is appropriate.  The two primary factors are the length of the marriage and the income disparity between the spouses.

If a party believes he or she may be entitled to spousal maintenance, it is helpful to begin by writing out a budget of his or her reasonable monthly living expenses.  If the party is unable to meet his or her reasonable expenses, and the party’s spouse is able to contribute to them, then spousal maintenance may be appropriate.

If spousal maintenance is appropriate, it is also important to consider how long it should be paid from one spouse to the other.  In a minority of cases, permanent or otherwise long-term spousal maintenance is necessary.  In a majority of cases, parties agree or are ordered to exchange spousal maintenance for a limited amount of time.  Sometimes the time frame includes a “step-down” approach whereby the amount of spousal maintenance decreases over time until it is no longer paid at all.  It is also commonly tied to the spousal maintenance recipient’s ability to earn income, which may be expected to increase when enough time has passed for him or her to seek education or take other steps towards gainful employment.

One of the most important aspects of the spousal maintenance issue is whether the parties will agree to divest the Court of jurisdiction over the spousal maintenance issue after the divorce is final.  If so, the parties’ agreement will include a Karon waiver, which prohibits the Court from modifying spousal maintenance in the future.  If the parties have not agreed to a Karon waiver, then either party may petition the Court for a modification if the parties’ circumstances change.

Custody and Parenting Time

There are two types of custody: legal and physical.  Legal custody relates to issues like religious upbringing, major medical decisions, and type of education. Parties often agree to share legal custody decisions and are awarded joint legal custody.  In a minority of cases, sole legal custody for one parent is an appropriate resolution to this issue.

Physical custody relates to the day-to-day care of the child.  Increasingly, the label of “joint physical custody” vs. “sole physical custody” has become far less meaningful than the parenting time schedule the parties are ordered to follow.  Rather than focusing on the label of “joint” or “sole,” the better focus here is for a party to give serious thought to the co-parenting  schedule that he or she believes is in the “best interests” of the child(ren).

Here are a few common schedules:

  • The parties follow a 5-2-2-5 schedule where one parent takes Mondays and Tuesdays, the other parent takes Wednesdays and Thursdays, and the parties alternate weekends (Friday through Sunday).
  • The parties follow a week-on / week-off schedule.
  • One parent provides the primary residence for the child(ren) who see the other parent every other weekend and one or two nights per week.
  • One parent provides the primary residence for the child(ren) who see the other parent on school breaks and for alternating holidays.  This schedule is especially common when the parents do not reside in the same state.

Of course, where safety concerns or other serious issues are present, a shared custody arrangement like those described above may not be appropriate.  In these cases, sole physical custody to one parent with limited visitation and / or supervised visitation by the other parent may be necessary.

Child Support

Child support is often relatively straightforward.  It is based on the parties’ relative incomes and the agreed-upon or court-ordered parenting time schedule.  The Minnesota Child Support Guidelines Calculator is an excellent tool for practitioners and curious parties alike: http://childsupportcalculator.dhs.state.mn.us/Calculator.aspx  It provides the basis for the child support numbers the parties will work with as they attempt to resolve the various pieces of the divorce.

The three types of child support considered in any child support award are:

  1. Basic support which is paid from one parent to the other for the day-to-day necessities of the minor child(ren)
  2. Medical support which divides the costs of medical insurance premiums and other out-of-pocket medical costs as between the parties
  3. Childcare support which divides the costs of childcare as between the parties

Parties may agree to deviate from the Minnesota Child Support Guidelines, but to do so they must first acknowledge the Guidelines and then assert that it is in the best interests of the children to deviate from them.

The foregoing outline is a very general and very basic representation of the potential issues parties will face as part of the dissolution process.  These issues are often challenging and complex.  Any party faced with a pending divorce is well-adivsed to hire an attorney to assist him or her with the process.  Skillful representation is often key to insuring  a fair and efficient resolution.  Contact the attorneys at Williams Divorce & Family Law today to see if our firm would be a good fit for you.

 

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Categories : Alimony / Spousal Maintenance, Child Custody, Child Support, Divorce, General Family Law, Parenting Time

Orthodontia Costs and Child Support

Posted by Gerald Williams 
· January 20, 2010 
· No Comments

If a parent is ordered to pay child support, it is likely that the child support obligation will include a “basic” support obligation, coupled with child care support and medical support. Orthodontia costs are included as part of medical support. Basic support is based upon the income of both parents, based upon a statutory table (similar to income tax tables). But the child care support and medical support are allocated between the parents based upon each parent’s percentage of income.

For instance, a parent whose income comprises sixty percent (60%) of the combined income of the parents (after payment of spousal maintenance, if any) will be responsible for sixty percent (60%) of the child care expenses and medical expenses.

The rationale for the special treatment of child care support and medical expenses is (a) for some children, parents incur child care expenses and for some, they do not; therefore, it would not work out for the same statutory table to be used for both families that do, and those that do not, incur child care costs; and (b) medical expenses (and the insurance coverage thereof) are unpredictable, and variable across families; therefore, it also would not work out for the same table to apply to all families regardless of their medical costs.

Since orthodontic expenses are sometimes elective and/or optional, there is the potential for disputes between parents about whether or not to incur orthodontic expenses. Parents who share joint legal custody share the authority to decide on orthodontia for their children. That is not to say that either parent has veto power over the expenditure of funds on orthodontic care. A family court or parenting neutral charged with the authority to decide the dispute will issue a decision based upon all facts and circumstances, with a focus on what is in the child’s best interests.

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Categories : Child Support

Child Support – The New Era of Income Shares

Posted by Gerald Williams 
· July 23, 2009 
· 2 Comments

Child support used to be calculated by taking the non-custodial parent’s net income, and basing child support on a certain percentage of net income, depending on the number of children being supported.

Under the child support law that was passed a couple years ago, both parents’ incomes are factored in. The statute contains a table that provides a base amount of child support that children are entitled to, based upon the combined income of the child(ren)’s two parents.  The obligor parent pays a percentage of the base amount provided for in the statutory table, based upon his or her proportional share of the combined income.  For example, if the statutory table provides for base support in the amount of $1,000; and the obligor parent’s income is 70% of the parents’ combined income, the obligor parent would have a base child support obligation of $700.
The support number is reduced to reflect parenting time that the obligor has.  If the parents have equal, or nearly equal, custody / parenting time, then the support number is reduced substantially (by means of a somewhat different equation).  If the obligor parent has little or no parenting time, then there is no reduction.
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Categories : Child Support

Joint Custody and Child Support

Posted by Gerald Williams 
· May 26, 2009 
· 6 Comments

Under the Minnesota child support law that has been in effect since 2007, the amount of child support is based on both parents' incomes.  There is a guideline table in the statute that provides a set amount of base support that a child or children are entitled to based upon the sum of mom's income and dad's income.  The amount of the payor parent's obligation is figured by that parent's proportional share of the two parents' combined income applied to the base support in the aforementioned guideline table.  

If the parents have equal, or nearly equal, parenting time (i.e., if the child's living arrangement reflects joint physical custody), the calculation is different (…and too complicated to explain in brief space here.) Suffice it to say, the payor parent's obligation is substantially less.

The joint custodian's lower child support obligation reflects the fact that the joint custodian is contributing to regular, daily expenses in a manner that a non-custodial payor parent does not.  That is to say that, in the first example above, the obligor parent pays child support to the custodial parent, and the custodial parent covers the child's expenses, including clothing, footwear and regular, extracurricular activities.  (The payor parent does cover incidental expenses during parenting time, such as food, movie tickets and travel expenses.)  In the second example above, the joint custodian pays a LESSER amount of child support, but also contributes to the child's expenses, such as clothing, footwear and extracurricular activities (and not just parenting time expenses).  

There are times when a payor parent views it as a "bad deal" to pay the "higher" amount of child support. The up side is not having to contribute additionally to day-to-day expenses.  Conversely, the "down" side of paying the "lower" amount of support that a joint custodian pays is having to also contribute to day-to-day expenses.  
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Categories : Child Support

Judges, Referees and Child Support Magistrates

Posted by Gerald Williams 
· November 6, 2008 
· No Comments

If you appear in family court in Minnesota, or submit a matter to the family court for review or consideration, it will be handled by a family court judge, a family court referee or a child support magistrate.  Most family court hearings are presided over by judges.

The involvement of referees is limited to certain counties (i.e., Hennepin and Ramsey Counties).  In those counties, some family law cases are heard and decided by judges and some are heard and decided by referees.  A referee has the same authority as a judge, but the referee’s signed orders must also be signed by a judge. (The fact that a judge signs the order does not mean that a separate hearing before the judge is required.)  A party who objects to a referee’s order must obtain review from the Court of Appeals. (Years ago, a party who objected to a referee’s orders could obtain review of the referee’s order by a family court judge.  That process is no longer available.)
The involvement of child support magistrates is limited to certain cases involving only child support (i.e., those cases in which the county is providing child support enforcement services).  All Minnesota counties have child support magistrates.  A party who desires review of a child support magistrate’s order must seek that relief from the Court of Appeals.
If the case is not located in a county that has referees; pertains to a child support in which the county is not providing enforcement services; or involves issues other than child support, the case will be heard and decided by a family court judge.
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Categories : Child Support, General Family Law

Parenting Expense Adjustment to Child Support

Posted by Gerald Williams 
· September 24, 2008 
· No Comments

The current Minnesota child support law factors into its calculations the fact that the child support obligor incurs expenses when caring for the child(ren).  The child support statute provides a parenting expense adjustment in which the basic support calculated based upon the income of the two parents is reduced by twelve percent (12%).  The adjustment applies to all cases except those in which the payor parent has (a) very little access to the child, or (b) access to the child that is nearly equal to the other parent.  As long as the child spends between ten percent (10%) and forty-five percent (45%) of time with the payor parent, the 12% reduction applies. (As an example, a non-custodial parent who has parenting time one day per week, or alternating weekends, meets the 10% threshold.)  The applicable parenting schedule must be in a written court order in order for the parenting expenses adjustment to be implemented.

If the payor parent has the child(ren) in his or her care for more than 45% of the time, a very different calculation of child support applies.  In these cases, the custodial arrangement is commonly termed "joint physical custody," because the child spends substantial residential time in each home.  In those cases, generally the child support obligation is substantially less than it would otherwise be.  However, in such circumstances, it is expected that the payor parent will contribute directly to other expenses of the child(ren), such as clothing and extracurricular activities. Such a living arrangement for the child(ren) would reflect that the parties have the ability to cooperate in co-parenting, and therefore to also cooperate in fairly incurring and allocating the parenting expenses.   
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Categories : Child Support

Parenting Rights and Responsibilities

Posted by Gerald Williams 
· August 17, 2008 
· 1 Comment

As a parent, you have the right to custody of, or parenting time with, your child; and the responsibility to financially support your child. Many divorced or separated parents believe that if a parent fails to pay child support, they are not entitled to see the child; or if they do not have the opportunity to see their child, then they should not have to pay child support.

In formal family court proceedings, a parent’s child support payment record and a parent’s right to see the child are not connected. I have heard many family court judges say that you cannot “buy” the right to see your child. The family court considers parenting time to the child’s right, as much (or more) as it is the parent’s right. The child has no control over whether child support is on time, adequate, or set at too high a level. Regardless of the financial circumstances, the child and the parent have the right to see each other.

When a parent’s access to a child is restricted, it will not be for financial reasons, but reasons of personal safety and well-being of the child. So, in cases in which the parent’s access is restricted, the child is still entitled to financial support. Again, the family court will consider financial support to be the child’s right, regardless of whether the child has regular contact with the non-custodial parent. If one of the parent’s access to the child is restricted for some reason, that is not the fault or responsibility of the child.

Outside of court, parents may use the child as a way of getting money, or use money as a way of getting to see the child. Given that family court is where parents go to appeal to the court to remedy their situation, it is important to know that the family court will not engage in the tit-for-tat concept with child support and parenting time.

1 Comment
Categories : Child Custody, Child Support

Contempt and Jail Time

Posted by Gerald Williams 
· December 12, 2007 
· 4 Comments

Obviously when one spouse or parent threatens to get the other spouse or parent sent to jail, things have gotten pretty ugly.  The family court judges do not get any special thrill sending a family court litigant to jail.  In fact, the family court system is set up to avoid jail time in most cases.

It is important to distinguish the notion of jail in family court from the typical notion of jail (or prison) in criminal court.  In the case of a crime, one is sent to prison as punishment for a PAST transgression.   In family court, one is sent to jail as a MEANS of compelling FUTURE compliance and cooperation.

For example, if a parent fails to pay child support, they can be held in contempt of court, but sent to jail only if the court finds that the parent has the ABILITY to pay child support and is refusing to do so.  The family court is required to set “purge conditions” which are the steps that a party can take to get out of jail, or avoiding going to jail in the first place.

So, in the above example of a child support obligor, assume that the obligor has a monthly obligation of $400 per month, and $8,000 is past due.  The family court judge cannot send the obligor to jail for failure to instantly pay the $8,000 unless the court has reason (on the record) to believe that the obligor is ABLE to pay $8,000 instantly.  If the court finds that the obligor is unable to pay $8,000 right away, but IS able to pay $800 right away, and $800 per month thereafter ($400 for current support and $400 to go towards the past due amount), then the “purge condition” may be the $800 monthly payment.

The family court may hold the obligor in contempt, sentence the obligor to 30 days of jail, but stay the imposition of the sentence while the obligor complies with the ordered $800 monthly payments.  If the obligor fails to pay $800 per month during the period of time that the past due support is outstanding, the obligor can be hauled into court and sent to jail.  In this instance, the obligor’s failure to pay $800 per month is willful on the part of the obligor, and not beyond the obligor’s control.

When the obligor is given the jail sentence, it is not so much for the past transgression of failing to pay child support as much as the present or future transgression of failing to do the obligor is found to be capable of doing to become current on the obligation.

4 Comments
Categories : Child Support, General Family Law

Taxable Alimony, Nontaxable Child Support

Posted by Gerald Williams 
· August 26, 2007 
· No Comments

The tax consequences of child support and alimony (spousal maintenance) are different.  Child support has no tax consequences, which is to say that child support is not taxable to the recipient, and not deductible from the income of the payor.  Typically, however, spousal maintenance is taxable to the recipient, and deductible from the taxable income of the payor. 

If a court order provides for one party to pay child support of $1,500 per month, and maintenance of $750 per month, on paper that combines to be $2,250.  Assume that one’s combined state and federal taxes are at a rate of 33% of total income.  Since the payor will save approximately $250 on taxes (due to deducting the $750 from taxable income) and the receiver will incur approximately $250 in taxes (due to including the $750 in taxable income), the net amount of the $2,250 in combined payments is closer to $2,000.

If the court order instead provides for the party to pay child support of $750 per month, and maintenance of $1,500 per month, on paper that combines to be the same $2,250.  But the net amount is closer to $1,750, due to the approximately $500 in tax on the $1,500 in maintenance.

Moreover, if the party paying the support and maintenance is in a higher tax bracket than the party receiving the payments, the parties can mutually enjoy a net benefit.  Assume that the payor is in a tax bracket that results in a 33% tax liability, and the receiver is in a tax bracket that results in a $20% tax liability.  In the first example above, if the payor saves $250 on tax, the net effect to the payor is a combined expense of $2,000.  At the same time, the receiver may incur tax of only $150, so that the net effect to the receiver is a combined receipt of $2,100.  Together, the parties save $100 per month in taxes.

The net benefit increases with the second example ($750 child support, $1,500 maintenance).  If the payor saves $500 on taxes, the net expense is $1,750.  But if the receiver incurs tax of only $300, the net receipt is $1,950.  Together, the parties save $200 per month in taxes. 

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Categories : Alimony / Spousal Maintenance, Child Support
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Minnesota divorce attorney, Gerald O. Williams, represents clients in divorce and family law primarily in the communities of Woodbury, St. Paul, Minneapolis, Eagan, Inver Grove Heights, Cottage Grove, Maplewood, Oakdale, Lake Elmo, and Stillwater, as well as the greater seven county metro area including Washington, Ramsey, Hennepin, Dakota, Anoka, Scott, and Carver.