Rochester Child Support and Custody Lawyer

In any contested divorce or custody proceeding, invariably the issue of custody determination and subsequently the child support order that follows are the greatest stress generators for the parties involved. At our law firm an experienced Rochester, Minnesota Child Support lawyer will help you in determining what the proper support order should be and making sure that the order get enforced if necessary.  The main thing to keep in mind is that, support payments are intended to provide for the well-being and development of the children and they should not be used as weapons by one party against the other. That is why it is important that this obligation be accurate and reflect the financial realities of the parties so as to prevent placing the children from being place in the middle of a parental dispute.

In Minnesota, every child has a right to be supported by both parents, whether the child is living with one of the parents, or with a third party. The child support obligation is made up of: basic support, daycare reimbursement and medical support. In child support proceedings, the parent or person the child lives with is called the “custodial parent” or “obligee.” The "non-custodial" parent or “obligor” is the parent that the child does not primarily live with.

Beginning in January of 2007, Minnesota started using a new law that has new guidelines for setting child support called “income shares.” “Income shares” means that the Court will look at the gross income of both parents count in setting child support. Child support is usually set at the guideline amount. But the Court can set child support above or below the guideline amount if there are special circumstances. A helpful website is the child support calculator created by the Department of Human Services at http://childsupportcalculator.dhs.state.mn.us/

The new law now looks at the gross income of both parents and sets support based upon each parent’s proportion of income. While the legislature tried to eliminate the guess work, by implementing a formula whereby you input numbers and a child support amount is calculated, there are issues that an experienced Minnesota Child Support attorney can help you with. One of these issues is gross income. This is income before any pre-tax deductions like a pension plan. Other examples of gross income include commissions, self-employment income, workers' compensation, unemployment benefits, annuity payments, pension and disability payments, spousal maintenance received under a previous order or the current proceeding, Social Security or veterans’ benefits provided for a joint child, or potential income. Not all the financial documents will have this information and it is crucial to review them carefully in order to determine the right amount of gross income.

The parties’ custodial or parenting time agreement or Court also affects the child support determination. There are two kinds of custody in Minnesota; legal and physical.

Legal custody is the right to make decisions concerning the children. A court can award sole legal custody to one parent, meaning only that parent has the right to make decisions. However, there is a presumption that the parents should share legal custody and the Court will order joint legal custody, meaning that both parents make the decisions together. Legal custody does not affect child support in any way. The amount of child support ordered will be the same, whether the parties have joint legal custody or one parent has sole legal custody.

Physical custody means the routine daily care and control and the residence of the child. Most times, the Court will grant one parent sole physical custody and the other parent parenting time. In some cases, Courts will award joint physical custody. This means that the routine daily care and control and the residence of the child is structured between the parties. Joint physical custody is usually given when the parents are able to communicate with each other and the Court is convinced that it is in the child’s best interests.

The parent without primary physical custody of the children, there may be entitled to a deduction for costs that come up during parenting time. This is called the “parenting expense adjustment”. The amount of the deduction depends on how much parenting time the court orders. For example:

• If the parenting time is less than 10% of the time, there is no deduction.
• If the parenting time is between 10% and 45%, there is a 12% deduction.
• If the court orders parenting time of 45.1% or more, that is equal custody, and a different formula is used.

It is very important to know that under the new law, an order for “joint physical custody” does not by itself affect the amount of child support. Now the amount is based on the number of overnights that each parent has with the child. If each parent has at least 45.1% of overnights with the child, or other significant time that the court determines, the court will use another formula instead of the parenting expense adjustment.

The Minnesota legislature also added a self-support reserve amount, which is 120% of the federal poverty guideline for one person, which for 2008 is $1,040. That means that the obligor must have at least that amount left from his/her gross income after child support is taken out. If the obligor makes less than $1,040 a month then the child support obligation is set at a minimum order which is $50 for 1 or 2 children; $75 for 3 or 4 children; or $100 for 5 or more children.

Finally you have a right to ask for a review in the first 6 months after the child support order was entered. You must request this hearing if you want one and usually the form to request the hearing is attached to the order.

If you have further questions, or would like to schedule your free initial consultation please contact us.