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Oct 13 2015

Minnesota Family Law QA (Part 4)

Q & A: Is it possible for a 16 year old to hire his own attorney and intervene in his parent’s post decree dispute?

In practice, the child becomes the client that the attorney represents for attorney-client purposes and correspondence. Any financial retainer is one that can then be signed by an adult that has the resources to pay.

Click here for more information on Divorce.

Q & A: How does wage garnishment work in a child support case?

A client was recently ordered to pay child support in the approximate amount of $700 per month. This amount will be withheld from the client’s paychecks by county support and collections. The client’s monthly gross income is $2200 to $2400. The client’s wages are already being garnished in the average amount of $400-$500 per month for a non-child support judgment. How much money will be garnished from the client’s disposable income after the child support is withheld?

After reviewing Minnesota Statute 571.992 regarding limitation on wage garnishment, it appears that 25% of the client’s disposable income can be garnished after the full amount of child support is withheld. Is this a correct analysis?

Look at Minnesota Statute 518A.53 and 11 U.S.C. 1673(b). Child support obligations take priority over other types of attachments. Depending on the situation the child support obligation can attach up to 65% of the obligor’s disposable earnings.

If the child support order results in attachment of more than 25% of the disposable earnings, no other non-support attachment can exist while the support order attachment is in place. This is because more than 25% of the disposable earnings are already being attached.

Currently, there is no Minnesota case law that actually has a holding stating this. However, other federal courts have interpreted the federal law this way.

Click here for more information on Child Support.

Q & A: Child Support Calculation Oddity

When calculating child support and medical support, for example, Parent A would pay $1492 in basic support and Parent B would pay $16 for medical so that Parent B would get a net amount of $1476. After double checking Parent B’s income, it became apparent that the income should be calculated higher by $16. After recalculating, Parent A now should pay $1476 in basic and parent B should pay $17 in medical so that parent B would receive a net amount of $1459.

By increasing Parent B’s gross income by $16, Parent B will now receive $17 less in net child support. What is the explanation for this oddity?

Changes in the obligor’s income are far more influential than changes in the obligee’s. An attorney cannot predict outcomes until he or she does the child support calculation.

If the obligor’s income increases, the combined parental income for child support (PICS) increases, the combined support increases, and the obligor’s percent of PICS increases. As a result, the obligor owes a greater percentage of a higher amount. If the obligor’s income decreases, the opposite is true.

However, if the obligee’s income increases, the combined PICS increases and the combined support increases, but the obligor’s percent of PICS decreases. The result is that the obligor owes a smaller percentage of a higher amount. These are offsetting effects. Most of the time there will be a small decrease, but not necessarily. The opposite is true if the obligee’s income decreases.

In practice, this result is not uncommon. It is good advice to tell the clients to check the calculator before consulting with the court. It is likely that the additional income of Parent B resulted in the combined PICS moving to the next highest category. Parent B’s percentage of PICS may have also changed by 1%.

For example, Mom is a custodial parent and earns around $75,000 per year. Dad earns about half as much. Mom receives a raise, and now earns about $90,000 per year. Even though Dad’s income has not changed and Mom’s income actually increased, the end result after running the child support calculator is that Dad’s child support obligation increases.

Click here for more information on Child Support.

Q & A: How would an attorney draft a post-decree agreement for a Minnesota case to allow the primary parent to move to England?

There are currently no Minnesota cases directly on point to answer this question. One federal case that may be helpful is a 2013 case called Ozaltin v. Ozaltin, 708 F3d 355.

The Hague Convention is a possible resource as it has been signed by both Great Britain and the USA. The issue with the Hague Convention is that it deals more directly with the abduction of a child from the child’s habitual residence. The Hague Convention does not deal very effectively with the situation in this type of case where a court may allow a custodial parent to move and live in England. In cases like this, all the law provides is that the American State Department will help facilitate visitation. However, there is no enforcement mechanism.

After consulting with an English Solicitor in England on this subject, the Solicitor said that it was clear that since the children’s habitual residence would be England, that a court in England would assert jurisdiction over the children. The Solicitor recommended that if the parent is allowed to move to England with the children, the U.S. court should require that the parties obtain a ‘Consent Order’ in England before the parent is allowed to move with the children to England. This would require signatures but no court appearance in England by the parties. The solicitor recommended this so that the courts in England would know what terms to enforce regarding parenting time/visitation, who has to pay for travel visits, and any other issues that may arise.

Click here for more information on Divorce.

Q & A: How can a parent best handle responses from children during a divorce to ensure the parent is setting a responsible and respectful example for the children?

First and foremost, it is always important take the high road in a divorce. In other words, operate in daily life under the assumption that each thing you say or do will be documented and shown to the Judge overseeing the case. To reach this goal, it is very important to share the following rules with your children and never reprimand them if they give you the following feedback:

  • Do not talk badly about my other parent. Translation: this makes me feel torn apart and also makes me feel bad about myself.
  • Do not talk badly about my other parent’s friends or relatives. Translation: Let me care for someone even if you do not.
  • Do not talk about the divorce or other grown-up stuff. Translation: this makes me feel sick. Please leave me out of it.
  • Do not talk about money or child support. Translation: this makes me feel guilty or like I am a possession instead of your child.
  • Do not make me feel bad when I enjoy my time with my other parent. Translation: this makes me afraid to tell you things.
  • Do not block my visits or prevent me from speaking to my other parent on the phone. Translation: this makes me very upset.
  • Do not interrupt my time with my other parent by calling too much or by planning my activities during our time together.
  • Do not argue in front of me or on the phone when I can hear you. Translation: this turns my stomach inside out.
  • Do not ask me to spy for you when I am at my other parent’s home. Translation: this makes me feel disloyal and dishonest.
  • Do not ask me to keep secrets from my other parent. Translation: secrets make me feel anxious.
  • Do not ask me questions about my other parent’s life or about or time together. Translation: this makes me feel uncomfortable, so just let me tell you.
  • Do not give me verbal messages to deliver to my other parent. Translation: I end up feeling anxious about their reaction. Please just call them, leave a message at work, or put a note in the mail or email.
  • Do not send written messages with me or place them in my bag. Translation: this also makes me uncomfortable.
  • Do not blame my other parent for the divorce or things that go wrong in your life. Translation: this really feels terrible. I end up wanting to defend him/her from your attack. Sometimes it makes me feel sorry for you and that makes me want to protect you. I just want to be a kid, so please stop putting me into the middle.
  • Do not treat me like an adult. It causes way too much stress for me. Translation: please find a friend or therapist to talk with.
  • Do not ignore my other parent or sit on the opposite sides of the room during my school or sports activities. Translation: this makes me very sad and embarrassed. Please act like parents and be friendly, even if it is just for me.
  • Do let me take items to my other home as long as I can carry them back and forth. Translation: otherwise it feels like you are treating me like a possession.
  • Do not use guilt or pressure to love you more and do not ask me where I want to live.
  • Do realize that I have to homes, not just one. It does not matter how much time I spend there. I would also really appreciate if you would let my other parent come into our house every not and then because it is my home too.
  • Do let me love both of you and see each of you as much as possible. Be flexible even when it is not part of your regular schedule.

Click here for more information on Parenting Time.

Q & A: What is a six month review hearing and why is it useful for Minnesota families?

The six month review hearing process is governed by Minnesota Statute §518.178. The process is intended to encourage compliance with the child support and parenting time provisions of a court order in a family law case.

A request for a six month review hearing form is attached to orders issued after January 1, 2007 establishing custody, parenting time, or child support. The form is not attached to orders modifying any of these issues or orders addressing other issues only. The form must be submitted within six months of after entry of a divorce decree or legal separation decree.

The actual hearing is then scheduled as soon as practicable and will not necessarily be within six months. At the hearing, the court must review whether the child support is current and whether both parties are complying with parenting time provisions.

The six month review for child support or parenting time can be a valuable self-remedy for parties who have recently had a support or parenting time order entered and need assistance resolving any issues. These issues could include a change in income or living circumstances for the payor of child support or payee or a lack of compliance of a party with the current decree regarding parenting time.

Click here for more information on Child Support.

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