Case Law, Federal Law, MN Statutes, and MN Rules

For Your Lawyer To Address

Judge/Referee/Magistrate Must Enforce The Provisions of Law

Ability to Pay: Laws

 

 

 

MN Statutes - Child Support Must be Based on Ability to Pay

 

MN statute is 518.553 Payment Agreements: In proposing or approving proposed written payment agreements … the court, a child support magistrate, or the public authority, shall take into consideration ... the earnings of the obligor ... and shall consider the individual financial circumstances of each obligor in evaluating the obligors ability to pay any proposed payment agreement and shall propose a reasonable payment agreement tailored to the individual financial circumstances of each obligor.

 

MN Statute 518.551 (Maintenance and support payments), Subdivision 5 (Notice to Public Authority; guidelines), (b), (ii), (E), “ … There is a presumption of substantial unfairness if after the sum total of child support … is subtracted from the noncustodial parent’s income, the income is at or below 100 percent of the federal poverty guideline.”

 

MN Statute 518.551 (Maintenance and support payments), Subdivision 5 (Notice to Public Authority; guidelines), (i) “The guidelines …shall be used in all cases when establishing or modifying child support …(j) The provisions of this paragraph apply whether or not the parties are each represented by independent counsel ...”

 

MN Statute 518.145 (Decree, finality, and reopening), Subdivision 2 (Reopening) “On motion and upon terms as are just, the court may relieve a party from a judgment and decree, order, or proceeding under this chapter”, “and may order a new trial or grant other relief as may be just for the following reasons (1) mistake, inadvertence, surprise or excusable neglect.”

 

MN Statute 518.551 (Maintenance and support payments), Subdivision 5 (Notice to Public Authority; guidelines), (j) “If the child support payments are assigned to the public agency under section 256.741, the court may not deviate downward from the child support guidelines unless the court specifically finds that the failure to deviate downward would impose an extreme hardship on the obligor.”

 

MN Statute 518.551 (Maintenance and support payments), Subdivision 5b (Determination of Income), (d) “… A parent is not considered voluntarily unemployed or underemployed upon a showing by the parent that the unemployment or underemployment: … (2) represents a bona fide career change that outweighs the adverse effect of that parent’s diminished income on the child. Imputed income means the estimated earning ability of a parent based on the parent’s prior earnings history, education, and job skills, and on availability of jobs within the community for an individual with the parent’s qualifications.”

 

MN Statute 518.551 Subd. 5d (Determination of Income) (e) If there is insufficient information to determine actual income to impute income pursuant to paragraph (d), the court may calculate support based on full-time employment of 40 hours per week at 150 percent of the federal minimum wage or the Minnesota minimum wage, whichever is higher.

 

MN Statute 518.68 (Required Notices), Subdivision 2 (Contents), IMPORTANT NOTICE 3 (Rules of Support, Maintenance, Visitation), (g) “… the court is not permitted to reduce support retroactively, except as provided in Minnesota Statutes, section 518.64, Subdivision 2, paragraph (c).

                Conclusion: Arrearages can be modified. There is an exception and that includes if the obligors compensation has changed. Additionally, the government can only deny a modification on arrears if it is government debt. Private debt can be negotiated with the other party in a settlement.

 

MN Statute 518.64 (Modification of orders or decrees) Subdivision 2 (Modification), (a) “the terms of an order respecting maintenance or support may be modified upon a showing of one or more of the following (1) substantially increased or decreased earnings of a party.”

 

MN Statute 518.64 (Modification of orders or decrees) Subdivision 2 (Modification), (d) “… modifications may be applied to an earlier period if the court makes express findings that: (1)  …a material misrepresentation of another party, …(3) … the record contains no factual evidence, or clearly erroneous evidence regarding the individual obligor’s ability to pay.”

 

MN Statute 518.551 Subdivision 5 (Notice to Public Authority; guidelines) (c), which states, “ … the court shall take into consideration the following factors in setting or modifying child support in determining whether to deviate from the guidelines: (1) all earnings, income, and resources of the parents …” [emphasis added].

 

CASE LAW – Child Support Must Be Based On Ability To Pay

 

“The requirement of the ability to pay is implicit in MN Statute under the term ‘willful’.” State v Thurmas, 1951, 233 Minn 153, 46 N.W. 2d 258.

 

“obligation of father to support his progeny must take precedence over every consideration for himself not arising from absolute necessity of self-sustenance.” State v. Fuerst, 1969, 283 Minn 391. 168 N.W. 2d 1.

 

“Obligation to pay child support is premised on obligor’s ability to pay,” Schneider v. Schneider, App. 1991, 473 N.W.2d 329.

 

 

FEDERAL LAW

 

42 U.S.C. 1301 (d). General Provisions of the Social Security Act. “Nothing in this act should be construed as authorizing any federal official, agent or representative, in carrying out any of the provisions of this act, to take charge of any child over the objection of either parents of such child, or of the person standing in loco parentis to such child.”

 

 

OTHER RESEARCH

 

Poverty Guideline for 2003:
(for the 48 Contiguous States and the District of Columbia)

 Size of 
Family Unit 

Poverty 
Guideline

 

 

1.............................

 $8,980

 

 

2.............................

$12,120

 

 

3.............................

$15,260

 

 

4.............................

$18,400

 

 

5.............................

$21,540

 

 

6.............................

$24,680

 

 

7.............................

$27,820

 

 

8.............................

$30,960

 

 

For family units with more than 8 members, add $3,140 for each additional member. (The same increment applies to smaller family sizes also, as can be seen in the figures above.)
For more information visit Federal Register (Volume 68, Number 26) 

Your Ability To Pay

Educational Booklet #AL03-04

 

 

ASK YOUR LAWYER …

 

The purpose of this information is to help ensure that you are asking your lawyer all the pertinent and relevant questions that must be addressed in your motion, affidavit, and memorandum of law, in order to help ensure a thorough argument based on all facets of the law. No argument with merit should be overlooked; and every document is critical to the record. Your case must be appropriately and adequately presented to the court, to protect and safeguard you for all possible appeal issues.

 

 

 

 

 

 

 

Prepared By:

Center For Parental Responsibility

P.O. Box 130776

Roseville, MN 55113

 

CPR Voicemail: 651/490-9277

Website: cpr-mn.org

Email: info@cpr-mn.org

 

 

 

 

Latest Update: October 19, 2003

 

“The General Accounting Office found that as many as 14% of fathers who owe child support are dead. The report further stated that 66% of fathers who owe support can not afford to pay the amount ordered.”

Source: Wall Street Journal

 

“The problem is that review and adjustment mechanisms are usually slow and cumbersome making them difficult for low-income parents to access and navigate. They typically do not respond to the unstable job market that most poor parents find themselves in. In addition states often are reluctant to decrease the order … This means that an unemployed father may have little practical ability to reduce his obligation and build-up of unpaid arrears (back payments).”

Source: CLASP, Realistic Child Support Policies for Low Income Fathers, by Vicki Turetsky, March 2000

 

According to Laura Kadwell, Director of the MN Child Support Enforcement Agency, “a recent study of 5200 parents with overdue payments showed that half made less than $18,000 … a big reason it (state) doesn’t collect the remaining third is that noncustodial parents often don’t earn enough money to pay their support or overdue debt.”

Source:  “Amnesty Pondered For Child Support,” Minneapolis Star Tribune, June 25, 2000

 

 

 

“The General Accounting Office found that as many as 14% of fathers who owe child support are dead. The report further stated that 66% of fathers who owe support can not afford to pay the amount ordered.”

Source: Wall Street Journal

 

“The problem is that review and adjustment mechanisms are usually slow and cumbersome making them difficult for low-income parents to access and navigate. They typically do not respond to the unstable job market that most poor parents find themselves in. In addition states often are reluctant to decrease the order … This means that an unemployed father may have little practical ability to reduce his obligation and build-up of unpaid arrears (back payments).”

Source: CLASP, Realistic Child Support Policies for Low Income Fathers, by Vicki Turetsky, March 2000

 

According to Laura Kadwell, Director of the MN Child Support Enforcement Agency, “a recent study of 5200 parents with overdue payments showed that half made less than $18,000 … a big reason it (state) doesn’t collect the remaining third is that noncustodial parents often don’t earn enough money to pay their support or overdue debt.”

Source:  “Amnesty Pondered For Child Support,” Minneapolis Star Tribune, June 25, 2000

 

 

 

EXTRA

MN RULE

 

Rule 3400.0183 Subp. 2, I am allowed to TERMINATE CHILD CARE ASSISTANCE.

 

 

FED LAWS

More case law

 

 

 

 

 

 

 

 

 

 

Ø       Are my constitutional rights being violated?

o         Violation of Right of Privacy:

§         If a private agreement has been made, there is no compelling state interest and there should be no delivery of government services.

o         Violation of Procedural Due Process:

§         If they notified the employer of a mandatory cost-of-living increase before you have been notified and/or before you have been given a fair hearing and so adjudicated.

o         Violation of Substantive Due Process:

§         If you have not been offered an opportunity to challenge the assignment of rights, and seek appropriate relief.

o         Violation of 1st Amendment and 9th Amendment:

§         If you are a fit parent and have been prevented from protected liberty interest of parenting the way you chose.

o         Violation of Equal Protection (5th and 14th Amendment):

§         The law is there to make sure that your rights as a non-custodial parent are as protected as the custodial parent.

§         Since the state can’t require a married family to spend more on their children, they can’t require you to spend more.

o         Violation of Civil Rights

§         If your 1301 (d) objection is not honored the public authority is in violation of federal law if they continue the unwanted, unnecessary government intrusion in your family.

 

 

 

“Having canceled the bond which stood against us with its legal demands; this He set aside, nailing it to the cross.” Colossians 2:14

 

CPR Vision Statement: An inter-denominational, faith-based, bi-partisan, gender-neutral, tax-exempt public policy and educational organization to protect the civil rights of both parents to protect the children.

CPR Organization Mission: Bold advocacy, practical education, and compassionate support, through thoughtful, thorough, and accurate analysis that leads people to responsible action that influences less government and protects the rights and responsibilities of both parents, to encourage healthy development and best interests of children, to resolve differences so that fractured families will be strengthened.

 

CPR educational booklets are updated regularly. If you have suggestions on how to improve this brochure, please notify us. For current release of this brochure, visit our website.

CPR educational booklets do not purport to give legal advice. The information contained herein is general in nature; individual circumstances will always vary. We recommend you consult an attorney for advice and legal representation.

CPR is in the process of applying for non-profit status, CPR is currently under umbrella of tax-exempt 501 c(3) organization, Providence House

 

ã 2003 may be copied by permission only – derivative works or reproductions are a violation of copyright without prior authorization from CPR