All in the Family: Two important changes in family law

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Over the last several months, we’ve written about two issues up for debate in the Minnesota Legislature: (1) spousal maintenance modification in the wake of recipient cohabitation; and (2) basic child support parenting expense adjustment reform. For the third time in three years, family law practitioners must change their way of thinking.

Child support

The 2007 amendments to Minnesota’s child support guidelines sought to bring greater fairness into the system by affording those who exercise significant, but not equal, parenting time with a credit against their basic support obligation. As a result, two issues arose.

First, parents that exercised just 10 percent of the available time were treated the same as those who exercised 45 percent of the available time. That never felt fair.

Second, parents that were close to exercising 45 percent, but did not cross the 45.1 percent threshold, were often left with a substantial support obligation based upon a nominal shortfall in time.

Effective Aug. 1, 2018 (a rather unusual gap in time), Minn. Stat. sec. 518A.26 will be amended to provide a new method of calculating the parenting expense adjustment.

Under the new law, a parent’s percentage of parenting time is defined by an annual average, as measured over a two-year period. Gone will be the days of looking at a 14-day block of routine parenting time to determine percentages.

Moreover, overnights, and now “overnight equivalents,” serve as the metric. “Equivalents” are created if a parent has significant time periods on separate days where the child is in the parent’s physical custody, and under the direct care of the parent, but does not stay overnight.

For example, suppose a father exercises his weekend parenting time. He has the children Friday evening until Sunday evening. Under existing law, a mother gets the benefit of the Sunday overnight in calculating support. Under the new law, a father’s Sunday constitutes an overnight equivalent.

As for the formula itself, things get more complicated.

Parents are divided into two categories. Parent “A” is the parent with whom a child spends the least amount of overnights, on average, annually. Parent “B” is the parent with whom a child spends the greatest number of overnights, on average, annually.

The statute sets forth seven steps to determine the support credit:

• Step 1: Raise to the power of 3 the approximate number of annual overnights with parent A.
• Step 2: Raise to the power of 3 the approximate number of annual overnights with parent B.
• Step 3: Multiply the first number (Step 1) times parent B’s share of the combined support obligation outlined in Minn. Stat. sec. 518A.34.
• Step 4: Multiply the second number (Step 2) times parent A’s share of the combined support obligation outlined in Minn. Stat. sec. 518A.34.
• Step 5: Subtract the result of Step 4 from the result of Step 3.
• Step 6: Divide the result of Step 5 by the sum of Step 1 and Step 2.
• Step 7: If the result is a negative number, parent A is the obligor, and the negative number becomes its positive equivalent. The result is the basic support obligation. If the result is a positive number, parent B is the obligor and the result is the basic support obligation.

Here are a few takeaways:

First, understand what is meant by the “power of 3.” Power of 3 is a number multiplied by itself, and then multiplied by itself again. For example, 100 to the power of 3 is not 300 — it is 1 million (100 x 100 x 100). If a parent has an average of 265 days per year (they are parent B), Step 2 yields 18,609,625 (265 x 265 x 265).

Second, under the right circumstance, a parent with less parenting time may actually receive support from the parent with more parenting time (parent A receiving support from parent B). Much will depend upon the relative income of the parties.

Finally, the 2007 amendments were enacted, a sea of continuing education courses followed. Look for those in the near future. Further, it is likely that the Department of Human Services will create an online calculator to aid in the math.

Spousal maintenance modification

Although relatively short and straightforward, an amendment to Minn. Stat. sec. 518.552 (a newly created subdivision 6) provides for the possibility of substantial relief to spousal maintenance obligors.

Under the current statute, spousal maintenance obligations can only terminate upon a date agreed upon by the parties, a date ordered by the court, death of one of the parties, or remarriage of the recipient.

Effective Aug. 1, 2016, “spousal maintenance may be modified … based on the cohabitation by the maintenance obligee with another adult following dissolution of the marriage. The modification may consist of a reduction, suspension, reservation, or termination of maintenance.”

One interesting aspect of the new provision involves the number of options available to the court. Upon remarriage, alimony terminates. Three other alternatives (reduction, suspension, or reservation) may be contemplated upon a finding of cohabitation.

In determining “if maintenance should be modified due to cohabitation, the court shall consider: (1) whether the obligee would marry the cohabitant but for the maintenance award; (2) the economic benefit the obligee derives from the cohabitation; (3) the length of the cohabitation and the likely future duration of the cohabitation; and (4) the economic impact on the obligee if maintenance is modified and the cohabitation ends.”

The foregoing factors significantly narrow the prior version of the bill, but still open up the potential for some odd inquiries in discovery. The economic piece remains relatively straightforward. However, the court is left to speculate about what might become of a particular relationship. Just how will an obligor demonstrate that that their ex would remarry but for the receipt of alimony?

There are a few other caveats in the new law.

First, maintenance cannot be modified if cohabitation is among those who cannot, by law, marry due to familial relationship. Second, the parties to a divorce are free to limit the application of the cohabitation statute post-decree. Finally, no motion may be brought for one year following entry of the divorce decree, unless the parties otherwise agree in writing.

Conclusion

It’s been an interesting three years. Custody, parenting time, child support and spousal maintenance has been refined. A brief era of substantial change in family law has seemingly come to an end.

Jason and Cynthia Brown, husband and wife, are the founding shareholders in the Brown Law Offices, P.A., a northwest Twin Cities divorce and family law firm.