Child Support Modification (including medical support & tax exemption)

For a checklist prepared by MN CLE regarding preparing for a modification of CS, click here: Checklist

Modification of Child Support Order

(Everything in this article is from 518A.39 MODIFICATION OF ORDERS OR DECREES)

Modification of Child Support is a 2-step process.

1. Must show that there has been a substantial change in circumstances (Minn. Stat. § 518A.39, subd. 2(a); AND
2. The change makes the existing order unreasonable and unfair (Minn. Stat. § 518A.39. Subd. 2(b))

Legal language / Case Law regarding modification of Child Support:

A party seeking to modify child support “has the burden of demonstrating both a substantial change in circumstances and the unfairness and unreasonableness of the order because of the change.” Rose v. Rose, 765 N.W.2d 142, 145 (Minn. App. 2009). It is presumed that a substantial change in circumstances has occurred, and the current order is unreasonable or unfair if “the application of the child support guidelines in [Minn. Stat. § 518A.35 (2022)], to the current circumstances of the parties results in a calculated court order that is at least 20 percent and at least $75 per month higher or lower than the current support order.” Minn. Stat. § 518A.39, subd. 2(b)(1); see also Palmquist v. Devens, 907 N.W.2d 204, 206 (Minn. App. 2017).

Other Cases: Martin v. Martin, 401 N.W.2d 107 (Minn. App. 1987) ;   Bormann v. Bormann, 644 N.W.2d 478 (Minn. App. 2002) ; and County of Grant v. Koser, 809 N.W.2d 237 (Minn. App. 2012)

Reasons an order may be modified

Unreasonable and unfair: A court order for child support may be changed by showing that the current support order is unreasonable and unfair because of:

• There is a substantial increase or decrease in either parent’s gross income, including a job loss;
• There is a substantial increase or decrease in the needs of a parent or the child that are subject to these proceedings;
• One parent or the child receives public assistance
• There is a change in the cost-of-living for either parent
• There are extraordinary medical expenses for the child
• There is a change in the availability of health care coverage for the child or a substantial increase or decrease in health care coverage costs
• The addition of work-related or education-related child care expenses or a substantial change in work-related or education-related child care expenses of the parent who is ordered to pay support
• The child is emancipated.

Presumed substantial changes: It is presumed that there has been a substantial change in circumstances and the current order shall be rebuttably presumed to be unreasonable and unfair if:

• The application of the child support guidelines in section 518A.35, to the current circumstances of the parties results in a calculated court order that is at least 20 percent and at least $75 per month higher or lower than the current support order or, if the current support order is less than $75, it results in a calculated court order that is at least 20 percent per month higher or lower;
• the medical support provisions of the order established under section 518A.41 are not enforceable by the public authority or the obligee;
• the existing support obligation is in the form of a statement of percentage and not a specific dollar amount;
• the gross income of an obligor or obligee has decreased by at least 20 percent through no fault or choice of the party; or

Termination of child support upon child’s emancipation (turning 18 / graduation):

• If a child support obligation is listed as a specific amount per child, then that obligation will terminate automatically and without any action by the obligor to reduce, modify, or terminate the order upon the emancipation of the child as provided under 518A.26, subdivision 5. (This is not how orders are generally written)
  • Example: Father shall pay $200 per month in basic child support for each of the two children, for a total of $400 per month in basic child support.
    • In this situation, when the oldest child is emancipated, the $200 obligation would automatically end.

• A child support obligation for two or more children that does NOT specify a specific amount per child will continue in the full amount until the emancipation of the youngest child, or until otherwise ordered by the Court. (This is the most common way orders are written)
  • Example: The parties have 4 children and child support is calculated per the MN Guidelines. As a result, the initial order indicates that Mother shall pay to Father $800 per month in basic child support. Note – the order does not say $200 per child, it just says $800 in basic child support.
    • In this situation, mother would continue paying $800 per month until the youngest child is 18/graduates from high school, at which point the child support obligation would end.
    • There is no automatic reduction in child support once the oldest (or 2nd oldest, or 3rd oldest) child is emancipated.
    • Any changes/reduction to the child support would have to be done by filing a motion and the Court ordering it.
    • The obligor may request a modification of the obligor’s child support order upon the emancipation of a child if there are still minor children under the order. The child support obligation shall be determined based on the income of the parties at the time the modification is sought.

How often can a child support order be modified?

A request for child support to be modified can be made if any of the above reasons are applicable / suspected.

For IV-D child support cases, the parties are mailed a notice of the right to request a review of their case for medication every 3 years, but either party may ask for a review of their case earlier than 3 years. The county will notify the party who requested the review whether they will proceed with a modification or if the case does not meet the county’s criteria to proceed. A party may proceed with their own modification motion if they cannot wait for the county to review/response OR if the county denies the review. The County may also initiate a review upon learning of a change of circumstances WITHOUT a request by a party.

Back Date / Start Date when modifying child support

Generally, modifications of child support orders are only retroactive to the date of service of the motion on all parties (including county if applicable) Minn. Stat. § 518A.39, Subd. 2(f) If we are the ones wanting the modification, the sooner we serve the NOMM document, the better. 

Exceptions:

• If the parties both agree to a different retroactive date Minn. Stat. § 518A.39, subd. 2(f)
• A decrease in child care costs may be retroactive to the date the cost decreased Minn. Stat. § 518A.39, subd. 7

Satisfaction of Support: There may also be a basis for ending (satisfaction) of support if:

• The child is living with the party ordered to pay child support;
• the child has been integrated into the home of the paying parenting with the consent of the parent who receives child support; and
• The child support payment were NOT assigned to the public authority (state or county) based on receipt of public assistance.

What if someone has a new baby?

A child support order is not presumptively modifiable solely because an obligor or obligee becomes responsible for the support of an additional nonjoint child, which is born after an existing order. Section 518A.33 shall be considered if other grounds are alleged which allow a modification of support.

Is an evidentiary hearing required to modify cs?

The court need not hold an evidentiary hearing on a motion for modification of support.

What if the person paying child support dies?

Unless otherwise agreed in writing or expressly provided in the order, provisions for the support of a child are not terminated by the death of a parent obligated to support the child. When a parent obligated to pay support dies, the amount of support may be modified, revoked, or commuted to a lump-sum payment, to the extent just and appropriate in the circumstances.

Affidavit and Exhibits for Motion to Modify

Starting Point for Affidavit: Minn. R. Gen. Prac. 372.02, subd. 3 and Minn. Stat. § 518A.45, subd. 3

• Detailed facts supporting request for relief
• Other support obligations of obligor
• Name and address of parties’ employers
• Gross income of parties
• Health insurance coverage and cost
• Child care costs
• Public assistance received, if any
• Exhibits that will help the judge make appropriate findings:
  • AN UPDATED CHILD SUPPORT CALCULATION
  • tax returns
  • W2s
  • pay stubs
  • K1s
  • 1099s
  • Verification of child care costs
  • Health care plan information
  • Profit Loss statements / Bank Statements (if self-employed)
  • If modification based on job loss, include history of job search, applications, interviews/rejections
  • medical statement about ability to work/ work restrictions
  • If parenting time changed, specifically include the number of overnights each party has and the schedule

Medical Support and/or Tax Credit  Only Modification

The medical support terms of a support order and determination of the child dependency tax credit may be modified without modification of the full order for support if the order has been established or modified in its entirety within three years from the date of the motion, and upon a showing of one or more of the following:

• a change in the availability of appropriate health care coverage or a substantial increase or decrease in health care coverage costs;
• a change in the eligibility for medical assistance under chapter 256B;
• a party’s failure to carry court-ordered coverage, or to provide other medical support as ordered;
• the federal child dependency tax credit is not ordered for the same parent who is ordered to carry health care coverage; or
• the federal child dependency tax credit is not addressed in the order and the noncustodial parent is ordered to carry health care coverage.

For a motion brought under this subdivision, a modification of the medical support terms of an order may be made retroactive only with respect to any period during which the petitioning party has pending a motion for modification, but only from the date of service of notice of the motion on the responding party and on the public authority if public assistance is being furnished or the county attorney is the attorney of record.

The court need not hold an evidentiary hearing on a motion brought under this subdivision for modification of medical support only.

Sections 518.14 and 518A.735 shall govern the award of attorney fees for motions brought under this subdivision.

The PICS originally stated in the order being modified shall be used to determine the modified medical support order under section 518A.41 for motions brought under this subdivision.