These videos come directly from the Federal Court website. They are a helpful resource when it comes to understanding the basics about bankruptcy.
Friday, November 18, 2011
Monday, November 7, 2011
Child Support Basics - Calculating and Modifying Child Support
Calculating and Modifying Child Support
What does the child support include?
--A monetary amount for the care, support, and education of the child, commonly referred to as “child support” or “basic support”
-- Medical support
-- Work- or education-related child care costs of the obligee, commonly referred to as “child care support”
-- Support arrears or reimbursement of public assistance payments already made on behalf of the child
What is medical support?
Medical support means providing appropriate health care coverage for the child, a cash contribution to reimburse for the cost of health care coverage or public coverage, or payment of the child’s uninsured and unreimbursed health care expenses. The court must determine whether a parent has appropriate health care coverage for the child. In making this determination, the court must consider the following factors:
(1) Is the coverage accessible?
(2) Is the coverage comprehensive?
(3) Is the coverage affordable?
(4) Does the child have any special medical needs?
If a parent has the child enrolled in health care coverage, the court must order that parent to continue coverage unless the parents request a change and the court finds that other coverage is more appropriate. If neither parent has appropriate health care coverage, the court must order the parents to contribute to the actual health care costs of the child on a pro rata basis. If the child is receiving any form of medical assistance, the parent with whom the child does not reside must pay a monthly amount toward the cost of medical assistance. Minn. Stat. § 518A.41, subd. 4.
How are child care costs handled?
The court must allocate work- and education-related child care costs to each parent in proportion to the parent’s combined parental income for child support (PICS). The costs will be adjusted by the estimated federal and state child care credits. If the obligor meets the income eligibility requirements for basic sliding fee child care, the court will order the obligor to pay the basic sliding fee monthly co-payment amount if this is less than the obligor’s proportionate share based on the combined PICS.
The amount allocated for child care is not subject to the automatic cost-of-living adjustment and can be modified if costs substantially increase or decrease. When the public authority provides child support enforcement services, the public authority must suspend collection of child care support when a party notifies the agency that the costs are not being incurred, and the agency has verified the information. The collection of child care support will resume when the agency is informed that the costs have resumed. A court may allow the obligor to care for the child while the parent with whom the child resides is working or attending school. This is not a reason to deviate from the guidelines.
How is the basic child support amount calculated?
Basic child support is calculated based on the combined gross income of both parents and is allocated based on each parent’s proportionate share of the combined parental income for child support. Minn. Stat. § 518A.34. The parents must provide documentation of earnings and income at the time they file their initial pleadings or motion documents.
A parent’s gross monthly income includes any form of periodic payment including wages, worker’s compensation benefits, unemployment benefits, military payments, pensions, disability benefits, self-employment income, and Social Security benefits for the parent and for the child if based on the parent’s eligibility. Gross income is calculated before any deductions for taxes, employment benefits, or retirement plans. Gross income does not include child support received, public assistance received, or the parent’s current spouse’s income. Court-ordered spousal maintenance obligations are deducted from monthly gross income.
The obligor is allowed a parenting expense adjustment based on the percentage of parenting time established by court order. If parenting time for the obligor and obligee is equal and parental incomes for child support are equal, no basic support will be ordered unless the court finds the expenses for the child are not equally shared. If the parenting times are equal, but the parents have different incomes, the parent with the greater income will pay basic support to the other parent.
The parents’ monthly incomes after adjustments are then added together to determine the combined parental income for child support (PICS). A combined basic support amount is determined by applying the combined PICS amount and the number of joint children to the guideline child support chart in the statutes. The chart provides the presumptive amount of combined basic support the parents should pay.
The guideline amount is then split proportionately between the parents based on their proportionate share of the combined PICS. The obligor’s proportionate share of the combined basic support amount is the amount of basic support the obligor will be ordered to pay.
After determining the support amount under the statutory guidelines, the court may look at several statutory criteria that allow a departure from that amount. These criteria, commonly known as “deviation factors,” include:
(1) the earnings, income, and resources of both parents,
(2) the extraordinary financial needs and resources and the physical and emotional
condition of the child,
(3) the child’s living standard if the parents were living together, but recognizing the new
existence of two households,
(4) whether the child has resided in a foreign country for more than one year that has a
substantially higher or lower cost of living than this country,
(5) who gets the dependent income tax exemption,
(6) the parents’ debts, and
(7) the obligor’s total payments for court-ordered child support.
Can the support amount change?
A child support order amount may change through a cost-of-living adjustment (COLA) or a
modification. Arrearages may also affect the monthly support payment.
Modifications. The state must notify parents to IV-D cases every three years of the right to request a review of their cases to see if a modification is appropriate. In addition to the right to request a review every three years, any party in IV-D and non-IV-D cases, including the county, may request a review to see if a modification is appropriate.
Modification of support can be obtained based on:
(1) substantially increased or decreased gross income of an obligee or obligor;
(2) substantially increased or decreased needs of an obligee, obligor, or child;
(3) receipt of public assistance;
(4) change in the cost of living for either parent;
(5) extraordinary medical expenses of a child;
(6) a change in the availability of appropriate health care coverage or a substantial
increase or decrease in health care coverage costs;
(7) addition of or substantial increase or decrease in child care costs; or
(8) emancipation of a child.
Calculation and Modification of child support are complicated issues. Having an experienced attorney to help you navigate the process will ensure you get the outcome that is right for you.
Don't overpay...Call 651-312-1201 to speak with an experienced attorney about establishing child support or modifying a support order TODAY.
What does the child support include?
--A monetary amount for the care, support, and education of the child, commonly referred to as “child support” or “basic support”
-- Medical support
-- Work- or education-related child care costs of the obligee, commonly referred to as “child care support”
-- Support arrears or reimbursement of public assistance payments already made on behalf of the child
What is medical support?
Medical support means providing appropriate health care coverage for the child, a cash contribution to reimburse for the cost of health care coverage or public coverage, or payment of the child’s uninsured and unreimbursed health care expenses. The court must determine whether a parent has appropriate health care coverage for the child. In making this determination, the court must consider the following factors:
(1) Is the coverage accessible?
(2) Is the coverage comprehensive?
(3) Is the coverage affordable?
(4) Does the child have any special medical needs?
If a parent has the child enrolled in health care coverage, the court must order that parent to continue coverage unless the parents request a change and the court finds that other coverage is more appropriate. If neither parent has appropriate health care coverage, the court must order the parents to contribute to the actual health care costs of the child on a pro rata basis. If the child is receiving any form of medical assistance, the parent with whom the child does not reside must pay a monthly amount toward the cost of medical assistance. Minn. Stat. § 518A.41, subd. 4.
How are child care costs handled?
The court must allocate work- and education-related child care costs to each parent in proportion to the parent’s combined parental income for child support (PICS). The costs will be adjusted by the estimated federal and state child care credits. If the obligor meets the income eligibility requirements for basic sliding fee child care, the court will order the obligor to pay the basic sliding fee monthly co-payment amount if this is less than the obligor’s proportionate share based on the combined PICS.
The amount allocated for child care is not subject to the automatic cost-of-living adjustment and can be modified if costs substantially increase or decrease. When the public authority provides child support enforcement services, the public authority must suspend collection of child care support when a party notifies the agency that the costs are not being incurred, and the agency has verified the information. The collection of child care support will resume when the agency is informed that the costs have resumed. A court may allow the obligor to care for the child while the parent with whom the child resides is working or attending school. This is not a reason to deviate from the guidelines.
How is the basic child support amount calculated?
Basic child support is calculated based on the combined gross income of both parents and is allocated based on each parent’s proportionate share of the combined parental income for child support. Minn. Stat. § 518A.34. The parents must provide documentation of earnings and income at the time they file their initial pleadings or motion documents.
A parent’s gross monthly income includes any form of periodic payment including wages, worker’s compensation benefits, unemployment benefits, military payments, pensions, disability benefits, self-employment income, and Social Security benefits for the parent and for the child if based on the parent’s eligibility. Gross income is calculated before any deductions for taxes, employment benefits, or retirement plans. Gross income does not include child support received, public assistance received, or the parent’s current spouse’s income. Court-ordered spousal maintenance obligations are deducted from monthly gross income.
The obligor is allowed a parenting expense adjustment based on the percentage of parenting time established by court order. If parenting time for the obligor and obligee is equal and parental incomes for child support are equal, no basic support will be ordered unless the court finds the expenses for the child are not equally shared. If the parenting times are equal, but the parents have different incomes, the parent with the greater income will pay basic support to the other parent.
The parents’ monthly incomes after adjustments are then added together to determine the combined parental income for child support (PICS). A combined basic support amount is determined by applying the combined PICS amount and the number of joint children to the guideline child support chart in the statutes. The chart provides the presumptive amount of combined basic support the parents should pay.
The guideline amount is then split proportionately between the parents based on their proportionate share of the combined PICS. The obligor’s proportionate share of the combined basic support amount is the amount of basic support the obligor will be ordered to pay.
After determining the support amount under the statutory guidelines, the court may look at several statutory criteria that allow a departure from that amount. These criteria, commonly known as “deviation factors,” include:
(1) the earnings, income, and resources of both parents,
(2) the extraordinary financial needs and resources and the physical and emotional
condition of the child,
(3) the child’s living standard if the parents were living together, but recognizing the new
existence of two households,
(4) whether the child has resided in a foreign country for more than one year that has a
substantially higher or lower cost of living than this country,
(5) who gets the dependent income tax exemption,
(6) the parents’ debts, and
(7) the obligor’s total payments for court-ordered child support.
Can the support amount change?
A child support order amount may change through a cost-of-living adjustment (COLA) or a
modification. Arrearages may also affect the monthly support payment.
Modifications. The state must notify parents to IV-D cases every three years of the right to request a review of their cases to see if a modification is appropriate. In addition to the right to request a review every three years, any party in IV-D and non-IV-D cases, including the county, may request a review to see if a modification is appropriate.
Modification of support can be obtained based on:
(1) substantially increased or decreased gross income of an obligee or obligor;
(2) substantially increased or decreased needs of an obligee, obligor, or child;
(3) receipt of public assistance;
(4) change in the cost of living for either parent;
(5) extraordinary medical expenses of a child;
(6) a change in the availability of appropriate health care coverage or a substantial
increase or decrease in health care coverage costs;
(7) addition of or substantial increase or decrease in child care costs; or
(8) emancipation of a child.
Calculation and Modification of child support are complicated issues. Having an experienced attorney to help you navigate the process will ensure you get the outcome that is right for you.
Don't overpay...Call 651-312-1201 to speak with an experienced attorney about establishing child support or modifying a support order TODAY.
Bankruptcy and Taxes: What you need to know.
It's not even Thanksgiving yet, but tax time is just around the corner. With many families struggling to pay the bills this holiday season, it is especially important to protect the assets you already have and are expecting to receive. If you have unpaid bills and creditors are harassing you, it is important to know how to protect your 2011 State, Federal and Property Tax Refunds.
Call our office at 651-312-1201 for a FREE consultation to find out how you can best protect this asset.
Tuesday, October 25, 2011
Child Support Basics - Direct from the Minnesota Legislature
This article is an excerpt from the Minnesota House Research Department's research brief, update September 2011:
The Players, Their Roles, and Getting Started
Federal Government
Minnesota Statutes have long provided for child support orders in cases where parents separate, divorce, or have never married. In 1975, the federal government also became involved in this issue. Congress enacted laws aimed at establishing uniformity and setting minimum standards in state child support enforcement systems. The goal was to reduce the demand for public assistance by more effectively enforcing child support orders. The federal government began providing funding to states with child support systems that met federal requirements. Currently, the federal government contributes about 74 percent of the state’s total child support enforcement funding. Most of that contribution is funded through Federal Financial Participation
(FFP), provided at a flat rate of 66 percent of state and county spending. The rest comes from financial incentives paid to the state and distributed to counties for paternity adjudication, establishment of support, child support enforcement, collections for both current support and arrears, and cost effectiveness. The state bears about 8 percent of the total cost and Minnesota’s counties shoulder the remaining 18 percent. Over the years, to qualify for federal child support enforcement funding, as well as public assistance funding (Temporary Assistance for Needy Families), Congress has required states to enact various kinds of legislation on child support. States also must comply with a variety of federal regulations related to funding.
State Government
Legislature. The legislature sets child support policy in Minnesota. State policy is greatly influenced by the federal requirements that are prerequisites to receiving federal welfare and child support funds. However, the federal requirements are often general in nature, leaving the details up to the legislature.
Department of Human Services. The Department of Human Services (DHS) is the primary executive branch agency responsible for overseeing Minnesota’s child support system, which is administered by county child support offices. The state agency:
runs the statewide computer system and maintains statewide data on child support;
provides training and assistance to the counties;
operates Minnesota’s centralized child support payment center;
manages and disburses federal and state child support funding;
maintains and manages administrative enforcement tools; and
provides overall guidance for Minnesota’s child support system.
Counties. Counties do a lot of the hands-on work in Minnesota’s child support system. Counties deal directly with the families involved. Child support services are typically located within the county human or social services department. The caseworkers are called child support officers or child support workers. They work closely with the county attorney, who provides legal advice and represents the county (not the child or parents) in child support actions.
Public Authority. Minnesota’s child support statutes refer to the “public authority.” The public authority means the local unit of government, acting on behalf of the state, that is responsible for child support enforcement. The public authority can be either DHS or the county child support office.
Judicial Branch. The judicial branch interprets and applies the child support laws in individual cases. There are a few different types of decision makers who preside over child support matters. The first is a district court judge—a regular judge having authority over all matters in district court. Second, Hennepin and Ramsey counties utilize family court referees—similar to district court judges, but with jurisdiction limited to family law. And third, there are child support magistrates who hear only child support matters. Minn. Stat. §§ 484.64; 484.65; 484.702.
Obligor and Obligee
“Obligor” is the legal term for the person ordered to pay maintenance or support. “Obligee” is the person to whom maintenance or support is owed. Usually the obligee is the parent with whom the child lives and the obligor is the other parent. But sometimes parents have joint physical custody or equal parenting time, each parent has physical custody of one or more of the couple’s children, or the child is not in either parent’s custody. For accuracy and clarity, this information brief uses the terms obligor and obligee. Minn. Stat. § 518A.26, subds. 13 and 14.
When is child support ordered?
If a married couple with minor children is divorced or obtains a legal separation, a court must enter a support order against one or both parents. If a married couple with minor children lives apart, one parent or the public authority may go to court to seek a support order against the other parent. Minn. Stat. § 518A.38, subd. 1.
If a child is born to parents who are not married to each other, paternity must be established before a court will order child support. Paternity can be established by court order or by the parents voluntarily executing a document called the Recognition of Parentage. Minn. Stat. §§ 257.66 and 257.75. In most cases where paternity is uncontested, establishing paternity is relatively simple. However, if paternity is contested or involves multiple parties, establishing paternity can be complex. A court may order an alleged father to pay temporary child support if genetic tests indicate a likelihood of paternity of 92 percent or greater. Minn. Stat. § 257.62, subd. 5. If a child is in the custody of an entity or an individual other than a parent, either by court order or parental consent, a support order can be entered against the parents in favor of the individual
or entity who has custody. Minn. Stat. § 256.87, subd. 5.
When does the county become involved?
The county is not a party in all child support cases. Many child support obligations are set and paid without county involvement. There are two ways the county gets involved. First, an obligee who receives public assistance must assign to the county the right to receive child support. Public assistance recipients, as a condition of continued eligibility for public assistance, must cooperate in establishing paternity and enforcing child support. Recipients may be exempted from this requirement if they can show good cause, such as a likelihood of physical or emotional harm. Minn. Stat. § 256.741.
The second way the county gets involved is if the obligor or obligee applies for child support enforcement services. Any obligee or obligor who does not receive public assistance can obtain the county’s services in establishing parentage, locating parents, and establishing and enforcing child support orders by completing an application and paying the application fee.
What fees are charged for child support collection?
Each applicant pays a $25 application fee when requesting child support services from the county agency. If the applicant receives public assistance, the fee is not required. If the county provides full child support services to an obligee, the obligee will be charged a cost recovery fee of 2 percent of the amount of child support and spousal maintenance collected. If the county provides child support enforcement services to an obligor, the obligor will be charged a cost recovery fee of 2 percent of the monthly court-ordered child support and spousal maintenance obligation. This cost recovery fee does not apply to persons receiving public
assistance or who received some forms of public assistance within the 24 months prior to getting support enforcement services. Applicants for child support services who are receiving some forms of public assistance will not be charged a cost recovery fee for up to 24 months after leaving the assistance program. Minn. Stat. § 518A.51. If an applicant for full child support services does not wish to pay the 2 percent fee, that person may apply for income withholding-only services. Minn. Stat. § 518A.53, subd. 4.
If an obligee or obligor prefers to have only income withholding services, instead of full child support services, that person may apply for income withholding-only services. A monthly fee of $15 is charged to the obligor for this service. Minn. Stat.§ 518A.53, subd. 4. In addition, in cases where neither the obligee or obligor has ever received public assistance, the county must assess an annual $25 fee when at least $500 of support has been collected. Minn. Stat. § 518A.51.
What is IV-D?
Because the original federal legislation on child support added a “Title IV-D” to the Social Security Act, county child support offices, which are subsidized by the federal program, are sometimes called “IV-D agencies.” Child support enforcement services provided by IV-D agencies are often referred to as “IV-D services.” Cases in which the county is a party are called “IV-D cases.” IV-D cases are divided into public assistance cases (PA) and those where the obligor or obligee simply applies for support enforcement (NPA, or nonpublic assistance). IV-D cases include spousal maintenance if the child for whom child support is ordered is or was living with the obligee, and spousal maintenance-only cases when the only service needed is income withholding. A case that is for income withholding-only services is referred to as a “non-IV-D
case.” Minn. Stat. §§ 256.741; 256.87; 518A.26, subds. 10 and 21; and various other provisions of chapters 518 and 518A.
How is child support ordered?
As previously stated, child support is ordered by a district court judge, district court referee, or child support magistrate. Child support magistrates preside over IV-D cases only (again, cases where the county is involved because the obligee receives public assistance or the obligor or obligee asks the county for child support enforcement services). Non-IV-D cases or IV-D cases where additional contested issues are involved (such as custody or parenting time), are heard by a judge or referee in district court. Minn. Stat. §§ 484.702 and 518A.46. Child support cases heard by child support magistrates are governed by a set of rules aimed to
expedite and simplify the process. Accordingly, the procedures are called the “expedited process” or the “expedited child support hearing process.” The rules for the expedited process are promulgated by the Minnesota Supreme Court. Minn. Gen. R. Prac. 351 to 379.
Magistrates, judges, and referees all have the power to establish, modify, or enforce child support orders. In every case, the orders can be appealed to the Minnesota Court of Appeals. In cases heard by magistrates, orders can be appealed to district court or directly to the Minnesota Court of Appeals. In Hennepin County, referee orders and decrees can be appealed directly to the Minnesota Court of Appeals. Minn. Stat. § 484.65, subd. 9. For simplicity, this information brief uses the term “court” when referring to both the district court and the expedited process. A person seeking to obtain, modify, or enforce a child support order should contact his or her county child support office or a private attorney for direction on how to proceed.
Don't go it alone! Call Linnan and Associates at 651-312-1201 for a free consultation with an experienced and knowledgeable attorney who can make sure you are treated fairly.
The Players, Their Roles, and Getting Started
Federal Government
Minnesota Statutes have long provided for child support orders in cases where parents separate, divorce, or have never married. In 1975, the federal government also became involved in this issue. Congress enacted laws aimed at establishing uniformity and setting minimum standards in state child support enforcement systems. The goal was to reduce the demand for public assistance by more effectively enforcing child support orders. The federal government began providing funding to states with child support systems that met federal requirements. Currently, the federal government contributes about 74 percent of the state’s total child support enforcement funding. Most of that contribution is funded through Federal Financial Participation
(FFP), provided at a flat rate of 66 percent of state and county spending. The rest comes from financial incentives paid to the state and distributed to counties for paternity adjudication, establishment of support, child support enforcement, collections for both current support and arrears, and cost effectiveness. The state bears about 8 percent of the total cost and Minnesota’s counties shoulder the remaining 18 percent. Over the years, to qualify for federal child support enforcement funding, as well as public assistance funding (Temporary Assistance for Needy Families), Congress has required states to enact various kinds of legislation on child support. States also must comply with a variety of federal regulations related to funding.
State Government
Legislature. The legislature sets child support policy in Minnesota. State policy is greatly influenced by the federal requirements that are prerequisites to receiving federal welfare and child support funds. However, the federal requirements are often general in nature, leaving the details up to the legislature.
Department of Human Services. The Department of Human Services (DHS) is the primary executive branch agency responsible for overseeing Minnesota’s child support system, which is administered by county child support offices. The state agency:
runs the statewide computer system and maintains statewide data on child support;
provides training and assistance to the counties;
operates Minnesota’s centralized child support payment center;
manages and disburses federal and state child support funding;
maintains and manages administrative enforcement tools; and
provides overall guidance for Minnesota’s child support system.
Counties. Counties do a lot of the hands-on work in Minnesota’s child support system. Counties deal directly with the families involved. Child support services are typically located within the county human or social services department. The caseworkers are called child support officers or child support workers. They work closely with the county attorney, who provides legal advice and represents the county (not the child or parents) in child support actions.
Public Authority. Minnesota’s child support statutes refer to the “public authority.” The public authority means the local unit of government, acting on behalf of the state, that is responsible for child support enforcement. The public authority can be either DHS or the county child support office.
Judicial Branch. The judicial branch interprets and applies the child support laws in individual cases. There are a few different types of decision makers who preside over child support matters. The first is a district court judge—a regular judge having authority over all matters in district court. Second, Hennepin and Ramsey counties utilize family court referees—similar to district court judges, but with jurisdiction limited to family law. And third, there are child support magistrates who hear only child support matters. Minn. Stat. §§ 484.64; 484.65; 484.702.
Obligor and Obligee
“Obligor” is the legal term for the person ordered to pay maintenance or support. “Obligee” is the person to whom maintenance or support is owed. Usually the obligee is the parent with whom the child lives and the obligor is the other parent. But sometimes parents have joint physical custody or equal parenting time, each parent has physical custody of one or more of the couple’s children, or the child is not in either parent’s custody. For accuracy and clarity, this information brief uses the terms obligor and obligee. Minn. Stat. § 518A.26, subds. 13 and 14.
When is child support ordered?
If a married couple with minor children is divorced or obtains a legal separation, a court must enter a support order against one or both parents. If a married couple with minor children lives apart, one parent or the public authority may go to court to seek a support order against the other parent. Minn. Stat. § 518A.38, subd. 1.
If a child is born to parents who are not married to each other, paternity must be established before a court will order child support. Paternity can be established by court order or by the parents voluntarily executing a document called the Recognition of Parentage. Minn. Stat. §§ 257.66 and 257.75. In most cases where paternity is uncontested, establishing paternity is relatively simple. However, if paternity is contested or involves multiple parties, establishing paternity can be complex. A court may order an alleged father to pay temporary child support if genetic tests indicate a likelihood of paternity of 92 percent or greater. Minn. Stat. § 257.62, subd. 5. If a child is in the custody of an entity or an individual other than a parent, either by court order or parental consent, a support order can be entered against the parents in favor of the individual
or entity who has custody. Minn. Stat. § 256.87, subd. 5.
When does the county become involved?
The county is not a party in all child support cases. Many child support obligations are set and paid without county involvement. There are two ways the county gets involved. First, an obligee who receives public assistance must assign to the county the right to receive child support. Public assistance recipients, as a condition of continued eligibility for public assistance, must cooperate in establishing paternity and enforcing child support. Recipients may be exempted from this requirement if they can show good cause, such as a likelihood of physical or emotional harm. Minn. Stat. § 256.741.
The second way the county gets involved is if the obligor or obligee applies for child support enforcement services. Any obligee or obligor who does not receive public assistance can obtain the county’s services in establishing parentage, locating parents, and establishing and enforcing child support orders by completing an application and paying the application fee.
What fees are charged for child support collection?
Each applicant pays a $25 application fee when requesting child support services from the county agency. If the applicant receives public assistance, the fee is not required. If the county provides full child support services to an obligee, the obligee will be charged a cost recovery fee of 2 percent of the amount of child support and spousal maintenance collected. If the county provides child support enforcement services to an obligor, the obligor will be charged a cost recovery fee of 2 percent of the monthly court-ordered child support and spousal maintenance obligation. This cost recovery fee does not apply to persons receiving public
assistance or who received some forms of public assistance within the 24 months prior to getting support enforcement services. Applicants for child support services who are receiving some forms of public assistance will not be charged a cost recovery fee for up to 24 months after leaving the assistance program. Minn. Stat. § 518A.51. If an applicant for full child support services does not wish to pay the 2 percent fee, that person may apply for income withholding-only services. Minn. Stat. § 518A.53, subd. 4.
If an obligee or obligor prefers to have only income withholding services, instead of full child support services, that person may apply for income withholding-only services. A monthly fee of $15 is charged to the obligor for this service. Minn. Stat.§ 518A.53, subd. 4. In addition, in cases where neither the obligee or obligor has ever received public assistance, the county must assess an annual $25 fee when at least $500 of support has been collected. Minn. Stat. § 518A.51.
What is IV-D?
Because the original federal legislation on child support added a “Title IV-D” to the Social Security Act, county child support offices, which are subsidized by the federal program, are sometimes called “IV-D agencies.” Child support enforcement services provided by IV-D agencies are often referred to as “IV-D services.” Cases in which the county is a party are called “IV-D cases.” IV-D cases are divided into public assistance cases (PA) and those where the obligor or obligee simply applies for support enforcement (NPA, or nonpublic assistance). IV-D cases include spousal maintenance if the child for whom child support is ordered is or was living with the obligee, and spousal maintenance-only cases when the only service needed is income withholding. A case that is for income withholding-only services is referred to as a “non-IV-D
case.” Minn. Stat. §§ 256.741; 256.87; 518A.26, subds. 10 and 21; and various other provisions of chapters 518 and 518A.
How is child support ordered?
As previously stated, child support is ordered by a district court judge, district court referee, or child support magistrate. Child support magistrates preside over IV-D cases only (again, cases where the county is involved because the obligee receives public assistance or the obligor or obligee asks the county for child support enforcement services). Non-IV-D cases or IV-D cases where additional contested issues are involved (such as custody or parenting time), are heard by a judge or referee in district court. Minn. Stat. §§ 484.702 and 518A.46. Child support cases heard by child support magistrates are governed by a set of rules aimed to
expedite and simplify the process. Accordingly, the procedures are called the “expedited process” or the “expedited child support hearing process.” The rules for the expedited process are promulgated by the Minnesota Supreme Court. Minn. Gen. R. Prac. 351 to 379.
Magistrates, judges, and referees all have the power to establish, modify, or enforce child support orders. In every case, the orders can be appealed to the Minnesota Court of Appeals. In cases heard by magistrates, orders can be appealed to district court or directly to the Minnesota Court of Appeals. In Hennepin County, referee orders and decrees can be appealed directly to the Minnesota Court of Appeals. Minn. Stat. § 484.65, subd. 9. For simplicity, this information brief uses the term “court” when referring to both the district court and the expedited process. A person seeking to obtain, modify, or enforce a child support order should contact his or her county child support office or a private attorney for direction on how to proceed.
Don't go it alone! Call Linnan and Associates at 651-312-1201 for a free consultation with an experienced and knowledgeable attorney who can make sure you are treated fairly.
Tuesday, October 4, 2011
Should I File an Individual or a Joint Bankruptcy?
Money problems often accompany divorce. The question for most couples becomes, should you file bankruptcy first, or wait until the divorce is filed or concluded?
The answer is: it depends.
The answer is: it depends.
Married couples, even if they are not living together, can file for bankruptcy together. This often saves money, because only one fee is charged. After a divorce, the couple can no longer file bankruptcy together, and must each file a petition as single. Thus, you can save a filing fee if you file before the divorce.
But, there are a number of issues that can arise with regard to property and debt division in a divorce decree. Often in divorce decrees there is language that states that one spouse will hold the other spouse harmless for debts that are being divided in the divorce. In a chapter 7 bankruptcy, a debtor cannot discharge the "hold harmless" obligation to an ex-spouse established in a divorce or legal separation decree. However, the debtor can discharge any personal liability to any joint creditor. Think of the obligation to hold harmless and the personal liability on the debt as two distinct things. The obligation to hold harmless cannot be discharged in a chapter 7 bankruptcy, but the personal liability on the debt can be discharged in a chapter 7 bankruptcy.
A chapter 13 bankruptcy allows a debtor to discharge a hold harmless obligation created by a divorce decree, so this only applies when the debtor is already divorced. A chapter 13 allows the debtor to discharge both the hold harmless obligation and the personal liability on the debt.
If your marriage is breaking up, it might be nice to clean up your debts too and to get a true fresh start. Call Linnan and Associates for a FREE assessment: 651-312-1201
Wednesday, August 24, 2011
Bankruptcy Information
Discharge of Debts
This is the final stage of bankruptcy where the bankruptcy is complete and all debts are discharged (forgiven).
- Under Chapter 7, a debtor normally receives a discharge of all qualified debts a few months after the bankruptcy petition is filed – after the liquidation of assets, if there were any.
- Under Chapter 13, the debtor receives a discharge of debts after his or her repayment plan has been completed.
Handling Assets and Debts
This stage of the bankruptcy process will differ based upon whether you are filing for Chapter 7 or Chapter 13 debt relief.- Liquidating Assets Under Chapter 7: In Chapter 7 bankruptcy, the debtor is required to turn over to the trustee all assets identified as “non-exempt”. Bankruptcy law allows for non-exempt assets to be sold (after an appraisal) and the proceeds of that sale to be given to creditors according to priorities set by bankruptcy law. If there are no non-exempt assets (and there often are not), creditors will receive nothing. If a debtor in Chapter 7 wants to retain secured property (keep some property for which he or she has a loan), the debtor can sign a written “reaffirmation agreement” agreeing to repay the debt. Another option to retain non-exempt property is to redeem it for the fair market value.
- Discharge of Debt Under Chapter 13: Under Chapter 13 debtors retain their property and make payments to the bankruptcy trustee, who will make payments to creditors. The debtor is protected from lawsuits, garnishments, and other creditor actions while the Chapter 13 repayment plan is in place.
Meeting of Creditors
A person filing for bankruptcy should expect to attend at least one bankruptcy hearing. This hearing is referred to as the “meeting of creditors” and is held approximately 30 days after the bankruptcy petition is filed with the court.
At that meeting of creditors, your creditors will have an opportunity to question the details of financial documents, debts and assets. They may ask the court to deny the bankruptcy petition. They will certainly seek to have their debt paid as fully and favorably as possible.
In the case of Chapter 13, a confirmation hearing will be held in which the court approves or disapproves the debtor’s proposed repayment plan. This hearing takes place before the bankruptcy judge.
At that meeting of creditors, your creditors will have an opportunity to question the details of financial documents, debts and assets. They may ask the court to deny the bankruptcy petition. They will certainly seek to have their debt paid as fully and favorably as possible.
In the case of Chapter 13, a confirmation hearing will be held in which the court approves or disapproves the debtor’s proposed repayment plan. This hearing takes place before the bankruptcy judge.
Role of the Trustee
While a bankruptcy judge may decide issues such as eligibility to file, the duties (rights) of the debtor, and whether a debtor should receive a discharge of debts, in most cases people will have limited contact with the bankruptcy judge.
- In Chapter 7, you will not see a judge unless the bankruptcy is contested by your creditors
- In Chapter 13, you will appear before the bankruptcy judge at a plan confirmation hearing
Order of Relief
When your bankruptcy petition is filed it will initiate an order for relief, which includes an “automatic stay.” An automatic stay prevents your creditors from taking any further collection actions against you. While the stay is in place, creditors must stop harassing phone calls, stop any legal proceedings to repossess your car or other property, stop any foreclosure proceedings, and stop wage garnishment.
The automatic stay is not permanent, and it does not prevent every debt collection action against you in every situation. Talk with your bankruptcy lawyer about your specific situation.
The automatic stay is not permanent, and it does not prevent every debt collection action against you in every situation. Talk with your bankruptcy lawyer about your specific situation.
Filing for Bankruptcy
The first step in the bankruptcy process is preparing and filing a bankruptcy petition with the clerk of the U.S. Bankruptcy Court. In the petition, you are asking for protection under Chapter 7 or Chapter 13 of the U.S. Bankruptcy Code. Along with the bankruptcy petition, you must include all required schedules and statements and pay the filing fee. These statements provide information about:
- Your debts (liabilities), such as mortgages and car loans, credit card debt, medical bills, student loans, tax debts, personal loans, retirement fund loans, loans against life insurance policies, etc.
- Monthly living expenses, including alimony and child support payments
- Assets and income from every source
Credit Counseling
Under the 2005 bankruptcy law, there are two credit counseling steps for a debtor to fulfill before they can file for bankruptcy: a) an “individual or group briefing” from a nonprofit budget and credit counseling agency, and b) an instructional course in personal financial management.
Minnesota Bankruptcy Exemptions
The Minnesota bankruptcy exemptions chart details the property you can exempt or protect from creditors. You may exempt any property that falls into one of the exemptions categories below, up to the dollar amount listed. You will be able to kept this exempted property after you file bankruptcy. Please note that there are certain debts which you will not be able to erase in bankruptcy.
In Minnesota, you also have the choice of using the federal exemption statutes instead of your Minnesota exemptions.
An exemption limit applies to any equity you have in the property. Equity is the difference between the value of the property and what is owed on the property. For example, a car valued at $5000 with a loan of $4500 has an equity value of only $500.
If the property is secured by a loan, such as a car or home, and you are current on the payments, the equity is covered by your exemptions, and you elect to keep making payments on the loan you generally can keep this property through the bankruptcy. If all the equity is not covered by your exemptions the trustee may elect to liquidate this asset and distribute the assets. Generally, in this case, you would be entitled to the value of your exemption in the asset as a cash payment.
Bankruptcy law allows married couples filing jointly to each claim a full set of exemptions, unless otherwise noted.
To keep non-exempt property, a debtor must generally pay the trustee the value of the non-exempt property.
You also may use certain federal exemptions in addition to your Minnesota exemptions.
In Minnesota, you also have the choice of using the federal exemption statutes instead of your Minnesota exemptions.
An exemption limit applies to any equity you have in the property. Equity is the difference between the value of the property and what is owed on the property. For example, a car valued at $5000 with a loan of $4500 has an equity value of only $500.
If the property is secured by a loan, such as a car or home, and you are current on the payments, the equity is covered by your exemptions, and you elect to keep making payments on the loan you generally can keep this property through the bankruptcy. If all the equity is not covered by your exemptions the trustee may elect to liquidate this asset and distribute the assets. Generally, in this case, you would be entitled to the value of your exemption in the asset as a cash payment.
Bankruptcy law allows married couples filing jointly to each claim a full set of exemptions, unless otherwise noted.
To keep non-exempt property, a debtor must generally pay the trustee the value of the non-exempt property.
You also may use certain federal exemptions in addition to your Minnesota exemptions.
Criminal Law Freqently Asked Questions
From DUI’s to felony charges, Linnan and Associates will represent you with passion and expertise. We strive to provide exceptional advocacy for a price that won’t break the bank. Call today for a free consultation.
Frequently Asked Questions
A Petty Misdemeanor is a non-criminal offense punishable by a maximum $300 fine. You
cannot go to jail for a petty misdemeanor.
A Misdemeanor is punishable by up to 90 days in jail, and/or a $1000 fine.
A Gross Misdemeanor is punishable by up to one year in jail and/or a $3000 fine.
A Felony is punishable by over one year in prison and/or more than a $3000 fine.
Linnan & Associates attorneys are experienced in defending people charged with all levels of offenses.
I have been charged with a crime. What are my rights?
You have an absolute right to have an attorney represent you.
You do not have to talk to police about the crime you have been charged with. If you choose to talk to police you have a right to have an attorney with you when you do so.
Linnan & Associates attorneys can assist you in making that decision.
You have a right to a trial by either a judge or a jury depending on the charges.
At the trial, the State would have to prove your guilt beyond a reasonable doubt. If you choose to have a jury trial, all members of the jury would have to agree that you are guilty.
The State must bring their witnesses against you into court and you have a right to question those witnesses.
You have the right to subpoena witnesses to come into court and testify on your behalf.
You have the right to either testify at your trial or remain silent. If you choose to remain silent, neither the prosecuting attorney nor the judge may comment to the jury on your decision.
You have a right to a pre-trial hearing where you can contest the evidence that the State wants to use against you at the trial.
These are very important decisions that the attorneys at Linnan & Associates can assist you with.
What will happen if I am convicted?If you are convicted of a crime the court will impose a sentence that may include any of the following:
Traffic offenses and DWI offenses may result in your driver’s license being suspended or revoked.
If you are convicted of a felony, you will not be allowed to possess a firearm under state and federal law.
Conviction of certain offenses can require you to register with the State as a predatory offender.
Conviction of certain offenses may result in suspension or revocation of certain professional licenses.
If your decision is ultimately to plead guilty, Linnan & Associates attorneys can negotiate the best possible outcome for you and can help you understand or avoid the collateral consequences of a conviction.
What can a criminal defense attorney do for me?
The legal system is complicated and confusing. A criminal defense attorney, such as the attorneys at Linnan & Associates can:
There are four different levels of offenses in Minnesota: the Petty Misdemeanor, Misdemeanor, Gross Misdemeanor, and Felony. They are defined by the possible sentence you could receive if you were convicted of the offense.
Frequently Asked Questions
A Petty Misdemeanor is a non-criminal offense punishable by a maximum $300 fine. You
cannot go to jail for a petty misdemeanor.
A Misdemeanor is punishable by up to 90 days in jail, and/or a $1000 fine.
A Gross Misdemeanor is punishable by up to one year in jail and/or a $3000 fine.
A Felony is punishable by over one year in prison and/or more than a $3000 fine.
Linnan & Associates attorneys are experienced in defending people charged with all levels of offenses.
I have been charged with a crime. What are my rights?
You have an absolute right to have an attorney represent you.
You do not have to talk to police about the crime you have been charged with. If you choose to talk to police you have a right to have an attorney with you when you do so.
Linnan & Associates attorneys can assist you in making that decision.
You have a right to a trial by either a judge or a jury depending on the charges.
At the trial, the State would have to prove your guilt beyond a reasonable doubt. If you choose to have a jury trial, all members of the jury would have to agree that you are guilty.
The State must bring their witnesses against you into court and you have a right to question those witnesses.
You have the right to subpoena witnesses to come into court and testify on your behalf.
You have the right to either testify at your trial or remain silent. If you choose to remain silent, neither the prosecuting attorney nor the judge may comment to the jury on your decision.
You have a right to a pre-trial hearing where you can contest the evidence that the State wants to use against you at the trial.
These are very important decisions that the attorneys at Linnan & Associates can assist you with.
What will happen if I am convicted?If you are convicted of a crime the court will impose a sentence that may include any of the following:
- Jail or prison time
- Fines
- Community Service
- Electronic Home Monitoring
- Probation conditions, such as:
- No-contact orders
- Education requirements (Anger Management, DWI Education, Victim Impact Panel Attendance, etc.)
- Abstinence from chemical use (alcohol and drugs)
Traffic offenses and DWI offenses may result in your driver’s license being suspended or revoked.
If you are convicted of a felony, you will not be allowed to possess a firearm under state and federal law.
Conviction of certain offenses can require you to register with the State as a predatory offender.
Conviction of certain offenses may result in suspension or revocation of certain professional licenses.
If your decision is ultimately to plead guilty, Linnan & Associates attorneys can negotiate the best possible outcome for you and can help you understand or avoid the collateral consequences of a conviction.
What can a criminal defense attorney do for me?
The legal system is complicated and confusing. A criminal defense attorney, such as the attorneys at Linnan & Associates can:
- Represent you while your case is being investigated and try to prevent criminal charges
- Challenge evidence against you and make sure illegally obtained evidence or inadmissible evidence is not used at your trial.
- Determine whether you have any legal defenses to the crime you have been charged with that could result in the charges being dismissed or an acquittal at trial.
- Negotiate with the prosecutor to get you the best outcome possible if you decide to plead guilty to the charges.
There are four different levels of offenses in Minnesota: the Petty Misdemeanor, Misdemeanor, Gross Misdemeanor, and Felony. They are defined by the possible sentence you could receive if you were convicted of the offense.
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