A child support deviation occurs when the court issues a child support order that deviates or departs or is somehow different from the Minnesota Child Support Guidelines. By definition, a deviation is supposed to be rare. The law presumes that the parties’ basic child support obligation will be calculated using the Child Support Guidelines. See Minn. Stat. 518A.35, subd. 2 (2008).
While the Guidelines are intended to serve as the primary basis for child support calculation, a court may deviate from the Guidelines if it makes written findings explaining the reason for the deviation and how the deviation will serve the best interests of the child. See Minn. Stat. 518A.37, subd. 2 (2008). The legislature has given the courts the power to deviate from the Guidelines in order to ensure prompt and regular payment of child support and to prevent either parent (or the joint child) from living in poverty by giving consideration to those special situations where the new child support law may not provide a fair and equitable result.
In deciding whether to deviate from the Guidelines, the court must consider the following factors:
1. All earnings, income, circumstances, and resources of each parent, including real and personal property, but excluding income from excess employment of the obligor or obligee that meets the criteria of section 518A.29, paragraph (b);
2. The extraordinary financial needs and resources, physical and emotional condition, and educational needs of the child to be supported;
3. The standard of living the child would enjoy if the parents were currently living together, but recognizing that the parents now have separate households;
4. Whether the child resides in a foreign country for more than one year that has a substantially higher or lower cost of living than this country;
5. Which parent receives the income taxation dependency exemption and the financial benefit the parent receives from it;
6. The parents’ debts as provided in subdivision 2; and
7. The obligor’s total payments for court-ordered child support exceed the limitations set forth in section 571.922.
Deviations can be tricky. Whether the court decides to grant a deviation depends largely upon the facts of a particular case.
by Robert W. Gadtke