Minnesota Divorce and Family Law Blog

Parenting Rights and Responsibilities

As a parent, you have the right to custody of, or parenting time with, your child; and the responsibility to financially support your child. Many divorced or separated parents believe that if a parent fails to pay child support, they are not entitled to see the child; or if they do not have the opportunity to see their child, then they should not have to pay child support.

In formal family court proceedings, a parent's child support payment record and a parent's right to see the child are not connected. I have heard many family court judges say that you cannot "buy" the right to see your child. The family court considers parenting time to the child's right, as much (or more) as it is the parent's right. The child has no control over whether child support is on time, adequate, or set at too high a level. Regardless of the financial circumstances, the child and the parent have the right to see each other.

When a parent's access to a child is restricted, it will not be for financial reasons, but reasons of personal safety and well-being of the child. So, in cases in which the parent's access is restricted, the child is still entitled to financial support. Again, the family court will consider financial support to be the child's right, regardless of whether the child has regular contact with the non-custodial parent. If one of the parent's access to the child is restricted for some reason, that is not the fault or responsibility of the child.

Outside of court, parents may use the child as a way of getting money, or use money as a way of getting to see the child. Given that family court is where parents go to appeal to the court to remedy their situation, it is important to know that the family court will not engage in the tit-for-tat concept with child support and parenting time.

Taxable Alimony, Nontaxable Child Support

The tax consequences of child support and alimony (spousal maintenance) are different.  Child support has no tax consequences, which is to say that child support is not taxable to the recipient, and not deductible from the income of the payor.  Typically, however, spousal maintenance is taxable to the recipient, and deductible from the taxable income of the payor. 

If a court order provides for one party to pay child support of $1,500 per month, and maintenance of $750 per month, on paper that combines to be $2,250.  Assume that one's combined state and federal taxes are at a rate of 33% of total income.  Since the payor will save approximately $250 on taxes (due to deducting the $750 from taxable income) and the receiver will incur approximately $250 in taxes (due to including the $750 in taxable income), the net amount of the $2,250 in combined payments is closer to $2,000.

If the court order instead provides for the party to pay child support of $750 per month, and maintenance of $1,500 per month, on paper that combines to be the same $2,250.  But the net amount is closer to $1,750, due to the approximately $500 in tax on the $1,500 in maintenance.

Moreover, if the party paying the support and maintenance is in a higher tax bracket than the party receiving the payments, the parties can mutually enjoy a net benefit.  Assume that the payor is in a tax bracket that results in a 33% tax liability, and the receiver is in a tax bracket that results in a $20% tax liability.  In the first example above, if the payor saves $250 on tax, the net effect to the payor is a combined expense of $2,000.  At the same time, the receiver may incur tax of only $150, so that the net effect to the receiver is a combined receipt of $2,100.  Together, the parties save $100 per month in taxes.

The net benefit increases with the second example ($750 child support, $1,500 maintenance).  If the payor saves $500 on taxes, the net expense is $1,750.  But if the receiver incurs tax of only $300, the net receipt is $1,950.  Together, the parties save $200 per month in taxes. 

Family Law Prologue

Greetings from St. Paul, Minnesota. Having returned to my office after a week away, this is my opportunity not only to dive back into working on divorce and family law cases, but also to dive into the world of blogging.

As a family law attorney, I spend a great deal of my time answering people's questions. That is an obvious and important part of rendering legal advice to a client in the midst of a divorce or child custody dispute, or arguing a case in family court. Other attorneys will often post questions on listserves that have recently popped up on the internet, and friends and family members will often pick my brain about family law issues that they have encountered, or just out of plain curiosity. This blog is meant to serve as a place to post questions and answers on important family law issues.

It is my hope that this blog will serve as a helpful resource on the subject of Minnesota divorce and family law. Please feel free to post a question (with due regard for the disclaimer on the sidebar) by clicking on the comments link below.