New Mexico law imposes a duty on both parents to support their minor children. Therefore, when the court issues order addressing child custody, it will almost always include a provision for child support.
Alternatively, the court can issue an order on child support only that does not address custody, which is especially common when the New Mexico Child Support Enforcement Division takes action to collect child support.
No matter how a child support order is entered, the amount of child support is usually established using the New Mexico Child Support Guidelines, which provide specific instructions for how child support is to be calculated based on: the number of children; the gross income of the parents; the cost of work-related daycare for the children; the cost of health insurance for the children; and, in certain cases, some additional costs for the children. In extraordinary circumstances, the court may deviate from the Child Support Guidelines.
However, such deviations are rare and a child support order that includes a deviation must provide good cause for the deviation. A child support order will often refer to the parent paying child support as the non-custodial parent and the parent receiving support as the custodial parent.
In some cases, child support is not entered until long after the parties have separated or the birth of the child that needs to be supported. In these cases, a non-custodial parent may owe child support back to the date of the parties‘ separation, or in some extreme cases, to the birth of the child. These back payments are typically referred to as child support arrears. Calculating child support arrears can be complicated; especially if it has been several years since the child support obligation began to accrue. The back child support should be calculated based on the parents‘ gross income at each point in the past, which can be difficult if parents frequently changed jobs or have not kept accurate records of their expenses for work-related child care and health insurance.
Parents seeking back support should think seriously about opening a case with the New Mexico Child Support Enforcement Division (“CSED”), which can assist them with establishing and collecting back child support. Depending on an individual‘s circumstances, the services of CSED may be free or available at a minimal cost to the custodial parent. When seeking back child support it is extremely helpful if the custodial parent can provide the social security number and the names of employers for the non-custodial parent. In addition, providing names, addresses and phone numbers of friends and former employers who may be able to help locate a non-custodial parent can be helpful.
CSED can access federal income records for parents, which can be invaluable when trying to calculate child support arrears. Once CSED and/or the court have determined an initial calculation of back child support, the non-custodial parent should be allowed an opportunity to provide proof of any payments made or other support provided, which may offset the total arrears calculation. The total amount of arrears is then typically entered as a judgment against the non-custodial parent that may or may not accrue interest depending on the circumstances of the case.
The non-custodial parent may have different options available to pay the back child support, including paying the whole amount as a lump sum, negotiating a reduced sum with the custodial parent or making monthly payments toward the arrears in addition to their ongoing monthly support obligation. If CSED is involved, it will generally require payments to be made via wage withholding so that it can keep track of payments and properly apply them to the ongoing monthly child support obligation and the arrears. However, both parents should also always keep track of payments made and received in case CSED makes a mistake in applying payment or if CSED is not involved at all.
Again, establishing and collecting back child support can be extremely complicated and can have serious financial implication for both the custodial and non-custodial parent. A parent on either side of a case involving child support arrears should think seriously about obtaining legal counsel with family law experience to ensure that back support is fairly and accurately addressed by court and/or CSED.