Child support issues can be pretty confusing at times. There are often many questions on both sides of the equation.
We have created the New Mexico Child Support FAQ section to address as many of these as we can. We add to these from time to time based upon common recurring questions from clients.
Every Child Support Case is Different
Like any legal case, particularly family law and divorce, every case will come with unique circumstances and challenges.
Obviously, we cannot address every possible question that may come up since every case is unique often coming with its own set of peculiarities. However, we do try to hit on some of the main topics that come up.
Sometimes, these are questions that may not have occurred to you, but that you should be asking as your child support case progresses.
Seek Legal Guidance
Many New Mexico child support resources available for those that cannot afford an attorney.
Because of the complexities of child support, it is generally advisable to seek legal guidance. The child support worksheet seems relatively straightforward. However, the child support hearing can be anything but straightforward if you are not properly prepared.
New Mexico has pre-established child support guidelines that help the courts determine the required amount of child support to be paid in each case. The New Mexico courts follow these guidelines pretty strictly. Very seldom will the courts deviate.
Child Support Worksheet Generally Mandatory in New Mexico Child Custody/Support
A child support worksheet, which is a mandatory and frequently non-negotiable document that most judges require during divorce proceedings, should be utilized. It is an important tool that can be used to calculate the financial responsibility of each parent towards the welfare of their child or children. A family attorney can help prepare you for an appearance in court regarding support plans.
The worksheet that is used (worksheet A or worksheet B) depends upon the time-sharing. Worksheet A is used when one party has the child 65% or more of the time. Worksheet B is used in all other cases. The worksheets reflect the amount of time the child is with each parent and the corresponding costs associated with caring for the child.
Child Support Based Upon Income of Parties
The most important element of the child support calculation is the income for the parties. This is the predominant item in the worksheet. The calculation is based upon the gross income of each party. This seems simple enough but can become complicated in many cases where parties try to hide income.
The worksheets are premised upon the parties’ ability to pay. This means both parties ability to earn income is the measure. This means that if one or the other party cannot stop working or otherwise refuses to work in an effort to gain some advantage in the child support calculation, the courts will impute income based upon earnings history and/or earnings capacity.
Other Important Items in Child Support Worksheet
Other than income, there are two other very important items in the calculation of child support.
First, the worksheet considers medical expenses. This typically means premiums. However, regular co-pays or other out of pocket expenses may be considered. The medical expenses will also include dental and eye care.
These items can get pretty contentious due to the fact that they are based upon necessary medical, dental and eye care and more importantly the expenses associated with these items.
The other item is child care and can be extremely expensive. Lack of child care can keep the custodial parent out of the workplace. The child care factor is based upon reasonable and necessary child care. As one might imagine, this issue can get pretty contentious as well.
Most other items will not be allowed. The worksheets are set for the allowable expenses to be included. With a few exceptions, the courts will strictly follow the worksheet.
Courts Typically Looks only to Worksheet Items for Calculation of Child Support
In deciding an award of child support, the court will generally look only to the guidelines. Many times there are special circumstances that one or the other parties would like to be considered. This might include extracurricular activities, travel, private school, clothing and so on. However, the Courts in New Mexico, by law, are constrained by the child support worksheets.
In other words, if it is not in the worksheet, then it is typically not a factor in child support. Again, child support is basically based upon income, medical expenses and child care. Obviously, the most important of these is income since as they say you cannot get blood out of a turnip. The same applies to parents that simply do not have funds for these other items.
Child Support Calculations Can Get Complicated and Combative
It is generally best to have an experienced child support attorney at your side. In theory, child support is pretty straightforward. You simply plug items into the worksheet. The complexity comes with what gets plugged in. This can be particularly difficult when one of the parties fails to cooperate in providing the necessary information for the worksheet calculation.
The Albuquerque attorneys at Collins & Collins, P.C. can help. Give us a call at (505) 242-5958.
Do I Have To Continue Paying Child Support If I Lost My Job?
Loss of income for a parent paying child support is not unusual. The question that then arises is whether child support will go down. The answer is a qualified yes, child support will generally be reduced but it requires a motion for modification of child support.
Losing your job can be a very difficult time for you and your family. Although you may hope that you are not out of work for a prolonged time, planning for an extended period of time during which you may be unemployed is very important.
Keep in mind that it can take months to get a hearing. It is important to file the Motion to Modify Child Support right away upon a loss of income if you are to gain any relief.
In case you have lost your income, you probably do not have money to hire an attorney which can be quite expensive. Fortunately, there are numerous resources available for folks in this situation to allow you to file the Motion to Modify on your own. We have created a list of a few good places to start on our Child Support Resources page.
Loss of Income is a Basis for Reduction of Child Support
Loss of employment is a significant change justifying a modification of child support.
If you are paying child support, according to a child support order, it is very important that you take steps to immediately modify your child support obligation as soon as you lose your job. A change in child support requires a substantial change in circumstances.
Sudden unemployment is a “change in circumstance” that would allow you to file a Motion to Modify Child Support and ask the court to modify your child support payment.
File the Motion to Modify Child Support Immediately
Immediate filing is important since the modification of child support goes back only to the date of filing, not to the date of loss of your job.
It is very important to file the motion immediately because the modification of the child support obligation only goes back to the date of the filing of the motion.
It may be very optimistic to think that you will not be out of work for too long and wait to file the motion, but a delay may be very costly—especially if you are out of work for an extended period of time. For example, if you delay and finally file a motion to modify after having been out of work for three months, you will still owe the child support payments for those three months of having no income.
This means that even though you cannot possibly pay at the time of the loss of income, you will owe back support. This back support will come back to bite you later when you are finally getting back on your feet.
Unemployment Benefits Count as Income for Child Support Purposes
Unemployment benefits or any other income will be considered as income in the motion for modification of child support.
During your unemployment, the court may consider an income as any benefits you are receiving, such as unemployment benefits, and use that amount to calculate your child support obligation under your new changed circumstances.
If you do not have any unemployment benefits or other income of any kind, the court may suspend your child support obligation on a temporary basis. In the event that you do have income of some sort, the court can substantially reduce the support obligation.
Unpaid Child Support Arrearages Mount Up
Regardless, it is very important to file a Motion to Modify Child Support because your child support obligation will continue to add up, and it may be very difficult for you to catch up on your child support payments once you do find employment again. When you do get back to work, the court can use your new income information to modify your child support payment accordingly.
Know the Rules and Take Action
Divorce can be both a stressful and financially taxing experience for everyone involved. Child support during difficult financial times can be particularly stressful.
It is important to take action while following the rules. Do not just stop making child support payments. There are numerous possible consequences for such actions.
Who Has to Prove Payment or Non-Payment of Child Support?
It is not uncommon that the parties disagree on the amount of past child support payments that have been paid.
Disputes over non-payment of support (child support arrearages) may or may not be made is good faith. In either case, the question that arises is, “Who has to prove the payments were made or not?”
To the surprise of many facing this situation, it is the burden of the paying parent to prove that payments were made, not the other way around.
Burden of Proving Past Child Support Payments is on Paying Parent
The paying parent must prove that he or she made the payments if a dispute arises. The rule makes some sense since otherwise a parent owing child support could simply assert that it was paid. However, this requirement applies whether or not the dispute is in good faith, which at times leads to some unfair outcomes.
Even where the dispute is clearly in bad faith, the paying parent may have little recourse. Often times, the paying parent can document the payments on his or her own. However, even then, it can be difficult working with New Mexico Child Support Enforcement for any number of reasons that need not be discussed here.
If the paying parent is unable to address the situation on his or her own, it is often necessary to hire an attorney. In these cases, one might expect that in those cases where the allegations of non-payment had no basis the paying party could get attorney fees awarded by the court. This is rarely the case in most New Mexico family law courts including Albuquerque and Rio Rancho.
Documentation of Past Child Support Can be a Challenge
Ideally, the paying parent will have made all payments by check and have a clear banking record of payments that have been made. Better yet, all payments will have been paid via wage withholding. Unfortunately, neither of these is typically the case.
Instead, parents often pay with cash or money orders. Presumably, a parent should be able to prove payments made by money order. However, parents often do not keep receipts and sometimes they do not remember where the money order was purchased. Even if they do know where it was purchased, it may be difficult to obtain records regarding the transaction without the money order number, which in turn makes it difficult to document that it was received and deposited or cashed.
Advisable to Make All Payments Through Wage Withholding
For whatever reason, many parents are resistant to wage withholding. However, it is required in New Mexico at the inception of child support obligations. The wage withholding can lapse for any number of reasons most often due to a change in employer.
In case wage withholding lapses or was never properly instituted, one would be wise to make all payments by check. Money orders would be the next best thing assuming the parent maintains records and preferably uses the same vendor each time so that there is an established account with a history of payments. Again, this too is rare.
Undocumented Child Support Payments Mean Unrecognized Payments
Failure to document payments typically means the payment will not be recognized. This means that the paying parent will be fully obligated on any such payments whether or not they were actually made in the absence of other evidence of payment.
Other evidence of payment will be hard to come by. Witness statements will surely be lacking. It may be possible to obtain banking records showing deposits by the other parent. However, this is a problem when the person simply cashed a money order, and virtually impossible in case of cash payments.
The evidence that would be most helpful would be the admission of receipt of payment by the other parent. Of course, this is pretty unlikely since that parent is disputing the payment that has led to the documentation problems to begin with.
An Experienced Attorney Can Help
If you are facing a child support arrearage dispute, it is always helpful to have an attorney at your side. However, in cases of child support disputes, financial limitations will often prevent this. If you are facing substantial arrearages and you have the resources to hire an attorney, then it is generally advisable that you do so.
The Albuquerque attorneys at Collins & Collins, P.C. have significant family law experience including matters related to child support. We can be reached at (505) 242-5958