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