Albuquerque Divorce Lawyer Blog

When New Mexico parents divorce or separate and a court action is filed regarding child custody, one of the final documents (also called pleadings) filed with the court is called a Parenting Plan. The Parenting Plan provides details about legal custody for the child, as well as physical custody or timesharing. It should also include a child support worksheet and should address which parent will pay the ongoing cost of health insurance for the children.

New Mexico law imposes a duty on both parents to support their children and part of that support is providing health insurance coverage for their children when it is available. The New Mexico Child Support Guidelines are used to calculate child support and require that a parent providing health insurance coverage for the children be given credit for the monthly insurance premiums paid.

Other issues regarding health insurance for the children may arise if neither parent has affordable insurance available to them through work, or when an insurance plan is refusing to cover children when they do not live with the insured parent full-time. These issues may need to be addressed by the court. However, no matter how the final decision as to ongoing health insurance for the children is reached, the Parenting Plan should clearly identify which parent is paying and provide for an exchange of information regarding coverage. An experienced divorce and family law attorney can ensure that the health insurance issue is properly addressed by the court and included in the Parenting Plan.

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico, one of the final documents (also called pleadings) filed with the court to complete a divorce is called a Marital Settlement Agreement, or MSA for short. An MSA should provide details as to the final division of the parties' property and debt, which may be the result of a settlement agreement between the parties or the order of the court.

The MSA does more than just assign debts and assets to the parties, it may also provide instructions as to how those debts and assets will be exchanged and protected. Health insurance is one asset to a marriage that may be addressed in an MSA. Generally, if one party to the divorce is providing health insurance for the family pursuant to his or her employment, he or she is not obligated to continue to provide health insurance for their former spouse, although they may be required to continue to provide coverage for their children. In fact,many insurance carriers will not allow continuation of coverage on the same policy for an former spouse.

However, some health insurance policies may allow the divorcing spouse to remain covered as long as they begin paying their own insurance premiums after the divorce. Also, parties can agree that one spouse will continue to pay the health insurance premiums for the divorcing spouse as a form of spousal support. The issue of health insurance coverage after a divorce is complicated because the coverage available will often depend on the terms of the policy in place at the time of the divorce and those terms can vary widely from policy to policy.

Parties to a divorce should consult an experienced divorce attorney who can counsel them as to the law regarding health insurance and can conduct proper discovery in order to explore the terms of the parties' policy. An attorney should also ensure that whatever agreement is reached regarding ongoing health insurance for the parties is properly included in the MSA.

Collins & Collins, P.C.
Albuquerque Attorneys

Given the rising cost of health care, a major concern for couples involved in a divorce is the question of continuing health insurance coverage during and after a divorce.

In New Mexico, when a petition for dissolution of marriage is filed, which begins the divorce process, the courts generally enter a Temporary Domestic Order ("TDO"). The TDO binds both parties and prohibits them from making major changes to the parties' financial status and prevents both parties from cancelling insurance coverage for their spouse or children.

Although the TDO requires that health insurance coverage be maintained while a divorce is pending, after the divorce is complete the district courts generally do not have jurisdiction to require that one spouse continue to provide insurance coverage for the other. Further, most insurance companies that provide coverage to employee's spouses will not allow that coverage to continue after a divorce and the district courts cannot force those companies to do so. Occasionally, a health insurance company will allow continued coverage after parties obtain a legal separation, which is one reason why some people seek legal separation rather than a divorce.

In contrast, the New Mexico child support guidelines require parents to provide health insurance coverage to their children after a divorce, if health insurance is available to the parents. However, which parent is required to provide the coverage can depend on a variety of factors including the cost to each parent.

Anyone involved in a divorce in which a party has cancelled health insurance coverage in violation of the TDO should immediately consult an an experienced divorce attorney about how to enforce the TDO. Similarly, anyone in involved in a child support dispute should consult an attorney to discuss their rights and responsibilities with respect to health insurance coverage for their children.

Collins & Collins, P.C.
Albuquerque Attorneys

There are a number of general guidelines regarding New Mexico child support. Here are 10 that every parent should understand.

1. New Mexico law provides that both parents have a duty to support their children.

2. Child Support in New Mexico is regulated by a statue known as the New Mexico Child Support Guidelines.

3. Child support is calculated based on the number of children, the amount of time the children spend with each parent, the gross incomes of both parents, work-related child care expenses and the cost of medical care for the children.

4. Child support is calculated in the same manner for both divorce and paternity cases.

5. Parents can be required to pay child support to a third party if that person is caring for their child, for instance when a guardian for the child is appointed under the Kinship Guardianship statute.

6. The obligation to pay child support continues from birth until a child turns 18, or until that child turns 19 if he or she is still in high school.

7. The child support obligation can also end if a child becomes emancipated by some other means, for instance by getting married, joining the military or by court order pursuant to the Emancipation of Minors Act, no longer have to pay child support.

8. Even after they turn 18, adult children can file an action against a parent to collect child support that should have been paid by a parent while the child was a minor.

9. Parents cannot waive the right to child support. The right to child support belongs to the child. It is the custodial parent's duty to pursue collection of support on behalf of their minor children.

10. The Child Support Enforcement Division of the New Mexico Department of Human Services is charged with establishing and enforcing child support for children in New Mexico.

Collins & Collins, P.C.
Albuquerque Attorneys

Child custody after legal separation or divorce can be one of the most highly contentious and stressful issues parents face. Time-sharing with the child or children to maintain a relationship with both parents is of paramount concern. In situations where parents have been given shared physical custody, otherwise known as joint child custody, it may not be as simple as splitting the time in half.

New Mexico courts often discourage 50/50 custody schedules, as children may have difficulty with the transitions involved every few days. Young children are especially vulnerable to the stress involved in frequent change. But, even older kids may have difficulty handling the disruptions to their academic, extracurricular and social lives.

If a 50/50 custody schedule is granted, New Mexico courts will still take into account the best interests of the child when considering how this time will be allocated. In fact, several factors may be considered before the final schedule is agreed upon. These factors may include the child's age, the child's relationship with each parent, the distance between each parent's home, the parents' work schedules and even the child's schedule of school, sports and other extracurricular activities.

Communication between parents is one of the keys to a successful 50/50 custody schedule. Good communication will help avoid interruptions in routine, thereby creating stability for the children, and the parents. It will also help with staying on top of appointments, schoolwork and activities. Consequently, this type of arrangement may not be appropriate in situations where there is a lot of conflict between parents. Nor would this schedule work well for parents who live a great distance from each other.

Remaining mindful of the impact of transitions, considering the best interests of the child, and keeping the lines of communication open are all important things to consider when developing a 50/50 custody schedule. After all, it isn't just time spent; it's time spent well. And time well spend it good for the children and the parents alike.

Collins & Collins, P.C.
Albuquerque Attorneys

Both the New Mexico family law statutes and the relevant case law impose a duty on all parents to provide financial support for their children. This issue most commonly arises when parents divorce or separate and one parent must pay the other monthly child support.

However, the issue can come up in other situations as well. For instance, child support often arises in the guardianship setting. Parents may be and often are required to pay a third party guardian or custodian child support if that person is caring for their child. This will most commonly arise in a situation when someone is appointed as a guardian for a child pursuant to the Kinship Guardianship statute. It can also arise when party other than a biological parent is granted custody by the state after the Department of Children Youth and Families determines that the parents are unable or unwilling to care for their child.

The monthly child support amount is calculated according to the New Mexico Child Support Guidelines. That support continues until the child is 18, until they are 19 if they are still in high school or until the child becomes emancipated by some other means, i.e. by getting married or joining the military. It is a simple mathematical calculation based purely on the income of the parties, health and dental premiums and child care. On some occasions, other factors may be considered.

Because child support is required by law and it is a fairly straightforward calculation,it is rare that a parent will get off the hook for child support. One exception was recently set forth by the New Mexico courts providing that parents no longer have to pay child support for a child who becomes emancipated before they turn 18, by either marriage, military service or by court order pursuant to the Emancipation of Minors Act.

Though child support is a simple mathematical computation, the calculation of support is often fraught with contention. After all, the end result is entirely dependent upon the numbers going into the equation. These numbers, such as the parties income, are often hotly contested and it generally advisable to have the assistance of an experienced child support attorney if determining the proper figures to plug into the formula.

Collins & Collins, P.C.
Albuquerque Attorneys

There are many time arrangements to consider when developing a joint child custody schedule in New Mexico. If the parents can agree, the parenting plan, and custody and time-sharing arrangements therein, are left up to them.

One of the most predictable and straightforward is an alternating week schedule. This involves the child remaining with one parent for 7 days, then switching to the care of the other parent for 7 days. Each parent spends an entire week at a time with the child, creating more consistency and less frequency in transition. This arrangement is generally more appropriate for older children.

Such an arrangement may not be best when younger children are involved, as it leaves large gaps of time between visits. To fill these gaps, the noncustodial parent may request extra visitation. But this arrangement also lacks flexibility, as it is difficult to attend regularly scheduled activities during the week of the other parent. Lastly, this schedule may exclude a parent from spending certain holidays with their child.

A more flexible time arrangement could involve a 3-4-4-3 schedule, which would allow each parent opportunity for regularly scheduled events each week. In addition, the child would not go longer than 4 days between visits. The child is in the care of one parent 3 days one week, then 4 days the next. The other parent would have the child 4 days one week, then 3 days the next.

This schedule also has some downsides, as it includes more transitions than other arrangements. Children may have difficulty remembering where they will be staying from day to day. Frequent exchanges may also increase the possibility of conflict between parents, particularly if there are delays in picking up or dropping off the child.

Frequent transitions of the child from home to home can be very stressful on the child and the parents. There are many possible time-sharing arrangements. There is even the possibility of alternating school semesters and though this would be a rare arrangement.

Assuming the parents can agree, it is entirely up to the parents. If the parents cannot agree, then the courts will decide based upon the best interests of the child. Judges are very sensitive to constant disruption of the child's routines. Judges will be protective of the children so that exchanges of the child will be minimized when there is significant conflict between the parents.

There are many factors to consider when apportioning time between parents and their children in a joint child custody situation. The most successful schedules will take into account transition frequency, visitation gaps and flexibility as it relates to their situation. Parents would do well to decide these issues on their own. Leaving these decisions to the court rarely ends in an outcome to the liking of either parent.

Collins & Collins, P.C.
Albuquerque Attorneys