Albuquerque Divorce Lawyer Blog

In New Mexico, parents are held financially responsible for providing for the care of their children's needs. As such, the issue of child support is governed by mandatory state guidelines under the New Mexico Child Support Guidelines These guidelines include a formula based on a number of factors that help ensure children involved in either paternity or divorce proceedings receive the proper financial support.

Each parent is required to report their gross monthly income using a child support worksheet that can be found in the family law section of New Mexico Courts website. This worksheet is generally non-negotiable and most judges will not issue an Order Adjudicating Parentage/Order Establishing Paternity or Final Decree of Divorce without it.

After reporting gross income, credits are given to each parent for certain allowable expenses. Allowable expenses are restricted in nature, typically only covering childcare expenses and healthcare premiums, including medical, dental and vision care. In order for childcare to be considered allowable, the expense must be incurred during time that a parent is either working or is out looking for a job.

Extraordinary expenses related to mental or physical health care that are over $100 and uninsured are also allowed. This would involve things like counseling sessions or orthodontics. These types of expenses would be converted to monthly figures or handled outside the worksheet in the Parenting Plan or other Court Order.

The New Mexico Child Support Guidelines also provide credits for extraordinary educational expenses, as well as communication and transportation costs related to long distance time sharing or visitation. However, these items are typically addressed in a parenting plan, not the child support worksheet.

Likewise, additional expenses, which are not the same as allowable expenses, are not directly considered on the worksheet, nor are they defined by statute. However, these too may be addressed in a Parenting Plan or other Order outside the child support worksheet.

Keep in mind, the child custody and/or time-sharing arrangement will determine which New Mexico Child Support Worksheet to use. Worksheet A is used when one party has primary custody. Worksheet B is used when there is shared custody.

Once the parties determine the appropriate worksheet to use, all allowable expenses are entered into the worksheet along with gross income figures for both parties, and when appropriate time-sharing ratios. From these statutory entries of income, expense and time-sharing, the monthly child support figure will be determined. Unless there is a very good reason to deviate which there seldom is, this is the child support!

Collins & Collins, P.C.
Albuquerque Attorneys

Divorce can be a time of enormous conflict and confusion. Unfortunately, it is also a time when numerous important decisions must be made in the midst of less than ideal circumstances. Early decisions involving child custody and time-sharing though temporary often significantly impact the children.

As an aid in preserving some routine in the lives of children until certain decisions can be made, New Mexico law provides for the automatic issuance of a Temporary
Domestic Order (TDO) in divorce cases in most districts including Santa Fe, Albuquerque and Rio Rancho. The TDO is a binding court document that essentially restrains each parent from changes to the status quo while the divorce case is pending.

The Temporary Domestic Order forbids damaging, hiding or selling off of assets. It also bans the parties from running up unreasonable debt, the closing of financial accounts or the cancellation of insurance policies. Perhaps most importantly, a typical TDO restricts parents from any behavior that might harm the children or the relationship of the children with the other party.

Provisions within a TDO that specifically relate to children involve prohibiting one parent from interfering with the relationship the child has with the other parent, maintaining contact with a parent living outside the home, and forbidding changes in a child's school, daycare, healthcare providers, recreational activities or religious activities. The TDO will also expressly prohibit one spouse from taking the child out of state without written permission of the other spouse or court order.

Modifications can be made to a TDO through a motion to the court or upon the agreement of the parties. However, until modified, the terms of the TDO are fully binding on both parties. Violation of the terms of the TDO can have serious consequences including charges of contempt. In particularly grievous situations where one parent leaves the state with the children, very serious criminal charges may be filed against the violating party

The TDO is the first important order that will issue from the Court in a New Mexico divorce case. It is important to understand and fully abide by the Order. In case of confusion as to the terms or obligations under the TDO, it would be wise to consult with an experienced divorce and family law attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

New Mexico law requires both parents to support their children. Nowhere is this stance more evident than in determining child support in the midst of divorce or paternity proceedings.

Each parent is still required to do what is necessary to ensure that the financial needs of their child or children are met, no matter how unique or complicated their financial situation may be.

A child support worksheet is a mandatory, often non-negotiable document that most judges require during divorce or paternity proceedings. Yet, it is also a valuable tool used to calculate the financial responsibility of each parent toward their child or children. This worksheet can be accessed through the New Mexico Courts website under the family law section.

This worksheet considers the gross income of both parents as a factor in determining the financial obligation owed by each parent. Gross income is reported from several different sources, including salaries, wages, bonuses, commissions, tips, interest, dividends, annuities, trust income, capital gains, severance pay and pensions.

Other sources of income may be less common, including benefits from social security, unemployment insurance, disability insurance and workers' compensation. Even rarer, but still reportable, may be income from prizes, such as lottery and gambling winnings, as well as in-kind benefits that reduce living expenses, such as employer housing compensation. This often comes into play in military divorces with base housing.

Because each parent has a responsibility to provide for their child or children, potential income can be considered for those parents who are unemployed or underemployed. In self-employment situations, gross income is figured by calculating gross monthly receipts excluding the ordinary and necessary expenses involved in creating income. In self-employment cases, where financially feasible, it is often necessary to get an expert such as a CPA involved.

Though gross income for New Mexico Child Support Worksheet purposes seems to include every conceivable source of income, there are some sources specifically exempted by statute. Gross income does not include income from public assistance programs, such as Temporary Assistance for Needy Families (TANF), supplemental security income or food stamps. It also does not take into account the support paid by court order for alimony or prior children.

Once the gross monthly income sources are determined, they must be compiled into one total month gross income figure for entry into the Worksheets. In situations where a parent's income fluctuates, it is averaged over 12 months to reach a total gross monthly income figure. If the income is steady, it is recorded on the worksheet at the monthly rate.

The proper financial support of the children involved in divorce or paternity cases is an important goal of the New Mexico courts. Calculation of gross income can be highly contested even in seemingly straightforward situations. An experienced family law attorney should be able to help in the determination though the level of conflict is entirely up to the parties.

Collins & Collins, P.C.
Albuquerque Attorneys

Disharmony in the family can be disruptive to everyone involved, particularly when a grandparent is denied visitation by the parent of a grandchild. Denying contact can come through many means, including disagreements in parenting philosophies. When this happens, grandparents have little recourse in cases where the child's immediate family is still intact. Grandparent time-sharing and visitation rights are pretty limited.

In situations where a family is in the midst of paternity, divorce or separation proceedings, the New Mexico Grandparent Visitation Privileges Act provides a way for grandparents to petition the court for visitation rights. Rights are often limited to cases where a grandchild under the age of 6 has lived with a grandparent for at least 3 months or a grandchild over the age of 6 has lived with a grandparent for at least 6 months. Grandparents may also petition the court in some instances when the child has been adopted or if one or both of the child's parents have died.

Nevertheless, this statute is narrowly drafted to protect the fundamental rights of parents to raise their children without outside intrusion. If the child's immediate family is still together, grandparents cannot interfere. This is true even when a grandparent disagrees with a parent's methods, relationships, morals, discipline or any other aspect of parenting.

In fact, parents have no legal responsibility to allow visitation between their children and grandparents. However difficult it may be, grandparents cannot force themselves uninvited into the lives of their grandchildren.

It would be in the best interest of everyone involved to remain agreeable, even in the midst of differing viewpoints. Yet, when tensions occur between parents and grandparents, children often suffer the consequences which may include a loss of contact with extended family. Grandparents should keep this in mind in their relations with the parents and grandchildren.

Collins & Collins, P.C.
Albuquerque Attorneys

It is the preference of New Mexico courts that both parents participate in the lives of their children. This participation can become complicated when unmarried parents are involved, particularly when disagreements arise or an unmarried father is being denied access to his child.

Under New Mexico law, a child born to married parents is presumed to belong to both parents. On the other hand, a child of unmarried parents is deemed to be only the child of the mother. Unless certain measures have been taken by an unmarried father, such as being named on the child's birth certificate or confirmation of paternity through blood testing, there is no automatic presumption of paternity. This means that the unmarried father of a child may have to legally establish paternity to exercise his rights to physical and legal child custody.

In order to establish his paternal rights, an unmarried father must file a Petition to Establish Paternity. More specifically, since child support kicks in once paternity is established, a Petition to Establish Paternity, Child Support and Child Custody is filed.

Once filed, there a number of options for establishing paternity. The parties can agree and enter a Stipulated Order Establishing Paternity, Child Support and Child Custody. More common, the parties will agree to Paternity and child support reserving the issue of custody. Perhaps just as common and for obvious reasons, if the parties cannot agree on child support, then the father must establish paternity by other means.

The most direct route to establishing paternity, other than by agreement of the parties, is through DNA testing. If paternity is disputed, then the father can request DNA testing. DNA testing is generally at the costs of the father, subject to reallocation in some circumstances.

Once paternity is established, child custody and time-sharing can be difficult to address. This is particularly the case where no relationship exists between the child and the father and the mother was resistant to a finding of paternity. Child custody and time-sharing will always be based upon the best interests of the child. As result, the transition toward a normal time-sharing plan can be very slow. In some cases, where the child is older, there may never be significant time-sharing. However, in most cases, the Court will transition toward normal time-sharing as quickly as possible in order to encourage the father child relationship.

Once paternity is established, the father will have some paternal rights. The extent of those rights will be dependent upon the circumstances of each case. As with many family law issues, the progress may be slow and bumpy. The progress and outcome is fact specific and entirely dependent upon the situation of the parents and the child.

Collins & Collins, P.C.
Albuquerque Attorneys