Albuquerque Divorce Lawyer Blog

Child support payments can become an extremely contentious issue among former partners. While non-custodial parents sometimes simply fail to pay their child support obligations, in other situations non-custodial parents pay child support regularly, but a vindictive custodial parent claims not to have received payment. For this and other reasons, it is important to keep accurate documentation and proof of every child support payment. Parents that chose not to document payments, or to pay in cash, face several serious consequences.

In general, New Mexico child support orders contain a mandatory wage withholding provision where child support payments are deducted directly from the non-custodial parent's paycheck. However, certain child support orders do not contain a wage withholding provision. This can happen if the non-custodial parent is unemployed or self-employed or both parents and the court come to an agreement on a different payment method.

Problems often arise in these situations when a non-custodial parent pays child support and the custodial parent claims that they did not receive the payments. The most difficult problems occur when the non-custodial parent has paid child support in cash and there is no documentation of the payment ever being made. Documentation of payment can be in the form of cancelled checks, money order receipts signed by both parents, cash receipts signed by both parents, bank statements, or any other form of record that shows support was paid by one parent and actually received by the other parent.

The New Mexico Human Services Department's Child Support Enforcement Division (CSED) enforces child support orders. If a dispute over payment of child support arises, under CSED regulations, the non-custodial parent has the burden of proving that payments were made; CSED does not have to prove that the non-custodial parent did not pay child support. If a parent cannot show proof of payment of child support, under CSED regulations child support has not been paid, the parent will not be given credit for undocumented payments, and CSED has the authority to obtain payment through several different methods, such as intercepting tax refunds.

If a non-custodial parent cannot prove that they paid their child support, then the custodial parent can initiate a CSED action to obtain the support payments that are allegedly due. If there is no possibility for wage garnishment because the parent is unemployed or self-employed, CSED may place a lien on property owned by the non-custodial parent, suspend driver's and professional licenses, seize bank accounts, intercept federal and state tax refunds, and seek contempt fines and jail time.

Child support payments are also enforced under Federal Deadbeat Parent Punishment Act ("Deadbeat Dad Act"). Under the Deadbeat Dad Act, a parent that willfully fails to pay child support faces a prison sentence of up to two years and may be ordered to pay restitution.

In order to avoid having to prove child support payments should a custodial parent claim that payments were not received, a non-custodial parent can apply for CSED to collect and distribute payments. This will create a record of payments made by the non-custodial parent. Non-custodial parents who are self- employed may also be able to arrange for automatic funds transfers from their bank to CSED. Non-custodial parents often resist wage-withholding orders, but it can be the best way to ensure that they are given proper credit for all of their child support payments.

Child support issues can spiral out of control quickly, especially if one parent claims to have paid support and the other parent claims the contrary and if CSED is involved. For this reason, it is important to pay child support in a way that can be documented. If you are having problems with a former partner regarding child support payments, an experienced family law attorney will be able to identify your responsibilities under New Mexico law.

Related Reading:

• 5 Tips to Help Child Support Go Smoothly


• Child Support Wage Withholding Benefits All!


• Ability to Pay in Child Support Contempt Hearings

Collins & Collins, P.C.
Albuquerque Attorneys

A 2002 study from The National Survey of Family Growth found that nearly 50% of women between the ages of 15 and 44 had cohabitated at some point in their lives. Cohabitation has become a normal way of life for many people. However, as many cohabitating couples find out--often when it is too late--by choosing cohabitation over marriage, especially in states like New Mexico, individuals give up a lot of the rights and protections afforded to married couples, including the right to spousal support or alimony.

Though New Mexico is a community property state, where all marital assets and debt are divided equally upon divorce, New Mexico does not recognize common law marriage, or cohabitation, except in the limited circumstance when the common law marriage was recognized in another state and then the parties moved together to New Mexico. This means that when an unmarried couple breaks up, property, assets, and debt acquired by one of the parties is generally considered the separate property of that party.

This can often be problematic, since, just like married couples, many cohabitating couples are in the situation where one partner is the major income earner. While for a married couple all income earned by either spouse is divided equally among the parties upon divorce, the same is not true of the couple that was cohabitating.

In order to obtain any kind of monetary relief after a break up, a formerly cohabitating individual must pursue a civil lawsuit asking that any jointly titled assets or debts be divided, much like the assets and debts of a business partnership are divided when the business closes. However, this relief does not extend as far as granting co-habitating couples rights to alimony unless, as noted above, they had a valid common law marriage in another state before moving to New Mexico.

Some states have created what is called palimony, which creates right to support in situations where there is no legally recognized marriage. Palimony suits arose from a 1976 California case, Marvin v. Marvin. Like New Mexico, California is a community property state and does not recognize common law marriage. In Marvin the California court found that when there is an enforceable oral agreement between cohabitating partners to share all property, the agreement must be enforced by a court. The difficult part is proving that there is an enforceable agreement in the first place. However, palimony has NOT been recognized by the New Mexico courts and couples breaking up in New Mexico should not expect to receive such relief.

So while the civil courts can grant some relief to couples who break up but were never married, the New Mexico courts have not chosen to grant the contract-based relief that led to palimony in other states. Thus, couples who choose not to get married should take steps to protect their assets and plan for their future in case the relationship does not last. If you have already reached the break up point, speaking to an experienced family law attorney should help identify your rights and responsibilities under the laws of New Mexico.

Collins & Collins, P.C.
Albuquerque Attorneys

According to the U.S. Census Bureau, in 2010, 45% of households in the U.S. were made up of unmarried couples. Even though the trend on a national level is for couples to live together instead of getting married, under New Mexico law the choice not to get married may have several unpleasant consequences when it comes to breaking up. Since New Mexico does not recognize common law marriage, many of the protections afforded to couples through the concept of community property are denied to those who choose not to get married.

New Mexico is a community property state, where all assets and debt acquired during the marriage are divided equally upon divorce. However, New Mexico does not recognize common law marriage. In New Mexico, to obtain the rights and responsibilities of marriage, like the right to community property and interim division of income and expenses, a couple must be formally married by a civil magistrate, judge, clergyman, or authorized representative of a federally recognized Indian tribe. This is true regardless of how long a couple has lived together or whether or not they have children.

Like divorces, when a long co-habitation relationship ends, it may take months and even years to obtain a division of property and assets. During this time, mortgages and other bills still need to be paid on time, putting some individuals in a precarious financial position. Recognizing that one spouse may have been the couple's major or sole source of income, New Mexico family courts have routinely allowed the party whose income is lower to file a Motion for Division of Interim Income and Expenses. This motion essentially divides income and expenses equally for the duration of the divorce process. However, in New Mexico, the protection afforded by this kind of a motion is only available to married couples.

The idea behind a Motion for Division of Interim Income and Expenses is that couples are still technically married until the final divorce decree, and therefore income and debts are still community property. In the case of co-habitating couples, however, there is no community property and therefore neither party is entitled to an equal division of the couple's income or debt. For this reason, there is no right to interim division for parties who were not legally married under New Mexico law and are now seeking to end the relationship and divide the assets that they have accumulated together.

Since the New Mexico Family Court lacks jurisdiction over unmarried couples for property division purposes, when co-habitating couples break up and cannot agree upon a division of assets, they must pursue a civil suit. Civil suits of this kind may take a long time to resolve. They are very difficult to prove as they are based upon principles of contract law. Worse yet, the contracts are typically oral rather than written causing many evidentiary issues related to the burdens of proof. During this time a party is not entitled to interim support or division of income or debt.

If there are children involved, a family court does have jurisdiction over child custody and child support. The courts in New Mexico will both award interim custody and time-sharing as well as interim child support while the custody and support case is pending. However, for anything unrelated to child maintenance or support, the parties are unlikely to have to divide income and expenses while their civil property division suit is pending.

These cases can be quite complicated. In addition to the standard issues of child custody and child support, the contract issues can be very challenging. As such, when faced with this situation, it is advisable to seek the guidance of an experienced divorce and family law attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

It is common knowledge that divorce wreaks havoc on emotions and bank accounts. New research shows that divorce also has a marked, long- lasting impact on health.

According to a study published in the Journal of Health and Social Behavior, "Marital Biography and Health Midlife," widowed and divorced individuals suffer from 20% more chronic illnesses, like cancer, heart disease, and diabetes than those who have not experienced divorce or the loss of a partner. Divorced and widowed individuals were also 23% more likely to have mobility issues, like trouble walking or difficulty climbing stairs, than married individuals.

The study also showed that the physical effects of divorce may linger over time and may be present even if the person remarries. According to the findings, widowed and divorced individuals who later remarried were still 12% more likely to suffer from chronic illnesses and 19 % more likely to have mobility issues than married people who had not been married or widowed before.

Another study conducted by researchers at Iowa State University's Institute for Social and Behavioral Research found that while women showed no decline to their physical health immediately after divorce, a decade later divorced women were 37% more likely to develop physical illnesses than married women. Iowa State researchers attribute this higher incidence in physical illness to the lingering emotional effects of divorce.

Research shows that there are several reasons for declining health after divorce. The Iowa State study cites social isolation and poor job opportunities as a possible cause for women reporting illness a decade after their divorce. Other studies suggest that, apart from the emotional toll of the actual break-up, individuals face a series of new emotional challenges after divorce. Yet other studies suggest that after divorce, many individuals stop taking care of themselves, eating right, and exercising regularly.

Many of the emotional stressors divorced individuals have to cope with have to do with children. These include the stress and time constraints of being a single parent, the feelings of guilt at not being able to devote time to a child in their formative years, and the worry of what effect the divorce will have on the child. Other emotional problems that can arise from divorce have to do with creating a new social life, making new friends, and dating again. Many recent divorced individuals feel overwhelmed and do not carry on a healthy social life. All of these emotional problems could lead to health problems in the future.

The increased work-load, both at home and professionally, and the decrease in income, may also lead individuals to stop taking proper care of themselves after divorce. Because they are either over worked, depressed, or insolvent, many individuals stop eating a balanced meal or exercising regularly. When a person suddenly becomes a single parent with twice the responsibilities, there is often little time to go to the gym or cook a healthy meal every day. This all takes a toll on health in the long run.

Although research is on-going, it is clear that the emotional and physical changes that come with divorce often work together over time to erode an individual's overall physical health. Anyone faced with a divorce or significant break up should be aware of these risks and be prepared to prioritize their health and well-being.

Collins & Collins, P.C.
Albuquerque Attorneys

Parties to a divorce are required to identify all of their assets so that the Court can accurately characterize and divide all marital assets. Unfortunately, hiding of assets during a divorce by one or both spouses is not an uncommon practice. And, even more unfortunately, intentional hiding of assets is often difficult to discover and even more difficult to prove. However, there are ways that spouses can detect and protect themselves from partners who might be hiding assets during a divorce.

In community property states like New Mexico, all marital assets and debts are divided equally upon divorce. In some nasty cases, a spouse, usually the major earner, tries to hide a portion of their assets to avoid the legal obligation of having to divide them with their divorcing spouse. Often a spouse may suspect that their partner has hidden assets, however, the spouse who is charging their former partner with hiding assets must show proof of the act. Such proof can be in the form of bank statements, records, deeds, contracts, etc., all of which can be difficult to obtain.

Having a working knowledge of the family finances will enable one partner to detect and trace the hiding of assets. It is also important to know the location of important documents such as deeds, wills, and tax returns, not only in the event of divorce, but also should one partner die or become incapacitated.

There are some red flags that may help divorcing spouses, and even happily married people, determine that their partner may be hiding assets. Aside from being aware of the family's economic situation, there are several ways to spot asset-hiding:

• Changes in mailing addresses for financial and bank statements. Spouses must be attentive when bank and other statements that used to be mailed to your home are now being mailed to a spouse's office or post office box. If statements are no longer being delivered to your home address, you may want to contact the bank, credit card company, etc. to ensure that you obtain copies and that you keep these for your records.


• Large purchases. Beware of sudden purchases of items that could be undervalued or overlooked in a divorce, like expensive art, furniture, or collectibles.


• Underreporting income on tax returns or financial statements. When a financial analysis is performed in order to divide marital assets, unreported items may not be included.


• Overpaying IRS or creditors. Some spouses will overpay their taxes or creditors in order to get a refund after their divorce is settled.


• Sudden salary, bonus, or commission decrease. Some spouses may defer their salary, commissions, and bonuses until after the divorce to seem like they have a lower income.


• Sudden increase in debt. Many spouses create phony debt in order to seem less financially solvent.

It is important for divorcing spouses to be aware of these red flags. If contemplating divorce, many divorce attorneys recommend a lifestyle analysis be conducted at the outset of divorce negotiations. A lifestyle analysis is a financial study that determines your standard of living during marriage. It not only ensures that a spouse gets their fair share of the marital assets, it can also be a tool in discovering that the other spouse is hiding assets. If a family's standard of living exceeds reported income, it could be a sign of asset hiding.

It is extremely important that all spouses have a thorough knowledge of the marital assets, even if divorce is not on the horizon. Knowing what you have will make it easier to discover whether your partner has been hiding assets in anticipation of a divorce. If you fear that your partner is hiding income or property, it is important to obtain records and contact an experienced divorce attorney immediately.

Collins & Collins, P.C.
Albuquerque Attorneys

Divorce usually has significant impact on a person's finances .When you are happily married, it is easy to think that your relationship will last forever and that there is no need to plan for the financial fall-out from a divorce. However, according to the Economic Mobility Project (EMP) study by the Pew Charitable Trust, nearly 50% of both men and women fare worse economically after a divorce than they did when they were married.

A recent article featured in Smart Money contains advice by financial planners and attorneys on what to do during a marriage in order to avoid future headaches should the marriage end. Here are the top five suggestions for actions couples should take together, and individually, in order to protect themselves financially:

1. Don't neglect your retirement fund.

Many couples tend to overlook saving for retirement until they are older. Where one spouse is the sole or major breadwinner, the other spouse may take a backseat when planning for retirement. Often a non-working spouse will rely on the breadwinner to invest and plan for their joint retirement. However, if there is a divorce, the person who has not planned ahead may find himself or herself having to start their personal retirement fund from scratch at a later age.

Attorneys and financial planners suggest that each partner contribute as much as they can to their company's retirement plan, if employed. If unemployed, financial planners suggest that the nonworking spouse contribute to their partner's spousal IRA. Many wealth managers also recommend that couples and individuals make saving for retirement a major financial priority; Lisa Caputo, president and CEO of Women & Co., a division of Citigroup, even suggests spending a little less on a child's college fund if necessary.

2. Do not ignore your career

Another common mistake many people make after marriage is allowing professional skills to lapse. In addition to many women leaving the workforce to be stay-at-home mothers, according to the U.S. Census Bureau, there are an estimated 105,000 stay-at-home fathers. Both men and women who leave the workforce often make the mistake of completely leaving their careers behind and losing valuable expertise. When forced to go back to work, they find that they lack the skills to be competitive in the job market.

Many financial planners recommend keeping skills fresh by taking consulting jobs, volunteering for a charity, attending networking events, keeping current in the industry by signing up for newsletters and magazines, maintaining membership in business or industry organizations, participating in continuing education and keeping licenses or certifications up to date.

3. Become involved in household finance

In many couples, one person is often in charge of all of the household finances, which can be a real problem upon divorce. New Mexico is a community property state, where all marital assets and debt are split equally upon divorce. If only one partner handles all of the finances, he or she may be acquiring large amounts of debt that the other party may not know about. Additionally, as mentioned above, one partner may be relying on the other to save for their joint retirement only to find that their spouse neglected to save enough.

Steven Kaye, a certified financial planner (CFP) based in New Jersey, suggests that both partners attend meetings with attorneys, financial professionals, insurance agents, and accountants. Both spouses should get involved and be aware of the particulars of insurance policies, bank accounts, investments and debts. Moreover, Kaye recommends that all documents pertaining to the above be kept with other important documents like deeds and wills.


4. Maintain your personal credit

One of the biggest financial mistakes some individuals make when they get married is that they do not maintain a personal bank account or credit card. Many couples have only a joint bank account and a credit card in one spouse's name where the other spouse is only an authorized user. The, upon divorce, one spouse has no credit history and will have a difficult time finding a credit card at competitive interest rates and a larger line of credit. This can be especially difficult in divorce where that spouse is looking to rent or buy a home.

It is important to know that being an authorized user of s spouse's credit card does not build personal credit. Caputo advises married couples to maintain a joint bank account as well as two separate individual accounts, one for each spouse. She also recommends that spouses keep separate credit cards.

5. Obtain professional financial advice before divorce

Many people going through a divorce make the mistake of focusing on one issue; for example, getting custody of the children or retaining ownership of the family house. However, in doing this many individuals lose sight of the bigger financial picture, and end up agreeing to disadvantageous terms like low child support payments, little or no alimony, or a larger share of the marital debt.

If divorce is inevitable, Ginita Wall, certified financial planner and co-founder of Women's Institute for Financial Education, recommends that partners establish their future financial needs and ensure that their divorce agreement will meet these needs. It is often advisable to consult a financial planner to discuss these matters.

Even though divorce may not happen, it is always important to be prepared financially. Taking a few preventive measures today can mean the difference between future financial security and bankruptcy. If divorce is unavoidable, it would be prudent to discuss these issues early with an experienced divorce attorney.

Collins & Collins, P.C.
Albuquerque Attorneys