Albuquerque Divorce Lawyer Blog

Paying child support is a legal obligation. If an individual fails to make child support payments, then there are several collection methods that the Child Support Enforcement Division (CSED) of the New Mexico Human Services Department can use to enforce child support orders and collect past due child support. These include, but are not limited to: wage withholding; liens on property; seizing bank accounts and other assets; intercepting tax refund; findings of contempt, which could include fines or jail time; revocation of driver's and professional licenses; and, denial of passports.

The most common collection method used by CSED is wage withholding, which is similar to a garnishment. A wage withholding order instructs the employer of the non-paying parent to take the child support payments directly out of the non-paying parent's paycheck and send those funds to CSED. These days, most New Mexico child support orders include an immediate income withholding provision unless there is good cause for another payment method, or both parents agree otherwise. For parents with a regular paycheck, wage withholding is treated like any other type of payroll deduction similar to taxes and social security. Though wage withholding can be used as an enforcement tool, wage withholding can benefit both the paying parent and the receiving parent because it provides a tracking system for payments and ensures that payments are made promptly.

However, many parents who are ordered to pay child support have unsteady jobs or are self-employed and wage withholding may not be practical. In these situations CSED has several other methods that it can use to collect and enforce child support orders in case of non-payment.

CSED may seize the bank account of a non-paying parent in order to enforce a child support order. New Mexico, like other states, has agreements with banks and other financial institutions to conduct quarterly data matches through the Financial Institution Data Match (FIDM) program. The purpose of FIDM is to identify the financial accounts of parents who are delinquent on their child support. Once the accounts have been located, CSED may issue levies and liens against the accounts to satisfy the non-paying parent's child support obligation.

CSED may also put a lien on property belonging to the non-paying parent. Even though this does not result in immediate payment of the past due support, it prevents the non-paying parent from transferring, selling, or borrowing against the property until the lien is removed. Additionally, CSED has authority to seize any state and federal tax refund owed to the non-paying parent in order to satisfy for past due child support.

In addition, CSED may suspend a non-paying parent's driver's license as well as any professional, recreational, and occupational licenses that they may have. If a non-paying parent owes more than $2,500, CSED can also report the parent to the U.S. Department of State, which can prevent the non-paying parent from getting a passport issued or renewed.

Finally, non-payment of child support can lead to findings of contempt against the non-paying parent. A parent found in contempt of court for failure to pay a child support order may face jail time, fines or both.

It may take a few months of failure to pay child support for CSED to start to take action against a delinquent parent. However, once CSED gets involved, it is very difficult to avoid paying child support. Similarly, if CSED makes a mistake in their record-keeping it is imperative that a paying parent correct that mistake as soon as possible to avoid being subjected to the collection methods outlined above.

If you are involved in a child support case, whether you are ordered to pay child support or to receive child support, it is important to discuss all of your rights and obligations with an attorney experienced New Mexico child support.

Related Reading:

Loss of Income and New Mexico Child Support

The Dangers of Not Documenting Child Support Payments

Child Support Wage Withholding Benefits All!

Ability to Pay in Child Support Contempt Hearings

Collins & Collins, P.C.
Albuquerque Attorneys

Many parents know that payment of child support is often a delicate topic because the parent receiving the support may depend heavily on receiving it each month. In turn, the parent paying the support may have a tough time making ends meet and still managing to pay their monthly child support obligation.

In New Mexico, child support is computed according to the New Mexico Child Support Guidelines, which calculate child support using either a Worksheet A or a Worksheet B, depending on the parents' timesharing arrangement. The amount of monthly child support is calculated based on the parents' combined gross income, after giving parents credit for any work-related daycare expenses and the cost of providing health insurance. The guidelines and support calculator are available in the family law section of the New Mexico Court website at http://www.nmcourts.gov/.

In New Mexico, child support is mandatory and parties can only agree to deviate from the New Mexico Child Support Guidelines for good cause. Often, a judge will not approve a divorce decree or parenting plan that does not include a Child Support Worksheet.

If a parent who is obligated to pay child support loses their income, then that parent is still responsible for child support as ordered by the Court. Paying parents may have a variety of reasons that makes them unable to continue paying the support obligation as ordered by the court. In some cases a parent is laid off or fired and they may not be able to find a new job earning the same income as their previous job, or may not be able to find employment at all. In others, the paying parent cannot continue to work because of injury or illness.

Parents who find themselves unable to pay their child support obligation must immediately file a motion to modify their child support in order to reflect their change in income. However, regardless of the circumstances, a parent cannot unilaterally reduce support or stop paying support entirely. The parent must file to modify the support order before reducing or stopping any payments.

Until the support order is modified, the parent will still owe the full amount of support under the existing order. If the support order is not modified and the parent fails to pay, the Child Support Enforcement Division (CSED) of the New Mexico Human Services Department can use several collection methods to enforce child support orders including intercepting the tax refund of the spouse that is supposed to be paying support, seizing their bank accounts, suspended driver's and professional licenses, and asking the court for an order of contempt and jail time.

The New Mexico statutes provide that a court may modify a child support obligation if the parent can show a "material and substantial change in circumstances" occurred after the entry of the child support order. There is a presumed "material and substantial change" when more than one (1) year has passed since the entry of the last support order and when the parents' current circumstances, including incomes and timesharing arrangements, would result in the monthly child support payment going up or down by at least twenty percent (20%). The statues also provide that either parent can request financial information yearly from the other spouse to determine whether their income has changed substantially.

It is advisable to file motions to modify support as soon as possible because support will only be retroactively modified to the date of the filing of the motion, not before. In any case, anyone seeking modification should contact an attorney experienced in child support matters.

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Collins & Collins, P.C.
Albuquerque Attorneys

New Mexico child custody laws are based on a presumption that joint custody is in a child's best interest, which means that the New Mexico courts favor parents sharing both legal custody and physical custody of their children (remember that physical custody is now often called timesharing). However, there are certain discrete situations where sole custody is appropriate and may be ordered by the court. The main goal of New Mexico family courts is to make decisions that will promote a child's emotional, mental, and physical development; a court will only award sole custody of a child if it advances these goals and determines that such an award is in a child's best interest.

Sole custody grants one parent all of the rights and responsibilities of raising a child, while denying them completely to the other parent. Sole custody can be legal, physical, or both. Legal custody entitles a parent to make all important decisions regarding a child's life, including education, religion, health care, activities, and beyond. Physical custody, or timesharing, refers to the time a parent is entitled to spend with the child.

Courts may award sole custody to one parent when the other parent has been deemed to be an unfit parent. A parent can be found unfit due to a drug or alcohol dependency or findings of child abuse or neglect. Other factors considered by the court are whether the parent has placed the child in dangerous situations or whether the parent has a history of violence or mental instability.

However, courts are moving away from awarding sole custody to one parent as they recognize the importance of having a relationship with both parents to a child's development. The New Mexico courts' presumption that that joint custody is in the best interests of a child makes it very difficult for a parent to obtain sole custody without the extraordinary circumstances discussed above, i.e. a drug or alcohol problem or a finding of abuse or neglect.

In very few cases, parents' complete inability to communicate and cooperate on parenting issues may lead to an award of sole legal custody. In those types of cases, the court may award sole legal custody to one parent while awarding joint physical custody, or timesharing, to both parents by granting the non-custodial parent visitation with the child. Today, courts are very reticent to completely sever a parent child relationship, which is often the result of an award of sole legal and physical custody that prevents a non-custodial parent from any meaningful involvement in their child's life.

Further, if a joint custody order is already in place, a court will only replace it with a sole custody order if there has been a material and substantial change to conditions affecting the child's welfare that makes joint custody no longer in the best interests of the child.

Family law attorneys strongly caution their clients against petitioning for sole custody if their only reason for doing so is animosity towards the other or getting some kind of revenge on an ex-spouse. Since custody determinations are always made based on the child's best interest, this kind of behavior could work against a client. However, if there is a valid reason for requesting sole custody, a court may be inclined to grant it.

The guidance of an experienced child custody attorney can help parents determine what form of custody is actually in their child's best interest and how to best demonstrate that to the court.

Additional Reading:
The "Best Interests Of The Child" in New Mexico Involves Many Factors
Taking Your Child Out Of State in a New Mexico Child Custody Case
Loss of Control Over Private Matters in Child Custody Cases May Rile Smokers (And Other Parents)

Collins & Collins, P.C.
Albuquerque Attorneys

While it may sound a bit strange at first, divorce ceremonies are beginning to gain recognition as a way to help children cope with their parents' divorce and a way to reaffirm parents' commitment to raising their children as a parental unit. A recent MSNBC article discusses this new trend.

First off, divorce ceremonies are not the same as divorce parties. While a divorce party usually entails a festive atmosphere of food, music, and drinking; a divorce ceremony is a more solemn and serious occasion. Divorce ceremonies focus on the future behavior of the former spouses toward each other and their children.

Many people feel that, like any major transition in life, a ceremony is an appropriate way to signal the end of a marriage. In this case, the ceremony is more like a funeral or memorial than a wedding in that it marks the end of a relationship and is meant to provide closure to all of those involved. Divorce ceremonies are intended to help all parties involved deal with the hurt, anger, and blame that usually arises from a divorce. These ceremonies are meant to foster peace, forgiveness, and closure for all members of the family.

Often divorce ceremonies are aimed at the children and helping them get through the emotional trauma of a divorce. However, they may also seek to solidify parents' understanding and commitment to their roles as co-parents after the end of their marriage. The centerpiece of the ceremony entails the former couple reciting vows in front of their children, family, and friends in a way that is similar to a wedding. The vows are promises the parents make to each other and their children about how they will handle parenting issues in the future.

Divorce ceremonies vary considerably. In some ceremonies, both parents and former spouses take part. In other situations, perhaps due to acrimony between the former spouses, only one parent takes part in the ceremony. Divorce ceremonies are usually solemn occasions, with a minister, rabbi, official, friend, or family member conducting the ceremony. Former couples or individuals pronounce their vows publicly and in some cases, children are invited to share a few words as well.

Although divorce ceremonies may seem a like a novel idea, they have been part of the Jewish religion for centuries albeit in a different format. As more and more couples opt for divorce ceremonies, churches and other places of worship have begun to celebrate them. Some churches have divorce prayers and liturgies, including the United Church of Christ and the United Methodist Church.

It remains to be seen whether the recent increase in divorce ceremonies will continue. In turn, the question of whether or not a divorce ceremony has any beneficial effects for those involved depends heavily on the parties involved. While it may not be the right fit for certain people, divorce ceremonies can be a way to open lines of communication and establish interaction patterns that could be helpful in the future. This might be particularly helpful for future child custody issues.

Albuquerque Attorneys

It has become common knowledge that nearly 50% of marriages in the United States end in divorce. When it comes to divorce in New Mexico, there are a variety of ways to approach the divorce process, which can be broken down into three general categories: litigated divorce, collaborative divorce and a Pro Se divorce. These are only general categories. There will be variations within each general category.

A litigated divorce means that the parties are actively using the court process to complete their divorce and is what people usually associate with the idea of divorce. A litigated divorce may be necessary when the parties cannot come to an agreement on child custody, child support, property division, etc. However, a litigated divorce is not just one that ends with a trial and decision by the judge rather; a litigated divorce really just means that the court is more actively involved during the pendency of the divorce. In most so-called litigated divorces, there is no trial and the parties reach an out of court settlement. However, the court may have to order the parties to participate in settlement or may have to issue interim orders about custody or who will pay the bills while the divorce is pending. If the case does move to trial, a judge has the power to make all of the important decisions regarding property division, support and child issues.

A collaborative divorce is one in which both parties agree to work in partnership to reach a divorce settlement agreement without going to court. Typically, each party has their own attorney but there are also other agreed-upon professionals, such as a child custody specialist and an accountant involved to advise both parties on how to best address the issues involved in their divorce. The collaborative process depends on complete transparency between the parties and all of the professionals involved as they work together to craft a divorce settlement. A collaborative divorce may be less expensive than a litigated divorce, if the parties complete the process and reach an agreement. However, in a collaborative divorce, the parties and their attorneys enter an agreement whereby the attorneys are forced to withdraw if litigation is threatened or the parties cannot come to an agreement. This means that should this happen, the parties would need to get new attorneys and begin the process of divorce again. So collaborative divorce is only effective if the parties truly commit to that form of resolution.

Using mediation or settlement facilitation is a sort of happy medium between a fully litigated divorce and collaborative divorce, which involves the parties using a neutral third party to negotiate a divorce settlement. Parties work with their individual attorneys during mediation to understand their rights and obligations. The mediators are not allowed to dispense advice to either party, but should be trained professionals that can give each party a reasonable idea of how the court will address each issue in order to encourage settlement. In a litigated divorce, parties are almost always ordered to participate in at least one mediation or settlement facilitation before the court will grant them a trial and, in a collaborative divorce, the parties may choose to uses a mediator or facilitator to assist in negotiations.

Finally, in a Pro Se divorce, the parties do not have attorneys and prepare documents resolving their divorce themselves. Keep in mind that Pro Se does not mean uncontested or that the case is not litigated. In fact, Pro Se divorces can often be the most adversarial of all for numerous reasons. A Pro Se is often not recommended unless the marriage was short, there are few assets, and there are no children involved because the parties may be giving up rights or incurring responsibilities that they do not fully understand. Though avoiding attorneys sounds, and sometimes is a good thing, a Pro Se divorce can go south pretty quickly. In addition, and perhaps more importantly, the parties make decisions and agreements that are bad for one or both of them which without the good graces of the other party cannot be undone or require extensive legal assistance to fix.

If you are contemplating divorce, your options may be dictated by financial considerations. If you can afford one, it is generally advisable to seek the guidance of an experienced family attorney to discuss the best way to approach your individual situation.

Related Reading:
Uncontested Should Not Mean Sloppy in New Mexico Divorce Proceedings
Valuation of the Marital Estate in New Mexico: The Importance of Full Disclosure
New Mexico Marital Settlement Agreement is Final, Binding and Very Hard to Modify

Collins & Collins, P.C.
Albuquerque Attorneys

While there is no specific, uniform definition of the "best interests of the child," this is a standard that is used by courts in many states to determine many child-related issues, especially those involving child custody and timesharing.

Specifically, The best interests of the child standard is used by the New Mexico courts when family law cases involve issues like: child custody, timesharing and visitation, child support and termination of parental rights. The standard also comes up in relation to abuse and neglect cases involving the Department of Children Youth and Families ("CYFD").

In order to determine just what is in a child's best interest, courts make a number of assumptions regarding child development and family dynamics. There are several objectives and goals that influence the analysis of what is best for the child. In New Mexico, courts have expressed the philosophy that maintaining family integrity is extremely important to a child's well-being and development. This philosophy forms the basis for New Mexico's statutory rule that joint custody is usually in the best interests of the child unless there is evidence to the contrary.

There are several factors that a court must consider when determining whether a certain custody or timesharing arrangement is in the best interests of a child. Section 40-4-9 NMSA 1978 enumerates some, but not all, of the factors that a court should consider when determining the best interests of the child in custody matters. These include the wishes of the parents and child; the relationship between parent and child as well as between the child and other siblings and family members; the child's adjustment to home, school, and community; and the physical and mental health of all those involved. New Mexico courts are not allowed to consider the gender of the parent as a factor when making custody decisions though many parties believe otherwise.

In New Mexico, to determine whether joint custody is in the best interests of a child, a court must also consider additional factors along with those listed above. Parents are supposed to submit a proposed Parenting Plan before being awarded joint custody by the court that provides all of the details of how parents will share custody and time with the child. Additional factors that courts may consider when awarding joint custody include: the bonds that the child and each parent have developed, the ability of each parent to provide adequate care for the child during each period of responsibility, and the willingness of each parent to accept the responsibilities of caring for the child and not intruding in the other parent's rights. The court will also consider the geographic distance between the parents and their ability to communicate and cooperate on issues involving the child. In complicated cases, the court will often appoint a custody evaluator, Guardian Ad Litem, or other expert in order to provide professional opinions as to what is in the child's best interest.

The main goal of New Mexico family courts is to do what is best for the child and to make decisions that will likely promote the child's emotional, physical, and mental well-being. It is important for parents to understand this standard in order to formulate realistic expectations involving child custody and placement issues. Above all, parents involved in a custody dispute must remember to put their child's needs first; if they fail to do so, the court will certainly remind them.

Because there are so many factors involved in the determination of the best interests of the child in these situations, it is generally advisable if possible to have the assistance of an experienced child custody attorney.

Related Reading:
10 Things NOT to do During a Child Custody Exchange
Top Ten Ways to Make a Child Custody Exchange Go Smoothly
Preparation for Family Law Hearing Includes Managing Expectations

Collins & Collins, P.C.
Albuquerque Attorneys