In New Mexico, a parent who is required to pay child support must generally pay that support until their child reaches the age of eighteen (18). However, that support obligation may continue until the child is nineteen (19) if the child is still enrolled in high school. Given that a child support obligation may continue for several years, there will often be changes in the financial status of the parents and/or their timesharing agreement that may require a modification of child support.
If the parents cannot agree on a child support modification, then the parent seeking to modify child support must file a motion with the court stating the grounds for the modification. Either parent may file the motion for modification.
For example, if the supporting parent loses their job, they can file a motion asking the court to reduce their child support obligation. However, if the non-supporting parent finds out that that the supporting parent has received a raise, they can file a motion to increase child support. Remember that the timing of a motion to modify child support is important because any retroactive modification of child support will only be effective back to the date of filing of the motion.
In order for a court to modify child support, it must find that there has been a material and substantial change in the parents' circumstances since the entry of the last child support order. There is a presumption that a change in circumstances is material and substantial if more than one (1) year has passed since the entry of the last child support order and if the child support obligation will go up or down by at least twenty percent (20%).
One of the most common changes in circumstances that can cause the required twenty percent (20%) change in child support a parent losing their job. Even in good economic times, companies downsize or restructure and jobs are eliminated, which can result in a lay off. The court may modify child support after a parent has lost their job, but will take into account any unemployment benefits that the parent is receiving. Further, if a parent loses or quits a job and refuses to work at all, or is purposely working for less than they are capable of earning, the court may impute income to that parent. When the court imputes income, it looks at the education and past employment of the parent and determines a reasonable estimate of what a parent could earn if they were employed at their full potential. The court then uses that estimated income to calculate child support and the parent must pay child support based on that estimated income, whether or not the parent is actually earning that much.
In turn if a parent gets a promotion or new job with a significant increase in salary then the child support could go up the required twenty percent (20%). These increases often also occur when a parent that has been in school graduates and gets a job, or when a parent who has been staying home with a small child returns to work after the child begins kindergarten. Of course, in a return to work situation, the increase in income caused by one parent's new job may be offset by any daycare costs for the child, which will also be included in the child support calculation. Similarly, a modification of child support may be required when a child gets old enough to no longer need daycare and that expense can then be removed from the child support calculation. Whenever child support is reexamined, all of the factors included in a child support calculation must be examined, which is why parents should always exchange financial information and run their own child support worksheets before petitioning the court for a modification.
The law clearly provides for modification of child support based on change in the financial circumstances of one or both parents under the right conditions. However, determining whether not a change is significant enough to warrant modification can be complicated. Working with an experienced family law attorney can be essential not only in in determining whether or not a modification of child support is warranted, but also in determining what that child support amount should be.