Albuquerque Divorce Lawyer Blog

According to a recent article in the Albuquerque Journal, the number of child support enforcement cases pending in New Mexico has reached a record high. The Child Support Enforcement Division, called CSED for short, is a part of the New Mexico Human Services Department and is responsible for enforcing parents' child support obligations. CSED officials believe that the increase in cases is due to the bad economy, which means that the enforcement cases have increased but that actual collections of unpaid back child support are down.

CSED can get involved in a divorce or paternity case in multiple ways. The most common situation is when the custodial parent gets any kind of financial assistance from the State or Federal government to assist them in raising their child. In these cases CSED automatically sets up a case and will begin trying to establish and collect support from the non-custodial parent. Where applicable, part of the money collected from the non-custodial parent will go to repaying the State for the assistance it has paid to the custodial parent. A CSED case may also be automatically opened when the custodial parent applies for Medicaid coverage for a child. And, finally, a parent who is not receiving public assistance or Medicaid, but who has a child support order that is not being followed can go to CSED and ask that a case be opened up on their behalf.

Once an enforcement case is opened, CSED has extensive power to force non-custodial parents to pay support, including the garnishment of wages, the seizure of bank accounts and the suspension of driver's licenses. Thus, if you are a parent who gotten behind on support for whatever reason, it is important that you seek the advice of an attorney experienced in child support matters immediately before CSED begins to take enforcement and collection action against you. In turn, if you are a parent who is entitled to support but is not receiving it, speaking with an attorney can show you the various options available to begin encouraging your child's parent to pay support.

CSED is generally very helpful and cooperative so long as you address the situation. This means that you immediately contact them to address a problem as it arises. Often times, there are solutions that both parties and CSED can live with. Due to their vast experience in child support matters, CSED attorneys will know every available alternative short of financial ruin for either party. That is the good news. The bad news is that CSED is overwhelmed with cases so it may be difficult to make contact with someone with decision-making authority. This alone will typically indicate and justify hiring your own attorney.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

In New Mexico, the district court retains jurisdiction over child support until the child is 18 and can continue past the age of 18 if the child is still in high school. The child support statute also allows either party to petition the court for a modification of child support when a change of circumstances has occurred that will result in an increase or decrease in child support of at least 20%. A motion modify child support may be filed with the district court that issued your original child support order.

The change in circumstances required to support a child support modification can be a variety of things, like one party losing their job, or getting a raise or the parties substantially changing their visitation schedule. If you are faced with a situation that you think will change your child support award, it is very important that file the motion to modify as soon as possible because the new child support award will only go back to the date the motion to modify was filed. For example, if a party loses their job in September but then waits to file a motion to modify until November, then the reduced child support amount will only apply from November on and the party will be responsible for paying the higher amount for September and October.

The only exception to this rule about retroactive child support applies when a party files a petition to establish paternity under the New Mexico Uniform Parentage Act. In that case, the Court can order child support back to the date of the child's birth, but not more than 12 years unless the court makes a finding that a paternity action could not have been filed before the child turned 12. When deciding the amount of retroactive child support and child support arrearages the Court will consider factors like the mother's ability to locate the father and any equitable defenses raised by the father. Whether a child support action is brought as a modification of an existing order or as a new award, parties to a child support action should seek legal counsel immediately.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

Given the current state of the economy, many people in New Mexico and here in Albuquerque are considering or are in the process of filing for bankruptcy. These folks often have child support obligations. In fact, the child support obligations, and child support arrearages, themselves may add to the pressure to file bankruptcy. Some may erroneously believe that back child support is dischargeable in bankruptcy. It is not!

An individual filing bankruptcy is called the debtor and the bankruptcy petition lists all of the debts for which the debtor is responsible and asks the court to discharge their debts, which means that creditors can no longer try to collect those debts, or organize a repayment plan for the debts.

Again, not all debts are dischargeable in bankruptcy. This means that these debts are unaffected by bankruptcy. Section 523(a) of the bankruptcy codes provides a list of the types of debts that are non-dischargeable, which includes both child support and alimony/spousal.

The bankruptcy code takes the responsibility to support a family very seriously, which is why child support and spousal support are non-dischargeable. Part of the reason behind this heightened protection that children and former spouses are often in a very vulnerable financial position following a divorce. They are not like other creditors, i.e. credit card companies, that assume a certain amount of risk when they lend money. Further, children and ex-spouses often relied on that support for their very survival and without that support the government may have to step in and carry that burden through programs like TANF, food stamps and Medicaid.

Prior to moving forward with bankruptcy, it is critical to consult a New Mexico attorney particularly if the objective is to circumvent child support. In fact, if you are faced with this situation, you would be well advised to consult with both a New Mexico divorce and family law attorney as well as a bankruptcy attorney. Doing otherwise will surely result in disappointment with the results.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

Child support is mandated by the New Mexico Child Support Guidelines. Like most states, New Mexico has severe penalties for parents who refuse to pay child support.

New Mexico Child Support Enforcement Division ("CSED") has the authority under State law to enforce child support obligations. Failure to pay child support can result in the suspension of driver's licenses, seizure of bank accounts, liens against property, and holdings of contempt which could result in jail time. However, the consequences for failure to pay child support can be far more severe under federal law.

Remarkably, under federal law, there are criminal penalties for failure to pay child support. The so-called Federal Deadbeat Parent Punishment Act ("Deadbeat Dad Act") imposes federal penalties for willfully failing to pay child support that can include payment of restitution and a prison sentence of up to 2 years.

The Court of Appeals for the Eight Circuit recently upheld a father's conviction under the Deadbeat Dad Act in the case of U.S. v. Davis. In January, 2000, the defendant father in Davis was ordered to pay $723.00 per month as child support for his two daughters. Between 2000 and 2008, the father made sporadic child support payments ant the Iowa Child Support Recovery Unit was able to collect some payments from the father's employers through child support wage withholding. However, as of July, 2008, the father still owed more than $52,000.00 in unpaid child support.

Based on the substantial amount of unpaid child support, a federal grand jury indicted the father for violations of the Deadbeat Dad Act. After a jury trial, the father was found guilty of willfully failing to pay child support and sentenced to 24 months in prison, one year of supervised probation. He was also ordered to pay $53,637.83 as restitution for his unpaid child support.

The father subsequently appealed his sentence arguing that the State could not prove that his failure to pay child support was "willful" as required by the Deadbeat Dad Act because it could not prove that he had the ability to pay the entire amount of support ordered by the Iowa Court. The 8th Circuit Court of Appeals rejected father's argument and upheld his conviction stating that if father could not afford to pay his child support obligation, his remedy was to petition the Court for a modification of that obligation. He did not have the right to simply refuse to pay his lawful child support obligation.

Thus, there can be serious consequences for failing to pay child support. If you have been ordered to pay child support and cannot afford to make payments, it is imperative that you address that issue with the Courts. In New Mexico child support cases, you must file a Petition to Modify Child Support. The Court will modify support, if at all, only back to the date of filing the Petition to Modify Child Support. Delay in filing the Motion can have serious financial repercussions since support will continue to accrue at the court ordered rate until the Petition to Modify Child Support is filed.

www.CollinsAttorneys.com
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When a child is born in New Mexico during a marriage, or within 300 days of the dissolution of a marriage, the law in New Mexico will presume that the child is the child of the parties to the marriage. When a child is born outside of a marriage, the law only presumes that the mother is the parent of the child. A father can establish his paternity by: signing an acknowledgment of paternity form, which is available from the New Mexico Department of Health and Vital Statistics; by genetic testing; or by a pattern of behavior in which the alleged father holds himself out to be the child's father by doing things like paying child support and exercising visitation.

Both the mother and father of a child have a right to bring an action asking the Court to determine paternity for a child and determine child support, which is called a parentage suit. Either party may dispute paternity by filing a Motion for a DNA test for proof of paternity.

Establishment of paternity can be a serious issue because the state of New Mexico provides that the parents of a child are equally responsible for supporting and caring for that child. Similarly, each parent has a right to raise their child as they see fit, with certain parameters set by the state in order to protect the welfare of the child.

Thus, a parentage action does more than create a child support obligation it can lead to the entry of a parenting plan establishing custody and visitation. Further, the state itself can bring a parentage suit to establish paternity of a child and seek reimbursement of state assistance provided to that child. This is not uncommon where the mother has been receiving assistance from the State. Child Support Enforcement Division (CSED) will initiate an action in these cases to provide support for the child and more importantly for the State to reduce the financial burden of raising the child on the State on New Mexico. IN this case. CSED will go after both future support as well as back child support arrearages.

www.CollinsAttorneys.com

Non-compliance with court ordered child support is all too common in New Mexico family law cases. Many times, the non-custodial parent simply refuses to pay child support. Just as frequently, particularly in the current economy, the non-custodial parent is unable to pay court ordered child support.

When a non-custodial parent is unwilling or unable to pay child support, it can create a very difficult financial situation for the custodial parent. Not surprisingly, as the economy worsens, the number of custodial parents who are not receiving support increases as shown by the ever-growing caseload of the New Mexico Child Support Enforcement Division ("CSED").

Given that child support is mandatory under the New Mexico Child Support Guidelines set forth in the child support statute, NMSA 40-4-11.1, it would seem that the enforcement of child support would be relatively straightforward. In theory, the delinquent parent will be made to pay arrearages on unpaid child support and ordered to pay ongoing support. The Court even has the power to charge the delinquent with contempt and have that parent arrested, although such arrests are rare.

However, the practical problem with enforcement of a child support order is that the amount of court ordered child support is often relatively low in comparison to the cost of paying an attorney to enforce the child support order. Thus, a custodial parent who is not receiving support should carefully weigh the possible attorney fees associated with enforcement of a child support order versus their potential recovery. It may be that it is best to pursue the matter without the assistance of an attorney.

All parents looking to enforce a child support order should consult with the New Mexico Child Support Enforcement Division prior to filing a motion to enforce support. While CSED may be slow to get started on a case because of its very large caseload, once CSED gets moving on an enforcement case they are extremely effective.

To get started, the custodial parent should open a file with CSED. Once the file is open, the party can file a Motion to Enforce Child Support requesting the Court make CSED a party to the action. Once the court makes CSED a party, CSED will be present at all subsequent child support hearings. The presence and assistance of CSED at the hearing will go a long way toward have the matter fairly and promptly resolved by the court.

www.CollinsAttorneys.com