Albuquerque Divorce Lawyer Blog

A divorce or legal separation will always be difficult emotionally, however, it can be just as hard, if not worse, financially. Often it is not until the parties begin exchanging income information as part of their divorce action that they realize just how dire their financial situation is. Given that New Mexico is a community property state, each spouse is equally responsible for the debts incurred during a marriage. If those debts are substantial, the divorcing parties may want to consider filing bankruptcy.

Anyone considering bankruptcy should consult an attorney that specializes in bankruptcy to determine whether or not it is in their best interests, or if they even qualify to file. This is especially true when parties are divorcing because the parties need to decide whether or not they want to file a joint bankruptcy before the divorce or pursue other options. For example, the bankruptcy code prohibits individuals with incomes above a certain, state-specific threshold from filing bankruptcy and it limits what assets are exempt, or can be kept by the parties after filing. The intersection between federal bankruptcy laws and New Mexico's family law statutes and cases can be tricky to navigate, so parties should be cautious when going down that road.

If parties decide not to file a joint bankruptcy and proceed with their divorce, it is essential that the divorce settlement documents include language that addresses what will happen if one or both spouses decide to file bankruptcy after the divorce.

Spousal support, or alimony, and child support obligations are not dischargeable in bankruptcy, which means that the spouse who owes that money cannot get out of paying it by filing bankruptcy.

However, obligations to pay debts may be dischargeable depending on whether the spouse files a Chapter 7 or Chapter 13 bankruptcy. This becomes problematic if one spouse agrees to assume a community debt as part of a divorce, but then later discharges that debt. If that debt is community, or in both parties' names, then a lender may seek to collect the debt from the other spouse. Therefore, divorce settlement documents should include language that clearly identifies the parties' intentions when dividing debt. For example, if one party is taking a debt instead of paying spousal or child support, then language should clarify that the debt is in the nature of support to prevent dischargeability.

Of course, no one can predict what exactly will happen after a divorce. Sometimes a spouse has every intention of paying the debts they assume in the divorce, but then they lose a job or suffer some other setback that prevents them from doing so. The best the parties can do is consult with experienced family law and bankruptcy counsel in order to make educated decisions about property and debt division and to properly memorialize those decisions in the final divorce documents.

Collins & Collins, P.C.
Albuquerque Attorneys

Most parents want to support their children and provide as much as possible for them. In fact, New Mexico law imposes a duty on both parents to do just that. However, the negative feelings and financial damage caused by a divorce or child custody battle make the issue of child support pretty tricky. Here are some tips to help:

• Pay on Time. This can be hard to do when money is tight, but the parent receiving child support is often counting on the support payment to pay rent or other expenses for the children. Paying on time not only benefits the children by making sure that they have food and a roof over their heads, but it helps prevent additional conflict between parents. Moreover, there are few things that escalate conflict in child custody cases more than financial stress. And this leads to court hearings. And hearings lead to all manner of burdens and expenses. The burdens of attorney fees, court costs, potential sanctions and even jail time for failure to pay on time will far outweigh the temporary relief of putting off a child support payment.

• Pay by Check. It is essential that child support payments are made using a traceable method of payment so that the paying party always gets credit for the payments made. It happens so frequently that it is almost to be expected that any undocumented payments will be disputed by the receiving parent. Parents often believe that a money order is traceable because it is not cash, but that trace is often difficult, if not, impossible, depending on where the money order is purchased. If a parent must pay in cash or with a money order, he or she should make sure they get a receipt signed by both parties that acknowledges the amount of the payment received and the date of receipt.

• Consider Wage Withholding. A wage withholding order instructs a parent's employer to deduct the child support payment from the parent's paycheck and send it directly to the parent receiving support, or sometimes to a state agency like the child support enforcement division. Parents often resist the entry of a wage withholding order, but it can be very helpful to both parents because it ensures that the support payment is made on time. Just as important, it creates an indisputable record of all child support payments. The orders can also be structured to spread the payment over the month by taking part from each paycheck, which can help the paying parent budget appropriately.

• Exchange Income Information. The child support statute allows either parent to request updated income information from the other one time each year in order to determine whether or not child support should be modified. Parents can exercise that right each year by making the information request in writing after April so that the other parent should have current tax information available.

• File for Modification. Child support can be modified any time there has been a material and substantial change in circumstances, which can include a major change in timesharing, the emancipation of a child, and/or a large increase or decrease in income for either parent. However, that change is only effective once a new court order is entered, which means that a parent seeking a modification needs to file a motion asking the Court to modify child support as soon as a change has taken place. Unilateral changes to child support without a court order can lead to very serious consequences no matter the basis for the change.

Child support and child custody issues can be quite stressful for all concerned. There is enormous potential for high levels of conflict. With rising levels of conflict comes attorney fees which may in fact be dwarfed by the costs associated with the appointment counselors, court appointed experts, guardian ad litems, and other professionals associated with the conflict. Avoid this conflict if possible by paying in full on time and in verifiable manner. If you are financially unable to do so, then go to court immediately to address the hardship with the court.

Collins & Collins, P.C.
Albuquerque Attorneys

As any parent knows, raising children can be a very expensive endeavor, which is why all states have laws governing child support for children when parents are divorced, separated or were never married.

In New Mexico, both parents have a duty to support their children and that support is calculated using the New Mexico Child Support Guidelines, which are based on the gross incomes of both parents. The first step in any child support action is gathering income information for both parents and calculating support based on the Guidelines. After the child support has been calculated, the court may enter an order that instructs one parent to pay the other a certain amount of child support every month. Then comes the hard part which is making sure that the support gets paid.

Enforcement of a child support order can be hard on both parents. Given the tough economic times facing many New Mexicans, the parent receiving child support may depend on the monthly check to make ends meet. Receiving a child support payment even a day or two late can cause serious problems, like a bounced rent check or car payment.

In turn, the parent paying support may also be living paycheck to paycheck and may have trouble paying support in addition to his or her monthly bills. However, failure to pay the monthly support obligation can cause a variety of problems for the non-paying parent including suspension of his or her driver's license, seizure of bank and financial accounts, a finding of contempt (and possible jail time and fines), issues with employment to name just a few.

One solution to the problem of getting child support paid on time is through the entry of a wage withholding order. A wage withholding order is similar to a garnishment, in that it is a court order instructing a parent's employer to withhold the monthly child support from a parent's paycheck and send it directly to the parent entitled to receive support. Or, in some cases, the employer sends the child support payment to the Child Support Enforcement Division ("CSED") and then CSED sends it to the other parent.

Both parents can benefit substantially from entry of a wage withholding order. As a preliminary matter, such an order ensures that the support gets paid in a regular, timely fashion, which means that the parent receiving the support can count on getting the support at the same time every month and can plan to pay bills accordingly. It can also help the paying parent meet their obligation because they aren't tempted to pay other bills before paying their child support, after all you can't spend what you don't have. Another substantial benefit to the paying parent is that there is a clear record of what payments were made, so the receiving parent can't claim that they didn't receive a payment, which to the chagrin of many child support paying parents happens with great regularity.

There are limits wage withholding. Most orders provide that an employer cannot withhold more than 50% of the paying parent's income. So, if the paying parent isn't making enough money to cover the monthly obligation, then the receiving parent may be stuck trying to collect the additional support. Also, wage withholding orders typically provide that the total monthly support obligation is divided over pay periods, which can be good for the paying parent but may not be good for the receiving parent who wants the whole monthly obligation all at once.

Child support will be an issue in every divorce involving children or paternity action filed in New Mexico. Having an experienced family law attorney can help both the paying parent and the receiving parent navigate the complicated world of child support, including collection of support after a judgment is entered.

Collins & Collins, P.C.
Albuquerque Attorneys

It is not often that the United States Supreme Court hears a family law case, so the Court's June, 2011, ruling in Turner v. Rogers has made a big impact and that impact can definitely be felt by family law practitioners in New Mexico.

The Turner case involved a father in South Carolina who was held in contempt and jailed for failure to pay child support. The opinion includes a long discussion of the right to counsel and what procedural safeguards are necessary to prevent an unconstitutional deprivation of liberty when parties to a civil proceeding face incarceration. The initial holding is that parties to a civil proceeding, even when that civil proceeding can result in jail time, do not have right to counsel under the Sixth Amendment.

However, the Court went on to hold that a contempt proceeding for failure to pay child support must provide some protection of the delinquent parent's due process rights. The safeguards include: 1) notice to the delinquent parent that his or her ability to pay is critical issue in the contempt proceeding; 2) the use of a form or some standardized procedure to gather the delinquent party's financial information; 3) a hearing at which the delinquent parent is allowed to present evidence as to his or her financial status; and 4) a specific finding by the court that the delinquent parent has the ability to pay.

Given this new ruling, the judges in the Second Judicial District for Bernalillo County, New Mexico, which encompasses much of the Albuquerque area, have recognized that the ability to pay is the key issue in contempt proceedings for failure to pay child support. Thus, they are now requiring attorneys who file motions for orders to show cause (which include a request that the responding party be held in contempt) to provide a responding party with a form designed to elicit their financial information.

In addition, the Court has will also ensure that a hearing will be held on all such contempt motions at which the allegedly delinquent parent be allowed to give statements and answer questions about his or her financial situation. And, finally, they are requiring an express finding that an allegedly delinquent parent has the ability to pay the support ordered before holding him or her in contempt.

Now, as is often true, the Turner case may create more questions than it answers. For instance, it specifically does not apply to cases wherein the state may be owed money because it has been making welfare or TANF payments on behalf of a child not being supported by the delinquent parent. This leads to the question of how the Turner ruling will affect cases when the Child Support Enforcement Division is involved and whether, ultimately, there may be additional procedural safeguards in those situations. For now, it suffices to say that Turner has changed the way courts around the country, including New Mexico, address the payment of child support.

Collins & Collins, P.C.
Albuquerque Attorneys

With respect to child support, the rule in New Mexico is that both parents have a duty to support their children. The amount of the monthly child support is determined by the New Mexico Child Support Guidelines, which are meant to be uniformly enforced across the state, so the support should be the same whether you live in Albuquerque or Las Cruces. The amount of support is also the same whether it is awarded as part of a divorce or a paternity action and continues until a child turns eighteen, or until the age of nineteen if the child is still in high school. Unfortunately, given the current state of the economy, many parents are finding themselves unable to pay their court-ordered child support.

While the Courts understand that many parents have lost jobs during the past few years, the New Mexico Courts take parents' responsibility to support their children very seriously. This means that even if a parent has a reason for not paying child support, there can be severe punishment when they don't. If the Child Support Enforcement Division (CSED) is involved in a case, they have the ability to revoke a parent's driver's license or professional license if that parent doesn't pay support. CSED can also prevent a delinquent parent from getting a passport and can freeze their bank accounts and garnish their wages. In addition to the punishment delivered by CSED, the Courts can also hold a parent in contempt of court for failing to pay child support. Being found in contempt can be result in jail time and/or monetary sanctions. However, a recent United States Supreme Court case added some requirements to the contempt process that provides some relief for parents who are unable to pay support.

In Turner v. Rogers, a father was held in contempt for failure to pay close to six thousand dollars in court-ordered child support. After a hearing at which the father admitted that he hadn't paid the child support, he was held in contempt and sentenced to one year in jail. The Supreme Court held that parties generally can be held in contempt, and jailed, as part of a civil proceeding and that they are not entitled to counsel as part of such proceedings. However, that contempt proceeding must have other procedural safeguards in place that protect the delinquent parent's right to due process under the Fourteenth Amendment to the United States Constitution. One of the primary safeguards ordered by the Supreme Court was that a finding of contempt in the child support context requires an express finding that the delinquent parent has the ability to pay the child support. Thus, in a child support proceeding, a parent who is delinquent on his or her child support obligation cannot be held in contempt if that parent clearly establishes that they do not have the ability to pay the court-ordered support.

Of course, the ruling in Turner doesn't mean that parents will not be required to pay child support just because they show the Court that they don't have the ability to pay. The Courts will still have the power to impute income to unemployed, or under-employed, parents if the circumstances are right. And even if a parent is not held in contempt for failure to pay support, they will likely continue to accrue arrearages, or back support, that will need to be paid at some point. But the new ruling certainly provides additional protections for parents who are delinquent on child support obligations, especially those who are victims of the recent economic crises.

Though the Turner case provides some protection to delinquent parents, the consequences of non-payment of child support can still be quite harsh. The fact is that a delinquent parent can be held in contempt if the court finds the parent has the ability to pay and has not. Attending one of these hearing unprepared is highly inadvisable. Anyone faced with a child support delinquency, whether they owe support or the support is owed to them, should consult a family law attorney as soon as possible so that they can understand their rights and responsibilities under all of the applicable laws, including the ruling in Turner.

Collins & Collins, P.C.
Albuquerque Attorneys

There are many changes that result in the lives of individuals after divorce. One of the more obvious is the transition to a one-income household. The financial hardship that can occur may have some surprising consequences, particularly for the children involved.

The National Center for Children in Poverty (NCCP) defines poverty as the inability "to achieve the minimum decent standard of living" that permits a person to fully participate in mainstream society. Nationally, 42% of children in general live below the poverty level. In New Mexico, this figure is 52% according to the NCCP. These statistics include all children, regardless of whether or not they have been affected by divorce.

Yet, children of divorce have been specifically identified as a group more likely to live below the poverty level, according to a recent study released by the U.S. Census Bureau. In New Mexico, 53% of children living in poverty reside with just one parent.

Data shows that women head up most one parent homes. Further statistics reveal that women generally have less income earning potential. One possibility for this may be that prior to divorce, many women focus on raising children, rather than on developing job skills or furthering their education. Many times, divorced mothers just do not have the work experience or credentials needed to get good paying jobs.

Additionally, the continued care of children may prevent a divorced mother from accepting certain jobs. Jobs that require flexibility and travel are just not a possibility for women who have the sole responsibility of raising and supervising children. If child care is necessary, the expense can drain money away from other household necessities.

And, a divorced woman's support network may not be what it once was, as ties to in-laws or other family members and friends may have become strained due to the divorce. This can result in social isolation that keeps divorced mothers from being able to share burdens and responsibilities with others.

Not only are a child's basic material needs potentially compromised after divorce, but studies show that poverty can delay cognitive development and hamper a child's ability to learn. Worry over having one's basic needs met may impact the ability to focus and concentrate. Further, poverty can lead to emotional, behavioral and social problems among children of divorce.

Though the economic realities of divorce cannot be completely averted, there are ways to minimize the financial risks and strains of divorce. In addition to the terms of the divorce, marital settlement agreement and parenting plan which should be designed to insure the financial well-being of the children, there are also state resources available for high risk families and children.

If you are considering divorce, an experienced family law attorney can help to navigate the divorce process as well as the state programs available to avoid falling into a the downward spiral that poverty often brings with it, both for the parents and the children. In the event that you cannot afford an attorney which is very likely the case in these situations, there are a number of programs that provide free legal advice to low income, high risk families facing divorce.

Collins & Collins, P.C.
Albuquerque Attorneys

Parties to a divorce or family law proceeding often will try to tie child support to child custody and/or time-sharing. Parties will often use child support offensively to try to gain some advantage in the child custody or time-sharing.

In New Mexico, child support and time-sharing are determined based on independent factors. Custody and time-sharing are determined based on the best interest of the child. In turn, child support is determined by the parents' gross income, along with the cost of work-related child care and health insurance coverage for the child. Child support is affected by whether there is joint custody and where the non-custodial parent has more than 30% time-sharing. Other than that, the two are largely independent.

The issue comes up in a variety of situations. Among the most common is the parent that feels that because he or she does not have custody or the level of time-sharing that they desire that they should be relieved of child support. This is wishful thinking. In fact, even if there is no contact with the child at all whether by order of the court, denial of contact by the other parent or simple disinterest on the part of the non-custodial parent, child support is still owed in its entirely as calculated under the New Mexico Child Support guidelines.

Just as common is the situation where the parent entitled to child support will try to cut off contact with the parent for shortages or delinquencies in child support payments. This is also not allowed. A parent will not be denied time-sharing with the child for failure to pay support. On the other hand, there are numerous other unpleasant and costly consequences associated with the failure to pay support. The worst case is a finding of contempt for willful non-payment of child support which can lead to arrest and de facto denial of contact with the child, at least for the period of incarceration.

The less common, and perhaps the most surprising to the unsuspecting father, is the case where the father does not learn of the child until years after birth, sometimes many years. Though it does not occur often and depending on the age of the child, these fathers can be held responsible for child support back to the date of birth of the child despite the fact that the father was unaware of the child's existence and has gone on to build a family of his own. This can have financially devastating consequences, not to mention the emotional toll on the new family. However, the State of New Mexico's position is that the parents should pay for the support and maintenance of their children whatever the circumstances. Otherwise, as often happens, the costs falls upon the State.

In short, child support and child custody/time-sharing are essentially independent inquiries. One should not be used to manipulate the other. Nor can a parent avoid financial responsibility through non-contact with the child, even when the lack of contact is no fault of his or her own. If you are faced with a situation like this, chances are you have a bit of mess on your hands. These things can be quite complicated and difficult to straighten out. It would be wise to seek the guidance of an experienced divorce and family law attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

Amid all of the emotional and financial trauma that can be caused by a divorce or child custody battle, parties often forget that they are part of a court proceeding. Even though family law matters are civil, not criminal, failure to abide by the court's order can still get the non-compliant party in big trouble. In New Mexico, violation of family court order can result in a finding of civil contempt, which can result in punishment by fine and/or jail time.

Now, many people think that any time they face a punishment that involves jail time they are automatically entitled to counsel under the 6th Amendment and that if they can't afford an attorney one will be appointed for them. However, the United States Supreme Court recently ruled that parties to a civil contempt proceeding are not entitled to free counsel under the Sixth Amendment of the United States Constitution.

In Turner v. Rogers, a South Carolina man, Mr. Turner, owed the mother of his child, Ms. Rogers, nearly six thousand dollars in court-ordered child support. After a hearing at which Mr. Turner did not have counsel and at which he admitted that he hadn't paid the child support, the South Carolina court held Mr. Turner in contempt and sentenced him to one year in jail.

During his appeals, which eventually led to the Supreme Court, Mr. Turner argued that his Sixth Amendment right to counsel was violated when he was jailed after being held in contempt for his failure to abide by the court's child support because he was not provided with free counsel.

The Supreme Court disagreed and held that the Sixth Amendment right to counsel only applies to criminal proceedings, even if a civil proceeding (like the one Mr. Turner faced and that parties to a New Mexico family law case could also face) could lead to jail time.

However, the Supreme Court also noted that the under the due process clause of the Fourteenth Amendment, civil courts cannot impose a punishment of civil contempt when a party has clearly established that he or she cannot comply with the court's order. This means that parties facing a civil contempt action must be provided adequate notice that the finding of contempt could result in incarceration and must be provided a fair opportunity to present and dispute evidence about his or her ability to comply with the court's order.

The Turner ruling clearly provides that a party facing a contempt charge for failure to pay child support, must be given the opportunity for a hearing before they are held in contempt. However, parties can be held in contempt for violating any family court order, not just child support orders. And anybody facing possible jail time for civil contempt will be fully responsible for obtaining his or her own attorney. None will be appointed by the State.

Thus, anyone involved in a divorce, custody or child support proceeding would be wise to seek the guidance of an experienced divorce attorney. The possible consequences for a finding of contempt are too serious to go it alone unless this is absolutely the only option.

Collins & Collins, P.C.
Albuquerque Attorneys

The current New Mexico law governing child support as set forth in the New Mexico Child Support Guidelines provides that child support terminates once a child turns eighteen (18) or once the child is nineteen (19) if the child is still in high school. However, given the increasing importance of higher education in this country, many researchers across the country believe that parents should be ordered to pay child support for their children while they are in college.

The 2011 New Mexico legislature listened to those opinions and passed House Memorial 71, sponsored by Speaker Ben Lujan, which requires the New Mexico State Bar to form a task force to investigate how consideration and planning for children's post-secondary education should be incorporated into the existing law regarding child support.

The task force will be chaired by a family court judge and will consist of lawyers that practice in the area of divorce and family law as well as other professionals that work in related fields. The task force is required to report back to the legislature with an interim report by November, 2011, and a final report by November, 2012.

Any law changing the child support guidelines to require parents to pay for their children's post-secondary educations will have a major, long-term effect on divorce and paternity actions across this State. How any such an obligation would be implemented leads to a variety of questions.

For instance, will the support continue no matter where the child goes to school? Do parents have to agree on where the child goes to school? Will parents have to pay the entire cost of tuition, etc.? How will child support be calculated? Will children be required to work while in college? What is the obligation of the child to attend class and maintain performance? What grounds might there be for terminating college support?

There are certainly many other questions that will come up depending on the law's language and the circumstances of a particular case. While this discussion is clearly in the earliest stages, it is important for both lawyers and parents to pay attention to any reports issued by the task force. Any law that places further obligations on parents and families such as this should be viewed with great scrutiny. Parents and voters would do well to voice their opinions on this issue with their respective legislators.

Collins & Collins, P.C.
Albuquerque Attorneys

In 2007, the U.S. began experiencing what is now called, the Great Recession. One surprising fact found during this period of economic hardship involved the steady decline of the divorce rate. In fact by 2008, this rate had dipped to its lowest level in 30 years in over 44 states.

Data collected by the National Marriage Project, based out of the University of Virginia supported these findings, actually finding that the stability of marriages was positively affected by the recession. Foreclosures, lay-offs and investment losses may be evidence that married couples pull together during such events. Yet, this stability and sense of togetherness may be short-lived.

Typically, financial conflict has been a top predictor of marital breakdowns. Yet, one of the statistics highlighted by the National Marriage Project involved the claim that many couples either put aside or postponed seeking a divorce during the recession. One major factor could involve the housing market collapse, as many divorcing couples cannot cash in on home equity when real estate prices have plummeted. Finally, in some housing markets it is near impossible to sell a home and even more difficult to get financing on another. Most families simply cannot take on the costs associated with running separate households.

There are many other issues as well that make divorce quite difficult in times of financial stress. Health insurance is a major issue. A divorce will often leave one party with no insurance which today can be quite disastrous. A division of property and debt is made more difficult in these financial times. The community debt in particular can be extremely problematic forcing one or both parties into bankruptcy. Then there is child support and alimony which for the paying party can simply put them over the financial edge. So while financial stress pulls couples apart, these same stressors actually bind them together for better and for worse.

The research appears to hold true. As the effects of the recession began to ease in 2010, statistics revealed an increase in divorce rates. This trend may be due to less financial uncertainty. Rebounds in employment rates and investment portfolios may alleviate the fears of those who want to go it alone. Others may find more creative ways to separate, continuing to share community property until the housing market bounces back.

Divorce can be a complex issue, particularly in today's unpredictable economy. Divorce has always been a highly stressful and uncertain time for couples. The recession has magnified the issues and often the complexities of a divorce. If you are considering divorce and the implications this may have on your financial future, it is important to consult an experienced divorce attorney. You can then better consider your options, having some certainty in uncertain times.

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

When New Mexico parents divorce or separate and a court action is filed regarding child custody, one of the final documents (also called pleadings) filed with the court is called a Parenting Plan. The Parenting Plan provides details about legal custody for the child, as well as physical custody or timesharing. It should also include a child support worksheet and should address which parent will pay the ongoing cost of health insurance for the children.

New Mexico law imposes a duty on both parents to support their children and part of that support is providing health insurance coverage for their children when it is available. The New Mexico Child Support Guidelines are used to calculate child support and require that a parent providing health insurance coverage for the children be given credit for the monthly insurance premiums paid.

Other issues regarding health insurance for the children may arise if neither parent has affordable insurance available to them through work, or when an insurance plan is refusing to cover children when they do not live with the insured parent full-time. These issues may need to be addressed by the court. However, no matter how the final decision as to ongoing health insurance for the children is reached, the Parenting Plan should clearly identify which parent is paying and provide for an exchange of information regarding coverage. An experienced divorce and family law attorney can ensure that the health insurance issue is properly addressed by the court and included in the Parenting Plan.

Collins & Collins, P.C.
Albuquerque Attorneys

Given the rising cost of health care, a major concern for couples involved in a divorce is the question of continuing health insurance coverage during and after a divorce.

In New Mexico, when a petition for dissolution of marriage is filed, which begins the divorce process, the courts generally enter a Temporary Domestic Order ("TDO"). The TDO binds both parties and prohibits them from making major changes to the parties' financial status and prevents both parties from cancelling insurance coverage for their spouse or children.

Although the TDO requires that health insurance coverage be maintained while a divorce is pending, after the divorce is complete the district courts generally do not have jurisdiction to require that one spouse continue to provide insurance coverage for the other. Further, most insurance companies that provide coverage to employee's spouses will not allow that coverage to continue after a divorce and the district courts cannot force those companies to do so. Occasionally, a health insurance company will allow continued coverage after parties obtain a legal separation, which is one reason why some people seek legal separation rather than a divorce.

In contrast, the New Mexico child support guidelines require parents to provide health insurance coverage to their children after a divorce, if health insurance is available to the parents. However, which parent is required to provide the coverage can depend on a variety of factors including the cost to each parent.

Anyone involved in a divorce in which a party has cancelled health insurance coverage in violation of the TDO should immediately consult an an experienced divorce attorney about how to enforce the TDO. Similarly, anyone in involved in a child support dispute should consult an attorney to discuss their rights and responsibilities with respect to health insurance coverage for their children.

Collins & Collins, P.C.
Albuquerque Attorneys