Albuquerque Divorce Lawyer Blog

Parenting Plans set out all the essential terms of custody, time-sharing and child support following a divorce. There are many big issues such as custody and support.

There are also smaller, though equally important, issues such as schools, religious preferences, vacations, recreational activities, school activities, and all the other issues surrounding raising a child.

This article refers to changes to these other issues. Changes to child custody and support are each deserving of their own discussions.

In any event, any one of the many terms of a Parenting Plan may need to be modified. Many parties are able to reach agreement on these changes to the Parenting Plans with little to no conflict. Other times, the Parenting Plan can be the most difficult part of the divorce.

Whether the Parenting Plan was agreed upon amicably or whether it was court ordered after heated dispute, there may come a time that the Parenting Plan needs to be modified. The way this is done will depend upon the parties and the nature of the divorce.

In those divorces where the parties can work together, modifying the Parenting Plan is as easy as drafting up the changes and submitting the new Parenting Plan to the Court for approval. Whether or not the parties should get legal assistance in this process will depend on the circumstances. If possible, it is often beneficial to have an attorney draft the document to insure that the wishes of the parties are indeed reflected in the language.

Once the new Parenting Plan is worked out, it will be submitted to the court for approval and signature. Typically, you or your lawyer will have to arrange to get the signed order from the judge's office and take it to the clerk for filing. Some, though not all judges, will require a hearing depending on the nature of the changes.

That is the best case. Unfortunately, many parties do not have a working relationship. Many more are actively hostile toward one another. Changing the Parenting Plan in these cases will require the filing of a Motion to Modify the Parenting Plan. The Motion will set forth specifically what the party wishes to change. Equally important, the Motion must set forth the reasons for this change.

In reviewing the Motion and the Response, the Court will be looking at the best interests of the child(ren). This is the most important and often the only consideration. However, other issues related to the parties themselves may be considered. Two common examples, though there are many, include financial hardship and interference with employment associated with private schools, extracurricular activities, hobbies and the like.

In short, if you are seeking to modify the Parenting Plan, seek agreement from the other party first. If that does not work, think long and hard about why you are seeking the change. The Parenting Plan may be changed, but it will not be changed without good reason in the absence of an agreement between the parties.

Filing is the easy part. Modification of the Parenting Plan is often fiercely resisted by the other party. It is far less expensive and stressful if the parties can come to some agreement, in which case a stipulated order modifying the Parenting Plan can simply be entered with the court.

Related Reading:

Important But Often Overlooked Issues to Address in a New Mexico Parenting Plan
Common Issues with New Mexico Parenting Plans
The "Best Interests Of The Child" in New Mexico Involves Many Factors

Collins & Collins, P.C.
Attorneys at Law

Any court order addressing custody should include some sort of parenting plan. This is especially important in states like New Mexico where joint custody is preferred because a parenting plan provides an outline of how parents will make decisions about and share time with their child. A detailed and comprehensive parenting plan can also help alleviate conflict between parents and relieve the stress on a child by providing predictability. While most people remember to include the basics of raising the child in their parenting plan, like days and times for exchanges and payment of child support, there are some issues that tend to be forgotten, but that are also important.

Visitors
Parents may wish to include rules about visitors in their parenting plan. The parenting plan may simply state that the custodial parent should use proper judgment before bringing visitors into the home while the child is there. This situation puts trust in the custodial parent, without requiring them to jump through hoops to have visitors. The parenting plan may also include provisions about overnight guests and address issues concerning a parent's significant other. It is important to remember that the parenting plan should be focuses on what is in the best interest of the child and should not be used as a method to antagonize the other parent.

Extracurricular Activities
Many children are involved in extracurricular activities, which can be a great source of enrichment for the child. But they can also pose a number of questions to be answered by a parenting plan. First, some parents may not wish their child participate in certain activities; the parenting plan should name what activities are currently agreed upon and provide instructions for how parents will deal with choosing future activities. Second, the parenting plan can address how the costs of these activities are divided between parents. While some activities are fairly inexpensive, others such as playing a musical instrument or competitive sports can be very costly. Finally, depending on the relationship between parents, attendance at sporting events, concerts and other public events may need to be addressed. If the parents are unable to attend the events at the same time in a civil manner, they may need to split the events so that each can attend.

Cell Phones and Internet
One newer issue becoming more and more important is that of cell phones and internet usage. A parenting plan can address the age at which a child may have a cell phone, in what manner they may use it (for example, only in emergencies or only to call family), and how will the monthly cell phone bill will be paid. Similarly, a parenting plan can address a child's internet usage. Many parents are concerned about their child's usage of social media websites, and the parenting plan can discuss at what age the child is able to use such sites and what manner of monitoring the parents will do.

Religion
The parenting plan should address what religion, if any, the child will practice and what that practice entails. Some religious practices are very involved and can include attending services or classes multiple times per week, which can infringe on a parent's timesharing with the child. Further, when parents follow different religious practices, it can be confusing for a child and parenting plan should address how to ease that tension.

As any parent knows, there are a myriad of decisions to make in order to raise a child. Even the most thorough parenting plan cannot answer all of those questions. However, taking the time to really think about potential parenting issues and what is in a child's best interest can make a parenting plan an extremely effective tool for co-parenting. Working with an experienced family law attorney can help ensure that the parenting plan addresses as many potential issues as possible while still complying with the law.

Related Reading:
Common Issues with New Mexico Parenting Plans
The Basics of New Mexico Child Custody Jurisdiction
Custodial Interference in New Mexico Divorce & Family Law Cases

Collins & Collins, P.C.
Albuquerque Attorneys

New Mexico law imposes a duty on both parents to support their minor children. Therefore, when the court issues order addressing child custody, it will almost always include a provision for child support. Alternatively, the court can issue an order on child support only that does not address custody, which is especially common when the New Mexico Child Support Enforcement Division takes action to collect child support.

No matter how a child support order is entered, the amount of child support is usually established using the New Mexico Child Support Guidelines, which provide specific instructions for how child support is to be calculated based on: the number of children; the gross income of the parents; the cost of work-related daycare for the children; the cost of health insurance for the children; and, in certain cases, some additional costs for the children. In extraordinary circumstances, the court may deviate from the Child Support Guidelines. However, such deviations are rare and a child support order that includes a deviation must provide good cause for the deviation. A child support order will often refer to the parent paying child support as the non-custodial parent and the parent receiving support as the custodial parent.

In some cases, child support is not entered until long after the parties have separated or the birth of the child that needs to be supported. In these cases, a non-custodial parent may owe child support back to the date of the parties' separation, or in some extreme cases, to the birth of the child. These back payments are typically referred to as child support arrears. Calculating child support arrears can be complicated; especially if it has been several years since the child support obligation began to accrue. The back child support should be calculated based on the parents' gross income at each point in the past, which can be difficult if parents frequently changed jobs or have not kept accurate records of their expenses for work-related child care and health insurance.

Parents seeking back support should think seriously about opening a case with the New Mexico Child Support Enforcement Division ("CSED"), which can assist them with establishing and collecting back child support. Depending on an individual's circumstances, the services of CSED may be free or available at a minimal cost to the custodial parent. When seeking back child support it is extremely helpful if the custodial parent can provide the social security number and the names of employers for the non-custodial parent. In addition, providing names, addresses and phone numbers of friends and former employers who may be able to help locate a non-custodial parent can be helpful.

CSED can access federal income records for parents, which can be invaluable when trying to calculate child support arrears. Once CSED and/or the court have determined an initial calculation of back child support, the non-custodial parent should be allowed an opportunity to provide proof of any payments made or other support provided, which may offset the total arrears calculation. The total amount of arrears is then typically entered as a judgment against the non-custodial parent that may or may not accrue interest depending on the circumstances of the case.

The non-custodial parent may have different options available to pay the back child support, including paying the whole amount as a lump sum, negotiating a reduced sum with the custodial parent or making monthly payments toward the arrears in addition to their ongoing monthly support obligation. If CSED is involved, it will generally require payments to be made via wage withholding so that it can keep track of payments and properly apply them to the ongoing monthly child support obligation and the arrears. However, both parents should also always keep track of payments made and received in case CSED makes a mistake in applying payment or if CSED is not involved at all.

Again, establishing and collecting back child support can be extremely complicated and can have serious financial implication for both the custodial and non-custodial parent. A parent on either side of a case involving child support arrears should think seriously about obtaining legal counsel with family law experience to ensure that back support is fairly and accurately addressed by court and/or CSED.

Related Reading:
Loss of Income and New Mexico Child Support
Financial Changes and Modification of Child Support
The Dangers of Not Documenting Child Support Payments

Collins & Collins, P.C.
Albuquerque Attorneys

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.

Related Reading:
Ten Quick Facts About New Mexico Child Support
Loss of Income and New Mexico Child Support
Ongoing Exchange of Income Information: Benefits for New Mexico Child Support

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico, both parents are legally required to provide financial support for their children. When child support is ordered as part of a divorce or child custody dispute, one parent is typically required to make child support payments until their child turns eighteen (18), or until they are nineteen (19) if the child is still in high school. Depending on the timing of the child support order, parents can be paying child support for a very long time.

Given the substantial financial implications of a child support obligation, to both parents and their children, some parents choose to obtain life insurance policies that will pay their support obligation

style in the unfortunate even that a parent dies before their child turns eighteen (18). In some cases, the court may actually order a parent to obtain a life insurance policy and to maintain that policy until their child support obligation is completely satisfied.

Life insurance policies are available from a number of different places. Some employers offer life insurance to employees as a standard benefit. An employer-provided life insurance plan may not be sufficient to cover a child support obligation because they tend to have fairly low policy limits. However, employer-provided plans typically allow employees purchase additional coverage through the group plan. The major benefit of purchasing through a group plan is that it may not require completion of a medical examination, provided that the coverage stays under a certain amount.

Parents may also apply to purchase an individual life insurance policy directly from an insurance company. Insurance companies provide full life and term life insurance, and will offer significantly varied amounts of coverage. The insurance company will require a physical examination with a doctor or nurse, so that they can assess the health of the applicant. Any health conditions, along with smoking, will increase the cost of life insurance. Additionally, the cost of life insurance will vary depending upon the age and lifestyle of the insured person.

Once they have obtained life insurance coverage, parents may have several options for choosing the policy's beneficiary. The simple, direct approach is to name the child as the beneficiary of the life insurance policy. The problem with this approach is that it may provide a large lump sum to a child under the age of eighteen (18). Generally, a guardian will need to be appointed to administer the funds on behalf of the child. Then at age eighteen (18), the account must be given to the child outright. In the alternative, a trust fund could be set up and a trustee appointed to administer the life insurance funds. Or, the parent obtaining the life insurance policy may name the other parent as the beneficiary of the policy, which means that any proceeds would go directly to the other parent.

Given how unpredictable life can be, parents should carefully consider the options available for securing child support obligations. Life insurance can be expensive, but can provide both parents with an invaluable level of peace of mind knowing that their child will always be supported. Consulting with an experienced family law attorney is essential in any child support action so that parents on either side can understand their options for securing a child support obligation with a life insurance policy.

Related Reading:
Loss of Income and New Mexico Child Support
The Dangers of Not Documenting Child Support Payments
New Mexico Child Support Enforcement: CSED Enforcement/ Collection Methods

Collins & Collins, P.C.
Albuquerque Attorneys

Parents involved in a divorce or child custody matter may often find themselves bombarded with paperwork, including documentation of income, assets and expenses, which they hope will end once the court makes a final ruling in their case. However, any family law case involving child support can mean that the stream of paperwork will keep flowing until the child emancipates and a child support obligation creases.

This is because, in New Mexico, the courts maintain jurisdiction over the issues of custody, timesharing and child support until a child turns eighteen (18), or in some cases until the child turns nineteen (19) if they are still in high school. In turn, a section of the New Mexico child support statutes (2004 NMSA 40-4-11.4) provides that either parent may ask the other to exchange certain income and expense information on an annual basis.

All New Mexico child support orders should include some type of language requiring parents to exchange the following information at least once per year upon request by either parent: 1) federal and state tax returns for the preceding year, including all W-2 statements and IRS Form 1099s; 2) wage and payroll statements for at least four (4) months preceding the request; 3) proof work-related daycare costs and payment thereof for the preceding year; and, 4) proof of dependent medical insurance premiums and payment thereof for the preceding year.

The idea behind the annual exchange of income requirements is that parents should exchange this information every year in order to determine whether or not a modification of child support is warranted. Child support can only be modified by the court when there has been a material and substantial change in circumstances. The court will only find that a change in circumstances is material and substantial if it results in an increase or decrease in child support of at least twenty percent (20%). Thus, the courts want the parties to exchange income information and determine whether or not they meet the twenty percent (20%) requirement before either parent files for a modification of child support.

Not all parents request an annual exchange of income; some are content to carry on with an initial child support order for years. However, both parents are entitled to make the request and both parents are required to respond to such a request, which, depending on the age of their children, can result in parents exchanging paperwork for years and years. While the result of the annual exchange requirement may create a seemingly endless exchange of documents, it really is a good thing.

The annual exchange requirement is a method for parents to reevaluate child support yearly without necessarily having to involve the courts. If the income information shows that child support will not change, then the parents can go on their way until the next year. Or, if the income information shows that a modification of child support is necessary, then the parents can calculate and agree on a modification. Upon such an agreement, parents can simply submit as stipulated order memorializing that agreement to the court for approval. As long as the modification is clearly supported by a child support worksheet as required by the New Mexico child support guidelines, the court will likely enter the order and may not even require a hearing to do so.

Of course, the parents may not agree on a modification and may have to pursue court action to force the issue, but because of the annual exchange of income information, the parent pursuing the modification should be prepared to prove their case to the court. A parent on either side of a child support obligation is well-served to consult with an experienced family law attorney at any point in the child support process.

Experienced family law counsel can help parents complete and enforce the required annual exchange and handle the potential modification that comes from the exchange.

Related Reading:
New Mexico Divorce and Family Law Jurisdiction
The Basics of New Mexico Child Custody Jurisdiction
The Dangers of Not Documenting Child Support Payments

Collins & Collins, P.C.
Albuquerque Attorneys

In a recent landmark case known as Chatterjee v. King, the New Mexico Supreme Court ruled on some very important issues involving same sex couples and their rights to establish parentage under New Mexico's Uniform Parentage Act ("the UPA") and child custody under New Mexico's Dissolution of Marriage Act.

The facts as stated in the opinion are as follows. Chatterjee and King were involved in a long-term, committed, domestic relationship during which they agreed that they wanted to have a child. With Chatterjee's full support and participation, King adopted a child from Russia. Chatterjee presented evidence to the court that she supported King and her child financially, that they all lived together as a family, and that she actively co-parented the child. After several years Chatterjee and King, chose to end their relationship, at which point Chatterjee had not adopted the child. King moved to Colorado and tried to prevent Chatterjee from having any contact at all with the child. Chatterjee then filed a petition with the district court to establish parentage and determine custody and time sharing.

In reaching its decision, the Court had to examine the question of whether or not there were sufficient facts to establish that Chatterjee was an interested party under the UPA, which would give her standing to establish parentage. In this regard the Court applied Section 40-11-5(A)(4) of the UPA, which sets the forth criteria required to establish a presumption that a man is a natural parent. The Court reasoned that like a man, it is practical for a woman to hold a child out as her own by providing emotional and financial support for the child.

The court discussed at least two important reasons for reaching this decision. First, to reach a different result could raise constitutional concerns in that the UPA would apply differently to similarly situated men and women. For example, if the court ruled that Section 40-11-5(A)(4) of the UPA applied only to men, then a man in a same sex relationship who claimed to be a natural parent based on the fact that he held the child out as his own would have standing because of his gender, while a woman in the same position would not. In other words, if the Chaterjee case had involved a same sex relationship between two men , then a man in the same position as Chatterjee would have had standing to establish parentage under the UPA, while Chatterjee would not.

Equally important is the Court's recognition of parents' obligation to support their children. The Court cited some statistics that show that in 2000 the idea of a "traditional" American family--mom, dad and two children--only applied to 23.5% of the population. For this reason, the Court concluded that it is in New Mexico's best interest that parents are identifiable in order to ensure that parents' obligation to support their children is met.

Having determined that Chatterjee had the right to establish parentage under the New Mexico UPA, the Court also concluded that she had standing to seek joint custody under the New Mexico Dissolution of Marriage Act and remanded the case back to the lower court to address the details of custody, visitation and child support.

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Supreme Court recently issued its opinion in Diamond v. Diamond in which it ruled that a minor child may be emancipated from his or her parents and, yet, the parents may still be obligated to pay child support for the emancipated child. The Diamond decision was a reversal of the New Mexico Court of Appeals' previous ruling that emancipated children must be able to manage their financial affairs and, therefore, could not be entitled to child support from their parents.

The specific facts of the Diamond case centered on an emancipated child's claim to child support from her mother. However, in broader terms, the Diamond ruling makes it clear that a New Mexico District Court may declare that a child aged sixteen or older to be emancipated for one, or more, of the purposes set forth in the New Mexico Emancipation of Minors Act ("the Act"), which can include things like: the ability to consent to medical care without parental consent or knowledge; enrolling in school or college; and, establishing a residence. While the new ruling clarifies the purposes for which a minor can be emancipated, it does not change the underlying requirement that emancipation must be in the minor's best interest.

In Diamond, the minor had been living apart from her mother for two to three years, during which time she paid her own expenses, attended school and worked. She sought emancipation because she was having difficulty obtaining medical insurance, accessing her school report cards and applying for a driver's permit, all of which required parental consent. The district court issued a "Declaration of Emancipation of Minor" finding that the minor had been living independently and managing her own financial affairs without support from her mother and determined that emancipation was in the minor's best interest. She was declared emancipated in all respects under the Act, except that she retained the right to support from her mother. Subsequently, a hearing officer ordered the mother to make support payments to the minor until she reached the age of eighteen or graduated from high school, whichever occurred later.

At the outset, the Diamond Court found that the minor met the prerequisites for a valid petition for emancipation, which are that: 1) the minor must be sixteen years of age or older; 2) the minor must be willingly living separate and apart from his parents, guardian or custodian; and, 3) the minor must be managing his or her financial affairs. After those factors are met, the court must find that emancipation is in the best interest of the minor.

If the prerequisites of the Act are met and the emancipation is in the minor's best interest, then the minor may be considered emancipated for one or more of the following purposes: 1) consenting to medical, dental or psychiatric care without parental consent, knowledge or liability; 2) the capacity to enter into a binding contract; 3) the capacity to sue and be sued in their own name; 4) the right to support by their parents; 5) the rights of the child's parents to their earnings and to control them; 6) establishing their own residence; 7) buying or selling real property; 8) ending vicarious liability of their parents; or, 9) enrolling in any school or college.

In finding that the minor in Diamond could be emancipated for all purposes except for ending her right to support from her mother, the Court found that there is no inconsistency in the Act's requirement that the minor must manage his or her financial affairs and requiring parents to continue to support their emancipated children. Emancipation cases can be factually and legally complicated. Anyone involved in a disputed emancipation case should contact an experienced family law attorney as soon as possible in order to examine how the Diamond ruling applies to their case.

Related Reading:
Ten Quick Facts About New Mexico Child Support
No Escaping Death, Taxes and New Mexico Child Support
Emancipation of Minors in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

The Child Support Recovery Act (CSRA), often referred to as the "deadbeat-dad" (deadbeat parent) law, makes it a federal crime to flee a state in order to avoid having to pay a child support arrearage. The CSRA does not apply to every child support case. Rather, the CSRA is only invoked when a parent has willfully failed to pay child support resulting in an unpaid child support balance that exceeds five thousand dollars ($5,000.00) or that has not been paid in more than one (1) year.

When a case is being considered for referral to the U.S. Department of Justice, it must be evaluated to ensure that it meets all of the required elements of the CSRA. First, the non-custodial parent (NCP), or the parent who owes child support, must have the ability to pay. This does not mean that the NCP must be able to pay the entire arrearage. If the NCP can pay any amount towards the support obligation, their failure to do so is usually sufficient to meet the ability to pay requirement.

Second, the NCP must have willfully failed to pay his or her child support obligation. This means that he or she knew of the child support obligation and intentionally failed to pay. In order to show that the NCP knew of the support obligation, he or she must have been properly served the order for support. There should also be documentation available in the form of letters, notices, telephone calls and even contempt proceedings to demonstrate that the NCP does not intend to pay the obligation.

Third, the past due child support obligation must be greater than five thousand dollars ($5,000.00), or must have remained unpaid for more than one (1) year, and the NCP must reside in a different state than the child.

In addition to ensuring that the case meets the requirements of the CSRA, there are other factors that need to be considered before a case is referred for federal prosecution. These factors include the following:

1. Are there any non-federal criminal or civil remedies available that provide an adequate means to collect the child support owed?


2. Is there sufficient evidence available in order to obtain a conviction?


3. Does the NCP have the ability to pay toward the child support obligation?


4. Is there a pattern of repeated flight from state to state to avoid either the payment of child support or service of the child support order?


5. Is there a pattern of deception to avoid payment? This would include concealing assets or frequently changing employment.


6. Is there a failure to pay the arrearage even after a finding of contempt of court?

If, after evaluation, a case is referred for federal prosecution and the NCP is found guilty, then the penalties can be serious. For a first time offender, the failure to pay a child support obligation is a misdemeanor punishable by up to six (6) months in prison. Subsequent violations may include a sentence of up to two (2) years in prison. The CSRA also requires an order of restitution for the amount of child support owed at the time the NCP is sentenced and all orders for probation must require that the NCP comply with any current child support obligations.

Both federal and state governments take the obligation to pay child support very seriously. Any parent involved in a child support dispute should consult a family law attorney to explain their rights and duties under all of the applicable child support laws.

Related Reading:
New Mexico Child Support Enforcement: CSED Enforcement/ Collection Methods
Ability to Pay in Child Support Contempt Hearings
Loss of Income and New Mexico Child Support

Collins & Collins, P.C.
Albuquerque Attorneys

Clients often begin representation assuming that, when a couple is divorced, the husband will automatically pay the wife child support, and in some cases, alimony, which is in New Mexico is often called spousal support. The logic behind this belief is quite simple.

Historically, the husband was typically the "bread winner" or "provider" of the family and was routinely relied upon to provide the financial support for his family. This responsibility generally continued through divorce proceedings in the form of child support and alimony payments to the wife. However, as more and more women have entered the workforce during the past few decades, more and more wives have to pay child support and, at times, alimony after a divorce.

In New Mexico, child support is statutorily mandated and is based on the gross incomes of the parties, among other things. Therefore, the more income a woman makes, the more likely it becomes that she may have to pay child support to her former husband. In contrast, alimony is not mandatory in New Mexico, but rather is based on a set of factors which are set forth in the , including but not limited to, the length of the marriage and the age and ability of the parties. These Alimony Guidelines created in the Second Judicial District (Albuquerque) largely set forth the factors and calculation of alimony in New Mexico.

In some cases, alimony is awarded to pay for the cost of education or training for a spouse that has been out of the workforce during the marriage so that that spouse can become gainfully employed down the road. As an increasing number of husbands have stayed home to take care of children while wives worked, it has become more likely that a woman may have to pay alimony to help their former husband get back into the workforce. The award of alimony in these cases will also reflect the disparity of income between the parties.

A recent nationwide survey of divorce attorneys conducted by the American Academy of Matrimonial Lawyers found that the traditional notion of husbands always paying child support and alimony no longer holds true. More women are paying alimony and child support than ever before. In fact, fifty-six percent (56%) of the divorce attorneys that responded to the survey reported that they have seen an increase in the number of women paying child support, and forty-seven percent (47%) of the attorneys polled reported an increase in the number of women paying alimony to their former husbands.

And, the primary reason for this shift can be explained by the changing role of women in the workforce. Since 1980, the number of women obtaining professional degrees in law and medicine and holding high paying corporate positions has skyrocketed. These women are now earning more than their spouses and becoming the family breadwinners. During this same period of time, the number of marriages ending in divorce has remained relatively constant with about half of all marriages ending in divorce. Thus, the legal guidelines that determine who pays child support and alimony, and how much is paid, now often compel these highly educated and highly paid women to make the payments.

Obviously a divorcing spouse usually wants to minimize their financial obligations to their former spouse after a break-up. However, it is important to understand the changing dynamics of these issues and the way that custody and alimony payments may be decided in each individual case. An experienced divorce attorney can help explain these dynamics and the potential child support and alimony obligations inherent in a modern divorce.

Related Reading:
Calculation of Gross Income for New Mexico Child Support Worksheets
New Mexico Alimony: Til Death Do Us Part!
Three Basic Classifications of Support in a New Mexico Divorce

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico, the courts are required to address child support in any divorce involving minor children, or other determination of custody. The amount of child support is calculated based upon the income of the parents, specific child-related expenses, and the parents' custody arrangement using what are called child support worksheets. The payment of child support is mandatory and only in rare cases will a court deviate from the amount of child support due based on the child support worksheets.

Further, New Mexico law provides that child support payments should be made via wage withholding. The wage withholding order tells the employer of the parent ordered to pay support to take the child support payments directly out of the employee's paycheck as they would any other payroll deduction and to send the funds directly to the New Mexico Child Support Enforcement Division (CSED), or in some cases, directly to the parent receiving the child support.

The wage withholding order must state the amount of the child support payment as well as the length of time that support payments are to be made. The wage withholding order must also include the amount of any arrearage or back support due up until the day of the child support order along with the amount of any interest due on the arrearage. It is important to note that the maximum amount that may be withheld, along with any other wage garnishments, may not exceed fifty percent (50%) of the employee's income.

The court may make an exception to immediate wage withholding if it finds that there is good cause for not ordering immediate wage withholding or if the parents enter into a written agreement providing for an alternative way of satisfying the child support obligation.

Given that immediate wage withholding of child support payments is generally required under New Mexico law, the entry of a wage withholding order should not be viewed in a negative light by either the parents or the employer. In fact just the opposite is true. Wage withholding orders generally benefit both parents because it provides a means of tracking child support payments while ensuring that support payments are made promptly each month.

When a parent does not have regular employment, wage withholding may not be possible. Nonetheless, the parent ordered to make child support payment is still required to make the payments on time each month to either the receiving parent or to CSED. If the parent fails to make the payments CSED has many tools available to ensure that delinquent child support payments are collected, which includes everything from suspending the non-paying parent's driver's license to seizing their bank accounts and tax refunds.

Anyone looking at paying or receiving child support should discuss their rights and responsibilities with an experienced family law attorney, not only to ensure that the proper amount is being paid but to make sure that the payment is made in the most efficient way possible.

Related Reading:
New Mexico Child Support Enforcement: CSED Enforcement/ Collection Methods
The Dangers of Not Documenting Child Support Payments
Child Support Wage Withholding Benefits All!

Collins & Collins, P.C.
Albuquerque Attorneys

There are a number of reasons why divorced or separated parents move away from the city or state where their children reside. Whether it is the custodial or non-custodial parent who is moving away, or both, such a move creates obvious problems for parents who share child custody.

However, there are a host of long-distance time-sharing solutions that parents can try in order to minimize the stress that a substantial change in time-sharing can put on their children. It goes without saying that any solution will be much more effective when parents have a civil relationship that encourages open communication about child issues, including custody and time-sharing arrangements.

First of all, in a joint custody situation, when a parent wants to take their children out of state permanently, the moving parent cannot leave with the children without the agreement of the other parent. If the parents can't agree on the move, then the parent who wants to relocate with the children will need to get the Court to approve the move. Many New Mexico parenting plans provide a set of procedures for parents to follow when one or both want to leave the state with the children.

When the Court does allow a parent to move with the children, there are several issues to be considered. Other than missing regular contact with their children, the costs of travel and other expenses presented by long-distance time-sharing can be one of the most difficult issues for parents to address. Aside from travel costs required to visit with the non-custodial parent, there may also be long-distance telephone bills as well as increased costs for mailing gifts and other items. Parents may also wish to purchase a computer, web camera, or cell phone to keep in touch with their out-of state children.

This may require some compromises on the part of the parents. In the absence of compromise, the intervention of the Court may be required. In some cases the Court may reduce child support payments to make up for the costs of travel and communication. In other cases, ther Court may require the moving parent to be largely or fully responsible for travel and other communication costs.

The logistics of scheduling visitation also becomes more difficult in a long-distance time-sharing agreement and will depend heavily on where the parent and children are moving. It is generally easier for parents to schedule frequent visits between New Mexico and a neighboring state than a distant state. In addition, distant locations my complicate travel for small children when flight connections are required. In fact, this may not be realistic at all since navigating airports and connections, even with the assistance of airport personnel, can cause significant stress on a young child traveling alone. If long distances make it impossible to have frequent visits, the court will often restructure visitation to provide for longer visitation periods with the non-custodial parent during the summer months or other periods when the children are out of school.

Assuming the children are moving also, when planning a move that will require long-distance time-sharing, the moving parent should be ready to show the Court that they are not moving in an effort to create distance between the non-custodial parent and children. The moving parent should also be open to facilitate as much time as possible during school breaks and summers to compensate the other parent for lost time with the children.

Parents pursuing relocation should also try to support a relationship between the children and the non-custodial parent and strive to maintain communication and shared parenting responsibilities with the non-custodial parent. Getting approval for relocation can be a very long process and any parent considering relocation should consult an experienced child custody attorney as soon as possible in order to ensure that the process is on the right track from the beginning.

Related Reading:
Taking Your Child Out Of State in a New Mexico Child Custody Case
Custodial Interference in New Mexico Divorce & Family Law Cases
Leaving the State in Child Custody Setting

Collins & Collins, P.C.
Albuquerque Attorneys

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.

Related Reading:

The Dangers of Not Documenting Child Support Payments
Bankruptcy Does Not Eliminate Support Obligations
5 Tips to Help Child Support Go Smoothly
Child Support Contempt Hearing Procedures Following Turner Case

Collins & Collins, P.C.
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