Albuquerque Divorce Lawyer Blog

When families split up, parties are often concerned about how they will continue to support themselves and their children. In New Mexico family law, there are three primary types of support awarded by the court: child support, spousal support, which is also called alimony, and interim support. The district court with which a divorce or parentage action is filed has the authority, or jurisdiction, to order one party to pay the other all three types of support.

The most commonly asked about form of support is child support, which is governed by the New Mexico Child Support Guidelines. The child support guidelines were created by statute to provide a clear calculation of child support that begins with both parents' gross monthly incomes and then gives credit to both parents for amounts paid for work-related child care and health insurance coverage for their children. In New Mexico, the child support guidelines are mandatory and must be followed unless a court finds good cause for deviation from the guidelines. It is quite simply a mathematical calculation. Of course, this will not stop arguments over the beginning basis of gross monthly income.

In contrast to child support, spousal support is not mandatory in New Mexico. The courts will look at a variety of factors in deciding whether or not to award spousal support, including the length of the parties' marriage, the relative earning capacity of each party and the parties' age and health.

In turn, interim support (interim division of income and expense) is different from both child support and spousal support because interim support is only effective from the date of the parties' separation until their divorce is finalized. It is calculated by adding all the income of the parties, subtracting all the allowable expenses, and dividing what's left over equally between the parties. This is often a hotly contested calculation.

By contrast to interim support which terminates upon finalization of the divorce, child support and spousal support are normally only effective once a divorce is finalized. Both interim support and spousal support are only available to parties who were married, whereas child support is imposed in any case in which parties share a child, whether or not they were married.

Calculation of any of these types of support can be complicated and will depend heavily on both parties providing accurate income information. Contacting a qualified family law attorney can help parties collect income information in order to ensure that any type of support is fairly imposed and enforced by the courts.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

Depending on the circumstances of a divorce, there can often be months or years that elapse between the time the parties separate and the finalization of the divorce. This delay can be caused by a variety of reasons from the legitimate to the malicious.

No matter the reason, the parties' debts still need to get paid while the divorce is pending and both parties are entitled to a portion of the community income. New Mexico Rule 1-122 accordingly allows the court to issue interim orders allocating income and expenses. The payments awarded in these orders is often referred to as interim support.

The premise underlying interim division of income and expense or interim support is that even though the parties may be separated, they are still technically married, which means that all of their income and debts are still community and must be allocated equally between the parties.

In order to calculate interim support, the court, or more often the parties themselves and their attorneys, creates a table that starts with the parties' gross monthly income. The court then allows each party to subtract their regular monthly payroll deductions to reach each party's net monthly income. Each party is then allowed to deduct their regular and necessary monthly expenses from the net income, which include among other things rent, mortgage payments, utilities, car payments, insurance, phone bills and the minimal monthly payment on credit card bills.

The money left between the parties after the subtraction of monthly expenses from net monthly income is referred to as the parties' spendable income. If the number for the parties' net spendable income is positive, then an equalization payment must be made so that each party gets half of the community's total monthly spendable income. If the parties have children, then an extra percentage may be added to the equalization payment to compensate the party with whom the children are primarily living. This equalization payment is called interim support.

What expenses can be included in an interim support calculation is often the subject of great conflict between the parties due to the allocation of the remaining net monthly income after deduction of these expenses. Both parties will often fight very hard to create an income and expense sheet most favorable to them in the end equalization of income.

Interim division of income and expense can be critical to the interests of the parties while the divorce is pending. However, this division is often both complex and contentious making it important to consult with an experienced New Mexico divorce and family law attorney in addressing these issues.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

The Servicemembers Civil Relief Act was enacted by Congress to protect members of the armed forces from having to defend against civil suits while on active duty. Given that it is a federal law, the Relief Act applies across the country, but it affects many New Mexico divorce and family cases due to the many service members stationed at Kirtland Air Force Base or Sandia National Laboratory in Albuquerque as well the other military installations across New Mexico.

The Relief Act applies to members of the Army, Navy, Air Force, Marine Corps, Coast Guard and some members of the National Guard and other government agencies. As you might imagine, the Relief Act, which can be found at 50 U.S.C. App. §§ 501-596, is lengthy and addresses a very wide scope of issues facing servicemembers. Its primary affect on divorce and family law cases comes in Sections 521 and 522, which allow the courts to stay any civil proceeding against a service member for at least 90 days and sometimes longer.

A stay means that the Court essentially puts a case on hold and takes no action for the length of the stay. This means that the Court will place a hold on divorce cases including the division of property and debt, alimony, child custody determinations and awards of child support until the stay is lifted.

For example, two parties to a divorce action live in Albuquerque with their children and the mother is an active duty with the air force and stationed at Kirtland. The parties have decided to get a divorce, but before they file any action, the mother is deployed to serve in Iraq. While mother is serving in Iraq, the father is the primary caregiver for the children, but mother is not paying any of the family bills or child support. Further, when the mother returns from Iraq, she is being transferred to another base outside of New Mexico and threatens that she is taking the children with her. What can the father do in this situation? The answer is that his options are limited by the Relief Act.

Normally, the father would file for divorce by filing a petition for dissolution of marriage to get the divorce case started and ask the court to award interim support and temporary custody. The father can still file the petition, however, it is very difficult to personally serve the mother with the divorce paperwork whiles is serving in Iraq. Further, even if the mother does get proper notice, she can request a stay and the court will not order any support or custody for at least 90 days, leaving the father without any interim financial support or child custody.

The Relief Act and its effect on a family law case can be very complicated. Whether you are a service member involved in a divorce and/or custody dispute or a civilian, it is very important that you contact an attorney as soon as possible after such a dispute begins in order to discuss your rights and limitations under the Relief Act and other relevant laws.

www.CollinsAttorneys.com

One of the first issues to arise when a couple decides to get divorced is which spouse gets to stay in the community residence or marital home? Often, one spouse will hire an attorney very quickly after the spouses decide to get divorced. In some cases, the other spouse may not be aware that a divorce is in the works until they are served with the Petition for Dissolution of Marriage, which officially begins the divorce process. At some point in the divorce process, one spouse's attorney will often send a letter that demands that the other spouse immediately vacate the family home. However, such a demand is unenforceable.

The only way to force one spouse out of the home is to get an order from the court forcing them to vacate. Both spouses have an equal right to use of the home while the divorce is pending under the community property laws of New Mexico. A Motion must be filed asking the court for such an order to vacate, which is often filed along with a Motion for Interim Division of Income and Expenses. In accordance with the Community Property Laws of New Mexico, both spouses are equally entitled to use of all of community assets, including the marital home and the spouses' income. In turn, the spouses are also equally responsible for payment of the community debts. The purpose of the Interim Division of Income and Expense is to divide the spouses' income and allocate responsibility for payment of the spouses' expenses while the divorce action is pending.

Upon filing of a Motion, the Court may consider a number of factors in determining which spouse should remain in the home, including, among other things: the financial situation of the spouses; the ability of each spouse to afford a separate home; the presence of children in the home; and the existence of domestic violence. After weighing all of those factors, the Court may or may not order either spouse to vacate the marital home. If the Court declines to order one spouse to vacate, then the spouses must decide whether or not they will be able to tolerate living in close proximity during their divorce proceeding. If there is a high amount of conflict between the spouses, then it is wise for one spouse to vacate the home in order to avoid any possibility of an incident of domestic violence.

www.CollinsAttorneys.com