If you have a child who is under 18 years old or is still in high school, that child is considered a “minor.” If you are divorcing, you and your spouse must include agreements or court orders for child custody and child support in your divorce. In divorce, child support rarely begins until after the divorce is final. If you and the other parent were never married, child custody and child support orders are made under a Parentage case. Parentage cases often involve large amounts of child support “arrears” that can accumulate from the time a child was born to the time the parentage case was accumulated. Child support can also come in to play in Kinship Guardianship cases, in which case both parents could be ordered to pay child support to the guardian.
Calculating Child Support and Other Expenses
Child support is calculated according to the New Mexico Child Support Guidelines. The basic process is very formulaic – enter the factors, and the worksheet will spit out the amount to be paid. There are many factors that go into child support, including the number of children, gross income of both parents, the current custody order, payments for health and dental insurance, daycare costs, and other expenses for the child. The custody order for the child can have a significant impact on child support. There are two child support worksheets that can be used. “Worksheet A” applies when one parent has physical custody for more than 65% of the calendar year. Worksheet A results in a much higher child support amount for the paying parent, as it is assumed they do not shoulder the majority of costs for the child. Whether the paying parent has 1% of the year or 34% of the year, the amount paid remains the same. However, once a parent has 35% or more of the calendar year, the parties switch to a “Worksheet B,” for shared custody situations. Worksheet B is a flexible worksheet that reduced the amount of child support as the paying parent’s physical custody increases. The more physical custody a parent has, the more it is assumed that parent’s expenses for care of the child increase as well.
The court will also make orders for other expenses for the child not specified on the worksheet, and base the percentage each parent pays according to their incomes on the worksheet. For example, on the worksheet parent incomes are combined into 100% of “combined income,” and each parent’s percentage of the combined income is the percentage they are held accountable for. So, if Parent 1 earns 70% of the combined income, and Parent 2 earns 30% of the combined income, Parent 1 will be responsible for 70% of out-of-pocket healthcare expenses, and Parent 2 30%. Recreational expenses may also fall under this category if the parties are on a “Worksheet B,” however on a Worksheet A the parent who is receiving child support is responsible for all recreational costs.
If you wish to run a child support calculation yourself, a link to the New Mexico Courts’ child support worksheet calculator is available on our “Forms and Resources” page. While calculating child support may seem straightforward, New Mexico statutes and case law have many details which can increase or decrease a party’s income, and increase or decrease expenses for a child. As such, meeting with an attorney is highly recommended to make sure you are calculating child support correctly. For example, a parent who is unemployed or “underemployed” could be held to a higher level of income on the worksheet than what is actually claimed – this prevents a parent from purposefully failing to get a job at an income they are capable of earning in order to avoid child support. A parent may avoid this “imputation” of income if they have sufficient evidence to show they are actively trying to obtain employment and for circumstances outside of their control are unable to do so. Whether or not a parent has children from a previous relationship could also affect child support calculations. If a parent is paying a prior child support order, that order will take priority over the younger child and the parent can reduce their income on the worksheet. However, a parent receiving child support for another child does not have that income added to their worksheet.
Although child support orders often go hand-in-hand with custody orders both in negotiations and in the courtroom, and the amount of child support is determined in part by the custody schedule, it is important to remember that the court views custody and child support as separate matters. The court will decide custody according to a child’s best interest, and then will determine child support based on the formula and legal arguments. The court is unlikely to change custody due to failure to pay child support, and the Court is unlikely to consider incomes when deciding what custody schedule is appropriate.
Waiving or Reducing Child Support
Many parents are able to reach agreements where child support is reduced or completely waived. In an equal custody situation, it is possible that the amount of child support is so close to zero that the parties agree to waive the amount because it is more trouble to track the payments than to actually receive them. In other cases, the worksheet provides a number that is realistically impossible for the payor to make. In some cases the court could decide to decrease the amount actually ordered if the parent can show substantial hardship, or the parties could agree to reduce the amount. In either case, it is important to remember that agreement to reduce or waive child support does not obligate the receiving parent to continue to agree – under the right circumstances, a request to modify or reinstate child support could start the process over again.
Modifying Child Support
Once obligations for child support and related expenses are determined, that is the sole obligation for the paying parent, and the parent receiving support cannot demand additional financial support. By law, parents can re-evaluate child support every year for any increase or decrease in payments or percentage of income. However, child support could be changed earlier for good cause, such as a dramatic change in income, a change in custody, or if a child turns 18 years old or graduates from high school. If you have multiple minor children, child support should be re-evaluated every time a child emancipates, as a lower number of children on the worksheet will decrease the child support owed. It is important to remember that the court will only modify child support from the time it is requested (i.e. when a motion is filed). Therefore, it is very important a request to modify child support is made as soon as the change in circumstances is known.
Child Support Enforcement
Failure to pay child support falls under enforcement of court orders. Child support arrears accrue interest at a rate of 4% per annum. It is often very helpful for parents to enroll with Child Support Enforcement Division to help track payments, missed or late payments, and resulting interest. Child Support Enforcement could also assist parents with collecting ongoing child support (such as garnishment and suspending licenses) or large amounts of past-due child support (such as intercepting tax refunds). While Child Support Enforcement is usually the most useful for the parent receiving child support, some paying parents prefer to enroll with Child Support Enforcement themselves, especially if they are faced with a parent who claims they do not receive payments or makes it otherwise difficult for the paying parent to comply with the child support order.