How is child support calculated in New Mexico?
New Mexico law sets out child support guidelines, which are revised periodically. The amount is based on a formula, not on what the parents think is fair. Child support is based on both parents' gross income (before taxes are taken out). You can access a table of base child support amounts at www.supportguidelines.com.
How much money one parent pays to the other depends on whether you use a Worksheet "A" or "B." Choosing the worksheet depends on how much time the children spend with each parent. Most families fall into the Worksheet A group, which means the children primarily live with one parent and spend alternating weekends, alternating holidays, and some vacation time with the other parent. Use Worksheet B if the children spend between 35% and 50% of the calendar year with the non-primary custodial parent. In that system of shared responsibility, essentially the parents maintain two households for the children and share responsibility for all aspects of the cost of raising the children -- buying clothing and shoes, haircuts, school expenses, extracurricular or sports activities, prom dresses, camps, and so on.
Do we have to follow the child support guidelines?
Yes, in most cases. The right to receive the legal amount of support belongs to the child, not to the receiving parent. If the parents must agree on a child support amount that's lower than what the child support guidelines provide, they must have a good reason. The judge will review the reasons and determine whether it is in the child's best interest to allow it. (Judges have no reason to object to a higher amount.) For example, the cost of living in Santa Fe is high, and the court may grant a "hardship" deviation from the guideline amount.
The most commonly accepted reason is if the parent paying child support also takes on a disproportionately higher amount of the community debt at the divorce stage, and that parent cannot meet the debts and the child support and still have money left over for very basic living expenses. In such a scenario, the court will sometimes approve a lower child support amount conditioned on the paying parent sticking to a budget, for a specific time (usually one or two years), to make the debt payments.
Parents cannot simply agree that neither owes child support. Judges require a child support worksheet to be attached to every order that addresses custody, timesharing, and child support, whether it's the original order or a modification of a previous order. The burden is on the parents to convince the judge that no child support serves the child's best interest. In rare cases, the judge will accept the explanation. Usually, the judge overrides the parents' agreement and imposes guideline child support.
Is a subsequent spouse's income included with the parent's income for child support purposes?
No. The new spouse has no legal obligation to contribute to the financial support of the child.
If we have joint custody, does either parent owe child support?
Yes. Joint custody can mean either joint legal custody, which refers to decision-making powers, or joint physical custody (called timesharing or periods of responsibility), which means how much time the children spend in each parent's care. Because child support is based on both parents' gross incomes as well as the amount of time in each parent's care, one parent usually owes child support to the other. Only if both parents earn exactly the same gross income, pay equal amounts for insurance and work-related daycare, and have the children the exact same number of days per year will no child support be owed.
If I have more children with a different partner, can I lower my child support?
Not necessarily. Having more children later is not typically sufficient reason to lower your existing child support obligation to your older children. Sometimes the judge can take into consideration the reality of having to raise multiple children, and the fact that it costs money to raise subsequently born children can be used as a defense when the other parent seeks to increase child support, but the burden is on the parent of the later-born children to convince the judge to deviate from the child support guidelines.
When does child support end?
Child support ends when the child is legally emancipated, either by court order or when the child reaches age 18 (or up to age 19 and until graduation from high school, whichever occurs first). Child support also ends if the child joins the military, dies, or gets married. If the child has a disability that makes it impossible to support himself or herself, then child support can continue indefinitely. If a child becomes pregnant and gives birth, this does not legally emancipate the child; child support cannot be terminated solely because the child has become a parent.
Can I stop paying child support if my ex refuses to let me see my children?
No. The legal obligation to pay child support is not conditioned on being able to spend time with the children. The children need food and clothing regardless of the games being played between the alleged adults. Go to court and seek to enforce the visitation order, but don’t stop paying child support.
Can I get child support even if I was not married to the other parent?
Yes. Parents are required to support their children regardless of whether the parents were ever married to each other. If a woman sues for support, she must establish the man’s paternity. In such instances, child support is owed back to the birth of the child. The mother can also seek to recover pregnancy-related and birthing expenses that were not covered by insurance.
Is the cost of insurance included in child support?
The cost of providing medical, dental, and vision insurance is included in the child support formula. Either parent can pay for the insurance and have it included in the formula. If both parents could provide insurance, then the court picks the best policy at the lowest cost.
Is the cost of work-related day care included in child support?
Yes. The cost of day care incurred to enable a parent to work is included in the child support formula. "Work-related" can also include the cost of daycare for a parent to attend school or job training, if that parent can show that the courses taken are directly related to enhancing that parent's earning potential. A parent cannot include day care or babysitting expenses to attend non-work-related activities. Sometimes a parent has to pay for full-time day care just to keep the child's place at the facility, even if the child attends less than full time. In those instances, the total amount of the day care can be included in child support.
What else is included in child support besides insurance and day care costs?
New Mexico has an "additional expenses" variable on its child support worksheets. The most commonly accepted additional expenses are costs associated with:
- long-distance visitation plans (plane tickets, gasoline for driving the children to the other home, and long-distance phone calls)
- regular psychological counseling for the child who is not covered by insurance
- orthodontia
- private school tuition when both parents agree the child should go to a private school, and
- auto insurance for teenage drivers.
Do parents have a legal obligation to share any other expenses for the children besides child support?
Yes. The costs for medical, dental, and vision expenses, and prescriptions not covered by insurance, are shared in some fashion, either 50-50 or what’s called pro rata, which is each parent's percentage of the combined gross income. Parents are not required, but are encouraged, to share the costs of extracurricular activities such as sports, clubs, or music lessons. If parents agree to share such costs and put that agreement into the Parenting Plan filed with the court, then the court can enforce sharing of these costs.
Can I include the cost of college in child support?
The short answer is "no," with an added "it depends." Most children do not attend college until after they turn 18 -- and, once the legal obligation to pay child support ends, the court loses authority to enforce child support. But, if the parents clearly spell out their agreement to share college expenses, then the court will enforce that agreement. Because the agreement is subject to the laws pertaining to all contracts, the terms must be very clear and specific from the beginning. The court will not fill in the blanks based on what it thinks the parents meant. For example, if Dad thinks he's going to pay half of the tuition for an accredited state university, for four years, and not have to pay for room and board or books, and Mom thinks Dad agreed to pay for an Ivy League school, including room and board, airfare for multiple trips home per year, and sorority or fraternity fees, then the court is likely to find that the parents never really agreed on the definition of "college expenses." Without a meeting of the minds, the contract is not enforceable.
Is child support tax deductible?
No. Child support is not considered income to the receiving parent, and the receiving parent pays no income tax on the amount received. The paying parent cannot deduct the child support amount.
Who gets to claim the child as a tax deduction?
The IRS has rules about which parent can claim the child as a tax deduction in a given year. Usually, it's the parent with whom the child primarily resides, because that parent usually pays more than 51% of the cost to raise the child (taking into account the portion of overall household expenses attributable to the child). State law does permit the parents to alternate years claiming the child or split the exemption if there is more than one child. If the parent paying child support wants to take the deduction, the trend is to have that parent "buy" the tax exemption--that is, prepare two tax returns for the parent with primary physical custody, and determine the difference to the custodial parent of claiming the child versus not claiming the child. The parent wanting to get the deduction would then have to pay the custodial parent for the lost benefit. Note, too, that only the parent claiming the child as a dependent in a given year can get the day care credit for that year.
Can a child support amount be changed?
The courts don't like parents constantly fighting over the amount of child support every time one parent gets a minuscule raise. If the variables that go into calculating child support change such that there would be a change of 20% or more, up or down, in the bottom-line amount of child support, then a legal presumption arises in favor of changing child support. Each parent has the right to ask the other parent, in writing, to exchange certain financial records once a year. These records include the previous year's tax returns (with all attachments), recent pay stubs, proof of the cost of providing insurance for the children, proof of work-related day care expenses, and more. The purpose is to enable parents to figure out what current child support should be on their own. If the bottom line reaches the 20% change threshold, then child support should be modified. If there is a dispute over changing the amount of child support, the new figure will be retroactive only to the date the Motion to Modify Child Support was filed, not back to the date the income or expenses changed.
Does bankruptcy wipe out a child support obligation?
No. A parent cannot discharge (wipe out) a child support or alimony obligation, nor can a parent discharge child support arrearages. Sometimes a paying parent also owes the other parent's attorneys' fees and costs for court proceedings related to establishing child support or arrearages, and these fees and costs also cannot be discharged in bankruptcy.
Can I require my ex to explain or account for how the child support money is spent?
No. The basic table for child support takes into account the overall expenses for the child's household, not just the cost of food, clothing, and toys for the child. The parent receiving the child support has to maintain a home for himself or herself as well as for the child.
If I quit my job or take a lower-paying one, can I reduce my child support payment?
No. Voluntarily quitting a job, setting yourself up to get fired, or choosing a lower-paying job does not entitle you to reduce child support. For child support purposes, income includes both what you earn and "imputed" income, which is money you could be earning based on employment history. Imputed income also comes into play when one parent works less than full time. The court has the authority to say a parent could make a particular income if he or she worked full time, and then use that figure on the child support worksheet.
Can child support automatically be withheld from my ex's paycheck?
Yes. The receiving parent can require that child support automatically be deducted from the paying parent's paycheck, without proving a history of missed payments or less-than-full payments. The automatic deduction must be routed from the paying parent's employer through the Child Support Enforcement Division, and then forwarded to the receiving parent.
