How is child support calculated in the State of New Mexico?
New Mexico uses "child support guidelines" which are established by the legislature and revised periodically. The amount is figured by formula, and not just a number the parents think is "fair" based on other financial obligations. Child support is based on both parents' gross income (before taxes are taken out). A table of "base" child support amounts appears in the New Mexico statutes, which can be accessed through the website: www.supportguidelines.com (then go to New Mexico).

How much money one parent pays to the other parent depends on whether a Worksheet "A" or Worksheet "B" is used. 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. To get to a Worksheet "B" scenario, the children must spend between 35% and 50% of the calendar year with the non-primary custodial parent. In a Worksheet "B" shared responsibility, essentially the parents maintain two households for the children, and the parents "share" the responsibility for all aspects of the cost of raising the children (for example, buying clothing and shoes, hair cuts, school expenses, extracurricular or sports activities, prom dresses, camps, etc.).

Do we have to follow the Child Support Guidelines?
Yes, in most cases. The right to receive the legal amount of child support belongs to the child, not to the receiving parent, so the parents must provide "good cause" to the judge if the parents agree to a child support amount that's different from the guidelines. Also, New Mexico judges and hearing officers interpret the guidelines differently, on a case-by-case basis, so what is typical procedure in Albuquerque (the largest metropolitan area in the state) may be different from other cities and rural communities. The cost of living in Santa Fe is much higher and it is sometimes slightly easier to get a "hardship" deviation from the guideline amount. I have not experienced a judge objecting to parents agreeing to pay more than the guideline amount. More commonly, the paying parent negotiates or wears down the receiving parent to accept a child support amount that's lower than the guidelines. In those instances, the judge must review the reasons for the lower amount and determine whether it is in the child's best interest to allow the lesser sum. 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 sufficient money left over to pay his/her 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 length of time (usually no more than one or two years), to make the debt payments.

Parents cannot simply "agree" that neither owes child support. At least in Bernalillo County (Albuquerque), the 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, that is true and the judge will accept the explanation. In other cases, the judge can override the parents' agreement and impose guideline child support.

Is a subsequent spouse's income included with the parent's income for child support purposes?
No. A subsequent spouse's income is not included in the parent's gross income for determining child support because 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" (now 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 parent. Only if both parents earn exactly the same gross income, pay equal amounts for insurance and work-related day care, and have the children the exact same number of days per year will no child support be transferred from one parent to the other.

If I have more children (with a different partner), can I lower my child support?
Not necessarily. Child support is paid in the order in which the Court establishes child support, so having more children later on is not typically sufficient reason to lower your existing child support obligation to previously born 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 (make an exception to) 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 is so physically or mentally disabled as to not be able to support himself or herself, and cannot be deemed legally emancipated, then child support can continue indefinitely and not be terminated based solely on the age of the child. If a female child becomes pregnant, the fact of being pregnant or giving birth alone does not legally emancipate the child; thus, child support cannot be terminated solely due to the fact that the "child" has now 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. The remedy for the aggrieved parent is to seek to enforce the visitation order, not to 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 they were ever married to each other. These are known as "paternity" cases, and 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. Paternity cases are different from divorces in that child support only starts when the divorce is finalized. In a divorce case, you cannot seek to collect child support back to birth of the child or back to when the couple stopped living together.

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 such insurance and have it included in the formula. If both parents have the ability to 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 day care 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 social events or 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 or sometimes a relative watches the child. 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: (1) long-distance visitation plans (plane tickets, vehicle gasoline for driving the children to the other home, and long-distance telephone calls); (2) regular psychological counseling for the child that is not covered by insurance; (3) orthodontia; (4) private school tuition when both parents agree the child should go to a private school; and (5) 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 we call pro rata, which is each parent's percentage of the combined gross income. Parents are no longer required, but are still encouraged, to share the costs of extracurricular sports or clubs, music lessons, riding lessons, etc. Sometimes parents agree to share such costs, and if they put that agreement into the Parenting Plan filed with the Court, then the Court has the authority to 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. Once the legal obligation to pay child support ends, the court loses jurisdiction or authority to enforce child support. A few years ago, the law changed in New Mexico such that, if the parents clearly spell out their agreement to share college expenses, then the court will enforce that agreement as a "contract", with the child as the third-party beneficiary. Because the agreement will be reviewed and enforced as a "contract" under the laws pertaining to all contracts, then 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 originally meant. For example, if Dad thinks he's going to pay one-half of the tuition for an accredited state college or university, for no more than 4 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, air fare for multiple trips home per year, and all the sorority/fraternity fees, then the court is likely to find there was no "meeting of the minds" of the contract terms defining "college expenses". Without a meeting of the minds, the contract is not enforceable.

Is child support tax deductible?
No. Child support is not considered to be "income" to the receiving parent and the receiving parent pays no income taxes on the amount received; therefore, 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 alternative years claiming the child or splitting the exemption if there are 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, i.e., 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.

Under what circumstances can the 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. By law, 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, etc. The purpose of this "annual exchange of income information" is to enable parents to figure out what current child support should be on their own. If the bottom line reaches that 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 only be retroactive to the date the Motion to Modify Child Support was filed, not back to the date the income or expenses changed.

Can a paying parent wipe out his/her child support obligation by filing bankruptcy?
No. Federal bankruptcy law does not allow a parent to discharge or 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 child support arrearages, and these attorneys 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. The receiving parent is not required to explain how the child support money is spent or even if any of the money is spent directly on the child.

If I quit my job or take a lower paying job, can I reduce my child support payment?
No. Voluntarily quitting a job, setting yourself up to get fired, or choosing a lower paying job do not entitle the paying parent to reduce child support. "Income" for child support purposes includes both actual income earned and "imputed" income, which is money you could be earning based on past 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, up to potential, and then use that figure on the child support worksheet.

Can child support automatically be withheld from my ex's pay check?
Yes. Since 1995, the receiving parent can require that child support automatically be deducted from the paying parent's pay check, without proving a history of missed payments or less-than-full payments. The automatic deduction now must be routed from the paying parent's employer through the Child Support Enforcement Division, and then the child support amount is forwarded to the receiving parent.