From Parenting New Mexico May 2000

PART THREE IN A SERIES ON DEALING WITH DIVORCE

Child Support -
Facts and Myths

When parents get divorced, or for parents who were never married to each other, New Mexico law requires both parents to contribute the financial support of their children. FACT - Child support is calculated by a formula, and is not a number pulled out of the air or an amount the parents think is "fair" based on their other financial obligations. Child support is based on both the parents gross incomes (before taxes are taken out); the cost of medical, dental, and vision insurance for just the children; the cost of work-related day care; and certain "additional expenses" that don't apply in many cases, such as private school tuition, counseling for the children, and extraordinary travel expenses. A table of "base" child support amounts appears in the New Mexico statutes, with the number of children at the top of the table, and the parents' combined gross income on along the left side of the table. How much one parent pays to the other depends on whether Worksheet "A" or Worksheet "B" is used; which worksheet is used depends on how much time the children spend with each parent. Most families fall into the Worksheet "A" category, which applies when the children are with the non-primary parent less than 35% of the year. New Mexico does not follow other states that use a straight percentage of gross or net income; instead, the formula is used and a copy of the worksheet is attached to the court order or decree that establishes custody, visitation (also called "timesharing") and child support. All of this sounds straight forward, and should be, but there are many misconceptions about child support.

MYTH #1 - If Mom and Dad have "joint custody," then there is no child support.

"Joint custody" is a frequently used term that is often misunderstood. There are two types of custody: legal and physical. Most parents have "joint legal custody," which means they share in making decisions about five major areas affecting the children: residence, religion, recreation, education or day care, and non-emergency medical treatment. "Physical custody", now called "timesharing" or "periods of responsibility", describes when the children spend time with each parent. Typically, the children spend more time with the primary custodial parent, and weekends, alternating holidays, and part of summer with the other parent. Because child support is based on combined income as well as time spent with each parent, one parent usually owes child support to the other, even if they have "joint custody". Only if both parents earn the same income, pay equal amounts for insurance and day care, and have the children the same number of days will no child support be transferred from one parent to the other.

MYTH #2 - Only one parent owes child support.

Each parent is legally obligated to contribute to the financial support of the children, so the formula shows the amount of each parent's share. The child support check is the difference between the parent with the higher amount minus the amount owed by the parent with the lower amount.

MYTH #3 - Child support automatically ends on the child's 18th birthday.

On June 20, 1997, the law changed to cover the child's senior year of high school. For all child support orders entered after June 20, 1997, child support ends when the child is legally emancipated, dies, marries, joins the military, turns 18, or up to age 19 and until graduation from high school (if actually attending high school), whichever occurs first. If you have a child support order that was filed with the court before June 20, 1997, the new law does not automatically apply and the order needs to be amended, if you want to continue child support through graduation from high school. Also, if there is more than one child involved, the paying parent needs to modify the child support when the obligation to pay child support for each child ends. The paying parent is not automatically entitled to start paying lower child support as the children turn 18 or are otherwise legally independent.

MYTH #4 - If the parents agree, then neither parent has to pay child support.

The right to receive child support belongs to the children, not to the parent receiving the checks. Parents cannot legally waive or give up the child support. Until the children are legal adults, the children must rely on the parents to enforce the children's rights to financial support. Once the child becomes a legal adult, the child has up to three years in which to sue to collect past child support from both parents to which they were entitled. Rarely do children actually sue their parents for child support, but it does occur, more often in paternity cases than post-divorce situations. One reason for such a suit is for the child to try to collect money to pay for college.

MYTH #5 - My ex-spouse can't "demand" that child support be taken out of my pay check.

Oh yes he or she can. Since July 1995, child support can be automatically withheld from the paying parent's pay check, even if the paying parent was never late or underpaid the child support amount. The receiving parent no longer has the burden of proving the paying parent was delinquent on child support. Since October 1998, however, child support automatically deducted from a pay check must be routed through the Child Support Enforcement Division in Santa Fe, rather than being paid from the paying parent's employer directly to the receiving parent.

MYTH #6 - In addition to child support, the parents have to share the cost of clothes, sports equipment and fees, prom dresses, music
lessons, etc.

The parents are free to choose to share these extra expenses for the children, but they are not required to.

MYTH #7 - The child support money can only be spent on the children, and I have a right to know how that money is spent.

Sorry, paying parents. The basic table for child support is calculated on national economic statistics, adjusted for New Mexico, and takes into account not only the cost of food, clothing, haircuts, and toys for the children, but the overall expenses for the children's home, such as rent or mortgage, utilities, house insurance, laundry, car gas, etc. The parent receiving the support has to maintain a household for himself or herself as well as for the children. The receiving parent is not required to explain how the child support money is spent or even if any of the money is spent solely for the child.

MYTH #8 - The parents can agree to change the child support amount.

The parents can agree to change the child support amount; however, the agreement should be put into a court order to make it binding and effective. Otherwise, the court is not required to honor the agreement between the parents, and, in some cases, the court will enforce the amount in the last court order.

MYTH #9 - If I quit my job or take a lower paying job, then I can reduce my child support payment.

Voluntarily quitting a job, setting oneself up to get fired, or taking a lower paying job does not entitle the paying parent to reduce child support. "Income" for child support purposes includes both actual income and "imputed income," which is money you could be earning based on previous employment history. Imputed income also comes into play when one parent works less than full time. The court can say a parent could make a particular amount of money if he or she worked full time, and use that figure on the child support worksheet.

MYTH #10 - I can get "retroactive" child support.

If the parents were married to each other, true child support starts from the date the divorce is final, not from the date the couple stopped living together and not from the date the divorce petition was filed. Sometimes an "interim division order" is entered that requires divorcing couples to share income and expenses while the divorce is pending, and that "interim division order" may have a "temporary child support" component. This is not final child support. Also, if one parent voluntarily (without a court order) gives money to the other parent to spend on the children, such money is not legally binding child support, and can be treated as a mere "gift" to the child.
If the parents were not married to each other, then child support can be calculated back to the birth of the child, plus certain pregnancy and birth-related expenses. Thus, paternity cases differ from divorces when it comes to "retroactive" child support.

The previous articles in this series have addressed children's reactions to divorce, and custody and timesharing. The fourth and final article will focus on communication between parents.

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Mary Ann R. Baker-Randall is an attorney whose Albuquerque firm focuses on all aspects of divorce, custody and timesharing, child support, adoptions, guardianships, grandparents raising grandchildren, and estate planning for families. Most of her cases are in Albuquerque; however, she represents clients statewide. She is actively involved in local, state and national bar associations. For more information, see www.baker-randallattys.com.

Dr. Gayle Zieman is an Albuquerque psychologist who specializes in the evaluation of child, adolescent, and family problems. In addition to divorce and child custody matters, he frequently evaluates children and adults with learning disabilities, behavior problems, ADD/ADHD, and school problems.

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Dealing With Divorce Series
Part 1 | Part 2 | Part 4

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Copyright by Parenting New Mexico, Mary Ann Baker-Randall, Esquire and Gayle L Zieman PhD. This article may not be published in part or in its entirety in any medium without written permission from Mary Ann Baker-Randall, Esquire,
Gayle L Zieman PhD, or Parenting New Mexico magazine. Links to this page are welcome.