§ 40-4-11.1 — Child support; guidelines

New Mexico § 40-4-11.1

• Jurisdiction: New Mexico
• Ch. 40: Domestic Affairs
• Art. 4: Dissolution of Marriage

Text

A. In any action to establish or modify child support, the child support guidelines as set forth in this section and the child support schedule promulgated by the department shall be applied to determine the child support due and shall be a rebuttable presumption for the amount of such child support. Every decree or judgment or stipulation of child support that deviates from the guideline amount shall contain a statement of the reasons for the deviation. B. The purposes of the child support guidelines are to: (1) establish as state policy an adequate standard of support for children, subject to the ability of parents to pay; (2) make awards more equitable by ensuring more consistent treatment of persons in similar circumstances; and (3) improve the efficiency of the court process by promoting settlements and giving courts and the parties guidance in establishing levels of awards. C. For purposes of the guidelines specified in this section: (1) "income" means actual gross income of a parent if employed to full capacity or potential income if unemployed or underemployed. The gross income of a parent means only the income and earnings of that parent and not the income of subsequent spouses, notwithstanding the community nature of both incomes after remarriage; and (2) "gross income" includes income from any source and includes but is not limited to income from salaries, wages, tips, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, workers' compensation benefits, unemployment insurance benefits, disability insurance benefits, significant in-kind benefits that reduce personal living expenses, prizes and alimony or maintenance received, provided: (a) "gross income" shall not include benefits received from: 1) means-tested public assistance programs, including but not limited to temporary assistance for needy families, supplemental security income and general assistance; 2) the earnings or public assistance benefits of a child who is the subject of a child support award; or 3) child support received by a parent for the support of other children; (b) for income from self-employment, rent, royalties, proprietorship of a business or joint ownership of a partnership or closely held corporation, "gross income" means gross receipts minus ordinary and necessary expenses required to produce such income, but ordinary and necessary expenses do not include expenses determined by the court to be inappropriate for purposes of calculating child support; (c) "gross income" shall not include the amount of alimony payments actually paid in compliance with a court order; (d) "gross income" shall not include the amount of child support actually paid by a parent in compliance with a court order for the support of prior children; and (e) "gross income" shall not include a reasonable amount for a parent's obligation to support prior children who are in that parent's custody. A duty to support subsequent children is not ordinarily a basis for reducing support owed to children of the parties but may be a defense to a child support increase for the children of the parties. In raising such a defense, a party may use Table A as set forth in Subsection M of this section to calculate the support for the subsequent children. D. If a court finds that a parent has willfully failed to obtain or maintain appropriate employment or is willfully underemployed, the court may impute to that parent an income equal to that parent's earning and employment potential. (1) The following criteria shall be used: (a) availability of employment opportunities for the parent; (b) the parent's employment history; (c) the parent's income history; (d) the parent's job skills; (e) the parent's education; (f) the parent's age and health; (g) the parent's history of convictions and incarceration; and (h) the parent's ability to obtain or maintain employment due to providing care for a child of the parties who is under the age of six or is disabled. (2) Minimum wage may be imputed if a parent has no recent employment or earnings history and that parent has the capacity to earn minimum wage. The minimum wage to be imputed to that parent is the prevailing minimum wage in the locality where that parent resides. E. Income may not be imputed to a parent if the parent is incarcerated for a period of one hundred eighty days or longer. Incarceration is not considered a voluntary unemployment. F. As used in this section: (1) "department" means the human services department [health care authority department]; (2) "children of the parties" means the natural or adopted child or children of the parties to the action before the court but shall not include the natural or adopted child or children of only one of the parties; (3) "basic visitation" means a custody arrangement whereby one parent has physical custody and the other parent has visitation with the children of the parties less than thirty-five percent of the time. Such arrangements can exist where the parties share responsibilities pursuant to Section 40-4-9.1 NMSA 1978; (4) "shared responsibility" means a custody arrangement whereby each parent provides a suitable home for the children of the parties, when the children of the parties spend at least thirty-five percent of the year in each home and the parents significantly share the duties, responsibilities and expenses of parenting; and (5) "schedule" means the child support schedule promulgated by the department. G. The basic child support obligation shall be calculated based on the combined income of both parents and shall be paid by them proportionately pursuant to Subsection L of this section. H. Physical custody adjustments shall be made as follows: (1) for basic visitation situations, the basic child support obligation shall be calculated using the basic child support schedule promulgated by the department, Worksheet A and instructions contained in Subsection M of this section. The court may provide for a partial abatement of child support for visitations of one month or longer; and (2) for shared responsibility arrangements, the basic child support obligation shall be calculated using the basic child support schedule promulgated by the department, Worksheet B and instructions contained in Subsection M of this section. I. In shared responsibility situations, each parent retains the percentage of the basic support obligation equal to the number of twenty-four-hour days of responsibility spent by each child with each respective parent divided by three hundred sixty-five. J. The cost of providing medical and dental insurance for the children of the parties and the net reasonable child-care costs incurred on behalf of these children due to employment or job search of either parent shall be paid by each parent in proportion to that parent's income, in addition to the basic obligation. K. The child support may also include the payment of the following expenses not covered by the basic child support obligation: (1) any extraordinary medical, dental and counseling expenses incurred on behalf of the children of the parties. Such extraordinary expenses are uninsured expenses in excess of one hundred dollars ($100) per child per year; (2) any extraordinary educational expenses for children of the parties; and (3) transportation and communication expenses necessary for long distance visitation or time sharing. L. Whenever application of the child support guidelines set forth in this section requires a person to pay to another person more than forty percent of the paying person's gross income for a single child support obligation for current support, there shall be a presumption of a substantial hardship, justifying a deviation from the guidelines. M. The department shall: (1) establish the basic child support schedule by rule, using the recommendations of the child support guidelines review commission as the initial proposed rules; and (2) update and adjust the basic child support schedule when such a change is necessary to ensure that the child support schedule complies with the child support guidelines set forth in this section. The basic child support schedule shall be promulgated pursuant to the State Rules Act and shall be published and available to the public through the New Mexico Administrative Code, the New Mexico supreme court's website and the department's website. When the department is developing or updating the child support schedule, it shall consider: (a) all of the earnings and income of the noncustodial and custodial parent; (b) the basic subsistence needs of a noncustodial parent who may have a limited ability to pay by incorporating a mechanism that adjusts the basic support obligation for low-income parents; (c) economic data on the costs of raising children; (d) state and local labor market data; and (e) regional and national trends in child support schedule adjustments. WORKSHEET A - BASIC VISITATION __________ JUDICIAL DISTRICT COURT COUNTY OF _________________________ STATE OF NEW MEXICO NO. _____________________ ___________________________________, Petitioner, vs. ___________________________________, Respondent. MONTHLY CHILD SUPPORT OBLIGATION Custodial Other Combined Parent Parent 1. Gross Monthly Income $______ + $______ = $______ 2. Percentage of Combined Income (Each parent's income divided by combined income) _____% + _____% = 100% 3. Number of Children ______ 4. Basic Support from Schedule (Use combined income from Line 1) = ______ 5. Children's Health and Dental Insurance Premium ______ + ______ = ______ 6. Work-Related Child Care ______ + ______ = ______ 7. Additional Expenses ______ + ______ = ______ 8. Total Support (Add Lines 5, 6 and 7 for each parent and Lines 4, 5, 6 and 7 for combined column) ______ = ______ = ______ 9. Each Parent's Obligation (Combined Column Line 8 x each parent's Line 2) ______ ______ 10. Enter amount for each parent from Line 8 -______ -______ 11. Each Parent's Net Obligation (Subtract Line 10 from Line 9 for each parent). ______ ______ Other Parent pays Custodial Parent this Amount _______________PAYS______________ EACH MONTH $_________ ______________________ Petitioner's Signature ______________________ Respondent's Signature Date: _______________________ ______________________________________________________________________ BASIC VISITATION INSTRUCTIONS FOR WORKSHEET A Line 1. Gross monthly income: Includes all income, except temporary assistance for needy families, food stamps and supplemental security income. If a parent pays child support by court order to other children, subtract from gross income. Use current income if steady. If income varies a lot from month to month, use an average of the last twelve months, if available, or last year's income tax return. Add both parents' gross incomes and put total under the combined column. Line 2. Percentage of Combined Income: Divide each parent's income by combined income to get that parent's percentage of combined income. Lines 3 and 4. Basic Support: Fill in number of children on worksheet (Line 3). Round combined income to nearest fifty dollars ($50.00). Look at the basic child support schedule. In the far left-hand column of the basic child support schedule, find the rounded combined income figure. Read across to the column with the correct number of children. Enter that amount on Line 4. Line 5. Children's Health and Dental Insurance Premium: Enter the cost paid by a parent for covering these children with medical and dental insurance under that parent's column on Line 5. Add costs paid by each parent and enter under the combined column on Line 5. Line 6. Work-Related Child Care: Enter the cost paid by each parent for work-related child care. If the cost varies (for example, between school year and summer), take the total yearly cost and divide by twelve. Enter each parent's figure in that parent's column on Line 6. Add the cost for both parents and enter in the combined column on Line 6. Line 7. Additional Expenses: Enter the amounts paid by each parent for additional expenses provided by Subsection J of this section on Line 7. Add the cost for both parents and enter in the combined column on Line 7. Line 8. Total Support: Total the basic support amount from Line 4 in the combined column with the combined column on Lines 5, 6 and 7 and enter the totals in the combined column on Line 8. Line 9. Each Parent's Obligation: Multiply the total child support amount on Line 8 by each parent's percentage share on Line 2, and enter each parent's dollar share under that parent's column on Line 9. Line 10. Total Support: Enter the total amount shown for each parent on Line 8 beside the "minus" marks on Line 10. Line 11. Each Parent's Net Obligation: For each parent, subtract the amount on Line 10 from the amount on Line 9. Enter the difference for each parent in that parent's column on Line 11. The amount in the box "other parent" is what that parent pays to the custodial parent each month. Do not subtract the amount on the custodial parent's Line 11 from the amount in the other parent's box. The custodial parent is presumed to use the amount in that parent's column on Line 11 for the children. WORKSHEET B - SHARED RESPONSIBILITY __________ JUDICIAL DISTRICT COURT COUNTY OF _________________________ STATE OF NEW MEXICO NO. _____________________ ___________________________________, Petitioner, vs. ___________________________________, Respondent. MONTHLY CHILD SUPPORT OBLIGATION Part 1 - Basic Support: Parent One Parent Two Combined 1. Gross Monthly Income $______ + $______ = $______ 2. Percentage of Combined Income (Each parent's income divided by combined income) _____ % + _____% = 100% 3. Number of Children _______ 4. Basic Support from Schedule (Use combined income from Line 1) = ______ 5. Shared Responsibility Basic Obligation (Line 4 x 1.5) = ______ 6. Each Parent's Share (Line 5 x each parent's Line 2) ______ ______ 7. Number of 24-Hour Days with Each Parent (must total 365) ______ + ______ = 365 8. Percentage with Each Parent (Line 7 divided by 365) ______% + ______% = 100% 9. Amount Retained (Line 6 x Line 8 for Each Parent) ______ ______ 10. Each Parent's Basic Obligation (subtract Line 9 from Line 6) ______ ______ 11. Amount Transferred (subtract smaller amount on Line 10 from larger amount on Line 10). Parent with larger amount on Line 10 pays other parent the difference. ______ Part 2 - Additional Payments: 12. Children's Health and Dental Insurance Premium ______ + ______ = ______ 13. Work-Related Child Care ______ + ______ = ______ 14. Additional Expenses ______ + ______ = ______ 15. Total Additional Payments (Add Lines 12, 13 and 14 for each parent and for combined column) ______ + ______ = ______ 16. Each Parent's Obligation (Combined Column Line 15 x each parent's Line 2) ______ ______ 17. Amount Transferred (Subtract each parent's Line 16 from that parent's Line 15). Parent with "minus" figure pays that amount to other parent. ______ ______ Part 3 - Net Amount Transferred: 18. Combine Lines 11 and 17 by addition if same parent pays on both lines, otherwise by subtraction. __________ ________________ PAYS________________EACH MONTH $ _____________ ______________________ Petitioner's Signature _________________________ Respondent's Signature Date: ________________________ ______________________________________________________________________ SHARED RESPONSIBILITY INSTRUCTIONS FOR WORKSHEET B Part 1 - Basic Support: Line 1. Gross Monthly Income: Includes all income, except temporary assistance for needy families, food stamps and supplemental security income. See text for allowed deductions from income. Use current income if steady. If income varies a lot from month to month, use an average of the last twelve months, if available, or last year's income tax return. Add both parents' gross incomes and put total under the combined column. Line 2. Percentage of Combined Income: Divide each parent's income by combined income to get that parent's percentage of combined income. Lines 3 and 4. Basic Support: Fill in the number of children on the worksheet (Line 3). Round combined income to nearest fifty dollars ($50.00). Look at the basic child support schedule. In the far left- hand column of that schedule, find the rounded combined income figure. Read across to the column with the correct number of children. Enter that amount on Line 4. Line 5. Shared Responsibility Basic Obligation: Multiply the basic obligation on Line 4 by 1.5. Line 6. Each Parent's Share: Multiply the support amount on Line 5 by each parent's percentage share on Line 2, and enter each parent's dollar share under that parent's column on Line 6. Line 7. Each Parent's Time of Care for Children: Enter the number of twenty-four-hour days of responsibility that each parent has each child in a year according to the parenting plan. Line 8. Percentage of Twenty-Four-Hour Days With Each Parent: Divide each parent's number of twenty-four-hour days (Line 7) by three hundred sixty- five to obtain a percentage. Line 9. Amount Retained: Under shared responsibility arrangements, each parent retains the percentage of the basic support obligation equal to the number of twenty-four-hour days of responsibility spent by each child with each respective parent divided by three hundred sixty-five. Multiply each parent's share of basic support (Line 6) by the percentage in that parent's Line 8 and enter the result on that parent's Line 9. This is the amount that each parent retains to pay the children's expenses during that parent's periods of responsibility. Line 10. Each Parent's Basic Obligation: Subtract the amount retained by each parent for direct expenses (Line 9) from that parent's share (Line 6) and enter the difference on that parent's Line 10. Line 11. Amount Transferred for Basic Support: In shared responsibility situations, both parents are entitled not only to retain money for direct expenses but also to receive contributions from the other parent toward those expenses. Therefore, subtract the smaller amount on Line 10 from the larger amount on Line 10 to arrive at a net amount transferred for basic support. Part 2 - Additional Payments: Line 12. Children's Health and Dental Insurance Premium: Enter the cost paid by a parent for covering these children with medical and dental insurance under that parent's column on Line 12. Add costs paid by each parent and enter under the combined column on Line 12. Line 13. Work-Related Child Care: Enter the cost paid by each parent for work-related child care. If the cost varies (for example, between school year and summer), take the total yearly cost and divide by twelve. Enter each parent's figure in that parent's column on Line 13. Add the cost for both parents and enter in the combined column on Line 13. Line 14. Additional Expenses: Enter the cost paid by each parent for additional expenses provided by Subsection J of this section on Line 14. Line 15. Total Additional Payments: For each parent, total the amount paid by that parent for insurance, child care and additional expenses (Lines 12, 13 and 14). Enter the total in that parent's column on Line 15 and the total of both parents' expenses under the combined column on Line 15. Line 16. Each Parent's Obligation: Multiply the total additional payments (combined column on Line 15) by each parent's percentage share of income on Line 2, and enter each parent's dollar share of the additional payments on that parent's Line 16. Line 17. Amount Transferred: Subtract each parent's obligation for additional expenses (that parent's Line 16) from the total additional payments made by that parent (that parent's Line 15). The parent with a "minus" figure pays the other parent the amount on Line 17. Part 3 - Net Amount Transferred: Line 18. Combine Lines 11 and 17: Combine the amount owed by one parent to the other for basic support (Line 11) and the amount owed by one parent to the other for additional payments (Line 17). If the same parent owes for both obligations, add Lines 11 and 17, and enter the total on Line 18. If one parent owes for basic support and the other owes for additional payments, subtract the smaller amount from the larger and enter on Line 18. Fill in the blanks by stating which parent pays and which parent receives the net amount transferred.

Legislative History

1978 Comp., § 40-4-11.1, enacted by Laws 1988, ch. 87, § 2; 1991, ch. 206, §