Income for NM Child Support
Child Support in New Mexico is based upon gross income. This amount is usually determined by the Tax Returns and paystubs of the parties. Self Employed individuals present a multitude of problems, as well.
New Mexico’s Child Support Statutes related to Income
NMSA (1978) §40-4-11.1(C) provides:
(1) "income" means actual gross income of a parent if employed to full capacity or potential income if unemployed or underemployed. Income need not be imputed to the primary custodial parent actively caring for a child of the parties who is under the age of six or disabled. If income is imputed, a reasonable child care expense may be imputed. 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 means-tested public assistance programs or 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 K of this section to calculate the support for the subsequent children."
The instructions for Worksheet A provided at NMSA (1978) § 40-4-11.1(K) provides this definition of income: “Gross monthly income: Includes all income, except AFDC, 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. In income varies a lot from month to month, use an average of the last 12 months, if available, or last year’s income tax return.”
The Full Employment Requirement
Notice that Subsection (C)(1) states that income can be determined by potential income if unemployed or underemployed. In Boutz v. Donaldson, 991 P.2d 517, the Appellate Court stated that "[i]t is for the trial judge ... subject to judicial review, to assess Mother's efforts, sincerity, conscientiousness, and credibility, and then to decide whether Mother has acted in good faith to earn and preserve as much money to support her children as could reasonably be expected under the circumstances." Please notice your obligation to earn as much money as you can to support your children.
This obligation trips up some individuals. If a person is bitter about the divorce they may claim that they no longer want their current high-paying job and have always wanted to do something else. I think there is possibly an identifiable trend of lawyers and doctors who actually want to be teachers. The Court will say fine, you can be a teacher, but we are going to use your income as a doctor for child support purposes. Notice that if the doctor did this while married, and not in contemplation of a pending divorce, there would be little a court would possibly do. In contemplation of divorce, or after a divorce, a court will closely scrutinize an individual's choices that reduce the available funds for the care of children.
There are some limits on this obligation to earn as much as you can. In Quintana v. Eddins (coming soon).
- Overview
- Page One - Child Support Statutes and Full-Employment
- Page Two - Self Employed Individuals and Deductions From Income
- Page Three - Calculating Income and Guaranteeing Income
- Page Four - Miscellaneous Income Rulings