FAQ’s by Those Considering Divorce in New Mexico Part II

This is the second-installment of our two-part blog post discussing certain issues that many people ask regarding divorce in New Mexico.  If you have not had the opportunity to review Part I, it may be helpful to do so before reading further. Click Here for Part I

How is child support calculated in New Mexico?

Child support is calculated based on the New Mexico child support guidelines based on a set formula that takes into account a number of factors with the primary considerations being the gross income of both parents and the amount of time that each parent spends taking care of the child.  Generally, the guideline amount must be ordered because the right to receive child support belongs to the child so the parents do not have the right to waive support or deviate from the child support guideline.  While the judge can approve an amount that is lower than indicated by the guidelines, the standard for obtaining such an order is extremely high.  Even if both parents share custody on a 50-50 basis, a parent may still be ordered to pay child support if the other parent has a substantially lower income.  When the court calculates the income of the parties, the judge may impute income to a parent who is unemployed or underemployed based on that parents earning capacity.  While courts will generally impute at least minimum wage, this may not be true if a parent is a stay at home parent with children who are not yet in school.

How is my interest in my spouse’s retirement calculated?

Many times a spouse will have a retirement account like a 401K that was created prior to marriage.  When part of a retirement account or a similar asset like real estate is partially paid for prior to marriage or from the separate income or assets of one spouse, the retirement or home will have both a community property and separate property component.  A mathematical formula is used to determine what portion of the appreciation of the account is attributable to separate property contributions.  The community property portion of the retirement account or similar asset will be divided along with the portion of the appreciation from the community property contributions to the account. Pursuant to Employee Retirement Income Security Act (ERISA) it generally will be necessary to obtain a domestic relations order (DRO) form a district judge  which is then sent to the retirement fund administrator to be Qualified Domestic Relations Order ( QDRO) is obtained, the fund cannot be distributed.

How does the judge decide to award spousal support and calculate the amount?

The general function of alimony (spousal support) is to provide compensation to a spouse who has made sacrifices during the marriage to care for the children and maintain the family home.  Alimony is an acknowledgement that marriage is to some degree a partnership where one spouse frequently forgoes opportunities to improve his or her earning capacity.  There are many factors that determine the amount of spousal support; some of the factors are as follows:

• Income of the parties

• Education, training and earning capacity of each spouse

• Financial needs of the spouse

• Age and health of the parties

• Assets available to each spouse

• Standard of living during the marriage

Although these represent some of the factors a judge will consider when establishing alimony, the process is complex and fact intensive so you should seek legal advice from an experienced New Mexico Alimony Attorney to get a more specific idea about what to expect in your divorce action.

The above information is provided to illustrate general principles of law and should not be interpreted as a specific legal opinion on an individual case. You should contact experienced legal counsel to get specific legal advice that is based upon your specific circumstances.

We invite you to speak to an experienced divorce lawyer at our New Mexico Divorce Law Firm.  Jay Goodman & Associates offer free phone consultations in our centrally located offices in Santa Fe and Albuquerque so that we can discuss your alternatives.  Call us today to schedule your free consultation at (505) 989-8117 to learn about your rights and options.