New Mexico

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Sandra Morgan Little educated us with her 36 years of experience handling New Mexico divorces. She's a founding partner at Little, Gilman-Tepper, and Batley in Albuquerque. She has been Chair of the American Bar Association's Family Law Section and is a Fellow of the American Academy of Matrimonial Lawyers. She was elected to the American College of Family Trial Lawyers (a "top 100" organization) as a Diplomate in 1999. Learn more at http://www.lgtfamilylaw.com/

Little handles a 50/50 mix of male and female clients in cases that rarely go to trial "mainly because the courts are now more crowded. A case that requires a 1-2 day trial in a busy venue might not go to trial until 18 months after being filed. A complex case could be tried in bits and pieces over two to three years."

Can a case be won with a motion hearing? "When a divorce is filed in New Mexico there is an immediate issuance of a temporary domestic order," says Little. "This keeps the status quo so people, for example, can't take children from the state. It provides for an immediate hearing to divide income. The interim division is based on a cash flow analysis. You divide the bottom line and give more to the person who is primarily responsible for the children." What if there are two working parents and neither is willing to concede the "primary" role to the other? "Then there would an evidentiary hearing," says Little, "which could be a half-day hearing 4-6 months out." Does that mean that the petitioner and respondent (what other states call "plaintiff" and "defendant") must spend half a year glaring at each other around the kitchen table? "There could be an emergency hearing so that they don't have to share the house. The court may set a quicker non-evidentiary hearing [attorneys arguing; no witnesses or cross-examination] to see what can be done."

Little says that New Mexico is unusual for having been the first "no-fault" divorce state, starting in 1937 with the availability of "incompatibility" as grounds for divorce. "The Catholic church told Catholic judges that they could not grant divorces on this ground," says Little. "So many judges just sent litigants away."

Child support can be collected every month until a child turns 18 or, if still in high school, then it ends at the end of the month following graduation. Do plaintiffs get a big bonus if their child is a very slow learner? "The maximum age is 19 regardless," says Little. Courts cannot order a parent to pay college costs for a child who is over the age of 18, consistent with other Western states in which children of divorced or unmarried parents cannot have superior legal rights to children of intact families.

Can a child have a say in his or her schedule with the two parents? "The statute says a court must listen to a 14-year-old child but doesn't have to do what the child wants. A mature younger child may have his or her preference taken into account, but rarely does the judge talk directly to the child. Usually that preference is expressed through a mental health professional appointed by the court."

There is no cap on child support in New Mexico, but amounts awarded are modest compared to the most profitable states such as Massachusetts and Wisconsin. When a child is with one parent more than 65 percent of the time, Worksheet A is used. In a shared parenting situation, Worksheet B is used. An online calculator may be found at nmcourts.gov. The child that yields a tax-free revenue stream of $40,000 per year in Massachusetts (sole or 50/50 custody) because the defendant earns $250,000 per year is worth only $25,188 per year in New Mexico (sole custody) or $18,943 per year (50/50 custody). [Note that the worksheets default to the mother being the plaintiff/petitioner and also becoming the victorious custodial parent.]

New Mexico operates on an income-sharing system in which the combined parental income is used to establish the total amount of child expenses to be expected and then those expenses are divided according to the parties' respective incomes.

Will a court order a defendant to pay for daycare on top of child support? "Yes," says Little. "Daycare for education or work. Also there are add-ons for health insurance and medical expenses."

Under New Mexico statutes section 40-4-7.1, a court has the ability to free a plaintiff from any risk of not collecting the expected amount of child support or alimony in the event of the death of the defendant. The court can order a defendant to purchase life insurance in any amount.

A "walk-away" prenuptial agreement, in which neither party can profit from property division and alimony via a marriage, is invalid in New Mexico due to the state's prohibition on waiving alimony.

Due to the sparse population in some counties, a New Mexico divorce trial may be presided over by a non-specialist judge, though dedicated family courts are available in cities. Little thought that there was more variation from judge-to-judge than from family court to general court. What about appeals? "It is pretty much a waste of time to appeal anything involving judicial discretion," Little said, which would mean that a parent unhappy about custody, child support, alimony, or property division would have no recourse. What kind of situations can give rise to a successful appeal? "If a judge does not give a reason why he or she deviated from guidelines," Little noted. Wouldn't that just then be sent back to the same judge who could make the same ruling but with a couple of extra pages of findings and reasons to support it? "Yes."

State background

The average hourly wage in New Mexico is $19.92  per hour. A person who goes to college at University of New Mexico will spend approximately $73,896 over four years to earn a bachelor's degree. Census 2014 data show that the median income for a 22-36-year-old woman who works full-time is $35,000 per year ($27,149 after taxes). The corresponding man earns $40,000 per year ($30,770 after taxes). New Mexico is one of the more efficient states in the U.S., collecting about 8.7 percent of state residents' income to run state and local government (source: Tax Foundation). New Mexico's taxation system includes a personal income tax with a top rate of 4.9 percent.

The average annual cost of child care is $6,843 for an infant and $6,145 for a four-year-old. The total cost of child care from age 0 through 12 is about $40,263 in commercial settings or $37,119 in a family care setting.

The New Mexico man who goes to college and then works for 14 years will have an after-tax spending power of $356,884 (14 years of median earnings minus the college outlays). After adjusting for USDA-estimated costs of child-rearing, he will enjoy a higher personal spending power by collecting child support when he can get $2,402 per month. He can get this by suing a woman earning $288,000 per year. With two children from two different mothers, however, he needs to receive only $1,576 from each other in order to come out ahead of his college/work peers. This amount corresponds to defendants earning $182,400 per year.

The corresponding woman who chooses college/work will be able to spend $306,176. She will have a higher personal spending power using the child support system when she can get $2,167 per month. With one child she needs to sue a father making $258,600 per year. With two children, however, she will be ahead compared to the college/work scenario if she can get $1,459 from each father. She gets there when she sues men earning more than $166,200 per year.

The Scenarios

Scenario 1: Professional Wife and Slacker Husband

A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.

"We are a presumptive joint custody state," says Little. This turns out to be comparable to what other states call "joint legal custody" or shared decision-making. "That means that parents will share decisions in religion, education, health care, residence, and activities. If the parents are having trouble agreeing, a court can order parenting coordinator, GAL (normally an attorney). a 'wise person' (you won't find that in a statute), or maybe a psychologist. If the parents still can't agree, the court can make the ultimate decision."

How about what other states call "physical custody"? Little says "We call that 'time share' in New Mexico. In this case the nanny will stay in place and may travel back and forth with the child. The father will have to go to work since he is not primarily taking care of this child. He may get some rehabilitative or transitional spousal support."

What will the child's schedule look like? "The mother may have the lion's share of time with the child," says Little. "The parents will split weekends. The child will go back and forth often at this young age. By the time this child gets into school we'll know who the primary caretaker is. At that point the child will spend most school nights in one home and perhaps have dinner or an overnight with the father. If Dad proves that he can be a great parent then they may be sharing on a 50/50 basis." Would the mother have an incentive to oppose a move to 50/50 because that would move the parties to the Worksheet B and she'd be paying child support to him? "Definitely she would try to avoid shared custody," says Little.

[The authors note that the mother need demonstrate only that she is an adequate mother, during those hours when she is not at her job, to obtain sole physical custody. The father, on the other hand, must demonstrate exceptional ability as a parent in order to obtain shared parenting.]

If the mother gets sole custody and there is standard visitation for the father, assuming $2,000 per month in income is imputed to him, he will pay $200 per month to the mother. In a 50/50 custody arrangement, she would pay the father $1,863 per month or $33,534 tax-free dollars per year. This is a difference between paying $570,078 over the remaining 17 years of this child's potential profitability and receiving $61,200, for a total difference of $631,278 to have a child around 65 percent time versus 50 percent time. That's an effective pay rate of $678 for every one of those additional nights (over 17 years) that the child spends with the mother. (Alternatively, if the mother wanted to have an extra 55 nights per year free of all child care duties and agreed to 50/50 parenting, she would be agreeing to pay the father $678 per night to babysit.)

If the mother wants to secure that $678 per night, can she use the standard Massachusetts tactic of creating conflict with the father to forestall a judge awarding a shared parenting arrangement? "That's hard," says Little. Can the mother, if she knows in advance that she is going to sue the father, lay the groundwork by taking on more child care and having the husband do housework? Little thought that this kind of planning would be "helpful" to the doctor's case.

Little charges $430 per hour and estimates that taking a case through trial could "easily cost more than $100,000 per side." How could the father afford to pay for a legal defense? "Remember that the doctor's income will be divided during litigation. So that puts them on a relatively equal footing," notes Little. "Her issue is that she needs to get this over with as quickly as possible because she will pay much less spousal support (with tax advantages) after the case is finished. He might get some transitional or rehabilitative support for two years." (i.e., if the defendant father can drag the case out for two years he can effectively double his period of spousal support)

Scenario 2: 14-year marriage of equals

A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year.  They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.

Little says that a judge can force 50/50 parenting on this couple even if both litigants are asking for sole custody. "The accusations of an affair or abuse don't matter unless the children are in danger of being neglected," says Little. What would the children's schedule be? Little says that "the Court will minimize contact between parents by having exchanges at day care or school, so that could be one-week-on, one-week-off, but the three-year-old might not be able to tolerate that so it might be 2-2-5-5 instead."

If these people have trouble making joint decisions could a judge leave in place the 50/50 time share but grant exclusive authority for decision-making to a parent in one area, e.g., health care? "Absolutely," says Little.

Due to community property rules, the judge cannot favor one parent with a larger share of the savings or home equity, but a judge "does have the flexibility to give one person the home equity and house while giving the other the savings if the values were equal," says Little.

Due to the equality of income there would be no alimony in this case and no child support would be paid, though Little notes that the couple would have to come up with a plan for sharing day care, health insurance, and other costs.

How much money is potentially at stake if one parent can tip the scales toward sole custody? Roughly $1093 per month or $13,116 per year. I.e., going from 50 percent of the nights to 65 percent of the nights or 35 percent would be roughly equivalent to getting a 25 percent pay raise or a 25 percent pay cut for each of these parents whose after-tax earning is about $50,000 per year.

Scenario 3: 10-year marriage with kids 2 and 5

An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.

"Mom will have primary caretaking of these children," says Little, "and the father will pay her support." What kind of schedule did Little think was most likely? "Dad probably will have every other weekend from Saturday morning to Sunday afternoon and maybe a night during the week." (i.e., a much smaller percentage of time than is provided for by the statutory Standard Possession Order in Texas). Little added "Maybe extended time to vacation with the children."

What's at stake here? Ignoring alimony for the moment, with the mother's imputed income set to zero due to the fact that the youngest child is under 6, the "basic support from schedule" is $3,344 per month or $40,128 per year. With the children going to their father's apartment 132 nights per year, the family is now under Worksheet B and the "net obligation" is reduced to $3,202 per month. With a 50/50 shared arrangement, the "net obligation" is further reduced to $2,515 per month. Over a 16-year period, therefore, the extra nights that change custody from sole to shared have an after-tax cash value of about $160,000.

"The court can look at guidelines to set the duration and amount of spousal support [alimony]" says Little, "but these are not mandatory like the child support guidelines." Can the mother get support until these kids are out of high school, as she could in some New England states? "No," says Little. "The court will expect this mom to work once youngest child is in school. The court will have a rehabilitative plan in place even while the children at home. She may take classes, for example, in preparation for entering the workforce."What would the bottom line on alimony be? "Ten years is not considered a very long term marriage," says Little. "Dad will pay spousal support for four or five years and it may taper down towards the end. The amount would likely start at 27 percent of his gross income. This would be deducted from his income and added to hers when figuring child support. Need and ability to pay are the most important factors in New Mexico. LIfestyle is important but we are not a lifestyle state except with really wealthy clients." What's an example of "really wealthy"? "Half a billion," said Little.

[The alimony guidelines are available at http://www.nmcourts.com/newface/new/alimony/guidelines.pdf and say, for example, "Marriage < 5 years: Usually no alimony absent exceptional circumstances" and "Marriages >10 and <20 Years: In addition to the previously mentioned considerations for an alimony award (marriages >5 and <10 years), alimony in this category will primarily be based on roles assumed during the marriage and the resultant disparity in income or ability to earn, as well as the statutory factors enumerated in NMSA 1978, § 40-4-7 (E)." The formula for amount is "When there is no child support obligation between the parties, the formula is 30% of the proposed Payor’s gross income minus 50% of the proposed Recipient’s gross income." or "When there is a child support obligation between the parties .., the formula is 28% of the proposed Payor’s gross income, minus 58% of the proposed Recipient’s gross income."]

Scenario 4: 1.75-year marriage with 8-month-old child

A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.

Little predicted that mother would win custody and the $2,300 per month in guideline child support that accompanied the child based on the salary. If we assume that the doctor earns a 3 percent dividend yield on his $2 million in savings that will add $60,000 per year to his income and child support will be $2,779 per month or $33,348 per year. If he could work his way up to shared parenting on a 50/50 basis ("not a given," says Little), his child support obligation will fall to $2,090 per month. This works out to a $140,556 bonus over the 17-year period during which this child can still yield support payments.

On what kind of schedule would this baby see the father? "It will start out transitional where he sees the child very frequently for short periods," Little says. Do mothers try to obstruct the gradual expansion of the child's contact with the father? "We have mothers who want to breastfeed until the kids are six," responded Little.

The community property rules of New Mexico preclude the plaintiff here from tapping into the $2 million in savings other than via child support. Can the plaintiff argue that a court should impute more than the 3 percent dividend yield to this money? "You'd bring in an expert to testify about what the money could be earning," says Little. "And if the guy has the funds in certificates of deposits a court would probably agree to impute additional income. But I haven't seen a court impute dramatically higher returns than are actually available in the market."

How about alimony? " She may get spousal support until child starts school. Also, since the child support isn't that much a court might order that the father provide a house for her."

Scenario 5: 18 year old free spirit/music lover; no marriage

An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.

"I have lawyers in my office that do some of these," says Little. "Once paternity is established Baby Daddy will pay child support based on the guidelines. She will have primary custody at least to start." [The basic support of $2,300 per month ($27,600 per year) would be the same as in Scenario 4 due to the payor's income being the same.]

If "Baby Mama" marries a high-income husband that does not reduce her entitlement to the $27,600 in child support from Baby Daddy.

Removal/Relocation

How easy is it for a parent to move out of state with a child? "Relocation cases are some of the hardest, especially if you have two good parents," says Little. Courts use the "best interest of the child" standard and it is much tougher to prevail on a relocation if 50/50 parenting is in place. According to Little the court tries to determine "how attached the child was to each parent and how involved each parent was." If the child sees one parent only every other weekend, wouldn't it be pretty easy to establish that the greater attachment was with the custodial parent? "Not necessarily," Little replied. "The every-other-weekend parent might be the soccer coach or on the phone every night with the child helping with homework."

What if a Massachusetts mother moved to Santa Fe with a child and a $100,000 per year child support order in place until the child turns 23, then the father follows, taking a job at a lower rate of pay. Could the father ask a New Mexico court to recalculate child support and reevaluate custody in accordance with New Mexico law? "New Mexico court definitely would not end child support at 18 because there is a valid court order from Massachusetts through age 23," notes Little. "A court might or might not look at his new lower income. Is it really best for the child? What is appropriate for this father to make? I would argue that the New Mexico court should use Massachusetts guidelines if I represented the mother."

Quirks

At all income levels the New Mexico guidelines favor the parent of an out-of-wedlock child over the legally married co-parent. Also, because existing child support orders are deducted from gross income when calculating child support, New Mexico assigns different cash values to multiple children of the same parent.

New Mexico offers financial incentives for having children with multiple co-parents. At the top of the child support guidelines, three children with a single co-parent will yield $1.09 million in tax-free revenue over 18 years. Three children by three different co-parents, on the other hand, have a cash value of $1.93 million.

For low-income parents, the child support guidelines favor the custodial parent who can get various forms of Welfare payments, such as food stamps, Social Security payments to under-65-year-olds, and "TANF". These are more likely to be granted to a parent who obtains custody of children and they are excluded from a child support recipient's income for calculating income shares.

Unlike in some other states it may not be straightforward to collect retroactive child support back to the child's birth, thus putting pressure on petitioners to serve fathers early. From a June 17, 2014 article by Matthew Legan Sanchez, Esq.:

The second path is a bit more convoluted and involves parents that were never married. With this path there are two different scenarios that determine when child support begins. The first scenario involves parents that do not live together. In this scenario child support is retroactive to the date that the child was born. Alternatively, in the event that the parents were living together when the child was born, then child support is only retroactive to the date that the parent’s separated, and no longer lived in the same home.

Interestingly, a recent New Mexico case – Zabolzadeh v. Zabolzadeh, 2009-NMCA-046 – is working its way through the New Mexico Court of Appeals. According to Zabolzadeh, in situations where a Father signs an Acknowledgment of Paternity at birth, or has been previously adjudicated as the Father of the child, child support is only retroactive to the date that the Petition to Establish Child Support was filed – not the date of the child’s birth. Nevertheless, in this situation there must be a signed Acknowledgment of Paternity, which is the equivalent to a legal adjudication of paternity.

Lastly, under New Mexico law there is a 14 year statute of limitations that surrounds back child support. In other words, a parent has 14 years to file a claim for back child support, with the date going back to the day that each child support payment became due and payable.

Looking back and forward

Looking back over her 36 years of practice Little noted that "People get driven further and further apart as they litigate." One reason for this was that plaintiffs were promised a lucrative and quick settlement and became angry when it failed to materialize. "I would like for there to be early intervention maybe by a master or a commissioner," Little suggested. She was also an advocate for greater funding for the family courts so as to reduce the backlog of cases and waiting time for trials: "More people are affected by this than any other type of law. People don't understand how really really hard getting divorced is [under the current system]."

We asked Little if she favored a European-style system in which child support profits were limited and therefore adults didn't have as much to fight over. Or a Danish-style system in which it was possible to get a divorce via an administrative process (no lawyers and no legal fees). She was decided not in favor of either of these alternatives, which she perceived as potentially leading to an unfair outcome for one party. Her views were consistent with those of attorneys and judges we interviewed nationwide. Achieving a fair or just result in every case was the most important goal and if the typical couple spent 100 percent of their assets on legal fees to get there, that was just fine.

Summary

New Mexico gives parents  excellent financial reasons to fight over custody, with the potential value of having a single child sleeping over some additional nights in one's home being worth $500 to $1,000 per night.

Due to the cash profit attached to being designated the "primary caregiver", New Mexico rewards pre-lawsuit planning in two-career households. The spouse who knows that he or she is going to file a lawsuit can voluntarily shoulder more of the child care duties during the year prior to the commencement of the custody fight. Due to the fact that New Mexico is not as rigid about maintaining the "primary caregiver" designation for the remainder of childhood and due to the fact that child support runs only to age 18, the rewards to pre-lawsuit planning are smaller than in a state such as New York or Massachusetts.

Due to the lack of any cap on child support, New Mexico makes it more profitable to find a high-income sex partner for one night than to be in a long-term marriage to a middle-income partner.

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