Are you looking for information on how unemployment will impact your divorce and child support in Albuquerque? You are not alone. Economic uncertainty is the new normal and unemployment issues are increasingly impacting divorce and child support cases across New Mexico.
NM DIVORCE WHEN YOU ARE UNEMPLOYED
Are you divorcing an unemployed wife? Possibly you are considering leaving an unemployed husband. In either scenario, it is important to understand how unemployment will impact your divorce in New Mexico.
A spouse’s unemployment can impact your divorce in three key areas: Alimony, Interim Support and Child Support.
HOW DOES UNEMPLOYMENT AFFECTS ALIMONY PAYMENTS?
Spousal support/alimony is support that is paid to a spouse after a marriage ends. Alimony is based on a number of factors, including:
- Need
- Ability to pay
- Length of marriage
Unemployment can greatly impact a spouse’s claim regarding the need for alimony. With that said, a key issue regarding unemployed will be the reason that your spouse is currently unemployed.
Is your spouse voluntarily unemployed – or purposefully underemployed? Did your spouse voluntarily leave their job – or was your spouse terminated or laid off? Is your spouse unemployed because they stayed home to raise and care for your children, while you worked to support the family?
New Mexico courts examine the reason that a spouse is unemployed. NM courts also consider an unemployed spouse’s education, training, work experience, and earning potential. A spouse with little education, training, and work experience that stayed home to care for the children will have a greater claim for alimony relative to a spouse that is highly skilled and voluntarily unemployed.
HOW UNEMPLOYMENT IMPACTS INTERIM DIVISION OF INCOME AND EXPENSES (INTERIM SUPPORT)
Interim support is essentially alimony that is paid while a divorce is pending. In a nut shell, interim support determines each spouse’s “disposable income” and then divides the community’s disposable income between the parties. For more information on interim support, click here.
Unlike alimony, with interim support New Mexico courts are only interested in each spouse’s actual income – not potential earnings, or the reason for the earnings. NM courts examine the actual disposable income and divide that amount between the parties. Disposable income is considered community income. Because NM is a community property state, disposable income is divided 50-50 until the divorce is finalized.
Generally speaking, an unemployed spouse will have a greater claim for interim support, depending on the employed spouse’s monthly income and expenses (Income – Expenses = Disposable Income).
HOW DOES UNEMPLOYMENT AFFECT CUSTODY AND CHILD SUPPORT IN NM?
Unemployment can impact a parent’s claim regarding child support. The two biggest factors that impact child support in the state of New Mexico are gross monthly income and time-sharing.
Unemployment generally is not a factor that impacts time-sharing. However, unemployment can impact time-sharing when a parent is unemployed because of mental health, arrests, or substance abuse issues that impact the best interests of the child.
An unemployed parent’s income can be imputed at minimum wage (currently $1,820 in Albuquerque) when the unemployed parent is not the primary custodial parent for a child under six. See 40-4-11.1(C)(1). A parent’s income is calculated at actual income (e.g. zero if the parent is unemployed and has no income) and not imputed at minimum wage, when the parent is caring for a child under six years old.
DISABILITY AND CHILD SUPPORT IN NEW MEXICO
A disabled parent may still be ordered to pay child support. A disabled parent’s gross monthly income is usually calculated based on the amount that the parent is receiving in disability. Parents that are disabled, but have not been approved for disability, can be imputed at minimum wage.
SOCIAL SECURITY DERIVATIVE BENEFITS AND CHILD SUPPORT IN NEW MEXICO
A disabled parent may be entitled to social security derivative benefits on a child’s behalf. Derivative benefits are benefits that a child receives through a parent’s social security disability. Derivative benefits are available through SSD, but not SSI disability. Whether a parent is eligible for SSD benefits is based on the amount of income that the individual paid into social security before drawing from the account. Parents that are eligible for derivative benefits can be credited the amount that the child receives in derivative benefits against the total child support obligation. See Mask v. Mask, 620 P.2d 883.
A parent that receives social security derivative benefits is entitled to an offset up to the court ordered child support amount. For instance, if a parent is ordered to pay $250 in child support, and the child receives $250 in derivative benefits through the parent’s disability, then the derivative benefits will cover the entire child support order. A parent is not given credit for the additional derivative benefits that a child receives above the child support order. Because of this fact, additional benefits above the court ordered child support does not cover past child support (arrears) that a parent incurred before disability began.
(505) SANCHEZ HELPS YOU UNDERSTAND HOW UNEMPLOYMENT IMPACTS DIVORCE AND CHILD SUPPORT IN NEW MEXICO
Matthew Sanchez is a tested and trusted divorce and child support lawyer in New Mexico. Sanchez has the battle-tested experience to help you understand how unemployment impacts divorce and child support in Bernalillo, Sandoval, and Valencia counties. Sanchez is part of a dedicated legal team that has the experience you need to guide your divorce or custody case in New Mexico. For more information on divorce and family law in New Mexico call (505) SANCHEZ.
