Interim Support in New Mexico
How long do divorce proceedings typically take? It is one of the most common questions we hear from our clients and, depending on your circumstances, the answer varies greatly. An uncontested divorce, where both parties agree, can potentially be wrapped up in a few weeks. Contested divorces, however, can range from weeks to months, or even years.
The legal system can be difficult to navigate, the change in lifestyle can be jarring, but the world keeps turning. There are bills, debts, and family obligations that all require your attention while you are waiting for your case to settle. Interim support and allocation of income and liability is a process that helps mitigate the transition by putting both parties on equal footing.
Until the Final Decree is signed by a judge dissolving a marriage, parties in a divorce case are still legally recognized as married. Therefore, a temporary division of community property and debt is necessary until the parties are able to agree on a more permanent solution. Following the process below and familiarizing yourself with the New Mexico Rules of Civil Procedure dictating Interim Support can simplify the requirements and options you have moving forward. If you need help, please feel free to contact our experienced Albuquerque Family Law Attorneys at 1800-DIVORCE.
Rule 1-122 NMRA
New Mexico Rule of Civil Procedure for District Court 1-122 defines an Interim Order Allocating Income and Expenses. In this Order filed at the start of a divorce case, the involved parties are required to submit and enter into an agreement equally dividing community income and expenses. The parties also have the option to inform the court, through filing, their waiver of entry of interim order.
If the parties are unable to agree, a single spouse can file a motion requesting the court to enter an Interim Order, or the court can, on its own, approve an order allocating them for the individuals involved. Ultimately, this process is a collaborative effort requiring as much cooperation as possible.
Community v. Separate Property in New Mexico
There are several factors that help the court characterize and evaluate the property, debts, and income that are accumulated throughout the duration of a marriage. The parties in a divorce case are responsible for assessing and disclosing all documents claiming these. More information on the obligation of disclosure can be found below.
The assets and liability of two parties are referred to as either Community or Separate property. Community property is defined as any income or debt accumulated throughout the marriage. This includes, but is not limited to, the marital home, bank accounts, retirement plans, credit cards, and investments. The state of New Mexico requires that all community property be split evenly when parties divorce. If this even split is not the best option for you, the parties will have ample opportunity to establish a long-term division when drafting their Marital Settlement Agreement.
Separate property, as the name suggests, is that which belongs to a single party independently and was gained before the marriage. There are exceptions for property accumulated during the marriage that is considered separate. This includes gifts given to one spouse, inheritance, property in one party’s name not used for the benefit of the community, and any property explicitly stated and agreed upon, in writing, to belong to one party. Following these criteria, an equitable division can be reached that benefits everyone involved.
Determining Support Amount in New Mexico
The process of calculating the amount of Interim Support is fairly straightforward. However, it does rely on a comprehensive analysis of all the assets and debts shared by you and your spouse. First, a figure for Gross Monthly Income is provided. This is the sum of all sources of income received on a monthly basis before deductions or expenses. I am including a hypothetical case that you can follow along with to help clarify the process.
Once the total gross monthly income is determined, the parties now factor in their payroll deductions to arrive at a figure for Net Monthly Income. This is essentially the amount you receive on a paycheck before you pay any bills. This next step considers contributions to federal and state withholding, Social Security, Medicare, or mandatory retirement. This is then subtracted from the number found above.
From here, both spouses take into account their Fixed Monthly Expenses. These are bills and payments that the parties are individually responsible for every month. Included expenses are rent, mortgage payments, utilities, car payments, insurance premiums, phone bills, etc. Distribution of community expenses must be agreed upon or split evenly. For instance, the husband will pay the phone bill and the wife will pay for the car insurance. Note that the Temporary Domestic Order filed in a case typically details that parties can not cancel expenses for things necessary for daily life. Once expenses are removed from the totaled net monthly income, what remains is Net Spendable Income. This is the disposable income to be spent on food, clothes, or however one wishes.
The Net Spendable Income is used to calculate the Monthly Interim Support Obligation. This provides a monthly disposable income figure that is even for both parties involved. Certain adjustments, which will be described in further detail below, are considered to ease the stress of the transition.
From the time of filing for divorce until the parties come to an agreement on how community property will be divided, this is a standard method for determining the monthly support that one party is required to provide. Note that, depending on the length of a case, this can be modified as circumstances change, and concessions can be made as individuals adjust to separation. As previously mentioned, this process is a collaborative effort between everyone involved. There are various other factors that can potentially play a role in the determination of your Interim Support.
Rule 1-123 NMRA-Discovery
New Mexico Rule of Civil Procedure for District Court 1-123 dictates that certain disclosures be produced when entering a Domestic Relations case. For the court to properly identify, value, and divide separate or community property, a thorough claim must be identified and presented to all parties involved. Unless an order is filed stating otherwise, individuals involved must comply with this rule within forty-five days from the service of the petition. These documents, outlined below, are served directly on the opposing party in the case within the timeframe. If either party is represented by an attorney, disclosure of Rule 1-123 documents must take place through their representation.
Once all proper documents and information is provided, and Interim Support is determined in a new divorce case, a hearing can be set to discuss the most equitable division of property and debt. A hearing is not necessary in every case if the parties are able to agree on the temporary division and said agreement is communicated to the court. However, if a hearing on the proceedings does take place, both sides are responsible for providing proof of disclosure no less than five days before. If this deadline is not met, it is possible for a decision to be made in favor of the opposing party. This is also a good practice to follow at any stage of your divorce proceedings as exhibit disclosures can make or break your case.
When filing a petition for divorce, these initial deadlines are important to respect. Not only will a case proceed more efficiently, familiarizing yourself with rules and deadlines can save you from court fees and fines. Failure to comply with Rule 1-123 duty to disclose can result in harsh sanctions which are left to the discretion of the presiding Judicial Officer.
What You Will Need to Provide
It is essential to have a complete list of documents and schedules Rule 1-123 NMRA requires parties in a divorce case to provide to avoid the potential penalties. According to the New Mexico Rules of Civil Procedure, the following must be provided when pursuing Interim Support. The first is an Interim Monthly Income and Expense Statement, which outlines for the court the calculation of the Interim Support Obligation. Parties will fill out this sheet claiming all forms of income, deductions, and expenses as outlined in the tables above.
With the Interim Monthly Income and Expense Statement, parties must provide individual Community and Separate Property and Debts disclosure. These are two documents that compile all the assets and debts to be factored into the final Interim Support amount. All three documents must be verified as true and correct to the best of the parties’ knowledge. For the purpose of verifying the figures provided, additional financial documents are required:
- Federal and state tax returns for the year before opening divorce proceedings;
- W-2 Statements for the year before opening divorce proceedings;
- Internal Revenue Service Form 1099’s for the year before opening divorce proceedings;
- Insurance premiums and statements for one (1) year, if applicable; and
- Wage and payroll statements for four (4) months.
The New Mexico Rule 1-123 dictates that all the above documents must be provided within the timeframe. Disclosing the proper forms and information ensures that there is an accurate and justifiable assessment of Interim Support.
Children and New Mexico Interim Support
There are a few notable factors and changes that are considered when calculating Interim Support when the parties share children. When initially filing for divorce, the biological parents of minor children will submit a Parenting Plan to the court. This document will determine how the parents will handle responsibilities of the children during the divorce proceedings. It is adopted as an order of the court but can be modified if circumstances change.
The first difference in a divorce case with custody is the Rule 1-123 information provided. In addition to the items listed above, parties must disclose childcare related statements for one year prior to filing of the petition. This includes insurance premiums, monthly daycare statements, and other fixed monthly expenses specifically pertaining to caring for the children. Per New Mexico District Court Guidelines, parties must also serve individual Child Support Worksheets with their disclosure.
When calculating Interim Support with one parent being named the Primary Caregiver for the minor children, a percentage of the Net Spendable Income is added to the support. For one child, the primary caregiver receives 10% of the combined spendable income. For two children, 15%, and for three children, 19%. For any number of additional children shared by the parties in the case, 3% of the net spendable income is awarded to the primary caregiver. For example, if the hypothetical family used before has three children and the wife is the primary caregiver, the support obligation would change as follows.
Interim Support can bridge the gap between married and separated life. Having a basic knowledge of the process and rules can make it easier to receive what you need to provide for yourself and your family in the meantime. Understanding the law, filing the proper paperwork and meeting deadlines can be very difficult without the help of someone who has navigated this procedure before. The skilled and experienced divorce attorneys and staff of Genus Law Group have the tools to fight for you and can greatly improve your chances of getting the outcome you deserve. If you have any questions, please feel free to reach us at (505)-317-4455 or chat with us here.