One of the most important issues in a divorce is the award of child support. In all but a very few cases, New Mexico courts will require the non-custodial parent to make regular payments to the custodial parent (the parent having custody of the couple’s children). Unfortunately in some cases, the non-custodial parent may attempt to reduce his or her child support obligation by either voluntarily quitting a job, under-reporting income or taking a lower-paying job. New Mexico courts get around these tricks by looking at the paying parent’s potential income, not just his or her actual income.
In awarding child support to the custodial parent, the court must take into consideration the income and potential income of both spouses. In other words, the court may determine a spouse’s income based on what the spouse could have been earning if fully employed, not what the spouse is actually earning. The process is called “imputing income.”
The court can impute income to a non-custodial spouse upon a finding that the person has become voluntarily unemployed or is underemployed for the purpose of reducing the child support obligation. If the court finds that the non-custodial parent voluntarily quit his or her employment, or accepted employment at an income level lower than the person might ordinarily earn, the court can based the child support obligation on that person’s potential income, not the actual income that was reported to the court. In making this determination, the court will look at the parent’s prior employment experience, his or her education, his or her earning capacity and lifestyle.
Any person contemplating a divorce who has questions about child support may benefit from consulting a lawyer who specializes in family law and divorce. A knowledgeable divorce attorney can provide a helpful evaluation of the circumstances and an estimate of whether the court is likely to impute income to the non-custodial parent.