A.     In any action to establish or modify child support, the child support guidelines as set forth in this section and the child support schedule promulgated by the department shall be applied to determine the child support due and shall be a rebuttable presumption for the amount of such child support. Every decree or judgment or stipulation of child support that deviates from the guideline amount shall contain a statement of the reasons for the deviation.

B.  The purposes of the child support guidelines are to:

(1)       establish as state policy an adequate standard of support for children, subject to the ability of parents to pay;

(2)       make awards more equitable by ensuring more consistent treatment of persons in similar circumstances; and

(3)       improve the efficiency of the court process by promoting settlements and giving courts and the parties guidance in establishing levels of awards.

C.        For purposes of the guidelines specified in this section:

(1)       “income” means actual gross income of a parent if employed to full capacity or potential income if unemployed or underemployed.  The gross income of a parent means only the income and earnings of that parent and not the income of subsequent spouses, notwithstanding the community nature of both incomes after remarriage; and

(2)       “gross income” includes income from any source and includes but is not limited to income from salaries, wages, tips, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, significant in-kind benefits that reduce personal living expenses, prizes and alimony or maintenance received, provided:

(a)       “gross income” shall not include benefits received from: 1) means-tested public assistance programs, including but not limited to temporary assistance for needy families, supplemental security income and general assistance; 2) the earnings or public assistance benefits of a child who is the subject of a child support award; or 3) child support received by a parent for the support of other children;

(b)       for income from self-employment, rent, royalties, proprietorship of a business or joint ownership of a partnership or closely held corporation, “gross income” means gross receipts minus ordinary and necessary expenses required to produce such income, but ordinary and necessary expenses do not include expenses determined by the court to be inappropriate for purposes of calculating child support;

(c)        “gross income” shall not include the amount of alimony payments actually paid in compliance with a court order;

(d)       “gross income” shall not include the amount of child support actually paid by a parent in compliance with a court order for the support of prior children; and

(e)       “gross income” shall not include a reasonable amount for a parent’s obligation to support prior children who are in that parent’s custody.  A duty to support subsequent children is not ordinarily a basis for reducing support owed to children of the parties but may be a defense to a child support increase for the children of the parties.  In raising such a defense, a party may use Table A as set forth in Subsection M of this section to calculate the support for the subsequent children.

D.        If a court finds that a parent has willfully failed to obtain or maintain appropriate employment or is willfully underemployed, the court may impute to that parent an income equal to that parent’s earning and employment potential.

(1)       The following criteria shall be used:

(a)       availability of employment opportunities for the parent;

(b)       the parent’s employment history;

(c)        the parent’s income history;

(d)       the parent’s job skills;

(e)       the parent’s education;

(f)        the parent’s age and health;

(g)       the parent’s history of convictions and incarceration; and

(h)       the parent’s ability to obtain or maintain employment due to providing care for a child of the parties who is under the age of six or is disabled.

(2)       Minimum wage may be imputed if a parent has no recent employment or earnings history and that parent has the capacity to earn minimum wage.  The minimum wage to be imputed to that parent is the prevailing minimum wage in the locality where that parent resides.

E.        Income may not be imputed to a parent if the parent is incarcerated for a period of one hundred eighty days or longer.  Incarceration is not considered a voluntary unemployment.

F.         As used in this section:

         (1)       “department” mens the human services department [health care authority department];

(2)       “children of the parties” means the natural or adopted child or children of the parties to the action before the court but shall not include the natural or adopted child or children of only one of the parties;

(3)       “basic visitation” means a custody arrangement whereby one parent has physical custody and the other parent has visitation with the children of the parties less than thirty-five percent of the time.  Such arrangements can exist where the parties share responsibilities pursuant to Section 40-4-9.1 NMSA 1978; 

(4)       “shared responsibility” means a custody arrangement whereby each parent provides a suitable home for the children of the parties, when the children of the parties spend at least thirty-five percent of the year in each home and the parents significantly share the duties, responsibilities and expenses of parenting; and

(5)        “schedule” means the child support schedule promulgated by the department.

G.        The basic child support obligation shall be calculated based on the combined income of both parents and shall be paid by them proportionately pursuant to Subsection L of this section.

H.        Physical custody adjustments shall be made as follows:

(1)       for basic visitation situations, the basic child support obligation shall be calculated using the basic child support schedule promulgated by the department, Worksheet A and instructions contained in Subsection M of this section.  The court may provide for a partial abatement of child support for visitations of one month or longer; and

(2)       for shared responsibility arrangements, the basic child support obligation shall be calculated using the basic child support schedule promulgated by the department, Worksheet B and instructions contained in Subsection M of this section.

I.          In shared responsibility situations, each parent retains the percentage of the basic support obligation equal to the number of twenty-four-hour days of responsibility spent by each child with each respective parent divided by three hundred sixty-five.

J.         The cost of providing medical and dental insurance for the children of the parties and the net reasonable child-care costs incurred on behalf of these children due to employment or job search of either parent shall be paid by each parent in proportion to that parent’s income, in addition to the basic obligation.

K.        The child support may also include the payment of the following expenses not covered by the basic child support obligation:

(1)       any extraordinary medical, dental and counseling expenses incurred on behalf of the children of the parties.  Such extraordinary expenses are uninsured expenses in excess of one hundred dollars ($100) per child per year;

(2)       any extraordinary educational expenses for children of the parties; and

(3)       transportation and communication expenses necessary for long distance visitation or time sharing.

L.         Whenever application of the child support guidelines set forth in this section requires a person to pay to another person more than forty percent of the paying person’s gross income for a single child support obligation for current support, there shall be a presumption of a substantial hardship, justifying a deviation from the guidelines.

M.         The department shall:

            (1)      establish the basic child support schedule by rule, using the recommendations of the child support guidelines review commission as the initial proposed rules: and

            (2)      update and adjust the basic child support schedule when such a change is necessary to ensure that the child support schedule complies with the child support guidelines set forth in this section. The basic child support schedule shall be promulgated pursuant to the State Rules Act and shall be published and available to the public through the New Mexico Administrative Code, the New Mexico supreme court’s website and the department’s website. When the department is developing or updating the child support schedule, it shall consider:

                       (a)     all of the earnings and income of the noncustodial and custodial parent;

                       (b)     the basic subsistence needs of a noncustodial parent who may have a limited ability to pay by incorporating a mechanism that adjusts the basic support obligation for low-income parents;

                       (c)      economic data on the costs of raising children;

                       (d)      state and local labor market date; and

                       (e)      regional and national trends in child support schedule adjustments.

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