Alimony or Spousal Support in New Mexico
New Mexico Alimony Attorney
New Mexico generally recognizes three types of Alimony in its Statutes. These types are:
- rehabilitative spousal support
- transitional spousal support, and
- indefinite support.
The Statute also leaves open the possibility that there might be other types of spousal support. Support and alimony are the same thing and are used interchangeably in this discussion.
The Court will order rehabilitative spousal support so that the receiving spouse can gain education, training, work experience or other forms of rehabilitation. This will allow the recipient to become more self supporting. This type of spousal support is usually limited in time to the rehabilitation plan, but can be a little longer to allow the recipient to find a job.
For example, if it will take Bob three years to get through the University of New Mexico Nursing School, then the alimony will last for three years.
Going to school is probably the most commonly sought after type of rehabilitative alimony. It can also take the form of undertaking training, like a Real Estate License, and a few years of spousal support until the party becomes proficient in their chosen field. A payee receives the spousal support payment from the Payor, also sometimes called the obligor.
Most payors of rehabilitative support insist that there be a rehabilitation plan included in the divorce documents. These usually includes a provision that if the recipient is not adhering to the plan, then the spousal support ceases. If Bob is receiving money to go to the nursing school, and he doesn’t enroll, then perhaps he shouldn’t be receiving his spousal support. Going to school is expensive, especially when the payee does not otherwise have a job. The amount received can be more than you would normally expect.
Transitional Spousal Support
Transitional spousal support allows the payee of the funds to acclimate themselves to living only on their own income. An award of transitional alimony is usually a small amount and usually only lasts a limited amount of time, usually no longer than a year. If a divorce has been ongoing for more than a few months, a judge may feel that the interim support paid has already acted as a transitional payment of support.
Spousal Support for an Indefinite Duration
Spousal support for an indefinite duration is usually appropriate where there is always going to be a significant disparity in the parties’ incomes and there has been a long term marriage. Please notice that an indefinite duration does not mean permanent, though that is the way most people treat it. If the payee wins the lottery, then the alimony should end. The most common future event is when the payee remarries. If this happens, the payor can take the payee back to Court and argue the situation has changed and the payments should be reduced or terminated. The divorce documents may provide that the alimony automatically ends if the payee remarries.
Spousal support can have tax ramifications for the parties. It is possible for the payor to claim a deduction on his taxes for amounts paid to the former spouse. The payee then reports these amounts on their tax return and pays the taxes on them. This situation is attractive when the parties are in different tax brackets.
For example, if Sally is in a 40% tax bracket and Joe is in a 20% bracket, there will be more money to divide if the income is reported on Joe’s taxes. Joe would pay $200 on every $1,000 of income while Sally would pay $400 in taxes for the same amount of income. This gives the parties $200 more to distribute for every $1000 paid to Joe as alimony.
Parties may try to use this difference in tax treatment as part of a property settlement. Rather than split the parties’ property equally and then calculate what spousal support should be, they have the person in the higher tax bracket take most of the property and then pay more in alimony to the other party. They then have effectively split the money saved from the taxes. One big danger in attempting one of these settlements is that alimony is only tax deductible on your Federal Tax Return if it ends on the payees’ death. See IRS Publication 504 for the requirements necessary for alimony payments to be deductible for the payor. Some people overcome this obstacle through the purchase of life insurance payable to the payee.
Calculating Alimony Payments
At present, the Court considers a multitude of factors in determining an award of support. The primary analysis though, is the recipient’s need and the payor’s ability to pay. If the recipient can not show a budget to the Court evidencing their need, then the Court will quickly dismiss their claim. NMSA (1978) § 40-4-7 says the Court should consider the following 10 things:
“E. When making determinations concerning spousal support to be awarded pursuant to the provisions of Paragraph (1) or (2) of Subsection B of this section, the court shall consider: (1) the age and health of and the means of support for the respective spouses; (2) the current and future earnings and the earning capacity of the respective spouses; (3) the good-faith efforts of the respective spouses to maintain employment or to become self-supporting; (4) the reasonable needs of the respective spouses, including: (a) the standard of living of the respective spouses during the term of the marriage; (b) the maintenance of medical insurance for the respective spouses; and (c) the appropriateness of life insurance, including its availability and cost, insuring the life of the person who is to pay support to secure the payments, with any life insurance proceeds paid on the death of the paying spouse to be in lieu of further support; (5) the duration of the marriage; (6) the amount of the property awarded or confirmed to the respective spouses; (7) the type and nature of the respective spouses’ assets; provided that potential proceeds from the sale of property by either spouse shall not be considered by the court, unless required by exceptional circumstances and the need to be fair to the parties; (8) the type and nature of the respective spouses’ liabilities; (9) income produced by property owned by the respective spouses; and (10) agreements entered into by the spouses in contemplation of the dissolution of marriage or legal separation.”
All of these items are viewed only through the filter of the recipient’s need and the payor’s ability to pay. These broad statements make it very difficult to anticipate what a Court will do. This makes a spousal support claim a pretty big barrier to a case settling. The attorney for each side can argue that you need to go before the judge to take your chances.
For these calculations, courts generally reduce an individual’s income for any child support they are paying in the same case. Because the money is for the children, the recipient also does not include that money in their income when you examine the issue.
For alimony purposes, the Court is going to look at what the parties are capable of earning. If the payee is capable of earning $2,000 a month, but chooses not to, the Court is going to treat that individual like they are earning the money in an award of spousal support. The Court also will not be pleased that someone is seeking support from another person, but are unwilling to help themselves. The same standard also applies to a Payor.
A person with the ability to pay can also have income imputed to them. A few high paying professionals will profess a desire to be a stock boy at the grocery store before “I pay one dime in alimony.” If they follow through on their threat, and quit their job, the Court will treat them like they are earning their former income.
Modification of Spousal Support
If someone has been awarded spousal support, then there is always a possibility that later on the Court can modify its award. The Court in this instance will reserve jurisdiction over the future payment of spousal support. The “non-modifiable” language can remove the Court’s ability to later modify an award. As mentioned above, when the recipient remarries is a common situation where a payor will seek modification of an award. The payor losing his or her job, or retiring, are also two common situations. Before the Court will modify its spousal support award, the movant must show that there is a change in circumstances justifying a change, or termination, of the award. Notice also that the payee can allege an award needs to be increased.
Before Judge Kass retired from the Bernalillo County District Court a few years ago she was reportedly using a rough rule of thumb that for a long term marriage (probably 20 years or more) the Payor should have 60% of the parties’ total income and the payee 40%. If Joe earned $8,000 a month and Tina earns $2,000 a month, then Joe would pay Tina $2,000 a month in spousal support, which means Tina would have 40% of the parties’ total income ($2,000 she earns and $2,000 from Joe out of the $10,000 total income). Judge Kass has retired, and I do not think any of the current judges would make an award of support that high.
The courts have recognized spousal support as a barrier to settlement and also want to ensure that equally situated individuals are treated the same. Recently alimony guidelines have been proposed and the Second Judicial District Court (Albuquerque & Bernalillo County) is at least collecting information on this proposal. If you go to Trial in the Second Judicial District Court and spousal support is an issue in the case, you are supposed to hand the Judge your calculations in regards to one of the worksheets, below. With no children that child support is being paid for, use this worksheet:
If line 5 is a positive number, then the payor pays that amount. If line 5 is a negative number, then no support is paid.
If there are children for whom child support is paid, use the worksheet below. Do not reduce anyone’s income for child support they may be paying or receiving.
If line E is a positive number, then the payor pays that amount. If line E is a negative number, then no support is paid.
Here is an example where the parties have no children and the husband (Tom) earns $6,000 a year and the wife (Tina) earns $3000 a year.
Because the number is a positive $300, husband would have “guideline spousal support” of $300 a month.
The proposed rules state that If the marriage is more than 20 years the Court should make the award indefinite and keep jurisdiction over the award for future changes. If the marriage is from 10 to 20 years long, the support should last 30 to 50% of the length of the marriage. For marriages of 5 to 10 years in length, only rehabilitative or transitional alimony should be considered. For marriages less than 5 years, no alimony should be awarded.
These guideline amounts would most likely then be filtered through the 10 statutory factors outlined above. Those factors could increase or decrease an award of “guideline spousal support.”
Contact New Mexico Spousal Support Lawyer
Contact William J. Morgan, a trusted alimony attorney in Albuquerque, if you have any questions about New Mexico’s spousal support laws.