2019 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 4A - Support Enforcement
Section 40-4A-4.1 - Immediate child support income withholding.
A. In any judicial proceeding in which child support is ordered, modified or enforced and which proceeding is brought or enforced pursuant to Title IV-D of the Social Security Act as provided in Section 27-2-27 NMSA 1978, the income of the support obligor shall be subject to immediate income withholding regardless of the existence of any child support arrearage or delinquency. Effective January 1, 1994, in proceedings in which child support services are not being provided pursuant to Title IV-D and the initial child support order is issued in the state on or after January 1, 1994, the income of the support obligor shall be subject to immediate income withholding regardless of the existence of any child support arrearage or delinquency.
B. As part of the court or administrative order establishing, modifying or enforcing the child support obligation, the court shall issue the order to withhold.
C. The order to withhold shall state:
(1) the style, docket number and court having jurisdiction of the cause;
(2) the name, address and, if available, the social security number of the obligor;
(3) the amount and duration of the child support payments. If any of the ordered amount is toward satisfaction of an arrearage or delinquency up to the date of the order, the amount payable to current and past-due support shall be specified, together with the total amount of the delinquency or arrearage, including judgment interest, if any;
(4) the name and date of birth of the child for whom support is ordered and the name of the obligee;
(5) the name and address of the person or agency to whom the payment is to be made, together with the agency's internal case number; and
(6) any other information deemed necessary to effectuate the order.
D. All Title IV-D payments shall be made through the public office. All non-Title IV-D payments shall be made through the public office to be effective on October 1, 1998.
E. The maximum amount withheld pursuant to this section and any other garnishment shall not exceed fifty percent of the obligor's income.
F. The order of a withholding shall be mailed by the Title IV-D agency or the support obligee, obligee's attorney or court by certified mail to the payor. The payor shall pay over income as provided by and in compliance with the procedures of Section 40-4A-8 NMSA 1978.
G. The court may provide an exception to the immediate income withholding required by this section if it finds good cause for not ordering immediate withholding. The burden shall be on the party claiming good cause to raise the issue and demonstrate the existence of good cause to the court. In the event of a finding of good cause, the court shall make a written finding in the order specifying the reasons or circumstances justifying the good-cause exception and why income withholding would not be in the best interest of the child. If the order is one modifying a support obligation and immediate income withholding is not ordered, the order shall include a finding that the obligor has timely paid support in the past. The order shall provide that the obligor shall be subject to withholding if a one-month support delinquency accrues.
H. The court shall make an exception to the immediate income withholding required by this section if the parties to the proceeding enter into a written agreement providing for alternative means of satisfying the child support obligation. Such an agreement shall be incorporated into the order of the court. For the purposes of this subsection, the support obligee shall be considered to be the department in the case of child support obligations that the state is enforcing pursuant to an assignment of support rights to it as a condition of the assignor's receipt of public assistance. The agreement shall contain the signatures of a representative of the department and the custodial parent.
I. Notwithstanding the provisions of Subsection G of this section, immediate income withholding shall take place if the child support obligor so requests. The notice to withhold shall be filed with the clerk of the district court and the requirements of Subsection C of this section, Subsections D, E and F of Section 40-4A-5 and Sections 40-4A-6, 40-4A-8, 40-4A-10 and 40-4A-11 NMSA 1978 shall apply.
J. A court shall order a wage withholding effective on the date on which a custodial parent requests such withholding to begin if the court determines, in accordance with such procedures and standards as it may establish, that the request should be approved, notwithstanding:
(1) the absence of a support delinquency of at least one month;
(2) a finding of good cause under Subsection G of this section; or
(3) an agreement under Subsection H of this section.
K. The standards and procedures established for purposes of Subsection J of this section shall provide for the protection of the due process rights of the support obligor, appropriate notices and the right to a hearing under the Support Enforcement Act.
L. Wages not subject to withholding under Subsection J of this section shall still be subject to withholding on an earlier date as provided by law.
M. Notwithstanding any other provision of this section, wages not subject to withholding because of a finding of good cause under Subsection G of this section shall not be subject to withholding at the request of a custodial parent unless the court changes its determination of good cause not to initiate immediate wage withholding.
N. In the event a child support obligor accrues a delinquency in an amount equal to at least one month's support obligation and notwithstanding any previous agreement or court finding to the contrary, income withholding shall issue against the support obligor and the procedures set out in Section 40-4A-4 NMSA 1978 shall be followed. Such withholding shall terminate only upon the termination of all obligations imposed by the order of support and payment in full of all enforceable child support delinquencies.
History: 1978 Comp., § 40-4A-4.1, enacted by Laws 1990, ch. 30, § 1; 1992, ch. 26, § 1; 1993, ch. 254, § 2; 1997, ch. 237, § 8.
ANNOTATIONSCompiler's notes. — The reference to Subsections D, E and F of 40-4A-5 NMSA 1978 in Subsection I should be a reference to Subsections C, D and E in light of the 1997 amendment to Section 40-4A-5 NMSA 1978.
Cross references. — For provisions regarding collection of unpaid support obligations through seizure of lottery winnings, see 6-24-22 NMSA 1978.
For forms relating to garnishment of wages for child support, see Rules 4-811 and 4-812 NMRA.
For Title IV-D of the federal Social Security Act, see 42 U.S.C. § 651 et seq.
The 1997 amendment, effective April 11, 1997, rewrote Subsection D, and made minor stylistic changes throughout the section.
The 1993 amendment, effective June 18, 1993, substituted "Immediate" for "Title IV-D" in the catchline; in Subsection A, deleted "or administrative" after "judicial" in the first sentence and added the second sentence; deleted "or administrative body" after "court" in Subsection B, Paragraph (1) of Subsection C, the first, second and third sentences of Subsection G, the first and second sentences of Subsection H, and Subsection M; deleted "All" from the beginning and added the language beginning "with the exception" to the end, in Subsection D; inserted "or the support obligee, obligee's attorney or court" in the first sentence of Subsection F; divided the former third sentence of Subsection G into the present third and last sentences, substituting the language beginning "why income withholding" to the end of the present third sentence and "The order shall provide" at the beginning of the present last sentence for "shall further include as part of its written order"; added the fourth sentence to Subsection G; added the last sentence of Subsection H; in Subsection I, deleted "the department" from the end of the first sentence and deleted the former second sentence, which read: "Such request shall be in writing in a form provided by the department"; substituted "court" for "Title IV-D agency" in the introductory language of Subsection J; deleted "by the department" after "established" in Subsection K; and deleted "in a case being enforced pursuant to the state's Title IV-D program" after "obligation" in the first sentence of Subsection N.
The 1992 amendment, effective May 20, 1992, in Subsection H, substituted "shall be" for "must be" in the second sentence; in Subsections H and I, deleted "human services" preceding "department" at the first appearance of that word in both subsections; added present Subsection J and redesignated former Subsection J as Subsection N; and added subsections L and M.
