How Is Child Support Determined in Collaborative Divorce?

A collaborative divorce is considered a way for spouses to amicably set the terms of their divorce without litigating it in the court system.

Many couples choose collaborative divorce because they want to make decisions about issues like the division of assets and debts, child custody, and child support.

In a litigated divorce, child support is determined using a formula that includes factors like how many children you have, who they spend the most time with, and how much income each parent earns.

In a collaborative divorce, parents can discuss what they feel will be the best arrangement to provide the children with everything they need. However, the legal number will always be known, and considered.

How Does the Collaborative Divorce Process Work?

First, you should meet with a New Mexico divorce lawyer to discuss whether this is a good option, and your spouse should meet with their own attorney. Collaborative divorce works well for many couples but isn’t right for everyone.

For example, if your relationship is very contentious and you struggle to communicate, it may not be the right solution.

However, if you and your spouse are both committed to working together to settle the issues and make the transition easier on your children, collaborative divorce may save you time and allow you to make your own agreement about the end of your marriage.

Once you and your attorney have determined that a collaborative divorce is the best way to proceed, and your spouse agrees, you should arrange a meeting to sign a “no court” agreement.

You, your spouse, and both your attorneys should attend this meeting. The document you sign will stipulate that both parties will try to resolve their differences and find the best solutions for everyone, including the children.

After the agreement is signed, the parties usually discuss a schedule for deciding various issues. They will go over any documents needed for further discussions and what experts they might need to hire.

Concerning child custody, a neutral child specialist is recommended to help determine the child’s emotional needs and advocate for their best interests. This person essentially works to represent the child, not either parent, and should not take sides between parents.

Instead, they should explain issues that may come up and how different options may affect the child. They may also answer questions or propose solutions that they believe would be most beneficial to the child.

Is a “No Court” Agreement Legally Binding?

This agreement doesn’t prohibit you from litigating your divorce through the court system. The agreement just requires hiring different lawyers if the matter does go to court. The fact is that sometimes despite everyone’s efforts, collaboration doesn’t work out.

Typically this happens because the parties can’t agree on at least one issue, and neither party is willing to compromise enough to satisfy the other.

You are legally bound by the terms of the contract, which state that if the collaborative process fails, each party will fire their attorney and retain a new one for the litigation phase.

This provision ensures that both parties have a strong incentive to try to work things out, as starting over with a new lawyer can be time-consuming and expensive.

What Are the Options for Deciding on Child Support in a Collaborative Divorce?

First Things First

It’s important to make decisions in the right order. Before deciding on support, you will first discuss custody, which usually affects support.

The New Mexico courts generally encourage joint custody, although this doesn’t have to mean an exact 50/50 split.

Sometimes it makes more sense for a child to live with one parent during the school year, especially if this allows the child to stay in the same school and neighborhood with their friends.

If so, the child might live with their other parent during the summer and visit every other weekend during the school year.

Other parents may make arrangements based on their work schedules or times of the year when one parent is less available. Again, the emphasis should be on what’s best for the child, not necessarily what’s most convenient for the parents.

Having custody of your child when you’re typically busy at work and unable to be there for them will probably not be in their best interest.

If your child is old enough to express their thoughts on custody or who they want to live with, the neutral child specialist will speak with them and explain their wishes to both parties.

In a litigated divorce, a judge would consider the child’s feelings (along with many other factors), so we recommend that parents do the same. Both you and your spouse should ask yourself if the plan you’re considering will be best for the child or if another solution might work better.

Returning to the Support Question

After ironing out the custody/visitation schedule, you and your spouse will focus on support. Typically the parent who has less time with the child will pay some support to the other parent.

In a litigated divorce, the courts decide how much using a specific formula, but you don’t have to follow this process if you don’t want to. You can, however, still elect to do this if you and your spouse feel it’s the easiest and best solution.

In a collaborative setting, you have more options for deciding how child support will work.

You might agree that the non-custodial parent or parent with less time with the child will pay the other monthly child support. But you can also get creative – the parents might choose to set up a child bank account that one or both parents pay into.

This account can be used for childcare expenses, from school fees to orthodontics. Your attorneys will help you establish rules for using the account, including parameters such as, “Consult with the other parent before purchases of more than X amount.”

Parents can also agree to set up a savings account for college that each parent will put a specific amount into each month. Alternatively, one parent might agree to pay for the child’s college education.

You should also decide who will pay for health insurance. One parent often keeps the child on their health insurance at work, especially if this reduces costs for both parties.

You can also decide how copays or medical expenses not covered by insurance will be handled. For instance, if you pay for the child’s health insurance, you might suggest that the other parent pays for 60 percent of uncovered medical expenses to make things fairer.

Throughout the process, the neutral child advocate will remind you of any financial issues you haven’t discussed that affect the child. They may also remind you to focus on how support will benefit the youth instead of worrying if the other parent gains some advantage.

How Can I Get Help with My Collaborative Divorce?

Please contact New Mexico Financial & Family Law for a consultation at (505) 503-1637.

We can help you understand the issues and answer your questions, so you can decide whether collaborative divorce is right for you. We can also assist you with a litigated divorce if it isn’t.