In some cases, New Mexico custodial parents who are owed back child support by their former spouses or children's noncustodial parents may be able to reclaim some or all of the sum owed from the noncustodial parent's Social Security benefits. The type and amount of the benefits the noncustodial parent receives and what proportion of the parent's income constituted by the benefits affects how much, if any, back child support may be reclaimed.
Noncustodial parents who receive Supplemental Security Income are generally considered exempt from garnishment for owed child support. Additionally, when a parent's Social Security benefits represent the sole means of support for that parent, owed child support may not be garnished. In cases where the type of benefit or gross monthly income of the noncustodial spouse is such that neither of these conditions are met, the custodial parent may file for garnishment.
Under current Social Security rules, where household income is not a crucial factor and the benefit received is not SSI, the custodial parent may receive up to 65 percent of the noncustodial parent's Social Security benefit for owed child support. This may be paid as a lump sum or percentage, depending on how the benefit is paid to the noncustodial parent. State child support services may be able to assist in garnishment proceedings.
When a noncustodial parent fails to pay some or all court-mandated child support, a divorce attorney may start by examining the gross household incomes of both parents and where the money to maintain their respective households comes from. The attorney might assist the custodial parent with access to state child support services or presenting a judge with the complaint for adjudication as well as assisting in obtaining a garnishment order from the court.