Albuquerque Divorce Lawyer Blog

No doubt about it, kids love summer vacation. For divorced parents, on the other hand, these vacations can be the source of all varieties of stress and conflict. This is particularly so if the parties have not worked out the vacation schedules in advance.

As a married couple, last minute vacation plans are the norm for some families. This flexibility is rarely the case with divorced parents or with parents that are in the process of divorce. This can be the case even for those parents that are on very good terms. One party's flexibility and whim is the other parent's inconvenience and disruption.

Though all conflicts cannot be avoided by time-sharing agreements that include carefully spelled out summer vacation schedules, a schedule can certainly go a long way in that direction for most. A schedule is helpful for all divorced parents. It is absolutely necessary for high conflict child custody cases.

Even for those parents that are effectively co-parenting, a schedule is important for numerous reasons. First, and foremost, it provides security, predictability and comfort for the children. It is important for children in a divorce setting to have predictability and reliability. What may seem like trivial diversions for parents can be very upsetting to children who may already be on edge due to the stresses of divorce.

Next, a schedule avoids the inevitable scheduling conflicts that will arise when parents do not plan in advance or work together to plan their vacations. Again, the conflicts can be very stressful for the children.

For parents that do not get along or cooperate, a schedule is absolutely necessary. The family law courts (at least in Albuquerque and Rio Rancho) are overrun with emergency motions to address time-sharing during the summer due to conflicts with summer vacations. The same thing happens at Christmas and other holidays as well.

The lack of a schedule and cooperation not only leads to unnecessary and costly court appearances, it causes other problems as well, not the least of which is the fact that "emergency" in family law court does not mean you will get a hearing before the vacation is actually scheduled. Beyond that, the children bear much of the brunt of these conflicts, which can turn the long anticipated summer vacation into a dreaded event. The parents likewise will suffer the stress (and costs) of the court hearings.

These consequences often are not enough to deter the conflict. An airtight vacation schedule will. There are certainly those that will go to court anyway, but that is the exception. And there can be serious consequences for violating the vacation schedules, including awards of attorney fees, contempt and even modifications of time-sharing moving forward.

Addressing vacation plans well in advance with a well thought out and well documented schedule can go a long way toward maintaining the peace and sanity of the parties. Most of all, it will help to insure that indeed summer vacation is a time of joy for the children and not simply a season of hostility and conflict to be dreaded.

Related Reading:
Important But Often Overlooked Issues to Address in a New Mexico Parenting Plan
Common Issues with New Mexico Parenting Plans
Holiday Schedules Should Not Be Overlooked in New Mexico Parenting Plans

Collins & Collins, P.C.
Albuquerque Attorneys

It is often assume or perhaps hoped that alimony automatically terminates upon the marriage of the recipient of the support. This is not necessarily the case.

Spousal support may be ordered for a variety of purposes. It can be transitional, and/or rehabilitative. This means that it is by definition temporary in nature. It might be indefinite. It might also be in the form of a lump sum.

In the case of lump sum payments, whether in one payment or a schedule of payments, the alimony is fixed and cannot be changed. This includes the remarriage or even the death of the receiving spouse. In essence, it is vested property interest.

In the case of transitional or rehabilitative, the parties and/or the court can make the spousal support non-modifiable. In the case that the alimony is made non-modifiable either by agreement of the parties or judgment of the court, the amounts cannot be later modified.

In all but very rare and exceptional cases, this means that neither spouse can go back later for a modification. Neither the recipient spouse can ask for more nor can the paying spouse ask for less. It is inconsequential whether the payments of spousal support later become a financial strain. Likewise, the recipient cannot go back and ask for more due to economic necessity or hardship.

The resolution of non-modifiable support is final whether it comes by marital settlement agreement or order of the court. This means also that it is immaterial whether the recipient spouse gets remarried.

In case of agreement by the parties in the marital settlement agreement, the spousal support was a bargained for exchange. It is assumed that it was negotiated in the context of the remainder of the division or debt and assets. It is valued at the time of the divorce and it cannot later be changed, modified or renegotiated in the absence of an agreement between the parties.

Likewise, if the parties proceed to trial, and the court makes an order of non-modifiable alimony, this order would issue in light of the remaining issues of property, debt, income, and income earning potential of the parties. The court's order, right or wrong, is binding. "Non-modifiable" means non-modifiable in the absence of a successful appeal. This is one good reason for working out the differences between the parties in a marital settlement agreement.

Because these matters are except in rare situations irreversible, it is extremely important to work through these in advance. The issue of non-modifiable alimony can be very important and potentially burdensome on one or both parties. It should not be entered lightly.

On the other hand, there may be situations where such a non-modifiable alimony agreement makes sense in the context of the overall division or property and debt. To know if it does, you must first understand the overall picture of property and debt and how the issues might be resolved if left to the court.

This is best accomplished with the guidance of an experienced divorce and family law attorney.

Related Reading:
New Mexico Alimony: Til Death Do Us Part!
There are Many Options for the Payment of Alimony in New Mexico
Alimony and Spousal Support in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

In a divorce, there is always the option for early mediation if the parties are amenable. In order to decide whether or not to mediate, it is important to know the basics of mediation in a divorce setting. It is equally important to know what to expect.

Mediation in divorce is often referred to as settlement facilitation. Settlement facilitators in divorce mediations should always be very experienced in divorce law and practice. This means that the settlement facilitator will be either a highly experienced divorce attorney or even a retired family court judge. It would be both unwise and unproductive to use a mediator without significant experience in divorce law.

It should also be kept in mind that settlement facilitation requires a great deal of preparation on the part of the parties and their attorneys if the parties have any hope of having the process end with a marital settlement agreement. This means preparing the case so that the facilitator is fully informed of all the issues. What this means in practice is that the settlement facilitation should not be conducted until discovery has been completed. This in turn means that the parties should cooperate in the discovery process.

For a successful mediation/settlement facilitation, it is important that the parties cooperate in the discovery process. Discovery can be difficult, burdensome, time-consuming and even frustrating. However, it must be done. In fact, there are standard discovery request that go out in divorce and family law proceedings. The questions and the request for production of documents are standardized. They may seem overly intrusive, but they required by the courts.

Assuming the parties cooperate in discovery, and the discovery process has been completed, it is time to consider settlement facilitation. It should be kept in mind that the courts in New Mexico will order parties to settlement facilitation prior to any trial settings. There is even an opportunity for a free settlement facilitation once a year in Albuquerque's Second Judicial District during settlement week.

However, assuming the parties can afford to pay for a settlement facilitator between them, it is generally best to move forward with the settlement facilitation as soon as possible. Settlement facilitations are largely successful. However, it is important to understand what is meant by "successful."

Successful means that the parties are able to come to an agreement on all or most of their issues. This means they come to an agreement on child custody, child support, the division of property and debt, alimony, and other issues (both large and small) involved in the divorce.

It is important for the parties to both keep their expectations in check. "Successful" does not mean that you will walk away happy. It does not mean that you will get everything you want. To the contrary, it is often said that a successful mediation or settlement facilitation ends with both parties unhappy about the outcome. This may be a slight exaggeration and might be better stated that both parties must generally compromise significantly on their ideal outcome.

Having said that, the success of settlement facilitation can also be measured in other ways that, with time, will take the sting out of the initial compromise. Successful settlement first and foremost ends the marriage and with it, the divorce process. It does so in the most non-adversarial manner possible. It takes a potentially explosive situation and brings it to a close.

In so doing, settlement facilitation minimizes the stress, frustration, time and attorney fees and costs to the parties (and their children). It is the best option in most cases and should not only be considered, it should be considered as early as possible. In the end, most are very happy that did it.

Related Reading:
Settling a Divorce Case in Mediation Does Not Mean Settling Differences
Divorce and Custody Mediation in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

Parenting Plans set out all the essential terms of custody, time-sharing and child support following a divorce. There are many big issues such as custody and support.

There are also smaller, though equally important, issues such as schools, religious preferences, vacations, recreational activities, school activities, and all the other issues surrounding raising a child.

This article refers to changes to these other issues. Changes to child custody and support are each deserving of their own discussions.

In any event, any one of the many terms of a Parenting Plan may need to be modified. Many parties are able to reach agreement on these changes to the Parenting Plans with little to no conflict. Other times, the Parenting Plan can be the most difficult part of the divorce.

Whether the Parenting Plan was agreed upon amicably or whether it was court ordered after heated dispute, there may come a time that the Parenting Plan needs to be modified. The way this is done will depend upon the parties and the nature of the divorce.

In those divorces where the parties can work together, modifying the Parenting Plan is as easy as drafting up the changes and submitting the new Parenting Plan to the Court for approval. Whether or not the parties should get legal assistance in this process will depend on the circumstances. If possible, it is often beneficial to have an attorney draft the document to insure that the wishes of the parties are indeed reflected in the language.

Once the new Parenting Plan is worked out, it will be submitted to the court for approval and signature. Typically, you or your lawyer will have to arrange to get the signed order from the judge's office and take it to the clerk for filing. Some, though not all judges, will require a hearing depending on the nature of the changes.

That is the best case. Unfortunately, many parties do not have a working relationship. Many more are actively hostile toward one another. Changing the Parenting Plan in these cases will require the filing of a Motion to Modify the Parenting Plan. The Motion will set forth specifically what the party wishes to change. Equally important, the Motion must set forth the reasons for this change.

In reviewing the Motion and the Response, the Court will be looking at the best interests of the child(ren). This is the most important and often the only consideration. However, other issues related to the parties themselves may be considered. Two common examples, though there are many, include financial hardship and interference with employment associated with private schools, extracurricular activities, hobbies and the like.

In short, if you are seeking to modify the Parenting Plan, seek agreement from the other party first. If that does not work, think long and hard about why you are seeking the change. The Parenting Plan may be changed, but it will not be changed without good reason in the absence of an agreement between the parties.

Filing is the easy part. Modification of the Parenting Plan is often fiercely resisted by the other party. It is far less expensive and stressful if the parties can come to some agreement, in which case a stipulated order modifying the Parenting Plan can simply be entered with the court.

Related Reading:

Important But Often Overlooked Issues to Address in a New Mexico Parenting Plan
Common Issues with New Mexico Parenting Plans
The "Best Interests Of The Child" in New Mexico Involves Many Factors

Collins & Collins, P.C.
Attorneys at Law

The lure of social media is just too strong to resist for some. Some feel compelled to share their every thought and moment throughout the day. Not only do they share, but they do so in the most artful ways with photos, video, links, diary style entries, and the like. Remarkably, these same folks are often shocked to find that all of this is admissible in court against them in their divorce proceedings (or other legal proceedings for that matter).

For a lawyer, it's great to have such a giving and sharing individual on the other side of a court case. It is not as pleasant when it is the lawyer's own client who has basically prepared the trial notebook complete with exhibits for the other side.

Unfortunately, once all of this information is posted, there is little to do to fix it. It is a permanent record. It will always be there to be recovered by your soon to be ex and his or her attorneys (or other authorities) if they want to retrieve it. In fact, most courts will issue a court order requiring disclosure. Some courts have gone so far as to require parties to a divorce or other lawsuit to turn over passwords.

Though you cannot erase your social media (Facebook, Twitter, Google+...) history, and there could be serious consequences for even trying such as spoliation of evidence, adverse inferences, and contempt in divorce and family law court. In criminal prosectuions which come up far too often in divorce and family law cases, there might even be criminal charges for obstruction of justice for the attempted destruction of evidence.

Though the record is permanent, you can take a few simple steps to protect what little remains your privacy. Likewise, though some damage may already be done, you can stop the carnage and/or minimize the damages to your case.

Step Number 1 - Ramp Up Your Privacy Settings
There are numerous possible settings to set who all can view your page and equally important who can post to your page. This second aspect is often quite important since it is your friends (some well-meaning, others not so much) who will often post the most damaging comments, photos, videos and the like. In a divorce or other legal case, the privacy settings should be set very high.

Step number 2 - Cull Your List of Friends
Just because you have your privacy settings set high, does not mean your friends will not share your information from their own pages. If you must share with some friends, choose those friends carefully. This goes back to the beginning thought which is that once shared, social media is permanent. No matter what happens to your own account, your information is out there somewhere and trust that it can be found. Assume the worst when dealing with social media in a divorce.

Step Number 3 - Stop Posting
If you cannot stop posting completely, at least stop posting anything that might come back to bite you. Preferably, you would stop posting at all. There are actually studies showing that people would rather lose their sense of smell than the use of Facebook. So perhaps, this is asking too much. But is it asking too much to counsel against self-destruction?

Rest assured, if you cannot resist the urge to share your thoughts with the world, those thoughts will also be shared with the judge. Not only might this be humiliating in court, it can be quite damaging to the outcome of your case.

Step Number 4 - Discuss Your Sharing History with Your Attorney
This is perhaps the most important step for those who find themselves vulnerable from their liberal sharing tendencies. In short, discuss the problems candidly with your attorney. Hiding it from your attorney is the worst thing you can do. Assume that it will be found and who would you rather find it first, your attorney or your ex's?

Related Reading:
Social Networking Sites: Careful What You Post, It Can and Will be Used Against You by Your Ex!
Your Digital Trail and What it Can Mean for Your Divorce or Child Custody Dispute
The Divorce Process in New Mexico: From the Petition to the Dissolution

Collins & Collins, P.C.
Albuquerque Attorneys

Victims of domestic violence often do not know where to turn. There is often a sense of isolation and desperation. Perhaps more than this is a fear of the unknown and the related fear of whether there is anything out there that can help.

The divorce process can be quite daunting. Couple this with domestic violence and abuse, and some may choose not to act at all for fear of making their situation worse. For those, it is important to know that are protections and well established procedures for protecting victims of domestic violence.

First, and perhaps most obviously, the victim should contact the police at the time or as soon as possible after the act of domestic violence has occurred. Domestic violence is taken extremely seriously in New Mexico. If the perpetrator of domestic violence is still present, he or she will be arrested. Equally important for the safety of the victim, an order of protection will be issued by the court prohibiting contact by the defendant with the victim. Violations of the order of protection will result in immediate arrest and frequently incarceration for the duration of the criminal proceedings.

The criminal process will result in immediate relief to the victim. However, the criminal courts lack jurisdiction to address the issues involved in a divorce. One important issue that comes up immediately in these cases is possession of the community residence. The criminal courts cannot address this. However, the domestic violence divisions of the New Mexico family courts can. Though domestic violence hearing officers are also limited in the issues that they can address, they can address possession of the community residence and temporary child custody and support. Again, like the criminal courts, the most important product of these proceedings for the protection of the victim is the no contact order. Keep in mind that the Petition for Order of Protection from Domestic Abuse can be filed even if no criminal charges have been filed.

Finally, the divorce proceedings should be initiated immediately. This may seem a step too far for many victims of domestic violence who may maintain hope for the marriage. Be this as it may, filing for the divorce provides significant protections to the victim (as with any other party filing for divorce). The most important first step in the divorce process is the issuance by the court of a Temporary Domestic Order (TDO). The TDO basically freezes the status quo, meaning that the parties are prevented from doing a number of things that would harm the other party.

Keeping in mind that there is domestic violence present and domestic violence offenders are quite creative in their forms of abuse , the TDO is very important. For instance, the TDO prevents either party (i.e. the domestic violence offender) from selling assets, closing bank accounts, running up debt and other issues related to the community property and debt of the parties. Most importantly, the TDO prevents either party from relocating with the children. Specifically, the parties are prevented from taking the children out of state. Violation of this provision can result in charges of interference with custody and even parental kidnapping. These are very serious felony charges that should deter all but the most determined and malicious domestic violence offenders.

The TDO affords other protections as well. The TDO remains in place so long as the divorce proceedings are in process or until agreed upon by the parties or order of the court. They are not permanent and should a victim and offender reconcile and decide to terminate the divorce proceedings, the TDO will expire.

Rest assured, there is relief for domestic violence victims. There are many organizations throughout the State of New Mexico that provide services for victims of domestic violence. For a partial list of these services, click here: Helpful Links - Domestic Abuse/Domestic Violence. If one these organizations cannot help, they should be able to point you toward one that can. Though it may be frightening to get started in protecting yourself (and your children), if you are a victim of domestic violence, getting started is the only good option.

Related Reading:
What Does a Civil Order of Protection From Domestic Abuse Mean to You?
Domestic Abusers May Seek Control through Child Custody
Consequences of a Domestic Violence Order of Protection Under the New Mexico Family Violence Protection Act

Collins & Collins, P.C.
Albuquerque Attorneys

It is not uncommon that a spouse immediately regrets the filing of a Petition for Order of Protection from Domestic Abuse. For those not familiar with the term, it is basically a Temporary Restraining Order filed in a domestic relations setting.

These are often filed for very good reasons and are needed to protect one the spouses from abuse at the hands of the other spouse. On many occasions, however, they are filed for illegitimate or otherwise misguided reasons. For instance, they may be filed in the heat of the moment. They may be filed upon the errant advice of others, some well-meaning, some not as much. They are often filed with the misguided goal of obtaining the upper hand in a divorce or child custody setting.

It is beyond dispute that these Petitions for Order of Protection are filed without good cause on a regular basis. Frequently, the party that filed will later regret having filed it and want to know how to drop the petition. The answer in domestic relations court is much different than in the criminal courts.

Let's start with the criminal courts first. Once a criminal charge for domestic violence is filed, it is exceedingly difficult to get the charges dropped. This is the case even if the party who called the police or filed the report does not want to pursue charges and is even willing to put it writing. Once in the criminal courts, it is strictly up to the District Attorney whether the charges will be dropped or not.

In domestic relations court, it is far simpler to drop the petition. If the parties agree and an order of dismissal is filed, the petition will be dismissed. In the alternative, if the parties do not show up for the hearing, the petition is dismissed. There is no prosecutor to pursue the case. The case is filed by one of the spouses and it is up to that spouse either or their own or through an attorney to pursue it.

So if you filed the petition and want it dropped, how do you go about doing this? The answer is easy. The first option is to file a dismissal. The second option is to just not show up for the hearing. If the petitioner does not show up for the hearing, the petition is dismissed. There are a few caveats here.

First, the Respondent (the one accused of domestic abuse) would do well to show up no matter what the petitioner says regarding his or her appearance. It is not just cynicism that suggests this. It is not unheard of for the petitioner to say that he or she will not be there when in fact they do show up. If this is the case, the respondent will be found guilty by default.

Likewise, the petitioner should be careful as well. Respondents often file counter-petition for orders of protection from domestic violence. If you filed, then you would certainly not want to drop your petition if your spouse has already filed a counter-petition.

As in all legal matters, it is important to fully understand both your rights and the process. Due to the many serious consequences of domestic abuse, it is important to seek the counsel of an experienced attorney. If you cannot afford one, there are a number very good resources for parties to domestic abuse.

Related Reading:
Two Sides to Every Story: Mutual Orders of Protection in New Mexico
Domestic Abusers May Seek Control through Child Custody
Abuse of Domestic Violence Proceedings: Playing Dirty in Divorce

Collins & Collins, P.C.
Attorneys at Law

Mediation is commonly used in every area of the law. In fact, most courts require at least an attempt at mediation before a case can go to trial. This is no different in family law cases. In fact, mediation in divorce and family law cases is both required and highly effective.

Mediation in divorce and family law cases is in New Mexico generally referred to as settlement facilitation. Despite the use of the term settlement facilitation, it is often referred to as mediation so we will stick with that term here. Mediation in family courts, and in larger civil court cases, is a little bit different than what some may envision as mediation.

The goal of mediation in family law cases is to settle the case. Settling a case in family law is very different than settling differences in other mediation contexts. Some might view this as a weakness. For the most part, experienced family law attorneys view it as a strength since it leads a settlement of the case. On the other hand,, settling differences in a divorce case is often impossible and only gets in the way of settling the case.

Because the goal is to settle the case, one big difference in family law cases versus other mediation settings is that mediator/settlement facilitator is almost always a highly experienced family law attorney or retired judge with family court experience. This is similar to the State and Federal District Courts in other civil litigation where the mediators are very experienced in the area of law that is in dispute.

This is often not just extremely helpful in getting the case settled, it is essential. Divorce and family law cases are fraught with highly emotional issues. They often touch on all the hot family law topics such child custody, child support, division of income, division of property and debt, and other emotionally charged issues. Settling the case is difficult enough with all these issues. Settling differences is near impossible and the attempt alone will prevent settlement of the case

An experienced divorce and family law attorney or retired judge will keep the discussions on task. They will attempt and are often highly effective at keeping the emotional issues at bay. This is almost the exact opposite of traditional mediation where the parties are encouraged to voice their feelings, albeit in a restrained and diplomatic manner.

In a divorce case, settlement facilitation is not the place for folks to voice their feelings. The feelings have no doubt already been sufficiently voiced in the past. There is no need to rehash them in settlement facilitation. If you want to watch a mediation explode, allow one party to start bringing up the many shortcomings of the other party.

An experienced settlement facilitator will keep the parties on task. How do they do this? It gets back to their extensive experience in family law. They literally lay down the law. They vocally and sometimes forcefully explain when one party or the other is asking for something that he or she cannot possibly expect to get in court.

In short, they keep the parties focused on likely court outcomes should the case go to trial. Only an experienced facilitator can do this. After all, you cannot lay down the law if you don't know the law. Moreover, most people rightfully place little weight on what the other attorney has to say about what is going to happen in court.

Knowledge of the law and trust in the messenger is very important both for the facilitator and the parties. Without a thorough knowledge of the law and what to expect in court, it would be not only difficult but exceedingly unwise to settle the marital claims. And this again is why everyone has gathered for the mediation.

Related Reading:
Settlement Facilitation in New Mexico Divorce Cases: Not Only Productive but Generally Required!
New Mexico Marital Settlement Agreement is Final, Binding and Very Hard to Modify
Legal Counsel or Not, New Mexico Marital Settlement Agreements are Typically Final!

Collins & Collins, P.C.
Albuquerque Attorneys

It is pretty well established that financial problems and stresses are one of the chief causes of divorce. In many cases, the financial issues are caused by both spouses. In others, it is only one of the spouses that is running up the debt of the family.

Community Property Means Community Debt
Many falsely assume that filing for divorce will stop the other spouse from continuing to accrue debt to the family. Because New Mexico is a community property state, this means that the innocent party will suffer the consequences of the financial irresponsibility of the other spouse unless he or she does something to protect him or herself.

When a divorce is filed in New Mexico, a Temporary Domestic Order (TDO) is entered. One thing the TDO is meant to do is to protect the spouses financially. The TDO basically orders the parties to maintain the status quo. For purposes of finances, this means neither party will run up the debt or begin exhausting or moving assets.

Though it does prohibit the parties from running run up debt, it does not provide much real protection to the innocent spouse where the other simply cannot control his or her spending. The innocent spouse is likely equally liable for the debt since it was incurred during the marriage. Worse yet, even if Marital Settlement Agreement or other court order allocates the debt to one or the other parties, it is not binding on third party creditors.

Though it can apply to any community debt, the problem comes up most frequently with credit card debt. As such, credit cards will be the focus though the same concepts would apply to other debt.

Terms of Divorce Not Binding on Creditors
Again, neither a court order nor Marital Settlement Agreement is binding on credit card companies. Though both may be enforced by the court in theory, actual enforcement of provisions can be very difficult and time consuming. It can take months to even get to court the first time and unfortunately these issues are rarely resolved if at all at the first hearing. As such, it can also be quite expensive in terms of attorney fees and costs. This is unfortunate since this is perhaps the worst possible time for incurring new expenses for the innocent spouse.

Steps to Protect the Innocent Spouse
Though the innocent spouse cannot really completely protect him or herself from community debt incurred prior to filing for divorce, there are some simple steps to protect against additional financial bleeding.

First, if possible, cancel the credit cards. This sounds easy enough. But remember the TDO which may disallow it. Therefore, it is best to get a court order to this effect.

At the very least, you should put the credit card company on notice in writing delivered by certified mail and faxed so there is a transmission report. Make it clear that you are no longer financially responsible for the card and that you want your name off the card. Insist on a written response and be persistent in getting one.

If neither of these options solves the problem, you may need to file for bifurcation of the divorce proceedings. This means splitting the divorce up by immediately issuing the divorce while continuing to resolve the financial issues.

There are not a whole lot of good reasons for seeking a legal separation instead of divorce. This is one good reason. If none of the above is available, then you may need to file for legal separation which will end the community property status of the marriage. This will prevent any new debt being incurred against the community following the final order of legal separation.

Act Quickly!
These are difficult issues to address. They need to be addressed quickly and decisively where present. Recovering from a divorce can be difficult in many ways. The debt run by your spouse following the filing for divorce does not have to be among them.

Related Reading:
Community Debt After Divorce - Few Remedies to Protect Yourself After the Fact!
Division of New Mexico Community Property: Agreement on Method Can be the First Hurdle
A Division of Community Debt in Divorce Proceedings Provides Little Relief from Creditors

Collins & Collins, P.C.
Albuquerque Attorneys

Legal separations are recognized and available in the state of New Mexico. Thus, an action for legal separation may be filed whenever both spouses have permanently and physically separated from each other.

It is not uncommon for people to want a legal separation rather than a divorce. The thought of the permanency of a divorce is often difficult and people prefer to ease into it or to use a trial separation to decide whether or not to move toward divorce. Keep in mind that there are a few good reasons for wanting a legal separation rather than a divorce. Wanting to ease into the divorce is not typically one of them.

Disadvantages of Legal Separation

There are several drawbacks to a legal separation. First, most important perhaps, you should be mindful that a legal separation does not free you or your spouse such that you will be able to marry another person. Second, the legal separation process can take the same amount time, involve the same level of stress, require a comparable number of court hearings and most importantly entail the same level of attorney fees and costs as a divorce. So it is important to have reasonable expectations regarding the processes of legal separation as well as the outcomes and benefit.

Related to the last point, all of the issues that are determined in a divorce are determined in a legal separation, and either spouse may start proceedings in the district court for the determination of those various issues, such as custody, child and spousal support, and division of property and debt. Like a divorce, a legal separation can also be reached by settlement. A legal separation agreement is a written agreement that describes your rights and settles the above-mentioned issues along with any other issues deemed important to the parties.

On the whole, legal separations are the same in all aspect to a divorce, with a few exceptions. For instance, the marriage is not terminated. There are different names for the documents that will be used in this situation: for example, there is the petition that is filed with the court, which is called a "verified petition for legal separation," and the final decree that is issued by the court is called a "final decree of legal separation."

Advantages of Legal Separation

People get legally separated rather than divorced for many reasons, including religion or the need for maintaining marriage benefits that would be lost upon a divorce. There are also situations where one or both parties wish to separate their assets and liabilities. The emphasis is on liabilities and debt. This is not too uncommon and can arise in many situations where one party is running up significant debt to the detriment of the other. Keep in mind that the division of debt is prospective, and not retroactive. This means that the parties are equally responsible under the community property laws of New Mexico for debt incurred prior to the legal separation.

Know and Understand Your Options!

These are valid reasons for a legal separation. Easing in to the divorce or using the legal separation to decide whether to seek a divorce is not. If you are considering a divorce or legal separation, it is important to discuss your situation with an attorney experienced in New Mexico family law. Knowing and understanding your options can save a lot of time, stress and legal expense associated with making an uninformed decision.

Related Reading:
Common Misconceptions About Legal Separation in New Mexico
New Mexico Community Property Laws: Community Versus Separate Property
New Mexico Community Property Laws: Community Versus Separate Debt

Collins & Collins, P.C.
Albuquerque Attorneys

On September 26, 2012, the Court of Appeals of New Mexico issued its ruling in the case of State of New Mexico vs. Laura J. The Court of Appeals upheld the district court's termination of Laura J.'s parental rights, but determined that the New Mexico Department of Children Youth and Families ("CYFD") had not met its burden to attempt to place Laura J.'s child with a relative. The Court of Appeals remanded the case back to the district court and required CYFD to conduct a thorough inquiry into placement of the child with a family member who had sought custody of the child.

The case began in December, 2008, when CYFD received information that Laura J. was abusing drugs and physically neglecting her child. During CYFD's investigation, it found that the child's hands and face were dirty; he had scratches and abrasions on his hands and shins, and a rash on his buttocks. CYFD officials took the child to the hospital because he could not sit up, could not hold his head up and was not responsive. The child tested positive for opiates, had impetigo and was clearly hungry. The child was then placed in foster care.

The district court ordered CYFD to retain custody of the child and he was placed with a foster family while permanent placement was explored, which included giving Laura J. time to work on her issues so that she could potentially be reunited with the child. When Laura J. was admitted to a rehabilitation facility, the child was placed with her until she was unsuccessfully discharged at which time the child was again placed with foster parents.

Laura J. began therapy, but was erratic with attendance and her therapist did not believe she was remaining sober. By October, 2009, Laura J. was not making it to all her visits with the child, failing to take urinalyses, missing therapy appointments and missing parenting appointments. On April 21, 2011, the district court issued a final judgment terminating Laura J.'s parental rights because the causes and conditions of Laura J.'s neglect were not likely to change in the foreseeable future, even with CYFD's efforts to assist her.

The New Mexico Abuse and Neglect Act ("the Act"), 1978 NMSA § 32A- 4-1 et. seq., governs the termination of a parent's rights and subsequent placement of their child or children. A parent's rights can be terminated if the court finds clear and convincing evidence that the parent is unable to properly care for their child and that the conditions and causes of the neglect are unlikely to change in the foreseeable future. Under the Act, CYFD is charged with investigating allegations of abuse of neglect and finding placement for children when their parents are unable or unwilling to care for them. CYFD is required, whenever possible, to preserve the unity of a child's family by placing children with family members for foster care or adoption.

In Laura J., the Court of Appeals found that CYFD had made reasonable efforts to accommodate Laura J.'s emotional and addiction problems by providing referrals to services intended to help her fight her addiction and become a better parent. However, Laura J. failed to take advantage of CYFD's efforts to help her and the district court was convinced that Laura J's behavior would not change for the foreseeable future. Therefore, the Court of Appeals upheld the decision to terminate Laura J.'s parental rights.

However, the Court of Appeals found that CYFD was required to make every effort to identify any relatives of Laura J.'s child who were appropriate candidates to accept custody of the child and investigate whether any of those relatives were willing to accept custody. Laura J.'s cousin Colin had repeatedly approached CYFD asking to be considered as a custodian for the child, but CYFD did not consider placing the child with Colin. The Court of Appeals found that CYFD had not made a reasonable effort to place the child with a family member because it failed to consider Colin as a custodian for the child. The Court of Appeals went on to say that the district court has a duty to make a serious inquiry into whether CYFD has met its burden with respect to placing children with family members.

Related Reading:
Acquiring Third Party Child Custody in New Mexico
Rules Regarding Parental Fitness in New Mexico Kinship Guardianship
Petitioning for Guardianship Under New Mexico's Kinship Guardianship Act

Collins & Collins, P.C.

Albuquerque Attorneys

Any court order addressing custody should include some sort of parenting plan. This is especially important in states like New Mexico where joint custody is preferred because a parenting plan provides an outline of how parents will make decisions about and share time with their child. A detailed and comprehensive parenting plan can also help alleviate conflict between parents and relieve the stress on a child by providing predictability. While most people remember to include the basics of raising the child in their parenting plan, like days and times for exchanges and payment of child support, there are some issues that tend to be forgotten, but that are also important.

Visitors
Parents may wish to include rules about visitors in their parenting plan. The parenting plan may simply state that the custodial parent should use proper judgment before bringing visitors into the home while the child is there. This situation puts trust in the custodial parent, without requiring them to jump through hoops to have visitors. The parenting plan may also include provisions about overnight guests and address issues concerning a parent's significant other. It is important to remember that the parenting plan should be focuses on what is in the best interest of the child and should not be used as a method to antagonize the other parent.

Extracurricular Activities
Many children are involved in extracurricular activities, which can be a great source of enrichment for the child. But they can also pose a number of questions to be answered by a parenting plan. First, some parents may not wish their child participate in certain activities; the parenting plan should name what activities are currently agreed upon and provide instructions for how parents will deal with choosing future activities. Second, the parenting plan can address how the costs of these activities are divided between parents. While some activities are fairly inexpensive, others such as playing a musical instrument or competitive sports can be very costly. Finally, depending on the relationship between parents, attendance at sporting events, concerts and other public events may need to be addressed. If the parents are unable to attend the events at the same time in a civil manner, they may need to split the events so that each can attend.

Cell Phones and Internet
One newer issue becoming more and more important is that of cell phones and internet usage. A parenting plan can address the age at which a child may have a cell phone, in what manner they may use it (for example, only in emergencies or only to call family), and how will the monthly cell phone bill will be paid. Similarly, a parenting plan can address a child's internet usage. Many parents are concerned about their child's usage of social media websites, and the parenting plan can discuss at what age the child is able to use such sites and what manner of monitoring the parents will do.

Religion
The parenting plan should address what religion, if any, the child will practice and what that practice entails. Some religious practices are very involved and can include attending services or classes multiple times per week, which can infringe on a parent's timesharing with the child. Further, when parents follow different religious practices, it can be confusing for a child and parenting plan should address how to ease that tension.

As any parent knows, there are a myriad of decisions to make in order to raise a child. Even the most thorough parenting plan cannot answer all of those questions. However, taking the time to really think about potential parenting issues and what is in a child's best interest can make a parenting plan an extremely effective tool for co-parenting. Working with an experienced family law attorney can help ensure that the parenting plan addresses as many potential issues as possible while still complying with the law.

Related Reading:
Common Issues with New Mexico Parenting Plans
The Basics of New Mexico Child Custody Jurisdiction
Custodial Interference in New Mexico Divorce & Family Law Cases

Collins & Collins, P.C.
Albuquerque Attorneys

There is no easy way for parents to share custody of their children. Yet the law in New Mexico, as well as many other states, requires parents to do just that based on the presumption that some form of joint, or shared, custody is in a child's best interest. Therefore, the result of most child custody disputes is the entry of a parenting plan, which is a written document that provides detailed instructions as to how parents will share time with, and make decisions for, their children.

A thorough parenting plan allows parents to side-step many of the pitfalls inherent in shared child custody situations., because it provides both parents and children with a predictable schedule and consistent solutions to problems that may arise. In general, a parenting plan should address legal child custody (which is the decision making process for the children in the areas of residence, education, religion, medical care and extracurricular activities) and should address timesharing by providing a detailed schedule of when and where the children will spend time with each parent.

However, every family and every child is different, so every parenting plan should be tailored to a family's unique circumstances. Some children will be more comfortable switching between parent's homes often, while others may need to spend longer periods of time with each parent and have fewer transitions between homes. In addition, the parenting plan should evolve over time, as a child's needs will change as they grow older. Here is a brief list of some of the major issues to be addressed in every parenting plan:

Child Custody and Visitation
In the past, child custody agreements generally have the children living primarily with the mother and then spending time with the father. However, the modern trend is away from such rigid application of timesharing schedules and there are many other child custody options available to families. Children may alternate time with each parent every four to five days, or alternate weekly. Where parents live far from one another, the child may spend the school year living with one parent, and spend some weekends, holidays and summer vacation with the other parent. There are many different combinations that will work; the most important consideration is what works best for the child.

In addition, the parenting plan should address childcare situations, if that is required. Both parents should agree on the method of childcare used, whether it is a babysitter, daycare or nanny. The plan should also provide for how the childcare costs will be split.

Transportation
Particularly where parents do not live close to one another, transportation is an issue that must be resolved. The parenting plan should address the method of transportation between the parents' houses. Even if a car is used, you must determine whether the custodial parent will drop off the child, or if the non-custodial parent will be picking up the child. If the distance is too far to drive, then parents need to agree on train or airplane transportation. If the child is too young to travel alone, arrangements for who will accompany the child will also need to be included in the parenting plan.

Basic Care
While it may seem obvious, parenting plans should also include information regarding the child's basic care. Parents can agree on ground rules for food, sleep and activities. Some parents may wish to have certain dietary restrictions, including organic diets or limitations on sugar. In addition, the parenting plan may include information about bedtimes for the child, so that the child is receiving consistent sleep periods regardless of which parent they are with.

These are just some of the issues that should be addressed by a good parenting plan. It may seem tedious to consider all of the details at the outset of a child custody determination, but addressing these details will almost always save the parties time and heartache by avoiding future conflicts over child custody. Securing representation by an experienced family law attorney to help parties negotiate and formalize their child custody agreements into a workable parenting plan is almost always money well spent.

Related Reading:
Long Distance Child Custody and Time-Sharing Arrangements in New Mexico
Custodial Interference in New Mexico Divorce & Family Law Cases
The Basics of New Mexico Child Custody Jurisdiction

Collins & Collins, P.C.
Albuquerque Attorneys

New Mexico law imposes a duty on both parents to support their minor children. Therefore, when the court issues order addressing child custody, it will almost always include a provision for child support. Alternatively, the court can issue an order on child support only that does not address custody, which is especially common when the New Mexico Child Support Enforcement Division takes action to collect child support.

No matter how a child support order is entered, the amount of child support is usually established using the New Mexico Child Support Guidelines, which provide specific instructions for how child support is to be calculated based on: the number of children; the gross income of the parents; the cost of work-related daycare for the children; the cost of health insurance for the children; and, in certain cases, some additional costs for the children. In extraordinary circumstances, the court may deviate from the Child Support Guidelines. However, such deviations are rare and a child support order that includes a deviation must provide good cause for the deviation. A child support order will often refer to the parent paying child support as the non-custodial parent and the parent receiving support as the custodial parent.

In some cases, child support is not entered until long after the parties have separated or the birth of the child that needs to be supported. In these cases, a non-custodial parent may owe child support back to the date of the parties' separation, or in some extreme cases, to the birth of the child. These back payments are typically referred to as child support arrears. Calculating child support arrears can be complicated; especially if it has been several years since the child support obligation began to accrue. The back child support should be calculated based on the parents' gross income at each point in the past, which can be difficult if parents frequently changed jobs or have not kept accurate records of their expenses for work-related child care and health insurance.

Parents seeking back support should think seriously about opening a case with the New Mexico Child Support Enforcement Division ("CSED"), which can assist them with establishing and collecting back child support. Depending on an individual's circumstances, the services of CSED may be free or available at a minimal cost to the custodial parent. When seeking back child support it is extremely helpful if the custodial parent can provide the social security number and the names of employers for the non-custodial parent. In addition, providing names, addresses and phone numbers of friends and former employers who may be able to help locate a non-custodial parent can be helpful.

CSED can access federal income records for parents, which can be invaluable when trying to calculate child support arrears. Once CSED and/or the court have determined an initial calculation of back child support, the non-custodial parent should be allowed an opportunity to provide proof of any payments made or other support provided, which may offset the total arrears calculation. The total amount of arrears is then typically entered as a judgment against the non-custodial parent that may or may not accrue interest depending on the circumstances of the case.

The non-custodial parent may have different options available to pay the back child support, including paying the whole amount as a lump sum, negotiating a reduced sum with the custodial parent or making monthly payments toward the arrears in addition to their ongoing monthly support obligation. If CSED is involved, it will generally require payments to be made via wage withholding so that it can keep track of payments and properly apply them to the ongoing monthly child support obligation and the arrears. However, both parents should also always keep track of payments made and received in case CSED makes a mistake in applying payment or if CSED is not involved at all.

Again, establishing and collecting back child support can be extremely complicated and can have serious financial implication for both the custodial and non-custodial parent. A parent on either side of a case involving child support arrears should think seriously about obtaining legal counsel with family law experience to ensure that back support is fairly and accurately addressed by court and/or CSED.

Related Reading:
Loss of Income and New Mexico Child Support
Financial Changes and Modification of Child Support
The Dangers of Not Documenting Child Support Payments

Collins & Collins, P.C.
Albuquerque Attorneys

Sometimes during a child custody dispute, the court may decide that is needs additional information about the parties in order to determine what sort of custody arrangement is in the best interest of the parties' children. In these cases, the court may appoint an expert to conduct what is known in New Mexico as a custody evaluation, which is a formal investigation into each party's respective parenting skills and limitations and the needs of their children.

Generally, a full custody evaluation includes some or all of the following: a parental history survey; personal interviews with the parents and sometimes the children; psychological testing of both parents and sometimes the children; observed parent/child interactions; collateral contact with significant figures in the children's lives, like stepparents and therapists; and, follow-up interviews. Again, the custody evaluation, including psychological testing, is geared toward achieving the best interests of the child(ren).

During the psychological testing phase, the evaluator may administer some or all of the following psychological or personality tests:

Minnesota Multi-Phasic Personality Inventory
The Minnesota Multi-Phasic Personality Inventory ("the MMPI") consists of 567 questions, which require the test-taker to "agree" or "disagree" with many statements. The MMPI is considered almost impossible, if not completely impossible, for an ordinary person to "cheat" on. Typically, if a person tries to cheat, they will more than likely score poorly.

Millon Clinical Multiaxial Inventory
The Millon Clinical Multiaxial Inventory ("the MCMI") is somewhat similar to the MMPI. The test includes 175 true-false questions. The MCMI differs from other personality tests in that it is based on theory and is organized according to a multiaxial format. The test is intended to help identify underlying personality disorders, or traits, and then design an appropriate treatment programs.

Rorschach
The Rorshach Test, which is also known as the inkblot test, is a test where a person's perceptions of inkblots are recorded and then analyzed using psychological interpretations or complex algorithms. The test is administered in a very rigid way with a particular format to minimize variances in the results. The Rorshach inkblots are supposed to remain secret, so that a subject cannot prepare answers or attempt to affect the results in some way.

Rotter Incomplete Sentence Blank
The Rotter Incomplete Sentence Blank is a psychological test that comes in different forms for different age groups. It contains 40 sentences that are to be completed in 20 minutes. The sentences are usually only 1-2 words and the subject is then asked to complete the sentence. By grouping and evaluating the subject's responses, the evaluator can make determinations about the subject's psychological state of mind.

Psychological or personality testing is only one aspect of a custody evaluation, just as a custody evaluation is only one aspect of a custody dispute. However, both can have a significant effect on the court's ultimate decision on custody. Anyone involved in a custody dispute should consult with an experienced family law attorney in order to understand what the law requires of both parents and the courts in determining what sort of custody arrangement is in the best interest of the children.

Related Reading:
The "Best Interests Of The Child" in New Mexico Involves Many Factors
Reunification Therapy in New Mexico Child Custody Cases
Rules Regarding Parental Fitness in New Mexico Kinship Guardianship

Collins & Collins, P.C.
Albuquerque Attorneys