Albuquerque Divorce Lawyer Blog

It is often said that divorce is hardest on the children, who are faced with wondering why their parents split up, possibly feeling guilty for their perceived role in that separation and often having to get used to a new place to live. In New Mexico, the term child custody is a complicated concept; it refers not only to which parent has physical possession of the child, but also which parent has the power to make to make decisions about the children's lives. Physical custody is generally described in terms of time-sharing and periods of responsibility, or visitation, all of which are most often delineated in a document called a Parenting Plan.

The law in New Mexico presumes that joint physical and legal custody is in a child's best interest because a child is better off having two parents activity involved in his or her life. However, the preference for joint custody does not mean that the baseline presumption for a Parenting Plan is that each parent has the child with them exactly fifty percent of the time.

As a preliminary matter, Parenting Plans need to be age-appropriate. For example, a fifteen-year-old may be able to handle being away from one parent for weeks at a time, whereas an infant may not. Thus, the periods of responsibility, or timesharing, will depend on the age and emotional stability of each child.

In evaluating a time-sharing schedule the Court may consider, among other things: the wishes of each parent; and the wishes of the child. In making its decision, the Court will also consider the child's relationship with each parent and any siblings; the child's ties to their school and their community; and, the mental and physical health of everyone involved in the child's life.

If the child is over the age of 14, the Court and the parents must consider his or her wishes. Although the Court does not have to agree with the child, the Court will usually defer to the child's wishes unless those wishes are manifestly harmful to the child. The plain fact is that few parents can enforce their will over a teenager, the Court most certainly cannot. The Court understands this and will not even try due to the many possible harms such forced decisions may raise.

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Mediation is a relatively informal process in which a neutral third party facilitates communication between the parties to a divorce action or custody dispute, the goal being that the parties will resolve their issues themselves rather than having a judge decide those issues for them. A mediation is also often called a settlement facilitation and in several judicial districts around New Mexico, including the Second Judicial District in Albuquerque, there are services associated with the courts that can provide a mediation/settlement facilitation for little or no cost to the parties.

Often in a very contentious or complicated cases, the judge will order the parties to mediation/settlement facilitation in order to see if they can make some headway toward resolving their issues outside the Court. The mediation process is confidential and the rules of civil procedure prevent offers made during mediation from being used as evidence before the Court. Therefore, meditation/settlement facilitation can allow parties to freely discuss possible resolutions of their issues.

Child Custody Mediation is provided year-round at low to no cost depending on the income of the parties through the Court Clinic in Albuquerque's Second Judicial District Court. Settlement facilitation is broader in scope that child custody mediation. Settlement facilitation addresses all aspects of the divorce including the division of property and debt, the division of retirement accounts, the division of the community residence, and alimony, child support, and child custody. Divorce, custody and family law settlement facilitation is provided for free to the parties once per year during Settlement Week at the Second Judicial District Courthouse.

Parties can also arrange for their own mediation; most judicial districts around the state can provide a list of mediators in the area. The people, who act as mediators do not have to be attorneys, but they should be trained in the mediation process and, for maximum effectiveness, should also be familiar with family law issues.

The product of a successful mediation is usually a written agreement. This agreement that is often hand-written will be drafted into a Martial Settlement Agreement, which will then be submitted to the Court and incorporated in the final divorce decree. Thus, while parties do not have to be represented by counsel during the mediation process, a party should strongly consider having an attorney present because the decisions made at a mediation/settlement facilitation can have a serious impact on the property and custody rights at issue in a divorce proceeding.

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Many of the courts throughout the State of New Mexico, including the Second Judicial District Court in Albuquerque and the Thirteenth Judicial District Court in Sandoval County, have Court Clinic Services.

Court Clinic's purpose is to help parties resolve issues of child custody, time-sharing and visitation. Court clinic does not get involved in other issues related to the divorce. In fact, Court Clinic does not even have authority to address child support.

Most cases involving child custody and time-sharing disputes will be referred to Court Clinic for a custody evaluation. The parties may choose to hire a private child custody expert (706 Expert) for purposes of a private child custody evaluation. However, these private child custody evaluation experts are extremely expensive. As a result, most cases end up in Court Clinic which provides its services on a sliding fee scale based upon the income of the parties.

Once the case is referred to Court Clinic, the case will be assigned to one of the many counselors and psychologists working in the Court Clinic. In a particularly complex case, there may be more than one Court Clinician. The Court clinician will conduct a thorough investigation of the parties, the children, third parties involved in the raising of the children including grandparents, fiancés, boyfriend/girlfriends, and even roommates living in the home.

The investigation can be quite invasive. The parties and the children, if they are old enough to participate, will undergo psychological evaluations. This process may include extensive psychological testing and interviews. In cases where third parties are involved in the upbringing of the children, those parties will be tested as well.

The investigation can take months, sometimes over a year. The time required to conduct the investigation is related to the complexity of the case as well as the huge caseload of the Court Clinicians. Once the Court Clinic has concluded its investigation, it will issue Child Custody Recommendations to the Judge. These recommendations are not binding on the judge but it is very rare that the judge does not follow the recommendations of Court Clinic.

The implications are clear. You should if at all possible work out custody and visitation with the other parent. If you cannot, then you are turning your life and the lives of your children over to a complete stranger. Though the Court Clinic process is long and relatively thorough, it remains replete with errors and mistakes due to incomplete information. Indeed, how could a complete stranger ever really know everything there is to know about you, the other parent, and your children necessary to make a perfect recommendation that is in the best interests of your children?


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There are a variety of reasons why a couple might seek an annulment rather than a divorce, ranging from religious values to the fact that they just don't like the sound of the word divorce. The purpose of an annulment as opposed to a divorce is that an annulment renders a marriage void, as if it never happened, whereas a divorce dissolves the marriage. Unfortunately, those who seek an annulment in New Mexico are most likely going to be disappointed.

Unlike a divorce, which can be filed in New Mexico for any reason or no reason at all under the "no-fault" divorce doctrine, an annulment can be filed for only very limited reasons. In New Mexico, a marriage can only be annulled by the Court if the marriage violated one of the requirements for a valid marriage from the beginning of the marriage.

For instance if one of the spouses was not old enough to property consent to the marriage, then the marriage is invalid as a matter of law. A person must be 18 years old to consent to a marriage unless they are 16 or older and have parental consent. A person younger than 16 is only allowed to marry by an order of the New Mexico Children's Court. Likewise, a person may lack the mental capacity to consent. Other legal prohibitions making the marriage invalid from the inception are the presence of incest or bigamy.

The presence of fraud can also be a grounds for annulment. However, this typically relates back to one of the aforementioned criteria. While it is conceivable that another situation might lead the Court to grant an annulment on the basis of fraud, the grounds for an annulment are very narrow. Unfortunately, fraud does not include such grounds as "he/she said he/she was rich," or "he/she is a completley different person now that we are married." That's not fraud. It's just bad luck, bad taste or bad judgment.

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When a child is born in New Mexico during a marriage, or within 300 days of the dissolution of a marriage, the law in New Mexico will presume that the child is the child of the parties to the marriage. When a child is born outside of a marriage, the law only presumes that the mother is the parent of the child. A father can establish his paternity by: signing an acknowledgment of paternity form, which is available from the New Mexico Department of Health and Vital Statistics; by genetic testing; or by a pattern of behavior in which the alleged father holds himself out to be the child's father by doing things like paying child support and exercising visitation.

Both the mother and father of a child have a right to bring an action asking the Court to determine paternity for a child and determine child support, which is called a parentage suit. Either party may dispute paternity by filing a Motion for a DNA test for proof of paternity.

Establishment of paternity can be a serious issue because the state of New Mexico provides that the parents of a child are equally responsible for supporting and caring for that child. Similarly, each parent has a right to raise their child as they see fit, with certain parameters set by the state in order to protect the welfare of the child.

Thus, a parentage action does more than create a child support obligation it can lead to the entry of a parenting plan establishing custody and visitation. Further, the state itself can bring a parentage suit to establish paternity of a child and seek reimbursement of state assistance provided to that child. This is not uncommon where the mother has been receiving assistance from the State. Child Support Enforcement Division (CSED) will initiate an action in these cases to provide support for the child and more importantly for the State to reduce the financial burden of raising the child on the State on New Mexico. IN this case. CSED will go after both future support as well as back child support arrearages.

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Non-compliance with court ordered child support is all too common in New Mexico family law cases. Many times, the non-custodial parent simply refuses to pay child support. Just as frequently, particularly in the current economy, the non-custodial parent is unable to pay court ordered child support.

When a non-custodial parent is unwilling or unable to pay child support, it can create a very difficult financial situation for the custodial parent. Not surprisingly, as the economy worsens, the number of custodial parents who are not receiving support increases as shown by the ever-growing caseload of the New Mexico Child Support Enforcement Division ("CSED").

Given that child support is mandatory under the New Mexico Child Support Guidelines set forth in the child support statute, NMSA 40-4-11.1, it would seem that the enforcement of child support would be relatively straightforward. In theory, the delinquent parent will be made to pay arrearages on unpaid child support and ordered to pay ongoing support. The Court even has the power to charge the delinquent with contempt and have that parent arrested, although such arrests are rare.

However, the practical problem with enforcement of a child support order is that the amount of court ordered child support is often relatively low in comparison to the cost of paying an attorney to enforce the child support order. Thus, a custodial parent who is not receiving support should carefully weigh the possible attorney fees associated with enforcement of a child support order versus their potential recovery. It may be that it is best to pursue the matter without the assistance of an attorney.

All parents looking to enforce a child support order should consult with the New Mexico Child Support Enforcement Division prior to filing a motion to enforce support. While CSED may be slow to get started on a case because of its very large caseload, once CSED gets moving on an enforcement case they are extremely effective.

To get started, the custodial parent should open a file with CSED. Once the file is open, the party can file a Motion to Enforce Child Support requesting the Court make CSED a party to the action. Once the court makes CSED a party, CSED will be present at all subsequent child support hearings. The presence and assistance of CSED at the hearing will go a long way toward have the matter fairly and promptly resolved by the court.

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If alimony is an issue in your case, there are numerous options available to negotiate and satisfy the alimony obligation. Most of the time, alimony will be negotiated without the necessity of a trial. It should be pretty clear whether your case is an alimony case. If your case is an alimony case, then negotiation and settlement of this issue will likely be preferable to any outcomes you can achieve in a very unpredictable divorce trial.

Should the case proceed to trial, the Court will consider the length of the marriage, the relative income of the spouses, and other relevant facts in a determination of whether and how much alimony should be awarded. These considerations are set forth in the alimony statute as well as the Alimony Guidelines which are followed by the Second Judicial District Court in Albuquerque as well as most of the other district courts around the state. The statute and the guidelines should be consulted early in your case to avoid what could be a long, expensive and the end disappointing process.

Should the parties reach an agreement on alimony, then there are countless ways to structure to payment of alimony. In many cases the spouses may choose to simply follow the Alimony Guidelines by receiving their spousal support/alimony in the form of a monthly payment. However, the spouses can agree that the paying spouse will make a one-time, lump sum payment of spousal support/alimony in lieu of ongoing payments.

Lump sum alimony can itself be structured in a variety of ways. The spouses are free to offset spousal support/alimony against other assets. New Mexico's adherence to the principles of community property means the spouses are entitled to an equal distribution of the assets upon the dissolution of the marriage. Spouses often agree to incorporate a lump sum payment of spousal support/alimony into a community property settlement through an additional allocation of assets to the receiving spouse.

Likewise, as a community property state, New Mexico also holds spouses equally responsible for community debt, which basically includes all debt incurred during the marriage, which provides another option for the offset of spousal support/alimony. The spouse that owes the spousal support/alimony may take on a greater share of the community debt to satisfy a lump sum payment.

In sum there is some flexibility in granting spousal support/alimony and the challenge is to achieve a solution that meets the requirements of the law, while also meeting the financial needs and abilities of the parties. However, this flexibility quickly disappears should the parties proceed to trial. Family court judges have enormous caseloads. They have little time to address alternative means of alimony. Once the matter is before the court, there is typically only one option and that is monthly payments based upon the worksheets set forth in the Alimony Guidelines.

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In New Mexico, the divorce process begins with the filing of a Petition for Dissolution of Marriage with the District Court of the County where one or both spouses have lived for at least six months prior to that filing. In order for the Courts of New Mexico to have jurisdiction over the case, one of parties must have lived in the State for at least six months.

While there are multiple grounds on which the Court can grant a divorce, New Mexico has what is often referred to as a "no fault" divorce policy, which means that the Court will grant a divorce based solely on the incompatibility of spouses. The vast majority of divorces in New Mexico are granted on the basis of incompatibility.

The Petition is a basic document, in which one spouse requests the Court enter an order dissolving the marriage. The Petition must include the following information: the date of the marriage; the names and ages of any children born to the marriage; and the date of the separation of the spouses. Primarily, the Petition also asks the Court to: divide and distribute the spouses' community property and community debt; identify and award any separate property and separate debt; determine child custody of any children born the marriage; determine child support for those children; and, award spousal support, also called alimony, if appropriate.

In most cases, after the filing of the Petition begins the process, the other major documents left to be filed with the Court are called: the Marital Settlement Agreement, often referred to as an MSA; the Parenting Plan; and, the Final Decree. The MSA is a detailed agreement that identifies and divides the community property and debt of the parties. The Parenting Plan, which is often incorporated into the MSA, specifically outlines custody and visitation arrangements for any children born to the marriage and will include a Child Support Worksheet explaining how child support will be paid between the spouses. The Final Decree is the final order of the Court adopting the contents of the MSA and Parenting Plan and granting the spouses a divorce.

Of course, in a complicated and/or contentious divorce there can be countless other documents filed with the Court as the spouses try to settle the issues division of property and debt, alimony, child custody and child support. There may be many other issues along the way such as domestic violence and orders of protection.

However, every divorce action will begin with a Petition for Dissolution of Marriage and end with some final order of dissolution of the marriage. There are many possible roads from one point to the other. The shortest and least contentious route is generally the best for the parties, the children and if that is not enough, the parties' money.

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Child custody and time-sharing can be the most difficult and contentious part of any divorce. For most parents, the most difficult part of a divorce is not dividing the property and debt, or even issues of alimony, but rather deciding how to co-parent their children while no longer living together.

In New Mexico, the term custody is complex; it refers not only to which parent has physical possession of the children, but also which parent has the power to make the important decisions about the children's lives. This decision-making responsibility is often referred to as legal custody, which can be held solely by one parent or held jointly. This concept of legal responsibility is distinct from physical custody or time-sharing.

The preference of the New Mexico Courts is for parents to share joint legal custody, which does not mean that the parents have to agree on every aspect of their children's lives, but does require them to agree on the following issues: where the children go to school; the children's religious practice; the children's extracurricular or recreational activities; where the children live; and, medical treatment for the children.

In contrast, a parent with sole legal custody will not have to consult with the other parent about the major decisions in the children's lives. With respect to those decisions, the law in New Mexico favors maintenance of the status quo, which means that a divorce should not change the state of the children's lives with respect to these major issues, unless both parents agree to that change. Further, all custody decisions must be made in the best interest of the children. The factors used by the Court to determine what is in a child's best interest can be found in the New Mexico Statutes on Joint Custody, NMSA Section 40-4-9.

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It is well know that New Mexico is a community property state. The meaning of community property is sometimes difficult to grasp, and the implications for the division of property and debt hard to accept.

The concept of community property views a marriage as a partnership, in which the spouses who own one-half of all the property acquired during the marriage, no matter which spouse's name is actually on the title for the property. The essential elements to determining that an asset is community property are: 1) whether or not the property was acquired during the marriage; and, 2) where the money that paid for the asset came from. If an asset was acquired during the marriage, then it is presumed to be community property.

There are exceptions to the community property presumption. An asset may be deemed to be the sole and separate property of the spouse in whose name it is held, if the spouse can prove that the spouse owned the asset prior to the marriage. Also, an asset may be separate property if: 1) the spouse inherited the asset; 2) the asset was given as a gift solely to one spouse; 3) the spouses entered into a written agreement designating the asset as separate property; 4) if was acquired after the entry of a court order granting a divorce or legal separation; or 5) the Court otherwise declares the property separate.

Given the presumption that all property acquired during the marriage is community property, in a divorce action, the burden of proving that a piece of property is separate falls on the spouse claiming the separate ownership.

It is also important to remember that the definition of property includes more than just the marital home and cars. The definition of property also includes things like: retirement benefits and pension plans; stocks and bonds; insurance policies; income and bonuses; cash; leases and options to purchase real estate; accrued vacation and sick time; and even frequent flier miles among others.

It is important to address each and every significant item of property in the Marital Settlement Agreement. The purpose of a Marital Settlement Agreement (MSA) is to specifically identify and divide all of the spouses' community and separate property, along with the community and separate debt. Keep in mind the value of each item of property and debt. Some items simply lack sufficient value to dispute. Do not let the division of property and debt turn into a contest of ego and will. These are very expensive fights with little return on your efforts, time and money in the end.

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Just as the law in New Mexico treats all property acquired during a marriage as community property, all of the debt incurred during a marriage is viewed as a community debt, for which spouses one-half responsible, regardless of who created that debt. This means that, generally, each spouse is free to create debt in his or her own name during the marriage and it will become a community debt. There is an exception to the presumption of community debt for a mortgage or lease that creates a debt term of longer than five years, in which case both spouses have to sign those contracts in order to create a community debt.

Of course, just like with separate property, a separate debt will be deemed the sole and separate responsibility of the spouse that created the debt when: 1) the debt was created before the marriage; 2) the spouse creating the debt entered into a written agreement with the creditor identifying the debt as separate; 3) the debt was created by separate personal injury or tort committed caused by a spouse; 4) the debt was incurred after the parties were separated, but before the divorce, and was exorbitant, unreasonable or did not benefit the community; 5) the debt was incurred after the entry of a divorce decree or order of legal separation; or 6) the debt was a gambling debt incurred solely by one spouse.

As with property, the purpose of the Marital Settlement Agreement is to identify all of the spouses' community and separate debt and to clearly identify which spouse is going to be responsible for payment of that debt after the divorce. Identifying and classifying debt can be very complicated and spouses should be meticulous in gathering records to support their debt division.

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Unfortunately, prior to or during a divorce or custody action, one of the parents will sometimes relocate with the children to another state, often leaving without obtaining the permission of the other parent. Whether a parent leaves New Mexico for another state or the parent relocates to New Mexico with one of the children, the innocent parent needs to understand their rights, which largely are dependent upon which state's courts have jurisdiction over the children to the marriage or relationship.

Jurisdiction generally describes a court's power to decide a case or issue. A court cannot decide a case when it does not have jurisdiction over the people involved in that case and the subject matter of the case. State courts generally have the power to decide family law issues such as divorce, property division, child custody, and child support. It is important to remember that custody refers to more than just the physical location of the children and their visitation with the other parent, it includes decision-making power over issues such as where the children go to school, the children's religious practices, important medical decisions concerning the children, and even what extracurricular activities the children will participate in.

In New Mexico and most other states, the courts do not gain jurisdiction over the issue of child custody until the child has legally resided in the state for a period of six months or more. The phrase "legally resided" means that the child has not been brought to New Mexico or removed from New Mexico in violation of an existing Court Order or in violation of the other parent's rights. Thus, the second state to which the children have been relocated, whether it is New Mexico or another state will not have jurisdiction over the issue of child custody until the child has lived in the new state for six months. The state from which the children were removed will retain jurisdiction during this six month interim period.

In the absence of jurisdiction, any court actions filed in the new state should be dismissed for lack of jurisdiction. The only pleading you should file in the new State is a Motion to Dismiss for Lack of Jurisdiction. You should file no other pleadings and avoid asking the court for any other relief. Filing of other motions or enlisting the assistance of the Court in enforcing other matters may be construed as consent to the Court's jurisdiction. Unless this is your intention, then you need to be very careful in responding to any actions filed in the new state.

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So what should you do if your spouse leaves the state with your children? If the children have been removed from New Mexico, you should immediately file an action in District Court of the New Mexico County in which the children most recently lived. If the children have been relocated to New Mexico from another state, then you should file an action in your home state as soon as possible in order to avoid allowing the New Mexico Court to gain jurisdiction over the custody of the children.

Filing an action immediately will ensure that jurisdiction remains in the children's home state, and not the state to which they have been wrongfully relocated. In most cases absent emergency circumstances, the Court will order that the children be returned home. This will depend on the circumstances surrounding the relocation of the children, but in any event acting quickly is essential to preventing jurisdiction attaching in the other state.

Jurisdiction can be very important to child custody matters. Having child custody litigated in a state other than your home state and the home state of the children can have serious and negative consequences. The costs of litigation will go up tremendously due to travel. In addition, many witnesses including teachers, counselors, coaches, grandparents, and others close to the children will be prohibited from involvement in the case due to distance.

Unfortunately, many opportunistic parents understand this and seek to move jurisdiction far from your home and the home of those closest to the children. What often happens in these cases is that the parent, whose children have been wrongfully relocated, will file an action in the second state in an effort to get the children returned. However, filing an action in the second state can be construed by the courts of the second state as your consent to their jurisdiction.

Unless you want to litigate your child custody issues in the in the second state, then you should avoid filing anything in the second state and immediately seek relief in the Court of your home state. Just like many of the issues that can come up in a divorce, a potential transfer of jurisdiction can have very negative consequences for you and your children. If you are facing this situation, you should contact an attorney immediately.

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In New Mexico, alimony is often referred to as spousal support and the two names are often used interchangeably. The purpose of spousal support/alimony is not necessarily to equalize income. Nor is it to punish one or the other spouses as New Mexico is a no-fault divorce state. Instead, it is used to balance income. The New Mexico Courts order alimony to insure that the spouse with less income is able to maintain a lifestyle commensurate to that before the divorce.

Spousal support/alimony is not mandatory in New Mexico, but judges will often follow the Alimony Guidelines developed by the Second Judicial District Court in Albuquerque. Most New Mexico Courts will at least consult the Alimony Guidelines in the determination of spousal support. As such, the Alimony Guidelines will provide a pretty good idea of whether your case will warrant alimony from either party.

While there are several elements the Court considers when deciding whether or not to order spousal support/alimony, the threshold determination is the length of spouses' marriage. The Court will generally not order spousal support/alimony in cases where the parties getting divorced have been married for less than ten years, absent exceptional circumstances.

If the Court determines that the length of marriage warrants further review of a party's claim for spousal support/alimony, the Court will consider other factors such as: the current income of the parties; the income earning potential of each of the parties; and the age, health, and medical needs of the parties. Though length of marriage and the income of the parties are the dominant factors, there are numerous other factors that the New Mexico Courts will consider as set forth in the Alimony Statute, NMSA 40-4-7(E).

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One of the first issues to arise when a couple decides to get divorced is which spouse gets to stay in the community residence or marital home? Often, one spouse will hire an attorney very quickly after the spouses decide to get divorced. In some cases, the other spouse may not be aware that a divorce is in the works until they are served with the Petition for Dissolution of Marriage, which officially begins the divorce process. At some point in the divorce process, one spouse's attorney will often send a letter that demands that the other spouse immediately vacate the family home. However, such a demand is unenforceable.

The only way to force one spouse out of the home is to get an order from the court forcing them to vacate. Both spouses have an equal right to use of the home while the divorce is pending under the community property laws of New Mexico. A Motion must be filed asking the court for such an order to vacate, which is often filed along with a Motion for Interim Division of Income and Expenses. In accordance with the Community Property Laws of New Mexico, both spouses are equally entitled to use of all of community assets, including the marital home and the spouses' income. In turn, the spouses are also equally responsible for payment of the community debts. The purpose of the Interim Division of Income and Expense is to divide the spouses' income and allocate responsibility for payment of the spouses' expenses while the divorce action is pending.

Upon filing of a Motion, the Court may consider a number of factors in determining which spouse should remain in the home, including, among other things: the financial situation of the spouses; the ability of each spouse to afford a separate home; the presence of children in the home; and the existence of domestic violence. After weighing all of those factors, the Court may or may not order either spouse to vacate the marital home. If the Court declines to order one spouse to vacate, then the spouses must decide whether or not they will be able to tolerate living in close proximity during their divorce proceeding. If there is a high amount of conflict between the spouses, then it is wise for one spouse to vacate the home in order to avoid any possibility of an incident of domestic violence.

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