Albuquerque Divorce Lawyer Blog

With few exceptions, the New Mexico Courts treat all debts incurred during a marriage, by either or both spouses, as community debt, which means that each spouse is equally responsible for the debt.

An important part of a divorce proceeding is a determination of which spouse will pay what debt after the spouses are divorced. After the spouses agree on, or the Court decides, who will pay each community debt, the Court enters a final order adopting that agreement or determination, which becomes binding on the spouses. However, that order is not binding on creditors that may be trying to collect payment of a community debt.

This limitation to the power of a divorce order is especially true when it comes to the Internal Revenue Service because a state court order is not binding on the federal government. During a marriage, when one or both spouses fail to pay federal taxes, the IRS has the power to collect those taxes for either or both spouses. The IRS may file a federal tax lien against any community property owned by the spouses, and is entitled to file a lien against any separate property owned by the debtor spouse. The IRS may choose to levy the wages or tax returns of either spouse.

Further, in New Mexico, the IRS can levy a spouse's 50% interest in community property for debts that were incurred before the marriage. The issue of federal taxes can severely complicate the property and debt division in a divorce proceeding. Spouses that are considering divorce and have outstanding tax issues should contact an attorney in order to avoid serious penalties.

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The general rule in the state of the New Mexico is that all debt incurred during a marriage becomes community debt, which means that both spouses are equally responsible for the debt. This is true even when one spouse creates a debt without the other spouse's knowledge, although there are some narrow exceptions to that rule.

Thus, as part of a divorce proceeding, both parties are required to identify all debts incurred during the marriage. Since these debts are most often community debt, the parties then need to decide how the debt will be divided between them. Essentially, each spouse is responsible for 50% of the debt unless the debt is divided pro rata based upon income, or some other way as agreed upon by the parties. The spouses (or their attorneys) must enter into a marital settlement agreement that identifies which spouse is going to take responsibility for which debt after the divorce is completed.

The parties' agreement with respect to the division of debt is then adopted by the Court in an order dissolving the marriage and adopting the Marital Settlement Agreement as an order of the court. The Second Judicial District Court in Albuquerque typically calls this order a Final Decree, but the name given by Courts around the state may vary. Whatever the title, the Court's final order is binding on the spouses and imposes a duty on each spouse to pay the debts that each agreed to pay.

However, problems often arise after a divorce is completed when one spouse quits paying a community debt that he or she agreed to pay as part of the divorce settlement. Even though the Final Decree is binding on divorcing parties, it is NOT binding on creditors seeking to collect a debt. This means that even after a divorce, a creditor may file an action against both spouses in an attempt to collect what was once a community debt. The collection is based upon joint and several liability for the community debt.

As a result, it is not infrequent that creditors go after one spouse for the debt assigned to the other in the Marital Settlement Agreement. Creditors are often extremely aggressive and unforgiving in their collection efforts. The law is unfortunately on their side. Any debt incurred during the marriage is arguably a community debt with respect to the parties. There are some exceptions such as gambling debts.

If you are considering divorce and have community debt, you should consider consulting an attorney to ensure that your marital settlement agreement clearly assigns that debt. And if you are being contacted by creditors for a debt assigned to your former spouse, you should contact an attorney immediately to discuss the enforcement of the order against your former spouse. Though you have few defenses against the creditor, you do have rights against your former spouse including orders of contempt, attorney fees and costs.

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What should you do if a family member or friend has left their child with you for an extended period of time? In New Mexico, if a child has resided with you for an extended period of time and you want to continue to care for the child, you may be able acquire guardianship over the child through New Mexico's Kinship Guardianship Act.

Though there are numerous requirements under the Act, you do not have to be a blood relative in order to file a Kinship Guardianship petition. However, if you are not a relative, or a member of the child's tribe, you will have to demonstrate that you have a significant bond with the child. The grounds for guardianship, the bonds with the child, the bests interests of the child and other considerations must be set forth clearly in the Petition for Guardianship.

The Kinship Guardianship Act is meant to address situations in which a parent has left a child with another person for more than ninety (90) days without "appropriate care, guidance or supervision." If you are appointed the legal guardian of a child, the parent's rights are temporarily suspended and transferred to you. This also means that you are responsible for caring for the child as if he or she were your own, which not only means feeding and clothing the child, but making decisions about things like medical care and education for the child too.

The New Mexico Courts will only appoint a Kinship Guardian if that appointment is in the best interest of the child. If both of the child's parents agree to appointment of a legal guardian, then they can sign a Consent of Appointment of Guardian and they can also waive the requirement that a child live with you for at least ninety days before you can file a petition for kinship guardianship. However, if one or both of the child's parents dispute the guardianship, the Court must appoint a Guardian Ad Litem to represent the child's interest.

Once guardianship has been appointed, the legal guardian has full physical custody and financial responsibility for the care of the child. The financial burdens associated with custody of a child can be significant for a guardian. As such, the guardian can petition and the court will generally award child support from one or both parents for the care of their children while the guardianship is in effect.

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A Guardian Ad Litem, often referred to as GAL, is a person appointed by the Court to represent the interests of a minor or a person who is unable to represent themselves by virtue of age or incompetence. In the case of child custody actions, the GAL is appointed to insure that the interests of the children are protected.

As in all child custody cases, the standard in New Mexico is the "best interests of the child." This is often hotly contested between the parties. In fact, if a GAL has been appointed, then the case probably has a very high level of conflict between the parties as to what is best for the children. Otherwise, there is no need for the GAL.

A GAL's job is to advocate zealously for their clients, which in this case is the children. The duty to represent the children is just as high as with any client. In high conflict child custody cases involving a GAL, the GAL can at times be overzealous often causing additional strain between the parties, and therefore on the child.

The GAL also acts as an investigative tool for the Court and, depending on the Court's order, may be charged with investigating the health care providers, teachers, coaches, counselors and others familiar with the child. As an arm of the court, what the GAL says goes. Therefore, if the parents cannot agree, the GAL decides and 9 times out of 10, the court will follow the advice of the GAL. This basically takes all the parenting decisions away from the parents where the parents cannot agree.

In New Mexico, a Judge may appoint a GAL in a wide variety of cases, including cases wherein a child has been a victim of abuse or neglect. Most often the GAL is appointed because the judge is fed up with the parties and the use of the GAL is the only option remaining for sorting out what is best for the children.

It is in your best interests and the best interests of your children to try to work with the other parent to work out a parenting plan without the intervention of a GAL. If a GAL is appointed, which we usually resist unless absolutely unavoidable, then you are in for a long, contentious, invasive and emotionally stressful ride. If that is not enough, the costs of the GAL will likely far exceed the costs of your attorney.

Do yourself, your children and your wallet a favor, work things out with the other parent. The GAL path is one you want to avoid at all costs. Once you have gone down that path, there is often very little left to salvage for you, your ex, or the children.

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New Mexico law does not give a grandparent any automatic rights to custody over their grandchild. Instead, grandparents have the privilege of visitation with their grandchildren and that visitation may only be granted under certain specific instances, which are defined by statute in NMSA § 40-9-2.

Grandparents cannot interfere with the rights of legal parents, or force visitation with grandchildren upon unwilling parents, when a family is intact. However, a grandparent may petition the court for visitation as a part of any divorce proceeding, legal separation or paternity case involving their grandchild. A grandparent may also petition for visitation in the unfortunate event that their child (who is the parent of the grandchild) dies.

Finally, a grandparent may petition for visitation when the grandchild has lived primarily with the grandparent. If the grandchild is under the age of six, the grandparent can petition for visitation if the grandchild has resided with the grandparent for a period of three or more months. If this grandchild is over the age of six, then the grandchild must reside with the grandparent for a period of six or more months in order to support a grandparent's petition for visitation.

The Court will only grant a petition for grandparent visitation if it determines that such visitation is in the best interests of the grandchild. In determining the best interest of the grandchild, the Court will apply many of the same standards it uses to decide custody between two parents and may refer the parties for mediation or evaluation, especially in the Second Judicial District in Albuquerque and other jurisdictions that have a family court clinic specifically created to evaluate custody.

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