Albuquerque Divorce Lawyer Blog

Unlike some other states, New Mexico does not recognize common law marriage. Thus, there is no need for a divorce action when the parties separate. However, there may still remain issues related to a division of property and debt of the parties.

This division of property and debt will not take place in the New Mexico family courts as these courts will lack jurisdiction due to the lack of a legal marriage. Instead, the issues will be addressed in civil court.

The idea behind the doctrine of common law marriage is that if a man and woman have lived together and held themselves out to be man and wife for a certain period of time (usually several years) the courts will view the parties as married and grant them the same benefits and responsibilities as couples who get married in a formal ceremony.

The issue of common law marriage often comes up when parties have cohabitated (lived together) for a long period of time and then they break up. Often, the parties have purchased property together or co-signed for loans for each other and they must determine how to divide those assets and debts. In New Mexico, the rules of family law, including the principal of community property, will not apply unless with parties were formally married. Thus, the rule that both parties have an equal interest and responsibility for all property or debts acquired during the marriage does not apply to couples that cohabitate without being married. Likewise, there can be no award of alimony or spousal support in New Mexico in co-habitation cases.

On the other hand, where children are born to the relationship, each parent is responsible for the support of the children, and child support will remain an issue even in the absence of a marriage. In addition, the parties will still need to create a parenting plan to for child custody and time-sharing of the children.

Generally, any debt or property held in a party's sole name will remain their debt or property. However, problems may arise when it comes time for the parties to divide assets or debts held in both of their names, or when an asset is held in only one party's name but the other party has paid a substantial portion of the cost of that asset. In these situations, the parties may still turn to the courts for a ruling as to who gets what asset, but that suit would need to be filed in the general civil court, not the family law court.

These situations can be very difficult, not just emotionally, but legally because different theories of law may apply to various debts and assets. Given the complications presented by this type of break-up, it is a very good idea for any party in such a situation to consult an attorney about his or her rights and responsibilities and the options for protecting those rights.

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What happens if you file a Petition for Dissolution of Marriage in New Mexico asking the court for a divorce and your spouse never responds? Generally, if a party to a civil case does not respond within the prescribed period of time the Court will award what's called a default judgment granting the petitioning the party the relief it has requested. However, the New Mexico courts do not favor default judgments because it denies the opposing party its day in court. This is especially true of the Second Judicial District family law courts in Albuquerque and Rio Rancho. Often, even if a default order is entered, the court will overturn that order when and opposing spouse finally shows up to protest.

So what should you do in this situation? Even though the New Mexico courts don't like default judgments, filing for a default may be your only option if the opposing party simply refuses to respond. Filing a request for default can also have the added bonus of showing the opposing party that you are serious about pursuing your divorce case and prodding that party into action. Finally, the civil rules of procedure are binding on family law courts just as any other court and those rules do not favor setting aside a default more than a year after the default has been entered. Thus, if the opposing party fails to respond within a year of default, even the family courts will be extremely reluctant to set the default aside absent fraud or other wrongful behavior.

Before the court will grant a default, you must show that the opposing party has been property notified of the pending divorce action. Without proper service, the Court lacks jurisdiction. This can be done by filing an affidavit (a sworn statement) from the sheriff, or process server, that personally served the opposing party, which gives the court proof that the party was served. If you have been unable to personally serve the opposing party because you don't know where he or she is or because they are purposely avoiding service, you can ask the court to allow you to publish notice of the divorce lawsuit in the local paper, which must be done for multiple, consecutive weeks.

After providing proof to the court that notice was either served or published, there are several documents that must be filed to obtain the actual default, including an affidavit that the opposing party is not currently serving in the military, a petition explaining the details of the relief you are requesting and a certificate from the court clerk assuring the judge in your case that the opposing party has not responded. Given the many documents that must be filed to properly obtain a default order, it is important to consult a New Mexico divorce and family law attorney before beginning that process.

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The Servicemembers Civil Relief Act was enacted by Congress to protect members of the armed forces from having to defend against civil suits while on active duty. Given that it is a federal law, the Relief Act applies across the country, but it affects many New Mexico divorce and family cases due to the many service members stationed at Kirtland Air Force Base or Sandia National Laboratory in Albuquerque as well the other military installations across New Mexico.

The Relief Act applies to members of the Army, Navy, Air Force, Marine Corps, Coast Guard and some members of the National Guard and other government agencies. As you might imagine, the Relief Act, which can be found at 50 U.S.C. App. §§ 501-596, is lengthy and addresses a very wide scope of issues facing servicemembers. Its primary affect on divorce and family law cases comes in Sections 521 and 522, which allow the courts to stay any civil proceeding against a service member for at least 90 days and sometimes longer.

A stay means that the Court essentially puts a case on hold and takes no action for the length of the stay. This means that the Court will place a hold on divorce cases including the division of property and debt, alimony, child custody determinations and awards of child support until the stay is lifted.

For example, two parties to a divorce action live in Albuquerque with their children and the mother is an active duty with the air force and stationed at Kirtland. The parties have decided to get a divorce, but before they file any action, the mother is deployed to serve in Iraq. While mother is serving in Iraq, the father is the primary caregiver for the children, but mother is not paying any of the family bills or child support. Further, when the mother returns from Iraq, she is being transferred to another base outside of New Mexico and threatens that she is taking the children with her. What can the father do in this situation? The answer is that his options are limited by the Relief Act.

Normally, the father would file for divorce by filing a petition for dissolution of marriage to get the divorce case started and ask the court to award interim support and temporary custody. The father can still file the petition, however, it is very difficult to personally serve the mother with the divorce paperwork whiles is serving in Iraq. Further, even if the mother does get proper notice, she can request a stay and the court will not order any support or custody for at least 90 days, leaving the father without any interim financial support or child custody.

The Relief Act and its effect on a family law case can be very complicated. Whether you are a service member involved in a divorce and/or custody dispute or a civilian, it is very important that you contact an attorney as soon as possible after such a dispute begins in order to discuss your rights and limitations under the Relief Act and other relevant laws.

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Spousal support, which is also called alimony, is not mandatory in the State of New Mexico. In determining whether or not to award spousal support, the Courts in Albuquerque, and much of the rest of the state will typically refer to the Alimony Guidelines and Commentaries developed by the Second Judicial District Court.

The Alimony Guidelines provide a variety of considerations in the award of alimony including the length of the marriage, age of the parties, health of the parties, work histories of the parties and the earning capacity of each party. If the Court determines that spousal support it appropriate it will determine how long that support will be paid.

The New Mexico Court of Appeals recently reviewed the issue of spousal support in Pruyn v. Lam. The Pruyn case began in 2004 when the divorcing parties agreed to and filed a marital settlement agreement without the assistance of counsel. The Marital Settlement Agreement included a provision that the husband would pay the wife monthly spousal support beginning in the year 2005 and continuing until the year 2019.

The Marital Settlement Agreement stated that the spousal support/alimony was "Non-Modifiable" and set forth specific amounts to be paid to the wife each month over the term of the agreement. Nearly one year after the parties' divorce was complete, the husband filed a motion to modify the spousal support award based on a change in his financial circumstances alleging that he could no longer afford to pay the agreed upon spousal support.

After multiple hearings and motions, the trial court eventually granted husband's motion to modify support despite the language in the martial settlement agreement stating that the spousal support was non-modifiable. That decision relied on the language in New Mexico's Alimony Statute, NMSA §40-4-7(B), stating that an award of spousal support may be rehabilitative, transitional, indefinite and/or may be awarded as a single-sum to be paid in installments. The trial court appeared to find that the agreement of the parties was indefinite and therefore modifiable.

The New Mexico Court of Appeals overturned the trials court's decision and held that the Courts' power to modify spousal support is limited to cases of rehabilitative, transitional or indefinite support. The Court found that the spousal support award to the wife in Pruyn was a single-sum award due to its definite payment schedule over a defined period of time. Because it was a single-sum defined alimony award, the trial court did not have the authority to modify that provision of the marital settlement agreement.

Alimony and spousal support can be quite confusing. The alimony guidelines themselves can be somewhat confusing. Whichever end you are on, paying or receiving, you should consult with an attorney before entering into a Marital Settlement Agreement. Perhaps Mr. Pruyn's first mistake was failing to seek the guidance of an attorney. Marital Settlement Agreements are contractual in nature, and it is very hard to back out of one. Few judges will entertain the argument that you did not understand what you were doing because you did not have an attorney.

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Child support is mandated by the New Mexico Child Support Guidelines. Like most states, New Mexico has severe penalties for parents who refuse to pay child support.

New Mexico Child Support Enforcement Division ("CSED") has the authority under State law to enforce child support obligations. Failure to pay child support can result in the suspension of driver's licenses, seizure of bank accounts, liens against property, and holdings of contempt which could result in jail time. However, the consequences for failure to pay child support can be far more severe under federal law.

Remarkably, under federal law, there are criminal penalties for failure to pay child support. The so-called Federal Deadbeat Parent Punishment Act ("Deadbeat Dad Act") imposes federal penalties for willfully failing to pay child support that can include payment of restitution and a prison sentence of up to 2 years.

The Court of Appeals for the Eight Circuit recently upheld a father's conviction under the Deadbeat Dad Act in the case of U.S. v. Davis. In January, 2000, the defendant father in Davis was ordered to pay $723.00 per month as child support for his two daughters. Between 2000 and 2008, the father made sporadic child support payments ant the Iowa Child Support Recovery Unit was able to collect some payments from the father's employers through child support wage withholding. However, as of July, 2008, the father still owed more than $52,000.00 in unpaid child support.

Based on the substantial amount of unpaid child support, a federal grand jury indicted the father for violations of the Deadbeat Dad Act. After a jury trial, the father was found guilty of willfully failing to pay child support and sentenced to 24 months in prison, one year of supervised probation. He was also ordered to pay $53,637.83 as restitution for his unpaid child support.

The father subsequently appealed his sentence arguing that the State could not prove that his failure to pay child support was "willful" as required by the Deadbeat Dad Act because it could not prove that he had the ability to pay the entire amount of support ordered by the Iowa Court. The 8th Circuit Court of Appeals rejected father's argument and upheld his conviction stating that if father could not afford to pay his child support obligation, his remedy was to petition the Court for a modification of that obligation. He did not have the right to simply refuse to pay his lawful child support obligation.

Thus, there can be serious consequences for failing to pay child support. If you have been ordered to pay child support and cannot afford to make payments, it is imperative that you address that issue with the Courts. In New Mexico child support cases, you must file a Petition to Modify Child Support. The Court will modify support, if at all, only back to the date of filing the Petition to Modify Child Support. Delay in filing the Motion can have serious financial repercussions since support will continue to accrue at the court ordered rate until the Petition to Modify Child Support is filed.

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