Albuquerque Divorce Lawyer Blog

One of the most complicated and contentious issues in a divorce is the division of marital property and debt. The first great challenge is often identifying and valuating the marital property. Given that New Mexico is a community property state requiring equal division of all marital property and debt, both parties have a significant interest in making sure that all marital assets are properly identified and valued.

Unfortunately, sometimes one or both spouses will try to manipulate assets or asset values. They may try to classify community property as separate property. Other times, one or both parties will try to distort the value of the property, up or down, depending upon motive. Worst case, one or both parties will try to hide assets.

So what can be done if a spouse suspects that the other spouse is hiding assets? The first step is to use the tools available under the New Mexico Rules of Civil Procedure and begin the discovery process. Discovery is the system devised by the courts for the exchange of information in court cases and it can include written requests for information (called interrogatories, requests for production and requests for admission). In a divorce case, the main focus of discovery is getting both parties to accurately identify all of their debts and assets. The discovery process also allows the parties to hold depositions, which is an interview, held under oath at which the spouse being interviewed can be required to answer questions about the existence of assets. Parties can also be required to bring documents to depositions.

If the parties have engaged in the traditional discovery process and one spouse still believes that the other is hiding assets, it may be time for that party to think about hiring an investigator. Such investigators are typically certified public accountants who are trained in reviewing financial records to look for evidence of missing assets. Basically they are looking for a paper trail connecting various deposit and receipts and tracing where all of the marital income went. Sometimes the investigator is appointed by the court as an expert charged with reviewing the financial records provided during discovery.

Hiring an investigator or asking the court to appoint an expert can be very expensive. Neither party is advised to go down this road unless it is absolutely necessary. Often a good forensic accountant will charge more per hour than the attorney. Often a basic review of the documents provided during discovery will show where all of the parties' marital income has been spent and that there isn't' anything to hide. An experienced family law attorney may be able to trace that money and dispel fears of hidden assets without having to hire an expert. Therefore, if a spouse believes that another spouse is hiding assets it is very important to review that claim with an attorney before proceeding.

Prenuptial agreements (also called premarital or antenuptial agreements) have been recognized and enforced by the New Mexico courts for many years. However, in 1995 the New Mexico legislature passed the Uniform Premarital Agreement Act, which provides specific rules for the formation and enforcement of prenuptial agreements and includes requirements that all prenuptial agreements must be in writing and its terms must be fair. Failure to follow the rules can result in difficulty enforcing the agreement in case of the later divorce of the parties. In case of a divorce, the validity of the agreement will affect the division of property and debt and alimony among other issues.

In order to avoid a determination that a prenuptial agreement is grossly unfair to one party, both parties should have legal representation when negotiating a prenuptial agreement, there should be full disclosure of both parties' income and assets and the prenuptial agreement should not be presented for negotiation to close the wedding date. Following these suggestions can help bolster the validity of the prenuptial agreement by showing that both parties were fully informed of their rights when signing the agreement and that neither party was pressured to do so.

Although the general rule underlying prenuptial agreements is that competent adults are free to enter into whatever contracts they choose, with some limitations. In New Mexico, prenuptial agreements can cover the following topics: 1) present and future rights and obligations with respect to property, including income or earnings; 2) the right to manage, sell and encumber property; 3) division of property upon the death of either party or divorce; 4) the making of a will and power of attorney; 5) ownership and distribution of the proceeds from a life insurance policy; 6) the choice of law that will govern the agreement; and 7) anything other topic that does not violate the public policy of New Mexico.

While the rules governing prenuptial agreements may seem straightforward, they can be tricky, especially a determination of whether or not a provision violates public policy. Therefore, it is very important that both parties contemplating entering into a prenuptial agreement consult with a New Mexico Divorce and Family Law Attorney who can advise each party of their rights under New Mexico law and help ensure that a prenuptial agreement will stand up in Court if it is ever challenged.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

For the most part, family law matters, including divorce, child custody and time-sharing and child support are governed by the States, which means that most of the case law relevant to New Mexico family law issues comes from the New Mexico courts. However, the United States Supreme Court recently issued a family law decision regarding parents' rights and duties when taking children to foreign countries.

In the recent United States Supreme Court case of Abbot v. Abbot, No. 08-645, the Supreme Court was charged with interpreting the Hague Convention on the Civil Aspects of International Child Abduction (Convention) and International Child Abduction Remedies Act (ICARA), which govern, among other things, parents' rights and remedies when their children are taken to another country without their permission. In Abbot, the married parties moved to Chile with their son and then separated. The Chilean court granted the mother primary custody and granted the father regular visitation. Subsequently, the mother took the child to Texas without the father's permission. The father then filed a suit in the federal court in Texas asking the court to order his child's return.

His request was initially denied by the federal court, but the Supreme Court reversed that decision and found that Chilean law gave the father custody rights, which in turn, gave the father the right to refuse consent to the mother's taking of the child out of the country under the Hague Convention. Based on the Court's ruling in Abbot, it is very clear that the United States takes the custody decisions of countries that adhere to the Hague Convention very seriously and, in turn, expects those participating countries to give the same respect to American child custody and time-sharing orders.

Child custody cases involving international travel and/or international relocation of one of the parents with the child are complex and rife with hazards. The Hague Convention, and the federal laws that enforce it, are very complicated and can involve not only the Courts of the respective jurisdictions but also the United States Department of State's Office of Children's Issues. Any person facing a custody dispute that involves international travel or international relocation to or from New Mexico should contact a New Mexico divorce and family law attorney.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

Often in a divorce or parentage cases, parents split up when a child is very young. In New Mexico, the courts keep jurisdiction over child support until a child reaches the age of 18, or past the age of 18 if the child is still in high school. However, New Mexico lawmakers understood that the circumstances on which an initial child support award is based can change substantially between the time child support is first calculated and the date the child turns 18.

In order to ensure that child support awards are fair and in keeping with the child support guidelines, the child support statue allows either parent to motion the court to modify child support. In order to ask for such a change, the parent seeking a change must file a motion informing that court that there has been a substantial change in circumstances that will cause child support to increase or decrease by at least 20%. A substantial change in circumstances can include things like one parent losing their job or getting a new job that pays more. A motion to modify child support can also be based on changes to the parents' time-sharing and visitation schedule that result in the child spending an increased amount of time with a particular parent or, in the case of child support awards for multiple children, one child turning 18 or graduating from high school.

If a parent believes that a change in child support is warranted, then it is very important to file the motion to modify as soon as possible because the court will only retroactively award support back to the date of the motion to modify. Unless jurisdiction has been changed, the motion to modify should be filed with the district court that issued the original child support award. If the parties cannot agree to a modification, the court will hold a hearing on the issue and will most likely order the parties to exchange updated income information. In some counties, including Bernalillo, Sandoval and Valencia, the court may refer child support modifications to a hearing officer who will have the same power as a judge to enforce a new child support award. No matter where you are, any parent thinking about filing a motion to modify child support should speak to a New Mexico divorce and family law attorney to make sure that they are in compliance with the child support statute.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

In order to protect victims of domestic violence, the New Mexico legislature enacted the Family Violence Protection Act, which authorizes the courts to issue a type of civil restraining order called an Order of Protection. If an Order of Protection is entered, it prevents the person committing the domestic violence or abuse (called the Restrained Party) from having any contact with the victim of that abuse (called the Protected Party). A party that violates the provisions of an Order of Protection may face criminal and civil penalties. In some case, the Restrained Party may also be the victim of abuse by the alleged Protected Party.

The procedure under the Family Violence Protection Act requires that the a person be personally served with the Petition for Order of Protection before an Order of Protection may be entered against him or her. The alleged domestic violence offender must also be allowed to appear at a hearing to answer to the charges in the petition. If a Restrained Party believes that he or she is also a victim of abuse by the person filing the petition, then he or she may file a counter-petition informing the court of that abuse and asking that an Order of Protection be entered against the other party.

A counter-petition for an Order of Protection follows the same basic format as the petition and must be filed before the hearing on the original order of protection is held. If the court finds that both parties have committed domestic abuse against each other, it may enter what's called a Mutual Order of Protection, which means that both parties can face criminal and civil penalties for making contact with the other party. However, the court will not issue a Mutual Order of Protection if a counter-petition has not been filed. Thus, if a person is served with a petition for Order of Protection, it is important that they contact a New Mexico Divorce and Family Law Attorney immediately in order to ensure that they understand all of their legal rights, including the right to file a counter-petition.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

In New Mexico, the district court retains jurisdiction over child support until the child is 18 and can continue past the age of 18 if the child is still in high school. The child support statute also allows either party to petition the court for a modification of child support when a change of circumstances has occurred that will result in an increase or decrease in child support of at least 20%. A motion modify child support may be filed with the district court that issued your original child support order.

The change in circumstances required to support a child support modification can be a variety of things, like one party losing their job, or getting a raise or the parties substantially changing their visitation schedule. If you are faced with a situation that you think will change your child support award, it is very important that file the motion to modify as soon as possible because the new child support award will only go back to the date the motion to modify was filed. For example, if a party loses their job in September but then waits to file a motion to modify until November, then the reduced child support amount will only apply from November on and the party will be responsible for paying the higher amount for September and October.

The only exception to this rule about retroactive child support applies when a party files a petition to establish paternity under the New Mexico Uniform Parentage Act. In that case, the Court can order child support back to the date of the child's birth, but not more than 12 years unless the court makes a finding that a paternity action could not have been filed before the child turned 12. When deciding the amount of retroactive child support and child support arrearages the Court will consider factors like the mother's ability to locate the father and any equitable defenses raised by the father. Whether a child support action is brought as a modification of an existing order or as a new award, parties to a child support action should seek legal counsel immediately.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com