Albuquerque Divorce Lawyer Blog

The court rules governing divorce and family law in New Mexico provide that, whenever a petition for dissolution of marriage is filed, the district court shall enter a temporary domestic order, or TDO. In Albuquerque, Rio Rancho and Santa Fe, the TDO is automatically issued by the court along with the summons when the petition for dissolution of marriage is filed. The TDO applies to both parties to the divorce action and should be personally served upon the respondent, along with the petition for dissolution.

The language of the TDO order may vary from county to county. However, the underlying purpose of the TDO is to ensure that the parties maintain the status quo while the divorce action is pending. This means that neither party can make the other leave the marital residence and neither party can run up debt or sell off assets. The TDO also forbids both parties from removing their children from the state or to otherwise interfere with the children's relationship with the other party.

Parties often disregard the TDO as unimportant, generic paperwork issued by the court. In fact, they may not even read the TDO, which is a big mistake. Violation of the TDO is treated the same way as any other violation a court order and can result in a holding of contempt against the offending party. A contempt finding may result in fines and even jail time.

Due to the potentially severe consequences of violation, any deviation from the terms of the TDO must be approved by the Court prior the action being taken. Given that the TDO applies from the moment a petition for dissolution of marriage is entered, the parties to a divorce action should contact an experience divorce and family law attorney immediately in order to ensure that they understand their rights and responsibilities under the TDO.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

Jurisdiction is the term used to refer to a court's authority to decide certain cases. In order to hear a case, the court must have jurisdiction of the subject matter of the case and over the parties involved in a case. In a divorce or family law case, issues of jurisdiction can get somewhat complicated when the parties are living in different states.

In New Mexico, the district courts (as opposed to the magistrate or metropolitan courts) have subject-matter jurisdiction over family law cases. The baseline rule is that any person can file a petition for dissolution of marriage with the district court of the New Mexico County in which they have resided for at least six months. The New Mexico resident can file the petition whether or not their spouse currently lives in New Mexico.

However, in cases where the spouse lives outside of the state, the New Mexico courts may not have personal jurisdiction over that spouse and may not be able to issue a complete divorce ruling. The New Mexico courts can exercise personal jurisdiction over the out-of-state spouse under the following circumstances: 1) the out-of-state spouse agrees to submit to the jurisdiction of the New Mexico courts; 2) the out-of-state spouse actually participates in the divorce litigation by filing pleadings and appearing at hearings; or 3) the out-of state spouse lived in a marital relationship within New Mexico at any point in the past.

If none of the preceding conditions exist, the New Mexico district court may have jurisdiction to dissolve the marriage, but may not be authorize to distribute any of the parties' property or debts. The general rule is that the courts here have no jurisdiction over property located in another state without the consent of both parties. The issue of jurisdiction can be further complicated if there are child custody or child support issues between states.

Improper jurisdiction can result in an entire divorce decree being set aside, including the orders from the court addressing the division of property and debt, alimony, child custody and child support. Anyone faced with a divorce action in which one spouse lives outside of the state of New Mexico should consult with an experienced divorce and family law attorney prior to initiating court action in order to ensure that jurisdiction is proper.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

The occasional trip to the casino or racetrack can be a fun and harmless outing. But with so many casinos to choose from, especially in the Albuquerque and Santa Fe area, many New Mexicans know from personal experience that gambling can often get out of control. Not infrequently in New Mexico, gambling issues lead to divorce. Divorces are complicated and contentious particularly in the division of property and debt. They become doubly so in the face of gambling debt. Though much of the damage may already be done, there is some relief under New Mexico law for the innocent spouse.

As a community property state, the general rule in New Mexico is that all debts incurred during the marriage are community. This means that upon divorce each spouse shall be responsible for payment of fifty percent of that debt, no matter which spouse actually incurred the debt. However, the New Mexico legislature has recognized the potential unfairness that would result to innocent spouses if the traditional community property rule is applied to gambling debts. As a way of addressing that potential unfairness, the legislature added NMSA §40-3-9.1 to the domestic affairs statutes, which provides that a gambling debt incurred by a married spouse becomes the separate debt of the spouse that incurs the debt.

While the law stating that gambling debts are separate is clear, identifying those debts during a divorce may be tricky. Often gambling debts can be masked as credit card debt because the incurring spouse took out cash advances to pay for gambling. Or parties may take out a home equity loan in order to pay off one spouse's gambling debts. Thus, it is very important for parties to a divorce where one or both spouses have incurred gambling debts to consult with an experience New Mexico divorce and family law attorney in order to ensure that a spouse does not wind up taking on debt as part of a community property settlement that should really be apportioned to the other spouse.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

During the past few decades, there have been numerous advances in medical research regarding fertility. These advances are often a blessing for people who have been unable to have children, but they can also create complications for the family law courts. For example, can sperm donors be required to pay child support for the children created by their donation? The New Mexico courts have examined this very issue and the answer they have arrived at is perhaps yes, perhaps no, but always maybe.

Generally, the biological parents of a child are responsible for supporting that child. This obligation extends to biological fathers regardless of whether or not the father was ever married to the child's mother and regardless of whether or not he intended to conceive a child with the mother. The New Mexico court of appeals has ruled that when a woman is artificially inseminated by a licensed physician with the sperm of an anonymous donor, that donor will not be obligated to pay child support even though he is the biological father of the woman's child because such a case does not result in a true parent-child relationship.

However, the issue of sperm donor responsibility becomes substantially more complicated when parties privately conduct artificial insemination without the assistance of a doctor, or through a sexual encounter, with the understanding that the father is acting only as a sperm donor. Even when the parties agree in writing that the father is acting as a sperm donor and will not be obligated to pay child support, the court may find that the father/sperm donor is required to pay support if he engages in conduct that creates a parent-child relationship. A sperm donor may become a father when he acts like a father. This conduct can include things like acknowledging that he is the child's father. It can also include regular contact with the child. A regular visitation schedule will almost certainly result in a finding of paternity with consequent child support obligations. Any form of child custody would clearly indicate paternity and child support. Other acts by the sperm donor that create a father-child relationship may also result in finding by the court. The court will often look to the expectations of the child. As with all matters involving children in family court, it is the best interests of the child that are conclusive.

Thus, very simple acts, when taken together over time, can create a parent-child relationship in the eyes of the court. This is the case even when this may not have been the intention of the mother or the father. As such, anyone considering sperm donation, whether anonymous or not, should consult an attorney in order to fully understand the rights and responsibilities that come with such a donation. Then all behavior toward the child in the future should be consistent with the sperm donor's intentions.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

The New Mexico Child Support Guidelines provide a specific set of rules governing the imposition of child support. The guidelines provide two different worksheets for purposes of calculating child support. Worksheet A is used when the child (or children) for whom support is being paid resides with one parent more than 70% of the time. Worksheet B is used when the child's time with the parents is more evenly divided.

Both worksheets incorporate the following factors: the gross income of both parents, the number of children to the parties, payments made for work related day care, and payments for health insurance costs for the child. In special circumstances, other amounts can be included in the child support worksheet, like regular recurring school expense or medical expenses for the child. However, no deductions are for any items other than those explicitly allowed for in the Child Support Guidelines.

While the guidelines are pretty straightforward, complications can arise when a parent has child support obligations for children with different partners. For example, a father may have children with three different women. The father is most definitely responsible for child support for each child. The child support worksheets will be applied to each child. However, if each child support calculation were determined separately under the guidelines, the total support owed by this father would often exceed 50% of his total monthly income, which is prohibited by the guidelines. To avoid this, the law dictates that each successive worksheet for later born children must reflect a reduction in the father's income for prior child support obligations.

Essentially, the New Mexico Court of Appeals has ruled that the father's income should be reduced by the amount of child support he pays for his children with different mothers. This reduction is applied to the each child's support based on birth order, which will often result in the third child getting less support than the first and second child. This result may seem unfair for later born children, but the position of the New Mexico courts is that the resulting unfairness will be corrected as the older children turn 18 and the father quits paying support for each of them. As that happens, the mother can petition the court to reevaluate child support to reflect the father's increased income as his prior support obligations go down.

The issue of calculation of child support for multiple children with different parents can get pretty complicated. More importantly, it can also get pretty contentious particularly for the mothers of later born children. Often times, they simply will not accept that the law dictates a reduction of the father's income for prior child support obligations. These cases, as with many divorce and family law matters, can be driven more by emotion that law. Parties faced with this situation would be well advised to seek the attention of an experienced New Mexico divorce and family law attorney. The law is straightforward and both parties should proceed with this in mind. Moving forward on emotional grounds can be extremely stressful and costly to all involved.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com