Albuquerque Divorce Lawyer Blog

Family law may be the most emotionally fraught area of the law. Parties to a divorce, paternity , child custody or child support action may be dealing with major changes to the most basis aspects of their family and financial lives. This level of emotion can lead parties to simply refuse to respond to documents filed by their spouse or the parent of their child. Of course, sometimes parties fail to response for other reasons, but whatever the cause the result can be a real pain to deal with for both the courts and the party filing the court action.

When a party fails to respond to an action filed with the court, the party who filed the action can ask that the court grant what is called a default order of dissolution of marriage. As part of the application for a default order, the party seeking the relief of the court must first show that the non-answering party received proper notice through service of process, and has still failed to respond.

Defaults are not favored in the courts. This is particularly true in family law matters. The default process can be very time consuming process. Even with proof of service, the court may order that the party seeking relief publish notice in the newspaper to make sure that the non-answering party had an ample opportunity to respond.

Even then, the court may require that the filing party come to a hearing and tell the court all of the steps taken to try to reach the other party. If the court is satisfied that good faith steps were taken to apprise the non-answering party of the court's proposed action and the non-answering party still refuses to answer, the court will most likely issue a default order granting the filing party whatever relief it has sought from the court, as long as that relief is allowed by law.

Then comes the bad news. Default orders in family law proceedings often get set aside. Again the courts do not favor defaults. Default judgments are generally disfavored in New Mexico because they deny the non-responding party his or her basic constitutional right to notice and an opportunity to be heard. They are even more disfavored in family law cases due to the issues that are involved such as a child custody and child support which are by definition modifiable. Thus, even when the default order is upheld, much of the order may be modifiable anyway.

It is best to avoid the default order if at all possible. The attorney fees and costs can be significant and in the end, the order may be set aside or modified. However, if it is unavoidable then it is imperative that all of the proper procedural steps be followed when obtaining a default order. To avoid missteps, it is important to seek the advice of an experienced divorce and family law attorney.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

Unlike other states, in New Mexico, the process for obtaining a legal separation is nearly identical to that for getting a divorce. Parties often mistakenly believe that they can get a legal separation faster and cheaper than they can get a divorce. However, in granting a legal separation the New Mexico courts will still need to divide all of the property and debts, and determine child custody and child support, which means that obtaining a legal separation, is not any faster than the divorce process. Nor does it save on attorney fees.

Most of the same documents will need to be filed as with a divorce and nearly all of the same steps will be taken by the court, except that at the end of the legal separation process the parties cannot legally remarry. In the end, if a divorce is inevitable and the end objective, then a legal separation will greatly increase the attorney fees, time and stress of the process.

This leads to the question, why file for a legal separation? Some parties may pursue a legal separation for religious reasons if their church does not frown on legal separation the same way it does on divorce. Others may file for legal separation rather than divorce because in some cases both parties may keep the health benefits earned by one spouse if they are legally separated but not if the parties are divorced.

Given the limitations of health care in the United States, this second reason can be a powerful incentive for seeking a legal separation rather than a divorce. However, the health care issue can be pretty tricky. Not all insurance policies allow continued coverage for parties that are legally separated. It is therefore important to check with the individual policy before pursuing this option.

Essentially, anyone contemplating a legal separation rather than a divorce should consult with an experienced divorce and family law attorney. It may be that a legal separation is not the best route. And even if it is, it is important to understand all of your rights and obligations in moving forward.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

Two unique facets of the New Mexico law governing divorce make the process of getting a divorce in New Mexico very different from other states. First, New Mexico does not have a waiting period that must be observed before filing for divorce. This means that parties who have been married for one day have the same standing to file a petition for dissolution of marriage (the document filed with the court that begins the divorce process) as parties who have been married for 25 years.

However, it is important to note that even though there is no official waiting period, the party filing for divorce must still meet the jurisdictional requirement of the New Mexico courts, which requires the party to have lived in New Mexico for at least six months prior to filing for divorce.

The second major difference between New Mexico and other states is that New Mexico is a No Fault divorce states. This means that the courts here will grant a divorce on the basis of incompatibility alone and do not require, for instance, that one party show that the other has committed adultery or any other wrong against the marriage.

Only one party needs to plead incompatibility for the New Mexico courts to begin the divorce process. Typically, the family law judges will not hear arguments about infidelity or bad behavior by one party unless they directly affect custody or some aspect of property and debt division essential. Neither will the court entertain counter arguments to incompatibility.

Many parties find the No Fault policy unsatisfying because the court does not hear about all of the hurtful things their spouse may have done. However, the positive side of a No Fault divorce is that embarrassing information about the parties' personal habits or sexual proclivities can be kept private and will not necessarily need to be debated in open court. For these reasons, conflict is also reduced. This too speeds up the divorce process and results in substantial reduction of emotional and financial costs to the parties.

Even though the lack of a waiting period and the policy of No Fault make the process of divorce in New Mexico somewhat simpler than other states, it is still very important that parties to a divorce proceeding consult an attorney as early as possible in the process so that they can make sure all that they understand all of their rights and responsibilities under the law.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

According to a recent article in the Albuquerque Journal, the number of child support enforcement cases pending in New Mexico has reached a record high. The Child Support Enforcement Division, called CSED for short, is a part of the New Mexico Human Services Department and is responsible for enforcing parents' child support obligations. CSED officials believe that the increase in cases is due to the bad economy, which means that the enforcement cases have increased but that actual collections of unpaid back child support are down.

CSED can get involved in a divorce or paternity case in multiple ways. The most common situation is when the custodial parent gets any kind of financial assistance from the State or Federal government to assist them in raising their child. In these cases CSED automatically sets up a case and will begin trying to establish and collect support from the non-custodial parent. Where applicable, part of the money collected from the non-custodial parent will go to repaying the State for the assistance it has paid to the custodial parent. A CSED case may also be automatically opened when the custodial parent applies for Medicaid coverage for a child. And, finally, a parent who is not receiving public assistance or Medicaid, but who has a child support order that is not being followed can go to CSED and ask that a case be opened up on their behalf.

Once an enforcement case is opened, CSED has extensive power to force non-custodial parents to pay support, including the garnishment of wages, the seizure of bank accounts and the suspension of driver's licenses. Thus, if you are a parent who gotten behind on support for whatever reason, it is important that you seek the advice of an attorney experienced in child support matters immediately before CSED begins to take enforcement and collection action against you. In turn, if you are a parent who is entitled to support but is not receiving it, speaking with an attorney can show you the various options available to begin encouraging your child's parent to pay support.

CSED is generally very helpful and cooperative so long as you address the situation. This means that you immediately contact them to address a problem as it arises. Often times, there are solutions that both parties and CSED can live with. Due to their vast experience in child support matters, CSED attorneys will know every available alternative short of financial ruin for either party. That is the good news. The bad news is that CSED is overwhelmed with cases so it may be difficult to make contact with someone with decision-making authority. This alone will typically indicate and justify hiring your own attorney.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

With the enormous technological advances and explosion of the internet during the past few decades, New Mexicans are able to exchange more information and communicate more effectively than ever before. Access to the internet can be an amazing tool, for instance, it can help you research a variety of legal topics, including family law blogs like this one. However, the posting of personal information on blogs and social networking sites like Facebook and MySpace can sometimes pose a problem in family law cases. This is particularly so in contested divorce and child custody cases.

Imagine two parents engaged in a fierce child custody battle wherein each parent alleges that the other is unfit to raise their children. If one parent, or their friends, posts pictures of a weekend party with that parent consuming alcohol, or engaging in other potentially dangerous or unsavory behavior, that post could easily find its way into the hands of the other parent. In fact, one is safe to assume that it will.

In turn, that post can be presented a custody evaluator or Guardian Ad Litem in charge of making a recommendation to the court with respect to custody. Likewise, the evidence will eventually be presented to the judge if the case makes its way to trial. This is also true of negative comments made about the other spouse on a blog or during a Facebook chat. The opposing party may even be able to find out the other party is misusing community funds or hiding assets based on what they say in internet postings. Just as the internet can be a great way to research legal topics or sports trivia, it can be an excellent way for opposing parties in court cases to investigate each other's habits, friends, associates and activities.

Any party to a family law proceeding, whether it is a divorce, a paternity action or a renewed dispute over child custody and/or child support, should consult an experienced divorce and family law attorney immediately. As part of that consult, parties should advise their attorney of any information about them that may be available on the internet. Some attorneys advise parties to completely discontinue use of blogs and social networking sites until a divorce action is completed, or at the very least make sure that privacy settings are set as high as possible. Remember that everything a party posts on the internet has the potential to be reviewed by the public and, in turn, is most likely admissible in family court proceedings, which can be very damaging. The best policy is to resist the urge to share on social networking sites. As good as it might feel to share your innermost thoughts, the internet is not an intimate conversation. Instead, it is a public forum and should be treated as such.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

One of the questions most frequently asked by divorce and family law clients is "How long is this going to take?" There is no easy answer to that question. The first question is where in New Mexico are you filing your divorce, paternity or family law action? The case load for the courts that cover Albuquerque, Rio Rancho and Santa Fe are pretty heavy, so it generally takes several months to get a hearing date in those areas. This wait applies to each and every hearing.

Hearing dates are important because that is the time when parties go before the judge on specific issues related to their divorce when they cannot resolve the issues themselves. Thus the fastest way to conclude the process is through early settlement and/or mediation. If the parties can agree on a the division of property and debt, child support and child custody, and other issues related to the divorce, then they can incorporate those decisions into a marital settlement agreement which upon filing with the Final Decree of Dissolution of Marriage will conclude the process. This can be completed in a matter of weeks when the parties are so motivated.

Often this is not possible for any number of reasons, some legitimate, some not. In many cases, each every step of the divorce is a struggle requiring the intervention of the Court. Each time the court's assistance is enlisted by way of a Motion, the process if further delayed due to long wait necessary to get a hearing on a Motion. Finally, after what could be months extending into years, the parties must at some point go to trial. A trial setting takes even longer to get than a Motion hearing.

In sum, the most efficient way to complete a divorce or family law matter in New Mexico is to understand your rights and responsibilities. Then hope that the other party has done the same. If both parties can behave rationally and reasonably, the process can move pretty quickly. In the absence of reason and rationality, the process can take a very long time. In the case of a high conflict divorce or family law proceeding, the duration of the process is probably the least of your problems. Keep this mind before declaring war on your ex.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com