Albuquerque Divorce Lawyer Blog

Some of the issues facing parents involved in a divorce or paternity action involving child custody are not specific to New Mexico, but occur all over the United States. One such issue, which has become increasingly recognized by family law courts during the last 20 years, is the concept of parental alienation.

Parental alienation is generally discussed in the context of a contested custody dispute, although elements of parental alienation can certainly be found in intact families. When the research about parental alienation first began being published, it focused on situations in which one parent sought to alienate the child from the other parent by doing things like preventing visitation between the child and the other parent and bad-mouthing the other parent to the child. Frequently, one parent would go so far as making false allegations in court to prevent the other parent from seeing the child.

The current research has revised the concept of parental alienation to extend beyond just one parent and to examine how the actions of both parents, and sometimes extended family, can work to alienate a child from a parent. Whatever the cause, parental alienation is a serious situation and if it goes on long enough, it can result in a parent-child relationship that is irretrievably broken.

Psychological therapy or counseling is often recommended for all of the parties involved in a parental alienation situation. If a party to custody action believes that alienation is an issue, they will need to bring that to the court's attention as soon as possible so that the court can order the necessary therapy and start putting in other safeguards to stop the breakdown of the parent-child relationship.

Parental alienation is taken very seriously by the New Mexico courts. The court above all is charged with promoting the best interests of the child. Anything that interferes with this goal which includes interference with the parent-child relationship is dealt with very seriously. An experienced divorce and family law attorney is essential to getting these issues heard and addressed by the court before it is too late save the parent child relationship.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

When families split up, parties are often concerned about how they will continue to support themselves and their children. In New Mexico family law, there are three primary types of support awarded by the court: child support, spousal support, which is also called alimony, and interim support. The district court with which a divorce or parentage action is filed has the authority, or jurisdiction, to order one party to pay the other all three types of support.

The most commonly asked about form of support is child support, which is governed by the New Mexico Child Support Guidelines. The child support guidelines were created by statute to provide a clear calculation of child support that begins with both parents' gross monthly incomes and then gives credit to both parents for amounts paid for work-related child care and health insurance coverage for their children. In New Mexico, the child support guidelines are mandatory and must be followed unless a court finds good cause for deviation from the guidelines. It is quite simply a mathematical calculation. Of course, this will not stop arguments over the beginning basis of gross monthly income.

In contrast to child support, spousal support is not mandatory in New Mexico. The courts will look at a variety of factors in deciding whether or not to award spousal support, including the length of the parties' marriage, the relative earning capacity of each party and the parties' age and health.

In turn, interim support (interim division of income and expense) is different from both child support and spousal support because interim support is only effective from the date of the parties' separation until their divorce is finalized. It is calculated by adding all the income of the parties, subtracting all the allowable expenses, and dividing what's left over equally between the parties. This is often a hotly contested calculation.

By contrast to interim support which terminates upon finalization of the divorce, child support and spousal support are normally only effective once a divorce is finalized. Both interim support and spousal support are only available to parties who were married, whereas child support is imposed in any case in which parties share a child, whether or not they were married.

Calculation of any of these types of support can be complicated and will depend heavily on both parties providing accurate income information. Contacting a qualified family law attorney can help parties collect income information in order to ensure that any type of support is fairly imposed and enforced by the courts.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

Depending on the circumstances of a divorce, there can often be months or years that elapse between the time the parties separate and the finalization of the divorce. This delay can be caused by a variety of reasons from the legitimate to the malicious.

No matter the reason, the parties' debts still need to get paid while the divorce is pending and both parties are entitled to a portion of the community income. New Mexico Rule 1-122 accordingly allows the court to issue interim orders allocating income and expenses. The payments awarded in these orders is often referred to as interim support.

The premise underlying interim division of income and expense or interim support is that even though the parties may be separated, they are still technically married, which means that all of their income and debts are still community and must be allocated equally between the parties.

In order to calculate interim support, the court, or more often the parties themselves and their attorneys, creates a table that starts with the parties' gross monthly income. The court then allows each party to subtract their regular monthly payroll deductions to reach each party's net monthly income. Each party is then allowed to deduct their regular and necessary monthly expenses from the net income, which include among other things rent, mortgage payments, utilities, car payments, insurance, phone bills and the minimal monthly payment on credit card bills.

The money left between the parties after the subtraction of monthly expenses from net monthly income is referred to as the parties' spendable income. If the number for the parties' net spendable income is positive, then an equalization payment must be made so that each party gets half of the community's total monthly spendable income. If the parties have children, then an extra percentage may be added to the equalization payment to compensate the party with whom the children are primarily living. This equalization payment is called interim support.

What expenses can be included in an interim support calculation is often the subject of great conflict between the parties due to the allocation of the remaining net monthly income after deduction of these expenses. Both parties will often fight very hard to create an income and expense sheet most favorable to them in the end equalization of income.

Interim division of income and expense can be critical to the interests of the parties while the divorce is pending. However, this division is often both complex and contentious making it important to consult with an experienced New Mexico divorce and family law attorney in addressing these issues.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

What happens if parties to a divorce or paternity case have gone through all of the mediation and court hearings required to reach a parenting plan that establishes child custody, but one parent just won't comply with the Court's order? In New Mexico, the non-complaint party may be charged with the crimes of custodial interference or unlawful interference with custody.

These crimes are similar and both are fourth degree felonies which means that a person found to be guilty of either crime, may be imprisoned for up to 18 months and fined up to $5000. In addition, the offending parent may suffer additional consequences in the family law court with awards of attorneys fees and costs. The crime of custodial interference is committed when one parent maliciously takes, detains, conceals or fails to return a child to the other parent by the terms of the parenting plan or custody orders without good cause and with the intent to deprive the other party of custody for a protracted period of time or permanently.

In contrast, the crime of unlawful interference with custody is committed when a party who does NOT have a right to custody of a child maliciously takes, detains, conceals or fails to return the child to the party who rightfully has custody. Any law enforcement officer that is called upon to investigate a charge of custodial interference or unlawful interference with custody may take a child into protective custody, if that officer believe that a person may flee with the child. The child may then be returned to the custodial parent or may be held in a community-based shelter until a civil court can hold a hearing to determine or enforce custody.

While law enforcement has the authority to investigate and take action in both types of custodial interference cases, it can be very difficult to track a child down once a parent or other party has taken them. Thus, any person faced with such a situation should call law enforcement immediately and should also consult an experienced child custody attorney to make sure that their custodial rights are protected once the child is recovered.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

In New Mexico, the Family Violence Protection Act allows a victim of domestic violence to file a petition for order of protection, asking the Court to enter an order of protection preventing the person committing the domestic violence (called the restrained party) from having any contact with the abused party (called the protected party). Orders of protection are a specific type of civil restraining order and they can have a variety of consequences for all of the parties involved.

The primary consequence of an order of protection is that the restrained party cannot go within 100 yards of the protected party's home or workplace and must stay 25 yards away from the protected party in public. An order of protection may also prevent or regulate contact between any children that the parties may have together. The order of protection also prevents telephone, which includes texting, and e-mail contact between the parties.

All of these requirements will be explained in the actual order of protection; however, an order of protection has other consequences that are not as clear. If the order of protection is issued after a hearing at which the judge or special commissioner makes a formal finding of domestic violence, then the order may have long-term consequences on the restrained party's future employment opportunities, firearm rights, and immigration rights. The immigration consequences are perhaps the most serious of the collateral consequences since a finding of domestic violence may result in removal or deportation of the immigrant offender. Because of these very serious consequences, the parties may also agree to a Stipulated Order of Protection that does not include a finding of domestic violence.

Both types of orders of protection are filed with the National Crime Information Center (NCIC) so that they can be easily enforced by police across jurisdictions. In the case of a stipulated order, the restrained party is still prevented from any and all contact with the protected party and cannot possess a firearm while the stipulated order is in place, but there is no formal finding of domestic violence that would have to be reported later when applying for jobs, a firearms license or immigration procedures.

Finally, a violation of an order of protection can also result in criminal and civil penalties, including fines, jail time or both. Thus, if you are a party to a petition of order of protection, it is important that you discuss your case with an to make sure that the appropriate type of order of protection is entered and to ensure that it is properly enforced.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com