Albuquerque Divorce Lawyer Blog

Parents of children with specific developmental disabilities, including Downs Syndrome, Cerebral Palsy and Autism Spectrum Disorder face many challenges when raising their children to adulthood. Unfortunately, these challenges do not disappear once the child turns eighteen, which is the age New Mexico recognizes persons as adults with decision-making ability. Questions surrounding medical care and physical needs often cannot be properly addressed or resolved by an adult with a developmental disability.

Appointment as an adult guardian can be an option for parents and caregivers who will continue assisting these adults with decision making and care. Guardianship is obtained through the court to protect and promote the well being of an adult who is in need of such protection. A guardian will typically make decisions concerning where the protected adult will live, what kind of medical care they will need, and what kind of therapy or job training might enhance their situation.

Adult guardianship has serious implications and should only be undertaken as a last resort, because the adult in need of protection will be deemed incapacitated if guardianship is granted. In addition, the appointment of a guardian removes significant rights from an individual. Even so, the protected adult still retains their legal, civil and basic human rights, including the right to; receive personal mail, vote, practice religion of choice, marriage, manage personal spending of allowance, representation by an attorney, create a will or trust, and petition the court to reassign or end guardianship.

However, even these rights can be limited if the protected person does not have the mental capacity to understand or perform them. They also have the right to live free from abuse, exploitation and neglect in any form. These of course may not be forfeited under any circumstances.

In New Mexico, the adult guardianship process provides legal safeguards to those who are alleged to be incapacitated persons; consequently, guardianship will not be granted without significant supporting data. In deciding an adult guardianship case, the courts follow the guiding principle of "least restrictive alternative". This means that alternatives to guardianship should be explored, and guardianship should only be sought as a last remaining option. Ultimately, New Mexico statutes require that guardianship encourage as much independence of the protected adult as possible.

After completing the guardianship process as outlined by statute, the court will decide if the alleged incapacitated person requires guardianship. If not, the petitioner's request for guardianship will be denied and the proceedings will be dismissed. If it is discovered that the protected person can perform some decision making and care for themselves, the court may limit the guardianship, designating these limitations within the order of appointment. If the protected person is found to be in need of full guardianship, the petitioner will be given final authority to act for the protected person.

Collins & Collins, P.C.
Albuquerque Attorneys

A frequent question for parents involved in a divorce or child custody dispute is which parent is going to claim the IRS tax exemption for the children. The issue is typically dictated by issues of child custody and child support.

The New Mexico courts will generally follow the IRS rules regarding the exemption, which can be somewhat complicated. Generally, the custodial parent is entitled to claim the tax exemption for a dependent child. The IRS defines the custodial parent as the parent with whom the child lived for the greater part of the tax year, which makes the other parent the non-custodial parent.

However, a noncustodial parent can be allowed to claim the exemption for a dependant child if all of the following circumstances exist: 1) the child must receive more than half of his support for the tax year from one or both of the parents (i.e. TANF does not count as support by the parents); 2) the child must be in the custody of one or both of the parents for more than half of the year; and 3) either the custodial parent agrees not to claim the child or the parties have a written divorce or separation document entered prior to 1985 granting the non-custodial parent the right to claim the child.

Thus, if the parties agree, they can enter into an agreement as to who claims the tax exemption. There are many variables that go into the decision to allow the non-custodial parent to take the exemption including the income of the parties, child support and perhaps most importantly, the parties ability to make rational financial decisions despite the stresses of a divorce.

Assuming the custodial parent agrees, the non-custodial parent may claim the exemption. In the case of a single child, parents often agree to alternate claiming the child every other year. If the parents have more than one child, they may agree that each claim a specific child in order to both benefit from the tax exemption.

However, it advisable to consult with an experienced family law attorney when drafting such a agreements so that the proper language required by the IRS is included in the divorce pleadings or parenting plan and so that the proper IRS forms are completed every year.

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

In New Mexico, as around the country, more and more couples are choosing to live together without being married. There can be a variety of emotional, financial and practical reasons for choosing not to marry. Whatever the reason, when these relationships break up, it can feel very much like a divorce. However, there some key differences in the way the law of New Mexico is applied to the break up of a marital relationship versus a relationship between unmarried parties.

If the co-habitating parties have children, the court will apply the same principles as it would in a divorce to determining what sort of child custody and time-sharing arrangement is in the children's best interest. This type of case that is filed is called a parentage action during which the court will evaluate sole versus joint legal custody or decision-making for the children, as well as time-sharing, which is also called physical custody and determines how much time the child spends with each parent.

Likewise, child support is treated the same whether the parents were married or not. Child support will be determined in accordance with the statutory New Mexico Child Support Guidelines based on the gross income of both parents. The Guidelines are applied uniformly to married and non-married parents.

The big difference between a co-habitating couple and a married couple breaking up is that the principles of community property do not apply to co-habitating couples. There is no common law marriage in New Mexico as in some states.

Because the community property laws do not apply in this setting, the division of property and debt will not necessarily be equal. If the parties cannot agree to a division, then a separate civil suit may be necessary to apportion all of the debts and assets.

The civil suit for the division of property and debt is equally akin to the dissolution of a partnership as a marriage. This division can get very complicated, especially if the parties have been co-habitating for a long period of time or have accumulated substantial assets and debts. Thus, it might be wise to consult an attorney to determine how best to protect your rights and your property in the aftermath of a break up.

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

Child support is mandatory in the State of New Mexico and is statutorily regulated by the New Mexico Child Support Guidelines. The Guidelines calculate child support based on worksheets that take into account both parents' gross income, child custody and time-sharing, the cost of medical insurance coverage and work-related daycare for the child.

The rules may seem clear, but when a parent that is ordered to pay child support is incarcerated, this situation can get very complicated. Obviously, when a parent is incarcerated they are not earning an income, which many people think is an automatic basis for a modification of child support similar to that available when a parent loses their job. However, this is not true.

When a parent is incarcerated, the New Mexico Courts will examine several factors in order to determine whether or not child support keeps accruing during their time in jail or prison. These factors include: 1) consideration of whether or not the criminal act for which the parent is in jail was deliberate and had known consequences; 2) the length of the parent's incarceration (if the it is a relatively short period child support will generally continue to accrue and the New Mexico courts have held that four years is considered a relatively short period of time); 3) what, if any, marketable skills the parent has; and 4) what, if any, assets the parent has apart from his or her income.

How each of the factors above is applied will vary depending on the facts of every case. Thus, if a person is faced with a situation in which a parent is incarcerated they should consult an experience New Mexico child support attorney immediately in order to protect their rights under the child support guidelines and to determine whether or a motion to modify is appropriate.

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

The New Mexico Child Support Guidelines were put in place to ensure uniformity in child support awards, make sure all parties in divorce actions are treated equitably and to improve the efficiency of the court process. Given the goal of the guidelines, New Mexico courts will rarely deviate from the guidelines when imposing a child support award.

Despite the attempt at fairness, the child support obligations can often be extremely burdensome on the party paying support. This is especially true in today's uncertain economy. In such cases, a party may ask the Court to deviate from the guidelines. Any child support order that deviates from the guidelines must include a statement of why the order deviates from the guidelines. A party seeking such a deviation must show good cause why the child support imposed by the guidelines is inappropriate. The question then becomes, what constitutes good cause?

The guidelines themselves provide that if the support calculated pursuant to the guidelines requires a party to pay more than forty (40) percent of their income in child support for a single child, then there shall be a presumption of substantial hardship, which, in turn, will justify a deviation from the guidelines. Another reason for deviation from the guidelines could be that one party to a divorce action has assumed a substantially larger portion of the community debt and may be relieved of paying the full child support obligation until the community debt is satisfied.

However, the answer to what constitutes good cause to will often vary depending on the judge or hearing officer ruling in the case. Thus, a party faced with a child support obligation that they think is unfair or unduly burdensome should consult an experienced New Mexico child support attorney immediately in order to evaluate whether they have a reasonable claim for deviation from the guidelines.

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