Albuquerque Divorce Lawyer Blog

The current New Mexico law governing child support as set forth in the New Mexico Child Support Guidelines provides that child support terminates once a child turns eighteen (18) or once the child is nineteen (19) if the child is still in high school. However, given the increasing importance of higher education in this country, many researchers across the country believe that parents should be ordered to pay child support for their children while they are in college.

The 2011 New Mexico legislature listened to those opinions and passed House Memorial 71, sponsored by Speaker Ben Lujan, which requires the New Mexico State Bar to form a task force to investigate how consideration and planning for children's post-secondary education should be incorporated into the existing law regarding child support.

The task force will be chaired by a family court judge and will consist of lawyers that practice in the area of divorce and family law as well as other professionals that work in related fields. The task force is required to report back to the legislature with an interim report by November, 2011, and a final report by November, 2012.

Any law changing the child support guidelines to require parents to pay for their children's post-secondary educations will have a major, long-term effect on divorce and paternity actions across this State. How any such an obligation would be implemented leads to a variety of questions.

For instance, will the support continue no matter where the child goes to school? Do parents have to agree on where the child goes to school? Will parents have to pay the entire cost of tuition, etc.? How will child support be calculated? Will children be required to work while in college? What is the obligation of the child to attend class and maintain performance? What grounds might there be for terminating college support?

There are certainly many other questions that will come up depending on the law's language and the circumstances of a particular case. While this discussion is clearly in the earliest stages, it is important for both lawyers and parents to pay attention to any reports issued by the task force. Any law that places further obligations on parents and families such as this should be viewed with great scrutiny. Parents and voters would do well to voice their opinions on this issue with their respective legislators.

Collins & Collins, P.C.
Albuquerque Attorneys

When a divorce with children and a child custody or time-sharing dispute, cannot be settled between the parties, the presiding court, which in New Mexico is most often the district court in the area or county where the children live, may need to have one or more hearings in order to determine what sort of custody arrangement is in the best interest of the children. Once it has been determined that a hearing is necessary, a common question becomes whether or not the parties' children should be called to testify at a family law hearing.

During the 2011 session, the New Mexico legislature passed, and the governor signed, House Bill 196, which provides for the creation of the Uniform Child Witness Protective Measures Act. This new act applies to both criminal and non-criminal judicial proceedings, which includes family hearings, and gives judges the power to allow children testify by an alternative means, rather than by actually testifying at a hearing subject to cross examination by each party's counsel.

The alternative methods allowed by the Act can include testimony by closed-circuit television, deposition, testimony in a closed forum. In determining when alternative method testimony is appropriate in a non-criminal hearing, the court will determine a variety of factors, including the age and maturity of the child, the potential emotional harm posed to the child by testifying and the nature of the proceedings before the court.

Several judicial districts throughout New Mexico already have procedures in place that limit how and when a child's testimony is presented to the court. However, this new Act may change how and when those procedures are used. In a hotly contested custody battle, it is essential to have counsel familiar with the rules governing the testimony of children in order to ensure that any such testimony is reliable and properly used.

Collins & Collins, P.C.
Albuquerque Attorneys

The beginning of a divorce can be very confusing and stressful. Perhaps the most stressful part of the divorce is what to do with the marital home. A difficult decision must be made as to who will remain in the house. This decision is made even more difficult when children are present.

As community property, both parties are equally entitled to possession of the home. As such, neither party can force the other party to move out without a court order. Many times, both parties are very reluctant to move out of the home for a number of reasons including costs, disruption, attachment and stress.

The issue of possession of the home is fraught with emotion since whoever vacates the home will likely not be allowed to return while the divorce is pending. Moreover, whoever keeps the home will often also have primary custody of the children since the courts favor the least disruption possible to the lives of the children.

Due to many attachments to the home and the real and perceived advantages of staying in the home, parties will often jockey for possession of the home. The most common tactic is simply to demand that the other party leave. Of course, this demand has no basis in law and is unenforceable in the absence of a court order.

Getting a court order to force the removal of one or the other parties is not all that easy. There must be grounds for removal and the mere fact that his or her presence is no longer desired is not enough. The court can and will under some circumstances order one party from the home. However, this decision is not taken lightly by the courts and likewise should not be taken lightly by a party seeking removal of a spouse from the home.

The issue of the community residence can cause a huge level of hostility and set a divorce off in an irreversible course of conflict. It should be addressed in the most rational and thoughtful way possible and compromise is highly encouraged. Refusal to compromise here will likely costs the parties dearly in every other areas of the divorce, no matter how trivial.

Due to the complexity of the issue and the possibility of derailing an otherwise civil divorce, it is important to consult with an experienced divorce and family law attorney to understand your rights, obligations and corresponding options in addressing this issue.

Collins & Collins, P.C.
Albuquerque Attorneys

The divorce process is a time of stress, disruption and change. With the multitude of decisions that must be made, estate plans, insurance instruments and retirement accounts created during the marriage can get overlooked. As such, ex-spouses can unwittingly remain as recipients or beneficiaries of estate assets, even when it is not intended. They can also be deemed decision-makers in certain inopportune situations.

Prior to any thought of divorce, spouses are commonly named as beneficiaries for estate assets. Because New Mexico is a community property state, each spouse owns 50% interest in the assets acquired during the marriage upon divorce. Each spouse then has the right to say how their 50% is used, including to whom they will leave their separate assets upon death.

Beneficiary designations are often overlooked during a divorce. It may be only during probate proceedings that an ex-spouse is found recorded as an estate beneficiary. This creates obvious problems for the deceased's intended recipients. Likewise, there are difficulties when an ex-spouse is left as a beneficiary on a life insurance policy, pension plan, annuity or trust account.

Worse still is a situation where a person has been incapacitated due to injury or illness and they neglected to remove their ex-spouse as the agent on their living will or advance health-care directive. These are documents that give another party the legal ability to make medical decisions, including the refusal of treatment. If the person is incapacitated, transferring that decision-making authority can be quite difficult.

Particularly after a contentious divorce, one need only imagine the unintended consequences of neglecting to change beneficiary designations. An experienced divorce attorney can help address these issues to avoid the consequences of unintended beneficiaries.

Collins & Collins, P.C.
Albuquerque Attorneys

In 2007, the U.S. began experiencing what is now called, the Great Recession. One surprising fact found during this period of economic hardship involved the steady decline of the divorce rate. In fact by 2008, this rate had dipped to its lowest level in 30 years in over 44 states.

Data collected by the National Marriage Project, based out of the University of Virginia supported these findings, actually finding that the stability of marriages was positively affected by the recession. Foreclosures, lay-offs and investment losses may be evidence that married couples pull together during such events. Yet, this stability and sense of togetherness may be short-lived.

Typically, financial conflict has been a top predictor of marital breakdowns. Yet, one of the statistics highlighted by the National Marriage Project involved the claim that many couples either put aside or postponed seeking a divorce during the recession. One major factor could involve the housing market collapse, as many divorcing couples cannot cash in on home equity when real estate prices have plummeted. Finally, in some housing markets it is near impossible to sell a home and even more difficult to get financing on another. Most families simply cannot take on the costs associated with running separate households.

There are many other issues as well that make divorce quite difficult in times of financial stress. Health insurance is a major issue. A divorce will often leave one party with no insurance which today can be quite disastrous. A division of property and debt is made more difficult in these financial times. The community debt in particular can be extremely problematic forcing one or both parties into bankruptcy. Then there is child support and alimony which for the paying party can simply put them over the financial edge. So while financial stress pulls couples apart, these same stressors actually bind them together for better and for worse.

The research appears to hold true. As the effects of the recession began to ease in 2010, statistics revealed an increase in divorce rates. This trend may be due to less financial uncertainty. Rebounds in employment rates and investment portfolios may alleviate the fears of those who want to go it alone. Others may find more creative ways to separate, continuing to share community property until the housing market bounces back.

Divorce can be a complex issue, particularly in today's unpredictable economy. Divorce has always been a highly stressful and uncertain time for couples. The recession has magnified the issues and often the complexities of a divorce. If you are considering divorce and the implications this may have on your financial future, it is important to consult an experienced divorce attorney. You can then better consider your options, having some certainty in uncertain times.

Collins & Collins, P.C.
Albuquerque Attorneys