Albuquerque Divorce Lawyer Blog

Amid all of the emotional and financial trauma that can be caused by a divorce or child custody battle, parties often forget that they are part of a court proceeding. Even though family law matters are civil, not criminal, failure to abide by the court's order can still get the non-compliant party in big trouble. In New Mexico, violation of family court order can result in a finding of civil contempt, which can result in punishment by fine and/or jail time.

Now, many people think that any time they face a punishment that involves jail time they are automatically entitled to counsel under the 6th Amendment and that if they can't afford an attorney one will be appointed for them. However, the United States Supreme Court recently ruled that parties to a civil contempt proceeding are not entitled to free counsel under the Sixth Amendment of the United States Constitution.

In Turner v. Rogers, a South Carolina man, Mr. Turner, owed the mother of his child, Ms. Rogers, nearly six thousand dollars in court-ordered child support. After a hearing at which Mr. Turner did not have counsel and at which he admitted that he hadn't paid the child support, the South Carolina court held Mr. Turner in contempt and sentenced him to one year in jail.

During his appeals, which eventually led to the Supreme Court, Mr. Turner argued that his Sixth Amendment right to counsel was violated when he was jailed after being held in contempt for his failure to abide by the court's child support because he was not provided with free counsel.

The Supreme Court disagreed and held that the Sixth Amendment right to counsel only applies to criminal proceedings, even if a civil proceeding (like the one Mr. Turner faced and that parties to a New Mexico family law case could also face) could lead to jail time.

However, the Supreme Court also noted that the under the due process clause of the Fourteenth Amendment, civil courts cannot impose a punishment of civil contempt when a party has clearly established that he or she cannot comply with the court's order. This means that parties facing a civil contempt action must be provided adequate notice that the finding of contempt could result in incarceration and must be provided a fair opportunity to present and dispute evidence about his or her ability to comply with the court's order.

The Turner ruling clearly provides that a party facing a contempt charge for failure to pay child support, must be given the opportunity for a hearing before they are held in contempt. However, parties can be held in contempt for violating any family court order, not just child support orders. And anybody facing possible jail time for civil contempt will be fully responsible for obtaining his or her own attorney. None will be appointed by the State.

Thus, anyone involved in a divorce, custody or child support proceeding would be wise to seek the guidance of an experienced divorce attorney. The possible consequences for a finding of contempt are too serious to go it alone unless this is absolutely the only option.

Collins & Collins, P.C.
Albuquerque Attorneys

A significant source of contention issue in many divorces is the valuing and allocating, or selling, the marital home. For most couples in New Mexico, and around the country, the residence is the most objectively valuable asset shared by the parties and, at times, it is the only source of possible revenue available to pay community debts.

Though it seems it should be easy, valuing the family home rarely is. A house isn't just a place where people live; it's a home, a symbol of security and comfort. Because buying a house is a major investment of financial resources, a house can also represent years of hard work that the parties put into buying, improving and maintaining it.

Given the potential monetary value of the residence, and the emotional attachment many people feel to their home, much of the stress and frustration in a divorce centers on allocation, or sale, of the residence. In turn, one of the biggest problems presented by the residence is the difficulty in assessing its value.

Contrary to what many people in the real estate business may tell you, property appraisal is not an exact science, or even an objective process. Licensed appraisers may compare the residence to other properties in the area with similar features in order to assess a market comparison. However, this may be difficult in areas without any comparable properties, or when the real estate market is depressed and there aren't very many homes selling.

Sometimes, there might be huge differences in appraised values based on which comparable properties an appraiser chooses to review and how an appraiser views the attributes of the residence. Then, even if the parties do agree on the value provided by an appraiser, that value is only a hypothetical estimate of how much the residence is worth from which an asking price can be determined.

The only true way to know the value of a house is to sell it. Again, this is easier said than done. One or both of the parties may want the home. If the parties refuse to sell the house, settling on a value can be can be a point of contention resolved only after lengthy litigation ultimately ending at trial.

To make things worse, given the recent drop in home prices across the country, a house is not necessarily an investment or a valuable asset, but rather a major economic burden. In many cases, parties owe more money to the lender that holds the mortgage on the residence than the residence is actually worth.

In these situations, if parties can't arrange a short sale, or some other remedy with their lender, they may face foreclosure and then what was once thought of as a community asset becomes a cumbersome community debt. This leads to potentially very hostile litigation for the determination of who will take the debt or how it will otherwise be divided.

And, all the talk of valuation above doesn't even address the issue of who will pay the cost of insurance, utilities and maintenance of the residence while the divorce is pending, not to mention who gets to actually live there. These issues can be very difficult to resolve in a contested divorce.

Of course, most of these issues can be resolved rationally if the parties are willing to do so. Unfortunately, one or both of the parties often cannot or will not behave rationally. This can lead to unnecessary and costly litigation. In cases where the parties are already in financial distress, the added burden of attorney fees can make a bad financial situation much worse. It is highly advisable for the parties to consult with an experienced divorce attorney early in the process so unnecessary conflict can be avoided to the degree possible.

Collins & Collins, P.C.
Albuquerque Attorneys

As with most legal disputes, a divorce in New Mexico can involve a lot of paperwork. Many of these must be filed with the court to have legal effect. Documents that are filed with the Court asking for various types of relief are typically called pleadings and the instructions from the Judge are called orders.

One of the most important pleadings to be filed in a divorce is called a Marital Settlement Agreement, often called an MSA for short. An MSA is an agreement between the parties to a divorce in which they identify their separate and community property and debts and agree who is going to keep what property and be responsible for what debts.

Not every divorce case will require an MSA. For instance, cases that never settle and require full blown trials will result in an order dividing property and debt from the court. But trials are fairly rare in divorce cases so the vast majority of New Mexico divorce cases will be resolved, at least in part, by an MSA.

As implied by the use of the word Agreement in its title, an MSA is a contract between the divorcing parties and is as binding and enforceable as any other contract. However, unlike other types of contracts, an MSA is often entered as an order of the Court when it is merged with the Court's order finalizing a divorce. This final order is typically called a Final Decree of Dissolution of Marriage, or just a Final Decree.

This merger means that the MSA is no longer just a contract between the parties, but is a judgment of the district court, which means violations may be punishable by finding of contempt and that amounts to be paid between the parties may be subject to collection just like any other debt. What is important to remember when negotiating an MSA is that, because MSAs are contracts and orders of the Court, they are very difficult to change after they have been entered and approved by the Court, unless both parties agree to modification.

The New Mexico Court of Appeals recently addressed the issue of modification of an MSA that had been merged with a Final Decree in the case of Gordon v. Gordon, et. al. 2011-NMCA-044. In the Gordon case, the parties entered into an MSA, which was merged with a Final Decree and approved by the Court. Creditors of the parties then intervened in the case in an attempt to collect debts owed by the divorcing parties. In response to that collection attempt, the parties argued that certain assets addressed by the MSA were exempt from collection based on the statute governing the collection of debts.

The District Court agreed with the parties and concluded that the creditors could not collect the debts. The Court of Appeals found that by finding the debts to be exempt, the District Court had effectively modified the Final Decree and held that such modification is allowed within 30 day of entry of a Final Decree. The Court held that, after the 30 day period for reconsideration has lapsed, a Final Decree, and the MSA incorporated therein, can only be modified under the specific circumstances allowed by New Mexico Rule of Civil Procedure 1-060 (B). Rule 60 modification is narrow and limited to things like fraud or misrepresentation by a party or a mistake made by the parties.

One of the primary lessons to learn from the Gordon case is that the Courts have limited ability to modify Marital Settlement Agreements once they have been merged with a Final Decree. It is extremely important for a parties to a divorce action to consult an experienced divorce attorney before entering into an MSA in order to ensure that they fully understand their rights and responsibilities under that agreement, because if will be very difficult for an MSA to be changed if one party changes their mind.

Collins & Collins, P.C.
Albuquerque Attorneys

Every divorce, legal separation or child custody dispute is difficult for everyone involved, both emotionally and financially. Unfortunately, when a party dies during the pendency of such an action, things can get even more difficult.

Section 40-4-20 (B) of the New Mexico Domestic Affairs statutes provides that if a party to a family law matter dies while the action is pending, but prior to the Court entering a final order, then the Court shall proceed with the action as if the deceased party is still alive. The Court will appoint a personal representative to continue to represent the deceased person's interest in the family law action.

The policy enacted by Section 40-4-20 (B) may be surprising to many people because by enacting that statute the legislature departed from the long-standing common law rule that this type of family law action ended upon the death of a party. However, the fact that the relevant statute provides that a family law action shall continue,does not mean that such an action cannot be dismissed after the death of a party.

The New Mexico Court of Appeals addressed this issue in the recent case of Trinosky v. Johnstone, 2011-NMCA-045. In Trinosky, wife filed a petition for legal separation and husband filed an answer and both parties proceeded with discovery. However, prior to a final order being entered by the Court, the husband died. After the husband's death, wife filed a motion to voluntarily dismiss her petition to which the personal representative of husband's estate objected based on Section 40-4-20 (B). The Court of Appeals ruled that wife's voluntary motion to dismiss would have been a valid way to end the legal separation action if husband had been alive and, therefore, was not precluded by Section 40-4-20 (B).

The Trinosky case involves some very specific procedural rules that will not be applicable to every case in which a party dies. What is important to take away from that case is that it reinforces New Mexico's policy that a family law action may continue until a final order is entered even after the death of a party. However, Section 40-4-20 (B) does not completely prevent the dismissal of such an action upon death of a party if another procedural basis for dismissal applies.

Now, as if this discussion was not complicated enough, also keep in mind that Section 40-4-20 (B) may not apply in the same manner to an ongoing child custody dispute after the court has entered a final decree of divorce, or adjudication of paternity, that includes a parenting plan or other custody order.

In sum, if you are a loved one is involved in a family law matter and a party dies, or their death is anticipated, it is very important to consult an experienced divorce and family law attorney. There have been major changes in the New Mexico law in this area in recent years and experienced legal counsel can advise you as to the best way to proceed when an already stressful family law case gets even more stressful upon the death of a party.

Collins & Collins, P.C.
Albuquerque Attorneys

While the state of New Mexico considers it in the best interest of children to be raised by their parents, a kinship guardianship can be granted to caregivers if parents are unwilling, or unable to give a child the proper supervision, care and guidance needed. A kinship caregiver can be a family member, or other person, who has formed a bond with the child and who is willing, and able to care for the child.

The Kinship Guardianship Act creates a legal process that temporarily suspends parental rights and essentially transfers these rights and responsibilities to the kinship caregiver. Because of the serious nature of this process, some parents may not agree to the appointment of a kinship guardian. If the parents do not consent, a kinship guardian must prove to the Court that the child has been living with the kinship caregiver for at least 90 days, that the parents are unwilling or unfit to care for the child or that some other extraordinary circumstances exist such that appointment of a kinship guardian is in the child's best interest.

This type of guardianship is not appropriate in child custody disputes between parents. A New Mexico Court of Appeals case further clarified the role of the Kinship Guardianship Act ("the Act") with respect to parental rights in Freedom C. v. Julie Ann D., et al. In that case, the father of the child appealed the district court's decision to grant the child's grandparents kinship guardianship. While the child's mother had agreed to the guardianship, he claimed that he never gave his consent, and that he was very much involved in the life of his child.

He also claimed that the 90-day residency provision of the Act was not met because the child still resided with the mother, as well as with the grandparents. The Act applies when the child is living away from both parents. The father argued that the mother and grandparents were using the Act to create an environment that allowed the mother to more successfully fulfill her parental role, while depriving the father of custody and parental rights.

The Appeals Court agreed with the father and found that the Act requires that both parents consent to the appointment of a kinship guardian, or be given a meaningful opportunity to do so. Further, the Court stated that kinship guardianship could not be used to allow one parent to unfairly exclude the other parent from the child's life, particularly where one parent still resides in the home with the child.

Custody disputes can be difficult. The Kinship Guardianship Act is not appropriate for the resolution of contested child custody. It is particularly unsuitable in situations where one parent is still residing with the child, or where one parent is attempting to limit the rights of the other parent.

If you are facing a difficult child custody situation, contact an experienced family law attorney to discuss your options. Applying the proper legal remedies can save both time and money, while protecting the best interest of the child.

Collins & Collins, P.C.
Albuquerque Attorneys