Albuquerque Divorce Lawyer Blog

Divorce involves many adjustments and changes, including the separation of family members into separate homes, the division of property and the observance of child custody schedules. These disruptions can have profound and long-term effects on children. Many the negative consequences have long been established. One change that has only recently been noted involves the possibility of decreased math performance for kids involved in divorce.

A new study revealed that divorce may have negative effects on children's math scores. Hyun Sik Kim, a Ph.D. candidate in sociology at the University of Wisconsin-Madison used information collected from the Early Childhood Longitudinal Study, which consisted of 3,500 U.S. children entering kindergarten in 1998 through their 5th grade year. The study allowed Kim to monitor families throughout the divorce process.

The negative effect on math scores cannot be easily explained; however, it may be that the skills required for mathematics are more sensitive to external factors, such as divorce. Math involves more mental agility and concentration than other areas of study. If a child is dealing with anxiety or other negative emotions, there may be more difficulty in dealing with the complexity of mathematical equations.

Interestingly, math difficulties did not appear to surface during the time preceding the divorce, but only after parents were in the midst of the divorce process. Experts believe that this is an indication that pre-divorce conflict may not have as much do with poor performance as the sense of change and loss experienced by children in a divorce.

Unfortunately, there is no evidence that children suffering from a math setback associated with divorce ever catch back up to their peers, yet experts agree that more long-term studies are needed. And the news is not all bad, as there was no measurable drop in reading scores among children of divorce. Experts believe this area of study may not call on the same mental skill set as mathematics. Reading requires more memorization and less building upon previously taught concepts.

Parents can attempt to minimize the effect of divorce on their children by responding early, remaining available and providing support. They can also try to keep transitions as smooth as possible and provide some security through predictable and stable routines. Most importantly, parents can alert teachers to the changes in their children's lives. Teachers can then remain mindful to observe declines in math performance and provide added support when necessary.

If you are facing a divorce with children, the guidance of an experienced family law attorney can be invaluable in identifying the many options for minimizing the negative impact of the process on the children. Changes and stress may be inevitable in a divorce, but poor math performance need not be if parents are aware and sensitive to the issues. After all, the standard in New Mexico for child custody and time-sharing is the "best interests of the child" and failures in math hardly achieve this goal.

Collins & Collins, P.C.
Albuquerque Attorneys

For many working families, retirement savings can be one of the biggest assets in a marriage, which makes them a very important issue to be addressed during a divorce. Given that New Mexico is a community property state, each spouse is entitled to one-half (1/2) of the retirement earned or contributed to during the marriage.

There are a variety of different types of retirement plans, including pension plans, 401(k) accounts and IRAs. Each can give rise to its own set of issues. Here are some common issues that arise when dividing retirement accounts during a divorce:

1. Loans Against Plans
Sometimes, employers have plans in place where employees can take out loans against contributions they've made to these plans. This is a secured liability that can reduce the value of your assets (and consequently, reduce the value of the marital estate). Such loans not only reduce the value of the plan, but some plans will not let the account be divided or liquidated until the loan has been satisfied.

2. Timing
The time when a spouse obtained a retirement account, and when contributions were made to the plan, are important in determining how much of a retirement account is community property to be divided during a divorce. For instance, any retirement contributions made to a pension plan before the parties married is not considered community property in New Mexico and should be left out of the community property division. Tracking down all deposits and account earnings by time period can be a complex process. You might need the help of experts who can make these calculations for you. However, when it comes to pension amounts, there is a simple formula: Months of Marriage divided by Months of Employment x Pension Amount = Community Portion

3. Vesting
The vesting period is the period of time that an employee must stay in their position at work before they become entitled to the benefits of the company pension plan. The Employment Retirement Income Security Act of 1974 (ERISA) shortened the vesting period time for defined benefit plans in order to ensure that employers did not get unjustly enriched as a result of the rapidly mobile workforce. When valuating community property for purposes of a divorce, there can be a question of whether the pension benefits that accrued before the vesting period should be included in the marital estate.

4. QDRO
Once the parties have agreed how the retirement plans will be divided, most plans require the Court to enter a Qualified Domestic Relations Order (called a QDRO for short) which orders the company servicing the retirement plan to divide the asset. QDROs can be complicated documents because they must include instructions based on the parties' divorce settlement as well as the internal requirements of the company servicing the retirement plan and ERISA regulations.

Given the intricacies involved in valuing and distributing retirement plans in a divorce, it is extremely important to consult a divorce attorney in order to ensure that the account is properly divided.

Collins & Collins, P.C.
Albuquerque Attorneys

As a community property state, one of the primary issues in any divorce proceeding in New Mexico is valuing the assets and debt accrued by the parties during the marriage so that all of the community property and debt can be equitably divided. After the parties have fully disclosed and identified all assets and debts, and put preliminary values on those items in order to determine whether further valuation is necessary, there are several additional steps for a fair valuation and allocation of the community property and debt.

First, the parties must identify separate property and debt. This separate property and debt should be clearly identified and separated out of the community estate. Once the parties have identified and allocated the separate property and debt of each party, they must determine the value of the remaining assets and liabilities.

Valuation is the process by which the marital estate is boiled down to economic fact--it serves as a safeguard against material misstatements of value and provides the information necessary to facilitate settlement, or establishes the values that will be used at trial if parties cannot settle. The valuation itself, even under the best of circumstances, can be complex and contentious.

There are a variety of valuation methods available and many times the parties will disagree not only on values but on the methods of valuation. Parties will save themselves money and time if they can agree on values, or at least valuation method prior to settlement or trial. Often the parties can agree informally on a value, however, the more complicated the marital estate, the more likely it is that the parties will want to use more formal valuation methods.

Here is an example: in the process of valuing a house, there is a progression through stages from the least credible to the most credible.

• Least credible: The parties' individual representations regarding what they think the house is worth.
• More credible: A market analysis, conducted by a realtor or other person who has expertise in real estate, places a value on the house. The key here is for the parties to agree on the third party realtor. Without an agreement, this simply cements the foundation or future disputes over value.
• More credible: A formal appraisal, done by someone who is trained in real estate appraisal and who has been hired by the parties. It is not uncommon for the parties to seek separate independent appraisals when headed to trial. This approach can be very expensive.
• Most credible: Sale of the house on the open market. This is the most reliable way of valuating the house, for marital estate division purposes. It is often also the most emotional.

Any party to a divorce should consult with an experienced family law attorney in order to determine what sorts of valuation methods are appropriate for their case. The higher the level of credibility the evidence is, the more likely it is that the court will accept the value presented

The process of preparing a summary of the marital estate is an important piece of the puzzle in completing a divorce. It is important to keep in mind that it is ultimately up to the parties to agree on the value. Naturally, there will be some difference of opinion. It is when this difference of opinion is not based in economic reality that the process can get highly contentious, stressful and expensive. This is typically the path you would want to avoid.

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Department of Children, Youth and Families ("CYFD") is charged with investigating and preventing abuse and neglect of children, as well as providing a variety of other services to New Mexican families. Unfortunately, allegations of abuse or neglect, whether true or not, commonly arise during a or other child custody dispute and CYFD may become involved in investigating those allegations.

Parties should never be deterred from contacting the proper authorities, including CYFD, if they suspect that their child, or any other child, is being abused or neglected. In fact, certain people, such as education and health professionals may be legally or ethically bound to report suspected abuse or neglect to CYFD. However, it is important to realize that such reporting has serious consequences. CYFD is authorized under the Children's Code to testify as to the contents of their investigation at any district court divorce or custody hearing, however, they are also authorized to bring specialized court actions against parents to remove a child from their parent's home, or in extreme cases, to terminate parental rights.

Further, once a complaint has been made to CYFD, their investigation may not be limited to just the party about whom the complaint is made. Not every complaint to CYFD results in a full-blown investigation and, in fact, many are deemed unsubstantiated and quickly closed. However, if CYFD determines that more investigation is necessary, the CYFD case worker is allowed to speak: directly with a child, with or without a parent present; with both parents; with any other family members; and, with any other people involved in a child's life, including teachers, doctors or even neighbors. And, the testimony of CYFD investigators and case workers is given great weight by the Courts because the great responsibility given to them by the Children's Code. Thus, in a "he said/she said" situation between CYFD and a parent, or other caregiver, the Court will often side with CYFD even when CYFD's testimony may be based on hearsay or other evidence that is normally admissible.

Therefore, anyone thinking about using an invalid CYFD complaint to gain the upper hand in a custody battle should think twice before doing so because if the complaint results in a full-blown investigation both parents may be subject to in-depth scrutiny of every aspect of their lives. Further, once CYFD makes recommendations, much of the decision-making regarding the child may be taken out of the parties' hand, resulting in a custody determination that neither party likes. On the other hand, anyone who is subject to a CYFD investigation should consult a family law attorney immediately in order to ensure that they properly comply with CYFD while also protecting their parental rights. CYFD involvement in a custody case can very quickly complicate the legal process and having counsel involved early on in that process may help to prevent some of those complications.

Collins & Collins, P.C.
Albuquerque Attorneys

New Mexico is a community property state, which means that upon divorce both parties are responsible for payment of one-half of the debts incurred during the marriage and are entitled to one-half of the property purchased or received during the marriage.

Thus, a key component to reaching a marital settlement agreement is valuing the marital estate, which consists of all assets (what is owned) and liabilities (what is owed) of a married couple. The courts use this formula: Assets - Liabilities = Net Marital Estate. As simple as that sounds, there are a number of important steps that must be taken in order to insure the accurate valuation of the marital estate.

First, and perhaps foremost, there must be full disclosure of all assets and liabilities. There are several ways to obtain complete disclosure. Initially, the parties would be wise to begin collecting information informally. This will help the attorneys narrow the scope of discovery. It will also point to possible problems and challenges to be expected in the formal discovery process. Anticipating and avoiding these problems where possible will hold down attorney time and fees.

Even beyond the initial informal collection phase, there are opportunities for cooperation. The formal process will begin with a Request for Discovery. Often times, this is a cooperative process with mutual agreement of the parties. On other occasions, the discovery process can be very contentious involving significant attorney time and expense. In these cases, it may be necessary to get the Court to issue an Order compelling discovery through the filing and hearing on a Motion to Compel.

For purposes of discovery and disclosure, initial evaluations such as whether or not the estate is marital, who gets what, and how much the estate is worth are really immaterial. What really matters at the beginning of this process is that there is full and complete disclosure of all assets and liabilities, no matter what their source, value or classification. This is important because:

• In some localities, parties will be penalized for failing to completely disclose all assets and liabilities. For example, if any hidden assets are discovered after the divorce, those assets might be given, in their entirety, to the other party.
• Each party needs to establish credibility and trust with the other party. This will facilitate negotiated settlement. However, if one party finds out later on that the other party hid or failed to disclose assets during the divorce proceeding, the chances of reaching a peaceful resolution will be greatly diminished.
• Of equal concern to most parties, a highly contested discovery process can result in significant unnecessary attorney fees.

As with most issues in divorce, discovery issues should be addressed in a civil and cooperative manner. This will reduce the stress and costs of the divorce. Unfortunately, discovery conflict cannot always be avoided but it can often be minimized. Due to the complexities of discovery and the valuation of the marital estate, it is generally advisable to work an experienced divorce and family law attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

The option for divorce is an adult right. Certain situations make continuing a relationship difficult, even impossible, particularly when differences appear irreconcilable. In fact, a divorce decree may usher in a period of relief and freedom for the adults involved; however, research shows these same positive effects may not transfer to the children involved. In fact, according to a longitudinal study of children of divorce over a span of twenty-five years, there are certain consequences that children may suffer long into adulthood after witnessing/enduring the divorce of their parents.

The children chosen for this study were considered to have achieved proper developmental and academic levels, and never received prior counseling for emotional problems. Children of poverty and ethnicity were not involved, thus the sample group consisted predominantly of middle-class, Caucasian children. Those constructing the study thought this group would present a look at divorce under the best possible conditions.

At the 25-year-mark, 73% of the original sample was interviewed, along with a similar group of people who had grown up within families who remained intact.

The study revealed that children of divorce, no matter the circumstances, may not be as resilient as once thought. Thus, the study recharted the impact divorce has on children as more of a life-transforming event that may stick with certain individuals indefinitely, than merely something that someone recovers from and moves on.

The findings for the impact on children are not surprising and have long been recognized. The adverse consequences to children include:

1. higher anxiety levels;
2. poorer views on the reliability of relationships;
3. more behavioral problems than their peers;
4. more difficulty in social situations;
5. less opportunity for higher education than their peers; and
6. earlier drug and alcohol use.

The long term consequences are equally concerning. Some of the findings in adult children twenty-five years later included:

1. intrusive negative memories and a sense of foreboding;
2. heightened fears of failure;
3. poorer conflict resolution skills.
4. more difficulty in decision making;
5. less likely to marry, and if married, less satisfied with their marriage and a higher chance of divorce; and
6. less likely to have children.

At the core of the difficulties for adult children of divorce are a loss of hope, a lack of positive images regarding marital partnerships, as well as difficulty in choosing their own partners and establishing healthy marital relationships.

So, what can be done to minimize the effects of divorce on children? The study suggests that giving kids an opportunity to truly voice their feelings and concerns through "expressive therapy" may help. This could be done in either individual or group settings, where the kids are taught how to deal candidly with tough issues such as love and trust.

It is also advised that therapists address abandonment issues immediately, so that participants don't flee the therapy relationship before progress can be made. Another suggestion involved parents having an open discussion with children, in an age appropriate sense, regarding the reasons for the divorce. It was discovered that many children felt an overwhelming sense of foreboding due to a lack of understanding. Lastly, counseling with both parents and children could explore the mistakes that had been made in the marital relationship, so that a child can learn conflict management and resolution skills.

Put most simply, it is recommended that parents reassure their children that once grown, they are capable of having lasting, healthy relationships of their own. The hope is to view divorce less as inevitable and more as a result of preventable human mistakes.

If you're going through a divorce, it is important to remain mindful of both short-term and long-term consequences children may suffer. Equally important is to be aware of some remedies that can offer both you and your child a brighter, more confident future. To guide you throughout the divorce process, contact an experienced family law attorney that can help you implement a plan to take both the consequences and remedies into account.

Collins & Collins, P.C.
Albuquerque Attorneys