Albuquerque Divorce Lawyer Blog

When a considering whether or not to get a divorce in New Mexico, most people are focused on the big issues, such as: child custody and time-sharing; determining who will keep the marital residence; and, dividing retirement accounts. In thinking about myriad of life changes they face upon completion of a divorce, a spouse's first thought may not be about changing their name.

A change of name is an important consideration because if parties forget to include language in their divorce documents allowing parties to change their names it can be difficult to go back and change their name later. In the past, the issue of name changes applied only to women wishing to return to their maiden names, but it could also apply to a man getting divorced if he took on his wife's surname or a hyphenated name when the parties got married.

A party's decision to change their name as part of a divorce is a personal choice that may depend on things like: the length of a marriage; wanting to keep the same surname as their children; and, a professional or political reputation that depends on recognition of the party based on their married name.

The court will not force a party to return their maiden, or previous name, even upon request of the opposing party. As such, one party as a point of pride, vindictiveness or any or other reason cannot force the change on the other. On the other hand, either party may elect to return to their former names and the other party cannot prevent it.

If a party to a divorce wants to return to their previous name, they will need to include language clearly identifying that change in the Final Decree of Dissolution of Marriage that completes their divorce. Once the Final Decree is signed by the Judge and entered by the Court it becomes a binding order and the party seeking to change their name can provide the Final Decree to all necessary parties.

For instance, government bodies like the Motor Vehicle Division, the Social Security Administration and the Internal Revenue Service will require the Final Decree in order to change their records and so will many banks and credit card companies. Given all of the formal documents and other paperwork that may need to be updated after a divorce, it becomes clear just how important it is to address a name change as part of that divorce action.

On a broader note, any New Mexico resident over the age of fourteen (14) can petition the district court in their area for a name change pursuant to the name change section of the domestic relations statutes. So if the name change does not take place upon dissolution of marriage, the parties may change names afterwards. However, that requires the opening a separate civil action, and payment of the associated filing fee, and publication of notice, which can be time consuming and costly.

Thus, it is much simpler to complete a divorce-related name change at the time of the divorce, but it is not impossible for a divorcing party to change their name later. The benefits and pitfalls of a name change are just one of the important topics that any party facing a divorce should discuss with an experienced family law attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

A person cannot be made a proper party to a divorce or family law case in New Mexico unless the New Mexico courts have jurisdiction over that party.

The issue of jurisdiction can be complicated and can vary depending on whether this case involves a divorce, custody or paternity. However, once jurisdiction is properly established, an out of state party can be faced with participating in family law litigation in New Mexico, which can be a very daunting task. Situations like these commonly arise when a divorce or custody action is started in New Mexico and then one party relocates, but the other party remains in New Mexico.

No matter the circumstances, if jurisdiction is properly established in New Mexico over an out-of-state party, he or she will not be excused from a court case merely because they do not reside in New Mexico. Any out-of-state party faced with this situation should seriously consider hiring an experienced family law attorney.

If the out-of-state party believes that New Mexico does not have jurisdiction, then their attorney can properly object to jurisdiction and have the court decide that issue prior to moving on to the substance of the case. Failure to properly limit a response disputing jurisdiction could itself lead to jurisdiction. The response should solely address jurisdiction o there is a risk that the judge will rule that the out-of-state party has submitted themselves to jurisdiction even though this was not the intention.

Once it has been determined that New Mexico has jurisdiction over an out-of-state party, that party soon find that litigating from out-of-state can be a very expensive and burdensome process when they consider the cost of travel and missed work for court appearance. To avoid these hardships, the parties may be able arrange for the out of state party to appear at some court hearings via telephone. However, most judges require that the party wishing to appear via telephone files a motion asking permission to do so.

A Motion for Telephonic Appearance must be filed well in advance of the subject hearing and may not always be granted. For instance, at a trial or other evidentiary hearing where extensive testimony or exhibits will be presented, the court may require that the out-of-state party travel to New Mexico to appear in person.

Although parties representing themselves can certainly figure out how to arrange for telephonic appearance, it is often much more efficient to work an attorney to make sure those appearances are approved. The cost of hiring an attorney is often well worth the costs when weighed against travel costs and lost income in the case where the party fails to follow court procedures and is forced to travel to New Mexico.

In addition to the telephonic appearance, one way to avoid hearing costs is to avoid unnecessary hearings. The attorney can play a very important role by working out many issues without a hearing, and by minimizing the number of hearings. This can include negotiating directly with the other party or their attorney, or finding a mediator that will allow the out-of-state party to participate in a mediation or settlement facilitation by phone. Hiring a family law attorney experienced in representing clients who reside outside of New Mexico can substantially improve an out-of-state party's chances of successful and cost effective family law litigation.

Collins & Collins, P.C.
Albuquerque Attorneys

Sadly, there are times in divorce or child custody cases when animosity arises not just between the parents themselves, but between one or both parents and their child. This can result in a severe breakdown in the parent-child relationship to the point where a child may want nothing more to do with a parent.

Of course, this sort of damage to the parent-child relationship can also occur in intact families and can be caused by a variety of factors, including: parental alienation; financial and emotional stress; physical and emotional abuse; drug and alcohol abuse; and/or seemingly no reason at all.

While the New Mexico Courts are committed to protecting the children of the state, the Courts also recognize that it is most often in a child's best interest for both parents to be involved in their life to some degree. Obviously, this is only true when a parent who has been abusive, or otherwise damaged the relationship with their child, demonstrates to the Court that he or she is committed to any changes necessary to making good parenting decisions.

No matter the cause of the damaged parent-child relationship, the Courts can get involved in these cases in a variety of ways. For instance, in a traditional divorce or custody setting, one parent may petition the Court to remove the child from the other parent's care and prevent contact between them based on the other parent's poor behavior. Given New Mexico's commitment to joint custody, the Courts will investigate such claims thoroughly and will remove a child only if it determines that further contact with the other parent is not in the child's best interest.

Other times these cases come before the Courts after the Department of Children Youth and Families ("CYFD") has received a complaint that a parent is abusing or neglecting a child and their investigation shows that such abuse or neglect has indeed taken place. In both instances, the Courts will give the parent who is prevented from contacting their child a chance to demonstrate that they are committed to changing the harmful behavior.

Typically that parent will need to regularly engage in individual therapy to address their anger or other issues. If drugs and alcohol are an issue, that parent may need to participate in treatment on an inpatient or outpatient basis. The court may also order parenting classes. In some cases, where there is a medical necessity, the court may order the parent to take medication as prescribed by a treating phsyicain or mental health professional.

Once a parent has completed the proper course of counseling, therapy and treatment, the Court may order that the parent participate in reunification therapy with the estranged child. The goal of reunification therapy is to mend the relationship between a parent and child, in other words to bring them back together or unify them.

The reunification process will generally move very slowly and will focus on rebuilding trust between the parent and child. Often, both parents will need to be involved in the therapy as it is very important for the child to see that the custodial parent is supportive of their new relationship with the other parent.

Damage to a parent-child relationship can be very serious and, unfortunately, is often permanent. When faced with such a situation, the Courts are forced to walk a fine line between protecting a child and facilitating reunification. Any party faced with this situation, whether as the custodial parent seeking to protect their child, or as the parent whose relationship is damaged, should contact an experienced family law attorney in order to protect their legal rights and those of their child.

Collins & Collins, P.C.
Albuquerque Attorneys

Parties to a divorce or family law proceeding often will try to tie child support to child custody and/or time-sharing. Parties will often use child support offensively to try to gain some advantage in the child custody or time-sharing.

In New Mexico, child support and time-sharing are determined based on independent factors. Custody and time-sharing are determined based on the best interest of the child. In turn, child support is determined by the parents' gross income, along with the cost of work-related child care and health insurance coverage for the child. Child support is affected by whether there is joint custody and where the non-custodial parent has more than 30% time-sharing. Other than that, the two are largely independent.

The issue comes up in a variety of situations. Among the most common is the parent that feels that because he or she does not have custody or the level of time-sharing that they desire that they should be relieved of child support. This is wishful thinking. In fact, even if there is no contact with the child at all whether by order of the court, denial of contact by the other parent or simple disinterest on the part of the non-custodial parent, child support is still owed in its entirely as calculated under the New Mexico Child Support guidelines.

Just as common is the situation where the parent entitled to child support will try to cut off contact with the parent for shortages or delinquencies in child support payments. This is also not allowed. A parent will not be denied time-sharing with the child for failure to pay support. On the other hand, there are numerous other unpleasant and costly consequences associated with the failure to pay support. The worst case is a finding of contempt for willful non-payment of child support which can lead to arrest and de facto denial of contact with the child, at least for the period of incarceration.

The less common, and perhaps the most surprising to the unsuspecting father, is the case where the father does not learn of the child until years after birth, sometimes many years. Though it does not occur often and depending on the age of the child, these fathers can be held responsible for child support back to the date of birth of the child despite the fact that the father was unaware of the child's existence and has gone on to build a family of his own. This can have financially devastating consequences, not to mention the emotional toll on the new family. However, the State of New Mexico's position is that the parents should pay for the support and maintenance of their children whatever the circumstances. Otherwise, as often happens, the costs falls upon the State.

In short, child support and child custody/time-sharing are essentially independent inquiries. One should not be used to manipulate the other. Nor can a parent avoid financial responsibility through non-contact with the child, even when the lack of contact is no fault of his or her own. If you are faced with a situation like this, chances are you have a bit of mess on your hands. These things can be quite complicated and difficult to straighten out. It would be wise to seek the guidance of an experienced divorce and family law attorney.

Collins & Collins, P.C.
Albuquerque Attorneys