Albuquerque Divorce Lawyer Blog

As the song says, breaking up is hard to do and that adage is true in any situation. It can be even more difficult when the parties who are breaking up have children or own property together. The New Mexico statutes governing child custody and child support provide that the same rules apply to the children of married couples and unmarried couples. However, given that the state of New Mexico does not recognize common law marriage, dividing property and debt can be very difficult for unmarried couples.

With respect to custody, when an unmarried couple breaks up, one of the parties will generally need to file what is called a parentage action in order to formally adjudicate the maternity and paternity of the parties' child. The parentage action should result in the court entering a parenting plan that provides the details of custody, timesharing and child support. This sounds simple and it can be when the parties' break up is amicable, but, of course, there are countless complications that can arise when the parties dispute custody. One common complication arises when the parties who are breaking up are the biological parents of one child, but have also been raising a child from one party's previous relationship. In other words, when one of the parties has been essentially acting as a step-parent to a child, although the parties aren't married. Upon a break up, the non-biological parent may want to establish visitation with their de facto step child, but don't technically have any rights to visitation because they are not a parent. However, there is New Mexico case law protecting a right to visitation, not full custody, for parties that have developed a close relationship with a child as long as that visitation is in the child's best interest.

In turn, division of property and debts can be very difficult when parties aren't married. Because the rules of community property do not apply to unmarried couples, the property will generally be kept by the party whose name is on the property, even if both parties paid for the property. Similarly, in the case of debts, both parties may have contributed to incurring a debt (for example, both making charges on a credit card) but the debt will generally remain the responsibility of the person who name is associated with the loan or account. This division can get even more complicated when the parties have actually put both names on a piece of property or debt. If they can't agree on a division, they may have to file a separate civil suit using theories of contract or unjust enrichment. Further, if the parties aren't married, neither party is entitled to spousal support or alimony. So, while the same child support rules apply to unmarried couples, the additional financial support sometimes awarded in divorces does not apply to unmarried couples.

Again, ending a relationship is hard no matter the circumstances. However, when there are children or substantial assets and debts involved, consulting an experienced family law attorney can help protect the rights and enforce the responsibilities of the parties in a break up. This protection and enforcement is especially important when parties aren't married because the principles of community property do not apply.

Collins & Collins, P.C.
Albuquerque Attorneys

Every marriage presumably begins with a lifelong commitment. This commitment is symbolized by the wedding rings. Unfortunately, many marriages do not go the duration and the symbolism is quickly lost on the parties.

Instead, the wedding ring goes in the communal pot for division like all other property. And the question quickly arises as to who keeps the rings. In fact, one of the most contentious issues in the property division portion of a divorce can be what happens to the parties' wedding and engagement rings, not only because such jewelry often has a high monetary value but also because the rings may have great sentimental value.

The rings may symbolize the hope the parties felt at the beginning of a relationship and, even though the relationship is over, parties may not want to let go of that symbol. Quite frequently, the wedding and engagement rings are family heirlooms that the giving party wants to stay in their family after the relationship is over. Perhaps, most frequent and most cynical, the rings simply represent property value that needs to be divided according the community property laws of New Mexico.

Generally, the New Mexico Courts hold that wedding and engagement rings exchanged pursuant to a valid marriage become the separate property of the parties to whom they are given. In other words, the rings are gifts between the parties and do not have to be returned upon divorce. As such, the value of those rings will not be included in a property division. However, this is not always true. In particular, if the parties still owe a debt associated with the rings at issue, the party assuming that debt may get to keep the ring. Or, the court may order that the rings be sold to satisfy any associated debt.

The discussion above applies only to the return of rings upon divorce. The Courts may rule differently about the return of rings when parties are engaged but break up before they are married. The New Mexico Supreme Court addressed this issue in the 1994 case of Vigil v. Haber, which was a case in which an engaged couple went through a nasty break up prior to their wedding. Originally, Ms. Vigil returned her engagement ring to Mr. Haber, but then objected to that return and wanted the ring back.

As part of an associated domestic violence action, the court ordered that the Santa Fe police should hold the ring until the court determined who should keep it. The district court initially held that Ms. Vigil could keep the ring because, although she had cancelled the parties' wedding, she did so in response to misconduct by Mr. Haber. However, the reviewing court overturned that decision and adopted a new rule in New Mexico with respect to the return of engagement rings. That rule provides that fault (or who did what to whom to cause a break up) will not be considered in an engagement setting. Rather, engagement rings are gifts given on the condition and in contemplation of a marriage and, if that marriage does not happen, the condition of the gift is not satisfied and it must be returned.

Of course, these general rules about the return of wedding and engagement rings may not apply in the case when parties have a valid prenuptial or other agreement as to how gifts will be divided. In any event, parties should think carefully before exchanging expensive rings or family heirlooms. Consulting an experienced family law attorney can help both parties understand their rights and responsibilities the exchange, and possible return, of rings.

Collins & Collins, P.C.
Albuquerque Attorneys