Albuquerque Divorce Lawyer Blog

Going through a divorce can be an incredibly difficult experience. Not only are parties mourning the end of a relationship, they are typically dealing with feelings of anger and resentment toward the other person and each blaming the other for what went wrong. Add in the financial strain that comes from dividing debts and assets, along with trying to work out custody and timesharing arrangements, and it is clear why studies typically rank the stress level of a divorce just below the stress involved with losing a loved one. Given the difficulty associated with a divorce, it is often hard for parties to ever see the light at the end of the tunnel.

However, sooner or later (hopefully sooner, but that depends on how reasonable the parties are willing to be in dealing with each other) the divorce will be done. And, once that divorce is complete, each of the parties has a chance at a new beginning in life. This obviously includes the chance to pursue new romantic relationships, but can mean much more than that. In the case of a divorce with children, if the parties can manage to stay civil and work together to make the split as easy as possible on the children then the divorce can actually be good for the children. Living in a home where parents are constantly fighting or that is filled with tension can cause a host of emotional problems for children. Removing that tension by splitting up can often be a relief for children and parents alike and can enable each parent to develop a positive relationship with their children away from the negative relationship with the other parent. In turn, once the stress of living and trying to raise a family together is removed by the divorce, sometimes the parties themselves are able to remember why they became a couple in the first place and actually become friends. Or, if not friends, hopefully that can remain civil toward each other when they attend their children's school events.

After the initial financial shock caused when a community is divided, there can be a sense of freedom that comes with no longer having to make joint financial decisions. Or, sometimes more importantly, no longer being jointly responsible for another person's poor financial choices. For a party who gave up career opportunities to stay home with children, transitional or rehabilitative spousal support can provide the financial means to go back to school or get the specialized training for the job they always wanted. On the other hand, for a party who was the sole breadwinner for the family, the divorce may release the stress that comes with having to always work hard enough to provide for everyone else.

Of course, divorce is hard and can have long-term effects on everyone involved. But, trying to keep a positive outlook and cooperative attitude during the divorce process can not only increase a party's emotional well-being, but it can actually make the process itself go more smoothly. An experienced family law attorney should be able to help their client make smart legal decisions in their divorce and help them keep a positive outlook.

Collins & Collins, P.C.
Albuquerque Attorneys

Almost any time a relationship ends there is some level of conflict, even when the decision is mutual. Sometimes people can break up and go their separate ways fairly simply, however, when the break up necessitates a divorce and/or child custody action things can get complicated. The fact that New Mexico is a no fault divorce state helps to reduce conflict to some extent. But conflict can still arise with the parties themselves having the most control over the level of conflict in a divorce or custody action.

Many parties, especially parties that are particularly angry at their former partner, may insist that they don't care whether or not the conflict level in a case is high, instead they just want to "win" or hurt the other person. However, given that New Mexico's community property laws favor equitable division of assets and debts and that the New Mexico laws favor joint custody, there really aren't winners and losers in family law.

Therefore, increasing conflict or refusing to be reasonable is unlikely to result in the unreasonable party receiving more property or increased custody. What increasing conflict will do is substantially increase the cost of a divorce or custody case. Most family law attorneys charge by the hour for their services. Thus, the more time an attorney has to spend drafting pleadings, communicating with opposing counsel and attending hearings, the more expensive their bill will be. Further, the more hearings, depositions and meetings the parties have to attend, the more time and money is lost when they have to miss work and arrange for child care. Additionally, there can be a serious emotional cost to a high-conflict divorce or custody dispute that is hard to quantify and that emotional cost can often extend beyond the parties to their children and other family members.

Of course, it is a rare case when parties who are separating, or may have been separated for several months or years, can agree on everything. (If they got along that well, they would probably not be breaking up in the first place). What parties can do is sit down with their attorney, or another impartial party, and think about the issues in their divorce or custody battle that really matter the most to them. For example, is a party really that attached to the marital residence, or would they be willing to move out in exchange for a 401(k) distribution that they could use to buy a new house? Does a party really think it in their children's best interest to only see the other parent every other weekend, or are they just trying to hurt the other parent?

Only the parties themselves can answer these questions and reducing conflict may not always be possible, especially if one side simply refuses to compromise. However, any reduction, even if it is only an agreement on a few issues, will help limit both the financial and emotional toll on the parties, and allow them to move on. Hiring an experienced family law attorney can help parties determine which issues are worth holding on to and where compromise may be in their best interest.

Collins & Collins, P.C.
Albuquerque Attorneys

New Mexico does not recognize common law marriage, even if you and your partner have lived together for years and for all intents and purposes act as a married couple in New Mexico.

However, approximately sixteen states still recognize common law marriage for couples who have lived together for a significant period of time and hold themselves out to the world as a married couple. Some states are phasing out common law marriage and have enacted rules that only recognize such marriages if they occurred before a specific date.

If you moved to New Mexico from a state that recognizes common law marriage, and you are deemed to have been married under the laws of that state, New Mexico courts may recognize your marriage as a valid one. This happens because under our federal Constitution, each state gives full faith and credit to the laws of their sister states.

However, you would have to prove that you were legally married in the other state before you could have this recognition in New Mexico. This could be an expensive and difficult exercise in the court system. On the other hand, there are many considerations, particularly financial issues, that dictate this path. You should discuss the pros and cons of this kind of case with an experienced family law attorney and probably your accountant before you go down that road.

There are numerous financial issues that should be considered. One reason to consider pursuing this kind of case would be at the end of the relationship if you need and would qualify for spousal support. Spousal support is only available to couples who have been married. Another scenario where it makes sense is when one partner dies without a will and the other would be disinherited unless they were deemed to be a legal spouse. Likewise, there may be estate tax considerations upon the death of a partner. Finally, in case of a legal marriage, the division of property and debt will be governed in most cases by community property principles.

In short, common law marriage is generally not recognized. However, under full faith and credit provisions of the U.S. Constitution, it must be recognized under certain circumstances. The burden is on the couple or party seeking recognition of the marriage and this can be a difficult task.

Collins & Collins, P.C.
Albuquerque Attorneys

Individuals contemplating divorce often, and rightfully, are concerned about the status of their health insurance. Health insurance is frequently carried by one or the other spouses through their employment. The question that most frequently arises is whether one spouse can cancel the other from their employer based health insurance upon filing of divorce.

The answer is probably not, at least not without violating a court order. Insurance policies are generally covered by a Temporary Domestic Order issued by the Court when you file for divorce. This "TDO" forbids the parties from canceling each other's insurance. In Bernalillo County, for example, the form TDO instructs the parties to "not drop or cancel any insurance policy, . . . including medical or dental or life insurance." These orders may vary from county to county, but the general intent of them is to preserve the status quo while a divorce action is pending.

This does not mean that you can wait until your divorce is final to make arrangements for insurance following divorce, especially if you have a pre-existing condition that may impair your ability to obtain your own coverage. In fact, this is a very important consideration from the beginning of your journey through the divorce process.

If you are employed, first check with your employer to see whether it offers insurance and whether you qualify for the plan. You may need to work a certain threshold of hours per week to qualify for an employer plan. If you qualify, find out what the premiums are and what sort of coverage is offered. Most plans allow you to join upon certain major life changes, which usually include divorce, so you may not have to wait until a new plan year begins to obtain coverage.

If you don't have employer insurance available, you should apply for coverage with several insurers simultaneously to see whether you qualify for an individual policy. This is something to discuss with your attorney at the beginning of your case. If you are rejected, there are other possible options such as the New Mexico High Risk Insurance Pool and its federal counterpart. Some of the high risk insurance pool options will even cover pre-existing conditions if you satisfy strict plan requirements, so you definitely should not delay in consulting with representatives of these plans. There are also premium reduction opportunities for low income individuals.

Keep in mind that the Temporary Domestic Order is binding on the parties only through the finalization of the divorce. After that, not only may one party cancel the other from his or her insurance, it may not be possible to keep the ex spouse on the plan even if desired by both. This is in fact the most persuasive argument for a legal separation in lieu of divorce.

Health insurance is a major concern for divorcing individuals. The issue should be addressed very early since it may influence the course of the divorce, the marital settlement agreement, alimony issues and even weigh against filing for divorce at all.

Collins & Collins, P.C.
Albuquerque Attorneys

It is not often that the United States Supreme Court hears a family law case, so the Court's June, 2011, ruling in Turner v. Rogers has made a big impact and that impact can definitely be felt by family law practitioners in New Mexico.

The Turner case involved a father in South Carolina who was held in contempt and jailed for failure to pay child support. The opinion includes a long discussion of the right to counsel and what procedural safeguards are necessary to prevent an unconstitutional deprivation of liberty when parties to a civil proceeding face incarceration. The initial holding is that parties to a civil proceeding, even when that civil proceeding can result in jail time, do not have right to counsel under the Sixth Amendment.

However, the Court went on to hold that a contempt proceeding for failure to pay child support must provide some protection of the delinquent parent's due process rights. The safeguards include: 1) notice to the delinquent parent that his or her ability to pay is critical issue in the contempt proceeding; 2) the use of a form or some standardized procedure to gather the delinquent party's financial information; 3) a hearing at which the delinquent parent is allowed to present evidence as to his or her financial status; and 4) a specific finding by the court that the delinquent parent has the ability to pay.

Given this new ruling, the judges in the Second Judicial District for Bernalillo County, New Mexico, which encompasses much of the Albuquerque area, have recognized that the ability to pay is the key issue in contempt proceedings for failure to pay child support. Thus, they are now requiring attorneys who file motions for orders to show cause (which include a request that the responding party be held in contempt) to provide a responding party with a form designed to elicit their financial information.

In addition, the Court has will also ensure that a hearing will be held on all such contempt motions at which the allegedly delinquent parent be allowed to give statements and answer questions about his or her financial situation. And, finally, they are requiring an express finding that an allegedly delinquent parent has the ability to pay the support ordered before holding him or her in contempt.

Now, as is often true, the Turner case may create more questions than it answers. For instance, it specifically does not apply to cases wherein the state may be owed money because it has been making welfare or TANF payments on behalf of a child not being supported by the delinquent parent. This leads to the question of how the Turner ruling will affect cases when the Child Support Enforcement Division is involved and whether, ultimately, there may be additional procedural safeguards in those situations. For now, it suffices to say that Turner has changed the way courts around the country, including New Mexico, address the payment of child support.

Collins & Collins, P.C.
Albuquerque Attorneys

With respect to child support, the rule in New Mexico is that both parents have a duty to support their children. The amount of the monthly child support is determined by the New Mexico Child Support Guidelines, which are meant to be uniformly enforced across the state, so the support should be the same whether you live in Albuquerque or Las Cruces. The amount of support is also the same whether it is awarded as part of a divorce or a paternity action and continues until a child turns eighteen, or until the age of nineteen if the child is still in high school. Unfortunately, given the current state of the economy, many parents are finding themselves unable to pay their court-ordered child support.

While the Courts understand that many parents have lost jobs during the past few years, the New Mexico Courts take parents' responsibility to support their children very seriously. This means that even if a parent has a reason for not paying child support, there can be severe punishment when they don't. If the Child Support Enforcement Division (CSED) is involved in a case, they have the ability to revoke a parent's driver's license or professional license if that parent doesn't pay support. CSED can also prevent a delinquent parent from getting a passport and can freeze their bank accounts and garnish their wages. In addition to the punishment delivered by CSED, the Courts can also hold a parent in contempt of court for failing to pay child support. Being found in contempt can be result in jail time and/or monetary sanctions. However, a recent United States Supreme Court case added some requirements to the contempt process that provides some relief for parents who are unable to pay support.

In Turner v. Rogers, a father was held in contempt for failure to pay close to six thousand dollars in court-ordered child support. After a hearing at which the father admitted that he hadn't paid the child support, he was held in contempt and sentenced to one year in jail. The Supreme Court held that parties generally can be held in contempt, and jailed, as part of a civil proceeding and that they are not entitled to counsel as part of such proceedings. However, that contempt proceeding must have other procedural safeguards in place that protect the delinquent parent's right to due process under the Fourteenth Amendment to the United States Constitution. One of the primary safeguards ordered by the Supreme Court was that a finding of contempt in the child support context requires an express finding that the delinquent parent has the ability to pay the child support. Thus, in a child support proceeding, a parent who is delinquent on his or her child support obligation cannot be held in contempt if that parent clearly establishes that they do not have the ability to pay the court-ordered support.

Of course, the ruling in Turner doesn't mean that parents will not be required to pay child support just because they show the Court that they don't have the ability to pay. The Courts will still have the power to impute income to unemployed, or under-employed, parents if the circumstances are right. And even if a parent is not held in contempt for failure to pay support, they will likely continue to accrue arrearages, or back support, that will need to be paid at some point. But the new ruling certainly provides additional protections for parents who are delinquent on child support obligations, especially those who are victims of the recent economic crises.

Though the Turner case provides some protection to delinquent parents, the consequences of non-payment of child support can still be quite harsh. The fact is that a delinquent parent can be held in contempt if the court finds the parent has the ability to pay and has not. Attending one of these hearing unprepared is highly inadvisable. Anyone faced with a child support delinquency, whether they owe support or the support is owed to them, should consult a family law attorney as soon as possible so that they can understand their rights and responsibilities under all of the applicable laws, including the ruling in Turner.

Collins & Collins, P.C.
Albuquerque Attorneys

There are many changes that result in the lives of individuals after divorce. One of the more obvious is the transition to a one-income household. The financial hardship that can occur may have some surprising consequences, particularly for the children involved.

The National Center for Children in Poverty (NCCP) defines poverty as the inability "to achieve the minimum decent standard of living" that permits a person to fully participate in mainstream society. Nationally, 42% of children in general live below the poverty level. In New Mexico, this figure is 52% according to the NCCP. These statistics include all children, regardless of whether or not they have been affected by divorce.

Yet, children of divorce have been specifically identified as a group more likely to live below the poverty level, according to a recent study released by the U.S. Census Bureau. In New Mexico, 53% of children living in poverty reside with just one parent.

Data shows that women head up most one parent homes. Further statistics reveal that women generally have less income earning potential. One possibility for this may be that prior to divorce, many women focus on raising children, rather than on developing job skills or furthering their education. Many times, divorced mothers just do not have the work experience or credentials needed to get good paying jobs.

Additionally, the continued care of children may prevent a divorced mother from accepting certain jobs. Jobs that require flexibility and travel are just not a possibility for women who have the sole responsibility of raising and supervising children. If child care is necessary, the expense can drain money away from other household necessities.

And, a divorced woman's support network may not be what it once was, as ties to in-laws or other family members and friends may have become strained due to the divorce. This can result in social isolation that keeps divorced mothers from being able to share burdens and responsibilities with others.

Not only are a child's basic material needs potentially compromised after divorce, but studies show that poverty can delay cognitive development and hamper a child's ability to learn. Worry over having one's basic needs met may impact the ability to focus and concentrate. Further, poverty can lead to emotional, behavioral and social problems among children of divorce.

Though the economic realities of divorce cannot be completely averted, there are ways to minimize the financial risks and strains of divorce. In addition to the terms of the divorce, marital settlement agreement and parenting plan which should be designed to insure the financial well-being of the children, there are also state resources available for high risk families and children.

If you are considering divorce, an experienced family law attorney can help to navigate the divorce process as well as the state programs available to avoid falling into a the downward spiral that poverty often brings with it, both for the parents and the children. In the event that you cannot afford an attorney which is very likely the case in these situations, there are a number of programs that provide free legal advice to low income, high risk families facing divorce.

Collins & Collins, P.C.
Albuquerque Attorneys