Albuquerque Divorce Lawyer Blog

Appearing in Court for any reason, whether as a party to a case or as a witness or both, can be a great source of anxiety for anyone. That anxiety is often magnified in a family law case because emotions tend to run high when parties are in a divorce or child custody dispute.

One way to help ease the stress of going to Court is to be as prepared as possible for every Court appearance. In New Mexico, family law matters are heard by a District Court judge in the area in which the case is filed, which is called the Judicial District. For instance, cases filed in Albuquerque are heard by the Second Judicial District Court and cases in Rio Rancho are heard by the Thirteenth Judicial District Court.

Once you get in front of the Court, the primary issue at a hearing will most often be how the New Mexico law regarding division of assets and debts, custody, timesharing and child support applies to the facts of the case. Thus, it is essential that the parties and their attorneys be prepared with knowledge of the facts, and evidence to support those facts, as well as knowledge of the applicable law, including print outs of statutes and case law.

Another important part of being prepared for a hearing, beyond knowing the law and facts, is an understanding of what issues are set for that hearing and how much time is allotted. Not every hearing in a family law matter will address all of the outstanding issues between the parties, especially if the matter is highly contentious.

Often a hearing will be set to address a single issue or set of issues, i.e. child support or the interim division of income and expense. This is true during a divorce proceeding, where there may be several shorter hearings before the court holds the final trial or evidentiary hearing at which it resolves all outstanding issues related to the parties' marriage.

In turn, the court has ongoing jurisdiction over support and custody for children until they turn 18, therefore, there can be hearings in those cases every time there is a material and substantial change in circumstances.

Also, Judges will not allow the presentation of evidence at every hearing; some hearings are just set in order to give the Court an idea of the pending issues so it can determine how to proceed. For instance, if the parties are set for a ten minute pre-trial conference at which the Court typically sets dates for trial and other deadlines, the parties should not show up expecting to present evidence of income and expect child support to be ordered.

Having an understanding of what will be addressed at a specific hearing not only helps parties and their attorneys be prepared but it also helps parties' manage their expectations of the relief they can expect to be granted by the Court at each appearance.

Of course, no attorney, or anyone else, can fully predict the outcome of a hearing, or how a Judge will rule on a specific issue. However, an experienced family law attorney should be able to help parties prepare for hearings by explaining what items are on the agenda or docket, understanding the applicable law and knowing the underlying facts.

Such preparation may not completely eliminate the anxiety caused by a court appearance, but is should help calm the parties down and has the added benefit of greatly increasing the party's chances of success.

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Family Violence Protection Act ("the Act") creates a specific cause of action that allows a victim of domestic abuse to obtain a civil restraining order against the household member who committed the abuse. This type of restraining order is called an order of protection and will prevent the restrained party from any contact with the victim. Any person accused of domestic violence has a right to a hearing before a long-term order of protection is entered against them. The Act provides that those hearings may be conducted by a domestic violence special commissioner.

The special commissioner is not a judge, although they must be an attorney licensed to practice law in New Mexico and be knowledgeable in the areas of domestic relations and domestic violence. The special commissioner also has the authority to review initial petitions for orders of protection, issue temporary orders and enforce or modify orders of protection. However, all decisions by the special commissioner must be approved by a district court judge. Essentially, the special commissioner recommends a certain action (in the case the entry of an order of protection) and then the district court judge decides whether or not to accept that recommendation and issue the order. As a practical matter, most recommendations by the special commissioner are initially approved and entered by the reviewing district court judge.

Even though a special commissioner's initial recommendations will almost always be entered, the restrained party still has the opportunity to object to the special commissioner's findings and have those objections heard by the district court judge. Generally those objections must be filed with the district court within ten (10) days of the entry of the order of protection, or other related order, and they must be submitted in writing. Further, when submitting objections, it is also important to remember that the district court judge is only reviewing the special commissioner's recommendations and will only reverse or modify the resulting order if they determine that the recommendations were: arbitrary and capricious or an abuse of discretion; not supported by substantial evidence in the record; or, otherwise not in accordance with the law. This legal standard can be hard to overcome, which means that objections clearly explain to the district court why the entry of the order of protection is improper. It is not enough for an objecting party to tell the court that he or she disagrees with the entry of the order of protection; they must provide a legal basis for the objection.

Given that the district court judge is only reviewing the special commissioner's recommendations, it is essential that a party facing an order of protection take the initial hearing with the special commissioner seriously and present as much evidence as possible refuting the charges. By the same token, a party seeking to have an order of protection should be ready to present evidence supporting their case and explaining why they need protection. Parties should not disregard the importance of the initial hearing by relying on their ability to object later. And, given the very serious consequences of the finding of domestic violence that underlies an order of protection, both parties should seriously consider having legal counsel represent them before the special commissioner as well as to file any required objections.

Collins & Collins, P.C.
Albuquerque Attorneys

Many divorces have some level of conflict. Many others go smoothly with minimal emotional and financial damage to parties and the children. Then there are the high conflict divorces. These are generally devastating both emotionally and financially to the parties. They are rarely necessary and should be avoided if at all possible.

There are numerous behaviors that can send a divorce toward high levels of conflict and consequent high attorney fees and costs. The following list is not exhaustive but reflects the most common indicators and behaviors of high conflict divorce. To send a divorce spiraling into conflict, one or both parties:

1. Can begin the divorce process by avoiding service of process.
2. Can refuse to answer, forcing a motion and hearing on default.
3. Can fight the interim division of income and expense.
4. Can refuse to provide discovery or make illegal, nonstandard or overly burdensome discovery requests.
5. Can file groundless motions.
6. Can refuse to cooperate and compromise on the division of property and debt.
7. Can refuse to mediate in good faith once the case is sent to settlement facilitation by the court, as every case is.
8. Can force a trial even though the outcome will be harmful to both parties.
9. Can fight over the smallest and most trivial items as a way of settling emotional scores.
10. Finally, after all that, can refuse to abide by the Marital Settlement Agreement (MSA) or court judgment by; Refusing to cooperate in preparation of QDRO's. Refusing to cooperate in transfer of assets. Refusing to sell the home as ordered. Refusing to refinance the home or other debt as ordered. Refusing to provide title documents as ordered and required by law to transfer property. Refusing to pay debt as allocated. Or finally, coming up with new and creative ways to avoid obligations under the MSA or court judgment.

Now for the bad news. Any one of these can add enormous costs to the parties in terms of attorney fees. Each one could require a hearing which can add significantly to the costs of the divorce due to preparation time, travel time to court, waiting for the hearing to begin, drafting the order after the hearing and of course, returning to the judge for rulings on the content of the order because one of the attorneys or parties does not agree with the order as written, does not agree that the order as written reflects the court's ruling or just plain wants to be difficult. In short, any one of these issues can add hours upon hours of attorney time with corresponding attorney fees.

Now for the really bad news. I did not mention domestic violence, child custody, or child support. These issues can each increase the costs of a divorce or family law matter exponentially. They each are deserving of a discussion of their own.

In short, the costs of a divorce are dictated by the amount of attorney time expended. The amount of attorney time is dictated by the behavior of the parties. Either or both parties can drive up the costs of a divorce. Attorneys have limited control over the variables that will drive up attorney time. The best a lawyer can do is to try to work efficiently while advising the client of the risks of rising costs associated with certain behavior. Unfortunately, even the most efficient attorneys cannot control the other side. Only the other attorney can control that side of the equation and that is entirely different topic for discussion.

Collins & Collins, P.C.
Albuquerque Attorneys

Given that divorce and child custody disputes can often be contentious, costly and time consuming for both the parties and the courts, many of the New Mexico judicial districts routinely refer parties to mediation or settlement facilitation.

The purpose of both mediation and settlement facilitation is to provide a means by which parties to a family law case can reach an agreement without having to engage in a lengthy, stressful and costly court battle. The terms meditation and settlement facilitation are often used interchangeably to simply refer to a process wherein the parties sit down with a neutral third party and attempt to resolve their conflict. Although the two terms refer to similar processes, the term settlement facilitation technically applies after a lawsuit has been filed whereas as meditation can occur before, during or after a suit has been filed.

Either way, participating in some sort of dispute resolution process can be very beneficial to both parties. As a preliminary matter, an effective settlement facilitation can save the parties a lot of money in attorney's fees and their own time. Each issue that is settled by the parties without their attorney's having to file motions and attend hearings to argue the disputed issue can save hundreds, or even thousands of dollars.

Further, a settlement facilitation can often be held, and a settlement reached, much more quickly than court action because the facilitation can be scheduled at the convenience of the parties, rather than the Court whose docket is often crowded. In very busy judicial districts, parties can wait months to have a hearing before a judge when a facilitation can be scheduled as soon as all of the parties, their attorneys and the facilitator are available.

The effectiveness of a settlement facilitation depends heavily on how willing the parties are to negotiate. Parties need to realize the cost of full litigation when they are evaluating whether or not they want to wait for a judge to decide an issue or try to resolve it through settlement.

The selection of a facilitator is important. Using an experienced settlement facilitator is critical to the success of a facilitation. The facilitator needs to be good at listening to both parties and addressing their concerns, but also needs to be well-versed in the applicable law so that they can accurately inform the parties of the pros and cons of their relative legal positions and the value of reaching an agreement without further court action

It is essential to remember that the settlement facilitator is an impartial party and cannot provide specific legal advice to the parties. Thus, even in settlement it is important for parties to have their own experienced family law attorney who can represent their specific interest and make sure they are making educated legal decisions.

When both of the parties, their attorneys and the settlement facilitator work together and are committed to resolving the parties' outstanding issues, it can result in an agreement that the parties can live with, that limits the time and financial resources expended by the parties and that allows the parties to move on with their lives.

Finally, at least in Albuquerque's Second Judicial District Court, settlement facilitation is generally required with few exceptions prior to a trial setting. This the Court's way of encouraging the parties to work cooperatively toward a resolution while keeping court dockets down. And to end on an encouraging note, even those parties that must be forced against their will to settlement facilitation will often find some grounds for agreement which will at least minimize the issues to be decided at trial. This alone is worth the price of admission.

Collins & Collins, P.C.
Albuquerque Attorneys

As our Baby Boomers age, we've seen a growing trend in divorce among people over the age of fifty. Of these divorces, a significant number of them occur after one of the spouses experiences a major health scare or disability. There is no single reason why this happens, but there can be many factors involved on both sides of the issue and it is important for attorneys not to judge the motivations of their clients during such a sensitive time.

Surprisingly, many women file for divorce after a major diagnosis or illness. Sometimes, dealing with one's own mortality makes a person seriously consider her life and may encourage her to leave an unhappy marriage that she may have been willing to tolerate previously. These women may want to make the most of the time they have left and have a greater appreciation for that time. In other cases, these women may have undergone a major world view change that gives them different views and perspectives on life that may not be shared with her spouse. This can enhance existing rifts in the relationship.

On the other side of the coin, the spouse of a person who has gone through a health crisis may also feel the need to leave the relationship. Some people are not by nature good caregivers and watching their formerly health spouse struggle with basic functions and tasks may shake their view of their mortality and the relationship. This may cause deep conflicts for a person who is still engaged in vigorous levels of activity himself. Others may go through their own shift in their world view and may no longer share fundamental perspectives with their spouse.

In still other cases, divorce may occur simply because the couple cannot handle enormous health expenses without impoverishing the healthy spouse. Especially in cases where an illness could be terminal, divorce coupled with applications for Medicaid and/or Medicare benefits may be the only option to protect the surviving spouse financially due to the community property laws of New Mexico. If this is something you are considering, you need to consult with an attorney experienced in both these types of estate planning and family law issues before every filing an application for benefits.

Regardless of the reason, serious illness and disability can shake a marriage to its foundations. If you are in this situation, you should consult with an experienced family law attorney to discuss your options.

Collins & Collins, P.C.
Albuquerque Attorneys