Albuquerque Divorce Lawyer Blog

Like the old song says, "there's no place like home for the holidays," but for children of divorced or separated the often question becomes "whose home for the holidays?"

Given that New Mexico law strongly favors joint legal custody and regular, well-defined periods of time-sharing for both parents, decisions must be made about how parents are going to share time with their children for the holidays.

And, given that the holidays can be a very stressful time, decisions about holiday time-sharing should be made well in advance of the actual holiday. Ideally, every Parenting Plan (the court document that details parents' rights and responsibilities with respect their children) should include a holiday schedule,

When there is not yet a parenting plan and the parents are still in the middle of a custody dispute or who have had a change in circumstances since the entry of their Parenting Plan, the parties must agree on where their children will spend the holidays or have the Court decide for them. This is rarely the best, and never the least stress approach to the problem.

Keep in mind that it can take weeks or months to get a hearing before the Court, so if parents aren't going to be able to agree on holiday time-sharing, they can't wait until the week before Christmas or Thanksgiving and expect to ask the Court to decide the issue for them.

In trying to reach an agreement about holiday time-sharing, or deciding what to ask for from the Court, parents should try to take a step back from the situation and really concentrate on what is in the best interests of their children.

No matter how their parents feel about each other, most children really want to spend time with both parents, especially for the holidays. For instance, children probably want to eat Thanksgiving turkey with their grandparents, aunts, uncles and cousins from both sides of the family, but they probably don't want to start one meal at 1:00 p.m. with one parent and then leave at 3:00 p.m. so that the other parent can rush to have the children at a Thanksgiving meal that starts at 4:00 p.m.

Similarly, children will likely want to open Christmas presents under the tree with both parents and they may wake up early to see what Santa brought them, but it is unlikely that, after waking up early, the children want to get dressed, packed and whisked away to the other parent's house by 8:00 a.m. because the other parent insists on having the children for most of Christmas Day.

To avoid the unnecessary stress on the children, parents may consider alternating holidays every year, i.e. one parent has the children for the whole day on Thanksgiving, or even the entirety of the children's Thanksgiving vacation in even years and the other parent has that time in odd years. Or, for Christmas, one parent may have the children from the beginning of the children's Christmas vacation to December 26th and the other parent has the children for the second half of Christmas vacation, including New Year's Eve and New Year's Day. These schedules would alternate each year.

These schedule suggestions may not be right for everyone, but they provide examples of how to focus on giving the children a fun and relaxing holiday, rather than forcing children to run around and feel pulled between parents.

There are many, many time-sharing options and, hopefully, parents can work together to find an agreement that they can live and that, most importantly, maximizes their children's happiness, enjoyment and well-being. An experienced family law attorney can not only advise parents about the law regarding time-sharing, but can be an integral part of finding creative ways to solve time-sharing disputes.

Collins & Collins, P.C.
Albuquerque Attorneys

As any parent knows, raising children can be a very expensive endeavor, which is why all states have laws governing child support for children when parents are divorced, separated or were never married.

In New Mexico, both parents have a duty to support their children and that support is calculated using the New Mexico Child Support Guidelines, which are based on the gross incomes of both parents. The first step in any child support action is gathering income information for both parents and calculating support based on the Guidelines. After the child support has been calculated, the court may enter an order that instructs one parent to pay the other a certain amount of child support every month. Then comes the hard part which is making sure that the support gets paid.

Enforcement of a child support order can be hard on both parents. Given the tough economic times facing many New Mexicans, the parent receiving child support may depend on the monthly check to make ends meet. Receiving a child support payment even a day or two late can cause serious problems, like a bounced rent check or car payment.

In turn, the parent paying support may also be living paycheck to paycheck and may have trouble paying support in addition to his or her monthly bills. However, failure to pay the monthly support obligation can cause a variety of problems for the non-paying parent including suspension of his or her driver's license, seizure of bank and financial accounts, a finding of contempt (and possible jail time and fines), issues with employment to name just a few.

One solution to the problem of getting child support paid on time is through the entry of a wage withholding order. A wage withholding order is similar to a garnishment, in that it is a court order instructing a parent's employer to withhold the monthly child support from a parent's paycheck and send it directly to the parent entitled to receive support. Or, in some cases, the employer sends the child support payment to the Child Support Enforcement Division ("CSED") and then CSED sends it to the other parent.

Both parents can benefit substantially from entry of a wage withholding order. As a preliminary matter, such an order ensures that the support gets paid in a regular, timely fashion, which means that the parent receiving the support can count on getting the support at the same time every month and can plan to pay bills accordingly. It can also help the paying parent meet their obligation because they aren't tempted to pay other bills before paying their child support, after all you can't spend what you don't have. Another substantial benefit to the paying parent is that there is a clear record of what payments were made, so the receiving parent can't claim that they didn't receive a payment, which to the chagrin of many child support paying parents happens with great regularity.

There are limits wage withholding. Most orders provide that an employer cannot withhold more than 50% of the paying parent's income. So, if the paying parent isn't making enough money to cover the monthly obligation, then the receiving parent may be stuck trying to collect the additional support. Also, wage withholding orders typically provide that the total monthly support obligation is divided over pay periods, which can be good for the paying parent but may not be good for the receiving parent who wants the whole monthly obligation all at once.

Child support will be an issue in every divorce involving children or paternity action filed in New Mexico. Having an experienced family law attorney can help both the paying parent and the receiving parent navigate the complicated world of child support, including collection of support after a judgment is entered.

Collins & Collins, P.C.
Albuquerque Attorneys

Being involved in a family law matter, whether it is a divorce or child custody dispute, can be incredibly stressful. The best way to minimize that stress is to resolve the outstanding issues with minimal court time. But when one or both parties are unwilling to reach agreements then court time cannot be avoided.

Most parties tend to focus on the specific facts of their case and how the law applies, which is clearly important. However, another essential element of any court appearance is how the parties and their attorneys conduct themselves. This general advice about how parties should conduct themselves in Court applies to every kind of legal matter from divorce and custody issues to criminal charges to commercial litigation. However, it seems the issue of conduct and decorum most often arises in family law court where both the parties, and on occasion, the lawyers get caught up in the emotion of the case.

As a preliminary matter, everyone should arrive at the courthouse early and at least attempt to confer with the opposing party and/or their counsel. Sometimes the Court will specifically order the parties to arrive at a hearing thirty minutes early in order to meet and confer, but even if the parties are not ordered to arrive early it is a good idea to do so. Many issues, and sometimes whole cases, have been resolved outside the courtroom just before a hearing.

Even if the parties can't resolve their issues, most judges appreciate that the parties tried to do so. Further, being late can result in the hearing being cancelled and reset, or in extreme circumstances, with the Court issuing a default or order of contempt against the party that is not there on time. Arriving promptly for all hearings and trials also shows the Court that the parties respect the authority of the Court.

And, whether or not it should matter, how the parties look is also important. Some Courts have specific dress codes that do not allow parties to wear clothing items like hats, torn jeans or short skirts to Court. Generally speaking, parties should wear clothing that would be appropriate for a business meeting or church gathering.

In addition to showing up and showing up on time, manners and respect for the Court and the process are very important. To begin, the parties should stand when the Judge enters and leaves the courtroom and should address the Judge as "Your Honor." Respect and courtesy in Court is important. Without such respect and courtesy, the hearings can quickly get out of hand.

Perhaps most importantly, beyond basic courtesies, the parties should conduct themselves appropriately any time they are before the Court. This includes things like not speaking out of turn, particularly when this involves interrupting the judge. Judges, like everyone else, do not like being interrupted. These interruptions cause undue delay, prolong hearings, escalate hostility and are very rarely insightful in any event.

The parties should refrain from using foul language. Likewise, the parties should not shout at one another, either of the attorneys, witnesses, and most certainly not the judge. The parties should refrain from arguing with the Judge or giving other confrontational non-verbal cues like rolling their eyes when the Judge, or the other party, speaks.

For the most part, these common sense courtesies should really go without saying but unfortunately, the lack of basic civility is all too common in family court. Due to the emotion, and the fact that this may be the one and only time the parties have ever been in court, they often misconstrue the purpose, the nature and the process. Parties far too often see the court hearing as a debate, a platform or some kind of cathartic release.

It is not. It is no more acceptable in court than outside. Unlike occasions outside the court, the judge has contempt powers which means a party can be arrested and taken into custody for misbehavior. This is relatively rare. What is much more common is that the behavior will alienate the judge. And this is something one does not want to do!

Part of an attorney's job is to try to manage their clients' behavior in front of the Judge so that the Judge sees that party in the most positive light possible. While such good behavior might not actually give one party an advantage, very poor behavior will definitely prejudice the Judge against the badly behaving party. After all, if parties cannot control themselves in court, the judge may wonder how they behave around the children in a custody situation. Then there are the close calls, and common sense will tell you who wins those!

Collins & Collins, P.C.
Albuquerque Attorneys