Albuquerque Divorce Lawyer Blog

When a person retires and begins drawing social security, their spouse is entitled to social security benefits based on a proportion of the benefits received by the retiring person. A consideration in any divorce is whether or not the spouse will still be entitled to those benefits after the marriage is dissolved. And the short answer to that question is: maybe. As a preliminary matter, remember that social security is a federal program, so the rules should be substantially the same whether parties are divorcing in New Mexico or elsewhere.

The initial threshold for whether or not a divorced spouse may receive social security benefits based in their former spouse's benefits is the length of the marriage. The parties must have been married for at least ten (10) years in order for the divorced spouse to be entitled to benefits based on the former spouse's social security record. If the ten (10) year requirement is met, then the divorced spouse may receive the benefit only if they are at least sixty two (62) years old and have not remarried.

Additionally, the divorced spouse is only entitled to benefits based on the former spouse's social security if the divorced spouse is not entitled to a higher social security benefit based on his or her own work history. Further, the former spouse must be eligible to receive the social security benefits before the divorced spouse can begin receiving a spousal benefit. For example, if the parties were married for twelve (12) years and divorced when they were in their fifties, then the divorcing spouse would have to wait until she or she was sixty two (62), and the former spouse was old enough to draw their benefits, before the divorced spouse could receive their benefit.

There are, of course, exceptions to this general rule. A divorced spouse may still be entitled to their benefits based on the former spouse's benefits even if the divorced spouse remarries in situations when the second spouse dies or the second marriage ends by divorce or annulment. Also, if the divorcing spouse's second marriage is to someone already receiving certain types of social security benefits or survivor's benefits, then the divorced spouse may still be entitled to benefits based on the former spouse's benefit despite the fact that the divorced spouse remarried.

No matter what age parties are when they divorce; the financial fallout from a divorce can be serious and take months or even years to recover from. Considering the long-term financial impact of divorce is essential and should address retirement plans, including social security. An experienced family law attorney can help parties ensure that they are protecting their financial future after a divorce as much as possible.

Collins & Collins, P.C.
Albuquerque Attorneys

In a New Mexico divorce, the parties must divide property and debt. One very important area of asset division is the division of retirement accounts. A Qualified Domestic Relations Order (QDRO) is a special form of court order that is issued during a divorce proceeding for the purpose of dividing retirement benefits.

Under New Mexico's community property laws, each spouse is entitled to 50% of the retirement benefits earned by the other spouse during the marriage. There are a variety of retirement plans that must be divided. The QDRO deals with several of these including pension plans and 401(k) plans. There are some that are not addressed by a QDRO. It is important to identify and classify all plans and account for them in the legally appropriate manner.

To start, the parties must identify each and every retirement plan that accrued during the marriage. The parties need to then determine the value of the retirement benefits at issue. Under the community property laws of New Mexico, only that portion of the retirement plan, or any other asset for that matter, that accrued during the marriage is considered community property and divisible as such.

Although one would think that the valuation and division of retirement accounts would be a rather clear-cut calculation, the division is often fiercely contested. Often experts such as CPA's and actuaries are required to assist in the valuation. On occasion, the valuation question will become a battle of the experts.

On the one hand, making an initial determination of values of 401(k) accounts can be pretty straightforward because they contain a clearly-identified amount of money. On the other hand, the value of pension plans can vary to a great degree depending on among other things how old the spouse is at the time of retirement and how much money the spouse is making when he or she retires. Other accounts such as defined benefit plans raise their own challenges.

After the value of a retirement plan has been calculated, the parties (or the court) must also figure out how and when the benefits will be dispersed. When it comes to certain 401(k) plans, the parties may be able to simply split the account at the time of divorce. In the case of other pension plans, however, neither party can receive their share of the plan until the working spouse actually retires

As with all family law matters, the division of retirement accounts can be accomplished through cooperation and compromise. Or it can be done through long, expensive and high conflict litigation. Though there will often be honest differences of opinion, these differences can generally be worked out through compromise. Either way, it generally helpful to have the counsel of an experienced divorce attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

The ending of relationships, whether through divorce or other means of separation should present an opportunity to move on for both the couples and the children involved; however, when domestic violence is present in these relationships, moving on may not be the goal of the abuser.

For those that perpetrate domestic violence, control is often the main goal of their behavior, according to the National Coalition against Domestic Violence. When divorce or separation proceedings begin, an abuser may attempt to maintain control by manipulating the process.

Manipulation can come in the form of improperly painting a portrait of the victim as unstable and less competent as a parent. Because of the abuse suffered, the victim may be less able to overcome these allegations, whether through an inability to speak up due to fear or because of some mental impairment suffered through trauma.

The law and the courts of New Mexico seek by mandate to achieve the best interests of the child. Unfortunately, on occasion, New Mexico's "best interest of the child" standard used in child custody issues may actually help an abusive parent exert control over another parent.

This standard implies that it is "best" that the child to be raised by both parents, unless there is evidence that such a relationship would be detrimental to the child. Because of the often secretive nature of domestic violence, this evidence may not be easily obtained. Even the child involved may not fully observe or understand the relational dynamics between their parents, thus, they may not be able to alert authorities to the dangers facing the victim parent.

If an abusive parent can successfully convince the court that the child belongs with them, the victim parent loses control, while the abuser gains more control. The abuser now has the legal right to continue controlling the other parent through visitation schedules, monetary support and even decisions regarding the actual care of the child. More alarmingly, the victim parent may be subject to further violence because of the continued contact.

Domestic violence matters should be openly discussed with an attorney, once the decision to separate has been made. An experienced divorce attorney can become the voice of the victim throughout the court proceedings and may eliminate the potential for an abuser to continue their reign of control.

Collins & Collins, P.C.
Albuquerque Attorneys

A divorce or legal separation will always be difficult emotionally, however, it can be just as hard, if not worse, financially. Often it is not until the parties begin exchanging income information as part of their divorce action that they realize just how dire their financial situation is. Given that New Mexico is a community property state, each spouse is equally responsible for the debts incurred during a marriage. If those debts are substantial, the divorcing parties may want to consider filing bankruptcy.

Anyone considering bankruptcy should consult an attorney that specializes in bankruptcy to determine whether or not it is in their best interests, or if they even qualify to file. This is especially true when parties are divorcing because the parties need to decide whether or not they want to file a joint bankruptcy before the divorce or pursue other options. For example, the bankruptcy code prohibits individuals with incomes above a certain, state-specific threshold from filing bankruptcy and it limits what assets are exempt, or can be kept by the parties after filing. The intersection between federal bankruptcy laws and New Mexico's family law statutes and cases can be tricky to navigate, so parties should be cautious when going down that road.

If parties decide not to file a joint bankruptcy and proceed with their divorce, it is essential that the divorce settlement documents include language that addresses what will happen if one or both spouses decide to file bankruptcy after the divorce.

Spousal support, or alimony, and child support obligations are not dischargeable in bankruptcy, which means that the spouse who owes that money cannot get out of paying it by filing bankruptcy.

However, obligations to pay debts may be dischargeable depending on whether the spouse files a Chapter 7 or Chapter 13 bankruptcy. This becomes problematic if one spouse agrees to assume a community debt as part of a divorce, but then later discharges that debt. If that debt is community, or in both parties' names, then a lender may seek to collect the debt from the other spouse. Therefore, divorce settlement documents should include language that clearly identifies the parties' intentions when dividing debt. For example, if one party is taking a debt instead of paying spousal or child support, then language should clarify that the debt is in the nature of support to prevent dischargeability.

Of course, no one can predict what exactly will happen after a divorce. Sometimes a spouse has every intention of paying the debts they assume in the divorce, but then they lose a job or suffer some other setback that prevents them from doing so. The best the parties can do is consult with experienced family law and bankruptcy counsel in order to make educated decisions about property and debt division and to properly memorialize those decisions in the final divorce documents.

Collins & Collins, P.C.
Albuquerque Attorneys