Albuquerque Divorce Lawyer Blog

Imagine spending your life savings on legal expenses to regain possession of a pet after a breakup. Well, that is exactly what some are prepared to do to maintain possession or custody over the family pet. Though this may seem extreme to some. It is not for dedicated pet owners who view the pet as a family member.

Pet custody battles may become more common as the underlying circumstances are becoming much more common as pet ownership increases. According to the 2011-2012 National Pet Owners Survey, 62% of the households in the United States own a pet. Because these companion animals are often considered members of the family, deciding who their ultimate owner should be after a breakup or divorce can be quite contentious just as high conflict child custody battles often become.

While the public's view of pets has evolved beyond mere property interests, the law continues to treat animals as exactly that--no different than furniture, vehicles, or other innate objects. In the event of a breakup, the legal owner of the pet can rightfully retain possession and the other party is left with little recourse. Similarly, during a divorce, the court does not hold custody proceedings or discuss visitation for the couple's pets. Instead, pets are addressed in the property settlement.

As a community property state, New Mexico distributes a couple's marital assets equally between the two parties. While the distribution of physical property is generally straightforward, allocation of a pet can be very difficult because its value to the parties is much more than monetary, yet the "best interest" standard applied to child custody does not necessarily apply to pets.

Unless, it is clear that one party owned the pet prior to the marriage, the question over who keeps the pet can become very contentious. Unfortunately, divorces are inherently antagonistic, and a dispute over a beloved pet can act as a conduit by which all disagreement between the parties is funneled.

Recognizing the need for a more holistic approach to these difficult questions, some courts are beginning to decide pet-related issues based on principles utilized in child custody proceedings. Although still uncommon, these courts ignore the long-standing distinction and delve into largely subjective issues--asking who the primary caregiver is, who can best meet the animal's needs, who has a stronger emotional bond, etc. However, such an approach is certainly not the standard and parties to a divorce or separation should not expect all courts to devote the same time and attention to deciding which party keeps a pet as they do devote to determining child custody issues.

Once entangled in a divorce or even a breakup, deciding who gets possession of your pets will become much more complicated and emotionally charged. In order to avoid added stress, these issues should be discussed and addressed well in advance. Whether you are considering buying a pet with your significant other or want to include pet ownership terms in your prenuptial agreement, consulting an experienced family law attorney can help you explore your options. In the event that a dispute arises, a legal professional can explain the best strategies to ensure your interest in your pet are protected to the degree possible throughout the break-up.

Related Reading:
Breaking Up In New Mexico May Be Harder Than Getting a Divorce
The Hight Cost of Conflict in Divorce

Collins & Collins, P.C.
Albuquerque Attorneys

Orders of protection are only effective if they are consistently enforced by both the court and law enforcement. Failing to enforce an order of protection can put the victim in even more danger by creating a false sense of security and encouraging offenders to violate the order because they feel there is no real risk of arrest or prosecution. Fortunately, there are numerous procedures in place to assist with the enforcement of orders of protection.

The Family Violence Protection Act requires that all orders of protection be filed with the clerk of courts and a copy sent to local law enforcement. A copy of the order must be sent to law enforcement so that it can be served on the offender and to alert local law enforcement of the existence of the order.

When local law enforcement is aware that an order of protection has been issued they are better prepared to take action if a disturbance occurs. This includes warrantless arrest of the violator and the filing of criminal domestic violence charges. The Family Violence Protection Act requires police officers to "arrest without warrant" any person the officer has probable cause to believe has violated an order of protection and to charge the violator with "all possible criminal charges arising from an incident of domestic abuse." Violating an order of protection is a misdemeanor. A second conviction is punishable by a mandatory jail sentence of not less than 72 consecutive hours that cannot be suspended or deferred. Repeated violations can and are often charged as a felony.

Courts also have many options available to enforce compliance with orders of protection. Just a few of those options include:

1. Arranging for supervision of criminal contempt cases through the probation department's pretrial supervision program.
2. Treating failure to participate in court-ordered treatment as a serious violation of the order.
3. Promptly conducting hearings on all contempt motions.
4. Issuing increasingly severe penalties for repeat violations of an order.

Criminal or Civil Contempt?

Whether the violation of an order of protection results in criminal or civil charges aruably depends largely on whether the contempt order is meant to punish the violator for his wrongful acts or to make the violator comply with the order. In either case, the violator may be placed in jail so the perpetrator may not appreciate the subtlety of the distinction.

It is important to understand that conviction for violating an order of protection can result from any violation of the terms of the order. This can result from any violation of the order from phone calls, to email, to contact through Facebook, to actual physical contact with the alleged victim. Keep in mind also that there can be a violation and criminal charges for violation of an order of protection even when the original charges that form the basis for the order of protection are found to have no merit.

Finally, it is important to understand that even if an order of protection is issued outside of New Mexico, the Federal Violence Against Women Act (VAWA) gives New Mexico courts and law enforcement authority to enforce the Order. The Act requires that New Mexico courts give full faith and credit to orders of protection properly issued by other states.

Though it is often preferable to have the assistance of an experienced family attorney to guide a victim through this process, there are many resources available to victims of domestic violence who cannot afford a private attorney.

Related Reading:
Violence Against Women Act Reauthorized By The U.S. Senate
Domestic Violence Orders of Protection Under New Mexico's Family Violence Protection Act
Whether Civil or Criminal, Domestic Violence Finding Has Severe Consequences

Collins & Collins, P.C.
Albuquerque Attorneys

According to New Mexico law, all debts incurred during a marriage are considered to be community property and will be divided equally between the spouses during a divorce. Separate property is individual property acquired before the marriage through purchase, gift, inheritance, and property that has otherwise been legally established as separate property.

What many people fail to understand is that while the New Mexico district court allocates portions of community debt to each spouse as part of a divorce decree, that district court order does not bind third-party creditors. Which means that, even though a divorce decree assigns a particular debt to one of the spouses, if that spouse does not pay on the debt the creditor continues to have a legal right to pursue the other spouse for payment of the debt. This can result in a spouse being pursued by a creditor for debts not contemplated under the terms of the divorce decree.

Since most creditors will not allow you to just switch the account holder designation from one individual to another, your recourse lies with the family court that handled the divorce proceeding. A claim can be brought against the ex-spouse for violating the divorce decree by not paying his or her share of the debt assigned to them and for restitution.

There may be some recourse for the innocent spouse in form of court ordered restitution. Restitution is repayment of any money paid by you to a creditor that should have been paid by your ex-spouse.

The divorce court can also assist you by ordering the ex-spouse to cooperate by completing necessary paperwork or signing documents that may allow you to have debt moved from one spouses name to the other. For example, the court may order one party to attempt to open a credit account in order to transfer the balance to that account. This would insure that the debt is only in the spouse's name that was assigned the debt in the divorce decree.

Also, the court can order a spouse to seek refinancing of a mortgage still held in both spouses name or to attempt to sell off property that was allocated by the decree to one spouse and for which the debt has become delinquent.

Unfortunately one spouse's failure to pay his or her debts as assigned by the divorce decree can have a negative impact on the other spouse's credit rating. While a negative credit reporting cannot be removed, you can annotate the negative reporting with a 100 word comment stating why the account was not paid pursuant to the terms of the contract with the lender. This may not likely improve your credit score, but if you do apply for credit in the future it will allow those future creditors to better understand your situation when they review your credit report.

While these type of post-divorce payment problems may not be completely avoidable, one way to mitigate the damage is to provide as much detail as possible in the marital settlement agreement and final decree of divorce. This would include very specific provisions regarding the legal and binding transfer of debt from one party to the other.

Most importantly, parties should be ordered to refinance debt whenever possible so that ongoing debts don't remain held in both parties' names. This provision should include detailed timelines for when and how debts will be repaid. It is very often worth the time and money required to discuss allocation and payment of community debt with an experienced family law attorney in order to ensure that things go as smoothly as possible once the divorce is completed.

Related Reading:
Protecting Your Credit Before, During, and After Your New Mexico Divorce
Financial Recovery After Divorce: There is a Light at the End of the Tunnel
New Mexico Marital Settlement Agreement is Final, Binding and Very Hard to Modify

Collins & Collins, P.C.
Albuquerque Attorneys

There are a number of reasons why divorced or separated parents move away from the city or state where their children reside. Whether it is the custodial or non-custodial parent who is moving away, or both, such a move creates obvious problems for parents who share child custody.

However, there are a host of long-distance time-sharing solutions that parents can try in order to minimize the stress that a substantial change in time-sharing can put on their children. It goes without saying that any solution will be much more effective when parents have a civil relationship that encourages open communication about child issues, including custody and time-sharing arrangements.

First of all, in a joint custody situation, when a parent wants to take their children out of state permanently, the moving parent cannot leave with the children without the agreement of the other parent. If the parents can't agree on the move, then the parent who wants to relocate with the children will need to get the Court to approve the move. Many New Mexico parenting plans provide a set of procedures for parents to follow when one or both want to leave the state with the children.

When the Court does allow a parent to move with the children, there are several issues to be considered. Other than missing regular contact with their children, the costs of travel and other expenses presented by long-distance time-sharing can be one of the most difficult issues for parents to address. Aside from travel costs required to visit with the non-custodial parent, there may also be long-distance telephone bills as well as increased costs for mailing gifts and other items. Parents may also wish to purchase a computer, web camera, or cell phone to keep in touch with their out-of state children.

This may require some compromises on the part of the parents. In the absence of compromise, the intervention of the Court may be required. In some cases the Court may reduce child support payments to make up for the costs of travel and communication. In other cases, ther Court may require the moving parent to be largely or fully responsible for travel and other communication costs.

The logistics of scheduling visitation also becomes more difficult in a long-distance time-sharing agreement and will depend heavily on where the parent and children are moving. It is generally easier for parents to schedule frequent visits between New Mexico and a neighboring state than a distant state. In addition, distant locations my complicate travel for small children when flight connections are required. In fact, this may not be realistic at all since navigating airports and connections, even with the assistance of airport personnel, can cause significant stress on a young child traveling alone. If long distances make it impossible to have frequent visits, the court will often restructure visitation to provide for longer visitation periods with the non-custodial parent during the summer months or other periods when the children are out of school.

Assuming the children are moving also, when planning a move that will require long-distance time-sharing, the moving parent should be ready to show the Court that they are not moving in an effort to create distance between the non-custodial parent and children. The moving parent should also be open to facilitate as much time as possible during school breaks and summers to compensate the other parent for lost time with the children.

Parents pursuing relocation should also try to support a relationship between the children and the non-custodial parent and strive to maintain communication and shared parenting responsibilities with the non-custodial parent. Getting approval for relocation can be a very long process and any parent considering relocation should consult an experienced child custody attorney as soon as possible in order to ensure that the process is on the right track from the beginning.

Related Reading:
Taking Your Child Out Of State in a New Mexico Child Custody Case
Custodial Interference in New Mexico Divorce & Family Law Cases
Leaving the State in Child Custody Setting

Collins & Collins, P.C.
Albuquerque Attorneys