Albuquerque Divorce Lawyer Blog

New Mexico is a community property state, which means that all of the property acquired by a couple during their marriage, or earned by either spouse, during the marriage is considered equally owned by both spouses. Accrued or vested retirement account benefits are considered community property, which means that, upon divorce, each spouse is entitled to one-half (1/2) of the retirement benefits earned or accrued during the marriage.

There are two primary types of retirement plans: defined benefit plans and defined contribution plans. A defined benefit plan promises a specific monthly benefit at retirement. In a defined contribution plan you (and possibly your employer) contribute a set amount into the account, which may be invested by the employee, the employer or the company that manages the account. Thus, the value of the account will fluctuate depending upon the success of the investments.

An Individual Retirement Account (IRA) is a defined contribution plan, usually an account with a bank or other financial institution. While an IRA is a retirement account, you may be able to access the funds prior to retirement, albeit with a penalty. IRA assets may be divided in a divorce decree and can generally be split in half, with equal shares going to each spouse.

A 401(k) plan is another form of defined contribution plan administered by an employer that an employee contributes to out of each paycheck. Employers can elect to match employee contributions, up to a certain point. There are special rules governing a 401(k) plan, including a limit of $15,000 per year in contributions. Like an IRA, you may be able to access the funds in your 401(k) account prior to retirement, but you will incur both tax liabilities and penalties for doing so. Also similar to an IRA, a 401(k) plan's assets can be equally split among the divorcing parties.

A 403(b) plan is a defined contribution plan, similar to a 401(k) plan, that is available only through certain employers, including governments, public education organizations, non-profits, cooperative health service organizations and self-employed ministers. A 403(b) plan will allow you to contribute up to $17,000 per year, more money than a 401(k). However, your investment choices are generally limited and expensive. In addition, often 403(b) plans restrict how frequently you can change your investments.

In contrast, a pension plan is a defined benefit plan administered by an employer where a set amount is awarded to an employee at retirement age, usually paid monthly. Pensions may be divided equally between the spouses. However, because pension plans are defined benefit plans, it can be very difficult to determine their value before they are paid out. Pensions are very expensive for employers to maintain in the long run, so they are becoming less and less common with more employers offering defined contributions plans or not offering retirement at all.

Some smaller employers may use simplified employee pension plans (SEPs). Under a SEP, the employee sets up an IRA and the employer can contribute up to 25% of the employee's pay, up to a maximum of $40,000 per year. Smaller employers can also set up SIMPLE IRA plans, which are sponsored by the employer and allow employees to contribute up to $10,000 per year with a voluntary employer matching contribution. In both cases, the plans are divisible in divorce as community property.

It is important to note that, while equally dividing a retirement account is an option, it is not the only way to apportion retirement assets in a divorce. You may opt to try to keep your retirement account whole, and offer your spouse other community property of comparable value instead. Given that retirement plans are often the most valuable community asset owned by a couple, it is essential that parties with substantial retirement assets consult with a family law attorney in order to ensure that the assets are being accurately valued and fairly divided.

Related Reading:
New Mexico Marital Settlement Agreement is Final, Binding and Very Hard to Modify
5 Tips From a Divorce Attorney For (Happily) Married People
Financial Recovery After Divorce: There is a Light at the End of the Tunnel

Collins & Collins, P.C.
Albuquerque Attorneys

In a recent landmark case known as Chatterjee v. King, the New Mexico Supreme Court ruled on some very important issues involving same sex couples and their rights to establish parentage under New Mexico's Uniform Parentage Act ("the UPA") and child custody under New Mexico's Dissolution of Marriage Act.

The facts as stated in the opinion are as follows. Chatterjee and King were involved in a long-term, committed, domestic relationship during which they agreed that they wanted to have a child. With Chatterjee's full support and participation, King adopted a child from Russia. Chatterjee presented evidence to the court that she supported King and her child financially, that they all lived together as a family, and that she actively co-parented the child. After several years Chatterjee and King, chose to end their relationship, at which point Chatterjee had not adopted the child. King moved to Colorado and tried to prevent Chatterjee from having any contact at all with the child. Chatterjee then filed a petition with the district court to establish parentage and determine custody and time sharing.

In reaching its decision, the Court had to examine the question of whether or not there were sufficient facts to establish that Chatterjee was an interested party under the UPA, which would give her standing to establish parentage. In this regard the Court applied Section 40-11-5(A)(4) of the UPA, which sets the forth criteria required to establish a presumption that a man is a natural parent. The Court reasoned that like a man, it is practical for a woman to hold a child out as her own by providing emotional and financial support for the child.

The court discussed at least two important reasons for reaching this decision. First, to reach a different result could raise constitutional concerns in that the UPA would apply differently to similarly situated men and women. For example, if the court ruled that Section 40-11-5(A)(4) of the UPA applied only to men, then a man in a same sex relationship who claimed to be a natural parent based on the fact that he held the child out as his own would have standing because of his gender, while a woman in the same position would not. In other words, if the Chaterjee case had involved a same sex relationship between two men , then a man in the same position as Chatterjee would have had standing to establish parentage under the UPA, while Chatterjee would not.

Equally important is the Court's recognition of parents' obligation to support their children. The Court cited some statistics that show that in 2000 the idea of a "traditional" American family--mom, dad and two children--only applied to 23.5% of the population. For this reason, the Court concluded that it is in New Mexico's best interest that parents are identifiable in order to ensure that parents' obligation to support their children is met.

Having determined that Chatterjee had the right to establish parentage under the New Mexico UPA, the Court also concluded that she had standing to seek joint custody under the New Mexico Dissolution of Marriage Act and remanded the case back to the lower court to address the details of custody, visitation and child support.

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Supreme Court recently issued its opinion in Diamond v. Diamond in which it ruled that a minor child may be emancipated from his or her parents and, yet, the parents may still be obligated to pay child support for the emancipated child. The Diamond decision was a reversal of the New Mexico Court of Appeals' previous ruling that emancipated children must be able to manage their financial affairs and, therefore, could not be entitled to child support from their parents.

The specific facts of the Diamond case centered on an emancipated child's claim to child support from her mother. However, in broader terms, the Diamond ruling makes it clear that a New Mexico District Court may declare that a child aged sixteen or older to be emancipated for one, or more, of the purposes set forth in the New Mexico Emancipation of Minors Act ("the Act"), which can include things like: the ability to consent to medical care without parental consent or knowledge; enrolling in school or college; and, establishing a residence. While the new ruling clarifies the purposes for which a minor can be emancipated, it does not change the underlying requirement that emancipation must be in the minor's best interest.

In Diamond, the minor had been living apart from her mother for two to three years, during which time she paid her own expenses, attended school and worked. She sought emancipation because she was having difficulty obtaining medical insurance, accessing her school report cards and applying for a driver's permit, all of which required parental consent. The district court issued a "Declaration of Emancipation of Minor" finding that the minor had been living independently and managing her own financial affairs without support from her mother and determined that emancipation was in the minor's best interest. She was declared emancipated in all respects under the Act, except that she retained the right to support from her mother. Subsequently, a hearing officer ordered the mother to make support payments to the minor until she reached the age of eighteen or graduated from high school, whichever occurred later.

At the outset, the Diamond Court found that the minor met the prerequisites for a valid petition for emancipation, which are that: 1) the minor must be sixteen years of age or older; 2) the minor must be willingly living separate and apart from his parents, guardian or custodian; and, 3) the minor must be managing his or her financial affairs. After those factors are met, the court must find that emancipation is in the best interest of the minor.

If the prerequisites of the Act are met and the emancipation is in the minor's best interest, then the minor may be considered emancipated for one or more of the following purposes: 1) consenting to medical, dental or psychiatric care without parental consent, knowledge or liability; 2) the capacity to enter into a binding contract; 3) the capacity to sue and be sued in their own name; 4) the right to support by their parents; 5) the rights of the child's parents to their earnings and to control them; 6) establishing their own residence; 7) buying or selling real property; 8) ending vicarious liability of their parents; or, 9) enrolling in any school or college.

In finding that the minor in Diamond could be emancipated for all purposes except for ending her right to support from her mother, the Court found that there is no inconsistency in the Act's requirement that the minor must manage his or her financial affairs and requiring parents to continue to support their emancipated children. Emancipation cases can be factually and legally complicated. Anyone involved in a disputed emancipation case should contact an experienced family law attorney as soon as possible in order to examine how the Diamond ruling applies to their case.

Related Reading:
Ten Quick Facts About New Mexico Child Support
No Escaping Death, Taxes and New Mexico Child Support
Emancipation of Minors in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

An unfortunate result of many divorces or child custody disputes is that children develop negative feelings toward one, or in extreme cases, both parents. These negative feelings can arise for a variety of reasons, which may or may not be the result of any intentional action by the estranged parent, but nonetheless can damage the relationship between a parent and their child. Often these negative feelings can be dealt with by simply making an effort to sit down with the child and discussing their feelings or making sure that they get a little extra TLC. However, in more serious cases, the parent-child relationship is completely broken and the child may not want to have anything to do with the estranged parent.

The New Mexico courts have long held that, generally, is in a child's best interest to have a relationship with both parents. Accordingly, in situations where a child's relationship with a parent has broken down, the courts will often look for opportunities for the parent to repair that relationship. Reunification therapy is one such opportunity and the courts may order one or both parents to participate in such therapy with their children. The goal of reunification therapy is to mend the relationship between a child and parent by identifying the stressors that caused the relationship to break down in the first place. Reunification therapy identifies the factors that led to the estrangement, and helps the child and parent work on communication, trust, and resentment issues.

Either parent can petition the court to order reunification therapy or the court may do so on its own. The court order mandating reunification therapy should discuss: the court's goals in ordering treatment; expectations of cooperation by both parents; the discretion given to the therapist to set treatment; and, who will pay the therapist's fee and expenses. The court order should also ensure that any pertinent records, medical or other, be released to the reunification therapist.

Before reunification therapy begins, it is important that all parties understand the process and implications of the treatment. For one thing, parents and children need to understand that their treatment is not confidential. The reunification therapist is often expected to report any findings, progress, or obstacles to the court.

A reunification therapist will typically meet with the parent and child individually before meeting with them together. In some cases, the estranged parent may be ordered to undergo individual therapy for any drug, anger or other issues that may be hindering their relationship with the child.

Once the parent has completed treatment and safe contact with the child is a possibility, the joint sessions may begin. Or, if it is deemed safe for the child, the estranged parent may be engaged in individual therapy while also having joint sessions with the child and the reunification therapist.

Child-parent relationships are difficult, especially when there has been an estrangement due to a divorce or abandonment. While reunification therapy may be helpful to some, it may not help others. And in some cases, such as extreme abuse or a long history of a parent refusing to comply with court orders, the court may not find that reunification is in a child's best interests.

Parents who want to repair their relationship with their child may face a long and arduous journey where they will be expected to work hard towards reconciliation; all while being supervised by the court. Working with an experienced family law attorney can help parents understand and navigate the legal system and how it intersects with world of mental health professionals and their numerous therapeutic techniques, including reunification therapy.

Related Reading:

Domestic Abusers May Seek Control through Child Custody
Custodial Interference in New Mexico Divorce & Family Law Cases
The "Best Interests Of The Child" in New Mexico Involves Many Factors

Collins & Collins, P.C.
Albuquerque Attorneys