Division of Property and Debt in Cohabitation Split

November 9, 2010, by

In New Mexico, as around the country, more and more couples are choosing to live together without being married. There can be a variety of emotional, financial and practical reasons for choosing not to marry. Whatever the reason, when these relationships break up, it can feel very much like a divorce. However, there some key differences in the way the law of New Mexico is applied to the break up of a marital relationship versus a relationship between unmarried parties.

If the co-habitating parties have children, the court will apply the same principles as it would in a divorce to determining what sort of child custody and time-sharing arrangement is in the children's best interest. This type of case that is filed is called a parentage action during which the court will evaluate sole versus joint legal custody or decision-making for the children, as well as time-sharing, which is also called physical custody and determines how much time the child spends with each parent.

Likewise, child support is treated the same whether the parents were married or not. Child support will be determined in accordance with the statutory New Mexico Child Support Guidelines based on the gross income of both parents. The Guidelines are applied uniformly to married and non-married parents.

The big difference between a co-habitating couple and a married couple breaking up is that the principles of community property do not apply to co-habitating couples. There is no common law marriage in New Mexico as in some states.

Because the community property laws do not apply in this setting, the division of property and debt will not necessarily be equal. If the parties cannot agree to a division, then a separate civil suit may be necessary to apportion all of the debts and assets.

The civil suit for the division of property and debt is equally akin to the dissolution of a partnership as a marriage. This division can get very complicated, especially if the parties have been co-habitating for a long period of time or have accumulated substantial assets and debts. Thus, it might be wise to consult an attorney to determine how best to protect your rights and your property in the aftermath of a break up.

Collins & Collins, P.C.
Albuquerque Attorneys

www.CollinsAttorneys.com

Prison is No Escape from Child Support

November 4, 2010, by

Child support is mandatory in the State of New Mexico and is statutorily regulated by the New Mexico Child Support Guidelines. The Guidelines calculate child support based on worksheets that take into account both parents' gross income, child custody and time-sharing, the cost of medical insurance coverage and work-related daycare for the child.

The rules may seem clear, but when a parent that is ordered to pay child support is incarcerated, this situation can get very complicated. Obviously, when a parent is incarcerated they are not earning an income, which many people think is an automatic basis for a modification of child support similar to that available when a parent loses their job. However, this is not true.

When a parent is incarcerated, the New Mexico Courts will examine several factors in order to determine whether or not child support keeps accruing during their time in jail or prison. These factors include: 1) consideration of whether or not the criminal act for which the parent is in jail was deliberate and had known consequences; 2) the length of the parent's incarceration (if the it is a relatively short period child support will generally continue to accrue and the New Mexico courts have held that four years is considered a relatively short period of time); 3) what, if any, marketable skills the parent has; and 4) what, if any, assets the parent has apart from his or her income.

How each of the factors above is applied will vary depending on the facts of every case. Thus, if a person is faced with a situation in which a parent is incarcerated they should consult an experience New Mexico child support attorney immediately in order to protect their rights under the child support guidelines and to determine whether or a motion to modify is appropriate.

Collins & Collins, P.C.
Albuquerque Attorneys

www.CollinsAttorneys.com


Grounds for Deviation from Child Support Guidelines

November 2, 2010, by

The New Mexico Child Support Guidelines were put in place to ensure uniformity in child support awards, make sure all parties in divorce actions are treated equitably and to improve the efficiency of the court process. Given the goal of the guidelines, New Mexico courts will rarely deviate from the guidelines when imposing a child support award.

Despite the attempt at fairness, the child support obligations can often be extremely burdensome on the party paying support. This is especially true in today's uncertain economy. In such cases, a party may ask the Court to deviate from the guidelines. Any child support order that deviates from the guidelines must include a statement of why the order deviates from the guidelines. A party seeking such a deviation must show good cause why the child support imposed by the guidelines is inappropriate. The question then becomes, what constitutes good cause?

The guidelines themselves provide that if the support calculated pursuant to the guidelines requires a party to pay more than forty (40) percent of their income in child support for a single child, then there shall be a presumption of substantial hardship, which, in turn, will justify a deviation from the guidelines. Another reason for deviation from the guidelines could be that one party to a divorce action has assumed a substantially larger portion of the community debt and may be relieved of paying the full child support obligation until the community debt is satisfied.

However, the answer to what constitutes good cause to will often vary depending on the judge or hearing officer ruling in the case. Thus, a party faced with a child support obligation that they think is unfair or unduly burdensome should consult an experienced New Mexico child support attorney immediately in order to evaluate whether they have a reasonable claim for deviation from the guidelines.

Collins & Collins, P.C.
Albuquerque Attorneys

www.CollinsAttorneys.com

Requirements for Modification of Child Support in New Mexico

October 28, 2010, by

Information Required for Child Support Modification
The New Mexico courts retain jurisdiction over the issue of child support until a child turns eighteen (18) or until a child turns nineteen (19) if that child is still in high school. The court's ongoing jurisdiction means that after an initial child support order has been entered, either party can petition the court for a change to child support up until the court loses jurisdiction. The party seeking a change in support would file a Motion to Modify Child Support with the court stating the grounds for the modification.

In order for the court to modify child support, the court must find that there has been a material and substantial change in circumstances. The court will presume that there has been a material and substantial changes in circumstances if more than one year has passed since the entry of the previous child support order and if the present circumstances would cause the monthly child support obligation to change by twenty percent (20%) or more.

Given that child support is based on the gross income of both parties, the child support guidelines require parties to exchange income information yearly so that the they can determine whether or not there has been the material and substantial change in circumstances necessary to modify support. Thus, all child support orders are required to include a provision that the parties will exchange the following financial discovery for the preceding year: complete state and federal tax returns; W-2 statements; IRS forms 1099; statements of amounts paid for work-related daycare; proof of amounts paid for dependent medical insurance premiums; and, paycheck stubs or statements for the four (4) months preceding the request.

Prior to filing a Motion to Modify Child Support, a party should run the child support worksheets. If the child support obligation would go up or down by 20%, then a modification is in order. In the absence of a material change, then the motion will likely be denied.

Anyone who thinks that they may be entitled to a modification of an existing child support order should would be well advised to contact an experienced child support attorney prior to filing a motion.

Collins & Collins, P.C.
Albuquerque Attorneys

www.CollinsAttorneys.com


Basic Tips for Halloween Safety

October 25, 2010, by

Trick-or-Treat Safety Tips

While autumn brings cooler weather and golden leaves, it also ushers in aisles full of candy, costumes and creepy critters at local retailers. According to the U.S. Census Bureau, there were approximately 36 million trick-or-treaters aged 5 to 13 in 2009. There is no doubt that Halloween is big business, but it can also be a time of concern as children hit the streets in search of sweet treasure.

There are a number of hazards related to Halloween. The hazards are generally far more mundane than urban myth would have it. Fortunately for parents, they are far easier to guard against as well. The American Academy of Pediatrics has issued several Halloween safety tips, which can help keep children out of harm's way.

To begin with, find costumes, wigs and accessories that are labeled "flame resistant". Many well-intentioned neighbors have jack-o-lanterns with real flames sitting on porches or along walkways which could be within easy reach of visitors. The term, "flame resistant" does not mean "flame proof", but it does mean that the item burns more slowly and is more easily extinguishable if it does ignite.

Also, make sure costumes and footwear fit properly to avoid tripping or entangling a child as they walk. Costumes should be bright and reflective to alert passing motorists. Reflective tape can even be added to the child's clothing or trick-or-treat bag to enhance visibility. Flashlights or glow stick can further increase the chances that children are seen.

Consider using face paints or makeup instead of masks, which could obscure vision or obstruct breathing. If a mask is used, make sure it fits properly and has large eye and mouth holes.

Accessories, like canes, wands or swords should be examined for sharpness and the potential for injury due to a fall. Likewise, children should be warned about the dangers of pointing these objects at others. It might be best to leave these items at home so they are not dropped or forgotten along the trick-or-treating route.

Young trick-or-treaters should always be accompanied by a responsible adult. For older children planning on going alone, a parent or guardian should review the route beforehand and decide on an acceptable return time. Cell phones can be an invaluable source of contact.

All trick-or-treaters should be taught to use sidewalks and stay out of the streets. Cutting between parked cars can have deadly consequences, so only use street corners to cross. Walking across lawns or other landscaping can include hidden dangers, like potential falls from electrical cords connected to seemingly harmless Halloween displays. Only visit homes with visible porch lights and warn children against entering any home without prior permission.

Upon returning home, have an adult check and sort the treats, throwing out anything unwrapped or suspicious looking. Treat-tampering is a rare occurrence, but is still a possibility.

With an awareness of some of the dangers a trick-or-treater may face, potential tragedies can be 100% preventable. Thus, the scariest night of the year can be enjoyed for all the thrills and chills it brings.

Collins & Collins, P.C.
Albuquerque Attorneys

www.CollinsAttorneys.com

The Child's Response to Parental Alienation

September 23, 2010, by

When a relationship breaks up, the anger and sadness between the parties can prevent them from protecting the most vulnerable parties to a divorce or child custody action- the children. No matter where you live in New Mexico or the United States, the focus in a custody dispute needs to remain on determining what is in the best interest of the children. Sadly, in cases involving parental alienation, not only do one or both parents often engage in behavior that damages the children, they can create a situation in which the children themselves are contributing to the alienation against one parent.

While parental alienation often begins with one parent (the aligning parent) trying to interfere with the relationship between the other parent (the rejected parent) and the child, the behavior of all of the parties can exacerbate the situation. Children involved in nasty custody battles in which parental alienation is taking place may feel abandoned by the rejected parent and may push that parent away. Even if the children's feelings of rejection are based on misinformation provided by the aligning parent, the rejected parent may actually pull away from the children, which can contribute to the children's feelings of abandonment.

A variety of factors can influence children's response to potential alienation, including the children's age, their cognitive capacity, their overall temperament and whether or not the children have external support to help them deal with the emotional duress of a custody battle. No matter the cause, counseling and therapy will almost always be required to help children and parents deal with the cause and effects of a heated custody dispute. Unfortunately, one or both parents will often refuse to participate in therapy, at which time the courts must step in to order any counseling necessary to stop the abusive behavior that causes parental alienation and protect the best interests of the children. Consulting with an experienced child custody attorney is essential to identifying your responsibilities and protecting your rights in any custody dispute.

Sarah Armstrong
Albuquerque Attorney

www.CollinsAttorneys.com


Estrangement via Parental Alienation

September 21, 2010, by

Co-parenting is never easy, whether you are involved in a child custody dispute as part of a divorce in New Mexico or a paternity action somewhere across the country; the issues are often the same. Unfortunately, when custody disputes get really heated parental alienation can occur.

Although parental alienation is a broad and controversial topic, the main premise is that parental alienation occurs when one parent tries to turn a child, or children, against the other parent by doing things like making negative comments against the other parenting, interfering with visitation and encouraging the child to point out the other parent's faults. Some cases can be quite extreme with false allegations of child abuse used to sever the relationship between the child and parent.

The parent trying to alienate the child is often called the aligning parent because that parent is trying to align the child with him or her against the other parent. In turn, the alienated parent is often called the rejected parent. Rejected parents can be quick to believe they are the victims of parental alienation, however, they often do not realize that their behavior may be contributing to the alienation taking place between the parties.

For instance, aligning parents may create alienation because they, rightly or wrongly, have a deep distrust of the rejected parent and they have convinced themselves that the rejected parent does not really care for the child. This distrust may lead the aligning parent to say terrible things to the child about the rejected parent and to try to prevent any contact between them. In such a case, the rejected parent may respond by withdrawing from the conflict entirely or by rejecting the child as reprisal for the aligning parent's actions. Rejected parents may also contribute to alienation by having a very harsh or rigid parenting style or being overly critical of the child. When a rejected parent's behavior contributes to the alienation, those actions sometimes lead to estrangement.

Obviously the issues involved in a parental alienation case can get complicated quickly. Anyone involved in a custody dispute where one or both parties may be contributing to parental alienation should contact an attorney immediately before the damage done to the parent child relationship is irreversible. This is particularly important in cases involving false allegations of abuse.

Sarah Armstrong
Albuquerque Attorney

www.CollinsAttorneys.com

Leaving the State

September 7, 2010, by

One issue that can complicate any child custody arrangement is one parent's decision to leave New Mexico and their desire to take their child with them. While the court cannot prevent a parent from moving, it can prevent the parent from taking a child with them. If the parent wants to move prior to a divorce or paternity action being filed, they will most likely be prevented from doing so by the temporary domestic order entered by the court in nearly every family law case. If the parent wants to move after a parenting plan and custody order has been entered by the court, the plan itself should address whether or not one parent can move with the child.

If both parents agree that one parent can leave New Mexico with the children, then they should file a pleading with the district court that notifies the court of their parenting agreement. If the parties do not agree, then the party wishing to move can file a motion asking the court to allow him or her to relocate with the child. Once a parent decides to move, they should first discuss the proposed move with the other parent in order to see if an agreement can be reached. If not, then the parent who wishes to move needs to file their motion to relocate as soon possible because it can take weeks if not months to get a hearing before the judge.

In considering a motion to relocate, the court will look at many of the same issues it looks as in any custody evaluation. The basic question asked by the court will be whether or not the move is in the child's best interest. This includes things like: what support systems will be available to the child in his or her new home; how attached the child is to the family and community they will be leaving behind; the wishes of both parents; and, depending on the child's age, the wishes of the child. The court will also examine the distance between New Mexico and the proposed new home and the ability of the parties to travel for visitation, as well as the moving parent's reason for wanting to relocate.

Acting quickly and understanding the complicated nature of child custody decisions is key to success in getting the court's approval to relocate with a child or preventing that relocation. Thus, is it imperative that any parent in such a situation contact an experienced New Mexico child custody attorney as soon as possible.

Sarah Armstrong
Albuquerque Attorney

www.CollinsAttorneys.com

The Best Interests of the Child is the Goal of New Mexico Courts in Child Custody Matters

September 2, 2010, by

The primary goal of the New Mexico Courts in any child custody and time-sharing decision, whether it is part of a divorce or paternity case, is to find a solution that is in the "best interests of the child." Parents and their attorneys can often spend a lot of time and money trying to convince the court that their proposed custody arrangement is in the child's best interest, but the parties often fail to consider the same factors in this determination as the Court.

The court, or sometimes a child custody evaluator or guardian ad litem appointed by the court, will look at factors like: the wishes of each parent regarding custody; the child's relationship with each parent and their siblings and any other people living in the parents' home; the physical and mental health of the child, the parents and anyone else directly involved in the child's life; how well-adjusted the child is to his or her community, school and each parent's home; and, if the child is fourteen or older, the wishes of the child.

Obviously, these factors are broad and require the courts to examine everything from the child's grades to concerns about drug abuse by the parents to the child's ability to get along with their step-siblings. Given how many facts must be considered by the court in making custody decisions, it becomes clear why such decisions are rarely made very quickly. In fact, it may take several hearings for the court to rule on a parenting plan and may involve outside experts charged with interviewing everyone involved. The complexity of the determination also explains to some degree why even with the most well intentioned parties, the determination of child custody can be highly contentious.

The complicated nature of custody decisions suggests that a parent faced with a custody dispute should speak to an experienced divorce and family law attorney immediately if at all possible. An attorney experienced in child custody may be able to minimize the conflict in child custody process. Of course, much the attorney's success in keeping conflict down will depend on the parties and the other attorney.

Sarah Armstrong
Albuquerque Attorney

www.CollinsAttorneys.com

Parental Alienation: A Serious and Growing Problem in Family Law Cases

August 31, 2010, by

Some of the issues facing parents involved in a divorce or paternity action involving child custody are not specific to New Mexico, but occur all over the United States. One such issue, which has become increasingly recognized by family law courts during the last 20 years, is the concept of parental alienation.

Parental alienation is generally discussed in the context of a contested custody dispute, although elements of parental alienation can certainly be found in intact families. When the research about parental alienation first began being published, it focused on situations in which one parent sought to alienate the child from the other parent by doing things like preventing visitation between the child and the other parent and bad-mouthing the other parent to the child. Frequently, one parent would go so far as making false allegations in court to prevent the other parent from seeing the child.

The current research has revised the concept of parental alienation to extend beyond just one parent and to examine how the actions of both parents, and sometimes extended family, can work to alienate a child from a parent. Whatever the cause, parental alienation is a serious situation and if it goes on long enough, it can result in a parent-child relationship that is irretrievably broken.

Psychological therapy or counseling is often recommended for all of the parties involved in a parental alienation situation. If a party to custody action believes that alienation is an issue, they will need to bring that to the court's attention as soon as possible so that the court can order the necessary therapy and start putting in other safeguards to stop the breakdown of the parent-child relationship.

Parental alienation is taken very seriously by the New Mexico courts. The court above all is charged with promoting the best interests of the child. Anything that interferes with this goal which includes interference with the parent-child relationship is dealt with very seriously. An experienced divorce and family law attorney is essential to getting these issues heard and addressed by the court before it is too late save the parent child relationship.

Sarah Armstrong
Albuquerque Attorney

www.CollinsAttorneys.com

Three Basic Classifications of Support in a New Mexico Divorce

August 19, 2010, by

When families split up, parties are often concerned about how they will continue to support themselves and their children. In New Mexico family law, there are three primary types of support awarded by the court: child support, spousal support, which is also called alimony, and interim support. The district court with which a divorce or parentage action is filed has the authority, or jurisdiction, to order one party to pay the other all three types of support.

The most commonly asked about form of support is child support, which is governed by the New Mexico Child Support Guidelines. The child support guidelines were created by statute to provide a clear calculation of child support that begins with both parents' gross monthly incomes and then gives credit to both parents for amounts paid for work-related child care and health insurance coverage for their children. In New Mexico, the child support guidelines are mandatory and must be followed unless a court finds good cause for deviation from the guidelines. It is quite simply a mathematical calculation. Of course, this will not stop arguments over the beginning basis of gross monthly income.

In contrast to child support, spousal support is not mandatory in New Mexico. The courts will look at a variety of factors in deciding whether or not to award spousal support, including the length of the parties' marriage, the relative earning capacity of each party and the parties' age and health.

In turn, interim support (interim division of income and expense) is different from both child support and spousal support because interim support is only effective from the date of the parties' separation until their divorce is finalized. It is calculated by adding all the income of the parties, subtracting all the allowable expenses, and dividing what's left over equally between the parties. This is often a hotly contested calculation.

By contrast to interim support which terminates upon finalization of the divorce, child support and spousal support are normally only effective once a divorce is finalized. Both interim support and spousal support are only available to parties who were married, whereas child support is imposed in any case in which parties share a child, whether or not they were married.

Calculation of any of these types of support can be complicated and will depend heavily on both parties providing accurate income information. Contacting a qualified family law attorney can help parties collect income information in order to ensure that any type of support is fairly imposed and enforced by the courts.

Collins & Collins, P.C.
Albuquerque Attorneys

www.CollinsAttorneys.com

Interim Division of Income and Expense in New Mexico Divorce Cases

August 17, 2010, by

Depending on the circumstances of a divorce, there can often be months or years that elapse between the time the parties separate and the finalization of the divorce. This delay can be caused by a variety of reasons from the legitimate to the malicious.

No matter the reason, the parties' debts still need to get paid while the divorce is pending and both parties are entitled to a portion of the community income. New Mexico Rule 1-122 accordingly allows the court to issue interim orders allocating income and expenses. The payments awarded in these orders is often referred to as interim support.

The premise underlying interim division of income and expense or interim support is that even though the parties may be separated, they are still technically married, which means that all of their income and debts are still community and must be allocated equally between the parties.

In order to calculate interim support, the court, or more often the parties themselves and their attorneys, creates a table that starts with the parties' gross monthly income. The court then allows each party to subtract their regular monthly payroll deductions to reach each party's net monthly income. Each party is then allowed to deduct their regular and necessary monthly expenses from the net income, which include among other things rent, mortgage payments, utilities, car payments, insurance, phone bills and the minimal monthly payment on credit card bills.

The money left between the parties after the subtraction of monthly expenses from net monthly income is referred to as the parties' spendable income. If the number for the parties' net spendable income is positive, then an equalization payment must be made so that each party gets half of the community's total monthly spendable income. If the parties have children, then an extra percentage may be added to the equalization payment to compensate the party with whom the children are primarily living. This equalization payment is called interim support.

What expenses can be included in an interim support calculation is often the subject of great conflict between the parties due to the allocation of the remaining net monthly income after deduction of these expenses. Both parties will often fight very hard to create an income and expense sheet most favorable to them in the end equalization of income.

Interim division of income and expense can be critical to the interests of the parties while the divorce is pending. However, this division is often both complex and contentious making it important to consult with an experienced New Mexico divorce and family law attorney in addressing these issues.

Sarah Armstrong
Albuquerque Attorney

www.CollinsAttorneys.com

Custodial Interference in New Mexico Divorce & Family Law Cases

August 5, 2010, by

What happens if parties to a divorce or paternity case have gone through all of the mediation and court hearings required to reach a parenting plan that establishes child custody, but one parent just won't comply with the Court's order? In New Mexico, the non-complaint party may be charged with the crimes of custodial interference or unlawful interference with custody.

These crimes are similar and both are fourth degree felonies which means that a person found to be guilty of either crime, may be imprisoned for up to 18 months and fined up to $5000. In addition, the offending parent may suffer additional consequences in the family law court with awards of attorneys fees and costs. The crime of custodial interference is committed when one parent maliciously takes, detains, conceals or fails to return a child to the other parent by the terms of the parenting plan or custody orders without good cause and with the intent to deprive the other party of custody for a protracted period of time or permanently.

In contrast, the crime of unlawful interference with custody is committed when a party who does NOT have a right to custody of a child maliciously takes, detains, conceals or fails to return the child to the party who rightfully has custody. Any law enforcement officer that is called upon to investigate a charge of custodial interference or unlawful interference with custody may take a child into protective custody, if that officer believe that a person may flee with the child. The child may then be returned to the custodial parent or may be held in a community-based shelter until a civil court can hold a hearing to determine or enforce custody.

While law enforcement has the authority to investigate and take action in both types of custodial interference cases, it can be very difficult to track a child down once a parent or other party has taken them. Thus, any person faced with such a situation should call law enforcement immediately and should also consult an experienced child custody attorney to make sure that their custodial rights are protected once the child is recovered.

Sarah Armstrong
Albuquerque Attorney

www.CollinsAttorneys.com

Consequences of a Domestic Violence Order of Protection Under the New Mexico Family Violence Protection Act

August 3, 2010, by

In New Mexico, the Family Violence Protection Act allows a victim of domestic violence to file a petition for order of protection, asking the Court to enter an order of protection preventing the person committing the domestic violence (called the restrained party) from having any contact with the abused party (called the protected party). Orders of protection are a specific type of civil restraining order and they can have a variety of consequences for all of the parties involved.

The primary consequence of an order of protection is that the restrained party cannot go within 100 yards of the protected party's home or workplace and must stay 25 yards away from the protected party in public. An order of protection may also prevent or regulate contact between any children that the parties may have together. The order of protection also prevents telephone, which includes texting, and e-mail contact between the parties.

All of these requirements will be explained in the actual order of protection; however, an order of protection has other consequences that are not as clear. If the order of protection is issued after a hearing at which the judge or special commissioner makes a formal finding of domestic violence, then the order may have long-term consequences on the restrained party's future employment opportunities, firearm rights, and immigration rights. The immigration consequences are perhaps the most serious of the collateral consequences since a finding of domestic violence may result in removal or deportation of the immigrant offender. Because of these very serious consequences, the parties may also agree to a Stipulated Order of Protection that does not include a finding of domestic violence.

Both types of orders of protection are filed with the National Crime Information Center (NCIC) so that they can be easily enforced by police across jurisdictions. In the case of a stipulated order, the restrained party is still prevented from any and all contact with the protected party and cannot possess a firearm while the stipulated order is in place, but there is no formal finding of domestic violence that would have to be reported later when applying for jobs, a firearms license or immigration procedures.

Finally, a violation of an order of protection can also result in criminal and civil penalties, including fines, jail time or both. Thus, if you are a party to a petition of order of protection, it is important that you discuss your case with an to make sure that the appropriate type of order of protection is entered and to ensure that it is properly enforced.

Sarah Armstrong
Albuquerque Attorney

www.CollinsAttorneys.com

Default Divorces: The Last Resort in New Mexico

July 30, 2010, by

Family law may be the most emotionally fraught area of the law. Parties to a divorce, paternity , child custody or child support action may be dealing with major changes to the most basis aspects of their family and financial lives. This level of emotion can lead parties to simply refuse to respond to documents filed by their spouse or the parent of their child. Of course, sometimes parties fail to response for other reasons, but whatever the cause the result can be a real pain to deal with for both the courts and the party filing the court action.

When a party fails to respond to an action filed with the court, the party who filed the action can ask that the court grant what is called a default order of dissolution of marriage. As part of the application for a default order, the party seeking the relief of the court must first show that the non-answering party received proper notice through service of process, and has still failed to respond.

Defaults are not favored in the courts. This is particularly true in family law matters. The default process can be very time consuming process. Even with proof of service, the court may order that the party seeking relief publish notice in the newspaper to make sure that the non-answering party had an ample opportunity to respond.

Even then, the court may require that the filing party come to a hearing and tell the court all of the steps taken to try to reach the other party. If the court is satisfied that good faith steps were taken to apprise the non-answering party of the court's proposed action and the non-answering party still refuses to answer, the court will most likely issue a default order granting the filing party whatever relief it has sought from the court, as long as that relief is allowed by law.

Then comes the bad news. Default orders in family law proceedings often get set aside. Again the courts do not favor defaults. Default judgments are generally disfavored in New Mexico because they deny the non-responding party his or her basic constitutional right to notice and an opportunity to be heard. They are even more disfavored in family law cases due to the issues that are involved such as a child custody and child support which are by definition modifiable. Thus, even when the default order is upheld, much of the order may be modifiable anyway.

It is best to avoid the default order if at all possible. The attorney fees and costs can be significant and in the end, the order may be set aside or modified. However, if it is unavoidable then it is imperative that all of the proper procedural steps be followed when obtaining a default order. To avoid missteps, it is important to seek the advice of an experienced divorce and family law attorney.

Sarah Armstrong
Albuquerque Attorney

www.CollinsAttorneys.com