Albuquerque Divorce Lawyer Blog

In New Mexico, a parent who is required to pay child support must generally pay that support until their child reaches the age of eighteen (18). However, that support obligation may continue until the child is nineteen (19) if the child is still enrolled in high school. Given that a child support obligation may continue for several years, there will often be changes in the financial status of the parents and/or their timesharing agreement that may require a modification of child support.

If the parents cannot agree on a child support modification, then the parent seeking to modify child support must file a motion with the court stating the grounds for the modification. Either parent may file the motion for modification. For example, if the supporting parent loses their job, they can file a motion asking the court to reduce their child support obligation. However, if the non-supporting parent finds out that that the supporting parent has received a raise, they can file a motion to increase child support. Remember that the timing of a motion to modify child support is important because any retroactive modification of child support will only be effective back to the date of filing of the motion.

In order for a court to modify child support, it must find that there has been a material and substantial change in the parents' circumstances since the entry of the last child support order. There is a presumption that a change in circumstances is material and substantial if more than one (1) year has passed since the entry of the last child support order and if the child support obligation will go up or down by at least twenty percent (20%).

One of the most common changes in circumstances that can cause the required twenty percent (20%) change in child support a parent losing their job. Even in good economic times, companies downsize or restructure and jobs are eliminated, which can result in a lay off. The court may modify child support after a parent has lost their job, but will take into account any unemployment benefits that the parent is receiving. Further, if a parent loses or quits a job and refuses to work at all, or is purposely working for less than they are capable of earning, the court may impute income to that parent. When the court imputes income, it looks at the education and past employment of the parent and determines a reasonable estimate of what a parent could earn if they were employed at their full potential. The court then uses that estimated income to calculate child support and the parent must pay child support based on that estimated income, whether or not the parent is actually earning that much.

In turn if a parent gets a promotion or new job with a significant increase in salary then the child support could go up the required twenty percent (20%). These increases often also occur when a parent that has been in school graduates and gets a job, or when a parent who has been staying home with a small child returns to work after the child begins kindergarten. Of course, in a return to work situation, the increase in income caused by one parent's new job may be offset by any daycare costs for the child, which will also be included in the child support calculation. Similarly, a modification of child support may be required when a child gets old enough to no longer need daycare and that expense can then be removed from the child support calculation. Whenever child support is reexamined, all of the factors included in a child support calculation must be examined, which is why parents should always exchange financial information and run their own child support worksheets before petitioning the court for a modification.

The law clearly provides for modification of child support based on change in the financial circumstances of one or both parents under the right conditions. However, determining whether not a change is significant enough to warrant modification can be complicated. Working with an experienced family law attorney can be essential not only in in determining whether or not a modification of child support is warranted, but also in determining what that child support amount should be.

Related Reading:
Ten Quick Facts About New Mexico Child Support
Loss of Income and New Mexico Child Support
Ongoing Exchange of Income Information: Benefits for New Mexico Child Support

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico, both parents are legally required to provide financial support for their children. When child support is ordered as part of a divorce or child custody dispute, one parent is typically required to make child support payments until their child turns eighteen (18), or until they are nineteen (19) if the child is still in high school. Depending on the timing of the child support order, parents can be paying child support for a very long time.

Given the substantial financial implications of a child support obligation, to both parents and their children, some parents choose to obtain life insurance policies that will pay their support obligation

style in the unfortunate even that a parent dies before their child turns eighteen (18). In some cases, the court may actually order a parent to obtain a life insurance policy and to maintain that policy until their child support obligation is completely satisfied.

Life insurance policies are available from a number of different places. Some employers offer life insurance to employees as a standard benefit. An employer-provided life insurance plan may not be sufficient to cover a child support obligation because they tend to have fairly low policy limits. However, employer-provided plans typically allow employees purchase additional coverage through the group plan. The major benefit of purchasing through a group plan is that it may not require completion of a medical examination, provided that the coverage stays under a certain amount.

Parents may also apply to purchase an individual life insurance policy directly from an insurance company. Insurance companies provide full life and term life insurance, and will offer significantly varied amounts of coverage. The insurance company will require a physical examination with a doctor or nurse, so that they can assess the health of the applicant. Any health conditions, along with smoking, will increase the cost of life insurance. Additionally, the cost of life insurance will vary depending upon the age and lifestyle of the insured person.

Once they have obtained life insurance coverage, parents may have several options for choosing the policy's beneficiary. The simple, direct approach is to name the child as the beneficiary of the life insurance policy. The problem with this approach is that it may provide a large lump sum to a child under the age of eighteen (18). Generally, a guardian will need to be appointed to administer the funds on behalf of the child. Then at age eighteen (18), the account must be given to the child outright. In the alternative, a trust fund could be set up and a trustee appointed to administer the life insurance funds. Or, the parent obtaining the life insurance policy may name the other parent as the beneficiary of the policy, which means that any proceeds would go directly to the other parent.

Given how unpredictable life can be, parents should carefully consider the options available for securing child support obligations. Life insurance can be expensive, but can provide both parents with an invaluable level of peace of mind knowing that their child will always be supported. Consulting with an experienced family law attorney is essential in any child support action so that parents on either side can understand their options for securing a child support obligation with a life insurance policy.

Related Reading:
Loss of Income and New Mexico Child Support
The Dangers of Not Documenting Child Support Payments
New Mexico Child Support Enforcement: CSED Enforcement/ Collection Methods

Collins & Collins, P.C.
Albuquerque Attorneys

Parents involved in a divorce or child custody matter may often find themselves bombarded with paperwork, including documentation of income, assets and expenses, which they hope will end once the court makes a final ruling in their case. However, any family law case involving child support can mean that the stream of paperwork will keep flowing until the child emancipates and a child support obligation creases.

This is because, in New Mexico, the courts maintain jurisdiction over the issues of custody, timesharing and child support until a child turns eighteen (18), or in some cases until the child turns nineteen (19) if they are still in high school. In turn, a section of the New Mexico child support statutes (2004 NMSA 40-4-11.4) provides that either parent may ask the other to exchange certain income and expense information on an annual basis.

All New Mexico child support orders should include some type of language requiring parents to exchange the following information at least once per year upon request by either parent: 1) federal and state tax returns for the preceding year, including all W-2 statements and IRS Form 1099s; 2) wage and payroll statements for at least four (4) months preceding the request; 3) proof work-related daycare costs and payment thereof for the preceding year; and, 4) proof of dependent medical insurance premiums and payment thereof for the preceding year.

The idea behind the annual exchange of income requirements is that parents should exchange this information every year in order to determine whether or not a modification of child support is warranted. Child support can only be modified by the court when there has been a material and substantial change in circumstances. The court will only find that a change in circumstances is material and substantial if it results in an increase or decrease in child support of at least twenty percent (20%). Thus, the courts want the parties to exchange income information and determine whether or not they meet the twenty percent (20%) requirement before either parent files for a modification of child support.

Not all parents request an annual exchange of income; some are content to carry on with an initial child support order for years. However, both parents are entitled to make the request and both parents are required to respond to such a request, which, depending on the age of their children, can result in parents exchanging paperwork for years and years. While the result of the annual exchange requirement may create a seemingly endless exchange of documents, it really is a good thing.

The annual exchange requirement is a method for parents to reevaluate child support yearly without necessarily having to involve the courts. If the income information shows that child support will not change, then the parents can go on their way until the next year. Or, if the income information shows that a modification of child support is necessary, then the parents can calculate and agree on a modification. Upon such an agreement, parents can simply submit as stipulated order memorializing that agreement to the court for approval. As long as the modification is clearly supported by a child support worksheet as required by the New Mexico child support guidelines, the court will likely enter the order and may not even require a hearing to do so.

Of course, the parents may not agree on a modification and may have to pursue court action to force the issue, but because of the annual exchange of income information, the parent pursuing the modification should be prepared to prove their case to the court. A parent on either side of a child support obligation is well-served to consult with an experienced family law attorney at any point in the child support process.

Experienced family law counsel can help parents complete and enforce the required annual exchange and handle the potential modification that comes from the exchange.

Related Reading:
New Mexico Divorce and Family Law Jurisdiction
The Basics of New Mexico Child Custody Jurisdiction
The Dangers of Not Documenting Child Support Payments

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Kinship Guardianship Act ("the Act") establishes a legal procedure that protects the relationship between a child and what is known as a kinship caregiver. Under the Act, a kinship caregiver is an adult who has been caring for a child as a parent would, but who is not the child's parent.

A kinship caregiver may be a family member, but does not have to be related to the child if that person has provided consistent care, maintenance and supervision of the child. The Act allows kinship caregivers to be appointed as legal guardians so that child they care for can have a safe and stable home.

Under the Act, a kinship caregiver may petition to be appointed as the guardian of a child when the child has lived with the kinship caregiver for more than 90 days, without either parent. The kinship caregiver must then show the court that the child's parents consent to the guardianship or that the parents are unwilling or unable to care for the child.

The New Mexico Supreme Court recently overturned a New Mexico Court of Appeals case involving the Act. In the case of Freedom C. v. Patrick D., the Court addressed a very specific portion of the Act that applies when one or both parents refuse to consent to the appointment of a kinship guardian.

The central issue before the Court in Freedom C. was whether both parents have to be deemed unfit and unwilling to care for a child before a kinship guardian can be appointed, or if a kinship guardianship is appropriate as long as each parent is either unfit or unwilling. The Supreme Court concluded that the legislature intended that each parent must meet only one of the requirements regardless of whether each parent meets the same requirement.

In Freedom C., the mother consented to the grandparents being appointed as the kinship guardians of her child. However, the father objected to the appointment. Prior the filing of the petition for kinship guardianship, the mother and the child resided with the grandparents for more than 90 days, but the father did not. Also prior to the filing of the petition for kinship guardianship, the grandparents were granted temporary custody of the child, but the parents were provided with visitation privileges.

The Court concluded that both parents satisfied the requirements of the Act because the father did not reside with the child during the 90 day period when the grandparents petitioned for guardianship and both parents were either unable or unwilling to adequately care for the children.

Pursuing a kinship guardianship can be similar to a traditional custody action in that the court is always concerned about reaching a decision that is in the best interest of the child. However, as Freedom C. shows, the procedural requirements for a kinship guardianship are very specific and can differ from those that apply in more typical custody disputes.

Anyone considering pursing a kinship guardianship action should consult with a family law attorney as soon as possible to ensure that they meet the initial requirements of the Act and to discuss how to successfully pursue a kinship guardianship claim.

Related Reading:
Extended Family Members Have Few Rights Over Children
Acquiring Third Party Child Custody in New Mexico
Petitioning for Guardianship Under New Mexico's Kinship Guardianship Act

Collins & Collins, P.C.
Albuquerque Attorneys

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

The Child Support Recovery Act (CSRA), often referred to as the "deadbeat-dad" (deadbeat parent) law, makes it a federal crime to flee a state in order to avoid having to pay a child support arrearage. The CSRA does not apply to every child support case. Rather, the CSRA is only invoked when a parent has willfully failed to pay child support resulting in an unpaid child support balance that exceeds five thousand dollars ($5,000.00) or that has not been paid in more than one (1) year.

When a case is being considered for referral to the U.S. Department of Justice, it must be evaluated to ensure that it meets all of the required elements of the CSRA. First, the non-custodial parent (NCP), or the parent who owes child support, must have the ability to pay. This does not mean that the NCP must be able to pay the entire arrearage. If the NCP can pay any amount towards the support obligation, their failure to do so is usually sufficient to meet the ability to pay requirement.

Second, the NCP must have willfully failed to pay his or her child support obligation. This means that he or she knew of the child support obligation and intentionally failed to pay. In order to show that the NCP knew of the support obligation, he or she must have been properly served the order for support. There should also be documentation available in the form of letters, notices, telephone calls and even contempt proceedings to demonstrate that the NCP does not intend to pay the obligation.

Third, the past due child support obligation must be greater than five thousand dollars ($5,000.00), or must have remained unpaid for more than one (1) year, and the NCP must reside in a different state than the child.

In addition to ensuring that the case meets the requirements of the CSRA, there are other factors that need to be considered before a case is referred for federal prosecution. These factors include the following:

1. Are there any non-federal criminal or civil remedies available that provide an adequate means to collect the child support owed?


2. Is there sufficient evidence available in order to obtain a conviction?


3. Does the NCP have the ability to pay toward the child support obligation?


4. Is there a pattern of repeated flight from state to state to avoid either the payment of child support or service of the child support order?


5. Is there a pattern of deception to avoid payment? This would include concealing assets or frequently changing employment.


6. Is there a failure to pay the arrearage even after a finding of contempt of court?

If, after evaluation, a case is referred for federal prosecution and the NCP is found guilty, then the penalties can be serious. For a first time offender, the failure to pay a child support obligation is a misdemeanor punishable by up to six (6) months in prison. Subsequent violations may include a sentence of up to two (2) years in prison. The CSRA also requires an order of restitution for the amount of child support owed at the time the NCP is sentenced and all orders for probation must require that the NCP comply with any current child support obligations.

Both federal and state governments take the obligation to pay child support very seriously. Any parent involved in a child support dispute should consult a family law attorney to explain their rights and duties under all of the applicable child support laws.

Related Reading:
New Mexico Child Support Enforcement: CSED Enforcement/ Collection Methods
Ability to Pay in Child Support Contempt Hearings
Loss of Income and New Mexico Child Support

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Family Violence Protection Act ("the Act") gives courts wide discretion in providing relief for victims of domestic violence in the form of a civil order of protection. Beyond provisions to ensure the physical safety of domestic abuse victims, the Act also allows courts to provide for the economic needs of domestic violence victims and their dependents.

An order of protection is a form of restraining order that directs the abuser (who is called the restrained party) to refrain from further abuse of, or contact with, the victim (who is called the protected party). Depending on the circumstances, the order of protection may also prevent the restrained party from having any contact with other members of the protected party's household, including their children.

Section 40-13-5(A) (3) of the Act allows a court to order a restrained party not to initiate any form of contact with the protected party, which includes face-to-face, telephonic, mail, email or Facebook contact, as well as attempt to reach the protected party through a third person. Any such contact constitutes a violation of the order of protection, which is a crime. The only way contact will be allowed is if the protected party dismisses the order of protection or order of protection expires and is not renewed.

The order of protection also prevents the restrained party from possessing a firearm pursuant to 18 USC § 922(g)(8) and may order the retrained party to get mental health treatment to address their abusive behavior, or substance abuse treatment if the court feels that drug or alcohol use was a factor in the abuse.

If the parties share a household, then the order of protection may include provisions to allow the restrained party to retrieve property from the shared residence with supervision by law enforcement. An order to vacate will often order the defendant to surrender keys and authorize the protected party to change the locks in order to prevent the restrained party from re-entering the home or damaging any property within the home. The court may also order the restrained party not to do anything else to interfere with the protected party's residence in the home like shutting off the utilities or discontinuing mail service.

If the parties have children together, section 40-13-5(A) (2) of the Act allows the court to award either party temporary custody of children and to provide for visitation and child support. The main consideration when awarding child custody, time-sharing, and child support will be the best interests of the children, which may include balancing the safety of the children and the protected party with protecting the parental relationship between the restrained party and their children.

It is important to remember that orders of protection not only bind the restrained party, but the protected party as well. For example, if a protected party seeks out contact with a restrained party, then those actions may result in the dismissal of the order of protection or the entry of a counter-order of protection against the protected party. The terms of the order of protection also bind law enforcement because it may require them to serve notice, arrest restrained parties for violations of the order, assist with orders to vacate, and implement standby procedures.

Depending on the facts of any domestic violence situation, an order of protection may have a very broad scope. It is important that both the restrained party and the protected party understand the terms of the order of protection, along with their rights and responsibilities. For this reason, it is always advisable for both parties to speak with an experienced family law attorney when dealing with an order of protection under the Family Violence Protection Act.

Related Reading:
A New Mexico Order Of Protection is Only Effective If Consistently Enforced
Violence Against Women Act Reauthorized By The U.S. Senate
Objections to Domestic Violence Order of Protection
Two Sides to Every Story: Mutual Orders of Protection in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

Domestic violence cases generally involve more than just the abuser and the victim. The children that live in these violent homes are directly impacted by the abuse going on around them. Children are frequently witnesses to the violence or are used by the abuser to control the victim. In some cases the children themselves suffer physical injuries as a result of the violence that was intended for another victim or directed at the children themselves.

Studies have shown that up to 90% of children from violent households are aware that the abuse is going on in the house. Some children actually witness the abuse while others may hear the victim crying, household items breaking, or the actual impact of physical blows to the victim. Children are very perceptive and, even at a young age, will often notice the blood, bruising, torn clothes and broken furniture that exist after the violent episode is over. Children are also very aware of the tension that exists between the adults in a violent home.

Sadly, it is not uncommon for the abuser in a violent home to attempt to use the children to control their victim. Control methods include actions like interrogating the children about the victim's activities and taking the children away from the victim, or threatening to take the children, in order to prevent the victim from fleeing. Even when the victim does try to leave the abusive situation, the abuser may continue to use the child as a means of control by engaging in battles over custody, holding the children hostage, demanding access to the children, and contacting the victim at work or home under the pretext of arranging visitation with the children.

Any time there is violence in the home; children are at risk of suffering physical injury at the hands of the abuser. In New Mexico 22% of children that are witnesses to domestic violence are reported to have experienced physical abuse, and additional 7% are reported to have been sexually abused by the offender. Physical abuse to the child can happen in ways other than direct abuse by the batterer. Sometimes the children are injured when they try to protect the parent/victim. Others are injured by objects thrown at the victim by the abuser. In addition to bodily injury, children often suffer other physical consequences as a result of domestic violence. Domestic violence frequently deprives children of housing, medical care, and proper schooling.

The consequences of growing up in a violent home extend well beyond physical damage. Growing up in an abusive household can have a profound impact on a child's self esteem, how they perceive and deal with authority figures, and their ability to establish intimate relationships. Many of these children have lifelong problems forming healthy emotional bonds and some will have difficulty with even basic social skills.

Domestic violence is a serious issue that cannot be ignored. There are many resources available to protect the victim and the children of domestic abuse. Criminal and civil charges can be brought against the abuser and protective orders can be issued to stop the abuser from having contact with the victim. An experienced family law attorney can help answer your questions and help identify the resources available to victims of abuse and their children.

Related Reading:
Domestic Abusers May Seek Control through Child Custody
Domestic Violence Orders of Protection Under New Mexico's Family Violence Protection Act
Abuse of Domestic Violence Proceedings: Playing Dirty in Divorce

Collins & Collins, P.C.
Albuquerque Attorneys

Clients often begin representation assuming that, when a couple is divorced, the husband will automatically pay the wife child support, and in some cases, alimony, which is in New Mexico is often called spousal support. The logic behind this belief is quite simple.

Historically, the husband was typically the "bread winner" or "provider" of the family and was routinely relied upon to provide the financial support for his family. This responsibility generally continued through divorce proceedings in the form of child support and alimony payments to the wife. However, as more and more women have entered the workforce during the past few decades, more and more wives have to pay child support and, at times, alimony after a divorce.

In New Mexico, child support is statutorily mandated and is based on the gross incomes of the parties, among other things. Therefore, the more income a woman makes, the more likely it becomes that she may have to pay child support to her former husband. In contrast, alimony is not mandatory in New Mexico, but rather is based on a set of factors which are set forth in the , including but not limited to, the length of the marriage and the age and ability of the parties. These Alimony Guidelines created in the Second Judicial District (Albuquerque) largely set forth the factors and calculation of alimony in New Mexico.

In some cases, alimony is awarded to pay for the cost of education or training for a spouse that has been out of the workforce during the marriage so that that spouse can become gainfully employed down the road. As an increasing number of husbands have stayed home to take care of children while wives worked, it has become more likely that a woman may have to pay alimony to help their former husband get back into the workforce. The award of alimony in these cases will also reflect the disparity of income between the parties.

A recent nationwide survey of divorce attorneys conducted by the American Academy of Matrimonial Lawyers found that the traditional notion of husbands always paying child support and alimony no longer holds true. More women are paying alimony and child support than ever before. In fact, fifty-six percent (56%) of the divorce attorneys that responded to the survey reported that they have seen an increase in the number of women paying child support, and forty-seven percent (47%) of the attorneys polled reported an increase in the number of women paying alimony to their former husbands.

And, the primary reason for this shift can be explained by the changing role of women in the workforce. Since 1980, the number of women obtaining professional degrees in law and medicine and holding high paying corporate positions has skyrocketed. These women are now earning more than their spouses and becoming the family breadwinners. During this same period of time, the number of marriages ending in divorce has remained relatively constant with about half of all marriages ending in divorce. Thus, the legal guidelines that determine who pays child support and alimony, and how much is paid, now often compel these highly educated and highly paid women to make the payments.

Obviously a divorcing spouse usually wants to minimize their financial obligations to their former spouse after a break-up. However, it is important to understand the changing dynamics of these issues and the way that custody and alimony payments may be decided in each individual case. An experienced divorce attorney can help explain these dynamics and the potential child support and alimony obligations inherent in a modern divorce.

Related Reading:
Calculation of Gross Income for New Mexico Child Support Worksheets
New Mexico Alimony: Til Death Do Us Part!
Three Basic Classifications of Support in a New Mexico Divorce

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico, the courts are required to address child support in any divorce involving minor children, or other determination of custody. The amount of child support is calculated based upon the income of the parents, specific child-related expenses, and the parents' custody arrangement using what are called child support worksheets. The payment of child support is mandatory and only in rare cases will a court deviate from the amount of child support due based on the child support worksheets.

Further, New Mexico law provides that child support payments should be made via wage withholding. The wage withholding order tells the employer of the parent ordered to pay support to take the child support payments directly out of the employee's paycheck as they would any other payroll deduction and to send the funds directly to the New Mexico Child Support Enforcement Division (CSED), or in some cases, directly to the parent receiving the child support.

The wage withholding order must state the amount of the child support payment as well as the length of time that support payments are to be made. The wage withholding order must also include the amount of any arrearage or back support due up until the day of the child support order along with the amount of any interest due on the arrearage. It is important to note that the maximum amount that may be withheld, along with any other wage garnishments, may not exceed fifty percent (50%) of the employee's income.

The court may make an exception to immediate wage withholding if it finds that there is good cause for not ordering immediate wage withholding or if the parents enter into a written agreement providing for an alternative way of satisfying the child support obligation.

Given that immediate wage withholding of child support payments is generally required under New Mexico law, the entry of a wage withholding order should not be viewed in a negative light by either the parents or the employer. In fact just the opposite is true. Wage withholding orders generally benefit both parents because it provides a means of tracking child support payments while ensuring that support payments are made promptly each month.

When a parent does not have regular employment, wage withholding may not be possible. Nonetheless, the parent ordered to make child support payment is still required to make the payments on time each month to either the receiving parent or to CSED. If the parent fails to make the payments CSED has many tools available to ensure that delinquent child support payments are collected, which includes everything from suspending the non-paying parent's driver's license to seizing their bank accounts and tax refunds.

Anyone looking at paying or receiving child support should discuss their rights and responsibilities with an experienced family law attorney, not only to ensure that the proper amount is being paid but to make sure that the payment is made in the most efficient way possible.

Related Reading:
New Mexico Child Support Enforcement: CSED Enforcement/ Collection Methods
The Dangers of Not Documenting Child Support Payments
Child Support Wage Withholding Benefits All!

Collins & Collins, P.C.
Albuquerque Attorneys

Unfortunately, sometimes the only witnesses to an act of domestic violence or abuse, besides the abuser and the victim, are the children. After a child is identified as a witness comes the question of whether the judge, hearing officer or special commissioner presiding over a domestic violence case will allow a child witness to testify.

In New Mexico, the Courts are incredibly reluctant to allow children to testify in any type of court proceeding. It is not typically in the best interests of the child to testify against one or the other parents. As such, the Court may use a variety of methods to gather information from children short of in-court testimony including, but not limited to: safe house interviews; custody evaluators; counselors; court clinicians; in camera interviews, and, guardian ad litems. However, in some, very limited circumstances, the Courts may allow children to testify.

A child's testimony may be crucial to the outcome of a domestic violence case, but the value of the testimony must be balanced against the numerous, negative consequences that testimony may have on the child. In many instances the child may feel a sense of loyalty to both parents and not want to take sides. Worse, they may fear being hurt if they testify against the violent party or being abandoned if they testify against the victim.

For these reasons, it is imperative that the court assess whether testifying will place the child in danger and ensure that necessary protections are provided for the child--including counseling to cope with potential emotional harm. Further, a child's loyalty to both parents and fear of reprisal by the abusive parent are also reasons why a child's testimony given in open court may not be inherently reliable.

Despite these concerns, New Mexico Courts have long considered children to be competent witnesses in the proper circumstances. While there is no particular age that has been determined to be conclusive of competency, in order to testify the witness must be capable of each of the following:

1. Ability to observe.
2. Sufficient intelligence.
3. Adequate memory.
4. Able to communicate.
5. Awareness of the difference between the truth and a lie.
6. Understand the obligation to tell the truth.

Determining whether a child is competent to testify can be accomplished through voir dire examination of the child as well as extrinsic evidence including testimony from doctors, psychologists, and/or therapists. Whether or not to admit a child's testimony falls within the broad discretion of the Court.

If your child's testimony is deemed necessary and your child is found competent to testify there are steps that can be taken to make the process as easy as possible for the child. For example, New Mexico Courts have found that it is permissible to use leading questions when a witness is "immature, timid or frightened" so long as "the words of the prosecutor cannot be substituted for the testimony of the witness." State v. Orona, 92 N.M. 450 (1979). Many Courts will also allow the use of what is called a "comfort item" for the child while testifying. For example, children have been allowed to hold a teddy bear while testifying because of the calming effect such items tend to have on children.

The question of whether a child should be called as a witness in a domestic violence proceeding, and the additional question of whether or not the Court will allow that testimony, is very complicated. Anyone facing such a situation, whether as a plaintiff or defendant, should consult an experienced family law attorney immediately.

Related Reading:
Domestic Abusers May Seek Control through Child Custody
High Conflict Divorce - What is It and How Do You Get There?
Child Custody and Timesharing in Domestic Violence Actions

Collins & Collins, P.C.
Albuquerque Attorneys

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