Albuquerque Divorce Lawyer Blog

New Mexico does not recognize common law marriage, even if you and your partner have lived together for years and for all intents and purposes act as a married couple in New Mexico.

However, approximately sixteen states still recognize common law marriage for couples who have lived together for a significant period of time and hold themselves out to the world as a married couple. Some states are phasing out common law marriage and have enacted rules that only recognize such marriages if they occurred before a specific date.

If you moved to New Mexico from a state that recognizes common law marriage, and you are deemed to have been married under the laws of that state, New Mexico courts may recognize your marriage as a valid one. This happens because under our federal Constitution, each state gives full faith and credit to the laws of their sister states.

However, you would have to prove that you were legally married in the other state before you could have this recognition in New Mexico. This could be an expensive and difficult exercise in the court system. On the other hand, there are many considerations, particularly financial issues, that dictate this path. You should discuss the pros and cons of this kind of case with an experienced family law attorney and probably your accountant before you go down that road.

There are numerous financial issues that should be considered. One reason to consider pursuing this kind of case would be at the end of the relationship if you need and would qualify for spousal support. Spousal support is only available to couples who have been married. Another scenario where it makes sense is when one partner dies without a will and the other would be disinherited unless they were deemed to be a legal spouse. Likewise, there may be estate tax considerations upon the death of a partner. Finally, in case of a legal marriage, the division of property and debt will be governed in most cases by community property principles.

In short, common law marriage is generally not recognized. However, under full faith and credit provisions of the U.S. Constitution, it must be recognized under certain circumstances. The burden is on the couple or party seeking recognition of the marriage and this can be a difficult task.

Collins & Collins, P.C.
Albuquerque Attorneys

Individuals contemplating divorce often, and rightfully, are concerned about the status of their health insurance. Health insurance is frequently carried by one or the other spouses through their employment. The question that most frequently arises is whether one spouse can cancel the other from their employer based health insurance upon filing of divorce.

The answer is probably not, at least not without violating a court order. Insurance policies are generally covered by a Temporary Domestic Order issued by the Court when you file for divorce. This "TDO" forbids the parties from canceling each other's insurance. In Bernalillo County, for example, the form TDO instructs the parties to "not drop or cancel any insurance policy, . . . including medical or dental or life insurance." These orders may vary from county to county, but the general intent of them is to preserve the status quo while a divorce action is pending.

This does not mean that you can wait until your divorce is final to make arrangements for insurance following divorce, especially if you have a pre-existing condition that may impair your ability to obtain your own coverage. In fact, this is a very important consideration from the beginning of your journey through the divorce process.

If you are employed, first check with your employer to see whether it offers insurance and whether you qualify for the plan. You may need to work a certain threshold of hours per week to qualify for an employer plan. If you qualify, find out what the premiums are and what sort of coverage is offered. Most plans allow you to join upon certain major life changes, which usually include divorce, so you may not have to wait until a new plan year begins to obtain coverage.

If you don't have employer insurance available, you should apply for coverage with several insurers simultaneously to see whether you qualify for an individual policy. This is something to discuss with your attorney at the beginning of your case. If you are rejected, there are other possible options such as the New Mexico High Risk Insurance Pool and its federal counterpart. Some of the high risk insurance pool options will even cover pre-existing conditions if you satisfy strict plan requirements, so you definitely should not delay in consulting with representatives of these plans. There are also premium reduction opportunities for low income individuals.

Keep in mind that the Temporary Domestic Order is binding on the parties only through the finalization of the divorce. After that, not only may one party cancel the other from his or her insurance, it may not be possible to keep the ex spouse on the plan even if desired by both. This is in fact the most persuasive argument for a legal separation in lieu of divorce.

Health insurance is a major concern for divorcing individuals. The issue should be addressed very early since it may influence the course of the divorce, the marital settlement agreement, alimony issues and even weigh against filing for divorce at all.

Collins & Collins, P.C.
Albuquerque Attorneys

It is not often that the United States Supreme Court hears a family law case, so the Court's June, 2011, ruling in Turner v. Rogers has made a big impact and that impact can definitely be felt by family law practitioners in New Mexico.

The Turner case involved a father in South Carolina who was held in contempt and jailed for failure to pay child support. The opinion includes a long discussion of the right to counsel and what procedural safeguards are necessary to prevent an unconstitutional deprivation of liberty when parties to a civil proceeding face incarceration. The initial holding is that parties to a civil proceeding, even when that civil proceeding can result in jail time, do not have right to counsel under the Sixth Amendment.

However, the Court went on to hold that a contempt proceeding for failure to pay child support must provide some protection of the delinquent parent's due process rights. The safeguards include: 1) notice to the delinquent parent that his or her ability to pay is critical issue in the contempt proceeding; 2) the use of a form or some standardized procedure to gather the delinquent party's financial information; 3) a hearing at which the delinquent parent is allowed to present evidence as to his or her financial status; and 4) a specific finding by the court that the delinquent parent has the ability to pay.

Given this new ruling, the judges in the Second Judicial District for Bernalillo County, New Mexico, which encompasses much of the Albuquerque area, have recognized that the ability to pay is the key issue in contempt proceedings for failure to pay child support. Thus, they are now requiring attorneys who file motions for orders to show cause (which include a request that the responding party be held in contempt) to provide a responding party with a form designed to elicit their financial information.

In addition, the Court has will also ensure that a hearing will be held on all such contempt motions at which the allegedly delinquent parent be allowed to give statements and answer questions about his or her financial situation. And, finally, they are requiring an express finding that an allegedly delinquent parent has the ability to pay the support ordered before holding him or her in contempt.

Now, as is often true, the Turner case may create more questions than it answers. For instance, it specifically does not apply to cases wherein the state may be owed money because it has been making welfare or TANF payments on behalf of a child not being supported by the delinquent parent. This leads to the question of how the Turner ruling will affect cases when the Child Support Enforcement Division is involved and whether, ultimately, there may be additional procedural safeguards in those situations. For now, it suffices to say that Turner has changed the way courts around the country, including New Mexico, address the payment of child support.

Collins & Collins, P.C.
Albuquerque Attorneys

With respect to child support, the rule in New Mexico is that both parents have a duty to support their children. The amount of the monthly child support is determined by the New Mexico Child Support Guidelines, which are meant to be uniformly enforced across the state, so the support should be the same whether you live in Albuquerque or Las Cruces. The amount of support is also the same whether it is awarded as part of a divorce or a paternity action and continues until a child turns eighteen, or until the age of nineteen if the child is still in high school. Unfortunately, given the current state of the economy, many parents are finding themselves unable to pay their court-ordered child support.

While the Courts understand that many parents have lost jobs during the past few years, the New Mexico Courts take parents' responsibility to support their children very seriously. This means that even if a parent has a reason for not paying child support, there can be severe punishment when they don't. If the Child Support Enforcement Division (CSED) is involved in a case, they have the ability to revoke a parent's driver's license or professional license if that parent doesn't pay support. CSED can also prevent a delinquent parent from getting a passport and can freeze their bank accounts and garnish their wages. In addition to the punishment delivered by CSED, the Courts can also hold a parent in contempt of court for failing to pay child support. Being found in contempt can be result in jail time and/or monetary sanctions. However, a recent United States Supreme Court case added some requirements to the contempt process that provides some relief for parents who are unable to pay support.

In Turner v. Rogers, a father was held in contempt for failure to pay close to six thousand dollars in court-ordered child support. After a hearing at which the father admitted that he hadn't paid the child support, he was held in contempt and sentenced to one year in jail. The Supreme Court held that parties generally can be held in contempt, and jailed, as part of a civil proceeding and that they are not entitled to counsel as part of such proceedings. However, that contempt proceeding must have other procedural safeguards in place that protect the delinquent parent's right to due process under the Fourteenth Amendment to the United States Constitution. One of the primary safeguards ordered by the Supreme Court was that a finding of contempt in the child support context requires an express finding that the delinquent parent has the ability to pay the child support. Thus, in a child support proceeding, a parent who is delinquent on his or her child support obligation cannot be held in contempt if that parent clearly establishes that they do not have the ability to pay the court-ordered support.

Of course, the ruling in Turner doesn't mean that parents will not be required to pay child support just because they show the Court that they don't have the ability to pay. The Courts will still have the power to impute income to unemployed, or under-employed, parents if the circumstances are right. And even if a parent is not held in contempt for failure to pay support, they will likely continue to accrue arrearages, or back support, that will need to be paid at some point. But the new ruling certainly provides additional protections for parents who are delinquent on child support obligations, especially those who are victims of the recent economic crises.

Though the Turner case provides some protection to delinquent parents, the consequences of non-payment of child support can still be quite harsh. The fact is that a delinquent parent can be held in contempt if the court finds the parent has the ability to pay and has not. Attending one of these hearing unprepared is highly inadvisable. Anyone faced with a child support delinquency, whether they owe support or the support is owed to them, should consult a family law attorney as soon as possible so that they can understand their rights and responsibilities under all of the applicable laws, including the ruling in Turner.

Collins & Collins, P.C.
Albuquerque Attorneys

There are many changes that result in the lives of individuals after divorce. One of the more obvious is the transition to a one-income household. The financial hardship that can occur may have some surprising consequences, particularly for the children involved.

The National Center for Children in Poverty (NCCP) defines poverty as the inability "to achieve the minimum decent standard of living" that permits a person to fully participate in mainstream society. Nationally, 42% of children in general live below the poverty level. In New Mexico, this figure is 52% according to the NCCP. These statistics include all children, regardless of whether or not they have been affected by divorce.

Yet, children of divorce have been specifically identified as a group more likely to live below the poverty level, according to a recent study released by the U.S. Census Bureau. In New Mexico, 53% of children living in poverty reside with just one parent.

Data shows that women head up most one parent homes. Further statistics reveal that women generally have less income earning potential. One possibility for this may be that prior to divorce, many women focus on raising children, rather than on developing job skills or furthering their education. Many times, divorced mothers just do not have the work experience or credentials needed to get good paying jobs.

Additionally, the continued care of children may prevent a divorced mother from accepting certain jobs. Jobs that require flexibility and travel are just not a possibility for women who have the sole responsibility of raising and supervising children. If child care is necessary, the expense can drain money away from other household necessities.

And, a divorced woman's support network may not be what it once was, as ties to in-laws or other family members and friends may have become strained due to the divorce. This can result in social isolation that keeps divorced mothers from being able to share burdens and responsibilities with others.

Not only are a child's basic material needs potentially compromised after divorce, but studies show that poverty can delay cognitive development and hamper a child's ability to learn. Worry over having one's basic needs met may impact the ability to focus and concentrate. Further, poverty can lead to emotional, behavioral and social problems among children of divorce.

Though the economic realities of divorce cannot be completely averted, there are ways to minimize the financial risks and strains of divorce. In addition to the terms of the divorce, marital settlement agreement and parenting plan which should be designed to insure the financial well-being of the children, there are also state resources available for high risk families and children.

If you are considering divorce, an experienced family law attorney can help to navigate the divorce process as well as the state programs available to avoid falling into a the downward spiral that poverty often brings with it, both for the parents and the children. In the event that you cannot afford an attorney which is very likely the case in these situations, there are a number of programs that provide free legal advice to low income, high risk families facing divorce.

Collins & Collins, P.C.
Albuquerque Attorneys

As the song says, breaking up is hard to do and that adage is true in any situation. It can be even more difficult when the parties who are breaking up have children or own property together. The New Mexico statutes governing child custody and child support provide that the same rules apply to the children of married couples and unmarried couples. However, given that the state of New Mexico does not recognize common law marriage, dividing property and debt can be very difficult for unmarried couples.

With respect to custody, when an unmarried couple breaks up, one of the parties will generally need to file what is called a parentage action in order to formally adjudicate the maternity and paternity of the parties' child. The parentage action should result in the court entering a parenting plan that provides the details of custody, timesharing and child support. This sounds simple and it can be when the parties' break up is amicable, but, of course, there are countless complications that can arise when the parties dispute custody. One common complication arises when the parties who are breaking up are the biological parents of one child, but have also been raising a child from one party's previous relationship. In other words, when one of the parties has been essentially acting as a step-parent to a child, although the parties aren't married. Upon a break up, the non-biological parent may want to establish visitation with their de facto step child, but don't technically have any rights to visitation because they are not a parent. However, there is New Mexico case law protecting a right to visitation, not full custody, for parties that have developed a close relationship with a child as long as that visitation is in the child's best interest.

In turn, division of property and debts can be very difficult when parties aren't married. Because the rules of community property do not apply to unmarried couples, the property will generally be kept by the party whose name is on the property, even if both parties paid for the property. Similarly, in the case of debts, both parties may have contributed to incurring a debt (for example, both making charges on a credit card) but the debt will generally remain the responsibility of the person who name is associated with the loan or account. This division can get even more complicated when the parties have actually put both names on a piece of property or debt. If they can't agree on a division, they may have to file a separate civil suit using theories of contract or unjust enrichment. Further, if the parties aren't married, neither party is entitled to spousal support or alimony. So, while the same child support rules apply to unmarried couples, the additional financial support sometimes awarded in divorces does not apply to unmarried couples.

Again, ending a relationship is hard no matter the circumstances. However, when there are children or substantial assets and debts involved, consulting an experienced family law attorney can help protect the rights and enforce the responsibilities of the parties in a break up. This protection and enforcement is especially important when parties aren't married because the principles of community property do not apply.

Collins & Collins, P.C.
Albuquerque Attorneys

Every marriage presumably begins with a lifelong commitment. This commitment is symbolized by the wedding rings. Unfortunately, many marriages do not go the duration and the symbolism is quickly lost on the parties.

Instead, the wedding ring goes in the communal pot for division like all other property. And the question quickly arises as to who keeps the rings. In fact, one of the most contentious issues in the property division portion of a divorce can be what happens to the parties' wedding and engagement rings, not only because such jewelry often has a high monetary value but also because the rings may have great sentimental value.

The rings may symbolize the hope the parties felt at the beginning of a relationship and, even though the relationship is over, parties may not want to let go of that symbol. Quite frequently, the wedding and engagement rings are family heirlooms that the giving party wants to stay in their family after the relationship is over. Perhaps, most frequent and most cynical, the rings simply represent property value that needs to be divided according the community property laws of New Mexico.

Generally, the New Mexico Courts hold that wedding and engagement rings exchanged pursuant to a valid marriage become the separate property of the parties to whom they are given. In other words, the rings are gifts between the parties and do not have to be returned upon divorce. As such, the value of those rings will not be included in a property division. However, this is not always true. In particular, if the parties still owe a debt associated with the rings at issue, the party assuming that debt may get to keep the ring. Or, the court may order that the rings be sold to satisfy any associated debt.

The discussion above applies only to the return of rings upon divorce. The Courts may rule differently about the return of rings when parties are engaged but break up before they are married. The New Mexico Supreme Court addressed this issue in the 1994 case of Vigil v. Haber, which was a case in which an engaged couple went through a nasty break up prior to their wedding. Originally, Ms. Vigil returned her engagement ring to Mr. Haber, but then objected to that return and wanted the ring back.

As part of an associated domestic violence action, the court ordered that the Santa Fe police should hold the ring until the court determined who should keep it. The district court initially held that Ms. Vigil could keep the ring because, although she had cancelled the parties' wedding, she did so in response to misconduct by Mr. Haber. However, the reviewing court overturned that decision and adopted a new rule in New Mexico with respect to the return of engagement rings. That rule provides that fault (or who did what to whom to cause a break up) will not be considered in an engagement setting. Rather, engagement rings are gifts given on the condition and in contemplation of a marriage and, if that marriage does not happen, the condition of the gift is not satisfied and it must be returned.

Of course, these general rules about the return of wedding and engagement rings may not apply in the case when parties have a valid prenuptial or other agreement as to how gifts will be divided. In any event, parties should think carefully before exchanging expensive rings or family heirlooms. Consulting an experienced family law attorney can help both parties understand their rights and responsibilities the exchange, and possible return, of rings.

Collins & Collins, P.C.
Albuquerque Attorneys

When a considering whether or not to get a divorce in New Mexico, most people are focused on the big issues, such as: child custody and time-sharing; determining who will keep the marital residence; and, dividing retirement accounts. In thinking about myriad of life changes they face upon completion of a divorce, a spouse's first thought may not be about changing their name.

A change of name is an important consideration because if parties forget to include language in their divorce documents allowing parties to change their names it can be difficult to go back and change their name later. In the past, the issue of name changes applied only to women wishing to return to their maiden names, but it could also apply to a man getting divorced if he took on his wife's surname or a hyphenated name when the parties got married.

A party's decision to change their name as part of a divorce is a personal choice that may depend on things like: the length of a marriage; wanting to keep the same surname as their children; and, a professional or political reputation that depends on recognition of the party based on their married name.

The court will not force a party to return their maiden, or previous name, even upon request of the opposing party. As such, one party as a point of pride, vindictiveness or any or other reason cannot force the change on the other. On the other hand, either party may elect to return to their former names and the other party cannot prevent it.

If a party to a divorce wants to return to their previous name, they will need to include language clearly identifying that change in the Final Decree of Dissolution of Marriage that completes their divorce. Once the Final Decree is signed by the Judge and entered by the Court it becomes a binding order and the party seeking to change their name can provide the Final Decree to all necessary parties.

For instance, government bodies like the Motor Vehicle Division, the Social Security Administration and the Internal Revenue Service will require the Final Decree in order to change their records and so will many banks and credit card companies. Given all of the formal documents and other paperwork that may need to be updated after a divorce, it becomes clear just how important it is to address a name change as part of that divorce action.

On a broader note, any New Mexico resident over the age of fourteen (14) can petition the district court in their area for a name change pursuant to the name change section of the domestic relations statutes. So if the name change does not take place upon dissolution of marriage, the parties may change names afterwards. However, that requires the opening a separate civil action, and payment of the associated filing fee, and publication of notice, which can be time consuming and costly.

Thus, it is much simpler to complete a divorce-related name change at the time of the divorce, but it is not impossible for a divorcing party to change their name later. The benefits and pitfalls of a name change are just one of the important topics that any party facing a divorce should discuss with an experienced family law attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

A person cannot be made a proper party to a divorce or family law case in New Mexico unless the New Mexico courts have jurisdiction over that party.

The issue of jurisdiction can be complicated and can vary depending on whether this case involves a divorce, custody or paternity. However, once jurisdiction is properly established, an out of state party can be faced with participating in family law litigation in New Mexico, which can be a very daunting task. Situations like these commonly arise when a divorce or custody action is started in New Mexico and then one party relocates, but the other party remains in New Mexico.

No matter the circumstances, if jurisdiction is properly established in New Mexico over an out-of-state party, he or she will not be excused from a court case merely because they do not reside in New Mexico. Any out-of-state party faced with this situation should seriously consider hiring an experienced family law attorney.

If the out-of-state party believes that New Mexico does not have jurisdiction, then their attorney can properly object to jurisdiction and have the court decide that issue prior to moving on to the substance of the case. Failure to properly limit a response disputing jurisdiction could itself lead to jurisdiction. The response should solely address jurisdiction o there is a risk that the judge will rule that the out-of-state party has submitted themselves to jurisdiction even though this was not the intention.

Once it has been determined that New Mexico has jurisdiction over an out-of-state party, that party soon find that litigating from out-of-state can be a very expensive and burdensome process when they consider the cost of travel and missed work for court appearance. To avoid these hardships, the parties may be able arrange for the out of state party to appear at some court hearings via telephone. However, most judges require that the party wishing to appear via telephone files a motion asking permission to do so.

A Motion for Telephonic Appearance must be filed well in advance of the subject hearing and may not always be granted. For instance, at a trial or other evidentiary hearing where extensive testimony or exhibits will be presented, the court may require that the out-of-state party travel to New Mexico to appear in person.

Although parties representing themselves can certainly figure out how to arrange for telephonic appearance, it is often much more efficient to work an attorney to make sure those appearances are approved. The cost of hiring an attorney is often well worth the costs when weighed against travel costs and lost income in the case where the party fails to follow court procedures and is forced to travel to New Mexico.

In addition to the telephonic appearance, one way to avoid hearing costs is to avoid unnecessary hearings. The attorney can play a very important role by working out many issues without a hearing, and by minimizing the number of hearings. This can include negotiating directly with the other party or their attorney, or finding a mediator that will allow the out-of-state party to participate in a mediation or settlement facilitation by phone. Hiring a family law attorney experienced in representing clients who reside outside of New Mexico can substantially improve an out-of-state party's chances of successful and cost effective family law litigation.

Collins & Collins, P.C.
Albuquerque Attorneys

Sadly, there are times in divorce or child custody cases when animosity arises not just between the parents themselves, but between one or both parents and their child. This can result in a severe breakdown in the parent-child relationship to the point where a child may want nothing more to do with a parent.

Of course, this sort of damage to the parent-child relationship can also occur in intact families and can be caused by a variety of factors, including: parental alienation; financial and emotional stress; physical and emotional abuse; drug and alcohol abuse; and/or seemingly no reason at all.

While the New Mexico Courts are committed to protecting the children of the state, the Courts also recognize that it is most often in a child's best interest for both parents to be involved in their life to some degree. Obviously, this is only true when a parent who has been abusive, or otherwise damaged the relationship with their child, demonstrates to the Court that he or she is committed to any changes necessary to making good parenting decisions.

No matter the cause of the damaged parent-child relationship, the Courts can get involved in these cases in a variety of ways. For instance, in a traditional divorce or custody setting, one parent may petition the Court to remove the child from the other parent's care and prevent contact between them based on the other parent's poor behavior. Given New Mexico's commitment to joint custody, the Courts will investigate such claims thoroughly and will remove a child only if it determines that further contact with the other parent is not in the child's best interest.

Other times these cases come before the Courts after the Department of Children Youth and Families ("CYFD") has received a complaint that a parent is abusing or neglecting a child and their investigation shows that such abuse or neglect has indeed taken place. In both instances, the Courts will give the parent who is prevented from contacting their child a chance to demonstrate that they are committed to changing the harmful behavior.

Typically that parent will need to regularly engage in individual therapy to address their anger or other issues. If drugs and alcohol are an issue, that parent may need to participate in treatment on an inpatient or outpatient basis. The court may also order parenting classes. In some cases, where there is a medical necessity, the court may order the parent to take medication as prescribed by a treating phsyicain or mental health professional.

Once a parent has completed the proper course of counseling, therapy and treatment, the Court may order that the parent participate in reunification therapy with the estranged child. The goal of reunification therapy is to mend the relationship between a parent and child, in other words to bring them back together or unify them.

The reunification process will generally move very slowly and will focus on rebuilding trust between the parent and child. Often, both parents will need to be involved in the therapy as it is very important for the child to see that the custodial parent is supportive of their new relationship with the other parent.

Damage to a parent-child relationship can be very serious and, unfortunately, is often permanent. When faced with such a situation, the Courts are forced to walk a fine line between protecting a child and facilitating reunification. Any party faced with this situation, whether as the custodial parent seeking to protect their child, or as the parent whose relationship is damaged, should contact an experienced family law attorney in order to protect their legal rights and those of their child.

Collins & Collins, P.C.
Albuquerque Attorneys

Parties to a divorce or family law proceeding often will try to tie child support to child custody and/or time-sharing. Parties will often use child support offensively to try to gain some advantage in the child custody or time-sharing.

In New Mexico, child support and time-sharing are determined based on independent factors. Custody and time-sharing are determined based on the best interest of the child. In turn, child support is determined by the parents' gross income, along with the cost of work-related child care and health insurance coverage for the child. Child support is affected by whether there is joint custody and where the non-custodial parent has more than 30% time-sharing. Other than that, the two are largely independent.

The issue comes up in a variety of situations. Among the most common is the parent that feels that because he or she does not have custody or the level of time-sharing that they desire that they should be relieved of child support. This is wishful thinking. In fact, even if there is no contact with the child at all whether by order of the court, denial of contact by the other parent or simple disinterest on the part of the non-custodial parent, child support is still owed in its entirely as calculated under the New Mexico Child Support guidelines.

Just as common is the situation where the parent entitled to child support will try to cut off contact with the parent for shortages or delinquencies in child support payments. This is also not allowed. A parent will not be denied time-sharing with the child for failure to pay support. On the other hand, there are numerous other unpleasant and costly consequences associated with the failure to pay support. The worst case is a finding of contempt for willful non-payment of child support which can lead to arrest and de facto denial of contact with the child, at least for the period of incarceration.

The less common, and perhaps the most surprising to the unsuspecting father, is the case where the father does not learn of the child until years after birth, sometimes many years. Though it does not occur often and depending on the age of the child, these fathers can be held responsible for child support back to the date of birth of the child despite the fact that the father was unaware of the child's existence and has gone on to build a family of his own. This can have financially devastating consequences, not to mention the emotional toll on the new family. However, the State of New Mexico's position is that the parents should pay for the support and maintenance of their children whatever the circumstances. Otherwise, as often happens, the costs falls upon the State.

In short, child support and child custody/time-sharing are essentially independent inquiries. One should not be used to manipulate the other. Nor can a parent avoid financial responsibility through non-contact with the child, even when the lack of contact is no fault of his or her own. If you are faced with a situation like this, chances are you have a bit of mess on your hands. These things can be quite complicated and difficult to straighten out. It would be wise to seek the guidance of an experienced divorce and family law attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

Divorce involves many adjustments and changes, including the separation of family members into separate homes, the division of property and the observance of child custody schedules. These disruptions can have profound and long-term effects on children. Many the negative consequences have long been established. One change that has only recently been noted involves the possibility of decreased math performance for kids involved in divorce.

A new study revealed that divorce may have negative effects on children's math scores. Hyun Sik Kim, a Ph.D. candidate in sociology at the University of Wisconsin-Madison used information collected from the Early Childhood Longitudinal Study, which consisted of 3,500 U.S. children entering kindergarten in 1998 through their 5th grade year. The study allowed Kim to monitor families throughout the divorce process.

The negative effect on math scores cannot be easily explained; however, it may be that the skills required for mathematics are more sensitive to external factors, such as divorce. Math involves more mental agility and concentration than other areas of study. If a child is dealing with anxiety or other negative emotions, there may be more difficulty in dealing with the complexity of mathematical equations.

Interestingly, math difficulties did not appear to surface during the time preceding the divorce, but only after parents were in the midst of the divorce process. Experts believe that this is an indication that pre-divorce conflict may not have as much do with poor performance as the sense of change and loss experienced by children in a divorce.

Unfortunately, there is no evidence that children suffering from a math setback associated with divorce ever catch back up to their peers, yet experts agree that more long-term studies are needed. And the news is not all bad, as there was no measurable drop in reading scores among children of divorce. Experts believe this area of study may not call on the same mental skill set as mathematics. Reading requires more memorization and less building upon previously taught concepts.

Parents can attempt to minimize the effect of divorce on their children by responding early, remaining available and providing support. They can also try to keep transitions as smooth as possible and provide some security through predictable and stable routines. Most importantly, parents can alert teachers to the changes in their children's lives. Teachers can then remain mindful to observe declines in math performance and provide added support when necessary.

If you are facing a divorce with children, the guidance of an experienced family law attorney can be invaluable in identifying the many options for minimizing the negative impact of the process on the children. Changes and stress may be inevitable in a divorce, but poor math performance need not be if parents are aware and sensitive to the issues. After all, the standard in New Mexico for child custody and time-sharing is the "best interests of the child" and failures in math hardly achieve this goal.

Collins & Collins, P.C.
Albuquerque Attorneys

For many working families, retirement savings can be one of the biggest assets in a marriage, which makes them a very important issue to be addressed during a divorce. Given that New Mexico is a community property state, each spouse is entitled to one-half (1/2) of the retirement earned or contributed to during the marriage.

There are a variety of different types of retirement plans, including pension plans, 401(k) accounts and IRAs. Each can give rise to its own set of issues. Here are some common issues that arise when dividing retirement accounts during a divorce:

1. Loans Against Plans
Sometimes, employers have plans in place where employees can take out loans against contributions they've made to these plans. This is a secured liability that can reduce the value of your assets (and consequently, reduce the value of the marital estate). Such loans not only reduce the value of the plan, but some plans will not let the account be divided or liquidated until the loan has been satisfied.

2. Timing
The time when a spouse obtained a retirement account, and when contributions were made to the plan, are important in determining how much of a retirement account is community property to be divided during a divorce. For instance, any retirement contributions made to a pension plan before the parties married is not considered community property in New Mexico and should be left out of the community property division. Tracking down all deposits and account earnings by time period can be a complex process. You might need the help of experts who can make these calculations for you. However, when it comes to pension amounts, there is a simple formula: Months of Marriage divided by Months of Employment x Pension Amount = Community Portion

3. Vesting
The vesting period is the period of time that an employee must stay in their position at work before they become entitled to the benefits of the company pension plan. The Employment Retirement Income Security Act of 1974 (ERISA) shortened the vesting period time for defined benefit plans in order to ensure that employers did not get unjustly enriched as a result of the rapidly mobile workforce. When valuating community property for purposes of a divorce, there can be a question of whether the pension benefits that accrued before the vesting period should be included in the marital estate.

4. QDRO
Once the parties have agreed how the retirement plans will be divided, most plans require the Court to enter a Qualified Domestic Relations Order (called a QDRO for short) which orders the company servicing the retirement plan to divide the asset. QDROs can be complicated documents because they must include instructions based on the parties' divorce settlement as well as the internal requirements of the company servicing the retirement plan and ERISA regulations.

Given the intricacies involved in valuing and distributing retirement plans in a divorce, it is extremely important to consult a divorce attorney in order to ensure that the account is properly divided.

Collins & Collins, P.C.
Albuquerque Attorneys

As a community property state, one of the primary issues in any divorce proceeding in New Mexico is valuing the assets and debt accrued by the parties during the marriage so that all of the community property and debt can be equitably divided. After the parties have fully disclosed and identified all assets and debts, and put preliminary values on those items in order to determine whether further valuation is necessary, there are several additional steps for a fair valuation and allocation of the community property and debt.

First, the parties must identify separate property and debt. This separate property and debt should be clearly identified and separated out of the community estate. Once the parties have identified and allocated the separate property and debt of each party, they must determine the value of the remaining assets and liabilities.

Valuation is the process by which the marital estate is boiled down to economic fact--it serves as a safeguard against material misstatements of value and provides the information necessary to facilitate settlement, or establishes the values that will be used at trial if parties cannot settle. The valuation itself, even under the best of circumstances, can be complex and contentious.

There are a variety of valuation methods available and many times the parties will disagree not only on values but on the methods of valuation. Parties will save themselves money and time if they can agree on values, or at least valuation method prior to settlement or trial. Often the parties can agree informally on a value, however, the more complicated the marital estate, the more likely it is that the parties will want to use more formal valuation methods.

Here is an example: in the process of valuing a house, there is a progression through stages from the least credible to the most credible.

• Least credible: The parties' individual representations regarding what they think the house is worth.
• More credible: A market analysis, conducted by a realtor or other person who has expertise in real estate, places a value on the house. The key here is for the parties to agree on the third party realtor. Without an agreement, this simply cements the foundation or future disputes over value.
• More credible: A formal appraisal, done by someone who is trained in real estate appraisal and who has been hired by the parties. It is not uncommon for the parties to seek separate independent appraisals when headed to trial. This approach can be very expensive.
• Most credible: Sale of the house on the open market. This is the most reliable way of valuating the house, for marital estate division purposes. It is often also the most emotional.

Any party to a divorce should consult with an experienced family law attorney in order to determine what sorts of valuation methods are appropriate for their case. The higher the level of credibility the evidence is, the more likely it is that the court will accept the value presented

The process of preparing a summary of the marital estate is an important piece of the puzzle in completing a divorce. It is important to keep in mind that it is ultimately up to the parties to agree on the value. Naturally, there will be some difference of opinion. It is when this difference of opinion is not based in economic reality that the process can get highly contentious, stressful and expensive. This is typically the path you would want to avoid.

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Department of Children, Youth and Families ("CYFD") is charged with investigating and preventing abuse and neglect of children, as well as providing a variety of other services to New Mexican families. Unfortunately, allegations of abuse or neglect, whether true or not, commonly arise during a or other child custody dispute and CYFD may become involved in investigating those allegations.

Parties should never be deterred from contacting the proper authorities, including CYFD, if they suspect that their child, or any other child, is being abused or neglected. In fact, certain people, such as education and health professionals may be legally or ethically bound to report suspected abuse or neglect to CYFD. However, it is important to realize that such reporting has serious consequences. CYFD is authorized under the Children's Code to testify as to the contents of their investigation at any district court divorce or custody hearing, however, they are also authorized to bring specialized court actions against parents to remove a child from their parent's home, or in extreme cases, to terminate parental rights.

Further, once a complaint has been made to CYFD, their investigation may not be limited to just the party about whom the complaint is made. Not every complaint to CYFD results in a full-blown investigation and, in fact, many are deemed unsubstantiated and quickly closed. However, if CYFD determines that more investigation is necessary, the CYFD case worker is allowed to speak: directly with a child, with or without a parent present; with both parents; with any other family members; and, with any other people involved in a child's life, including teachers, doctors or even neighbors. And, the testimony of CYFD investigators and case workers is given great weight by the Courts because the great responsibility given to them by the Children's Code. Thus, in a "he said/she said" situation between CYFD and a parent, or other caregiver, the Court will often side with CYFD even when CYFD's testimony may be based on hearsay or other evidence that is normally admissible.

Therefore, anyone thinking about using an invalid CYFD complaint to gain the upper hand in a custody battle should think twice before doing so because if the complaint results in a full-blown investigation both parents may be subject to in-depth scrutiny of every aspect of their lives. Further, once CYFD makes recommendations, much of the decision-making regarding the child may be taken out of the parties' hand, resulting in a custody determination that neither party likes. On the other hand, anyone who is subject to a CYFD investigation should consult a family law attorney immediately in order to ensure that they properly comply with CYFD while also protecting their parental rights. CYFD involvement in a custody case can very quickly complicate the legal process and having counsel involved early on in that process may help to prevent some of those complications.

Collins & Collins, P.C.
Albuquerque Attorneys