Albuquerque Divorce Lawyer Blog

New Mexico is a community property state, which means that upon divorce both parties are responsible for payment of one-half of the debts incurred during the marriage and are entitled to one-half of the property purchased or received during the marriage.

Thus, a key component to reaching a marital settlement agreement is valuing the marital estate, which consists of all assets (what is owned) and liabilities (what is owed) of a married couple. The courts use this formula: Assets - Liabilities = Net Marital Estate. As simple as that sounds, there are a number of important steps that must be taken in order to insure the accurate valuation of the marital estate.

First, and perhaps foremost, there must be full disclosure of all assets and liabilities. There are several ways to obtain complete disclosure. Initially, the parties would be wise to begin collecting information informally. This will help the attorneys narrow the scope of discovery. It will also point to possible problems and challenges to be expected in the formal discovery process. Anticipating and avoiding these problems where possible will hold down attorney time and fees.

Even beyond the initial informal collection phase, there are opportunities for cooperation. The formal process will begin with a Request for Discovery. Often times, this is a cooperative process with mutual agreement of the parties. On other occasions, the discovery process can be very contentious involving significant attorney time and expense. In these cases, it may be necessary to get the Court to issue an Order compelling discovery through the filing and hearing on a Motion to Compel.

For purposes of discovery and disclosure, initial evaluations such as whether or not the estate is marital, who gets what, and how much the estate is worth are really immaterial. What really matters at the beginning of this process is that there is full and complete disclosure of all assets and liabilities, no matter what their source, value or classification. This is important because:

• In some localities, parties will be penalized for failing to completely disclose all assets and liabilities. For example, if any hidden assets are discovered after the divorce, those assets might be given, in their entirety, to the other party.
• Each party needs to establish credibility and trust with the other party. This will facilitate negotiated settlement. However, if one party finds out later on that the other party hid or failed to disclose assets during the divorce proceeding, the chances of reaching a peaceful resolution will be greatly diminished.
• Of equal concern to most parties, a highly contested discovery process can result in significant unnecessary attorney fees.

As with most issues in divorce, discovery issues should be addressed in a civil and cooperative manner. This will reduce the stress and costs of the divorce. Unfortunately, discovery conflict cannot always be avoided but it can often be minimized. Due to the complexities of discovery and the valuation of the marital estate, it is generally advisable to work an experienced divorce and family law attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

The option for divorce is an adult right. Certain situations make continuing a relationship difficult, even impossible, particularly when differences appear irreconcilable. In fact, a divorce decree may usher in a period of relief and freedom for the adults involved; however, research shows these same positive effects may not transfer to the children involved. In fact, according to a longitudinal study of children of divorce over a span of twenty-five years, there are certain consequences that children may suffer long into adulthood after witnessing/enduring the divorce of their parents.

The children chosen for this study were considered to have achieved proper developmental and academic levels, and never received prior counseling for emotional problems. Children of poverty and ethnicity were not involved, thus the sample group consisted predominantly of middle-class, Caucasian children. Those constructing the study thought this group would present a look at divorce under the best possible conditions.

At the 25-year-mark, 73% of the original sample was interviewed, along with a similar group of people who had grown up within families who remained intact.

The study revealed that children of divorce, no matter the circumstances, may not be as resilient as once thought. Thus, the study recharted the impact divorce has on children as more of a life-transforming event that may stick with certain individuals indefinitely, than merely something that someone recovers from and moves on.

The findings for the impact on children are not surprising and have long been recognized. The adverse consequences to children include:

1. higher anxiety levels;
2. poorer views on the reliability of relationships;
3. more behavioral problems than their peers;
4. more difficulty in social situations;
5. less opportunity for higher education than their peers; and
6. earlier drug and alcohol use.

The long term consequences are equally concerning. Some of the findings in adult children twenty-five years later included:

1. intrusive negative memories and a sense of foreboding;
2. heightened fears of failure;
3. poorer conflict resolution skills.
4. more difficulty in decision making;
5. less likely to marry, and if married, less satisfied with their marriage and a higher chance of divorce; and
6. less likely to have children.

At the core of the difficulties for adult children of divorce are a loss of hope, a lack of positive images regarding marital partnerships, as well as difficulty in choosing their own partners and establishing healthy marital relationships.

So, what can be done to minimize the effects of divorce on children? The study suggests that giving kids an opportunity to truly voice their feelings and concerns through "expressive therapy" may help. This could be done in either individual or group settings, where the kids are taught how to deal candidly with tough issues such as love and trust.

It is also advised that therapists address abandonment issues immediately, so that participants don't flee the therapy relationship before progress can be made. Another suggestion involved parents having an open discussion with children, in an age appropriate sense, regarding the reasons for the divorce. It was discovered that many children felt an overwhelming sense of foreboding due to a lack of understanding. Lastly, counseling with both parents and children could explore the mistakes that had been made in the marital relationship, so that a child can learn conflict management and resolution skills.

Put most simply, it is recommended that parents reassure their children that once grown, they are capable of having lasting, healthy relationships of their own. The hope is to view divorce less as inevitable and more as a result of preventable human mistakes.

If you're going through a divorce, it is important to remain mindful of both short-term and long-term consequences children may suffer. Equally important is to be aware of some remedies that can offer both you and your child a brighter, more confident future. To guide you throughout the divorce process, contact an experienced family law attorney that can help you implement a plan to take both the consequences and remedies into account.

Collins & Collins, P.C.
Albuquerque Attorneys

Amid all of the emotional and financial trauma that can be caused by a divorce or child custody battle, parties often forget that they are part of a court proceeding. Even though family law matters are civil, not criminal, failure to abide by the court's order can still get the non-compliant party in big trouble. In New Mexico, violation of family court order can result in a finding of civil contempt, which can result in punishment by fine and/or jail time.

Now, many people think that any time they face a punishment that involves jail time they are automatically entitled to counsel under the 6th Amendment and that if they can't afford an attorney one will be appointed for them. However, the United States Supreme Court recently ruled that parties to a civil contempt proceeding are not entitled to free counsel under the Sixth Amendment of the United States Constitution.

In Turner v. Rogers, a South Carolina man, Mr. Turner, owed the mother of his child, Ms. Rogers, nearly six thousand dollars in court-ordered child support. After a hearing at which Mr. Turner did not have counsel and at which he admitted that he hadn't paid the child support, the South Carolina court held Mr. Turner in contempt and sentenced him to one year in jail.

During his appeals, which eventually led to the Supreme Court, Mr. Turner argued that his Sixth Amendment right to counsel was violated when he was jailed after being held in contempt for his failure to abide by the court's child support because he was not provided with free counsel.

The Supreme Court disagreed and held that the Sixth Amendment right to counsel only applies to criminal proceedings, even if a civil proceeding (like the one Mr. Turner faced and that parties to a New Mexico family law case could also face) could lead to jail time.

However, the Supreme Court also noted that the under the due process clause of the Fourteenth Amendment, civil courts cannot impose a punishment of civil contempt when a party has clearly established that he or she cannot comply with the court's order. This means that parties facing a civil contempt action must be provided adequate notice that the finding of contempt could result in incarceration and must be provided a fair opportunity to present and dispute evidence about his or her ability to comply with the court's order.

The Turner ruling clearly provides that a party facing a contempt charge for failure to pay child support, must be given the opportunity for a hearing before they are held in contempt. However, parties can be held in contempt for violating any family court order, not just child support orders. And anybody facing possible jail time for civil contempt will be fully responsible for obtaining his or her own attorney. None will be appointed by the State.

Thus, anyone involved in a divorce, custody or child support proceeding would be wise to seek the guidance of an experienced divorce attorney. The possible consequences for a finding of contempt are too serious to go it alone unless this is absolutely the only option.

Collins & Collins, P.C.
Albuquerque Attorneys

A significant source of contention issue in many divorces is the valuing and allocating, or selling, the marital home. For most couples in New Mexico, and around the country, the residence is the most objectively valuable asset shared by the parties and, at times, it is the only source of possible revenue available to pay community debts.

Though it seems it should be easy, valuing the family home rarely is. A house isn't just a place where people live; it's a home, a symbol of security and comfort. Because buying a house is a major investment of financial resources, a house can also represent years of hard work that the parties put into buying, improving and maintaining it.

Given the potential monetary value of the residence, and the emotional attachment many people feel to their home, much of the stress and frustration in a divorce centers on allocation, or sale, of the residence. In turn, one of the biggest problems presented by the residence is the difficulty in assessing its value.

Contrary to what many people in the real estate business may tell you, property appraisal is not an exact science, or even an objective process. Licensed appraisers may compare the residence to other properties in the area with similar features in order to assess a market comparison. However, this may be difficult in areas without any comparable properties, or when the real estate market is depressed and there aren't very many homes selling.

Sometimes, there might be huge differences in appraised values based on which comparable properties an appraiser chooses to review and how an appraiser views the attributes of the residence. Then, even if the parties do agree on the value provided by an appraiser, that value is only a hypothetical estimate of how much the residence is worth from which an asking price can be determined.

The only true way to know the value of a house is to sell it. Again, this is easier said than done. One or both of the parties may want the home. If the parties refuse to sell the house, settling on a value can be can be a point of contention resolved only after lengthy litigation ultimately ending at trial.

To make things worse, given the recent drop in home prices across the country, a house is not necessarily an investment or a valuable asset, but rather a major economic burden. In many cases, parties owe more money to the lender that holds the mortgage on the residence than the residence is actually worth.

In these situations, if parties can't arrange a short sale, or some other remedy with their lender, they may face foreclosure and then what was once thought of as a community asset becomes a cumbersome community debt. This leads to potentially very hostile litigation for the determination of who will take the debt or how it will otherwise be divided.

And, all the talk of valuation above doesn't even address the issue of who will pay the cost of insurance, utilities and maintenance of the residence while the divorce is pending, not to mention who gets to actually live there. These issues can be very difficult to resolve in a contested divorce.

Of course, most of these issues can be resolved rationally if the parties are willing to do so. Unfortunately, one or both of the parties often cannot or will not behave rationally. This can lead to unnecessary and costly litigation. In cases where the parties are already in financial distress, the added burden of attorney fees can make a bad financial situation much worse. It is highly advisable for the parties to consult with an experienced divorce attorney early in the process so unnecessary conflict can be avoided to the degree possible.

Collins & Collins, P.C.
Albuquerque Attorneys

As with most legal disputes, a divorce in New Mexico can involve a lot of paperwork. Many of these must be filed with the court to have legal effect. Documents that are filed with the Court asking for various types of relief are typically called pleadings and the instructions from the Judge are called orders.

One of the most important pleadings to be filed in a divorce is called a Marital Settlement Agreement, often called an MSA for short. An MSA is an agreement between the parties to a divorce in which they identify their separate and community property and debts and agree who is going to keep what property and be responsible for what debts.

Not every divorce case will require an MSA. For instance, cases that never settle and require full blown trials will result in an order dividing property and debt from the court. But trials are fairly rare in divorce cases so the vast majority of New Mexico divorce cases will be resolved, at least in part, by an MSA.

As implied by the use of the word Agreement in its title, an MSA is a contract between the divorcing parties and is as binding and enforceable as any other contract. However, unlike other types of contracts, an MSA is often entered as an order of the Court when it is merged with the Court's order finalizing a divorce. This final order is typically called a Final Decree of Dissolution of Marriage, or just a Final Decree.

This merger means that the MSA is no longer just a contract between the parties, but is a judgment of the district court, which means violations may be punishable by finding of contempt and that amounts to be paid between the parties may be subject to collection just like any other debt. What is important to remember when negotiating an MSA is that, because MSAs are contracts and orders of the Court, they are very difficult to change after they have been entered and approved by the Court, unless both parties agree to modification.

The New Mexico Court of Appeals recently addressed the issue of modification of an MSA that had been merged with a Final Decree in the case of Gordon v. Gordon, et. al. 2011-NMCA-044. In the Gordon case, the parties entered into an MSA, which was merged with a Final Decree and approved by the Court. Creditors of the parties then intervened in the case in an attempt to collect debts owed by the divorcing parties. In response to that collection attempt, the parties argued that certain assets addressed by the MSA were exempt from collection based on the statute governing the collection of debts.

The District Court agreed with the parties and concluded that the creditors could not collect the debts. The Court of Appeals found that by finding the debts to be exempt, the District Court had effectively modified the Final Decree and held that such modification is allowed within 30 day of entry of a Final Decree. The Court held that, after the 30 day period for reconsideration has lapsed, a Final Decree, and the MSA incorporated therein, can only be modified under the specific circumstances allowed by New Mexico Rule of Civil Procedure 1-060 (B). Rule 60 modification is narrow and limited to things like fraud or misrepresentation by a party or a mistake made by the parties.

One of the primary lessons to learn from the Gordon case is that the Courts have limited ability to modify Marital Settlement Agreements once they have been merged with a Final Decree. It is extremely important for a parties to a divorce action to consult an experienced divorce attorney before entering into an MSA in order to ensure that they fully understand their rights and responsibilities under that agreement, because if will be very difficult for an MSA to be changed if one party changes their mind.

Collins & Collins, P.C.
Albuquerque Attorneys

Every divorce, legal separation or child custody dispute is difficult for everyone involved, both emotionally and financially. Unfortunately, when a party dies during the pendency of such an action, things can get even more difficult.

Section 40-4-20 (B) of the New Mexico Domestic Affairs statutes provides that if a party to a family law matter dies while the action is pending, but prior to the Court entering a final order, then the Court shall proceed with the action as if the deceased party is still alive. The Court will appoint a personal representative to continue to represent the deceased person's interest in the family law action.

The policy enacted by Section 40-4-20 (B) may be surprising to many people because by enacting that statute the legislature departed from the long-standing common law rule that this type of family law action ended upon the death of a party. However, the fact that the relevant statute provides that a family law action shall continue,does not mean that such an action cannot be dismissed after the death of a party.

The New Mexico Court of Appeals addressed this issue in the recent case of Trinosky v. Johnstone, 2011-NMCA-045. In Trinosky, wife filed a petition for legal separation and husband filed an answer and both parties proceeded with discovery. However, prior to a final order being entered by the Court, the husband died. After the husband's death, wife filed a motion to voluntarily dismiss her petition to which the personal representative of husband's estate objected based on Section 40-4-20 (B). The Court of Appeals ruled that wife's voluntary motion to dismiss would have been a valid way to end the legal separation action if husband had been alive and, therefore, was not precluded by Section 40-4-20 (B).

The Trinosky case involves some very specific procedural rules that will not be applicable to every case in which a party dies. What is important to take away from that case is that it reinforces New Mexico's policy that a family law action may continue until a final order is entered even after the death of a party. However, Section 40-4-20 (B) does not completely prevent the dismissal of such an action upon death of a party if another procedural basis for dismissal applies.

Now, as if this discussion was not complicated enough, also keep in mind that Section 40-4-20 (B) may not apply in the same manner to an ongoing child custody dispute after the court has entered a final decree of divorce, or adjudication of paternity, that includes a parenting plan or other custody order.

In sum, if you are a loved one is involved in a family law matter and a party dies, or their death is anticipated, it is very important to consult an experienced divorce and family law attorney. There have been major changes in the New Mexico law in this area in recent years and experienced legal counsel can advise you as to the best way to proceed when an already stressful family law case gets even more stressful upon the death of a party.

Collins & Collins, P.C.
Albuquerque Attorneys

While the state of New Mexico considers it in the best interest of children to be raised by their parents, a kinship guardianship can be granted to caregivers if parents are unwilling, or unable to give a child the proper supervision, care and guidance needed. A kinship caregiver can be a family member, or other person, who has formed a bond with the child and who is willing, and able to care for the child.

The Kinship Guardianship Act creates a legal process that temporarily suspends parental rights and essentially transfers these rights and responsibilities to the kinship caregiver. Because of the serious nature of this process, some parents may not agree to the appointment of a kinship guardian. If the parents do not consent, a kinship guardian must prove to the Court that the child has been living with the kinship caregiver for at least 90 days, that the parents are unwilling or unfit to care for the child or that some other extraordinary circumstances exist such that appointment of a kinship guardian is in the child's best interest.

This type of guardianship is not appropriate in child custody disputes between parents. A New Mexico Court of Appeals case further clarified the role of the Kinship Guardianship Act ("the Act") with respect to parental rights in Freedom C. v. Julie Ann D., et al. In that case, the father of the child appealed the district court's decision to grant the child's grandparents kinship guardianship. While the child's mother had agreed to the guardianship, he claimed that he never gave his consent, and that he was very much involved in the life of his child.

He also claimed that the 90-day residency provision of the Act was not met because the child still resided with the mother, as well as with the grandparents. The Act applies when the child is living away from both parents. The father argued that the mother and grandparents were using the Act to create an environment that allowed the mother to more successfully fulfill her parental role, while depriving the father of custody and parental rights.

The Appeals Court agreed with the father and found that the Act requires that both parents consent to the appointment of a kinship guardian, or be given a meaningful opportunity to do so. Further, the Court stated that kinship guardianship could not be used to allow one parent to unfairly exclude the other parent from the child's life, particularly where one parent still resides in the home with the child.

Custody disputes can be difficult. The Kinship Guardianship Act is not appropriate for the resolution of contested child custody. It is particularly unsuitable in situations where one parent is still residing with the child, or where one parent is attempting to limit the rights of the other parent.

If you are facing a difficult child custody situation, contact an experienced family law attorney to discuss your options. Applying the proper legal remedies can save both time and money, while protecting the best interest of the child.

Collins & Collins, P.C.
Albuquerque Attorneys

The current New Mexico law governing child support as set forth in the New Mexico Child Support Guidelines provides that child support terminates once a child turns eighteen (18) or once the child is nineteen (19) if the child is still in high school. However, given the increasing importance of higher education in this country, many researchers across the country believe that parents should be ordered to pay child support for their children while they are in college.

The 2011 New Mexico legislature listened to those opinions and passed House Memorial 71, sponsored by Speaker Ben Lujan, which requires the New Mexico State Bar to form a task force to investigate how consideration and planning for children's post-secondary education should be incorporated into the existing law regarding child support.

The task force will be chaired by a family court judge and will consist of lawyers that practice in the area of divorce and family law as well as other professionals that work in related fields. The task force is required to report back to the legislature with an interim report by November, 2011, and a final report by November, 2012.

Any law changing the child support guidelines to require parents to pay for their children's post-secondary educations will have a major, long-term effect on divorce and paternity actions across this State. How any such an obligation would be implemented leads to a variety of questions.

For instance, will the support continue no matter where the child goes to school? Do parents have to agree on where the child goes to school? Will parents have to pay the entire cost of tuition, etc.? How will child support be calculated? Will children be required to work while in college? What is the obligation of the child to attend class and maintain performance? What grounds might there be for terminating college support?

There are certainly many other questions that will come up depending on the law's language and the circumstances of a particular case. While this discussion is clearly in the earliest stages, it is important for both lawyers and parents to pay attention to any reports issued by the task force. Any law that places further obligations on parents and families such as this should be viewed with great scrutiny. Parents and voters would do well to voice their opinions on this issue with their respective legislators.

Collins & Collins, P.C.
Albuquerque Attorneys

When a divorce with children and a child custody or time-sharing dispute, cannot be settled between the parties, the presiding court, which in New Mexico is most often the district court in the area or county where the children live, may need to have one or more hearings in order to determine what sort of custody arrangement is in the best interest of the children. Once it has been determined that a hearing is necessary, a common question becomes whether or not the parties' children should be called to testify at a family law hearing.

During the 2011 session, the New Mexico legislature passed, and the governor signed, House Bill 196, which provides for the creation of the Uniform Child Witness Protective Measures Act. This new act applies to both criminal and non-criminal judicial proceedings, which includes family hearings, and gives judges the power to allow children testify by an alternative means, rather than by actually testifying at a hearing subject to cross examination by each party's counsel.

The alternative methods allowed by the Act can include testimony by closed-circuit television, deposition, testimony in a closed forum. In determining when alternative method testimony is appropriate in a non-criminal hearing, the court will determine a variety of factors, including the age and maturity of the child, the potential emotional harm posed to the child by testifying and the nature of the proceedings before the court.

Several judicial districts throughout New Mexico already have procedures in place that limit how and when a child's testimony is presented to the court. However, this new Act may change how and when those procedures are used. In a hotly contested custody battle, it is essential to have counsel familiar with the rules governing the testimony of children in order to ensure that any such testimony is reliable and properly used.

Collins & Collins, P.C.
Albuquerque Attorneys

The beginning of a divorce can be very confusing and stressful. Perhaps the most stressful part of the divorce is what to do with the marital home. A difficult decision must be made as to who will remain in the house. This decision is made even more difficult when children are present.

As community property, both parties are equally entitled to possession of the home. As such, neither party can force the other party to move out without a court order. Many times, both parties are very reluctant to move out of the home for a number of reasons including costs, disruption, attachment and stress.

The issue of possession of the home is fraught with emotion since whoever vacates the home will likely not be allowed to return while the divorce is pending. Moreover, whoever keeps the home will often also have primary custody of the children since the courts favor the least disruption possible to the lives of the children.

Due to many attachments to the home and the real and perceived advantages of staying in the home, parties will often jockey for possession of the home. The most common tactic is simply to demand that the other party leave. Of course, this demand has no basis in law and is unenforceable in the absence of a court order.

Getting a court order to force the removal of one or the other parties is not all that easy. There must be grounds for removal and the mere fact that his or her presence is no longer desired is not enough. The court can and will under some circumstances order one party from the home. However, this decision is not taken lightly by the courts and likewise should not be taken lightly by a party seeking removal of a spouse from the home.

The issue of the community residence can cause a huge level of hostility and set a divorce off in an irreversible course of conflict. It should be addressed in the most rational and thoughtful way possible and compromise is highly encouraged. Refusal to compromise here will likely costs the parties dearly in every other areas of the divorce, no matter how trivial.

Due to the complexity of the issue and the possibility of derailing an otherwise civil divorce, it is important to consult with an experienced divorce and family law attorney to understand your rights, obligations and corresponding options in addressing this issue.

Collins & Collins, P.C.
Albuquerque Attorneys

The divorce process is a time of stress, disruption and change. With the multitude of decisions that must be made, estate plans, insurance instruments and retirement accounts created during the marriage can get overlooked. As such, ex-spouses can unwittingly remain as recipients or beneficiaries of estate assets, even when it is not intended. They can also be deemed decision-makers in certain inopportune situations.

Prior to any thought of divorce, spouses are commonly named as beneficiaries for estate assets. Because New Mexico is a community property state, each spouse owns 50% interest in the assets acquired during the marriage upon divorce. Each spouse then has the right to say how their 50% is used, including to whom they will leave their separate assets upon death.

Beneficiary designations are often overlooked during a divorce. It may be only during probate proceedings that an ex-spouse is found recorded as an estate beneficiary. This creates obvious problems for the deceased's intended recipients. Likewise, there are difficulties when an ex-spouse is left as a beneficiary on a life insurance policy, pension plan, annuity or trust account.

Worse still is a situation where a person has been incapacitated due to injury or illness and they neglected to remove their ex-spouse as the agent on their living will or advance health-care directive. These are documents that give another party the legal ability to make medical decisions, including the refusal of treatment. If the person is incapacitated, transferring that decision-making authority can be quite difficult.

Particularly after a contentious divorce, one need only imagine the unintended consequences of neglecting to change beneficiary designations. An experienced divorce attorney can help address these issues to avoid the consequences of unintended beneficiaries.

Collins & Collins, P.C.
Albuquerque Attorneys

In 2007, the U.S. began experiencing what is now called, the Great Recession. One surprising fact found during this period of economic hardship involved the steady decline of the divorce rate. In fact by 2008, this rate had dipped to its lowest level in 30 years in over 44 states.

Data collected by the National Marriage Project, based out of the University of Virginia supported these findings, actually finding that the stability of marriages was positively affected by the recession. Foreclosures, lay-offs and investment losses may be evidence that married couples pull together during such events. Yet, this stability and sense of togetherness may be short-lived.

Typically, financial conflict has been a top predictor of marital breakdowns. Yet, one of the statistics highlighted by the National Marriage Project involved the claim that many couples either put aside or postponed seeking a divorce during the recession. One major factor could involve the housing market collapse, as many divorcing couples cannot cash in on home equity when real estate prices have plummeted. Finally, in some housing markets it is near impossible to sell a home and even more difficult to get financing on another. Most families simply cannot take on the costs associated with running separate households.

There are many other issues as well that make divorce quite difficult in times of financial stress. Health insurance is a major issue. A divorce will often leave one party with no insurance which today can be quite disastrous. A division of property and debt is made more difficult in these financial times. The community debt in particular can be extremely problematic forcing one or both parties into bankruptcy. Then there is child support and alimony which for the paying party can simply put them over the financial edge. So while financial stress pulls couples apart, these same stressors actually bind them together for better and for worse.

The research appears to hold true. As the effects of the recession began to ease in 2010, statistics revealed an increase in divorce rates. This trend may be due to less financial uncertainty. Rebounds in employment rates and investment portfolios may alleviate the fears of those who want to go it alone. Others may find more creative ways to separate, continuing to share community property until the housing market bounces back.

Divorce can be a complex issue, particularly in today's unpredictable economy. Divorce has always been a highly stressful and uncertain time for couples. The recession has magnified the issues and often the complexities of a divorce. If you are considering divorce and the implications this may have on your financial future, it is important to consult an experienced divorce attorney. You can then better consider your options, having some certainty in uncertain times.

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico, parents are held financially responsible for providing for the care of their children's needs. As such, the issue of child support is governed by mandatory state guidelines under the New Mexico Child Support Guidelines These guidelines include a formula based on a number of factors that help ensure children involved in either paternity or divorce proceedings receive the proper financial support.

Each parent is required to report their gross monthly income using a child support worksheet that can be found in the family law section of New Mexico Courts website. This worksheet is generally non-negotiable and most judges will not issue an Order Adjudicating Parentage/Order Establishing Paternity or Final Decree of Divorce without it.

After reporting gross income, credits are given to each parent for certain allowable expenses. Allowable expenses are restricted in nature, typically only covering childcare expenses and healthcare premiums, including medical, dental and vision care. In order for childcare to be considered allowable, the expense must be incurred during time that a parent is either working or is out looking for a job.

Extraordinary expenses related to mental or physical health care that are over $100 and uninsured are also allowed. This would involve things like counseling sessions or orthodontics. These types of expenses would be converted to monthly figures or handled outside the worksheet in the Parenting Plan or other Court Order.

The New Mexico Child Support Guidelines also provide credits for extraordinary educational expenses, as well as communication and transportation costs related to long distance time sharing or visitation. However, these items are typically addressed in a parenting plan, not the child support worksheet.

Likewise, additional expenses, which are not the same as allowable expenses, are not directly considered on the worksheet, nor are they defined by statute. However, these too may be addressed in a Parenting Plan or other Order outside the child support worksheet.

Keep in mind, the child custody and/or time-sharing arrangement will determine which New Mexico Child Support Worksheet to use. Worksheet A is used when one party has primary custody. Worksheet B is used when there is shared custody.

Once the parties determine the appropriate worksheet to use, all allowable expenses are entered into the worksheet along with gross income figures for both parties, and when appropriate time-sharing ratios. From these statutory entries of income, expense and time-sharing, the monthly child support figure will be determined. Unless there is a very good reason to deviate which there seldom is, this is the child support!

Collins & Collins, P.C.
Albuquerque Attorneys

Divorce can be a time of enormous conflict and confusion. Unfortunately, it is also a time when numerous important decisions must be made in the midst of less than ideal circumstances. Early decisions involving child custody and time-sharing though temporary often significantly impact the children.

As an aid in preserving some routine in the lives of children until certain decisions can be made, New Mexico law provides for the automatic issuance of a Temporary
Domestic Order (TDO) in divorce cases in most districts including Santa Fe, Albuquerque and Rio Rancho. The TDO is a binding court document that essentially restrains each parent from changes to the status quo while the divorce case is pending.

The Temporary Domestic Order forbids damaging, hiding or selling off of assets. It also bans the parties from running up unreasonable debt, the closing of financial accounts or the cancellation of insurance policies. Perhaps most importantly, a typical TDO restricts parents from any behavior that might harm the children or the relationship of the children with the other party.

Provisions within a TDO that specifically relate to children involve prohibiting one parent from interfering with the relationship the child has with the other parent, maintaining contact with a parent living outside the home, and forbidding changes in a child's school, daycare, healthcare providers, recreational activities or religious activities. The TDO will also expressly prohibit one spouse from taking the child out of state without written permission of the other spouse or court order.

Modifications can be made to a TDO through a motion to the court or upon the agreement of the parties. However, until modified, the terms of the TDO are fully binding on both parties. Violation of the terms of the TDO can have serious consequences including charges of contempt. In particularly grievous situations where one parent leaves the state with the children, very serious criminal charges may be filed against the violating party

The TDO is the first important order that will issue from the Court in a New Mexico divorce case. It is important to understand and fully abide by the Order. In case of confusion as to the terms or obligations under the TDO, it would be wise to consult with an experienced divorce and family law attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

New Mexico law requires both parents to support their children. Nowhere is this stance more evident than in determining child support in the midst of divorce or paternity proceedings.

Each parent is still required to do what is necessary to ensure that the financial needs of their child or children are met, no matter how unique or complicated their financial situation may be.

A child support worksheet is a mandatory, often non-negotiable document that most judges require during divorce or paternity proceedings. Yet, it is also a valuable tool used to calculate the financial responsibility of each parent toward their child or children. This worksheet can be accessed through the New Mexico Courts website under the family law section.

This worksheet considers the gross income of both parents as a factor in determining the financial obligation owed by each parent. Gross income is reported from several different sources, including salaries, wages, bonuses, commissions, tips, interest, dividends, annuities, trust income, capital gains, severance pay and pensions.

Other sources of income may be less common, including benefits from social security, unemployment insurance, disability insurance and workers' compensation. Even rarer, but still reportable, may be income from prizes, such as lottery and gambling winnings, as well as in-kind benefits that reduce living expenses, such as employer housing compensation. This often comes into play in military divorces with base housing.

Because each parent has a responsibility to provide for their child or children, potential income can be considered for those parents who are unemployed or underemployed. In self-employment situations, gross income is figured by calculating gross monthly receipts excluding the ordinary and necessary expenses involved in creating income. In self-employment cases, where financially feasible, it is often necessary to get an expert such as a CPA involved.

Though gross income for New Mexico Child Support Worksheet purposes seems to include every conceivable source of income, there are some sources specifically exempted by statute. Gross income does not include income from public assistance programs, such as Temporary Assistance for Needy Families (TANF), supplemental security income or food stamps. It also does not take into account the support paid by court order for alimony or prior children.

Once the gross monthly income sources are determined, they must be compiled into one total month gross income figure for entry into the Worksheets. In situations where a parent's income fluctuates, it is averaged over 12 months to reach a total gross monthly income figure. If the income is steady, it is recorded on the worksheet at the monthly rate.

The proper financial support of the children involved in divorce or paternity cases is an important goal of the New Mexico courts. Calculation of gross income can be highly contested even in seemingly straightforward situations. An experienced family law attorney should be able to help in the determination though the level of conflict is entirely up to the parties.

Collins & Collins, P.C.
Albuquerque Attorneys