Albuquerque Divorce Lawyer Blog

In New Mexico, most parents faced with a child custody dispute, whether it is part of a divorce or a paternity action, will eventually have to deal with establishing a parenting plan that establishes how the parties will share custody and sets forth child support.

The New Mexico statutes create a presumption that the parents will share joint legal and physical custody of their children. Physical custody refers to how and when each parent spends time with their children and is often referred to as time-sharing or visitation.

Many families will wind up with a time-sharing agreement wherein the child goes back and forth between each parent's home. However, in some situations the parties may agree to, or the court may order, that the child's visitation with one or both parents be supervised. Such supervision can sometimes be provided by a family member or friend that is approved by the court or the parties. If no such person is available, a church or other community group may be able to provide supervision. Some New Mexico cities, especially Albuquerque, Rio Rancho and Santa Fe, also have companies that provide supervision for a nominal fee. In some cases, these companies provide a location where the actual visitation takes place and others provide a staff member that will accompany the parent and child on an outing. Most of these companies will also provide both parents with a report or notes of what occurred during the supervised visit.

A parent faced with a supervised visitation order will often object and feel hurt or offended that their time with their child is not fully their own. However, supervised visitation can be an asset to both parents. It can alleviate the fears of a parent who has concerns about the other parent's behavior. In turn, the supervised parent now has a witness to their interaction with their child, who can help support a future claim for unsupervised visitation. There are pros and cons to any parenting plan and consulting with a New Mexico family law attorney can help both parents ensure that a proposed visitation arrangement is the best option available to them under the law.

Collins & Collins, P.C.
Albuquerque Attorneys

One decision to be made during any divorce involving children, particularly in cases of disputed child custody, is which parent is entitled to claim the tax exemption for the children.

Many New Mexico courts will follow the basic Internal Revenue Service ("IRS") rule that, absent an agreement between the parties, the custodial parent, or the parent with whom the child lives most of the time, will be allowed to claim the exemption for that child.

However, in the 1998 case of Macias v. Macias, the New Mexico Court of Appeals ruled that Federal tax laws do not preempt the authority of the New Mexico district courts, which have jurisdiction over family law matters in the State, to allocate the tax exemption for a dependent child. In others words, the New Mexico district courts are not required to follow the IRS rule regarding the tax exemption for the child.

Instead, New Mexico courts may allocate those exemptions however they see fit so long as it is in the best interests of the child. The court in Macias noted that a dependent child tax exemption can be seen as another source of financial support for a child. As such, the court is free to allocate tax savings as a means of providing for a New Mexico child's support.

Given that claiming the dependent child tax exemption can result in substantial tax savings to the party claiming the exemption, it is important to make sure that any parenting plan or other order of child support properly addresses the tax exemption. Failure to do so could prove costly.

Collins & Collins, P.C.
Albuquerque Attorneys

Educators are tackling teen pregnancy with new economic driven approaches. There are two programs originating out of Texas schools, PAPA (Parenting and Paternity Awareness) and No Kidding trying novel and more pragmatically driven arguments against pre-marital and/or unprotected sex.

The programs have tossed the old sex ed model of "Safe Sex" or "Abstinence Only." Instead, the programs focus on the financial consequences of teenage pregnancy. The new economics driven arguments seem to be taking old.

The USA Today article reporting on the programs noted that Texas had the third highest rate of teen pregnancy. The virtual crisis in Texas teen pregnancy led to the new approaches. Remarkably, New Mexico had the second highest rate of teen pregnancy trailing only Mississippi.

The programs might just as well be called "Scared Safe/Celibate." The focus is on the costs of teen pregnancy, not to society, but to the teens themselves. Most kids have little concept of financial responsibility. However, when they see the numbers in concrete terms, they seem to get the message.

To get the point across, the program has a "Price is Right" portion where kids learn the costs of child rearing necessities such as diapers, formula, baby cribs, car seats, onesies, clothes, medicine, doctor visits, daycare and so on. The program might also address what every parent knows is that kids just get more and more expensive as they grow older with clothes, extracurricular activities, electronics, games, mobile phones, braces and so on.

The programs focus predominantly on fathers since they are typically the non-custodial parent. Young would be fathers should understand all the costs above. In addition, they should understand that a casual sexual encounter can and will lead to 18+ years of child support. This includes child support enforcement through garnishment, bank account seizures, tax refund intercepts and driver's license revocations among other means at the disposal of Child Support Enforcement Division.

In many cases involving young parents, the kids have also signed on for 18+ years of court hearings to address child custody and time-sharing. Kids that "meet" casually are not always completely compatible after the fact. Likewise, they and their families may have very different views of how the child should be raised. The possible areas of contention are endless from the mundane such a haircuts to recreational activities to the sports the kids play to vacation to schools to religion and on and on and on.

Oh yes, the last thing that a kid might want to know in the cost benefit analysis leading up to the casual sexual encounter, he or she can expect to pay a lawyer a minimum of $1000 every time one of these issues ends in court. Let's just say this can add up over 18 years.

An economically minded youth should see clearly that teen pregnancy is bad for the profit and loss statement. Where the birds and bees have failed us repeatedly, perhaps the P&L will have some success.

Collins & Collins, P.C.
Albuquerque Attorneys

Parents involved in a child custody dispute or divorce in New Mexico will face a variety of tough decisions when determining how they will co-parent their children after they are separated. The final version of those decisions regarding custody and timesharing become a binding court order when the parties, or the court itself, enters a parenting plan.

A parenting plan will include all the day to day details of how the parents will care for and share time with their children. An integral part of that parenting plan is a schedule for holiday timesharing.

Sometimes in the flurry of negotiation or a heated hearing in front of the judge to determine child custody and/or child support, holiday timesharing can be overlooked. Failing to determine how the parents will share the holidays can lead to major disagreements later, which in turn can be very hard on the children and the parties.

Holiday timesharing plans vary widely. There are some fairly common arrangements. Often parents will alternate years. For example the father has the children for Christmas Day in even years and the mother has them for Christmas Day in odd years. Where possible, the parents will frequently also divide Christmas Eve. Essentially, the Christmas day schedule will be reversed.

With this common plan, one parent will have the children on Christmas Eve, the other parent will have them on Christmas Day. This insures that both parents see the kids during Christmas. Unfortunately, this arrangement is not always possible in cases where the parents live far apart.

Though it is typically the most emotionally charged, there is a lot more to the holiday schedule than Christmas. The same issues arise for all major holidays, spring break, summer break, and so on. The schedule should address all major holidays, especially those when the children will have time off from school. Like Christmas, a common arrangement is to alternate all holidays from year to year.

It is very important that the parenting plan include provisions for long weekends associated with many holidays such as Labor Day, Veteran's Day and July 4th. Some schedules may even include make-up time when a holiday with one parent falls during the other parent's regular period of responsibilities.

Again, holiday schedules will be different for every family, but the important thing is to make sure that they are as complete as possible to avoid the far too common fight over timesharing a week before Christmas when it is near impossible to get a court hearing.

The more detail in the parenting plan, the better. Detail will hopefully avoid conflict and thereby avoid court. And court during the holidays is really something to be avoided for everyone's sake.

Collins & Collins, P.C.
Albuquerque Attorneys

It is the unfortunate truth that divorce and child custody disputes can often lead to charges of domestic violence by or against either party.

In New Mexico, a single incident of reported domestic violence can result in criminal domestic violence and/or a civil domestic abuse case, either of which have serious consequences for the accused abuser.

The criminal domestic violence case is usually the result of the typical domestic violence call to the police or 911. Whenever the police are called on a domestic violence incident, one of the parties will be arrested if both are still present. Criminal charges are then filed against the arrested party. If the alleged abuser has left the premises, criminal charges will be filed without an arrest.

No matter how the charges are filed, the Court will almost always issue a no contact order that prevents the accused abuser/defendant from any contact with the victim. Typically, the court will also order the defendant to stay away from the alleged victim's home which is often also the home of the defendant.

In addition to criminal charges, the New Mexico Family Violence Protection Act allows a victim of domestic violence to file a civil case against the accused abuser by filing what is called a petition for order of protection. Upon filing the petition, an immediate temporary order of protection will be issued. Like the no-contact order in the criminal proceeding, the order of protection prevents any contact between the alleged abuser and the alleged victim. This civil proceeding can run concurrently with a criminal case.

In case of criminal charges, the case can go on for months. A civil case proceeds much more quickly. A hearing is set within ten days of service of the temporary order of protection and notice of hearing. In other words, once the alleged abuser receives notice of the allegations, an evidentiary hearing will be held for the court to determine whether or not the alleged abuser is guilty of an act of domestic violence. If domestic violence is found, a 6 month order of protection will be issued. This order may be extended for good cause.

Either a criminal conviction for domestic violence or a finding of domestic violence in family court have very serious and negative consequences on things like future employment options, the ability to carry a firearm, immigration status and even the ability to rent an apartment.

Either a criminal proceeding or civil proceeding will have many of the same negative collateral consequences. The severity of these consequences is why it is so important that parties on either side of a domestic violence action speak to an attorney to understand their rights, responsibilities and the consequences of a finding of domestic violence. It is equally important in both a criminal and civil proceeding.

Collins & Collins, P.C.
Albuquerque Attorneys

One of the biggest sources of contention early on in a New Mexico divorce action is which party is going to leave the parties' marital home.

In New Mexico, a temporary domestic order is entered at the beginning of divorce which prevents either party from forcing the other to leave their shared residence. If both parties refuse to move out, then the court will have to enter an order determining who can stay and who must leave. This is not an easy issue in light of New Mexico's community property laws.

It may seem reasonable to just let the court decide who stays and who goes. In reality, it can take months, often many months, to get a hearing before the court on this issue. In the meantime, there are two people who are most likely not getting along very well attempting to live under the same roof.

While neither party may want to leave because they fear giving up a claim to the residence, the parties should also consider other damage that can occur when people who are arguing are forced to live together. This includes acts of domestic violence and sometimes false allegations of domestic violence.

Domestic violence can result in horrible physical and mental harm, and even in death. Domestic violence is a very serious problem and it is taken very seriously by law enforcement. In fact, law enforcement officers face some of their most serious officer safety issues in domestic violence situations. This accounts for the inevitable and sometimes seemingly illogical arrest of one of the parties on every domestic violence call.

A conviction for domestic violence or even an entry of an order of protection can result in permanent and irreparable damage to the alleged abuser. These include consequences for gun ownership or possession, employment, security clearance, property rental and immigration status among others.

These dour consequences result on a conviction or finding of guilt. Many times, it is the alleged victim's word against the alleged abuser. Is it really worth the risk in either case? The house is not worth a lifetime of disadvantage resulting from a finding of domestic violence.

Any sensible person faced with a choice of leaving the house, loss of pride, financial concerns or the like as opposed to a possible domestic violence situation should think seriously about moving on.

False allegations of domestic violence are hard to swallow for the alleged abuser. A true act of domestic violence is completely unacceptable and intolerable for the victim, law enforcement and the courts. Either way, living in a hostile home environment in the midst of divorce is truly flirting with disaster.

Collins & Collins, P.C.
Albuquerque Attorneys

Every New Mexico divorce or family law case involving children should at some point include an award of child support. The Child Support Enforcement Division (known as CSED for short) is part of the New Mexico Human Services Department. As the name implies, CSED is charged with enforcing child support obligations and collecting child support payments.

However, CSED does not get involved in every child support case. Many parents will pay their child support directly to the custodial parent and never have to deal with CSED. In order to get CSED involved, one of the parents must request their assistance. Typically, but surprisingly not always, the request would come from the custodial parent who is not receiving child support as ordered by the court.

The typical way that CSED gets involved and intervenes in a case is when the custodial parent (the parent who should be receiving child support) is receiving public assistance like TANF or Medicaid. CSED is charged with and very aggressive at going after non-paying parents when the children are on public assistance. Clearly, the State has an interest in ensuring that parents, not taxpayers, are paying for their children.

In these public assistance cases, if no child support has ever been established, CSED may file a parentage case in order to establish paternity and support. If support has already been established but is not being paid, CSED may just get involved (intervene) to collect the support payments from the non-paying parent.

CSED may also intervene in a child support case upon the request of either parent. Again, this would typically be the custodial parent. A parent who is not receiving public assistance may still request the assistance of CSED for the collection of court ordered child support. CSED may charge a nominal fee for enforcing support in these type of cases.

Finally, the Court or judge may order that CSED intervene. The Court often will do this upon the request of one of the parties in particularly contention child support cases. There are even occasions where a CSED case is opened upon the request of the non-custodial parent in order to document child support payments. This would occur where the custodial parent is receiving child support as ordered, but denying receipt of the payments. This happens much more often than one would think.

Whatever the reason for CSED's involvement, once CSED becomes involved in a case, things can progress quickly and parents need to be prepared to respond appropriately. It is generally advisable to seek legal assistance if at all possible. Otherwise, the CSED experience can be confusing and frustrating.

Collins & Collins, P.C.
Albuquerque Attorneys

Child support is mandatory in the state of New Mexico and the New Mexico Child Support Enforcement Division (known as CSED for short) is a division of the state government in charge of establishing, enforcing and collecting child support obligations.

CSED may get involved collecting child support whether that obligation arises from a divorce or a paternity action. Once CSED determines that a non-custodial parent (the parent who is court-ordered to pay child support) is not paying child support, then CSED has a variety of enforcement mechanisms at its disposal that are not directly available to private parties.

CSED can have a wage withholding order entered. The wage withholding order directs a non-custodial parent's employer to take child support payments out of the non-custodial parent's paycheck. The Order is fully enforceable on the employer and the employer may be held liable for failures to abide by the Order. As such, a wage withholding order from CSED is effectively a garnishment on wages.

CSED has similar authority to seize a non-paying parent's bank accounts. The CSED system is also tied into the Federal Government. As such, CSED has full legal authority to intercept a non-custodial parent's tax refunds in order to satisfy a child support obligation. In addition to seizing tax refunds, the linkage with the federal government may be used to prevent the non-custodial parent from obtaining a passport.

It's not over yet. CSED also has the power to suspend a non-paying parent's driver's license and any professional licenses they may have. CSED can report unpaid child support obligations to the credit bureaus, which may severely damage a non-custodial parent's credit.

In short, CSED can pretty well make a non-paying parent's life miserable. Many non-paying parents are lulled into a sense of security because they have fallen far behind on child support arrearages with no consequences. Indeed, it can take CSED a while to get moving, much to the chagrin of custodial parents who have no financial support from the other parent. However, once CSED gets moving, the consequences are like an out of control train. It becomes exceedingly difficult to prevent or unravel the wreckage once the train leaves the station.

Given all of the enforcement mechanisms available to CSED, it is very important that any parent involved in a child support action consult a child support attorney to understand his or her rights and obligations. Once child support enforcement proceedings begin, they can be very difficult and expensive to stop.

Collins & Collins, P.C.
Albuquerque Attorneys

When couples are looking at separation and/or divorce, there is rarely enough money to go around. In order to reduce costs, parties may think about preparing their court filings themselves rather than hiring an attorney. While the New Mexico courts certainly allow parties to represent themselves, also called Pro Se representation, parties should be very careful in doing so.

One of the primary dangers posed by Pro Se representation is that once the parties have filed documents with the court memorializing their agreement to divide their debts and assets, that agreement is often final and is very difficult to change.

For example, a divorcing couple decides to forgo attorneys and they negotiate their divorce settlement themselves. Because they do not have counsel, they do not conduct formal discovery, which a more formal term for investigation, in order to identify, characterize for the proper division of property and debt.

Instead they may each rely on the other party to honestly report their debt and asset information. More commonly, in the haste to get through the process, neither party conducts an adequate investigation of their assets and debts.

The parties then draft a marital settlement agreement using a form approved by the New Mexico Supreme Court and used throughout the State provides. Once the martial settlement agreement is filed and the parties are divorced, each goes their separate ways taking some property and debts with them.

The availability and use of the form marital settlement agreement often provides false comfort to the pro se parties. Unfortunately, the form is only as good as the information it contains as provided by the parties.

It is not uncommon that the parties either by way of deceit or error have not adequately and accurately accounted for all asset, debts and income. In these cases, the parties can agree to amend the marital settlement agreement to correct the mistakes or errors.

However, more often than not, one of the parties will refuse to correct the flawed marital settlement agreement. In these cases, the other party must ask the court for the corrections. This is not a simple process.

A marital settlement agreement is a contract. As with any contract, it normally can't be changed after it has been executed absent a showing of ambiguity or fraud. Further, once the courts have entered final judgments, they do not like to go back and disturb those decisions.

When parties sign a document and file it with the Court, the Court expects the parties to understand their rights and responsibilities under the law. Ignorance of the law or facts that could have been revealed during the discovery process is not normally accepted by the Court as a basis for changing a final judgment. It does not matter that the parties did not have legal counsel. They are held largely to the same standard as if they did. Otherwise, there would be no end to pro se divorces.

The law of contracts and the rules of civil procedure do allow for modification of marital settlement agreements. However, the burden imposed on the party seeking modification is very high. As a rule, where possible, it is advisable to consult with a divorce attorney before executing a marital settlement agreement to avoid irreparable mistakes.

Collins & Collins, P.C.
Albuquerque Attorneys

Child support is mandatory in the State of New Mexico and it must be paid whether or not the parents of a child were ever married. The New Mexico Child Support Guidelines are part of the family law statutes and they clearly outline when support is awarded and how it is calculated.

Child support is based on the number of children being supported and the gross monthly incomes of both parents with credits given for work-related daycare expenses and the cost of medical care for the child.

In some cases, additional credits may be given for extraordinary monthly expenses related to the child or income may be adjusted if a parent is paying court-ordered support for another child.

Once support is ordered it is paid until the child turns eighteen (18) or until the child turns nineteen (19) if the child is still in high school. The child support calculation does not include the income earned by a parent's subsequent spouse or partner.

The child support award can be modified when there is a substantial change in circumstances as defined by the Guidelines. The most common reason for a change in circumstances is a substantial increase or decrease in the income of one or both parents. In order to modify support, the monthly child support obligation must change by at least 20%. A substantial change in income on either side may justify an upward or downward modification so long as the obligation changes by 20% or more.

Erroneously, many believe that child support is based upon household income. Thus, a parent receiving support will often seek modification when the paying parent gets remarried or moves in with a partner because the income of the paying parent's household has increased.

This is not an allowable basis for modification. As noted above, the income of the paying party's new spouse or partner is not included in the child support calculation. This can lead to some seemingly unfair child support scenarios where the paying party is in fact paying more following remarriage despite a substantial increase the other party's household income.

The Guidelines are meant to be simple, but they can easily be complicated by the facts of a case. Thus, any parent involved in child support dispute should consult a family law attorney in order to discuss their rights and responsibilities under the New Mexico Child Support Guidelines.

Collins & Collins, P.C.
Albuquerque Attorneys

Spousal support or alimony as it is more commonly known is neither mandatory nor automatic when parties get divorced in New Mexico. Instead, spousal support may be awarded by the Court or agreed upon by the parties to a divorce based on consideration of several statutory factors.

There are numerous factors that go into the award of alimony. They include factors such as the length of the parties' marriage, the education of both parties, the health and age of the parties, the employment and income history of the parties, and the ability of the parties to work following the divorce.

There are other factors as well depending on the circumstance of the parties. As such, the determination of whether or not spousal support is awarded will vary greatly from case to case.

The amount and duration of spousal support will also vary depending on the circumstances. The amount and duration of support will depend largely on the both the income and the income earning potential of the parties.

In some cases, support is paid only for a few months or years.. In others, it may be permanent in nature. Clearly, spousal support terminates when the paying party dies. On the other hand, many people often assume that spousal support automatically terminates when the receiving party gets remarried. This is not necessarily true. This is a negotiable term.

Parties negotiating a marital settlement that involves spousal support must be very careful to identify not only the amount of support, but when, if ever, that support will terminate. One thing the paying party will want to avoid is the use of any language suggesting that alimony is "non-modifiable." Of course, the party receiving it may take the opposite position.

Once the term "non-modifiable" is included in an award of spousal support, which is then entered by the Court, it is almost impossible to change. Therefore, it is essential that parties on either side of a dispute over spousal support consult an experienced divorce attorney or their rights to modify alimony may be forever waived.

The negotiation and drafting of the terms of alimony can have lasting and even permanent consequences. It is not something to take lightly.

Collins & Collins, P.C.
Albuquerque Attorneys

Upon appointment, a guardian is charged with the same duties, power and rights in respect to the incapacitated person that a parent would have with a minor child. Differences include the fact that a guardian is not required to provide financially for the protected person, nor is a guardian held liable to third parties for acts committed by the protected person, unless the guardian was careless or negligent in some way.

The guardian is required to file an acceptance of appointment with the court and provide the court with letters of guardianship that will be witnessed by the judge. The guardian then sends these letters to those who require notice of the guardianship appointment, including doctors, dentists, and other care providers.

The guardian must also file an initial report along with an inventory of the protected person's assets with the court within 90 days of appointment. This report outlines the protected person's current living arrangements, their healthcare providers, their personal, educational and occupational activities, and provides opportunity to list concerns, unmet needs, as well as other information that will keep the court informed of the protected person's status.

Additionally, the guardian must file a yearly report with the court within 30 days of the anniversary date of the appointment. If this report is not filed in a timely manner, the guardian could be charged $5.00 each day that the report is late. An extension could be requested and granted, but the requirement will not be waived under any circumstances.

This annual report is similar to the initial report in format. It insures that adult in need of protection is, in fact, being protected and that any changes in the level of incapacitation are addressed. It could be that the adult has an increase in ability that was not present before the appointment of guardianship. If full guardianship is in place, the court may move to limit the appointment based on new information. Otherwise, the guardianship will continue as mandated in the original court order.

The intent of the New Mexico laws surrounding guardianship is to encourage as much independence and self-sufficiency of the protected person as possible. Whenever feasible, input from the protected person should be sought in order to make decisions that remain in their best interest. Guardianship is not to be used to exert undue influence or reap financial benefit.

Some of the responsibilities of a guardian may include insuring that the protected person has adequate housing, clothing and food. Other responsibilities may include making health-care decisions, as well as providing educational, recreational and occupational activities. The guardian may be required to provide for personal care, such as bathing, dressing or giving medications, depending on the person's level of incapacitation. The guardian does not have to provide the care themselves, but they do need to insure that the care is provided if needed.

At any time, the protected adult or other person interested in the welfare of the protected adult has the right to petition the court for a change in guardianship and even termination of a guardianship appointment. The protected person has the right to have their concerns both heard and addressed. Ultimately, the court has the final decision in changing or terminating a guardianship appointment, and they rely on the same processes used in the initial petition for guardianship.

Collins & Collins, P.C.
Albuquerque Attorneys

The process of adult guardianship begins when a parent or other caregiver petitions the court in the county where the adult in need of protection resides. Typically, this petition is drawn up with the guidance and counsel of an attorney, and may include a brief history, as well as the nature of the incapacity and current concerns. The petitioner has the burden of proof in setting forth the reasons why the adult requires a guardian.

Once the petition is filed with the district court, notice is required to be given to the alleged incapacitated person, as well as certain family members or others as outlined by law. A hearing will be scheduled, at which both the alleged incapacitated person and the petitioner must attend.

In order for the court to make a guardianship determination, they must have access to data that supports the need. The court receives this information through three independent sources: a guardian ad litem, a court visitor and a qualified health care professional.

The court will appoint a guardian ad litem; an attorney who represents the alleged incapacitated adult. This attorney interviews the alleged incapacitated adult, as well as the petitioner and possibly others involved in the adult's life. They also review any reports generated by others, and present the alleged incapacitated adult's position at the hearing. They may be required to provide the court with a written report of their recommendations, but if allowed, can submit their findings verbally.

A court visitor will also be appointed by the court, who is typically a social worker or other qualified person. They visit the current home, interview both the alleged incapacitated adult and petitioner, and evaluate the adult's daily needs, as well as their capabilities. They will then submit their findings and recommendations to the court in a written report. The court visitor may or may not be required to appear at the hearing.

The court also requires a report from a qualified health care professional. This is usually a report written by a doctor or other health care practitioner who has treated the alleged incapacitated person and can make a recommendation of whether or not this person needs a guardian.

After all three individuals have compiled their data and submitted it to the court, the judge assigned will review the information. Then a hearing will be held in front of the judge in a closed court proceeding. This means that no one other than those designated by law will be allowed in the hearing room without express permission by the judge.

During the hearing, the alleged incapacitated person will be represented by the guardian ad litem, and the petitioner will be represented by an attorney of their choice or will represent themselves. Each party will be given opportunity to present their positions and the judge will make the final determination of guardianship. The judge will then sign an order prepared by the petitioner or petitioner's attorney if guardianship is granted, or will outline limitations to guardianship that will be drawn up after the hearing.

Collins & Collins, P.C.
Albuquerque Attorneys

Parents of children with specific developmental disabilities, including Downs Syndrome, Cerebral Palsy and Autism Spectrum Disorder face many challenges when raising their children to adulthood. Unfortunately, these challenges do not disappear once the child turns eighteen, which is the age New Mexico recognizes persons as adults with decision-making ability. Questions surrounding medical care and physical needs often cannot be properly addressed or resolved by an adult with a developmental disability.

Appointment as an adult guardian can be an option for parents and caregivers who will continue assisting these adults with decision making and care. Guardianship is obtained through the court to protect and promote the well being of an adult who is in need of such protection. A guardian will typically make decisions concerning where the protected adult will live, what kind of medical care they will need, and what kind of therapy or job training might enhance their situation.

Adult guardianship has serious implications and should only be undertaken as a last resort, because the adult in need of protection will be deemed incapacitated if guardianship is granted. In addition, the appointment of a guardian removes significant rights from an individual. Even so, the protected adult still retains their legal, civil and basic human rights, including the right to; receive personal mail, vote, practice religion of choice, marriage, manage personal spending of allowance, representation by an attorney, create a will or trust, and petition the court to reassign or end guardianship.

However, even these rights can be limited if the protected person does not have the mental capacity to understand or perform them. They also have the right to live free from abuse, exploitation and neglect in any form. These of course may not be forfeited under any circumstances.

In New Mexico, the adult guardianship process provides legal safeguards to those who are alleged to be incapacitated persons; consequently, guardianship will not be granted without significant supporting data. In deciding an adult guardianship case, the courts follow the guiding principle of "least restrictive alternative". This means that alternatives to guardianship should be explored, and guardianship should only be sought as a last remaining option. Ultimately, New Mexico statutes require that guardianship encourage as much independence of the protected adult as possible.

After completing the guardianship process as outlined by statute, the court will decide if the alleged incapacitated person requires guardianship. If not, the petitioner's request for guardianship will be denied and the proceedings will be dismissed. If it is discovered that the protected person can perform some decision making and care for themselves, the court may limit the guardianship, designating these limitations within the order of appointment. If the protected person is found to be in need of full guardianship, the petitioner will be given final authority to act for the protected person.

Collins & Collins, P.C.
Albuquerque Attorneys

A frequent question for parents involved in a divorce or child custody dispute is which parent is going to claim the IRS tax exemption for the children. The issue is typically dictated by issues of child custody and child support.

The New Mexico courts will generally follow the IRS rules regarding the exemption, which can be somewhat complicated. Generally, the custodial parent is entitled to claim the tax exemption for a dependent child. The IRS defines the custodial parent as the parent with whom the child lived for the greater part of the tax year, which makes the other parent the non-custodial parent.

However, a noncustodial parent can be allowed to claim the exemption for a dependant child if all of the following circumstances exist: 1) the child must receive more than half of his support for the tax year from one or both of the parents (i.e. TANF does not count as support by the parents); 2) the child must be in the custody of one or both of the parents for more than half of the year; and 3) either the custodial parent agrees not to claim the child or the parties have a written divorce or separation document entered prior to 1985 granting the non-custodial parent the right to claim the child.

Thus, if the parties agree, they can enter into an agreement as to who claims the tax exemption. There are many variables that go into the decision to allow the non-custodial parent to take the exemption including the income of the parties, child support and perhaps most importantly, the parties ability to make rational financial decisions despite the stresses of a divorce.

Assuming the custodial parent agrees, the non-custodial parent may claim the exemption. In the case of a single child, parents often agree to alternate claiming the child every other year. If the parents have more than one child, they may agree that each claim a specific child in order to both benefit from the tax exemption.

However, it advisable to consult with an experienced family law attorney when drafting such a agreements so that the proper language required by the IRS is included in the divorce pleadings or parenting plan and so that the proper IRS forms are completed every year.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com