Albuquerque Divorce Lawyer Blog

A divorce or legal separation will always be difficult emotionally, however, it can be just as hard, if not worse, financially. Often it is not until the parties begin exchanging income information as part of their divorce action that they realize just how dire their financial situation is. Given that New Mexico is a community property state, each spouse is equally responsible for the debts incurred during a marriage. If those debts are substantial, the divorcing parties may want to consider filing bankruptcy.

Anyone considering bankruptcy should consult an attorney that specializes in bankruptcy to determine whether or not it is in their best interests, or if they even qualify to file. This is especially true when parties are divorcing because the parties need to decide whether or not they want to file a joint bankruptcy before the divorce or pursue other options. For example, the bankruptcy code prohibits individuals with incomes above a certain, state-specific threshold from filing bankruptcy and it limits what assets are exempt, or can be kept by the parties after filing. The intersection between federal bankruptcy laws and New Mexico's family law statutes and cases can be tricky to navigate, so parties should be cautious when going down that road.

If parties decide not to file a joint bankruptcy and proceed with their divorce, it is essential that the divorce settlement documents include language that addresses what will happen if one or both spouses decide to file bankruptcy after the divorce.

Spousal support, or alimony, and child support obligations are not dischargeable in bankruptcy, which means that the spouse who owes that money cannot get out of paying it by filing bankruptcy.

However, obligations to pay debts may be dischargeable depending on whether the spouse files a Chapter 7 or Chapter 13 bankruptcy. This becomes problematic if one spouse agrees to assume a community debt as part of a divorce, but then later discharges that debt. If that debt is community, or in both parties' names, then a lender may seek to collect the debt from the other spouse. Therefore, divorce settlement documents should include language that clearly identifies the parties' intentions when dividing debt. For example, if one party is taking a debt instead of paying spousal or child support, then language should clarify that the debt is in the nature of support to prevent dischargeability.

Of course, no one can predict what exactly will happen after a divorce. Sometimes a spouse has every intention of paying the debts they assume in the divorce, but then they lose a job or suffer some other setback that prevents them from doing so. The best the parties can do is consult with experienced family law and bankruptcy counsel in order to make educated decisions about property and debt division and to properly memorialize those decisions in the final divorce documents.

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

In New Mexico, one of the final documents (also called pleadings) filed with the court to complete a divorce is called a Marital Settlement Agreement, or MSA for short. An MSA should provide details as to the final division of the parties' property and debt, which may be the result of a settlement agreement between the parties or the order of the court.

The MSA does more than just assign debts and assets to the parties, it may also provide instructions as to how those debts and assets will be exchanged and protected. Health insurance is one asset to a marriage that may be addressed in an MSA. Generally, if one party to the divorce is providing health insurance for the family pursuant to his or her employment, he or she is not obligated to continue to provide health insurance for their former spouse, although they may be required to continue to provide coverage for their children. In fact,many insurance carriers will not allow continuation of coverage on the same policy for an former spouse.

However, some health insurance policies may allow the divorcing spouse to remain covered as long as they begin paying their own insurance premiums after the divorce. Also, parties can agree that one spouse will continue to pay the health insurance premiums for the divorcing spouse as a form of spousal support. The issue of health insurance coverage after a divorce is complicated because the coverage available will often depend on the terms of the policy in place at the time of the divorce and those terms can vary widely from policy to policy.

Parties to a divorce should consult an experienced divorce attorney who can counsel them as to the law regarding health insurance and can conduct proper discovery in order to explore the terms of the parties' policy. An attorney should also ensure that whatever agreement is reached regarding ongoing health insurance for the parties is properly included in the MSA.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

Prenuptial agreements (also called premarital or antenuptial agreements) have been recognized and enforced by the New Mexico courts for many years. However, in 1995 the New Mexico legislature passed the Uniform Premarital Agreement Act, which provides specific rules for the formation and enforcement of prenuptial agreements and includes requirements that all prenuptial agreements must be in writing and its terms must be fair. Failure to follow the rules can result in difficulty enforcing the agreement in case of the later divorce of the parties. In case of a divorce, the validity of the agreement will affect the division of property and debt and alimony among other issues.

In order to avoid a determination that a prenuptial agreement is grossly unfair to one party, both parties should have legal representation when negotiating a prenuptial agreement, there should be full disclosure of both parties' income and assets and the prenuptial agreement should not be presented for negotiation to close the wedding date. Following these suggestions can help bolster the validity of the prenuptial agreement by showing that both parties were fully informed of their rights when signing the agreement and that neither party was pressured to do so.

Although the general rule underlying prenuptial agreements is that competent adults are free to enter into whatever contracts they choose, with some limitations. In New Mexico, prenuptial agreements can cover the following topics: 1) present and future rights and obligations with respect to property, including income or earnings; 2) the right to manage, sell and encumber property; 3) division of property upon the death of either party or divorce; 4) the making of a will and power of attorney; 5) ownership and distribution of the proceeds from a life insurance policy; 6) the choice of law that will govern the agreement; and 7) anything other topic that does not violate the public policy of New Mexico.

While the rules governing prenuptial agreements may seem straightforward, they can be tricky, especially a determination of whether or not a provision violates public policy. Therefore, it is very important that both parties contemplating entering into a prenuptial agreement consult with a New Mexico Divorce and Family Law Attorney who can advise each party of their rights under New Mexico law and help ensure that a prenuptial agreement will stand up in Court if it is ever challenged.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

Given the current state of the economy, many people in New Mexico and here in Albuquerque are considering or are in the process of filing for bankruptcy. These folks often have child support obligations. In fact, the child support obligations, and child support arrearages, themselves may add to the pressure to file bankruptcy. Some may erroneously believe that back child support is dischargeable in bankruptcy. It is not!

An individual filing bankruptcy is called the debtor and the bankruptcy petition lists all of the debts for which the debtor is responsible and asks the court to discharge their debts, which means that creditors can no longer try to collect those debts, or organize a repayment plan for the debts.

Again, not all debts are dischargeable in bankruptcy. This means that these debts are unaffected by bankruptcy. Section 523(a) of the bankruptcy codes provides a list of the types of debts that are non-dischargeable, which includes both child support and alimony/spousal.

The bankruptcy code takes the responsibility to support a family very seriously, which is why child support and spousal support are non-dischargeable. Part of the reason behind this heightened protection that children and former spouses are often in a very vulnerable financial position following a divorce. They are not like other creditors, i.e. credit card companies, that assume a certain amount of risk when they lend money. Further, children and ex-spouses often relied on that support for their very survival and without that support the government may have to step in and carry that burden through programs like TANF, food stamps and Medicaid.

Prior to moving forward with bankruptcy, it is critical to consult a New Mexico attorney particularly if the objective is to circumvent child support. In fact, if you are faced with this situation, you would be well advised to consult with both a New Mexico divorce and family law attorney as well as a bankruptcy attorney. Doing otherwise will surely result in disappointment with the results.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

One of the final steps in completing a divorce is the entry of the Marital Settlement Agreement. The Marital Settlement Agreement provides the formal division of the parties' property, assets and debt. It also addresses alimony, spousal support, taxes, and other financial issues affecting the parties.

In New Mexico, the Marital Settlement Agreement must be signed by both parties. The Marital Settlement Agreement is typically adopted as an Order of the Court through the Final Decree of Divorce. Problems often arise as a result of one or both parties' refusal to abide by the terms of the Marital Settlement Agreement.

In cases where the divorce was granted and the Final Decree of Divorce was filed in the New Mexico Courts, either party may file a Motion to Enforce the Marital Settlement Agreement in the court where the divorce was granted. The District Courts in Albuquerque, Rio Rancho, Santa Fe and several of the other courts throughout New Mexico have a self-help divisions that will provide forms for this process in case the parties cannot afford legal counsel. The forms are also available online.

Problems often arise out of property and debt divisions from other States. Many New Mexico residents are faced with the breach of an out-of-state Marital Settlement Agreement. Unfortunately, enforcement of another state's orders can be complicated. An out-of-state Order addressing the division of property, assets and debt must typically be addressed in the court with original jurisdiction over those issues. Unlike many cases where a civil judgment may be domesticated in New Mexico for enforcement purposes, domestication of a family law Order is often not an option in family law.

The general rule is that the state court that grants your divorce maintains jurisdiction over the enforcement of any orders and decrees associated with the divorce. There are as always some exceptions. There is an exception for child support where the state in which the child resides may enforce child support obligations. Likewise, child custody jurisdiction may vest in another jurisdiction after the child has resided in the new state for 6 months. With those exceptions, the original court maintains jurisdiction over most matters related to the divorce such as the division of property and debt, spousal support and alimony.

In case of problems with enforcement, it will typically be required that a proceeding in the state of original jurisdiction be initiated. In that instance, it would be important that the obligations under the Marital Settlement Agreement be found by the Court to be a judgment. Once this is done, and the amount is fixed, the judgment may then typically be domesticated in New Mexico for future enforcement.

These issues can become very complicated very quickly. It is important to determine the proper way to proceed prior to seeking court relief. False steps could become extremely costly if the Court refuses to hear the claims due to lack of jurisdiction. It would be wise to seek the advice of a New Mexico divorce attorney when faced with this situation.

www.CollinsAttorneys.com

Being served with divorce papers is extremely stressful and emotional. Often times, the person served has no idea what to do once served. Though the divorce process can be confusing, the initial steps are pretty straight-forward.

The first legal step in a divorce action in New Mexico is the filing of a Petition for Dissolution of Marriage, which must be personally served to the opposing party. Once you have been served with the Petition, you have 30 days to file your response, which is called an Answer. At the Second Judicial District Court in Albuquerque, all responsive pleadings, including the Answer, must be filed with the clerk on the first floor of the Bernalillo County Courthouse. Likewise in the Thirteenth Judicial District in Rio Rancho, the Answer must be filed on the first floor with Sandoval County District Court Clerk.

If you are served with a Petition, it is a good idea to meet with a lawyer as soon as possible in order to discuss your rights and responsibilities during the divorce process. Even if you are unable to meet with a lawyer, it is imperative that you file an Answer to the Petition. If you don't, you run the risk that a default judgment will be entered against you. A default judgment means that the Court grants the divorce, including dividing property and debt and deciding child custody and child support, without your input.

The Petition itself is a pretty basic document that simply notifies the Court that the parties are incompatible and that at least the filing party wants a divorce. It will include information about when the parties were married, whether or not they have any children, whether or not one party is entitled to spousal support or alimony and will ask the Court to divide all community and separate property and debt.

Thus, your Answer can be pretty simple too. The Answer should include a line responding to every line in the Petition that states whether or not you agree with each and every statement in the Petition. The Answer does not need to include the details of why you agree or disagree or details about what you want in terms of property or custody. The final details of the divorce will be spelled out in the Marital Settlement Agreement and the Parenting Plan, both of which are filed later on. Keep in mind that your Answer is binding and may be used against you later. As such, you need to be very careful about what you admit or deny.

On the other hand, it is far better to leave details out of the Answer. The details are addressed later through litigation, discovery, mediation, settlement and so. These details are then set forth either by the parties through the Marital Settlement Agreement or Parenting Plan if they are able to work together, or the court if they are not. Even if you have to file the Answer without an attorney, you should definitely discuss the details of the Marital Settlement Agreement and Parenting Plan with a New Mexico divorce lawyer because these documents will affect your rights long into the future.

www.CollinsAttorneys.com

Spousal support, which is also called alimony, is not mandatory in the State of New Mexico. In determining whether or not to award spousal support, the Courts in Albuquerque, and much of the rest of the state will typically refer to the Alimony Guidelines and Commentaries developed by the Second Judicial District Court.

The Alimony Guidelines provide a variety of considerations in the award of alimony including the length of the marriage, age of the parties, health of the parties, work histories of the parties and the earning capacity of each party. If the Court determines that spousal support it appropriate it will determine how long that support will be paid.

The New Mexico Court of Appeals recently reviewed the issue of spousal support in Pruyn v. Lam. The Pruyn case began in 2004 when the divorcing parties agreed to and filed a marital settlement agreement without the assistance of counsel. The Marital Settlement Agreement included a provision that the husband would pay the wife monthly spousal support beginning in the year 2005 and continuing until the year 2019.

The Marital Settlement Agreement stated that the spousal support/alimony was "Non-Modifiable" and set forth specific amounts to be paid to the wife each month over the term of the agreement. Nearly one year after the parties' divorce was complete, the husband filed a motion to modify the spousal support award based on a change in his financial circumstances alleging that he could no longer afford to pay the agreed upon spousal support.

After multiple hearings and motions, the trial court eventually granted husband's motion to modify support despite the language in the martial settlement agreement stating that the spousal support was non-modifiable. That decision relied on the language in New Mexico's Alimony Statute, NMSA §40-4-7(B), stating that an award of spousal support may be rehabilitative, transitional, indefinite and/or may be awarded as a single-sum to be paid in installments. The trial court appeared to find that the agreement of the parties was indefinite and therefore modifiable.

The New Mexico Court of Appeals overturned the trials court's decision and held that the Courts' power to modify spousal support is limited to cases of rehabilitative, transitional or indefinite support. The Court found that the spousal support award to the wife in Pruyn was a single-sum award due to its definite payment schedule over a defined period of time. Because it was a single-sum defined alimony award, the trial court did not have the authority to modify that provision of the marital settlement agreement.

Alimony and spousal support can be quite confusing. The alimony guidelines themselves can be somewhat confusing. Whichever end you are on, paying or receiving, you should consult with an attorney before entering into a Marital Settlement Agreement. Perhaps Mr. Pruyn's first mistake was failing to seek the guidance of an attorney. Marital Settlement Agreements are contractual in nature, and it is very hard to back out of one. Few judges will entertain the argument that you did not understand what you were doing because you did not have an attorney.

www.CollinsAttorneys.com

Mediation is a relatively informal process in which a neutral third party facilitates communication between the parties to a divorce action or custody dispute, the goal being that the parties will resolve their issues themselves rather than having a judge decide those issues for them. A mediation is also often called a settlement facilitation and in several judicial districts around New Mexico, including the Second Judicial District in Albuquerque, there are services associated with the courts that can provide a mediation/settlement facilitation for little or no cost to the parties.

Often in a very contentious or complicated cases, the judge will order the parties to mediation/settlement facilitation in order to see if they can make some headway toward resolving their issues outside the Court. The mediation process is confidential and the rules of civil procedure prevent offers made during mediation from being used as evidence before the Court. Therefore, meditation/settlement facilitation can allow parties to freely discuss possible resolutions of their issues.

Child Custody Mediation is provided year-round at low to no cost depending on the income of the parties through the Court Clinic in Albuquerque's Second Judicial District Court. Settlement facilitation is broader in scope that child custody mediation. Settlement facilitation addresses all aspects of the divorce including the division of property and debt, the division of retirement accounts, the division of the community residence, and alimony, child support, and child custody. Divorce, custody and family law settlement facilitation is provided for free to the parties once per year during Settlement Week at the Second Judicial District Courthouse.

Parties can also arrange for their own mediation; most judicial districts around the state can provide a list of mediators in the area. The people, who act as mediators do not have to be attorneys, but they should be trained in the mediation process and, for maximum effectiveness, should also be familiar with family law issues.

The product of a successful mediation is usually a written agreement. This agreement that is often hand-written will be drafted into a Martial Settlement Agreement, which will then be submitted to the Court and incorporated in the final divorce decree. Thus, while parties do not have to be represented by counsel during the mediation process, a party should strongly consider having an attorney present because the decisions made at a mediation/settlement facilitation can have a serious impact on the property and custody rights at issue in a divorce proceeding.

www.CollinsAttorneys.com