Albuquerque Divorce Lawyer Blog

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.

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If alimony is an issue in your case, there are numerous options available to negotiate and satisfy the alimony obligation. Most of the time, alimony will be negotiated without the necessity of a trial. It should be pretty clear whether your case is an alimony case. If your case is an alimony case, then negotiation and settlement of this issue will likely be preferable to any outcomes you can achieve in a very unpredictable divorce trial.

Should the case proceed to trial, the Court will consider the length of the marriage, the relative income of the spouses, and other relevant facts in a determination of whether and how much alimony should be awarded. These considerations are set forth in the alimony statute as well as the Alimony Guidelines which are followed by the Second Judicial District Court in Albuquerque as well as most of the other district courts around the state. The statute and the guidelines should be consulted early in your case to avoid what could be a long, expensive and the end disappointing process.

Should the parties reach an agreement on alimony, then there are countless ways to structure to payment of alimony. In many cases the spouses may choose to simply follow the Alimony Guidelines by receiving their spousal support/alimony in the form of a monthly payment. However, the spouses can agree that the paying spouse will make a one-time, lump sum payment of spousal support/alimony in lieu of ongoing payments.

Lump sum alimony can itself be structured in a variety of ways. The spouses are free to offset spousal support/alimony against other assets. New Mexico's adherence to the principles of community property means the spouses are entitled to an equal distribution of the assets upon the dissolution of the marriage. Spouses often agree to incorporate a lump sum payment of spousal support/alimony into a community property settlement through an additional allocation of assets to the receiving spouse.

Likewise, as a community property state, New Mexico also holds spouses equally responsible for community debt, which basically includes all debt incurred during the marriage, which provides another option for the offset of spousal support/alimony. The spouse that owes the spousal support/alimony may take on a greater share of the community debt to satisfy a lump sum payment.

In sum there is some flexibility in granting spousal support/alimony and the challenge is to achieve a solution that meets the requirements of the law, while also meeting the financial needs and abilities of the parties. However, this flexibility quickly disappears should the parties proceed to trial. Family court judges have enormous caseloads. They have little time to address alternative means of alimony. Once the matter is before the court, there is typically only one option and that is monthly payments based upon the worksheets set forth in the Alimony Guidelines.

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In New Mexico, the divorce process begins with the filing of a Petition for Dissolution of Marriage with the District Court of the County where one or both spouses have lived for at least six months prior to that filing. In order for the Courts of New Mexico to have jurisdiction over the case, one of parties must have lived in the State for at least six months.

While there are multiple grounds on which the Court can grant a divorce, New Mexico has what is often referred to as a "no fault" divorce policy, which means that the Court will grant a divorce based solely on the incompatibility of spouses. The vast majority of divorces in New Mexico are granted on the basis of incompatibility.

The Petition is a basic document, in which one spouse requests the Court enter an order dissolving the marriage. The Petition must include the following information: the date of the marriage; the names and ages of any children born to the marriage; and the date of the separation of the spouses. Primarily, the Petition also asks the Court to: divide and distribute the spouses' community property and community debt; identify and award any separate property and separate debt; determine child custody of any children born the marriage; determine child support for those children; and, award spousal support, also called alimony, if appropriate.

In most cases, after the filing of the Petition begins the process, the other major documents left to be filed with the Court are called: the Marital Settlement Agreement, often referred to as an MSA; the Parenting Plan; and, the Final Decree. The MSA is a detailed agreement that identifies and divides the community property and debt of the parties. The Parenting Plan, which is often incorporated into the MSA, specifically outlines custody and visitation arrangements for any children born to the marriage and will include a Child Support Worksheet explaining how child support will be paid between the spouses. The Final Decree is the final order of the Court adopting the contents of the MSA and Parenting Plan and granting the spouses a divorce.

Of course, in a complicated and/or contentious divorce there can be countless other documents filed with the Court as the spouses try to settle the issues division of property and debt, alimony, child custody and child support. There may be many other issues along the way such as domestic violence and orders of protection.

However, every divorce action will begin with a Petition for Dissolution of Marriage and end with some final order of dissolution of the marriage. There are many possible roads from one point to the other. The shortest and least contentious route is generally the best for the parties, the children and if that is not enough, the parties' money.

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In New Mexico, alimony is often referred to as spousal support and the two names are often used interchangeably. The purpose of spousal support/alimony is not necessarily to equalize income. Nor is it to punish one or the other spouses as New Mexico is a no-fault divorce state. Instead, it is used to balance income. The New Mexico Courts order alimony to insure that the spouse with less income is able to maintain a lifestyle commensurate to that before the divorce.

Spousal support/alimony is not mandatory in New Mexico, but judges will often follow the Alimony Guidelines developed by the Second Judicial District Court in Albuquerque. Most New Mexico Courts will at least consult the Alimony Guidelines in the determination of spousal support. As such, the Alimony Guidelines will provide a pretty good idea of whether your case will warrant alimony from either party.

While there are several elements the Court considers when deciding whether or not to order spousal support/alimony, the threshold determination is the length of spouses' marriage. The Court will generally not order spousal support/alimony in cases where the parties getting divorced have been married for less than ten years, absent exceptional circumstances.

If the Court determines that the length of marriage warrants further review of a party's claim for spousal support/alimony, the Court will consider other factors such as: the current income of the parties; the income earning potential of each of the parties; and the age, health, and medical needs of the parties. Though length of marriage and the income of the parties are the dominant factors, there are numerous other factors that the New Mexico Courts will consider as set forth in the Alimony Statute, NMSA 40-4-7(E).

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