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

Depending on the circumstances of a divorce, there can often be months or years that elapse between the time the parties separate and the finalization of the divorce. This delay can be caused by a variety of reasons from the legitimate to the malicious.

No matter the reason, the parties' debts still need to get paid while the divorce is pending and both parties are entitled to a portion of the community income. New Mexico Rule 1-122 accordingly allows the court to issue interim orders allocating income and expenses. The payments awarded in these orders is often referred to as interim support.

The premise underlying interim division of income and expense or interim support is that even though the parties may be separated, they are still technically married, which means that all of their income and debts are still community and must be allocated equally between the parties.

In order to calculate interim support, the court, or more often the parties themselves and their attorneys, creates a table that starts with the parties' gross monthly income. The court then allows each party to subtract their regular monthly payroll deductions to reach each party's net monthly income. Each party is then allowed to deduct their regular and necessary monthly expenses from the net income, which include among other things rent, mortgage payments, utilities, car payments, insurance, phone bills and the minimal monthly payment on credit card bills.

The money left between the parties after the subtraction of monthly expenses from net monthly income is referred to as the parties' spendable income. If the number for the parties' net spendable income is positive, then an equalization payment must be made so that each party gets half of the community's total monthly spendable income. If the parties have children, then an extra percentage may be added to the equalization payment to compensate the party with whom the children are primarily living. This equalization payment is called interim support.

What expenses can be included in an interim support calculation is often the subject of great conflict between the parties due to the allocation of the remaining net monthly income after deduction of these expenses. Both parties will often fight very hard to create an income and expense sheet most favorable to them in the end equalization of income.

Interim division of income and expense can be critical to the interests of the parties while the divorce is pending. However, this division is often both complex and contentious making it important to consult with an experienced New Mexico divorce and family law attorney in addressing these issues.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

What happens if parties to a divorce or paternity case have gone through all of the mediation and court hearings required to reach a parenting plan that establishes child custody, but one parent just won't comply with the Court's order? In New Mexico, the non-complaint party may be charged with the crimes of custodial interference or unlawful interference with custody.

These crimes are similar and both are fourth degree felonies which means that a person found to be guilty of either crime, may be imprisoned for up to 18 months and fined up to $5000. In addition, the offending parent may suffer additional consequences in the family law court with awards of attorneys fees and costs. The crime of custodial interference is committed when one parent maliciously takes, detains, conceals or fails to return a child to the other parent by the terms of the parenting plan or custody orders without good cause and with the intent to deprive the other party of custody for a protracted period of time or permanently.

In contrast, the crime of unlawful interference with custody is committed when a party who does NOT have a right to custody of a child maliciously takes, detains, conceals or fails to return the child to the party who rightfully has custody. Any law enforcement officer that is called upon to investigate a charge of custodial interference or unlawful interference with custody may take a child into protective custody, if that officer believe that a person may flee with the child. The child may then be returned to the custodial parent or may be held in a community-based shelter until a civil court can hold a hearing to determine or enforce custody.

While law enforcement has the authority to investigate and take action in both types of custodial interference cases, it can be very difficult to track a child down once a parent or other party has taken them. Thus, any person faced with such a situation should call law enforcement immediately and should also consult an experienced child custody attorney to make sure that their custodial rights are protected once the child is recovered.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

In New Mexico, the Family Violence Protection Act allows a victim of domestic violence to file a petition for order of protection, asking the Court to enter an order of protection preventing the person committing the domestic violence (called the restrained party) from having any contact with the abused party (called the protected party). Orders of protection are a specific type of civil restraining order and they can have a variety of consequences for all of the parties involved.

The primary consequence of an order of protection is that the restrained party cannot go within 100 yards of the protected party's home or workplace and must stay 25 yards away from the protected party in public. An order of protection may also prevent or regulate contact between any children that the parties may have together. The order of protection also prevents telephone, which includes texting, and e-mail contact between the parties.

All of these requirements will be explained in the actual order of protection; however, an order of protection has other consequences that are not as clear. If the order of protection is issued after a hearing at which the judge or special commissioner makes a formal finding of domestic violence, then the order may have long-term consequences on the restrained party's future employment opportunities, firearm rights, and immigration rights. The immigration consequences are perhaps the most serious of the collateral consequences since a finding of domestic violence may result in removal or deportation of the immigrant offender. Because of these very serious consequences, the parties may also agree to a Stipulated Order of Protection that does not include a finding of domestic violence.

Both types of orders of protection are filed with the National Crime Information Center (NCIC) so that they can be easily enforced by police across jurisdictions. In the case of a stipulated order, the restrained party is still prevented from any and all contact with the protected party and cannot possess a firearm while the stipulated order is in place, but there is no formal finding of domestic violence that would have to be reported later when applying for jobs, a firearms license or immigration procedures.

Finally, a violation of an order of protection can also result in criminal and civil penalties, including fines, jail time or both. Thus, if you are a party to a petition of order of protection, it is important that you discuss your case with an to make sure that the appropriate type of order of protection is entered and to ensure that it is properly enforced.

Sarah Armstrong
Albuquerque Attorney
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

Unlike other states, in New Mexico, the process for obtaining a legal separation is nearly identical to that for getting a divorce. Parties often mistakenly believe that they can get a legal separation faster and cheaper than they can get a divorce. However, in granting a legal separation the New Mexico courts will still need to divide all of the property and debts, and determine child custody and child support, which means that obtaining a legal separation, is not any faster than the divorce process. Nor does it save on attorney fees.

Most of the same documents will need to be filed as with a divorce and nearly all of the same steps will be taken by the court, except that at the end of the legal separation process the parties cannot legally remarry. In the end, if a divorce is inevitable and the end objective, then a legal separation will greatly increase the attorney fees, time and stress of the process.

This leads to the question, why file for a legal separation? Some parties may pursue a legal separation for religious reasons if their church does not frown on legal separation the same way it does on divorce. Others may file for legal separation rather than divorce because in some cases both parties may keep the health benefits earned by one spouse if they are legally separated but not if the parties are divorced.

Given the limitations of health care in the United States, this second reason can be a powerful incentive for seeking a legal separation rather than a divorce. However, the health care issue can be pretty tricky. Not all insurance policies allow continued coverage for parties that are legally separated. It is therefore important to check with the individual policy before pursuing this option.

Essentially, anyone contemplating a legal separation rather than a divorce should consult with an experienced divorce and family law attorney. It may be that a legal separation is not the best route. And even if it is, it is important to understand all of your rights and obligations in moving forward.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

Two unique facets of the New Mexico law governing divorce make the process of getting a divorce in New Mexico very different from other states. First, New Mexico does not have a waiting period that must be observed before filing for divorce. This means that parties who have been married for one day have the same standing to file a petition for dissolution of marriage (the document filed with the court that begins the divorce process) as parties who have been married for 25 years.

However, it is important to note that even though there is no official waiting period, the party filing for divorce must still meet the jurisdictional requirement of the New Mexico courts, which requires the party to have lived in New Mexico for at least six months prior to filing for divorce.

The second major difference between New Mexico and other states is that New Mexico is a No Fault divorce states. This means that the courts here will grant a divorce on the basis of incompatibility alone and do not require, for instance, that one party show that the other has committed adultery or any other wrong against the marriage.

Only one party needs to plead incompatibility for the New Mexico courts to begin the divorce process. Typically, the family law judges will not hear arguments about infidelity or bad behavior by one party unless they directly affect custody or some aspect of property and debt division essential. Neither will the court entertain counter arguments to incompatibility.

Many parties find the No Fault policy unsatisfying because the court does not hear about all of the hurtful things their spouse may have done. However, the positive side of a No Fault divorce is that embarrassing information about the parties' personal habits or sexual proclivities can be kept private and will not necessarily need to be debated in open court. For these reasons, conflict is also reduced. This too speeds up the divorce process and results in substantial reduction of emotional and financial costs to the parties.

Even though the lack of a waiting period and the policy of No Fault make the process of divorce in New Mexico somewhat simpler than other states, it is still very important that parties to a divorce proceeding consult an attorney as early as possible in the process so that they can make sure all that they understand all of their rights and responsibilities under the law.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

According to a recent article in the Albuquerque Journal, the number of child support enforcement cases pending in New Mexico has reached a record high. The Child Support Enforcement Division, called CSED for short, is a part of the New Mexico Human Services Department and is responsible for enforcing parents' child support obligations. CSED officials believe that the increase in cases is due to the bad economy, which means that the enforcement cases have increased but that actual collections of unpaid back child support are down.

CSED can get involved in a divorce or paternity case in multiple ways. The most common situation is when the custodial parent gets any kind of financial assistance from the State or Federal government to assist them in raising their child. In these cases CSED automatically sets up a case and will begin trying to establish and collect support from the non-custodial parent. Where applicable, part of the money collected from the non-custodial parent will go to repaying the State for the assistance it has paid to the custodial parent. A CSED case may also be automatically opened when the custodial parent applies for Medicaid coverage for a child. And, finally, a parent who is not receiving public assistance or Medicaid, but who has a child support order that is not being followed can go to CSED and ask that a case be opened up on their behalf.

Once an enforcement case is opened, CSED has extensive power to force non-custodial parents to pay support, including the garnishment of wages, the seizure of bank accounts and the suspension of driver's licenses. Thus, if you are a parent who gotten behind on support for whatever reason, it is important that you seek the advice of an attorney experienced in child support matters immediately before CSED begins to take enforcement and collection action against you. In turn, if you are a parent who is entitled to support but is not receiving it, speaking with an attorney can show you the various options available to begin encouraging your child's parent to pay support.

CSED is generally very helpful and cooperative so long as you address the situation. This means that you immediately contact them to address a problem as it arises. Often times, there are solutions that both parties and CSED can live with. Due to their vast experience in child support matters, CSED attorneys will know every available alternative short of financial ruin for either party. That is the good news. The bad news is that CSED is overwhelmed with cases so it may be difficult to make contact with someone with decision-making authority. This alone will typically indicate and justify hiring your own attorney.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

What happens when one a parent wants to move out of state, or even to another city within New Mexico? Relocation of one of the parents often has significant consequences for child custody and timesharing.

Relocation of a parent outside of New Mexico, or even within New Mexico, can be a very difficult situation for parents who may have to choose between job or family obligations and being close to their child. It can be an even more difficult situation for a child who is faced with leaving their school and their friends and the possibility of seeing one parent much less frequently than they did before the move.

Both the federal and state constitutions protect the right of citizens to travel and move freely about the county, but while a parent has the right to move, they do not necessarily have the right to take their child with them. Where there is an existing parenting plan setting forth custody and timesharing, a parent who wants to move must file a motion to modify the parenting plan and timesharing agreement as soon as they know they will be moving. A relocating parent should understand that New Mexico will maintain jurisdiction over child custody and timesharing despite the move.

If parents have split, but have never established a formal parenting plan, it is a good idea to get a parenting plan entered by the court prior to moving. In cases where there is no parenting plan, the parent who is not relocating would be very wise to file a Motion with a Temporary Domestic Order to prevent the other parent from taking the child out of state and thereby escaping New Mexico jurisdiction over child custody and timesharing.

When a parent must move suddenly, they should still file a motion to modify timesharing before they leave and either travel back for the hearing or ask the court if they can appear at the hearing via telephone. The relocating parent should be prepared for a long and frustrating process. He or she should also understand that the Court may not look favorably on the relocation for purposes of establishing child custody and timesharing

As with all custody decisions, the court's primary consideration in evaluating a modification of a parenting plan to accommodate a parent's move is the "best interests" of the child or children involved. If one parent has sole legal and physical custody, then the court will most likely find that it is in the best interest of a child to remain with that parent. In a situation where the parents share custody, but one parent wants to move with the child, the court will have to determine whether it is in the best interests of the child to stay in New Mexico or to leave with the relocating parent.

That determination rests heavily on the parent's reason for moving and how much of a disruption the move will cause for the child. The court will consider all of the child's circumstances such as family bonds, friendships, schools, sports, extracurricular activities among other issues. Most importantly, the court will look to see how the move will affect the child's relationship with the other parent. The court will almost always deny a parent's request to move with the child if that request is made as a bad faith attempt to prevent contact between the child and the other parent. Finally, if the change in the parenting plan, custody and timesharing is contested, the case will be referred to family court clinic for a full custody evaluation. This can take months and it rarely moves faster for the convenience of either party.

If a court does grant one parent the right to move with the child, the court will need to devise a new visitation schedule that accommodates the new distance between a child and parents. This can be expensive as parents will now need to pay for travel costs to facilitate visitation and can be very difficult when a child is too young to travel alone. The constraints of time, distance and a child's school schedule are only a few of the factors to be considered when one parent wants to move, which is why it is important that each parent consult an attorney if they are faced with such a potential change to custody and timesharing.

www.CollinsAttorneys.com

The essential component of a Domestic Violence Order of Protection under the New Mexico Family Violence Protection Act is the issuance of a restraining order prohibiting the restrained party from having any contact with the protected party/alleged victim. However, when the restrained party and the protected party have children together the domestic violence hearing officer can also issue short-term decisions regarding child custody, timesharing and child support. In Albuquerque, Rio Rancho and Santa Fe, the hearing officer will often refer the parties to the court clinic or family court services in order to evaluate custody and advise the court as to what is in the best interest of the children involved in the domestic violence case. The result is often a temporary parenting plan, the duration of which will depend upon the future behavior of the parties.

Albuquerque, Rio Rancho and Santa Fe each have a variety of court clinic and/or family court services for addressing child custody and time-sharing issues. These offices are staffed by trained psychologists, therapists and social workers who are often called court clinicians. The purpose of a court clinician is to help the judges and hearing officers make custody determinations by conducting an investigation into a child's living situation. This investigation, often referred to as a child custody evaluation, includes interviews of the parents, the child (if the child is old enough) and others involved in the child's daily life such as grandparents, teachers, doctors, counselors and even coaches.

Sometimes a hearing officer will ask a court clinician to appear at a hearing on an Order of Protection on very short notice for an on-call child custody evaluation. This is typically the case in custody matters related to domestic violence actions. In these situations, the hearing officer will call a recess from the hearing in order to allow the on-call clinician to speak to all of the parties present and make a child custody and timesharing recommendation that is in the child's best interest. If the on-call clinician determines that more investigation needs to be done they may ask the hearing officer to order a priority consultation which a more thorough but expedited custody evaluation. However, the on-call clinician will make interim recommendations based upon preliminary findings that will stand pending the priority consultation

A priority consultation is a more in-depth evaluation by the court clinician and will usually be held sometime after the domestic violence hearing. It may include interviewing others in the child's life not present in court at the domestic violence hearing and reviewing any relevant documentation about the parents' or the child's mental health. If the court clinician feels like still more investigation is needed, there may be a request that the hearing officer or the judge order that the parties participate in an advisory consultation, which often requires all the parties involved to undergo psychological testing and may span a period months, often many months due to the heavy caseload in the court clinic.

At the end of an on-call, priority or advisory consultation, the court clinician will make recommendations to the hearing officer or judge as to what the parties' timesharing arrangement should be. Each party has ten (10) days to object to the recommendations issued by the court clinician. If no objections are filed within the 10 day time period, the recommendations are adopted as an order of the Court.

A hearing on an Order of Protection can have lasting effects on a restrained party's liberty and their right to see their children, which make is extremely important that you consult an attorney if a Petition for Order of Protection is filed against you. Every case is unique and requires individual analysis to protect both your interests and the interests of your children. No matter which side you are on, it is typically inadvisable to attend these hearings without a New Mexico divorce and family law attorney.

www.CollinsAttorneys.com

A Qualified Domestic Relations Order ("QDRO") is a specialized order issued by the Court to divide retirement benefits during a divorce proceeding. As a community property state, the law in New Mexico provides that each spouse is entitled to 50% of the retirement benefits earned by the other spouse during the marriage. Retirements benefits can include, among other things, pension plans, deferred compensation accounts and 401(k) plans.

Retirement plans can often be one of the most valuable community assets owned by a divorcing couple and there are different ways to approach division of retirement benefits. As a preliminary matter, the parties must determine the value of the retirement benefit at issues. This determination can be fairly simple as in the case of 401(k) account, which contains a readily identifiable amount of money on any given day. In contrast, the value of pension plans can vary greatly depending on how much the employee spouse is making at the time of retirement and at what age the employee spouse retires. In complicated retirement cases, the parties and their attorneys should think seriously about hiring an actuary or other trained expert to determine the value of the disputed retirement benefit.

After the value of a retirement plan is determined, then the parties (or the Court) must also decide how and when the benefits will be distributed. In the case of some 401(k) plans, the parties can split the account at the time of divorce. In the case of other pension plans, neither party receives their share of the retirement plan until the employee spouse actually retires.

The QDRO should address all of the issues regarding valuation and distribution of retirement benefits. Though it would seem that the valuation and division would be a straightforward mathematical calculation, the division of retirement accounts is often hotly contested. The drafting of the QDRO can be highly contentious. In turn, the QDRO must be submitted to the court for approval and then submitted to the QDRO administrator for its approval. Each plan requires specific language and Orders are often rejected for what appear to be very trivial drafting issues.

There are some QDRO administrators that will review the Order prior to filing with the court. Others require a court approved Order prior to review. In these cases, the Order may take several trips through the drafting process, approval by the Court and final approval by the plan administrator. This process can take a very long time.

In cases where retirement benefits are hotly disputed and the parties cannot agree on drafting, it is often beneficial to have a third party attorney draft the QDRO to reduce the conflict between the parties and their attorneys. Though this will often reduce the conflict and expedite the drafting process, even this step cannot alleviate the conflict in some cases. In those cases, it is often necessary to seek the intervention of the Court. Where this becomes necessary, the parties can be assured that they are embarking on a very expensive adventure.

www.CollinsAttorneys.com

A domestic violence order of protection is a type of restraining order issued to protect victims of domestic violence under New Mexico's Family Violence Protection Act. Domestic violence cases in New Mexico are often filed in criminal court where the penal consequences can be severe. The Family Violence Protection Act provides another layer of protection for alleged victims of domestic violence in New Mew Mexico civil courts.

Though these cases are filed in civil court, a finding of domestic violence has very serious consequences. As such, it is imperative that anyone facing one of these proceedings consult with an attorney, and have one present at the hearing if at all possible.

After an alleged victim of domestic abuse (called the Protected Party) files a Petition for Order of Protection Against Domestic Abuse alleging that another person (called the Restrained Party) has committed an act of domestic abuse, the court will issue a Temporary Order of Protection against the Restrained Party and order both parties to appear at a hearing.

The Temporary Order of Protection forbids the Restrained Party from any contact with the Protected Party until the hearing. This often means that a Restrained Party cannot return to their home and it also prohibits contact by telephone, e-mail and texting.

Though an Order of Protection is not a criminal action, a Restrained Party who violates the Order of Protection in any way can be charged with a crime. In addition, the Restrained Party can also be charged with contempt of court and jailed until a hearing is held. In serious domestic violence cases, the judge can hold the Restrained Party following the hearing under its contempt powers. So if you are served with an Order of Protection, it is very important that you read the terms of the Order carefully and strictly obey them.

At the hearing, which should occur quickly after the filing of the Petition, the court will decide whether or not an act of domestic abuse has occurred. Depending on where you live, the hearing may be presided over by a judge, a hearing officer or a special commissioner. In Albuquerque, Santa Fe and Rio Rancho, these hearings are heard by Domestic Violence Hearing Officers. If the presiding official makes a finding that domestic abuse has occurred, the can issue an extended Order of Protection that extends for 6 months. The alleged victim may file a Motion to Extend Domestic Violenc Order of Protection in cases where there is an ongoing threat of domestic violence.

As stated, a finding of domestic violence can have serious long-term implications, including registration as domestic violence offender, prohibitions on gun ownership, deportation, bars to certain employment including any job requiring a firearm, and problems with security clearance which is often most serious of all in New Mexico. Further, the extended Order of Protection not only prevents the Restrained Party from contacting the Protected Party, but it can also include provisions regarding custody of children, distribution of property and can order the parties involved to attend counseling.

Parties to a Petition for Order of Protection may want to consider agreeing to a Stipulated Order of Protection, which can allow them to avoid a finding of domestic violence while allowing the alleged victim all the protections of an Order of Protection. This will avoid the finding of domestic violence and most of the consequences outlined above. In most cases, this is not only best for the Restrained party but also for the alleged victim since a domestic violence finding will often result in the loss of employment and loss of support for the alleged victim and the children to the relationship.

www.CollinsAttorneys.com

A variety of complicated emotional and legal issues arise when a person dies. And those issues get even more complicated when the deceased is involved in a pending divorce action. Does one party's death end the divorce proceeding? Does the surviving spouse serve as personal representative of the deceased spouse's estate? How does the Probate Code (the body of laws governing the estate of a deceased person) interact with the statues governing Domestic Affairs? The New Mexico Court of Appeals addressed these questions in two 2009 cases.

These questions are very important in a divorce action which is after all a dissolution of marriage. A dissolution of marriage means a division of property and debt. All community property and debt must be divided according to the law. It also means that the separate property and debt must be identified and divided as such. The division of property and debt has significant consequences for the parties. The division may also raise claims by creditors against the community property by creditors including mortgage companies, credit card companies, and even the IRS. As such, the fact that divorce legally survives the death of one of the parties is no trivial matter.

In Karpien v. Karpien, a case that arose in Sandoval County, the wife died during the parties' divorce proceeding which is commenced upon filing the Petition for Dissolution of Marriage. The district court appointed the wife's parents as the personal representatives of her estate (the personal representative is the party in charge of distributing the assets and addressing the outstanding obligations of a deceased person). The husband objected to the appointment of the wife's parents and argued that the wife's death essentially ended the divorce proceeding and that he was entitled to his inheritance as the surviving spouse under the Probate Code. The Court of Appeals disagreed with the husband and ruled that, upon the death of a spouse during a divorce proceeding, the divorce proceeding continues and the personal representative is charged with representing the interests of the deceased spouse.

But what if the will of the deceased spouse appoints the surviving spouse as personal representative? Just this situation arose in a case out of Albuquerque known as Oldham v. Oldham, in which the husband died during a divorce proceeding. The husband's will appointed his wife as the personal representative of his estate, which would have meant that the wife was charged with representing the husband's interest against herself in the divorce proceeding. The Court of Appeals overturned that appointment and ruled that such a situation created an inherent conflict of interest on the part of the personal representative, who in this case was the opposing party in the divorce action. The Court of Appeals sent the case back to the district court with instructions that the district court appoint another appropriate person to serve as the personal representative so that the divorce proceeding could be concluded.

When a family member dies, it is always important to consult an attorney about the probate process. And when that death occurs during a divorce, it becomes even more important to consult an attorney to make sure that all parties involved are compliant with both the Probate Code and the Domestic Relations statutes.

www.CollinsAttorneys.com

The law in New Mexico is very protective of parental rights. On occasions, the mother or father of a child who has been absent from the child's life for an extended period of time, many times for years, will show up wanting time-sharing with the child. On some occasions, the long lost parent will even demand custody.

In New Mexico, both parents have an ongoing right to visitation and time-sharing until the child is eighteen, even if one parent has chosen not to exercise that visitation for years. However, just because a parent has the right to time-sharing does not mean that a parent who has not had any meaningful contact with their child for months, or years, has the right to show up at your door and demand to take the child for the weekend. It certainly does not allow for a change in custody to accommodate the absent parent's whims.

The first step in such a situation is always for the parents to try to reach a parenting plan that creates a time-sharing agreement that they are both comfortable with. If the parents can't come to an agreement, then either party can petition the court for an order establishing custody and time-sharing through a parenting plan. In cases of extended absences of a parent, an agreement is frequently impossible for numerous reasons not the least of which is the resistance of the child who may not even know the newly arrived parent.

The parenting plan established by the Court will provide the details of time-sharing if any. If the parents cannot reach an agreement, the Court will enter a parenting plan, often temporary in nature, with the assistance of Family Court Clinic or a private expert custody evaluator.

In the Second Judicial District in Albuquerque, cases involving contested child custody will often be sent to Court Clinic where a number of counselors and/or psychologists will conduct a full custodial evaluation. The Court Clinic's primary role, as is the role of the Court, is to determine the best interests of the child. The court through Court Clinic recommendations may also order that the parents work with an outside therapist or appoint a guardian ad litem to help the parties devise an appropriate time-sharing schedule.

In evaluating a time-sharing schedule and parenting plan, the court will always look to the best interests of the child. In determining what is in a child's best interest, the court looks at a variety of factors, including the child's age, their relationship with both parents and the child's current living situation, which is also called the status quo. As children grow older, particularly when they reach age 12, they have more and more input into the process. Once children reach 14 years of age, the Court will except in exceptional situations defer to the child's wishes.

There are many considerations that go into the determination of time-sharing in a case like this. It may be that the newly arrived parent will get only limited time-sharing. In rare cases, the parent will get no time-sharing such as when the child has reached age 14 and simply refuses time-sharing with the long lost parent. Each case is unique requiring a great deal of time and work to achieve a result.

www.CollinsAtttorneys.com

In the recent case of Vescio v. Wolf, the New Mexico Court of Appeals discussed the issue of third-party child custody, which refers to a situation in which a person other than a child's mother or father seeks custody of that child. In Vescio, a child's aunt filed a petition for custody and timesharing against the child's mother and grandmother, who had been appointed the kinship guardian of the child (the child's father was not involved with the child's life or this case).

The aunt initially based her petition on alleged abuse of the child by the mother and grandmother, however, the New Mexico Children Youth and Families Department (CYFD) found the allegations of abuse to be unsubstantiated. The district court dismissed the aunt's petition because she lacked standing to seek custody under the regular child custody statutes.

In the Vescio opinion, the Court of Appeals listed five primary situations in which a third-party may be awarded child custody in New Mexico: 1) when extraordinary circumstances exist and there is no other adequate remedy available; 2) during an action for dissolution of marriage; 3) when a parent or guardian for the child dies, the court can award custody to a third-party under the Probate Code; 4) when there has been a finding of abuse and neglect by CYFD; and 5) when a third-party files a petition for custody under the Kinship Guardianship Act.

The Court of Appeals upheld the dismissal of the aunt's petition because it did not properly fall within any of the situations listed above. However, the Court ruled that the aunt would have standing to file a motion to revoke the grandmother's guardianship under the Kinship Guardianship Act.

If you are a third-party thinking about seeking custody of a child, this case illustrates that importance of consulting with an attorney in order to ensure that you use the proper body of law as a basis for your claim.

www.CollinsAttorneys.com

Just to make the community property versus separate property distinction even more complicated, sometimes the different types of property can be so intermingled that the property that was once separate becomes community or property that was community can become separate property (although this second example is very rare). This process of mixing property is often comingling or transmutation, which was described in a 1982 case from the Second Judicial Court in Albuquerque, called Allen v. Allen.

The most common way that property is comingled or transmuted is by gift. For instance, in the Allen case, the wife owned a piece of property prior to the marriage, which she later deeded to herself and her husband jointly. The Court ruled that the deed was evidence of the wife's intent to gift the property to the community, which changed the property from separate to community.

However, property can also be transmuted without a document specifically designating a gift, but rather through the actions of the parties. This situation commonly arises with a home owned by one spouse prior to the marriage. Under the basic rules of community property, the marital home would be the separate property of the spouse who owned the home prior to the marriage. However, what often happens is that the mortgage payments for that home are made from the parties' community funds (remember that all income earned during the marriage constitute community funds, even if the parties have separate bank accounts).

The donative intent of the spouse giving the separate property to the community is the key to evaluating whether or not the property was gifted. And without a document specifically identifying a gift, it can be very difficult to prove that intent. These cases may require hiring an outside expert to trace all of the funds applied toward the property, which can be a very expensive process. As with any divorce settlement process, the spouses arguing over possible transmuted property need to balance the value of the property in question against the potentially high cost of proving transmutation.

www.CollinsAttorneys.com

With few exceptions, the New Mexico Courts treat all debts incurred during a marriage, by either or both spouses, as community debt, which means that each spouse is equally responsible for the debt.

An important part of a divorce proceeding is a determination of which spouse will pay what debt after the spouses are divorced. After the spouses agree on, or the Court decides, who will pay each community debt, the Court enters a final order adopting that agreement or determination, which becomes binding on the spouses. However, that order is not binding on creditors that may be trying to collect payment of a community debt.

This limitation to the power of a divorce order is especially true when it comes to the Internal Revenue Service because a state court order is not binding on the federal government. During a marriage, when one or both spouses fail to pay federal taxes, the IRS has the power to collect those taxes for either or both spouses. The IRS may file a federal tax lien against any community property owned by the spouses, and is entitled to file a lien against any separate property owned by the debtor spouse. The IRS may choose to levy the wages or tax returns of either spouse.

Further, in New Mexico, the IRS can levy a spouse's 50% interest in community property for debts that were incurred before the marriage. The issue of federal taxes can severely complicate the property and debt division in a divorce proceeding. Spouses that are considering divorce and have outstanding tax issues should contact an attorney in order to avoid serious penalties.

www.CollinsAtttorneys.com

The general rule in the state of the New Mexico is that all debt incurred during a marriage becomes community debt, which means that both spouses are equally responsible for the debt. This is true even when one spouse creates a debt without the other spouse's knowledge, although there are some narrow exceptions to that rule.

Thus, as part of a divorce proceeding, both parties are required to identify all debts incurred during the marriage. Since these debts are most often community debt, the parties then need to decide how the debt will be divided between them. Essentially, each spouse is responsible for 50% of the debt unless the debt is divided pro rata based upon income, or some other way as agreed upon by the parties. The spouses (or their attorneys) must enter into a marital settlement agreement that identifies which spouse is going to take responsibility for which debt after the divorce is completed.

The parties' agreement with respect to the division of debt is then adopted by the Court in an order dissolving the marriage and adopting the Marital Settlement Agreement as an order of the court. The Second Judicial District Court in Albuquerque typically calls this order a Final Decree, but the name given by Courts around the state may vary. Whatever the title, the Court's final order is binding on the spouses and imposes a duty on each spouse to pay the debts that each agreed to pay.

However, problems often arise after a divorce is completed when one spouse quits paying a community debt that he or she agreed to pay as part of the divorce settlement. Even though the Final Decree is binding on divorcing parties, it is NOT binding on creditors seeking to collect a debt. This means that even after a divorce, a creditor may file an action against both spouses in an attempt to collect what was once a community debt. The collection is based upon joint and several liability for the community debt.

As a result, it is not infrequent that creditors go after one spouse for the debt assigned to the other in the Marital Settlement Agreement. Creditors are often extremely aggressive and unforgiving in their collection efforts. The law is unfortunately on their side. Any debt incurred during the marriage is arguably a community debt with respect to the parties. There are some exceptions such as gambling debts.

If you are considering divorce and have community debt, you should consider consulting an attorney to ensure that your marital settlement agreement clearly assigns that debt. And if you are being contacted by creditors for a debt assigned to your former spouse, you should contact an attorney immediately to discuss the enforcement of the order against your former spouse. Though you have few defenses against the creditor, you do have rights against your former spouse including orders of contempt, attorney fees and costs.

www.CollinsAttorneys.com

A Guardian Ad Litem, often referred to as GAL, is a person appointed by the Court to represent the interests of a minor or a person who is unable to represent themselves by virtue of age or incompetence. In the case of child custody actions, the GAL is appointed to insure that the interests of the children are protected.

As in all child custody cases, the standard in New Mexico is the "best interests of the child." This is often hotly contested between the parties. In fact, if a GAL has been appointed, then the case probably has a very high level of conflict between the parties as to what is best for the children. Otherwise, there is no need for the GAL.

A GAL's job is to advocate zealously for their clients, which in this case is the children. The duty to represent the children is just as high as with any client. In high conflict child custody cases involving a GAL, the GAL can at times be overzealous often causing additional strain between the parties, and therefore on the child.

The GAL also acts as an investigative tool for the Court and, depending on the Court's order, may be charged with investigating the health care providers, teachers, coaches, counselors and others familiar with the child. As an arm of the court, what the GAL says goes. Therefore, if the parents cannot agree, the GAL decides and 9 times out of 10, the court will follow the advice of the GAL. This basically takes all the parenting decisions away from the parents where the parents cannot agree.

In New Mexico, a Judge may appoint a GAL in a wide variety of cases, including cases wherein a child has been a victim of abuse or neglect. Most often the GAL is appointed because the judge is fed up with the parties and the use of the GAL is the only option remaining for sorting out what is best for the children.

It is in your best interests and the best interests of your children to try to work with the other parent to work out a parenting plan without the intervention of a GAL. If a GAL is appointed, which we usually resist unless absolutely unavoidable, then you are in for a long, contentious, invasive and emotionally stressful ride. If that is not enough, the costs of the GAL will likely far exceed the costs of your attorney.

Do yourself, your children and your wallet a favor, work things out with the other parent. The GAL path is one you want to avoid at all costs. Once you have gone down that path, there is often very little left to salvage for you, your ex, or the children.

www.CollinsAttorneys.com

An order of protection is a type of restraining order issued to protect victims of domestic violence that is authorized by the Family Violence Protection Act. An Order of Protection basically prohibits contact between an alleged victim and the person the alleged abuser.

After an alleged victim of domestic violence (called the Protected Party) files a Petition alleging that another person (called the Restrained Party) has committed an act of domestic abuse, the court will issue a Temporary Order of Protection against the Restrained Party and order both parties to appear at a hearing.

The Temporary Order of Protection forbids the Restrained Party from any contact with the Protected Party until the hearing. This often means that a Restrained Party cannot return to their home and it also prohibits contact by telephone, e-mail and texting.

A Petition for Order of Protection is not a criminal action. However, a Restrained Party who violates the Order of Protection in any way is subject to immediate arrest. In addition, the person can be subject to both criminal charges and contempt of court . So if you are served with an Order of Protection, it is very important that you read the terms of the Order carefully and strictly obey them.

At the hearing, which should occur quickly after the filing of the Petition, the court will decide whether or not an act of domestic abuse has occurred. Depending on where you live, the hearing may be presided over by a judge, a hearing officer or a special commissioner. If the presiding official makes a finding that domestic abuse has occurred, the court will issue an extended Order of Protection for 6 months. The Order can be extended for up to a year for good cause with Motion to Extend the Order of Protection Against Domestic Violence.

A finding of domestic violence can have serious long-term implications, including prohibiting a Restrained Party from ever possessing a firearm. A finding of domestic violence can have serious immigration consequences resulting in the initiation of removal proceedings and eventual deportation of an offending immigrant. Finally, a finding of domestic violence will often bar certain types of employment and more often than not will have grave consequences for governmental security clearances.

The parties to a Petition for Order of Protection may want to consider agreeing to a Stipulated Order of Protection, which can allow them to avoid some of the consequences of a finding of domestic violence. After all, the consequences outlined above can be devastating to both the party found guilty of domestic violence as well as the alleged victim who is often left with no means of financial support for her and the children.

www.CollinsAttorneys.com

After an alleged victim (the Protected Party) of domestic violence has filed a Petition for Order of Protection and the Temporary Order of Protection has been entered preventing the alleged abuser (the Restrained Party) from any contact with the alleged victim, the court holds hearing to determine whether or not the Petition provides enough information for the court make a formal finding that domestic abuse has occurred.

These petitions are often filed in the context of a divorce or custody battle. However, they can be filed by any "household member" as defined under the statute. The Family Violence Protection Act statute defines household member as follows:

"household member" means a spouse; former spouse; family member, including a relative, parent, present or former stepparent, present or former in-law, child or co-parent of a child; or a person with whom the petitioner has had a continuing personal relationship. Cohabitation is not necessary to be deemed a household member for purposes of this section."

A parent can also file a Petition in order to protect their minor child. The court must find that a preponderance of the evidence provided at the hearing shows that an act of domestic abuse has occurred.

According to the Family Violence Protection Act, the definition of domestic abuse is very broad, but it basically defined as an incident by a household member against another household member and includes things like actual physical harm, severe emotional distress or just making a threat that causes the Protected Party reasonably think that the Restrained Party might harm them.

A finding of domestic abused can have serious implications. The court records of these civil domestic violence Petitions are not accessible to the public in New Mexico, however, all Orders of Protection are reported to the database maintained by the National Crime Information Center (NCIC), which is accessible to all law enforcement agencies in the country. A finding of domestic violence results in registry in the database as a domestic violence offender.

Registry as a domestic violence offender has numerous severe consequences. The full faith and credit clause requires that every state recognize and enforce the Orders of Protection issued by another state. Many employers, especially for jobs that require any kind of security clearance, will request that a potential employee report whether or not any findings of domestic abuse or violence have ever been made against them. And, under the federal gun control regulation, a finding of domestic abuse will prevent a Restrained Party from ever owning or possessing a firearm. This includes firearms used in hunting. It also includes firearms used in the course of law enforcement and the military effectively barring domestic violence offenders from law enforcement and military service in the absence of waivers. Finally, a finding of domestic violence serious immigration consequences including immigration removal proceedings for deportation and exclusion of the domestic violence offender from the United States.

Due to the severe consequences of a fidnign of domestic violence and the rather liberal burdens and rules of evidence in domestic violence hearings, the parties to a Petition may want to enter into a Stipulated Order of Protection, in which the Restrained Party agrees to comply with an extended Order of Protection, but a full evidentiary hearing is not held and there is no finding of domestic abuse. Both the alleged victim and the alleged abuser benefit from this arrangement particularly in cases where there are support issues. After all, it does little good to have family's provider fired from his job or worse, deported from the United States.

A party facing the a Petition for Order of Protection from Domestic Violence should discuss the implications of a finding of domestic violence and a Stipulated Order of Protection with their attorney or the court itself at the prior to the beginning of the hearing.

www.CollinsAttorneys.com

A Domestic Violence Order of Protection is a type of restraining order issued to protect victims of domestic violence and abuse, which is authorized by the Family Violence Protection Act. In New Mexico, including Albuquerque, Rio Rancho and Santa Fe, anyone can file a Petition for an Order of Protection at the Domestic Violence office on the second floor of the Second Judicial District Courthouse. It is not necessary to have an attorney to file a Domestic Violence Order of Protection.

By statute, the Court cannot charge the alleged victim (called the Protected Party) for filing the Petition and the sheriff's office cannot charge a fee for serving the alleged abuser (called the Restrained Party) with Petition and Temporary Order of Protection.

A Domestic Violence Order of Protection is separate from criminal domestic violence charges that are filed in metropolitan, magistrate or district court. In cases of criminal domestic violence actions, the police or district attorney's office will file domestic violence criminal charges based on an alleged incident of abuse in a criminal case. In a Petition for an Order of Protection from Domestic Violence is filed by the alleged or his/her attorney. ,

It is possible for criminal charges and an Order of Protection to arise from the same incident. These Petitions for Order of Protection Against Domestic Violence are often filed during a divorce proceeding or a custody dispute. Unfortunately, these petitions are often used as a weapon in a divorce or custody matter with no real basis for the petition. A party accused of an act of domestic abuse may file a response to the Petition or may also file a Counter-Petition against the party alleging the abuse.

The standard required to file a Petition is very low. Essentially, a Protected Party just has to swear to the court that they have been a victim of domestic abuse and describe the abuse in the Petition. Then the court will issue a Temporary Order of Protection, which means that the Restrained Party cannot have any contact with the Protected Party.
The Petition and Temporary Order must be personally served on the Restrained Party and the Order will set a hearing when the alleged abuser must appear before the court.

Many jurisdiction, including Albuquerque's Second Judicial District and Santa Fe's First Judicial District, have appointed designated domestic violence hearing officers or special commissioners to hold the hearings on Petitions for Orders of Protection. The hearing officer or special commissioner will hear all the evidence and issue all the findings at the hearing and then issue a report that the presiding district court judge will approve.

All testimony at these hearings is on the record and under oath. Either party may have an attorney, but unlike criminal proceedings, an attorney is not provided for you by the State. The Protected Party has the burden of showing the court by a preponderance of the evidence that an incident of domestic abuse has occurred. Preponderance of the evidence basically means that it is more likely than not that domestic abuse occurred. This is a fairly low burden unlike the burden in criminal cases. In addition, the rules of evidence and procedure can be a little lax in domestic violence hearings. It is therefore necessary to defend the actions pretty aggressively if the allegations are without merit.

Should the hearing officer find that domestic violence has occurred, an Order of Protection will be issued for a 6 month period. These Orders can be extended for an additional 6 months through the filing of a Motion to Extend Order of Protection upon a showing of good cause.

Either party may file objections to the Hearing Officer's findings and report within 10 days of the issuance of the report. The matter will then be reheard before a District Court Judge.

www.CollinsAttorneys.com

It is often said that divorce is hardest on the children, who are faced with wondering why their parents split up, possibly feeling guilty for their perceived role in that separation and often having to get used to a new place to live. In New Mexico, the term child custody is a complicated concept; it refers not only to which parent has physical possession of the child, but also which parent has the power to make to make decisions about the children's lives. Physical custody is generally described in terms of time-sharing and periods of responsibility, or visitation, all of which are most often delineated in a document called a Parenting Plan.

The law in New Mexico presumes that joint physical and legal custody is in a child's best interest because a child is better off having two parents activity involved in his or her life. However, the preference for joint custody does not mean that the baseline presumption for a Parenting Plan is that each parent has the child with them exactly fifty percent of the time.

As a preliminary matter, Parenting Plans need to be age-appropriate. For example, a fifteen-year-old may be able to handle being away from one parent for weeks at a time, whereas an infant may not. Thus, the periods of responsibility, or timesharing, will depend on the age and emotional stability of each child.

In evaluating a time-sharing schedule the Court may consider, among other things: the wishes of each parent; and the wishes of the child. In making its decision, the Court will also consider the child's relationship with each parent and any siblings; the child's ties to their school and their community; and, the mental and physical health of everyone involved in the child's life.

If the child is over the age of 14, the Court and the parents must consider his or her wishes. Although the Court does not have to agree with the child, the Court will usually defer to the child's wishes unless those wishes are manifestly harmful to the child. The plain fact is that few parents can enforce their will over a teenager, the Court most certainly cannot. The Court understands this and will not even try due to the many possible harms such forced decisions may raise.

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

Many of the courts throughout the State of New Mexico, including the Second Judicial District Court in Albuquerque and the Thirteenth Judicial District Court in Sandoval County, have Court Clinic Services.

Court Clinic's purpose is to help parties resolve issues of child custody, time-sharing and visitation. Court clinic does not get involved in other issues related to the divorce. In fact, Court Clinic does not even have authority to address child support.

Most cases involving child custody and time-sharing disputes will be referred to Court Clinic for a custody evaluation. The parties may choose to hire a private child custody expert (706 Expert) for purposes of a private child custody evaluation. However, these private child custody evaluation experts are extremely expensive. As a result, most cases end up in Court Clinic which provides its services on a sliding fee scale based upon the income of the parties.

Once the case is referred to Court Clinic, the case will be assigned to one of the many counselors and psychologists working in the Court Clinic. In a particularly complex case, there may be more than one Court Clinician. The Court clinician will conduct a thorough investigation of the parties, the children, third parties involved in the raising of the children including grandparents, fiancés, boyfriend/girlfriends, and even roommates living in the home.

The investigation can be quite invasive. The parties and the children, if they are old enough to participate, will undergo psychological evaluations. This process may include extensive psychological testing and interviews. In cases where third parties are involved in the upbringing of the children, those parties will be tested as well.

The investigation can take months, sometimes over a year. The time required to conduct the investigation is related to the complexity of the case as well as the huge caseload of the Court Clinicians. Once the Court Clinic has concluded its investigation, it will issue Child Custody Recommendations to the Judge. These recommendations are not binding on the judge but it is very rare that the judge does not follow the recommendations of Court Clinic.

The implications are clear. You should if at all possible work out custody and visitation with the other parent. If you cannot, then you are turning your life and the lives of your children over to a complete stranger. Though the Court Clinic process is long and relatively thorough, it remains replete with errors and mistakes due to incomplete information. Indeed, how could a complete stranger ever really know everything there is to know about you, the other parent, and your children necessary to make a perfect recommendation that is in the best interests of your children?


www.CollinsAttorneys.com

There are a variety of reasons why a couple might seek an annulment rather than a divorce, ranging from religious values to the fact that they just don't like the sound of the word divorce. The purpose of an annulment as opposed to a divorce is that an annulment renders a marriage void, as if it never happened, whereas a divorce dissolves the marriage. Unfortunately, those who seek an annulment in New Mexico are most likely going to be disappointed.

Unlike a divorce, which can be filed in New Mexico for any reason or no reason at all under the "no-fault" divorce doctrine, an annulment can be filed for only very limited reasons. In New Mexico, a marriage can only be annulled by the Court if the marriage violated one of the requirements for a valid marriage from the beginning of the marriage.

For instance if one of the spouses was not old enough to property consent to the marriage, then the marriage is invalid as a matter of law. A person must be 18 years old to consent to a marriage unless they are 16 or older and have parental consent. A person younger than 16 is only allowed to marry by an order of the New Mexico Children's Court. Likewise, a person may lack the mental capacity to consent. Other legal prohibitions making the marriage invalid from the inception are the presence of incest or bigamy.

The presence of fraud can also be a grounds for annulment. However, this typically relates back to one of the aforementioned criteria. While it is conceivable that another situation might lead the Court to grant an annulment on the basis of fraud, the grounds for an annulment are very narrow. Unfortunately, fraud does not include such grounds as "he/she said he/she was rich," or "he/she is a completley different person now that we are married." That's not fraud. It's just bad luck, bad taste or bad judgment.

www.CollinsAttorneys.com

When a child is born in New Mexico during a marriage, or within 300 days of the dissolution of a marriage, the law in New Mexico will presume that the child is the child of the parties to the marriage. When a child is born outside of a marriage, the law only presumes that the mother is the parent of the child. A father can establish his paternity by: signing an acknowledgment of paternity form, which is available from the New Mexico Department of Health and Vital Statistics; by genetic testing; or by a pattern of behavior in which the alleged father holds himself out to be the child's father by doing things like paying child support and exercising visitation.

Both the mother and father of a child have a right to bring an action asking the Court to determine paternity for a child and determine child support, which is called a parentage suit. Either party may dispute paternity by filing a Motion for a DNA test for proof of paternity.

Establishment of paternity can be a serious issue because the state of New Mexico provides that the parents of a child are equally responsible for supporting and caring for that child. Similarly, each parent has a right to raise their child as they see fit, with certain parameters set by the state in order to protect the welfare of the child.

Thus, a parentage action does more than create a child support obligation it can lead to the entry of a parenting plan establishing custody and visitation. Further, the state itself can bring a parentage suit to establish paternity of a child and seek reimbursement of state assistance provided to that child. This is not uncommon where the mother has been receiving assistance from the State. Child Support Enforcement Division (CSED) will initiate an action in these cases to provide support for the child and more importantly for the State to reduce the financial burden of raising the child on the State on New Mexico. IN this case. CSED will go after both future support as well as back child support arrearages.

www.CollinsAttorneys.com