Albuquerque Divorce Lawyer Blog

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

With the enormous technological advances and explosion of the internet during the past few decades, New Mexicans are able to exchange more information and communicate more effectively than ever before. Access to the internet can be an amazing tool, for instance, it can help you research a variety of legal topics, including family law blogs like this one. However, the posting of personal information on blogs and social networking sites like Facebook and MySpace can sometimes pose a problem in family law cases. This is particularly so in contested divorce and child custody cases.

Imagine two parents engaged in a fierce child custody battle wherein each parent alleges that the other is unfit to raise their children. If one parent, or their friends, posts pictures of a weekend party with that parent consuming alcohol, or engaging in other potentially dangerous or unsavory behavior, that post could easily find its way into the hands of the other parent. In fact, one is safe to assume that it will.

In turn, that post can be presented a custody evaluator or Guardian Ad Litem in charge of making a recommendation to the court with respect to custody. Likewise, the evidence will eventually be presented to the judge if the case makes its way to trial. This is also true of negative comments made about the other spouse on a blog or during a Facebook chat. The opposing party may even be able to find out the other party is misusing community funds or hiding assets based on what they say in internet postings. Just as the internet can be a great way to research legal topics or sports trivia, it can be an excellent way for opposing parties in court cases to investigate each other's habits, friends, associates and activities.

Any party to a family law proceeding, whether it is a divorce, a paternity action or a renewed dispute over child custody and/or child support, should consult an experienced divorce and family law attorney immediately. As part of that consult, parties should advise their attorney of any information about them that may be available on the internet. Some attorneys advise parties to completely discontinue use of blogs and social networking sites until a divorce action is completed, or at the very least make sure that privacy settings are set as high as possible. Remember that everything a party posts on the internet has the potential to be reviewed by the public and, in turn, is most likely admissible in family court proceedings, which can be very damaging. The best policy is to resist the urge to share on social networking sites. As good as it might feel to share your innermost thoughts, the internet is not an intimate conversation. Instead, it is a public forum and should be treated as such.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

One of the questions most frequently asked by divorce and family law clients is "How long is this going to take?" There is no easy answer to that question. The first question is where in New Mexico are you filing your divorce, paternity or family law action? The case load for the courts that cover Albuquerque, Rio Rancho and Santa Fe are pretty heavy, so it generally takes several months to get a hearing date in those areas. This wait applies to each and every hearing.

Hearing dates are important because that is the time when parties go before the judge on specific issues related to their divorce when they cannot resolve the issues themselves. Thus the fastest way to conclude the process is through early settlement and/or mediation. If the parties can agree on a the division of property and debt, child support and child custody, and other issues related to the divorce, then they can incorporate those decisions into a marital settlement agreement which upon filing with the Final Decree of Dissolution of Marriage will conclude the process. This can be completed in a matter of weeks when the parties are so motivated.

Often this is not possible for any number of reasons, some legitimate, some not. In many cases, each every step of the divorce is a struggle requiring the intervention of the Court. Each time the court's assistance is enlisted by way of a Motion, the process if further delayed due to long wait necessary to get a hearing on a Motion. Finally, after what could be months extending into years, the parties must at some point go to trial. A trial setting takes even longer to get than a Motion hearing.

In sum, the most efficient way to complete a divorce or family law matter in New Mexico is to understand your rights and responsibilities. Then hope that the other party has done the same. If both parties can behave rationally and reasonably, the process can move pretty quickly. In the absence of reason and rationality, the process can take a very long time. In the case of a high conflict divorce or family law proceeding, the duration of the process is probably the least of your problems. Keep this mind before declaring war on your ex.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

Jurisdiction is the term used to refer to a court's authority to decide certain cases. In order to hear a case, the court must have jurisdiction of the subject matter of the case and over the parties involved in a case. In a divorce or family law case, issues of jurisdiction can get somewhat complicated when the parties are living in different states.

In New Mexico, the district courts (as opposed to the magistrate or metropolitan courts) have subject-matter jurisdiction over family law cases. The baseline rule is that any person can file a petition for dissolution of marriage with the district court of the New Mexico County in which they have resided for at least six months. The New Mexico resident can file the petition whether or not their spouse currently lives in New Mexico.

However, in cases where the spouse lives outside of the state, the New Mexico courts may not have personal jurisdiction over that spouse and may not be able to issue a complete divorce ruling. The New Mexico courts can exercise personal jurisdiction over the out-of-state spouse under the following circumstances: 1) the out-of-state spouse agrees to submit to the jurisdiction of the New Mexico courts; 2) the out-of-state spouse actually participates in the divorce litigation by filing pleadings and appearing at hearings; or 3) the out-of state spouse lived in a marital relationship within New Mexico at any point in the past.

If none of the preceding conditions exist, the New Mexico district court may have jurisdiction to dissolve the marriage, but may not be authorize to distribute any of the parties' property or debts. The general rule is that the courts here have no jurisdiction over property located in another state without the consent of both parties. The issue of jurisdiction can be further complicated if there are child custody or child support issues between states.

Improper jurisdiction can result in an entire divorce decree being set aside, including the orders from the court addressing the division of property and debt, alimony, child custody and child support. Anyone faced with a divorce action in which one spouse lives outside of the state of New Mexico should consult with an experienced divorce and family law attorney prior to initiating court action in order to ensure that jurisdiction is proper.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

During the past few decades, there have been numerous advances in medical research regarding fertility. These advances are often a blessing for people who have been unable to have children, but they can also create complications for the family law courts. For example, can sperm donors be required to pay child support for the children created by their donation? The New Mexico courts have examined this very issue and the answer they have arrived at is perhaps yes, perhaps no, but always maybe.

Generally, the biological parents of a child are responsible for supporting that child. This obligation extends to biological fathers regardless of whether or not the father was ever married to the child's mother and regardless of whether or not he intended to conceive a child with the mother. The New Mexico court of appeals has ruled that when a woman is artificially inseminated by a licensed physician with the sperm of an anonymous donor, that donor will not be obligated to pay child support even though he is the biological father of the woman's child because such a case does not result in a true parent-child relationship.

However, the issue of sperm donor responsibility becomes substantially more complicated when parties privately conduct artificial insemination without the assistance of a doctor, or through a sexual encounter, with the understanding that the father is acting only as a sperm donor. Even when the parties agree in writing that the father is acting as a sperm donor and will not be obligated to pay child support, the court may find that the father/sperm donor is required to pay support if he engages in conduct that creates a parent-child relationship. A sperm donor may become a father when he acts like a father. This conduct can include things like acknowledging that he is the child's father. It can also include regular contact with the child. A regular visitation schedule will almost certainly result in a finding of paternity with consequent child support obligations. Any form of child custody would clearly indicate paternity and child support. Other acts by the sperm donor that create a father-child relationship may also result in finding by the court. The court will often look to the expectations of the child. As with all matters involving children in family court, it is the best interests of the child that are conclusive.

Thus, very simple acts, when taken together over time, can create a parent-child relationship in the eyes of the court. This is the case even when this may not have been the intention of the mother or the father. As such, anyone considering sperm donation, whether anonymous or not, should consult an attorney in order to fully understand the rights and responsibilities that come with such a donation. Then all behavior toward the child in the future should be consistent with the sperm donor's intentions.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

The New Mexico Child Support Guidelines provide a specific set of rules governing the imposition of child support. The guidelines provide two different worksheets for purposes of calculating child support. Worksheet A is used when the child (or children) for whom support is being paid resides with one parent more than 70% of the time. Worksheet B is used when the child's time with the parents is more evenly divided.

Both worksheets incorporate the following factors: the gross income of both parents, the number of children to the parties, payments made for work related day care, and payments for health insurance costs for the child. In special circumstances, other amounts can be included in the child support worksheet, like regular recurring school expense or medical expenses for the child. However, no deductions are for any items other than those explicitly allowed for in the Child Support Guidelines.

While the guidelines are pretty straightforward, complications can arise when a parent has child support obligations for children with different partners. For example, a father may have children with three different women. The father is most definitely responsible for child support for each child. The child support worksheets will be applied to each child. However, if each child support calculation were determined separately under the guidelines, the total support owed by this father would often exceed 50% of his total monthly income, which is prohibited by the guidelines. To avoid this, the law dictates that each successive worksheet for later born children must reflect a reduction in the father's income for prior child support obligations.

Essentially, the New Mexico Court of Appeals has ruled that the father's income should be reduced by the amount of child support he pays for his children with different mothers. This reduction is applied to the each child's support based on birth order, which will often result in the third child getting less support than the first and second child. This result may seem unfair for later born children, but the position of the New Mexico courts is that the resulting unfairness will be corrected as the older children turn 18 and the father quits paying support for each of them. As that happens, the mother can petition the court to reevaluate child support to reflect the father's increased income as his prior support obligations go down.

The issue of calculation of child support for multiple children with different parents can get pretty complicated. More importantly, it can also get pretty contentious particularly for the mothers of later born children. Often times, they simply will not accept that the law dictates a reduction of the father's income for prior child support obligations. These cases, as with many divorce and family law matters, can be driven more by emotion that law. Parties faced with this situation would be well advised to seek the attention of an experienced New Mexico divorce and family law attorney. The law is straightforward and both parties should proceed with this in mind. Moving forward on emotional grounds can be extremely stressful and costly to all involved.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

For the most part, family law matters, including divorce, child custody and time-sharing and child support are governed by the States, which means that most of the case law relevant to New Mexico family law issues comes from the New Mexico courts. However, the United States Supreme Court recently issued a family law decision regarding parents' rights and duties when taking children to foreign countries.

In the recent United States Supreme Court case of Abbot v. Abbot, No. 08-645, the Supreme Court was charged with interpreting the Hague Convention on the Civil Aspects of International Child Abduction (Convention) and International Child Abduction Remedies Act (ICARA), which govern, among other things, parents' rights and remedies when their children are taken to another country without their permission. In Abbot, the married parties moved to Chile with their son and then separated. The Chilean court granted the mother primary custody and granted the father regular visitation. Subsequently, the mother took the child to Texas without the father's permission. The father then filed a suit in the federal court in Texas asking the court to order his child's return.

His request was initially denied by the federal court, but the Supreme Court reversed that decision and found that Chilean law gave the father custody rights, which in turn, gave the father the right to refuse consent to the mother's taking of the child out of the country under the Hague Convention. Based on the Court's ruling in Abbot, it is very clear that the United States takes the custody decisions of countries that adhere to the Hague Convention very seriously and, in turn, expects those participating countries to give the same respect to American child custody and time-sharing orders.

Child custody cases involving international travel and/or international relocation of one of the parents with the child are complex and rife with hazards. The Hague Convention, and the federal laws that enforce it, are very complicated and can involve not only the Courts of the respective jurisdictions but also the United States Department of State's Office of Children's Issues. Any person facing a custody dispute that involves international travel or international relocation to or from New Mexico should contact a New Mexico divorce and family law attorney.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

Often in a divorce or parentage cases, parents split up when a child is very young. In New Mexico, the courts keep jurisdiction over child support until a child reaches the age of 18, or past the age of 18 if the child is still in high school. However, New Mexico lawmakers understood that the circumstances on which an initial child support award is based can change substantially between the time child support is first calculated and the date the child turns 18.

In order to ensure that child support awards are fair and in keeping with the child support guidelines, the child support statue allows either parent to motion the court to modify child support. In order to ask for such a change, the parent seeking a change must file a motion informing that court that there has been a substantial change in circumstances that will cause child support to increase or decrease by at least 20%. A substantial change in circumstances can include things like one parent losing their job or getting a new job that pays more. A motion to modify child support can also be based on changes to the parents' time-sharing and visitation schedule that result in the child spending an increased amount of time with a particular parent or, in the case of child support awards for multiple children, one child turning 18 or graduating from high school.

If a parent believes that a change in child support is warranted, then it is very important to file the motion to modify as soon as possible because the court will only retroactively award support back to the date of the motion to modify. Unless jurisdiction has been changed, the motion to modify should be filed with the district court that issued the original child support award. If the parties cannot agree to a modification, the court will hold a hearing on the issue and will most likely order the parties to exchange updated income information. In some counties, including Bernalillo, Sandoval and Valencia, the court may refer child support modifications to a hearing officer who will have the same power as a judge to enforce a new child support award. No matter where you are, any parent thinking about filing a motion to modify child support should speak to a New Mexico divorce and family law attorney to make sure that they are in compliance with the child support statute.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

Sadly, there are often times when neither of a child's parents is able to care for the child. In such cases, a third-party, who may or may not be a family member, may petition the Court for child custody of the Child. In New Mexico, there are five different ways in which a third-party child custody may be awarded.

The first three ways by which a third-party may gain child custody over a child are pretty straightforward. First, the court may grant child custody to a third-party as part of a divorce proceeding if the court determines that neither parent is capable of caring for the child and the third-party properly intervenes in that divorce proceeding. Second, under the probate code, the court may grant custody to a third-party when the child's parent or guardian dies. Third, the court may grant custody to a third-party as the result of finding of abuse and neglect by the child's parents or current guardian. Abuse and neglect proceedings are generally initiated by the Department of Children Youth and Families, but they can be initiated by the third-party seeking custody.

Fourth, the third-party seeking custody can file a petition under the Kinship Guardianship Act, which typically applies when a child has lived with the third-party for more than ninety (90) days prior to the filing of a petition. However, custody can also be granted under the Kinship Guardianship Act even if the child hasn't lived with the third-party for ninety (90) days, if the child's parents are unwilling or unable to care for the child and there are extraordinary circumstances. In fact, a third-party can be granted custody of a child is when extraordinary circumstances exist, even without a Kinship Guardianship petition, and there is no other remedy available under the law, which is the fifth way for a third-party to obtain custody.

In all of the situations referenced above, the court will only grant custody to a third-party if that custody award is in the child's best interest. The person seeking custody will often have the burden of proving to the court that they are the best person to care for a child, which can be a very complicated process. Thus, it is very important for a person seeking custody to consult an attorney before undertaking such an action.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

A parent's decision to relocate can obviously have a significant and lasting impact on parents' custody and time-sharing agreement. Even if the parents initially agree on a parenting plan that accommodates the parent's decision to relocate, problems may arise if the parties disagree later.

The first question that arises is what Court will handle the case? This can be a complicated question of jurisdiction and venue. If the parent relocates within New Mexico, this becomes a question of venue, or which court of general jurisdiction within New Mexico is the proper location for the filing of a subsequent motion and response regarding child custody. The answer can be found in the case of Dugie v. Cameron.

In Dugie, the parties were initially divorced in the Second Judicial District Court in Albuquerque. Later, one parent and the children moved to Grant County, which is governed by the Sixth Judicial District Court. Several years later, the parties had a disagreement about custody and time-sharing. The parent living in Grant County then filed a motion to modify time-sharing in Grant County. The other parent objected and argued that jurisdiction and venue over child custody issues remained with the Second Judicial District Court in Albuquerque. The New Mexico Supreme Court ruled that the Court that issues the initial child custody decision maintains jurisdiction over child custody matters and remains the proper venue for hearing all subsequent custody modifications.

On the other hand, parents can agree to a change of venue. In addition, if one parent does not object to the other parent filing in a different count, that parent might inadvertently waive his or her objection to the change of venue. Failure to oppose the change of venue in a written Response to a Motion filed in the new county can result in a waiver of the objection and a resultant change of venue to the new county.

Thus it is very important for both parents to consult an New Mexico divorce attorney before they relocate. It is equally important to consult with an attorney before filing any response to a motion or petition filed in a county other than the county of original jurisdiction to avoid possible waiver of the objections.

www.CollinsAttorneys.com

When the parents cannot agree on a child custody time-sharing arrangement between themselves, there are court resources available to help assist them in establishing a parenting plan. For contested child custody cases in Albuquerque, the parties will generally be referred to Second Judicial District Court Family Court Clinic. The courts in Santa Fe, Rio Rancho, and many other judicial districts across New Mexico have similar court-sponsored family court programs that are the first step in determination of a parenting plan.

Upon referral to Court Clinic or other family court services, the parties still have control over their case. The first step in the process is non-binding mediation. Child custody and time-sharing mediation brings the parties together with a professional mediator with the goal of reaching an agreement acceptable to both parties. It is a non-binding process meaning that the parties do not have to reach an agreement. They can choose to move forward with the Court Clinic process.

When mediation doesn't lead to an agreement, the Court may then order a full child custody evaluation through Court Clinic. A custody evaluation through Court Clinic involves trained mental health and custody professionals who meet with the parents, the child and any other important people in the child's life including teachers, doctors, counselors, coaches and others to assist with the custody evaluation.

The information gathered from interviews, psychological testing and any other available sources will be used to produce a list of Court Clinic recommendations for custody. The objective is to provide for the best interests of the child/children. The great majority of the time, the Court will adopt the recommendations of Court Clinic. However, either party may dispute the recommendations, which then requires that party to hire a private custody expert, referred to as a 706 Expert. This then raises a whole new set of issues.

www.CollinsAttorneys.com

Relocation of one of the parents often has significant consequences for child custody and timesharing. In fact, it may result in a loss of time-sharing so it is not always an option. This is particularly so where there is an existing Parenting Plan that prohibits such a move as most parenting plans do.

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 for a modification of their parenting plan and timesharing agreement as soon as they know they will be moving.

If the 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 no matter what the reason for the move.

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. As with all cases of contested custody and timesharing, if the change in the parenting plan 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 a New Mexico divorce and family law attorney if they are faced with such a potential change to custody and timesharing.

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

Unlike some other states, New Mexico does not recognize common law marriage. Thus, there is no need for a divorce action when the parties separate. However, there may still remain issues related to a division of property and debt of the parties.

This division of property and debt will not take place in the New Mexico family courts as these courts will lack jurisdiction due to the lack of a legal marriage. Instead, the issues will be addressed in civil court.

The idea behind the doctrine of common law marriage is that if a man and woman have lived together and held themselves out to be man and wife for a certain period of time (usually several years) the courts will view the parties as married and grant them the same benefits and responsibilities as couples who get married in a formal ceremony.

The issue of common law marriage often comes up when parties have cohabitated (lived together) for a long period of time and then they break up. Often, the parties have purchased property together or co-signed for loans for each other and they must determine how to divide those assets and debts. In New Mexico, the rules of family law, including the principal of community property, will not apply unless with parties were formally married. Thus, the rule that both parties have an equal interest and responsibility for all property or debts acquired during the marriage does not apply to couples that cohabitate without being married. Likewise, there can be no award of alimony or spousal support in New Mexico in co-habitation cases.

On the other hand, where children are born to the relationship, each parent is responsible for the support of the children, and child support will remain an issue even in the absence of a marriage. In addition, the parties will still need to create a parenting plan to for child custody and time-sharing of the children.

Generally, any debt or property held in a party's sole name will remain their debt or property. However, problems may arise when it comes time for the parties to divide assets or debts held in both of their names, or when an asset is held in only one party's name but the other party has paid a substantial portion of the cost of that asset. In these situations, the parties may still turn to the courts for a ruling as to who gets what asset, but that suit would need to be filed in the general civil court, not the family law court.

These situations can be very difficult, not just emotionally, but legally because different theories of law may apply to various debts and assets. Given the complications presented by this type of break-up, it is a very good idea for any party in such a situation to consult an attorney about his or her rights and responsibilities and the options for protecting those rights.

www.CollinsAttorneys.com