Albuquerque Divorce Lawyer Blog

Many divorced parents have questions about traveling out of the state with their children either on a short trip or a permanent relocation. Depending on the child custody arrangement, parenting plan in place, and length/ nature of the trip, the parent may need to get permission either from the other parent or the court before taking a child out of New Mexico.

There are many reasons for taking a child out of state including vacations, holidays, and visits to extended family. Other reasons may be different in nature, like a permanent move resulting from a job offer or wanting to be closer to family in another state. In other situations, parents take their children out of state to deprive the other parent of contact with a child.

In New Mexico, parenting plans will usually discuss a vacation and holiday schedule that specifies which parent the children will be with during these times. If the parenting plan specifies that the children will travel out of state for vacation or holiday, then the parent does not need further permission unless the trip will be longer that specified in the parenting plan. Although most plans will require the travelling parent to provide an itinerary of travel dates, times and locations to the other parent and provide a way for the other parent to contact the children while they are travelling.

If a parent wants to take a child out of state because of a change in residence, the parent cannot make this decision unilaterally unless he or she has sole legal custody. Even then, the parent who wishes to relocate may need the court's permission if the proposes relocation will interfere with, or eliminate, the other parent's visitation with the child. Given New Mexico's preference for joint legal custody, most New Mexico parenting plans clearly state that the children will reside in New Mexico and cannot be moved out of state without approval from the other parent or a court order.

A parenting plan should include provisions to be followed when one parent wants to relocate. A typical example of such a provision is when parents live less than 60 miles apart, notice of any planned relocation out of state or more than 100 miles from the other parent must be sent to the other parent at least 60 days in advance of moving. If parents cannot agree on the move, they must submit to mediation and draft a new parenting plan that must be approved by the court. If the parents cannot agree in mediation, then the parent wishing to relocate will need to file a motion with the court asking for permission to move out-of-state with the child.

Taking a child out of state without informing the other parent or in violation of a court order or temporary domestic order is considered custodial interference and is considered a serious offense in New Mexico. Parents that are found guilty of custodial interference face possible findings of contempt, fines, jail time, and awards of attorney fees and costs. Beyond family court sanctions, custodial interference is a felony that falls under New Mexico criminal kidnapping statutes. Parents found guilty of custodial interference face serious criminal penalties including up to 18 months in prison for each count.

For the above reasons, it is very important to be familiar with your parenting plan and New Mexico laws when contemplating taking your child out of state. It is always advisable to keep the other parent informed of any out of state trip. If in doubt, contact an experienced family law attorney in advance of any relocation of the child.

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It is common knowledge that divorce wreaks havoc on emotions and bank accounts. New research shows that divorce also has a marked, long- lasting impact on health.

According to a study published in the Journal of Health and Social Behavior, "Marital Biography and Health Midlife," widowed and divorced individuals suffer from 20% more chronic illnesses, like cancer, heart disease, and diabetes than those who have not experienced divorce or the loss of a partner. Divorced and widowed individuals were also 23% more likely to have mobility issues, like trouble walking or difficulty climbing stairs, than married individuals.

The study also showed that the physical effects of divorce may linger over time and may be present even if the person remarries. According to the findings, widowed and divorced individuals who later remarried were still 12% more likely to suffer from chronic illnesses and 19 % more likely to have mobility issues than married people who had not been married or widowed before.

Another study conducted by researchers at Iowa State University's Institute for Social and Behavioral Research found that while women showed no decline to their physical health immediately after divorce, a decade later divorced women were 37% more likely to develop physical illnesses than married women. Iowa State researchers attribute this higher incidence in physical illness to the lingering emotional effects of divorce.

Research shows that there are several reasons for declining health after divorce. The Iowa State study cites social isolation and poor job opportunities as a possible cause for women reporting illness a decade after their divorce. Other studies suggest that, apart from the emotional toll of the actual break-up, individuals face a series of new emotional challenges after divorce. Yet other studies suggest that after divorce, many individuals stop taking care of themselves, eating right, and exercising regularly.

Many of the emotional stressors divorced individuals have to cope with have to do with children. These include the stress and time constraints of being a single parent, the feelings of guilt at not being able to devote time to a child in their formative years, and the worry of what effect the divorce will have on the child. Other emotional problems that can arise from divorce have to do with creating a new social life, making new friends, and dating again. Many recent divorced individuals feel overwhelmed and do not carry on a healthy social life. All of these emotional problems could lead to health problems in the future.

The increased work-load, both at home and professionally, and the decrease in income, may also lead individuals to stop taking proper care of themselves after divorce. Because they are either over worked, depressed, or insolvent, many individuals stop eating a balanced meal or exercising regularly. When a person suddenly becomes a single parent with twice the responsibilities, there is often little time to go to the gym or cook a healthy meal every day. This all takes a toll on health in the long run.

Although research is on-going, it is clear that the emotional and physical changes that come with divorce often work together over time to erode an individual's overall physical health. Anyone faced with a divorce or significant break up should be aware of these risks and be prepared to prioritize their health and well-being.

Collins & Collins, P.C.
Albuquerque Attorneys

Child custody disputes in New Mexico can involve many special circumstances that may not commonly arise in other states. For instance, given the large Native American population in New Mexico, a number of the children caught in custody disputes may be Native American. New Mexico is home to 19 Pueblos, two Apache tribes, and a large portion of the Navajo Nation. In addition, many Native Americans live off reservation throughout the state, concentrating in Albuquerque, Farmington, and Gallup. According to the US Census Bureau, in 2010 an estimated 9.4% of New Mexico's population was American Indian. Custody disputes involving Native American children have several important implications of which all parents need to be aware.

Under New Mexico law, child custody proceedings involving Indian children are governed by the federal Indian Children Welfare Act (ICWA). Congress enacted ICWA in 1978 as a response to the overwhelming placement of Indian children in white foster homes and the perceived destruction of Indian culture. ICWA gives tribal courts exclusive jurisdiction over some cases and places procedural safeguards to ensure that if custody matters are litigated in state courts, the tribe has notice and an opportunity to participate in the determination.

Under ICWA, tribes have exclusive jurisdiction to decide custody matters concerning Indian children that reside on the reservation. If children do not reside on the reservation, the matter should be transferred to tribal court unless the tribal court declines jurisdiction or the parent objects to the transfer. When custody proceedings are held in state courts, both ICWA and New Mexico law mandate that the child's custodian and tribe be given notice of the proceedings. In state courts, ICWA places higher and different standards of evidence on proceedings involving Indian children. Furthermore, the child's custodian and the tribe may intervene at any point in the proceedings.

ICWA also gives tribal court decisions full faith and credit, meaning that any decision by a tribal court will carry the same weight as a decision from any other state court. Other requirements include preferential placement with extended family, other tribe members, and other Indian families when deciding adoption cases. ICWA also mandates safeguards for when an Indian parent wishes to relinquish parental rights, including giving the custodian and tribe notice and a mandatory court appearance where a judge explains the consequences of relinquishing rights as a parent.

In order for ICWA to apply the following circumstances must exist: (1) the proceedings must be "child custody proceedings," which include adoption, termination of parental rights (TPR), and foster care; (2) the child must be a member of a federally recognized tribe or (3) the child must be eligible to be a member of the tribe and have a biological parent who is a tribe member.

If a child custody case is transferred to a tribal court, there are several important facts that parents must be aware of. Even though it is difficult to generalize, there are a number of significant differences between state and tribal courts. For one thing, to argue a case in many tribal courts, including Navajo courts, attorneys must be specifically admitted to practice before the tribal court. Additionally, tribal court judges may or may not be attorneys themselves. Tribal court judges are often members of the tribe who are sometimes elected and at other times appointed by tribal councils. Most tribal courts follow tribal codes, which may or may not be written. Moreover, tribal courts are not bound by the decisions of US state or federal courts and follow their own precedent.

Child custody issues are complex, emotional and often highly contentious. New Mexico child custody laws are even more complex if there is a chance that the proceedings involve a Native American child. When involved in any type of child custody matter in New Mexico, it is important to consult an experienced family law attorney to help guide you through the process.

Collins & Collins, P.C.
Albuquerque Attorneys

It is no secret that divorce is a difficult time, and it is widely known that child custody battles can be life-altering experiences--not always in a good way. More and more, courts have intruded into otherwise personal and family affairs in order to make child custody decisions. For example, a recent Washington Times article discussed the growing trend of family law courts considering smoking a factor in child custody cases.

The investigation cites a survey by the group Action on Smoking and Health, dealing with custody issues and tobacco use. The survey found no court has ruled that a parent's use of tobacco should not be taken into account when deciding child custody. It also found that courts in 18 states have already ruled that tobacco use of a parent or family member should be considered as a factor in child custody cases. Other courts have prohibited smoking in a child's presence or even 24 to 48 hours before the child arrives. Courts have also modified custody arrangements because a parent exposes the child to tobacco smoke. They have taken into account not only parental smoking but smoking among other family members and friends that may expose the child to secondhand smoke.

The Times article also discusses how many who oppose this trend warn that considering a parent's smoking habits will pave the way for further court intrusion into private matters. Some fear that if the court is regulating a parent's smoking habits by citing the dangers to the child's health, it may go on to regulate other private matters such as what a parent feeds their child and other private parenting decisions. Other critics question whether the courts should be allowed to limit a person's freedom of choice in order to see their children.

When determining child custody, a court looks at "the best interests of the child." This standard includes the child's medical health and well being. The risks of tobacco use and secondhand smoke, especially to a child's health, are widely documented. In the wake of strong anti-smoking campaigns, it is only natural that courts are now considering a child's exposure to secondhand smoke as part of its "best interests" considerations. This is especially true if the child already has respiratory problems, but has been held to be relevant in a wide range of cases, even when the child shows no sign of reaction to exposure.

It is already evident that parents have begun to change their habits in response to this trend. Many parents have quit smoking when faced with a possible child custody dispute. It is not clear that quitting may help, however, since the opposing parent may argue that the other will just resume smoking after the child custody matter is settled. If a parent is unable to quit, he or she may be well served by only smoking outdoors and never around their children or in a vehicle. Parents may also help their custody case by not allowing others to smoke around their children.

In any event, this trend reflects courts' increasing control over the personal decisions of parents in child custody disputes. Today's parents are beginning to realize that they must give up control of many previously private matters when they become involved in a dispute over child custody. These are the kinds of issues that should be addressed with an experienced divorce attorney so that you know what to expect in a divorce and a contested child custody case.

Collins & Collins, P.C.
Albuquerque Attorneys

The ending of relationships, whether through divorce or other means of separation should present an opportunity to move on for both the couples and the children involved; however, when domestic violence is present in these relationships, moving on may not be the goal of the abuser.

For those that perpetrate domestic violence, control is often the main goal of their behavior, according to the National Coalition against Domestic Violence. When divorce or separation proceedings begin, an abuser may attempt to maintain control by manipulating the process.

Manipulation can come in the form of improperly painting a portrait of the victim as unstable and less competent as a parent. Because of the abuse suffered, the victim may be less able to overcome these allegations, whether through an inability to speak up due to fear or because of some mental impairment suffered through trauma.

The law and the courts of New Mexico seek by mandate to achieve the best interests of the child. Unfortunately, on occasion, New Mexico's "best interest of the child" standard used in child custody issues may actually help an abusive parent exert control over another parent.

This standard implies that it is "best" that the child to be raised by both parents, unless there is evidence that such a relationship would be detrimental to the child. Because of the often secretive nature of domestic violence, this evidence may not be easily obtained. Even the child involved may not fully observe or understand the relational dynamics between their parents, thus, they may not be able to alert authorities to the dangers facing the victim parent.

If an abusive parent can successfully convince the court that the child belongs with them, the victim parent loses control, while the abuser gains more control. The abuser now has the legal right to continue controlling the other parent through visitation schedules, monetary support and even decisions regarding the actual care of the child. More alarmingly, the victim parent may be subject to further violence because of the continued contact.

Domestic violence matters should be openly discussed with an attorney, once the decision to separate has been made. An experienced divorce attorney can become the voice of the victim throughout the court proceedings and may eliminate the potential for an abuser to continue their reign of control.

Collins & Collins, P.C.
Albuquerque Attorneys

Most parents want to support their children and provide as much as possible for them. In fact, New Mexico law imposes a duty on both parents to do just that. However, the negative feelings and financial damage caused by a divorce or child custody battle make the issue of child support pretty tricky. Here are some tips to help:

• Pay on Time. This can be hard to do when money is tight, but the parent receiving child support is often counting on the support payment to pay rent or other expenses for the children. Paying on time not only benefits the children by making sure that they have food and a roof over their heads, but it helps prevent additional conflict between parents. Moreover, there are few things that escalate conflict in child custody cases more than financial stress. And this leads to court hearings. And hearings lead to all manner of burdens and expenses. The burdens of attorney fees, court costs, potential sanctions and even jail time for failure to pay on time will far outweigh the temporary relief of putting off a child support payment.

• Pay by Check. It is essential that child support payments are made using a traceable method of payment so that the paying party always gets credit for the payments made. It happens so frequently that it is almost to be expected that any undocumented payments will be disputed by the receiving parent. Parents often believe that a money order is traceable because it is not cash, but that trace is often difficult, if not, impossible, depending on where the money order is purchased. If a parent must pay in cash or with a money order, he or she should make sure they get a receipt signed by both parties that acknowledges the amount of the payment received and the date of receipt.

• Consider Wage Withholding. A wage withholding order instructs a parent's employer to deduct the child support payment from the parent's paycheck and send it directly to the parent receiving support, or sometimes to a state agency like the child support enforcement division. Parents often resist the entry of a wage withholding order, but it can be very helpful to both parents because it ensures that the support payment is made on time. Just as important, it creates an indisputable record of all child support payments. The orders can also be structured to spread the payment over the month by taking part from each paycheck, which can help the paying parent budget appropriately.

• Exchange Income Information. The child support statute allows either parent to request updated income information from the other one time each year in order to determine whether or not child support should be modified. Parents can exercise that right each year by making the information request in writing after April so that the other parent should have current tax information available.

• File for Modification. Child support can be modified any time there has been a material and substantial change in circumstances, which can include a major change in timesharing, the emancipation of a child, and/or a large increase or decrease in income for either parent. However, that change is only effective once a new court order is entered, which means that a parent seeking a modification needs to file a motion asking the Court to modify child support as soon as a change has taken place. Unilateral changes to child support without a court order can lead to very serious consequences no matter the basis for the change.

Child support and child custody issues can be quite stressful for all concerned. There is enormous potential for high levels of conflict. With rising levels of conflict comes attorney fees which may in fact be dwarfed by the costs associated with the appointment counselors, court appointed experts, guardian ad litems, and other professionals associated with the conflict. Avoid this conflict if possible by paying in full on time and in verifiable manner. If you are financially unable to do so, then go to court immediately to address the hardship with the court.

Collins & Collins, P.C.
Albuquerque Attorneys

Child custody and time-sharing disputes can be extremely contentious. One common flashpoint is the child custody exchange. There are a number of common sense things the parents can do to avoid escalating conflict that often builds over time with custody exchanges. There are also a number of things that parents should not do during the exchange. Here are the top ten that we came up with:

1. Do NOT arrive late to pick up your children. This may seem obvious, but what can seem like a few harmless minutes to one parent can really upset the other parent and, in turn, the children. Always leave extra time to ensure that you will get to the pick location on time.

2. Do NOT make last minute changes. This goes along with being on-time and shows a general respect for the other parent and allows everyone to know what to expect. While it may seem like a simple change to have the other parent meet you at the store, rather than their house as regularly scheduled, such a change may really disrupt the other parent's plans, which in turn causes the children stress.

3. Do NOT discuss other issues at exchanges. Exchanging your children can be a difficult, tension filled process for both parents and children. Do not add to that tension by bringing up other issues like child support or a request to change timesharing at the exchange, save those discussions for a telephone call or e-mail exchange with the other parent.

4. Do NOT arrive unprepared. Bring children to an exchange with all the items they will need for their time with the other parent, this includes homework, sports equipment, clothes etc. This preparation helps limit stress on children because they have what they need and limits hysterical phone calls between parents looking for a soccer uniform twenty minutes before the game is scheduled to start.

5. Do NOT bring dates or random people to exchanges. As noted above, exchanges can be really stressful for parents and children alike, especially after a recent divorce or separation. Bringing a date may upset the other parent unnecessarily and bringing any other person may distract you from focusing on your children who need your full attention.

6. Do NOT go alone where domestic violence is an issue. (the exception to Number 5). If you and your ex have a history of domestic violence or accusations of domestic violence, it may be a good idea to bring a third party with you to exchanges to act as witness, which often helps everyone behave. Think carefully about the person you bring; it needs to be someone your children are comfortable with and who will not upset your ex. And remember, this person's job is just to observe not to create or participate in drama between parents.

7. Do NOT discuss adult issues with the children. When your son or daughter gets in the car at an exchange without a coat in the middle of winter, this may upset you. However, do not use that time to make comments about your ex (i.e. "I guess your father is too busy to bring your coat" or "Doesn't your mother know how to dress you properly?") to your children. Such concerns need to be addressed between parents outside the earshot of children. Involving children in adult issues makes them feel torn between parents and, in the long run, can cause severe emotional harm.

8. Do NOT make your children the intermediary. Parents get separated for a reason and they often want as little to do with each as possible, which is why it can be tempting to have your children give the other parent messages for you. Never do this. A child's job is to be a child, not to run interference between feuding parents. Not only is such message sending stressful for the children, it is a really ineffective way to communicate information and will often lead to misunderstandings that cause bigger problems.

9. Do NOT be stubborn. While both parents' time with their children is important and it is essential that each parent respect that, life still happens. Be flexible about rescheduling visits to accommodate family vacations and work conflicts with the other parent. Or if exchange times need to be rearranged to accommodate your children's music lessons, work with the other parent.

10. Do NOT bring law enforcement to exchanges. It is not the job of the police or sheriff's department to enforce family law orders. Aside from escalating conflict between parents, the presence of law enforcement can really upset children who often associate law enforcement with someone being in trouble or some sort of emergency. Surrounding exchanges with such negative connotations can cause children a lot of anxiety and even fear about exchanges.

Collins & Collins, P.C.
Albuquerque Attorneys

In the spirit of starting the New Year off on the right foot, here are ten suggestions for making custody exchanges go as smoothly as possible:

1. Follow your Parenting Plan. This may seem obvious, but following the terms of your Parenting Plan as closely as possible helps avoid last minute changes that cause stress for everyone, including children.

2. Keep it Simple. Between the work schedules of two parents and the increasingly demanding school and activity schedules for children, creating a time-sharing schedule can be difficult. Limiting the number of transitions during the week and maintaining the same exchange locations and times can alleviate the stress of exchanges for children and parents alike. Keeping the Parenting Plan, or at least the time-sharing schedule, in an easily visible place can help children and parents keep everything straight.

3. Arrive on Time. This not only helps avoid arguments between parents, it gives children a sense of security knowing that they can count on being picked up and dropped off at a specific time.

4. Keep Everyone Updated. While it's always best to follow the Parenting Plan and to arrive on time, we all know that life can sometimes get in the way. A parent who is running late should let the other parent and, if possible, let the children know what is going on.

5. Pick Up and Drop Off at School. When possible, arranging exchanges at school can minimize contact between parents (if this is needed) and create a smooth transition for children. Be sure to let the school know which parent picks up the children when.

6. Neutral Locations for Exchanges. Sometimes a time-sharing schedule, or children's ages, don't allow for exchanges at school. In those cases, drop off and exchanges at a neutral, public location, like a store parking lot or police substation, can help limit conflict between parents and may be a way to limit travel time for parents that live far away from each other.

7. When Exchanging at Home, be Respectful. If parents have decided to pick up and drop off children at their respective homes, remember to be respectful of other parent's space. Do not enter the home unless invited in and do not make negative comments about the home to the other parent or the children.

8. Communicate with Children. Exchanges can be very difficult for children, who often feel torn between both parents. Encourage children to share their feelings without pumping them for information about the other parent or making negative comments. This can be a difficult balance to reach, especially when there is a high level of conflict between parents. A trained child therapist or psychologist may be able to provide some techniques for encouraging communication in a positive way.

9. Communicate with the Other Parent. This can be the toughest part of co-parenting, but it is essential to making a Parenting Plan work. If the exchanges aren't going well because the children are upset or the schedule is cumbersome, address the problem with the other parent and try to reach a resolution before allowing resentment to build or running back to Court. In high conflict situations, a text or e-mail exchange may help.

10. Change the Time-Sharing as Needed to Meet the Changing Needs of the Children. No Parenting Plan is one size fits all. Children's needs and desires changes as they get older. Work with the other parent to modify the time-sharing schedule as children's needs change. For instance, when a teenager's after school sports practice interferes with their weekly dinner visit with the non-custodial parent, discuss adding in some more weekend time with that parent or an activity they can share.

Keep in mind that the goal of an effective parenting plan at least in the estimation of the courts is to promote the best interests of the children. Exchanges are fertile ground for conflict and conflict in the end hurts the children. Following a few basic rules, and common courtesies, will avoid much unnecessary conflict.

Collins & Collins, P.C.
Albuquerque Attorneys

Like the old song says, "there's no place like home for the holidays," but for children of divorced or separated the often question becomes "whose home for the holidays?"

Given that New Mexico law strongly favors joint legal custody and regular, well-defined periods of time-sharing for both parents, decisions must be made about how parents are going to share time with their children for the holidays.

And, given that the holidays can be a very stressful time, decisions about holiday time-sharing should be made well in advance of the actual holiday. Ideally, every Parenting Plan (the court document that details parents' rights and responsibilities with respect their children) should include a holiday schedule,

When there is not yet a parenting plan and the parents are still in the middle of a custody dispute or who have had a change in circumstances since the entry of their Parenting Plan, the parties must agree on where their children will spend the holidays or have the Court decide for them. This is rarely the best, and never the least stress approach to the problem.

Keep in mind that it can take weeks or months to get a hearing before the Court, so if parents aren't going to be able to agree on holiday time-sharing, they can't wait until the week before Christmas or Thanksgiving and expect to ask the Court to decide the issue for them.

In trying to reach an agreement about holiday time-sharing, or deciding what to ask for from the Court, parents should try to take a step back from the situation and really concentrate on what is in the best interests of their children.

No matter how their parents feel about each other, most children really want to spend time with both parents, especially for the holidays. For instance, children probably want to eat Thanksgiving turkey with their grandparents, aunts, uncles and cousins from both sides of the family, but they probably don't want to start one meal at 1:00 p.m. with one parent and then leave at 3:00 p.m. so that the other parent can rush to have the children at a Thanksgiving meal that starts at 4:00 p.m.

Similarly, children will likely want to open Christmas presents under the tree with both parents and they may wake up early to see what Santa brought them, but it is unlikely that, after waking up early, the children want to get dressed, packed and whisked away to the other parent's house by 8:00 a.m. because the other parent insists on having the children for most of Christmas Day.

To avoid the unnecessary stress on the children, parents may consider alternating holidays every year, i.e. one parent has the children for the whole day on Thanksgiving, or even the entirety of the children's Thanksgiving vacation in even years and the other parent has that time in odd years. Or, for Christmas, one parent may have the children from the beginning of the children's Christmas vacation to December 26th and the other parent has the children for the second half of Christmas vacation, including New Year's Eve and New Year's Day. These schedules would alternate each year.

These schedule suggestions may not be right for everyone, but they provide examples of how to focus on giving the children a fun and relaxing holiday, rather than forcing children to run around and feel pulled between parents.

There are many, many time-sharing options and, hopefully, parents can work together to find an agreement that they can live and that, most importantly, maximizes their children's happiness, enjoyment and well-being. An experienced family law attorney can not only advise parents about the law regarding time-sharing, but can be an integral part of finding creative ways to solve time-sharing disputes.

Collins & Collins, P.C.
Albuquerque Attorneys

As any parent knows, raising children can be a very expensive endeavor, which is why all states have laws governing child support for children when parents are divorced, separated or were never married.

In New Mexico, both parents have a duty to support their children and that support is calculated using the New Mexico Child Support Guidelines, which are based on the gross incomes of both parents. The first step in any child support action is gathering income information for both parents and calculating support based on the Guidelines. After the child support has been calculated, the court may enter an order that instructs one parent to pay the other a certain amount of child support every month. Then comes the hard part which is making sure that the support gets paid.

Enforcement of a child support order can be hard on both parents. Given the tough economic times facing many New Mexicans, the parent receiving child support may depend on the monthly check to make ends meet. Receiving a child support payment even a day or two late can cause serious problems, like a bounced rent check or car payment.

In turn, the parent paying support may also be living paycheck to paycheck and may have trouble paying support in addition to his or her monthly bills. However, failure to pay the monthly support obligation can cause a variety of problems for the non-paying parent including suspension of his or her driver's license, seizure of bank and financial accounts, a finding of contempt (and possible jail time and fines), issues with employment to name just a few.

One solution to the problem of getting child support paid on time is through the entry of a wage withholding order. A wage withholding order is similar to a garnishment, in that it is a court order instructing a parent's employer to withhold the monthly child support from a parent's paycheck and send it directly to the parent entitled to receive support. Or, in some cases, the employer sends the child support payment to the Child Support Enforcement Division ("CSED") and then CSED sends it to the other parent.

Both parents can benefit substantially from entry of a wage withholding order. As a preliminary matter, such an order ensures that the support gets paid in a regular, timely fashion, which means that the parent receiving the support can count on getting the support at the same time every month and can plan to pay bills accordingly. It can also help the paying parent meet their obligation because they aren't tempted to pay other bills before paying their child support, after all you can't spend what you don't have. Another substantial benefit to the paying parent is that there is a clear record of what payments were made, so the receiving parent can't claim that they didn't receive a payment, which to the chagrin of many child support paying parents happens with great regularity.

There are limits wage withholding. Most orders provide that an employer cannot withhold more than 50% of the paying parent's income. So, if the paying parent isn't making enough money to cover the monthly obligation, then the receiving parent may be stuck trying to collect the additional support. Also, wage withholding orders typically provide that the total monthly support obligation is divided over pay periods, which can be good for the paying parent but may not be good for the receiving parent who wants the whole monthly obligation all at once.

Child support will be an issue in every divorce involving children or paternity action filed in New Mexico. Having an experienced family law attorney can help both the paying parent and the receiving parent navigate the complicated world of child support, including collection of support after a judgment is entered.

Collins & Collins, P.C.
Albuquerque Attorneys

Being involved in a family law matter, whether it is a divorce or child custody dispute, can be incredibly stressful. The best way to minimize that stress is to resolve the outstanding issues with minimal court time. But when one or both parties are unwilling to reach agreements then court time cannot be avoided.

Most parties tend to focus on the specific facts of their case and how the law applies, which is clearly important. However, another essential element of any court appearance is how the parties and their attorneys conduct themselves. This general advice about how parties should conduct themselves in Court applies to every kind of legal matter from divorce and custody issues to criminal charges to commercial litigation. However, it seems the issue of conduct and decorum most often arises in family law court where both the parties, and on occasion, the lawyers get caught up in the emotion of the case.

As a preliminary matter, everyone should arrive at the courthouse early and at least attempt to confer with the opposing party and/or their counsel. Sometimes the Court will specifically order the parties to arrive at a hearing thirty minutes early in order to meet and confer, but even if the parties are not ordered to arrive early it is a good idea to do so. Many issues, and sometimes whole cases, have been resolved outside the courtroom just before a hearing.

Even if the parties can't resolve their issues, most judges appreciate that the parties tried to do so. Further, being late can result in the hearing being cancelled and reset, or in extreme circumstances, with the Court issuing a default or order of contempt against the party that is not there on time. Arriving promptly for all hearings and trials also shows the Court that the parties respect the authority of the Court.

And, whether or not it should matter, how the parties look is also important. Some Courts have specific dress codes that do not allow parties to wear clothing items like hats, torn jeans or short skirts to Court. Generally speaking, parties should wear clothing that would be appropriate for a business meeting or church gathering.

In addition to showing up and showing up on time, manners and respect for the Court and the process are very important. To begin, the parties should stand when the Judge enters and leaves the courtroom and should address the Judge as "Your Honor." Respect and courtesy in Court is important. Without such respect and courtesy, the hearings can quickly get out of hand.

Perhaps most importantly, beyond basic courtesies, the parties should conduct themselves appropriately any time they are before the Court. This includes things like not speaking out of turn, particularly when this involves interrupting the judge. Judges, like everyone else, do not like being interrupted. These interruptions cause undue delay, prolong hearings, escalate hostility and are very rarely insightful in any event.

The parties should refrain from using foul language. Likewise, the parties should not shout at one another, either of the attorneys, witnesses, and most certainly not the judge. The parties should refrain from arguing with the Judge or giving other confrontational non-verbal cues like rolling their eyes when the Judge, or the other party, speaks.

For the most part, these common sense courtesies should really go without saying but unfortunately, the lack of basic civility is all too common in family court. Due to the emotion, and the fact that this may be the one and only time the parties have ever been in court, they often misconstrue the purpose, the nature and the process. Parties far too often see the court hearing as a debate, a platform or some kind of cathartic release.

It is not. It is no more acceptable in court than outside. Unlike occasions outside the court, the judge has contempt powers which means a party can be arrested and taken into custody for misbehavior. This is relatively rare. What is much more common is that the behavior will alienate the judge. And this is something one does not want to do!

Part of an attorney's job is to try to manage their clients' behavior in front of the Judge so that the Judge sees that party in the most positive light possible. While such good behavior might not actually give one party an advantage, very poor behavior will definitely prejudice the Judge against the badly behaving party. After all, if parties cannot control themselves in court, the judge may wonder how they behave around the children in a custody situation. Then there are the close calls, and common sense will tell you who wins those!

Collins & Collins, P.C.
Albuquerque Attorneys

Appearing in Court for any reason, whether as a party to a case or as a witness or both, can be a great source of anxiety for anyone. That anxiety is often magnified in a family law case because emotions tend to run high when parties are in a divorce or child custody dispute.

One way to help ease the stress of going to Court is to be as prepared as possible for every Court appearance. In New Mexico, family law matters are heard by a District Court judge in the area in which the case is filed, which is called the Judicial District. For instance, cases filed in Albuquerque are heard by the Second Judicial District Court and cases in Rio Rancho are heard by the Thirteenth Judicial District Court.

Once you get in front of the Court, the primary issue at a hearing will most often be how the New Mexico law regarding division of assets and debts, custody, timesharing and child support applies to the facts of the case. Thus, it is essential that the parties and their attorneys be prepared with knowledge of the facts, and evidence to support those facts, as well as knowledge of the applicable law, including print outs of statutes and case law.

Another important part of being prepared for a hearing, beyond knowing the law and facts, is an understanding of what issues are set for that hearing and how much time is allotted. Not every hearing in a family law matter will address all of the outstanding issues between the parties, especially if the matter is highly contentious.

Often a hearing will be set to address a single issue or set of issues, i.e. child support or the interim division of income and expense. This is true during a divorce proceeding, where there may be several shorter hearings before the court holds the final trial or evidentiary hearing at which it resolves all outstanding issues related to the parties' marriage.

In turn, the court has ongoing jurisdiction over support and custody for children until they turn 18, therefore, there can be hearings in those cases every time there is a material and substantial change in circumstances.

Also, Judges will not allow the presentation of evidence at every hearing; some hearings are just set in order to give the Court an idea of the pending issues so it can determine how to proceed. For instance, if the parties are set for a ten minute pre-trial conference at which the Court typically sets dates for trial and other deadlines, the parties should not show up expecting to present evidence of income and expect child support to be ordered.

Having an understanding of what will be addressed at a specific hearing not only helps parties and their attorneys be prepared but it also helps parties' manage their expectations of the relief they can expect to be granted by the Court at each appearance.

Of course, no attorney, or anyone else, can fully predict the outcome of a hearing, or how a Judge will rule on a specific issue. However, an experienced family law attorney should be able to help parties prepare for hearings by explaining what items are on the agenda or docket, understanding the applicable law and knowing the underlying facts.

Such preparation may not completely eliminate the anxiety caused by a court appearance, but is should help calm the parties down and has the added benefit of greatly increasing the party's chances of success.

Collins & Collins, P.C.
Albuquerque Attorneys

Given that divorce and child custody disputes can often be contentious, costly and time consuming for both the parties and the courts, many of the New Mexico judicial districts routinely refer parties to mediation or settlement facilitation.

The purpose of both mediation and settlement facilitation is to provide a means by which parties to a family law case can reach an agreement without having to engage in a lengthy, stressful and costly court battle. The terms meditation and settlement facilitation are often used interchangeably to simply refer to a process wherein the parties sit down with a neutral third party and attempt to resolve their conflict. Although the two terms refer to similar processes, the term settlement facilitation technically applies after a lawsuit has been filed whereas as meditation can occur before, during or after a suit has been filed.

Either way, participating in some sort of dispute resolution process can be very beneficial to both parties. As a preliminary matter, an effective settlement facilitation can save the parties a lot of money in attorney's fees and their own time. Each issue that is settled by the parties without their attorney's having to file motions and attend hearings to argue the disputed issue can save hundreds, or even thousands of dollars.

Further, a settlement facilitation can often be held, and a settlement reached, much more quickly than court action because the facilitation can be scheduled at the convenience of the parties, rather than the Court whose docket is often crowded. In very busy judicial districts, parties can wait months to have a hearing before a judge when a facilitation can be scheduled as soon as all of the parties, their attorneys and the facilitator are available.

The effectiveness of a settlement facilitation depends heavily on how willing the parties are to negotiate. Parties need to realize the cost of full litigation when they are evaluating whether or not they want to wait for a judge to decide an issue or try to resolve it through settlement.

The selection of a facilitator is important. Using an experienced settlement facilitator is critical to the success of a facilitation. The facilitator needs to be good at listening to both parties and addressing their concerns, but also needs to be well-versed in the applicable law so that they can accurately inform the parties of the pros and cons of their relative legal positions and the value of reaching an agreement without further court action

It is essential to remember that the settlement facilitator is an impartial party and cannot provide specific legal advice to the parties. Thus, even in settlement it is important for parties to have their own experienced family law attorney who can represent their specific interest and make sure they are making educated legal decisions.

When both of the parties, their attorneys and the settlement facilitator work together and are committed to resolving the parties' outstanding issues, it can result in an agreement that the parties can live with, that limits the time and financial resources expended by the parties and that allows the parties to move on with their lives.

Finally, at least in Albuquerque's Second Judicial District Court, settlement facilitation is generally required with few exceptions prior to a trial setting. This the Court's way of encouraging the parties to work cooperatively toward a resolution while keeping court dockets down. And to end on an encouraging note, even those parties that must be forced against their will to settlement facilitation will often find some grounds for agreement which will at least minimize the issues to be decided at trial. This alone is worth the price of admission.

Collins & Collins, P.C.
Albuquerque Attorneys

Going through a divorce can be an incredibly difficult experience. Not only are parties mourning the end of a relationship, they are typically dealing with feelings of anger and resentment toward the other person and each blaming the other for what went wrong. Add in the financial strain that comes from dividing debts and assets, along with trying to work out custody and timesharing arrangements, and it is clear why studies typically rank the stress level of a divorce just below the stress involved with losing a loved one. Given the difficulty associated with a divorce, it is often hard for parties to ever see the light at the end of the tunnel.

However, sooner or later (hopefully sooner, but that depends on how reasonable the parties are willing to be in dealing with each other) the divorce will be done. And, once that divorce is complete, each of the parties has a chance at a new beginning in life. This obviously includes the chance to pursue new romantic relationships, but can mean much more than that. In the case of a divorce with children, if the parties can manage to stay civil and work together to make the split as easy as possible on the children then the divorce can actually be good for the children. Living in a home where parents are constantly fighting or that is filled with tension can cause a host of emotional problems for children. Removing that tension by splitting up can often be a relief for children and parents alike and can enable each parent to develop a positive relationship with their children away from the negative relationship with the other parent. In turn, once the stress of living and trying to raise a family together is removed by the divorce, sometimes the parties themselves are able to remember why they became a couple in the first place and actually become friends. Or, if not friends, hopefully that can remain civil toward each other when they attend their children's school events.

After the initial financial shock caused when a community is divided, there can be a sense of freedom that comes with no longer having to make joint financial decisions. Or, sometimes more importantly, no longer being jointly responsible for another person's poor financial choices. For a party who gave up career opportunities to stay home with children, transitional or rehabilitative spousal support can provide the financial means to go back to school or get the specialized training for the job they always wanted. On the other hand, for a party who was the sole breadwinner for the family, the divorce may release the stress that comes with having to always work hard enough to provide for everyone else.

Of course, divorce is hard and can have long-term effects on everyone involved. But, trying to keep a positive outlook and cooperative attitude during the divorce process can not only increase a party's emotional well-being, but it can actually make the process itself go more smoothly. An experienced family law attorney should be able to help their client make smart legal decisions in their divorce and help them keep a positive outlook.

Collins & Collins, P.C.
Albuquerque Attorneys

Almost any time a relationship ends there is some level of conflict, even when the decision is mutual. Sometimes people can break up and go their separate ways fairly simply, however, when the break up necessitates a divorce and/or child custody action things can get complicated. The fact that New Mexico is a no fault divorce state helps to reduce conflict to some extent. But conflict can still arise with the parties themselves having the most control over the level of conflict in a divorce or custody action.

Many parties, especially parties that are particularly angry at their former partner, may insist that they don't care whether or not the conflict level in a case is high, instead they just want to "win" or hurt the other person. However, given that New Mexico's community property laws favor equitable division of assets and debts and that the New Mexico laws favor joint custody, there really aren't winners and losers in family law.

Therefore, increasing conflict or refusing to be reasonable is unlikely to result in the unreasonable party receiving more property or increased custody. What increasing conflict will do is substantially increase the cost of a divorce or custody case. Most family law attorneys charge by the hour for their services. Thus, the more time an attorney has to spend drafting pleadings, communicating with opposing counsel and attending hearings, the more expensive their bill will be. Further, the more hearings, depositions and meetings the parties have to attend, the more time and money is lost when they have to miss work and arrange for child care. Additionally, there can be a serious emotional cost to a high-conflict divorce or custody dispute that is hard to quantify and that emotional cost can often extend beyond the parties to their children and other family members.

Of course, it is a rare case when parties who are separating, or may have been separated for several months or years, can agree on everything. (If they got along that well, they would probably not be breaking up in the first place). What parties can do is sit down with their attorney, or another impartial party, and think about the issues in their divorce or custody battle that really matter the most to them. For example, is a party really that attached to the marital residence, or would they be willing to move out in exchange for a 401(k) distribution that they could use to buy a new house? Does a party really think it in their children's best interest to only see the other parent every other weekend, or are they just trying to hurt the other parent?

Only the parties themselves can answer these questions and reducing conflict may not always be possible, especially if one side simply refuses to compromise. However, any reduction, even if it is only an agreement on a few issues, will help limit both the financial and emotional toll on the parties, and allow them to move on. Hiring an experienced family law attorney can help parties determine which issues are worth holding on to and where compromise may be in their best interest.

Collins & Collins, P.C.
Albuquerque Attorneys