Albuquerque Divorce Lawyer Blog

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

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

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

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

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

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

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

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

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

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

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

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It is well know that New Mexico is a community property state. The meaning of community property is sometimes difficult to grasp, and the implications for the division of property and debt hard to accept.

The concept of community property views a marriage as a partnership, in which the spouses who own one-half of all the property acquired during the marriage, no matter which spouse's name is actually on the title for the property. The essential elements to determining that an asset is community property are: 1) whether or not the property was acquired during the marriage; and, 2) where the money that paid for the asset came from. If an asset was acquired during the marriage, then it is presumed to be community property.

There are exceptions to the community property presumption. An asset may be deemed to be the sole and separate property of the spouse in whose name it is held, if the spouse can prove that the spouse owned the asset prior to the marriage. Also, an asset may be separate property if: 1) the spouse inherited the asset; 2) the asset was given as a gift solely to one spouse; 3) the spouses entered into a written agreement designating the asset as separate property; 4) if was acquired after the entry of a court order granting a divorce or legal separation; or 5) the Court otherwise declares the property separate.

Given the presumption that all property acquired during the marriage is community property, in a divorce action, the burden of proving that a piece of property is separate falls on the spouse claiming the separate ownership.

It is also important to remember that the definition of property includes more than just the marital home and cars. The definition of property also includes things like: retirement benefits and pension plans; stocks and bonds; insurance policies; income and bonuses; cash; leases and options to purchase real estate; accrued vacation and sick time; and even frequent flier miles among others.

It is important to address each and every significant item of property in the Marital Settlement Agreement. The purpose of a Marital Settlement Agreement (MSA) is to specifically identify and divide all of the spouses' community and separate property, along with the community and separate debt. Keep in mind the value of each item of property and debt. Some items simply lack sufficient value to dispute. Do not let the division of property and debt turn into a contest of ego and will. These are very expensive fights with little return on your efforts, time and money in the end.

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Just as the law in New Mexico treats all property acquired during a marriage as community property, all of the debt incurred during a marriage is viewed as a community debt, for which spouses one-half responsible, regardless of who created that debt. This means that, generally, each spouse is free to create debt in his or her own name during the marriage and it will become a community debt. There is an exception to the presumption of community debt for a mortgage or lease that creates a debt term of longer than five years, in which case both spouses have to sign those contracts in order to create a community debt.

Of course, just like with separate property, a separate debt will be deemed the sole and separate responsibility of the spouse that created the debt when: 1) the debt was created before the marriage; 2) the spouse creating the debt entered into a written agreement with the creditor identifying the debt as separate; 3) the debt was created by separate personal injury or tort committed caused by a spouse; 4) the debt was incurred after the parties were separated, but before the divorce, and was exorbitant, unreasonable or did not benefit the community; 5) the debt was incurred after the entry of a divorce decree or order of legal separation; or 6) the debt was a gambling debt incurred solely by one spouse.

As with property, the purpose of the Marital Settlement Agreement is to identify all of the spouses' community and separate debt and to clearly identify which spouse is going to be responsible for payment of that debt after the divorce. Identifying and classifying debt can be very complicated and spouses should be meticulous in gathering records to support their debt division.

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