Albuquerque Divorce Lawyer Blog

One of the biggest sources of contention early on in a New Mexico divorce action is which party is going to leave the parties' marital home.

In New Mexico, a temporary domestic order is entered at the beginning of divorce which prevents either party from forcing the other to leave their shared residence. If both parties refuse to move out, then the court will have to enter an order determining who can stay and who must leave. This is not an easy issue in light of New Mexico's community property laws.

It may seem reasonable to just let the court decide who stays and who goes. In reality, it can take months, often many months, to get a hearing before the court on this issue. In the meantime, there are two people who are most likely not getting along very well attempting to live under the same roof.

While neither party may want to leave because they fear giving up a claim to the residence, the parties should also consider other damage that can occur when people who are arguing are forced to live together. This includes acts of domestic violence and sometimes false allegations of domestic violence.

Domestic violence can result in horrible physical and mental harm, and even in death. Domestic violence is a very serious problem and it is taken very seriously by law enforcement. In fact, law enforcement officers face some of their most serious officer safety issues in domestic violence situations. This accounts for the inevitable and sometimes seemingly illogical arrest of one of the parties on every domestic violence call.

A conviction for domestic violence or even an entry of an order of protection can result in permanent and irreparable damage to the alleged abuser. These include consequences for gun ownership or possession, employment, security clearance, property rental and immigration status among others.

These dour consequences result on a conviction or finding of guilt. Many times, it is the alleged victim's word against the alleged abuser. Is it really worth the risk in either case? The house is not worth a lifetime of disadvantage resulting from a finding of domestic violence.

Any sensible person faced with a choice of leaving the house, loss of pride, financial concerns or the like as opposed to a possible domestic violence situation should think seriously about moving on.

False allegations of domestic violence are hard to swallow for the alleged abuser. A true act of domestic violence is completely unacceptable and intolerable for the victim, law enforcement and the courts. Either way, living in a hostile home environment in the midst of divorce is truly flirting with disaster.

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

The occasional trip to the casino or racetrack can be a fun and harmless outing. But with so many casinos to choose from, especially in the Albuquerque and Santa Fe area, many New Mexicans know from personal experience that gambling can often get out of control. Not infrequently in New Mexico, gambling issues lead to divorce. Divorces are complicated and contentious particularly in the division of property and debt. They become doubly so in the face of gambling debt. Though much of the damage may already be done, there is some relief under New Mexico law for the innocent spouse.

As a community property state, the general rule in New Mexico is that all debts incurred during the marriage are community. This means that upon divorce each spouse shall be responsible for payment of fifty percent of that debt, no matter which spouse actually incurred the debt. However, the New Mexico legislature has recognized the potential unfairness that would result to innocent spouses if the traditional community property rule is applied to gambling debts. As a way of addressing that potential unfairness, the legislature added NMSA §40-3-9.1 to the domestic affairs statutes, which provides that a gambling debt incurred by a married spouse becomes the separate debt of the spouse that incurs the debt.

While the law stating that gambling debts are separate is clear, identifying those debts during a divorce may be tricky. Often gambling debts can be masked as credit card debt because the incurring spouse took out cash advances to pay for gambling. Or parties may take out a home equity loan in order to pay off one spouse's gambling debts. Thus, it is very important for parties to a divorce where one or both spouses have incurred gambling debts to consult with an experience New Mexico divorce and family law attorney in order to ensure that a spouse does not wind up taking on debt as part of a community property settlement that should really be apportioned to the other spouse.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

One of the most complicated and contentious issues in a divorce is the division of marital property and debt. The first great challenge is often identifying and valuating the marital property. Given that New Mexico is a community property state requiring equal division of all marital property and debt, both parties have a significant interest in making sure that all marital assets are properly identified and valued.

Unfortunately, sometimes one or both spouses will try to manipulate assets or asset values. They may try to classify community property as separate property. Other times, one or both parties will try to distort the value of the property, up or down, depending upon motive. Worst case, one or both parties will try to hide assets.

So what can be done if a spouse suspects that the other spouse is hiding assets? The first step is to use the tools available under the New Mexico Rules of Civil Procedure and begin the discovery process. Discovery is the system devised by the courts for the exchange of information in court cases and it can include written requests for information (called interrogatories, requests for production and requests for admission). In a divorce case, the main focus of discovery is getting both parties to accurately identify all of their debts and assets. The discovery process also allows the parties to hold depositions, which is an interview, held under oath at which the spouse being interviewed can be required to answer questions about the existence of assets. Parties can also be required to bring documents to depositions.

If the parties have engaged in the traditional discovery process and one spouse still believes that the other is hiding assets, it may be time for that party to think about hiring an investigator. Such investigators are typically certified public accountants who are trained in reviewing financial records to look for evidence of missing assets. Basically they are looking for a paper trail connecting various deposit and receipts and tracing where all of the marital income went. Sometimes the investigator is appointed by the court as an expert charged with reviewing the financial records provided during discovery.

Hiring an investigator or asking the court to appoint an expert can be very expensive. Neither party is advised to go down this road unless it is absolutely necessary. Often a good forensic accountant will charge more per hour than the attorney. Often a basic review of the documents provided during discovery will show where all of the parties' marital income has been spent and that there isn't' anything to hide. An experienced family law attorney may be able to trace that money and dispel fears of hidden assets without having to hire an expert. Therefore, if a spouse believes that another spouse is hiding assets it is very important to review that claim with an attorney before proceeding.

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

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

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

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

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

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

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

www.CollinsAttorneys.com

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

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

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

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

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

www.CollinsAttorneys.com

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

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

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

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

www.CollinsAttorneys.com

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

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

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

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

www.CollinsAtttorneys.com

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

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

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

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

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

www.CollinsAttorneys.com

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.

www.CollinsAttorneys.com

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.

www.CollinsAttorneys.com

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.

www.CollinsAttorneys.com

One of the first issues to arise when a couple decides to get divorced is which spouse gets to stay in the community residence or marital home? Often, one spouse will hire an attorney very quickly after the spouses decide to get divorced. In some cases, the other spouse may not be aware that a divorce is in the works until they are served with the Petition for Dissolution of Marriage, which officially begins the divorce process. At some point in the divorce process, one spouse's attorney will often send a letter that demands that the other spouse immediately vacate the family home. However, such a demand is unenforceable.

The only way to force one spouse out of the home is to get an order from the court forcing them to vacate. Both spouses have an equal right to use of the home while the divorce is pending under the community property laws of New Mexico. A Motion must be filed asking the court for such an order to vacate, which is often filed along with a Motion for Interim Division of Income and Expenses. In accordance with the Community Property Laws of New Mexico, both spouses are equally entitled to use of all of community assets, including the marital home and the spouses' income. In turn, the spouses are also equally responsible for payment of the community debts. The purpose of the Interim Division of Income and Expense is to divide the spouses' income and allocate responsibility for payment of the spouses' expenses while the divorce action is pending.

Upon filing of a Motion, the Court may consider a number of factors in determining which spouse should remain in the home, including, among other things: the financial situation of the spouses; the ability of each spouse to afford a separate home; the presence of children in the home; and the existence of domestic violence. After weighing all of those factors, the Court may or may not order either spouse to vacate the marital home. If the Court declines to order one spouse to vacate, then the spouses must decide whether or not they will be able to tolerate living in close proximity during their divorce proceeding. If there is a high amount of conflict between the spouses, then it is wise for one spouse to vacate the home in order to avoid any possibility of an incident of domestic violence.

www.CollinsAttorneys.com