Albuquerque Divorce Lawyer Blog

A divorce or legal separation will always be difficult emotionally, however, it can be just as hard, if not worse, financially. Often it is not until the parties begin exchanging income information as part of their divorce action that they realize just how dire their financial situation is. Given that New Mexico is a community property state, each spouse is equally responsible for the debts incurred during a marriage. If those debts are substantial, the divorcing parties may want to consider filing bankruptcy.

Anyone considering bankruptcy should consult an attorney that specializes in bankruptcy to determine whether or not it is in their best interests, or if they even qualify to file. This is especially true when parties are divorcing because the parties need to decide whether or not they want to file a joint bankruptcy before the divorce or pursue other options. For example, the bankruptcy code prohibits individuals with incomes above a certain, state-specific threshold from filing bankruptcy and it limits what assets are exempt, or can be kept by the parties after filing. The intersection between federal bankruptcy laws and New Mexico's family law statutes and cases can be tricky to navigate, so parties should be cautious when going down that road.

If parties decide not to file a joint bankruptcy and proceed with their divorce, it is essential that the divorce settlement documents include language that addresses what will happen if one or both spouses decide to file bankruptcy after the divorce.

Spousal support, or alimony, and child support obligations are not dischargeable in bankruptcy, which means that the spouse who owes that money cannot get out of paying it by filing bankruptcy.

However, obligations to pay debts may be dischargeable depending on whether the spouse files a Chapter 7 or Chapter 13 bankruptcy. This becomes problematic if one spouse agrees to assume a community debt as part of a divorce, but then later discharges that debt. If that debt is community, or in both parties' names, then a lender may seek to collect the debt from the other spouse. Therefore, divorce settlement documents should include language that clearly identifies the parties' intentions when dividing debt. For example, if one party is taking a debt instead of paying spousal or child support, then language should clarify that the debt is in the nature of support to prevent dischargeability.

Of course, no one can predict what exactly will happen after a divorce. Sometimes a spouse has every intention of paying the debts they assume in the divorce, but then they lose a job or suffer some other setback that prevents them from doing so. The best the parties can do is consult with experienced family law and bankruptcy counsel in order to make educated decisions about property and debt division and to properly memorialize those decisions in the final divorce documents.

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

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

New Mexico does not recognize common law marriage, even if you and your partner have lived together for years and for all intents and purposes act as a married couple in New Mexico.

However, approximately sixteen states still recognize common law marriage for couples who have lived together for a significant period of time and hold themselves out to the world as a married couple. Some states are phasing out common law marriage and have enacted rules that only recognize such marriages if they occurred before a specific date.

If you moved to New Mexico from a state that recognizes common law marriage, and you are deemed to have been married under the laws of that state, New Mexico courts may recognize your marriage as a valid one. This happens because under our federal Constitution, each state gives full faith and credit to the laws of their sister states.

However, you would have to prove that you were legally married in the other state before you could have this recognition in New Mexico. This could be an expensive and difficult exercise in the court system. On the other hand, there are many considerations, particularly financial issues, that dictate this path. You should discuss the pros and cons of this kind of case with an experienced family law attorney and probably your accountant before you go down that road.

There are numerous financial issues that should be considered. One reason to consider pursuing this kind of case would be at the end of the relationship if you need and would qualify for spousal support. Spousal support is only available to couples who have been married. Another scenario where it makes sense is when one partner dies without a will and the other would be disinherited unless they were deemed to be a legal spouse. Likewise, there may be estate tax considerations upon the death of a partner. Finally, in case of a legal marriage, the division of property and debt will be governed in most cases by community property principles.

In short, common law marriage is generally not recognized. However, under full faith and credit provisions of the U.S. Constitution, it must be recognized under certain circumstances. The burden is on the couple or party seeking recognition of the marriage and this can be a difficult task.

Collins & Collins, P.C.
Albuquerque Attorneys

As the song says, breaking up is hard to do and that adage is true in any situation. It can be even more difficult when the parties who are breaking up have children or own property together. The New Mexico statutes governing child custody and child support provide that the same rules apply to the children of married couples and unmarried couples. However, given that the state of New Mexico does not recognize common law marriage, dividing property and debt can be very difficult for unmarried couples.

With respect to custody, when an unmarried couple breaks up, one of the parties will generally need to file what is called a parentage action in order to formally adjudicate the maternity and paternity of the parties' child. The parentage action should result in the court entering a parenting plan that provides the details of custody, timesharing and child support. This sounds simple and it can be when the parties' break up is amicable, but, of course, there are countless complications that can arise when the parties dispute custody. One common complication arises when the parties who are breaking up are the biological parents of one child, but have also been raising a child from one party's previous relationship. In other words, when one of the parties has been essentially acting as a step-parent to a child, although the parties aren't married. Upon a break up, the non-biological parent may want to establish visitation with their de facto step child, but don't technically have any rights to visitation because they are not a parent. However, there is New Mexico case law protecting a right to visitation, not full custody, for parties that have developed a close relationship with a child as long as that visitation is in the child's best interest.

In turn, division of property and debts can be very difficult when parties aren't married. Because the rules of community property do not apply to unmarried couples, the property will generally be kept by the party whose name is on the property, even if both parties paid for the property. Similarly, in the case of debts, both parties may have contributed to incurring a debt (for example, both making charges on a credit card) but the debt will generally remain the responsibility of the person who name is associated with the loan or account. This division can get even more complicated when the parties have actually put both names on a piece of property or debt. If they can't agree on a division, they may have to file a separate civil suit using theories of contract or unjust enrichment. Further, if the parties aren't married, neither party is entitled to spousal support or alimony. So, while the same child support rules apply to unmarried couples, the additional financial support sometimes awarded in divorces does not apply to unmarried couples.

Again, ending a relationship is hard no matter the circumstances. However, when there are children or substantial assets and debts involved, consulting an experienced family law attorney can help protect the rights and enforce the responsibilities of the parties in a break up. This protection and enforcement is especially important when parties aren't married because the principles of community property do not apply.

Collins & Collins, P.C.
Albuquerque Attorneys

Every marriage presumably begins with a lifelong commitment. This commitment is symbolized by the wedding rings. Unfortunately, many marriages do not go the duration and the symbolism is quickly lost on the parties.

Instead, the wedding ring goes in the communal pot for division like all other property. And the question quickly arises as to who keeps the rings. In fact, one of the most contentious issues in the property division portion of a divorce can be what happens to the parties' wedding and engagement rings, not only because such jewelry often has a high monetary value but also because the rings may have great sentimental value.

The rings may symbolize the hope the parties felt at the beginning of a relationship and, even though the relationship is over, parties may not want to let go of that symbol. Quite frequently, the wedding and engagement rings are family heirlooms that the giving party wants to stay in their family after the relationship is over. Perhaps, most frequent and most cynical, the rings simply represent property value that needs to be divided according the community property laws of New Mexico.

Generally, the New Mexico Courts hold that wedding and engagement rings exchanged pursuant to a valid marriage become the separate property of the parties to whom they are given. In other words, the rings are gifts between the parties and do not have to be returned upon divorce. As such, the value of those rings will not be included in a property division. However, this is not always true. In particular, if the parties still owe a debt associated with the rings at issue, the party assuming that debt may get to keep the ring. Or, the court may order that the rings be sold to satisfy any associated debt.

The discussion above applies only to the return of rings upon divorce. The Courts may rule differently about the return of rings when parties are engaged but break up before they are married. The New Mexico Supreme Court addressed this issue in the 1994 case of Vigil v. Haber, which was a case in which an engaged couple went through a nasty break up prior to their wedding. Originally, Ms. Vigil returned her engagement ring to Mr. Haber, but then objected to that return and wanted the ring back.

As part of an associated domestic violence action, the court ordered that the Santa Fe police should hold the ring until the court determined who should keep it. The district court initially held that Ms. Vigil could keep the ring because, although she had cancelled the parties' wedding, she did so in response to misconduct by Mr. Haber. However, the reviewing court overturned that decision and adopted a new rule in New Mexico with respect to the return of engagement rings. That rule provides that fault (or who did what to whom to cause a break up) will not be considered in an engagement setting. Rather, engagement rings are gifts given on the condition and in contemplation of a marriage and, if that marriage does not happen, the condition of the gift is not satisfied and it must be returned.

Of course, these general rules about the return of wedding and engagement rings may not apply in the case when parties have a valid prenuptial or other agreement as to how gifts will be divided. In any event, parties should think carefully before exchanging expensive rings or family heirlooms. Consulting an experienced family law attorney can help both parties understand their rights and responsibilities the exchange, and possible return, of rings.

Collins & Collins, P.C.
Albuquerque Attorneys

For many working families, retirement savings can be one of the biggest assets in a marriage, which makes them a very important issue to be addressed during a divorce. Given that New Mexico is a community property state, each spouse is entitled to one-half (1/2) of the retirement earned or contributed to during the marriage.

There are a variety of different types of retirement plans, including pension plans, 401(k) accounts and IRAs. Each can give rise to its own set of issues. Here are some common issues that arise when dividing retirement accounts during a divorce:

1. Loans Against Plans
Sometimes, employers have plans in place where employees can take out loans against contributions they've made to these plans. This is a secured liability that can reduce the value of your assets (and consequently, reduce the value of the marital estate). Such loans not only reduce the value of the plan, but some plans will not let the account be divided or liquidated until the loan has been satisfied.

2. Timing
The time when a spouse obtained a retirement account, and when contributions were made to the plan, are important in determining how much of a retirement account is community property to be divided during a divorce. For instance, any retirement contributions made to a pension plan before the parties married is not considered community property in New Mexico and should be left out of the community property division. Tracking down all deposits and account earnings by time period can be a complex process. You might need the help of experts who can make these calculations for you. However, when it comes to pension amounts, there is a simple formula: Months of Marriage divided by Months of Employment x Pension Amount = Community Portion

3. Vesting
The vesting period is the period of time that an employee must stay in their position at work before they become entitled to the benefits of the company pension plan. The Employment Retirement Income Security Act of 1974 (ERISA) shortened the vesting period time for defined benefit plans in order to ensure that employers did not get unjustly enriched as a result of the rapidly mobile workforce. When valuating community property for purposes of a divorce, there can be a question of whether the pension benefits that accrued before the vesting period should be included in the marital estate.

4. QDRO
Once the parties have agreed how the retirement plans will be divided, most plans require the Court to enter a Qualified Domestic Relations Order (called a QDRO for short) which orders the company servicing the retirement plan to divide the asset. QDROs can be complicated documents because they must include instructions based on the parties' divorce settlement as well as the internal requirements of the company servicing the retirement plan and ERISA regulations.

Given the intricacies involved in valuing and distributing retirement plans in a divorce, it is extremely important to consult a divorce attorney in order to ensure that the account is properly divided.

Collins & Collins, P.C.
Albuquerque Attorneys

As a community property state, one of the primary issues in any divorce proceeding in New Mexico is valuing the assets and debt accrued by the parties during the marriage so that all of the community property and debt can be equitably divided. After the parties have fully disclosed and identified all assets and debts, and put preliminary values on those items in order to determine whether further valuation is necessary, there are several additional steps for a fair valuation and allocation of the community property and debt.

First, the parties must identify separate property and debt. This separate property and debt should be clearly identified and separated out of the community estate. Once the parties have identified and allocated the separate property and debt of each party, they must determine the value of the remaining assets and liabilities.

Valuation is the process by which the marital estate is boiled down to economic fact--it serves as a safeguard against material misstatements of value and provides the information necessary to facilitate settlement, or establishes the values that will be used at trial if parties cannot settle. The valuation itself, even under the best of circumstances, can be complex and contentious.

There are a variety of valuation methods available and many times the parties will disagree not only on values but on the methods of valuation. Parties will save themselves money and time if they can agree on values, or at least valuation method prior to settlement or trial. Often the parties can agree informally on a value, however, the more complicated the marital estate, the more likely it is that the parties will want to use more formal valuation methods.

Here is an example: in the process of valuing a house, there is a progression through stages from the least credible to the most credible.

• Least credible: The parties' individual representations regarding what they think the house is worth.
• More credible: A market analysis, conducted by a realtor or other person who has expertise in real estate, places a value on the house. The key here is for the parties to agree on the third party realtor. Without an agreement, this simply cements the foundation or future disputes over value.
• More credible: A formal appraisal, done by someone who is trained in real estate appraisal and who has been hired by the parties. It is not uncommon for the parties to seek separate independent appraisals when headed to trial. This approach can be very expensive.
• Most credible: Sale of the house on the open market. This is the most reliable way of valuating the house, for marital estate division purposes. It is often also the most emotional.

Any party to a divorce should consult with an experienced family law attorney in order to determine what sorts of valuation methods are appropriate for their case. The higher the level of credibility the evidence is, the more likely it is that the court will accept the value presented

The process of preparing a summary of the marital estate is an important piece of the puzzle in completing a divorce. It is important to keep in mind that it is ultimately up to the parties to agree on the value. Naturally, there will be some difference of opinion. It is when this difference of opinion is not based in economic reality that the process can get highly contentious, stressful and expensive. This is typically the path you would want to avoid.

Collins & Collins, P.C.
Albuquerque Attorneys

New Mexico is a community property state, which means that upon divorce both parties are responsible for payment of one-half of the debts incurred during the marriage and are entitled to one-half of the property purchased or received during the marriage.

Thus, a key component to reaching a marital settlement agreement is valuing the marital estate, which consists of all assets (what is owned) and liabilities (what is owed) of a married couple. The courts use this formula: Assets - Liabilities = Net Marital Estate. As simple as that sounds, there are a number of important steps that must be taken in order to insure the accurate valuation of the marital estate.

First, and perhaps foremost, there must be full disclosure of all assets and liabilities. There are several ways to obtain complete disclosure. Initially, the parties would be wise to begin collecting information informally. This will help the attorneys narrow the scope of discovery. It will also point to possible problems and challenges to be expected in the formal discovery process. Anticipating and avoiding these problems where possible will hold down attorney time and fees.

Even beyond the initial informal collection phase, there are opportunities for cooperation. The formal process will begin with a Request for Discovery. Often times, this is a cooperative process with mutual agreement of the parties. On other occasions, the discovery process can be very contentious involving significant attorney time and expense. In these cases, it may be necessary to get the Court to issue an Order compelling discovery through the filing and hearing on a Motion to Compel.

For purposes of discovery and disclosure, initial evaluations such as whether or not the estate is marital, who gets what, and how much the estate is worth are really immaterial. What really matters at the beginning of this process is that there is full and complete disclosure of all assets and liabilities, no matter what their source, value or classification. This is important because:

• In some localities, parties will be penalized for failing to completely disclose all assets and liabilities. For example, if any hidden assets are discovered after the divorce, those assets might be given, in their entirety, to the other party.
• Each party needs to establish credibility and trust with the other party. This will facilitate negotiated settlement. However, if one party finds out later on that the other party hid or failed to disclose assets during the divorce proceeding, the chances of reaching a peaceful resolution will be greatly diminished.
• Of equal concern to most parties, a highly contested discovery process can result in significant unnecessary attorney fees.

As with most issues in divorce, discovery issues should be addressed in a civil and cooperative manner. This will reduce the stress and costs of the divorce. Unfortunately, discovery conflict cannot always be avoided but it can often be minimized. Due to the complexities of discovery and the valuation of the marital estate, it is generally advisable to work an experienced divorce and family law attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

A significant source of contention issue in many divorces is the valuing and allocating, or selling, the marital home. For most couples in New Mexico, and around the country, the residence is the most objectively valuable asset shared by the parties and, at times, it is the only source of possible revenue available to pay community debts.

Though it seems it should be easy, valuing the family home rarely is. A house isn't just a place where people live; it's a home, a symbol of security and comfort. Because buying a house is a major investment of financial resources, a house can also represent years of hard work that the parties put into buying, improving and maintaining it.

Given the potential monetary value of the residence, and the emotional attachment many people feel to their home, much of the stress and frustration in a divorce centers on allocation, or sale, of the residence. In turn, one of the biggest problems presented by the residence is the difficulty in assessing its value.

Contrary to what many people in the real estate business may tell you, property appraisal is not an exact science, or even an objective process. Licensed appraisers may compare the residence to other properties in the area with similar features in order to assess a market comparison. However, this may be difficult in areas without any comparable properties, or when the real estate market is depressed and there aren't very many homes selling.

Sometimes, there might be huge differences in appraised values based on which comparable properties an appraiser chooses to review and how an appraiser views the attributes of the residence. Then, even if the parties do agree on the value provided by an appraiser, that value is only a hypothetical estimate of how much the residence is worth from which an asking price can be determined.

The only true way to know the value of a house is to sell it. Again, this is easier said than done. One or both of the parties may want the home. If the parties refuse to sell the house, settling on a value can be can be a point of contention resolved only after lengthy litigation ultimately ending at trial.

To make things worse, given the recent drop in home prices across the country, a house is not necessarily an investment or a valuable asset, but rather a major economic burden. In many cases, parties owe more money to the lender that holds the mortgage on the residence than the residence is actually worth.

In these situations, if parties can't arrange a short sale, or some other remedy with their lender, they may face foreclosure and then what was once thought of as a community asset becomes a cumbersome community debt. This leads to potentially very hostile litigation for the determination of who will take the debt or how it will otherwise be divided.

And, all the talk of valuation above doesn't even address the issue of who will pay the cost of insurance, utilities and maintenance of the residence while the divorce is pending, not to mention who gets to actually live there. These issues can be very difficult to resolve in a contested divorce.

Of course, most of these issues can be resolved rationally if the parties are willing to do so. Unfortunately, one or both of the parties often cannot or will not behave rationally. This can lead to unnecessary and costly litigation. In cases where the parties are already in financial distress, the added burden of attorney fees can make a bad financial situation much worse. It is highly advisable for the parties to consult with an experienced divorce attorney early in the process so unnecessary conflict can be avoided to the degree possible.

Collins & Collins, P.C.
Albuquerque Attorneys

As with most legal disputes, a divorce in New Mexico can involve a lot of paperwork. Many of these must be filed with the court to have legal effect. Documents that are filed with the Court asking for various types of relief are typically called pleadings and the instructions from the Judge are called orders.

One of the most important pleadings to be filed in a divorce is called a Marital Settlement Agreement, often called an MSA for short. An MSA is an agreement between the parties to a divorce in which they identify their separate and community property and debts and agree who is going to keep what property and be responsible for what debts.

Not every divorce case will require an MSA. For instance, cases that never settle and require full blown trials will result in an order dividing property and debt from the court. But trials are fairly rare in divorce cases so the vast majority of New Mexico divorce cases will be resolved, at least in part, by an MSA.

As implied by the use of the word Agreement in its title, an MSA is a contract between the divorcing parties and is as binding and enforceable as any other contract. However, unlike other types of contracts, an MSA is often entered as an order of the Court when it is merged with the Court's order finalizing a divorce. This final order is typically called a Final Decree of Dissolution of Marriage, or just a Final Decree.

This merger means that the MSA is no longer just a contract between the parties, but is a judgment of the district court, which means violations may be punishable by finding of contempt and that amounts to be paid between the parties may be subject to collection just like any other debt. What is important to remember when negotiating an MSA is that, because MSAs are contracts and orders of the Court, they are very difficult to change after they have been entered and approved by the Court, unless both parties agree to modification.

The New Mexico Court of Appeals recently addressed the issue of modification of an MSA that had been merged with a Final Decree in the case of Gordon v. Gordon, et. al. 2011-NMCA-044. In the Gordon case, the parties entered into an MSA, which was merged with a Final Decree and approved by the Court. Creditors of the parties then intervened in the case in an attempt to collect debts owed by the divorcing parties. In response to that collection attempt, the parties argued that certain assets addressed by the MSA were exempt from collection based on the statute governing the collection of debts.

The District Court agreed with the parties and concluded that the creditors could not collect the debts. The Court of Appeals found that by finding the debts to be exempt, the District Court had effectively modified the Final Decree and held that such modification is allowed within 30 day of entry of a Final Decree. The Court held that, after the 30 day period for reconsideration has lapsed, a Final Decree, and the MSA incorporated therein, can only be modified under the specific circumstances allowed by New Mexico Rule of Civil Procedure 1-060 (B). Rule 60 modification is narrow and limited to things like fraud or misrepresentation by a party or a mistake made by the parties.

One of the primary lessons to learn from the Gordon case is that the Courts have limited ability to modify Marital Settlement Agreements once they have been merged with a Final Decree. It is extremely important for a parties to a divorce action to consult an experienced divorce attorney before entering into an MSA in order to ensure that they fully understand their rights and responsibilities under that agreement, because if will be very difficult for an MSA to be changed if one party changes their mind.

Collins & Collins, P.C.
Albuquerque Attorneys

The beginning of a divorce can be very confusing and stressful. Perhaps the most stressful part of the divorce is what to do with the marital home. A difficult decision must be made as to who will remain in the house. This decision is made even more difficult when children are present.

As community property, both parties are equally entitled to possession of the home. As such, neither party can force the other party to move out without a court order. Many times, both parties are very reluctant to move out of the home for a number of reasons including costs, disruption, attachment and stress.

The issue of possession of the home is fraught with emotion since whoever vacates the home will likely not be allowed to return while the divorce is pending. Moreover, whoever keeps the home will often also have primary custody of the children since the courts favor the least disruption possible to the lives of the children.

Due to many attachments to the home and the real and perceived advantages of staying in the home, parties will often jockey for possession of the home. The most common tactic is simply to demand that the other party leave. Of course, this demand has no basis in law and is unenforceable in the absence of a court order.

Getting a court order to force the removal of one or the other parties is not all that easy. There must be grounds for removal and the mere fact that his or her presence is no longer desired is not enough. The court can and will under some circumstances order one party from the home. However, this decision is not taken lightly by the courts and likewise should not be taken lightly by a party seeking removal of a spouse from the home.

The issue of the community residence can cause a huge level of hostility and set a divorce off in an irreversible course of conflict. It should be addressed in the most rational and thoughtful way possible and compromise is highly encouraged. Refusal to compromise here will likely costs the parties dearly in every other areas of the divorce, no matter how trivial.

Due to the complexity of the issue and the possibility of derailing an otherwise civil divorce, it is important to consult with an experienced divorce and family law attorney to understand your rights, obligations and corresponding options in addressing this issue.

Collins & Collins, P.C.
Albuquerque Attorneys

The divorce process is a time of stress, disruption and change. With the multitude of decisions that must be made, estate plans, insurance instruments and retirement accounts created during the marriage can get overlooked. As such, ex-spouses can unwittingly remain as recipients or beneficiaries of estate assets, even when it is not intended. They can also be deemed decision-makers in certain inopportune situations.

Prior to any thought of divorce, spouses are commonly named as beneficiaries for estate assets. Because New Mexico is a community property state, each spouse owns 50% interest in the assets acquired during the marriage upon divorce. Each spouse then has the right to say how their 50% is used, including to whom they will leave their separate assets upon death.

Beneficiary designations are often overlooked during a divorce. It may be only during probate proceedings that an ex-spouse is found recorded as an estate beneficiary. This creates obvious problems for the deceased's intended recipients. Likewise, there are difficulties when an ex-spouse is left as a beneficiary on a life insurance policy, pension plan, annuity or trust account.

Worse still is a situation where a person has been incapacitated due to injury or illness and they neglected to remove their ex-spouse as the agent on their living will or advance health-care directive. These are documents that give another party the legal ability to make medical decisions, including the refusal of treatment. If the person is incapacitated, transferring that decision-making authority can be quite difficult.

Particularly after a contentious divorce, one need only imagine the unintended consequences of neglecting to change beneficiary designations. An experienced divorce attorney can help address these issues to avoid the consequences of unintended beneficiaries.

Collins & Collins, P.C.
Albuquerque Attorneys

In 2007, the U.S. began experiencing what is now called, the Great Recession. One surprising fact found during this period of economic hardship involved the steady decline of the divorce rate. In fact by 2008, this rate had dipped to its lowest level in 30 years in over 44 states.

Data collected by the National Marriage Project, based out of the University of Virginia supported these findings, actually finding that the stability of marriages was positively affected by the recession. Foreclosures, lay-offs and investment losses may be evidence that married couples pull together during such events. Yet, this stability and sense of togetherness may be short-lived.

Typically, financial conflict has been a top predictor of marital breakdowns. Yet, one of the statistics highlighted by the National Marriage Project involved the claim that many couples either put aside or postponed seeking a divorce during the recession. One major factor could involve the housing market collapse, as many divorcing couples cannot cash in on home equity when real estate prices have plummeted. Finally, in some housing markets it is near impossible to sell a home and even more difficult to get financing on another. Most families simply cannot take on the costs associated with running separate households.

There are many other issues as well that make divorce quite difficult in times of financial stress. Health insurance is a major issue. A divorce will often leave one party with no insurance which today can be quite disastrous. A division of property and debt is made more difficult in these financial times. The community debt in particular can be extremely problematic forcing one or both parties into bankruptcy. Then there is child support and alimony which for the paying party can simply put them over the financial edge. So while financial stress pulls couples apart, these same stressors actually bind them together for better and for worse.

The research appears to hold true. As the effects of the recession began to ease in 2010, statistics revealed an increase in divorce rates. This trend may be due to less financial uncertainty. Rebounds in employment rates and investment portfolios may alleviate the fears of those who want to go it alone. Others may find more creative ways to separate, continuing to share community property until the housing market bounces back.

Divorce can be a complex issue, particularly in today's unpredictable economy. Divorce has always been a highly stressful and uncertain time for couples. The recession has magnified the issues and often the complexities of a divorce. If you are considering divorce and the implications this may have on your financial future, it is important to consult an experienced divorce attorney. You can then better consider your options, having some certainty in uncertain times.

Collins & Collins, P.C.
Albuquerque Attorneys