Albuquerque Divorce Lawyer Blog

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.

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After an alleged victim (the Protected Party) of domestic violence has filed a Petition for Order of Protection and the Temporary Order of Protection has been entered preventing the alleged abuser (the Restrained Party) from any contact with the alleged victim, the court holds hearing to determine whether or not the Petition provides enough information for the court make a formal finding that domestic abuse has occurred.

These petitions are often filed in the context of a divorce or custody battle. However, they can be filed by any "household member" as defined under the statute. The Family Violence Protection Act statute defines household member as follows:

"household member" means a spouse; former spouse; family member, including a relative, parent, present or former stepparent, present or former in-law, child or co-parent of a child; or a person with whom the petitioner has had a continuing personal relationship. Cohabitation is not necessary to be deemed a household member for purposes of this section."

A parent can also file a Petition in order to protect their minor child. The court must find that a preponderance of the evidence provided at the hearing shows that an act of domestic abuse has occurred.

According to the Family Violence Protection Act, the definition of domestic abuse is very broad, but it basically defined as an incident by a household member against another household member and includes things like actual physical harm, severe emotional distress or just making a threat that causes the Protected Party reasonably think that the Restrained Party might harm them.

A finding of domestic abused can have serious implications. The court records of these civil domestic violence Petitions are not accessible to the public in New Mexico, however, all Orders of Protection are reported to the database maintained by the National Crime Information Center (NCIC), which is accessible to all law enforcement agencies in the country. A finding of domestic violence results in registry in the database as a domestic violence offender.

Registry as a domestic violence offender has numerous severe consequences. The full faith and credit clause requires that every state recognize and enforce the Orders of Protection issued by another state. Many employers, especially for jobs that require any kind of security clearance, will request that a potential employee report whether or not any findings of domestic abuse or violence have ever been made against them. And, under the federal gun control regulation, a finding of domestic abuse will prevent a Restrained Party from ever owning or possessing a firearm. This includes firearms used in hunting. It also includes firearms used in the course of law enforcement and the military effectively barring domestic violence offenders from law enforcement and military service in the absence of waivers. Finally, a finding of domestic violence serious immigration consequences including immigration removal proceedings for deportation and exclusion of the domestic violence offender from the United States.

Due to the severe consequences of a fidnign of domestic violence and the rather liberal burdens and rules of evidence in domestic violence hearings, the parties to a Petition may want to enter into a Stipulated Order of Protection, in which the Restrained Party agrees to comply with an extended Order of Protection, but a full evidentiary hearing is not held and there is no finding of domestic abuse. Both the alleged victim and the alleged abuser benefit from this arrangement particularly in cases where there are support issues. After all, it does little good to have family's provider fired from his job or worse, deported from the United States.

A party facing the a Petition for Order of Protection from Domestic Violence should discuss the implications of a finding of domestic violence and a Stipulated Order of Protection with their attorney or the court itself at the prior to the beginning of the hearing.

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A Domestic Violence Order of Protection is a type of restraining order issued to protect victims of domestic violence and abuse, which is authorized by the Family Violence Protection Act. In New Mexico, including Albuquerque, Rio Rancho and Santa Fe, anyone can file a Petition for an Order of Protection at the Domestic Violence office on the second floor of the Second Judicial District Courthouse. It is not necessary to have an attorney to file a Domestic Violence Order of Protection.

By statute, the Court cannot charge the alleged victim (called the Protected Party) for filing the Petition and the sheriff's office cannot charge a fee for serving the alleged abuser (called the Restrained Party) with Petition and Temporary Order of Protection.

A Domestic Violence Order of Protection is separate from criminal domestic violence charges that are filed in metropolitan, magistrate or district court. In cases of criminal domestic violence actions, the police or district attorney's office will file domestic violence criminal charges based on an alleged incident of abuse in a criminal case. In a Petition for an Order of Protection from Domestic Violence is filed by the alleged or his/her attorney. ,

It is possible for criminal charges and an Order of Protection to arise from the same incident. These Petitions for Order of Protection Against Domestic Violence are often filed during a divorce proceeding or a custody dispute. Unfortunately, these petitions are often used as a weapon in a divorce or custody matter with no real basis for the petition. A party accused of an act of domestic abuse may file a response to the Petition or may also file a Counter-Petition against the party alleging the abuse.

The standard required to file a Petition is very low. Essentially, a Protected Party just has to swear to the court that they have been a victim of domestic abuse and describe the abuse in the Petition. Then the court will issue a Temporary Order of Protection, which means that the Restrained Party cannot have any contact with the Protected Party.
The Petition and Temporary Order must be personally served on the Restrained Party and the Order will set a hearing when the alleged abuser must appear before the court.

Many jurisdiction, including Albuquerque's Second Judicial District and Santa Fe's First Judicial District, have appointed designated domestic violence hearing officers or special commissioners to hold the hearings on Petitions for Orders of Protection. The hearing officer or special commissioner will hear all the evidence and issue all the findings at the hearing and then issue a report that the presiding district court judge will approve.

All testimony at these hearings is on the record and under oath. Either party may have an attorney, but unlike criminal proceedings, an attorney is not provided for you by the State. The Protected Party has the burden of showing the court by a preponderance of the evidence that an incident of domestic abuse has occurred. Preponderance of the evidence basically means that it is more likely than not that domestic abuse occurred. This is a fairly low burden unlike the burden in criminal cases. In addition, the rules of evidence and procedure can be a little lax in domestic violence hearings. It is therefore necessary to defend the actions pretty aggressively if the allegations are without merit.

Should the hearing officer find that domestic violence has occurred, an Order of Protection will be issued for a 6 month period. These Orders can be extended for an additional 6 months through the filing of a Motion to Extend Order of Protection upon a showing of good cause.

Either party may file objections to the Hearing Officer's findings and report within 10 days of the issuance of the report. The matter will then be reheard before a District Court Judge.

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There are a variety of reasons why a couple might seek an annulment rather than a divorce, ranging from religious values to the fact that they just don't like the sound of the word divorce. The purpose of an annulment as opposed to a divorce is that an annulment renders a marriage void, as if it never happened, whereas a divorce dissolves the marriage. Unfortunately, those who seek an annulment in New Mexico are most likely going to be disappointed.

Unlike a divorce, which can be filed in New Mexico for any reason or no reason at all under the "no-fault" divorce doctrine, an annulment can be filed for only very limited reasons. In New Mexico, a marriage can only be annulled by the Court if the marriage violated one of the requirements for a valid marriage from the beginning of the marriage.

For instance if one of the spouses was not old enough to property consent to the marriage, then the marriage is invalid as a matter of law. A person must be 18 years old to consent to a marriage unless they are 16 or older and have parental consent. A person younger than 16 is only allowed to marry by an order of the New Mexico Children's Court. Likewise, a person may lack the mental capacity to consent. Other legal prohibitions making the marriage invalid from the inception are the presence of incest or bigamy.

The presence of fraud can also be a grounds for annulment. However, this typically relates back to one of the aforementioned criteria. While it is conceivable that another situation might lead the Court to grant an annulment on the basis of fraud, the grounds for an annulment are very narrow. Unfortunately, fraud does not include such grounds as "he/she said he/she was rich," or "he/she is a completley different person now that we are married." That's not fraud. It's just bad luck, bad taste or bad judgment.

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In New Mexico, the divorce process begins with the filing of a Petition for Dissolution of Marriage with the District Court of the County where one or both spouses have lived for at least six months prior to that filing. In order for the Courts of New Mexico to have jurisdiction over the case, one of parties must have lived in the State for at least six months.

While there are multiple grounds on which the Court can grant a divorce, New Mexico has what is often referred to as a "no fault" divorce policy, which means that the Court will grant a divorce based solely on the incompatibility of spouses. The vast majority of divorces in New Mexico are granted on the basis of incompatibility.

The Petition is a basic document, in which one spouse requests the Court enter an order dissolving the marriage. The Petition must include the following information: the date of the marriage; the names and ages of any children born to the marriage; and the date of the separation of the spouses. Primarily, the Petition also asks the Court to: divide and distribute the spouses' community property and community debt; identify and award any separate property and separate debt; determine child custody of any children born the marriage; determine child support for those children; and, award spousal support, also called alimony, if appropriate.

In most cases, after the filing of the Petition begins the process, the other major documents left to be filed with the Court are called: the Marital Settlement Agreement, often referred to as an MSA; the Parenting Plan; and, the Final Decree. The MSA is a detailed agreement that identifies and divides the community property and debt of the parties. The Parenting Plan, which is often incorporated into the MSA, specifically outlines custody and visitation arrangements for any children born to the marriage and will include a Child Support Worksheet explaining how child support will be paid between the spouses. The Final Decree is the final order of the Court adopting the contents of the MSA and Parenting Plan and granting the spouses a divorce.

Of course, in a complicated and/or contentious divorce there can be countless other documents filed with the Court as the spouses try to settle the issues division of property and debt, alimony, child custody and child support. There may be many other issues along the way such as domestic violence and orders of protection.

However, every divorce action will begin with a Petition for Dissolution of Marriage and end with some final order of dissolution of the marriage. There are many possible roads from one point to the other. The shortest and least contentious route is generally the best for the parties, the children and if that is not enough, the parties' money.

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Unfortunately, prior to or during a divorce or custody action, one of the parents will sometimes relocate with the children to another state, often leaving without obtaining the permission of the other parent. Whether a parent leaves New Mexico for another state or the parent relocates to New Mexico with one of the children, the innocent parent needs to understand their rights, which largely are dependent upon which state's courts have jurisdiction over the children to the marriage or relationship.

Jurisdiction generally describes a court's power to decide a case or issue. A court cannot decide a case when it does not have jurisdiction over the people involved in that case and the subject matter of the case. State courts generally have the power to decide family law issues such as divorce, property division, child custody, and child support. It is important to remember that custody refers to more than just the physical location of the children and their visitation with the other parent, it includes decision-making power over issues such as where the children go to school, the children's religious practices, important medical decisions concerning the children, and even what extracurricular activities the children will participate in.

In New Mexico and most other states, the courts do not gain jurisdiction over the issue of child custody until the child has legally resided in the state for a period of six months or more. The phrase "legally resided" means that the child has not been brought to New Mexico or removed from New Mexico in violation of an existing Court Order or in violation of the other parent's rights. Thus, the second state to which the children have been relocated, whether it is New Mexico or another state will not have jurisdiction over the issue of child custody until the child has lived in the new state for six months. The state from which the children were removed will retain jurisdiction during this six month interim period.

In the absence of jurisdiction, any court actions filed in the new state should be dismissed for lack of jurisdiction. The only pleading you should file in the new State is a Motion to Dismiss for Lack of Jurisdiction. You should file no other pleadings and avoid asking the court for any other relief. Filing of other motions or enlisting the assistance of the Court in enforcing other matters may be construed as consent to the Court's jurisdiction. Unless this is your intention, then you need to be very careful in responding to any actions filed in the new state.

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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.

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