Albuquerque Divorce Lawyer Blog

In a divorce, there is always the option for early mediation if the parties are amenable. In order to decide whether or not to mediate, it is important to know the basics of mediation in a divorce setting. It is equally important to know what to expect.

Mediation in divorce is often referred to as settlement facilitation. Settlement facilitators in divorce mediations should always be very experienced in divorce law and practice. This means that the settlement facilitator will be either a highly experienced divorce attorney or even a retired family court judge. It would be both unwise and unproductive to use a mediator without significant experience in divorce law.

It should also be kept in mind that settlement facilitation requires a great deal of preparation on the part of the parties and their attorneys if the parties have any hope of having the process end with a marital settlement agreement. This means preparing the case so that the facilitator is fully informed of all the issues. What this means in practice is that the settlement facilitation should not be conducted until discovery has been completed. This in turn means that the parties should cooperate in the discovery process.

For a successful mediation/settlement facilitation, it is important that the parties cooperate in the discovery process. Discovery can be difficult, burdensome, time-consuming and even frustrating. However, it must be done. In fact, there are standard discovery request that go out in divorce and family law proceedings. The questions and the request for production of documents are standardized. They may seem overly intrusive, but they required by the courts.

Assuming the parties cooperate in discovery, and the discovery process has been completed, it is time to consider settlement facilitation. It should be kept in mind that the courts in New Mexico will order parties to settlement facilitation prior to any trial settings. There is even an opportunity for a free settlement facilitation once a year in Albuquerque's Second Judicial District during settlement week.

However, assuming the parties can afford to pay for a settlement facilitator between them, it is generally best to move forward with the settlement facilitation as soon as possible. Settlement facilitations are largely successful. However, it is important to understand what is meant by "successful."

Successful means that the parties are able to come to an agreement on all or most of their issues. This means they come to an agreement on child custody, child support, the division of property and debt, alimony, and other issues (both large and small) involved in the divorce.

It is important for the parties to both keep their expectations in check. "Successful" does not mean that you will walk away happy. It does not mean that you will get everything you want. To the contrary, it is often said that a successful mediation or settlement facilitation ends with both parties unhappy about the outcome. This may be a slight exaggeration and might be better stated that both parties must generally compromise significantly on their ideal outcome.

Having said that, the success of settlement facilitation can also be measured in other ways that, with time, will take the sting out of the initial compromise. Successful settlement first and foremost ends the marriage and with it, the divorce process. It does so in the most non-adversarial manner possible. It takes a potentially explosive situation and brings it to a close.

In so doing, settlement facilitation minimizes the stress, frustration, time and attorney fees and costs to the parties (and their children). It is the best option in most cases and should not only be considered, it should be considered as early as possible. In the end, most are very happy that did it.

Related Reading:
Settling a Divorce Case in Mediation Does Not Mean Settling Differences
Divorce and Custody Mediation in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

Parenting Plans set out all the essential terms of custody, time-sharing and child support following a divorce. There are many big issues such as custody and support.

There are also smaller, though equally important, issues such as schools, religious preferences, vacations, recreational activities, school activities, and all the other issues surrounding raising a child.

This article refers to changes to these other issues. Changes to child custody and support are each deserving of their own discussions.

In any event, any one of the many terms of a Parenting Plan may need to be modified. Many parties are able to reach agreement on these changes to the Parenting Plans with little to no conflict. Other times, the Parenting Plan can be the most difficult part of the divorce.

Whether the Parenting Plan was agreed upon amicably or whether it was court ordered after heated dispute, there may come a time that the Parenting Plan needs to be modified. The way this is done will depend upon the parties and the nature of the divorce.

In those divorces where the parties can work together, modifying the Parenting Plan is as easy as drafting up the changes and submitting the new Parenting Plan to the Court for approval. Whether or not the parties should get legal assistance in this process will depend on the circumstances. If possible, it is often beneficial to have an attorney draft the document to insure that the wishes of the parties are indeed reflected in the language.

Once the new Parenting Plan is worked out, it will be submitted to the court for approval and signature. Typically, you or your lawyer will have to arrange to get the signed order from the judge's office and take it to the clerk for filing. Some, though not all judges, will require a hearing depending on the nature of the changes.

That is the best case. Unfortunately, many parties do not have a working relationship. Many more are actively hostile toward one another. Changing the Parenting Plan in these cases will require the filing of a Motion to Modify the Parenting Plan. The Motion will set forth specifically what the party wishes to change. Equally important, the Motion must set forth the reasons for this change.

In reviewing the Motion and the Response, the Court will be looking at the best interests of the child(ren). This is the most important and often the only consideration. However, other issues related to the parties themselves may be considered. Two common examples, though there are many, include financial hardship and interference with employment associated with private schools, extracurricular activities, hobbies and the like.

In short, if you are seeking to modify the Parenting Plan, seek agreement from the other party first. If that does not work, think long and hard about why you are seeking the change. The Parenting Plan may be changed, but it will not be changed without good reason in the absence of an agreement between the parties.

Filing is the easy part. Modification of the Parenting Plan is often fiercely resisted by the other party. It is far less expensive and stressful if the parties can come to some agreement, in which case a stipulated order modifying the Parenting Plan can simply be entered with the court.

Related Reading:

Important But Often Overlooked Issues to Address in a New Mexico Parenting Plan
Common Issues with New Mexico Parenting Plans
The "Best Interests Of The Child" in New Mexico Involves Many Factors

Collins & Collins, P.C.
Attorneys at Law

The lure of social media is just too strong to resist for some. Some feel compelled to share their every thought and moment throughout the day. Not only do they share, but they do so in the most artful ways with photos, video, links, diary style entries, and the like. Remarkably, these same folks are often shocked to find that all of this is admissible in court against them in their divorce proceedings (or other legal proceedings for that matter).

For a lawyer, it's great to have such a giving and sharing individual on the other side of a court case. It is not as pleasant when it is the lawyer's own client who has basically prepared the trial notebook complete with exhibits for the other side.

Unfortunately, once all of this information is posted, there is little to do to fix it. It is a permanent record. It will always be there to be recovered by your soon to be ex and his or her attorneys (or other authorities) if they want to retrieve it. In fact, most courts will issue a court order requiring disclosure. Some courts have gone so far as to require parties to a divorce or other lawsuit to turn over passwords.

Though you cannot erase your social media (Facebook, Twitter, Google+...) history, and there could be serious consequences for even trying such as spoliation of evidence, adverse inferences, and contempt in divorce and family law court. In criminal prosectuions which come up far too often in divorce and family law cases, there might even be criminal charges for obstruction of justice for the attempted destruction of evidence.

Though the record is permanent, you can take a few simple steps to protect what little remains your privacy. Likewise, though some damage may already be done, you can stop the carnage and/or minimize the damages to your case.

Step Number 1 - Ramp Up Your Privacy Settings
There are numerous possible settings to set who all can view your page and equally important who can post to your page. This second aspect is often quite important since it is your friends (some well-meaning, others not so much) who will often post the most damaging comments, photos, videos and the like. In a divorce or other legal case, the privacy settings should be set very high.

Step number 2 - Cull Your List of Friends
Just because you have your privacy settings set high, does not mean your friends will not share your information from their own pages. If you must share with some friends, choose those friends carefully. This goes back to the beginning thought which is that once shared, social media is permanent. No matter what happens to your own account, your information is out there somewhere and trust that it can be found. Assume the worst when dealing with social media in a divorce.

Step Number 3 - Stop Posting
If you cannot stop posting completely, at least stop posting anything that might come back to bite you. Preferably, you would stop posting at all. There are actually studies showing that people would rather lose their sense of smell than the use of Facebook. So perhaps, this is asking too much. But is it asking too much to counsel against self-destruction?

Rest assured, if you cannot resist the urge to share your thoughts with the world, those thoughts will also be shared with the judge. Not only might this be humiliating in court, it can be quite damaging to the outcome of your case.

Step Number 4 - Discuss Your Sharing History with Your Attorney
This is perhaps the most important step for those who find themselves vulnerable from their liberal sharing tendencies. In short, discuss the problems candidly with your attorney. Hiding it from your attorney is the worst thing you can do. Assume that it will be found and who would you rather find it first, your attorney or your ex's?

Related Reading:
Social Networking Sites: Careful What You Post, It Can and Will be Used Against You by Your Ex!
Your Digital Trail and What it Can Mean for Your Divorce or Child Custody Dispute
The Divorce Process in New Mexico: From the Petition to the Dissolution

Collins & Collins, P.C.
Albuquerque Attorneys

Victims of domestic violence often do not know where to turn. There is often a sense of isolation and desperation. Perhaps more than this is a fear of the unknown and the related fear of whether there is anything out there that can help.

The divorce process can be quite daunting. Couple this with domestic violence and abuse, and some may choose not to act at all for fear of making their situation worse. For those, it is important to know that are protections and well established procedures for protecting victims of domestic violence.

First, and perhaps most obviously, the victim should contact the police at the time or as soon as possible after the act of domestic violence has occurred. Domestic violence is taken extremely seriously in New Mexico. If the perpetrator of domestic violence is still present, he or she will be arrested. Equally important for the safety of the victim, an order of protection will be issued by the court prohibiting contact by the defendant with the victim. Violations of the order of protection will result in immediate arrest and frequently incarceration for the duration of the criminal proceedings.

The criminal process will result in immediate relief to the victim. However, the criminal courts lack jurisdiction to address the issues involved in a divorce. One important issue that comes up immediately in these cases is possession of the community residence. The criminal courts cannot address this. However, the domestic violence divisions of the New Mexico family courts can. Though domestic violence hearing officers are also limited in the issues that they can address, they can address possession of the community residence and temporary child custody and support. Again, like the criminal courts, the most important product of these proceedings for the protection of the victim is the no contact order. Keep in mind that the Petition for Order of Protection from Domestic Abuse can be filed even if no criminal charges have been filed.

Finally, the divorce proceedings should be initiated immediately. This may seem a step too far for many victims of domestic violence who may maintain hope for the marriage. Be this as it may, filing for the divorce provides significant protections to the victim (as with any other party filing for divorce). The most important first step in the divorce process is the issuance by the court of a Temporary Domestic Order (TDO). The TDO basically freezes the status quo, meaning that the parties are prevented from doing a number of things that would harm the other party.

Keeping in mind that there is domestic violence present and domestic violence offenders are quite creative in their forms of abuse , the TDO is very important. For instance, the TDO prevents either party (i.e. the domestic violence offender) from selling assets, closing bank accounts, running up debt and other issues related to the community property and debt of the parties. Most importantly, the TDO prevents either party from relocating with the children. Specifically, the parties are prevented from taking the children out of state. Violation of this provision can result in charges of interference with custody and even parental kidnapping. These are very serious felony charges that should deter all but the most determined and malicious domestic violence offenders.

The TDO affords other protections as well. The TDO remains in place so long as the divorce proceedings are in process or until agreed upon by the parties or order of the court. They are not permanent and should a victim and offender reconcile and decide to terminate the divorce proceedings, the TDO will expire.

Rest assured, there is relief for domestic violence victims. There are many organizations throughout the State of New Mexico that provide services for victims of domestic violence. For a partial list of these services, click here: Helpful Links - Domestic Abuse/Domestic Violence. If one these organizations cannot help, they should be able to point you toward one that can. Though it may be frightening to get started in protecting yourself (and your children), if you are a victim of domestic violence, getting started is the only good option.

Related Reading:
What Does a Civil Order of Protection From Domestic Abuse Mean to You?
Domestic Abusers May Seek Control through Child Custody
Consequences of a Domestic Violence Order of Protection Under the New Mexico Family Violence Protection Act

Collins & Collins, P.C.
Albuquerque Attorneys

Mediation is commonly used in every area of the law. In fact, most courts require at least an attempt at mediation before a case can go to trial. This is no different in family law cases. In fact, mediation in divorce and family law cases is both required and highly effective.

Mediation in divorce and family law cases is in New Mexico generally referred to as settlement facilitation. Despite the use of the term settlement facilitation, it is often referred to as mediation so we will stick with that term here. Mediation in family courts, and in larger civil court cases, is a little bit different than what some may envision as mediation.

The goal of mediation in family law cases is to settle the case. Settling a case in family law is very different than settling differences in other mediation contexts. Some might view this as a weakness. For the most part, experienced family law attorneys view it as a strength since it leads a settlement of the case. On the other hand,, settling differences in a divorce case is often impossible and only gets in the way of settling the case.

Because the goal is to settle the case, one big difference in family law cases versus other mediation settings is that mediator/settlement facilitator is almost always a highly experienced family law attorney or retired judge with family court experience. This is similar to the State and Federal District Courts in other civil litigation where the mediators are very experienced in the area of law that is in dispute.

This is often not just extremely helpful in getting the case settled, it is essential. Divorce and family law cases are fraught with highly emotional issues. They often touch on all the hot family law topics such child custody, child support, division of income, division of property and debt, and other emotionally charged issues. Settling the case is difficult enough with all these issues. Settling differences is near impossible and the attempt alone will prevent settlement of the case

An experienced divorce and family law attorney or retired judge will keep the discussions on task. They will attempt and are often highly effective at keeping the emotional issues at bay. This is almost the exact opposite of traditional mediation where the parties are encouraged to voice their feelings, albeit in a restrained and diplomatic manner.

In a divorce case, settlement facilitation is not the place for folks to voice their feelings. The feelings have no doubt already been sufficiently voiced in the past. There is no need to rehash them in settlement facilitation. If you want to watch a mediation explode, allow one party to start bringing up the many shortcomings of the other party.

An experienced settlement facilitator will keep the parties on task. How do they do this? It gets back to their extensive experience in family law. They literally lay down the law. They vocally and sometimes forcefully explain when one party or the other is asking for something that he or she cannot possibly expect to get in court.

In short, they keep the parties focused on likely court outcomes should the case go to trial. Only an experienced facilitator can do this. After all, you cannot lay down the law if you don't know the law. Moreover, most people rightfully place little weight on what the other attorney has to say about what is going to happen in court.

Knowledge of the law and trust in the messenger is very important both for the facilitator and the parties. Without a thorough knowledge of the law and what to expect in court, it would be not only difficult but exceedingly unwise to settle the marital claims. And this again is why everyone has gathered for the mediation.

Related Reading:
Settlement Facilitation in New Mexico Divorce Cases: Not Only Productive but Generally Required!
New Mexico Marital Settlement Agreement is Final, Binding and Very Hard to Modify
Legal Counsel or Not, New Mexico Marital Settlement Agreements are Typically Final!

Collins & Collins, P.C.
Albuquerque Attorneys

It is pretty well established that financial problems and stresses are one of the chief causes of divorce. In many cases, the financial issues are caused by both spouses. In others, it is only one of the spouses that is running up the debt of the family.

Community Property Means Community Debt
Many falsely assume that filing for divorce will stop the other spouse from continuing to accrue debt to the family. Because New Mexico is a community property state, this means that the innocent party will suffer the consequences of the financial irresponsibility of the other spouse unless he or she does something to protect him or herself.

When a divorce is filed in New Mexico, a Temporary Domestic Order (TDO) is entered. One thing the TDO is meant to do is to protect the spouses financially. The TDO basically orders the parties to maintain the status quo. For purposes of finances, this means neither party will run up the debt or begin exhausting or moving assets.

Though it does prohibit the parties from running run up debt, it does not provide much real protection to the innocent spouse where the other simply cannot control his or her spending. The innocent spouse is likely equally liable for the debt since it was incurred during the marriage. Worse yet, even if Marital Settlement Agreement or other court order allocates the debt to one or the other parties, it is not binding on third party creditors.

Though it can apply to any community debt, the problem comes up most frequently with credit card debt. As such, credit cards will be the focus though the same concepts would apply to other debt.

Terms of Divorce Not Binding on Creditors
Again, neither a court order nor Marital Settlement Agreement is binding on credit card companies. Though both may be enforced by the court in theory, actual enforcement of provisions can be very difficult and time consuming. It can take months to even get to court the first time and unfortunately these issues are rarely resolved if at all at the first hearing. As such, it can also be quite expensive in terms of attorney fees and costs. This is unfortunate since this is perhaps the worst possible time for incurring new expenses for the innocent spouse.

Steps to Protect the Innocent Spouse
Though the innocent spouse cannot really completely protect him or herself from community debt incurred prior to filing for divorce, there are some simple steps to protect against additional financial bleeding.

First, if possible, cancel the credit cards. This sounds easy enough. But remember the TDO which may disallow it. Therefore, it is best to get a court order to this effect.

At the very least, you should put the credit card company on notice in writing delivered by certified mail and faxed so there is a transmission report. Make it clear that you are no longer financially responsible for the card and that you want your name off the card. Insist on a written response and be persistent in getting one.

If neither of these options solves the problem, you may need to file for bifurcation of the divorce proceedings. This means splitting the divorce up by immediately issuing the divorce while continuing to resolve the financial issues.

There are not a whole lot of good reasons for seeking a legal separation instead of divorce. This is one good reason. If none of the above is available, then you may need to file for legal separation which will end the community property status of the marriage. This will prevent any new debt being incurred against the community following the final order of legal separation.

Act Quickly!
These are difficult issues to address. They need to be addressed quickly and decisively where present. Recovering from a divorce can be difficult in many ways. The debt run by your spouse following the filing for divorce does not have to be among them.

Related Reading:
Community Debt After Divorce - Few Remedies to Protect Yourself After the Fact!
Division of New Mexico Community Property: Agreement on Method Can be the First Hurdle
A Division of Community Debt in Divorce Proceedings Provides Little Relief from Creditors

Collins & Collins, P.C.
Albuquerque Attorneys

Legal separations are recognized and available in the state of New Mexico. Thus, an action for legal separation may be filed whenever both spouses have permanently and physically separated from each other.

It is not uncommon for people to want a legal separation rather than a divorce. The thought of the permanency of a divorce is often difficult and people prefer to ease into it or to use a trial separation to decide whether or not to move toward divorce. Keep in mind that there are a few good reasons for wanting a legal separation rather than a divorce. Wanting to ease into the divorce is not typically one of them.

Disadvantages of Legal Separation

There are several drawbacks to a legal separation. First, most important perhaps, you should be mindful that a legal separation does not free you or your spouse such that you will be able to marry another person. Second, the legal separation process can take the same amount time, involve the same level of stress, require a comparable number of court hearings and most importantly entail the same level of attorney fees and costs as a divorce. So it is important to have reasonable expectations regarding the processes of legal separation as well as the outcomes and benefit.

Related to the last point, all of the issues that are determined in a divorce are determined in a legal separation, and either spouse may start proceedings in the district court for the determination of those various issues, such as custody, child and spousal support, and division of property and debt. Like a divorce, a legal separation can also be reached by settlement. A legal separation agreement is a written agreement that describes your rights and settles the above-mentioned issues along with any other issues deemed important to the parties.

On the whole, legal separations are the same in all aspect to a divorce, with a few exceptions. For instance, the marriage is not terminated. There are different names for the documents that will be used in this situation: for example, there is the petition that is filed with the court, which is called a "verified petition for legal separation," and the final decree that is issued by the court is called a "final decree of legal separation."

Advantages of Legal Separation

People get legally separated rather than divorced for many reasons, including religion or the need for maintaining marriage benefits that would be lost upon a divorce. There are also situations where one or both parties wish to separate their assets and liabilities. The emphasis is on liabilities and debt. This is not too uncommon and can arise in many situations where one party is running up significant debt to the detriment of the other. Keep in mind that the division of debt is prospective, and not retroactive. This means that the parties are equally responsible under the community property laws of New Mexico for debt incurred prior to the legal separation.

Know and Understand Your Options!

These are valid reasons for a legal separation. Easing in to the divorce or using the legal separation to decide whether to seek a divorce is not. If you are considering a divorce or legal separation, it is important to discuss your situation with an attorney experienced in New Mexico family law. Knowing and understanding your options can save a lot of time, stress and legal expense associated with making an uninformed decision.

Related Reading:
Common Misconceptions About Legal Separation in New Mexico
New Mexico Community Property Laws: Community Versus Separate Property
New Mexico Community Property Laws: Community Versus Separate Debt

Collins & Collins, P.C.
Albuquerque Attorneys

Any court order addressing custody should include some sort of parenting plan. This is especially important in states like New Mexico where joint custody is preferred because a parenting plan provides an outline of how parents will make decisions about and share time with their child. A detailed and comprehensive parenting plan can also help alleviate conflict between parents and relieve the stress on a child by providing predictability. While most people remember to include the basics of raising the child in their parenting plan, like days and times for exchanges and payment of child support, there are some issues that tend to be forgotten, but that are also important.

Visitors
Parents may wish to include rules about visitors in their parenting plan. The parenting plan may simply state that the custodial parent should use proper judgment before bringing visitors into the home while the child is there. This situation puts trust in the custodial parent, without requiring them to jump through hoops to have visitors. The parenting plan may also include provisions about overnight guests and address issues concerning a parent's significant other. It is important to remember that the parenting plan should be focuses on what is in the best interest of the child and should not be used as a method to antagonize the other parent.

Extracurricular Activities
Many children are involved in extracurricular activities, which can be a great source of enrichment for the child. But they can also pose a number of questions to be answered by a parenting plan. First, some parents may not wish their child participate in certain activities; the parenting plan should name what activities are currently agreed upon and provide instructions for how parents will deal with choosing future activities. Second, the parenting plan can address how the costs of these activities are divided between parents. While some activities are fairly inexpensive, others such as playing a musical instrument or competitive sports can be very costly. Finally, depending on the relationship between parents, attendance at sporting events, concerts and other public events may need to be addressed. If the parents are unable to attend the events at the same time in a civil manner, they may need to split the events so that each can attend.

Cell Phones and Internet
One newer issue becoming more and more important is that of cell phones and internet usage. A parenting plan can address the age at which a child may have a cell phone, in what manner they may use it (for example, only in emergencies or only to call family), and how will the monthly cell phone bill will be paid. Similarly, a parenting plan can address a child's internet usage. Many parents are concerned about their child's usage of social media websites, and the parenting plan can discuss at what age the child is able to use such sites and what manner of monitoring the parents will do.

Religion
The parenting plan should address what religion, if any, the child will practice and what that practice entails. Some religious practices are very involved and can include attending services or classes multiple times per week, which can infringe on a parent's timesharing with the child. Further, when parents follow different religious practices, it can be confusing for a child and parenting plan should address how to ease that tension.

As any parent knows, there are a myriad of decisions to make in order to raise a child. Even the most thorough parenting plan cannot answer all of those questions. However, taking the time to really think about potential parenting issues and what is in a child's best interest can make a parenting plan an extremely effective tool for co-parenting. Working with an experienced family law attorney can help ensure that the parenting plan addresses as many potential issues as possible while still complying with the law.

Related Reading:
Common Issues with New Mexico Parenting Plans
The Basics of New Mexico Child Custody Jurisdiction
Custodial Interference in New Mexico Divorce & Family Law Cases

Collins & Collins, P.C.
Albuquerque Attorneys

Complex child custody disputes involve more than just arguments over holiday timesharing and times for exchanges. These types of disputes often involve allegations that the bond between a child and parent is irrevocably broken or was never properly formed in the first place. Further, one parent may object to a proposed timesharing schedule because it will interfere with creating or maintaining an existing bond.

In New Mexico, such allegations are usually investigated by a custody evaluator, or other mental health professional who reports back to the judge presiding over the custody dispute. And one of the common psychological theories investigated by custody evaluators is called attachment theory.

In this context, attachment describes an affectional bond between two individuals. Between a child and a caregiver, the bond is based on the child's need for safety, security and protection. Attachment theory proposes that a child attaches instinctively to a caregiver, or multiple caregivers, out of a need for survival.

According to attachment theory, infants will form an attachment to any consistent caregiver who sensitively and responsively attends to their needs and interacts with them. While the biological mother is often the focus of an infant's attachment, the role can belong to anyone that behaves in a caregiving way over a period of time, which can include fathers or other caregivers.

The purpose of the attachment behavior from the child's perspective is to keep the caregiver in close proximity. By the age of only two months, an infant can start to distinguish between adults and become more responsive to their caregivers. By the age of six months, an infant's behavior will be directed at ensuring that caregivers make the child feel secure. Anxiety, fear, illness and fatigue will cause the child to exhibit stronger attachment behavior.

The challenge in a divorce, or other parental separation, is maintaining the child-parent attachments after that separation. For example, a situation where a child goes from living with both parents to living primarily with their mother and having limited time with their father can be jarring for a child who has become used to seeing his or her father every day.

Thus, experts recommend that parenting schedules for children younger than two or three should focus on ensuring continuity and security for the child and allowing frequent contact with both parents. As the child gets older, they may be able to handle longer periods of time away from each parent, but it is important that both parents still have opportunities for social interactions and nurturing activities, including soothing hurts and anxieties, bedtime rituals, comforting in the middle of the night and the security of snuggling in the morning after awakening.

Unfortunately, in some cases, parents were not willing or able to form an attachment with their child when the child was young and want to begin doing so when the child is older. Such a situation can be incredibly complicated.

Experts generally agree that careful reintegration with the help of one or more treating professionals is necessary to build a relationship between the parent and child. Even with that help, a child may not form a traditional parental attachment to the formerly absent parent, but may be able to form a healthy relationship as they would with other adults in their lives.

Attachment problems are just one of the myriad complications that arise in a custody dispute. Consulting an experienced family law attorney can help parents identify these complications and investigate solutions that work within the legal system.

Related Reading:
Reunification Therapy in New Mexico Child Custody Cases
The "Best Interests Of The Child" in New Mexico Involves Many Factors
Estrangement via Parental Alienation

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico, both parents are legally required to provide financial support for their children. When child support is ordered as part of a divorce or child custody dispute, one parent is typically required to make child support payments until their child turns eighteen (18), or until they are nineteen (19) if the child is still in high school. Depending on the timing of the child support order, parents can be paying child support for a very long time.

Given the substantial financial implications of a child support obligation, to both parents and their children, some parents choose to obtain life insurance policies that will pay their support obligation

style in the unfortunate even that a parent dies before their child turns eighteen (18). In some cases, the court may actually order a parent to obtain a life insurance policy and to maintain that policy until their child support obligation is completely satisfied.

Life insurance policies are available from a number of different places. Some employers offer life insurance to employees as a standard benefit. An employer-provided life insurance plan may not be sufficient to cover a child support obligation because they tend to have fairly low policy limits. However, employer-provided plans typically allow employees purchase additional coverage through the group plan. The major benefit of purchasing through a group plan is that it may not require completion of a medical examination, provided that the coverage stays under a certain amount.

Parents may also apply to purchase an individual life insurance policy directly from an insurance company. Insurance companies provide full life and term life insurance, and will offer significantly varied amounts of coverage. The insurance company will require a physical examination with a doctor or nurse, so that they can assess the health of the applicant. Any health conditions, along with smoking, will increase the cost of life insurance. Additionally, the cost of life insurance will vary depending upon the age and lifestyle of the insured person.

Once they have obtained life insurance coverage, parents may have several options for choosing the policy's beneficiary. The simple, direct approach is to name the child as the beneficiary of the life insurance policy. The problem with this approach is that it may provide a large lump sum to a child under the age of eighteen (18). Generally, a guardian will need to be appointed to administer the funds on behalf of the child. Then at age eighteen (18), the account must be given to the child outright. In the alternative, a trust fund could be set up and a trustee appointed to administer the life insurance funds. Or, the parent obtaining the life insurance policy may name the other parent as the beneficiary of the policy, which means that any proceeds would go directly to the other parent.

Given how unpredictable life can be, parents should carefully consider the options available for securing child support obligations. Life insurance can be expensive, but can provide both parents with an invaluable level of peace of mind knowing that their child will always be supported. Consulting with an experienced family law attorney is essential in any child support action so that parents on either side can understand their options for securing a child support obligation with a life insurance policy.

Related Reading:
Loss of Income and New Mexico Child Support
The Dangers of Not Documenting Child Support Payments
New Mexico Child Support Enforcement: CSED Enforcement/ Collection Methods

Collins & Collins, P.C.
Albuquerque Attorneys

An unfortunate result of many divorces or child custody disputes is that children develop negative feelings toward one, or in extreme cases, both parents. These negative feelings can arise for a variety of reasons, which may or may not be the result of any intentional action by the estranged parent, but nonetheless can damage the relationship between a parent and their child. Often these negative feelings can be dealt with by simply making an effort to sit down with the child and discussing their feelings or making sure that they get a little extra TLC. However, in more serious cases, the parent-child relationship is completely broken and the child may not want to have anything to do with the estranged parent.

The New Mexico courts have long held that, generally, is in a child's best interest to have a relationship with both parents. Accordingly, in situations where a child's relationship with a parent has broken down, the courts will often look for opportunities for the parent to repair that relationship. Reunification therapy is one such opportunity and the courts may order one or both parents to participate in such therapy with their children. The goal of reunification therapy is to mend the relationship between a child and parent by identifying the stressors that caused the relationship to break down in the first place. Reunification therapy identifies the factors that led to the estrangement, and helps the child and parent work on communication, trust, and resentment issues.

Either parent can petition the court to order reunification therapy or the court may do so on its own. The court order mandating reunification therapy should discuss: the court's goals in ordering treatment; expectations of cooperation by both parents; the discretion given to the therapist to set treatment; and, who will pay the therapist's fee and expenses. The court order should also ensure that any pertinent records, medical or other, be released to the reunification therapist.

Before reunification therapy begins, it is important that all parties understand the process and implications of the treatment. For one thing, parents and children need to understand that their treatment is not confidential. The reunification therapist is often expected to report any findings, progress, or obstacles to the court.

A reunification therapist will typically meet with the parent and child individually before meeting with them together. In some cases, the estranged parent may be ordered to undergo individual therapy for any drug, anger or other issues that may be hindering their relationship with the child.

Once the parent has completed treatment and safe contact with the child is a possibility, the joint sessions may begin. Or, if it is deemed safe for the child, the estranged parent may be engaged in individual therapy while also having joint sessions with the child and the reunification therapist.

Child-parent relationships are difficult, especially when there has been an estrangement due to a divorce or abandonment. While reunification therapy may be helpful to some, it may not help others. And in some cases, such as extreme abuse or a long history of a parent refusing to comply with court orders, the court may not find that reunification is in a child's best interests.

Parents who want to repair their relationship with their child may face a long and arduous journey where they will be expected to work hard towards reconciliation; all while being supervised by the court. Working with an experienced family law attorney can help parents understand and navigate the legal system and how it intersects with world of mental health professionals and their numerous therapeutic techniques, including reunification therapy.

Related Reading:

Domestic Abusers May Seek Control through Child Custody
Custodial Interference in New Mexico Divorce & Family Law Cases
The "Best Interests Of The Child" in New Mexico Involves Many Factors

Collins & Collins, P.C.
Albuquerque Attorneys

The New Mexico Family Violence Protection Act ("the Act") gives courts wide discretion in providing relief for victims of domestic violence in the form of a civil order of protection. Beyond provisions to ensure the physical safety of domestic abuse victims, the Act also allows courts to provide for the economic needs of domestic violence victims and their dependents.

An order of protection is a form of restraining order that directs the abuser (who is called the restrained party) to refrain from further abuse of, or contact with, the victim (who is called the protected party). Depending on the circumstances, the order of protection may also prevent the restrained party from having any contact with other members of the protected party's household, including their children.

Section 40-13-5(A) (3) of the Act allows a court to order a restrained party not to initiate any form of contact with the protected party, which includes face-to-face, telephonic, mail, email or Facebook contact, as well as attempt to reach the protected party through a third person. Any such contact constitutes a violation of the order of protection, which is a crime. The only way contact will be allowed is if the protected party dismisses the order of protection or order of protection expires and is not renewed.

The order of protection also prevents the restrained party from possessing a firearm pursuant to 18 USC § 922(g)(8) and may order the retrained party to get mental health treatment to address their abusive behavior, or substance abuse treatment if the court feels that drug or alcohol use was a factor in the abuse.

If the parties share a household, then the order of protection may include provisions to allow the restrained party to retrieve property from the shared residence with supervision by law enforcement. An order to vacate will often order the defendant to surrender keys and authorize the protected party to change the locks in order to prevent the restrained party from re-entering the home or damaging any property within the home. The court may also order the restrained party not to do anything else to interfere with the protected party's residence in the home like shutting off the utilities or discontinuing mail service.

If the parties have children together, section 40-13-5(A) (2) of the Act allows the court to award either party temporary custody of children and to provide for visitation and child support. The main consideration when awarding child custody, time-sharing, and child support will be the best interests of the children, which may include balancing the safety of the children and the protected party with protecting the parental relationship between the restrained party and their children.

It is important to remember that orders of protection not only bind the restrained party, but the protected party as well. For example, if a protected party seeks out contact with a restrained party, then those actions may result in the dismissal of the order of protection or the entry of a counter-order of protection against the protected party. The terms of the order of protection also bind law enforcement because it may require them to serve notice, arrest restrained parties for violations of the order, assist with orders to vacate, and implement standby procedures.

Depending on the facts of any domestic violence situation, an order of protection may have a very broad scope. It is important that both the restrained party and the protected party understand the terms of the order of protection, along with their rights and responsibilities. For this reason, it is always advisable for both parties to speak with an experienced family law attorney when dealing with an order of protection under the Family Violence Protection Act.

Related Reading:
A New Mexico Order Of Protection is Only Effective If Consistently Enforced
Violence Against Women Act Reauthorized By The U.S. Senate
Objections to Domestic Violence Order of Protection
Two Sides to Every Story: Mutual Orders of Protection in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

Clients often begin representation assuming that, when a couple is divorced, the husband will automatically pay the wife child support, and in some cases, alimony, which is in New Mexico is often called spousal support. The logic behind this belief is quite simple.

Historically, the husband was typically the "bread winner" or "provider" of the family and was routinely relied upon to provide the financial support for his family. This responsibility generally continued through divorce proceedings in the form of child support and alimony payments to the wife. However, as more and more women have entered the workforce during the past few decades, more and more wives have to pay child support and, at times, alimony after a divorce.

In New Mexico, child support is statutorily mandated and is based on the gross incomes of the parties, among other things. Therefore, the more income a woman makes, the more likely it becomes that she may have to pay child support to her former husband. In contrast, alimony is not mandatory in New Mexico, but rather is based on a set of factors which are set forth in the , including but not limited to, the length of the marriage and the age and ability of the parties. These Alimony Guidelines created in the Second Judicial District (Albuquerque) largely set forth the factors and calculation of alimony in New Mexico.

In some cases, alimony is awarded to pay for the cost of education or training for a spouse that has been out of the workforce during the marriage so that that spouse can become gainfully employed down the road. As an increasing number of husbands have stayed home to take care of children while wives worked, it has become more likely that a woman may have to pay alimony to help their former husband get back into the workforce. The award of alimony in these cases will also reflect the disparity of income between the parties.

A recent nationwide survey of divorce attorneys conducted by the American Academy of Matrimonial Lawyers found that the traditional notion of husbands always paying child support and alimony no longer holds true. More women are paying alimony and child support than ever before. In fact, fifty-six percent (56%) of the divorce attorneys that responded to the survey reported that they have seen an increase in the number of women paying child support, and forty-seven percent (47%) of the attorneys polled reported an increase in the number of women paying alimony to their former husbands.

And, the primary reason for this shift can be explained by the changing role of women in the workforce. Since 1980, the number of women obtaining professional degrees in law and medicine and holding high paying corporate positions has skyrocketed. These women are now earning more than their spouses and becoming the family breadwinners. During this same period of time, the number of marriages ending in divorce has remained relatively constant with about half of all marriages ending in divorce. Thus, the legal guidelines that determine who pays child support and alimony, and how much is paid, now often compel these highly educated and highly paid women to make the payments.

Obviously a divorcing spouse usually wants to minimize their financial obligations to their former spouse after a break-up. However, it is important to understand the changing dynamics of these issues and the way that custody and alimony payments may be decided in each individual case. An experienced divorce attorney can help explain these dynamics and the potential child support and alimony obligations inherent in a modern divorce.

Related Reading:
Calculation of Gross Income for New Mexico Child Support Worksheets
New Mexico Alimony: Til Death Do Us Part!
Three Basic Classifications of Support in a New Mexico Divorce

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico, the courts are required to address child support in any divorce involving minor children, or other determination of custody. The amount of child support is calculated based upon the income of the parents, specific child-related expenses, and the parents' custody arrangement using what are called child support worksheets. The payment of child support is mandatory and only in rare cases will a court deviate from the amount of child support due based on the child support worksheets.

Further, New Mexico law provides that child support payments should be made via wage withholding. The wage withholding order tells the employer of the parent ordered to pay support to take the child support payments directly out of the employee's paycheck as they would any other payroll deduction and to send the funds directly to the New Mexico Child Support Enforcement Division (CSED), or in some cases, directly to the parent receiving the child support.

The wage withholding order must state the amount of the child support payment as well as the length of time that support payments are to be made. The wage withholding order must also include the amount of any arrearage or back support due up until the day of the child support order along with the amount of any interest due on the arrearage. It is important to note that the maximum amount that may be withheld, along with any other wage garnishments, may not exceed fifty percent (50%) of the employee's income.

The court may make an exception to immediate wage withholding if it finds that there is good cause for not ordering immediate wage withholding or if the parents enter into a written agreement providing for an alternative way of satisfying the child support obligation.

Given that immediate wage withholding of child support payments is generally required under New Mexico law, the entry of a wage withholding order should not be viewed in a negative light by either the parents or the employer. In fact just the opposite is true. Wage withholding orders generally benefit both parents because it provides a means of tracking child support payments while ensuring that support payments are made promptly each month.

When a parent does not have regular employment, wage withholding may not be possible. Nonetheless, the parent ordered to make child support payment is still required to make the payments on time each month to either the receiving parent or to CSED. If the parent fails to make the payments CSED has many tools available to ensure that delinquent child support payments are collected, which includes everything from suspending the non-paying parent's driver's license to seizing their bank accounts and tax refunds.

Anyone looking at paying or receiving child support should discuss their rights and responsibilities with an experienced family law attorney, not only to ensure that the proper amount is being paid but to make sure that the payment is made in the most efficient way possible.

Related Reading:
New Mexico Child Support Enforcement: CSED Enforcement/ Collection Methods
The Dangers of Not Documenting Child Support Payments
Child Support Wage Withholding Benefits All!

Collins & Collins, P.C.
Albuquerque Attorneys

Imagine spending your life savings on legal expenses to regain possession of a pet after a breakup. Well, that is exactly what some are prepared to do to maintain possession or custody over the family pet. Though this may seem extreme to some. It is not for dedicated pet owners who view the pet as a family member.

Pet custody battles may become more common as the underlying circumstances are becoming much more common as pet ownership increases. According to the 2011-2012 National Pet Owners Survey, 62% of the households in the United States own a pet. Because these companion animals are often considered members of the family, deciding who their ultimate owner should be after a breakup or divorce can be quite contentious just as high conflict child custody battles often become.

While the public's view of pets has evolved beyond mere property interests, the law continues to treat animals as exactly that--no different than furniture, vehicles, or other innate objects. In the event of a breakup, the legal owner of the pet can rightfully retain possession and the other party is left with little recourse. Similarly, during a divorce, the court does not hold custody proceedings or discuss visitation for the couple's pets. Instead, pets are addressed in the property settlement.

As a community property state, New Mexico distributes a couple's marital assets equally between the two parties. While the distribution of physical property is generally straightforward, allocation of a pet can be very difficult because its value to the parties is much more than monetary, yet the "best interest" standard applied to child custody does not necessarily apply to pets.

Unless, it is clear that one party owned the pet prior to the marriage, the question over who keeps the pet can become very contentious. Unfortunately, divorces are inherently antagonistic, and a dispute over a beloved pet can act as a conduit by which all disagreement between the parties is funneled.

Recognizing the need for a more holistic approach to these difficult questions, some courts are beginning to decide pet-related issues based on principles utilized in child custody proceedings. Although still uncommon, these courts ignore the long-standing distinction and delve into largely subjective issues--asking who the primary caregiver is, who can best meet the animal's needs, who has a stronger emotional bond, etc. However, such an approach is certainly not the standard and parties to a divorce or separation should not expect all courts to devote the same time and attention to deciding which party keeps a pet as they do devote to determining child custody issues.

Once entangled in a divorce or even a breakup, deciding who gets possession of your pets will become much more complicated and emotionally charged. In order to avoid added stress, these issues should be discussed and addressed well in advance. Whether you are considering buying a pet with your significant other or want to include pet ownership terms in your prenuptial agreement, consulting an experienced family law attorney can help you explore your options. In the event that a dispute arises, a legal professional can explain the best strategies to ensure your interest in your pet are protected to the degree possible throughout the break-up.

Related Reading:
Breaking Up In New Mexico May Be Harder Than Getting a Divorce
The Hight Cost of Conflict in Divorce

Collins & Collins, P.C.
Albuquerque Attorneys