Albuquerque Divorce Lawyer Blog

Most parents want to support their children and provide as much as possible for them. In fact, New Mexico law imposes a duty on both parents to do just that. However, the negative feelings and financial damage caused by a divorce or child custody battle make the issue of child support pretty tricky. Here are some tips to help:

• Pay on Time. This can be hard to do when money is tight, but the parent receiving child support is often counting on the support payment to pay rent or other expenses for the children. Paying on time not only benefits the children by making sure that they have food and a roof over their heads, but it helps prevent additional conflict between parents. Moreover, there are few things that escalate conflict in child custody cases more than financial stress. And this leads to court hearings. And hearings lead to all manner of burdens and expenses. The burdens of attorney fees, court costs, potential sanctions and even jail time for failure to pay on time will far outweigh the temporary relief of putting off a child support payment.

• Pay by Check. It is essential that child support payments are made using a traceable method of payment so that the paying party always gets credit for the payments made. It happens so frequently that it is almost to be expected that any undocumented payments will be disputed by the receiving parent. Parents often believe that a money order is traceable because it is not cash, but that trace is often difficult, if not, impossible, depending on where the money order is purchased. If a parent must pay in cash or with a money order, he or she should make sure they get a receipt signed by both parties that acknowledges the amount of the payment received and the date of receipt.

• Consider Wage Withholding. A wage withholding order instructs a parent's employer to deduct the child support payment from the parent's paycheck and send it directly to the parent receiving support, or sometimes to a state agency like the child support enforcement division. Parents often resist the entry of a wage withholding order, but it can be very helpful to both parents because it ensures that the support payment is made on time. Just as important, it creates an indisputable record of all child support payments. The orders can also be structured to spread the payment over the month by taking part from each paycheck, which can help the paying parent budget appropriately.

• Exchange Income Information. The child support statute allows either parent to request updated income information from the other one time each year in order to determine whether or not child support should be modified. Parents can exercise that right each year by making the information request in writing after April so that the other parent should have current tax information available.

• File for Modification. Child support can be modified any time there has been a material and substantial change in circumstances, which can include a major change in timesharing, the emancipation of a child, and/or a large increase or decrease in income for either parent. However, that change is only effective once a new court order is entered, which means that a parent seeking a modification needs to file a motion asking the Court to modify child support as soon as a change has taken place. Unilateral changes to child support without a court order can lead to very serious consequences no matter the basis for the change.

Child support and child custody issues can be quite stressful for all concerned. There is enormous potential for high levels of conflict. With rising levels of conflict comes attorney fees which may in fact be dwarfed by the costs associated with the appointment counselors, court appointed experts, guardian ad litems, and other professionals associated with the conflict. Avoid this conflict if possible by paying in full on time and in verifiable manner. If you are financially unable to do so, then go to court immediately to address the hardship with the court.

Collins & Collins, P.C.
Albuquerque Attorneys

Child custody and time-sharing disputes can be extremely contentious. One common flashpoint is the child custody exchange. There are a number of common sense things the parents can do to avoid escalating conflict that often builds over time with custody exchanges. There are also a number of things that parents should not do during the exchange. Here are the top ten that we came up with:

1. Do NOT arrive late to pick up your children. This may seem obvious, but what can seem like a few harmless minutes to one parent can really upset the other parent and, in turn, the children. Always leave extra time to ensure that you will get to the pick location on time.

2. Do NOT make last minute changes. This goes along with being on-time and shows a general respect for the other parent and allows everyone to know what to expect. While it may seem like a simple change to have the other parent meet you at the store, rather than their house as regularly scheduled, such a change may really disrupt the other parent's plans, which in turn causes the children stress.

3. Do NOT discuss other issues at exchanges. Exchanging your children can be a difficult, tension filled process for both parents and children. Do not add to that tension by bringing up other issues like child support or a request to change timesharing at the exchange, save those discussions for a telephone call or e-mail exchange with the other parent.

4. Do NOT arrive unprepared. Bring children to an exchange with all the items they will need for their time with the other parent, this includes homework, sports equipment, clothes etc. This preparation helps limit stress on children because they have what they need and limits hysterical phone calls between parents looking for a soccer uniform twenty minutes before the game is scheduled to start.

5. Do NOT bring dates or random people to exchanges. As noted above, exchanges can be really stressful for parents and children alike, especially after a recent divorce or separation. Bringing a date may upset the other parent unnecessarily and bringing any other person may distract you from focusing on your children who need your full attention.

6. Do NOT go alone where domestic violence is an issue. (the exception to Number 5). If you and your ex have a history of domestic violence or accusations of domestic violence, it may be a good idea to bring a third party with you to exchanges to act as witness, which often helps everyone behave. Think carefully about the person you bring; it needs to be someone your children are comfortable with and who will not upset your ex. And remember, this person's job is just to observe not to create or participate in drama between parents.

7. Do NOT discuss adult issues with the children. When your son or daughter gets in the car at an exchange without a coat in the middle of winter, this may upset you. However, do not use that time to make comments about your ex (i.e. "I guess your father is too busy to bring your coat" or "Doesn't your mother know how to dress you properly?") to your children. Such concerns need to be addressed between parents outside the earshot of children. Involving children in adult issues makes them feel torn between parents and, in the long run, can cause severe emotional harm.

8. Do NOT make your children the intermediary. Parents get separated for a reason and they often want as little to do with each as possible, which is why it can be tempting to have your children give the other parent messages for you. Never do this. A child's job is to be a child, not to run interference between feuding parents. Not only is such message sending stressful for the children, it is a really ineffective way to communicate information and will often lead to misunderstandings that cause bigger problems.

9. Do NOT be stubborn. While both parents' time with their children is important and it is essential that each parent respect that, life still happens. Be flexible about rescheduling visits to accommodate family vacations and work conflicts with the other parent. Or if exchange times need to be rearranged to accommodate your children's music lessons, work with the other parent.

10. Do NOT bring law enforcement to exchanges. It is not the job of the police or sheriff's department to enforce family law orders. Aside from escalating conflict between parents, the presence of law enforcement can really upset children who often associate law enforcement with someone being in trouble or some sort of emergency. Surrounding exchanges with such negative connotations can cause children a lot of anxiety and even fear about exchanges.

Collins & Collins, P.C.
Albuquerque Attorneys

Being involved in a family law matter, whether it is a divorce or child custody dispute, can be incredibly stressful. The best way to minimize that stress is to resolve the outstanding issues with minimal court time. But when one or both parties are unwilling to reach agreements then court time cannot be avoided.

Most parties tend to focus on the specific facts of their case and how the law applies, which is clearly important. However, another essential element of any court appearance is how the parties and their attorneys conduct themselves. This general advice about how parties should conduct themselves in Court applies to every kind of legal matter from divorce and custody issues to criminal charges to commercial litigation. However, it seems the issue of conduct and decorum most often arises in family law court where both the parties, and on occasion, the lawyers get caught up in the emotion of the case.

As a preliminary matter, everyone should arrive at the courthouse early and at least attempt to confer with the opposing party and/or their counsel. Sometimes the Court will specifically order the parties to arrive at a hearing thirty minutes early in order to meet and confer, but even if the parties are not ordered to arrive early it is a good idea to do so. Many issues, and sometimes whole cases, have been resolved outside the courtroom just before a hearing.

Even if the parties can't resolve their issues, most judges appreciate that the parties tried to do so. Further, being late can result in the hearing being cancelled and reset, or in extreme circumstances, with the Court issuing a default or order of contempt against the party that is not there on time. Arriving promptly for all hearings and trials also shows the Court that the parties respect the authority of the Court.

And, whether or not it should matter, how the parties look is also important. Some Courts have specific dress codes that do not allow parties to wear clothing items like hats, torn jeans or short skirts to Court. Generally speaking, parties should wear clothing that would be appropriate for a business meeting or church gathering.

In addition to showing up and showing up on time, manners and respect for the Court and the process are very important. To begin, the parties should stand when the Judge enters and leaves the courtroom and should address the Judge as "Your Honor." Respect and courtesy in Court is important. Without such respect and courtesy, the hearings can quickly get out of hand.

Perhaps most importantly, beyond basic courtesies, the parties should conduct themselves appropriately any time they are before the Court. This includes things like not speaking out of turn, particularly when this involves interrupting the judge. Judges, like everyone else, do not like being interrupted. These interruptions cause undue delay, prolong hearings, escalate hostility and are very rarely insightful in any event.

The parties should refrain from using foul language. Likewise, the parties should not shout at one another, either of the attorneys, witnesses, and most certainly not the judge. The parties should refrain from arguing with the Judge or giving other confrontational non-verbal cues like rolling their eyes when the Judge, or the other party, speaks.

For the most part, these common sense courtesies should really go without saying but unfortunately, the lack of basic civility is all too common in family court. Due to the emotion, and the fact that this may be the one and only time the parties have ever been in court, they often misconstrue the purpose, the nature and the process. Parties far too often see the court hearing as a debate, a platform or some kind of cathartic release.

It is not. It is no more acceptable in court than outside. Unlike occasions outside the court, the judge has contempt powers which means a party can be arrested and taken into custody for misbehavior. This is relatively rare. What is much more common is that the behavior will alienate the judge. And this is something one does not want to do!

Part of an attorney's job is to try to manage their clients' behavior in front of the Judge so that the Judge sees that party in the most positive light possible. While such good behavior might not actually give one party an advantage, very poor behavior will definitely prejudice the Judge against the badly behaving party. After all, if parties cannot control themselves in court, the judge may wonder how they behave around the children in a custody situation. Then there are the close calls, and common sense will tell you who wins those!

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

Many divorces have some level of conflict. Many others go smoothly with minimal emotional and financial damage to parties and the children. Then there are the high conflict divorces. These are generally devastating both emotionally and financially to the parties. They are rarely necessary and should be avoided if at all possible.

There are numerous behaviors that can send a divorce toward high levels of conflict and consequent high attorney fees and costs. The following list is not exhaustive but reflects the most common indicators and behaviors of high conflict divorce. To send a divorce spiraling into conflict, one or both parties:

1. Can begin the divorce process by avoiding service of process.
2. Can refuse to answer, forcing a motion and hearing on default.
3. Can fight the interim division of income and expense.
4. Can refuse to provide discovery or make illegal, nonstandard or overly burdensome discovery requests.
5. Can file groundless motions.
6. Can refuse to cooperate and compromise on the division of property and debt.
7. Can refuse to mediate in good faith once the case is sent to settlement facilitation by the court, as every case is.
8. Can force a trial even though the outcome will be harmful to both parties.
9. Can fight over the smallest and most trivial items as a way of settling emotional scores.
10. Finally, after all that, can refuse to abide by the Marital Settlement Agreement (MSA) or court judgment by; Refusing to cooperate in preparation of QDRO's. Refusing to cooperate in transfer of assets. Refusing to sell the home as ordered. Refusing to refinance the home or other debt as ordered. Refusing to provide title documents as ordered and required by law to transfer property. Refusing to pay debt as allocated. Or finally, coming up with new and creative ways to avoid obligations under the MSA or court judgment.

Now for the bad news. Any one of these can add enormous costs to the parties in terms of attorney fees. Each one could require a hearing which can add significantly to the costs of the divorce due to preparation time, travel time to court, waiting for the hearing to begin, drafting the order after the hearing and of course, returning to the judge for rulings on the content of the order because one of the attorneys or parties does not agree with the order as written, does not agree that the order as written reflects the court's ruling or just plain wants to be difficult. In short, any one of these issues can add hours upon hours of attorney time with corresponding attorney fees.

Now for the really bad news. I did not mention domestic violence, child custody, or child support. These issues can each increase the costs of a divorce or family law matter exponentially. They each are deserving of a discussion of their own.

In short, the costs of a divorce are dictated by the amount of attorney time expended. The amount of attorney time is dictated by the behavior of the parties. Either or both parties can drive up the costs of a divorce. Attorneys have limited control over the variables that will drive up attorney time. The best a lawyer can do is to try to work efficiently while advising the client of the risks of rising costs associated with certain behavior. Unfortunately, even the most efficient attorneys cannot control the other side. Only the other attorney can control that side of the equation and that is entirely different topic for discussion.

Collins & Collins, P.C.
Albuquerque Attorneys

Given that divorce and child custody disputes can often be contentious, costly and time consuming for both the parties and the courts, many of the New Mexico judicial districts routinely refer parties to mediation or settlement facilitation.

The purpose of both mediation and settlement facilitation is to provide a means by which parties to a family law case can reach an agreement without having to engage in a lengthy, stressful and costly court battle. The terms meditation and settlement facilitation are often used interchangeably to simply refer to a process wherein the parties sit down with a neutral third party and attempt to resolve their conflict. Although the two terms refer to similar processes, the term settlement facilitation technically applies after a lawsuit has been filed whereas as meditation can occur before, during or after a suit has been filed.

Either way, participating in some sort of dispute resolution process can be very beneficial to both parties. As a preliminary matter, an effective settlement facilitation can save the parties a lot of money in attorney's fees and their own time. Each issue that is settled by the parties without their attorney's having to file motions and attend hearings to argue the disputed issue can save hundreds, or even thousands of dollars.

Further, a settlement facilitation can often be held, and a settlement reached, much more quickly than court action because the facilitation can be scheduled at the convenience of the parties, rather than the Court whose docket is often crowded. In very busy judicial districts, parties can wait months to have a hearing before a judge when a facilitation can be scheduled as soon as all of the parties, their attorneys and the facilitator are available.

The effectiveness of a settlement facilitation depends heavily on how willing the parties are to negotiate. Parties need to realize the cost of full litigation when they are evaluating whether or not they want to wait for a judge to decide an issue or try to resolve it through settlement.

The selection of a facilitator is important. Using an experienced settlement facilitator is critical to the success of a facilitation. The facilitator needs to be good at listening to both parties and addressing their concerns, but also needs to be well-versed in the applicable law so that they can accurately inform the parties of the pros and cons of their relative legal positions and the value of reaching an agreement without further court action

It is essential to remember that the settlement facilitator is an impartial party and cannot provide specific legal advice to the parties. Thus, even in settlement it is important for parties to have their own experienced family law attorney who can represent their specific interest and make sure they are making educated legal decisions.

When both of the parties, their attorneys and the settlement facilitator work together and are committed to resolving the parties' outstanding issues, it can result in an agreement that the parties can live with, that limits the time and financial resources expended by the parties and that allows the parties to move on with their lives.

Finally, at least in Albuquerque's Second Judicial District Court, settlement facilitation is generally required with few exceptions prior to a trial setting. This the Court's way of encouraging the parties to work cooperatively toward a resolution while keeping court dockets down. And to end on an encouraging note, even those parties that must be forced against their will to settlement facilitation will often find some grounds for agreement which will at least minimize the issues to be decided at trial. This alone is worth the price of admission.

Collins & Collins, P.C.
Albuquerque Attorneys

As our Baby Boomers age, we've seen a growing trend in divorce among people over the age of fifty. Of these divorces, a significant number of them occur after one of the spouses experiences a major health scare or disability. There is no single reason why this happens, but there can be many factors involved on both sides of the issue and it is important for attorneys not to judge the motivations of their clients during such a sensitive time.

Surprisingly, many women file for divorce after a major diagnosis or illness. Sometimes, dealing with one's own mortality makes a person seriously consider her life and may encourage her to leave an unhappy marriage that she may have been willing to tolerate previously. These women may want to make the most of the time they have left and have a greater appreciation for that time. In other cases, these women may have undergone a major world view change that gives them different views and perspectives on life that may not be shared with her spouse. This can enhance existing rifts in the relationship.

On the other side of the coin, the spouse of a person who has gone through a health crisis may also feel the need to leave the relationship. Some people are not by nature good caregivers and watching their formerly health spouse struggle with basic functions and tasks may shake their view of their mortality and the relationship. This may cause deep conflicts for a person who is still engaged in vigorous levels of activity himself. Others may go through their own shift in their world view and may no longer share fundamental perspectives with their spouse.

In still other cases, divorce may occur simply because the couple cannot handle enormous health expenses without impoverishing the healthy spouse. Especially in cases where an illness could be terminal, divorce coupled with applications for Medicaid and/or Medicare benefits may be the only option to protect the surviving spouse financially due to the community property laws of New Mexico. If this is something you are considering, you need to consult with an attorney experienced in both these types of estate planning and family law issues before every filing an application for benefits.

Regardless of the reason, serious illness and disability can shake a marriage to its foundations. If you are in this situation, you should consult with an experienced family law attorney to discuss your options.

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

Individuals contemplating divorce often, and rightfully, are concerned about the status of their health insurance. Health insurance is frequently carried by one or the other spouses through their employment. The question that most frequently arises is whether one spouse can cancel the other from their employer based health insurance upon filing of divorce.

The answer is probably not, at least not without violating a court order. Insurance policies are generally covered by a Temporary Domestic Order issued by the Court when you file for divorce. This "TDO" forbids the parties from canceling each other's insurance. In Bernalillo County, for example, the form TDO instructs the parties to "not drop or cancel any insurance policy, . . . including medical or dental or life insurance." These orders may vary from county to county, but the general intent of them is to preserve the status quo while a divorce action is pending.

This does not mean that you can wait until your divorce is final to make arrangements for insurance following divorce, especially if you have a pre-existing condition that may impair your ability to obtain your own coverage. In fact, this is a very important consideration from the beginning of your journey through the divorce process.

If you are employed, first check with your employer to see whether it offers insurance and whether you qualify for the plan. You may need to work a certain threshold of hours per week to qualify for an employer plan. If you qualify, find out what the premiums are and what sort of coverage is offered. Most plans allow you to join upon certain major life changes, which usually include divorce, so you may not have to wait until a new plan year begins to obtain coverage.

If you don't have employer insurance available, you should apply for coverage with several insurers simultaneously to see whether you qualify for an individual policy. This is something to discuss with your attorney at the beginning of your case. If you are rejected, there are other possible options such as the New Mexico High Risk Insurance Pool and its federal counterpart. Some of the high risk insurance pool options will even cover pre-existing conditions if you satisfy strict plan requirements, so you definitely should not delay in consulting with representatives of these plans. There are also premium reduction opportunities for low income individuals.

Keep in mind that the Temporary Domestic Order is binding on the parties only through the finalization of the divorce. After that, not only may one party cancel the other from his or her insurance, it may not be possible to keep the ex spouse on the plan even if desired by both. This is in fact the most persuasive argument for a legal separation in lieu of divorce.

Health insurance is a major concern for divorcing individuals. The issue should be addressed very early since it may influence the course of the divorce, the marital settlement agreement, alimony issues and even weigh against filing for divorce at all.

Collins & Collins, P.C.
Albuquerque Attorneys

With respect to child support, the rule in New Mexico is that both parents have a duty to support their children. The amount of the monthly child support is determined by the New Mexico Child Support Guidelines, which are meant to be uniformly enforced across the state, so the support should be the same whether you live in Albuquerque or Las Cruces. The amount of support is also the same whether it is awarded as part of a divorce or a paternity action and continues until a child turns eighteen, or until the age of nineteen if the child is still in high school. Unfortunately, given the current state of the economy, many parents are finding themselves unable to pay their court-ordered child support.

While the Courts understand that many parents have lost jobs during the past few years, the New Mexico Courts take parents' responsibility to support their children very seriously. This means that even if a parent has a reason for not paying child support, there can be severe punishment when they don't. If the Child Support Enforcement Division (CSED) is involved in a case, they have the ability to revoke a parent's driver's license or professional license if that parent doesn't pay support. CSED can also prevent a delinquent parent from getting a passport and can freeze their bank accounts and garnish their wages. In addition to the punishment delivered by CSED, the Courts can also hold a parent in contempt of court for failing to pay child support. Being found in contempt can be result in jail time and/or monetary sanctions. However, a recent United States Supreme Court case added some requirements to the contempt process that provides some relief for parents who are unable to pay support.

In Turner v. Rogers, a father was held in contempt for failure to pay close to six thousand dollars in court-ordered child support. After a hearing at which the father admitted that he hadn't paid the child support, he was held in contempt and sentenced to one year in jail. The Supreme Court held that parties generally can be held in contempt, and jailed, as part of a civil proceeding and that they are not entitled to counsel as part of such proceedings. However, that contempt proceeding must have other procedural safeguards in place that protect the delinquent parent's right to due process under the Fourteenth Amendment to the United States Constitution. One of the primary safeguards ordered by the Supreme Court was that a finding of contempt in the child support context requires an express finding that the delinquent parent has the ability to pay the child support. Thus, in a child support proceeding, a parent who is delinquent on his or her child support obligation cannot be held in contempt if that parent clearly establishes that they do not have the ability to pay the court-ordered support.

Of course, the ruling in Turner doesn't mean that parents will not be required to pay child support just because they show the Court that they don't have the ability to pay. The Courts will still have the power to impute income to unemployed, or under-employed, parents if the circumstances are right. And even if a parent is not held in contempt for failure to pay support, they will likely continue to accrue arrearages, or back support, that will need to be paid at some point. But the new ruling certainly provides additional protections for parents who are delinquent on child support obligations, especially those who are victims of the recent economic crises.

Though the Turner case provides some protection to delinquent parents, the consequences of non-payment of child support can still be quite harsh. The fact is that a delinquent parent can be held in contempt if the court finds the parent has the ability to pay and has not. Attending one of these hearing unprepared is highly inadvisable. Anyone faced with a child support delinquency, whether they owe support or the support is owed to them, should consult a family law attorney as soon as possible so that they can understand their rights and responsibilities under all of the applicable laws, including the ruling in Turner.

Collins & Collins, P.C.
Albuquerque Attorneys

There are many changes that result in the lives of individuals after divorce. One of the more obvious is the transition to a one-income household. The financial hardship that can occur may have some surprising consequences, particularly for the children involved.

The National Center for Children in Poverty (NCCP) defines poverty as the inability "to achieve the minimum decent standard of living" that permits a person to fully participate in mainstream society. Nationally, 42% of children in general live below the poverty level. In New Mexico, this figure is 52% according to the NCCP. These statistics include all children, regardless of whether or not they have been affected by divorce.

Yet, children of divorce have been specifically identified as a group more likely to live below the poverty level, according to a recent study released by the U.S. Census Bureau. In New Mexico, 53% of children living in poverty reside with just one parent.

Data shows that women head up most one parent homes. Further statistics reveal that women generally have less income earning potential. One possibility for this may be that prior to divorce, many women focus on raising children, rather than on developing job skills or furthering their education. Many times, divorced mothers just do not have the work experience or credentials needed to get good paying jobs.

Additionally, the continued care of children may prevent a divorced mother from accepting certain jobs. Jobs that require flexibility and travel are just not a possibility for women who have the sole responsibility of raising and supervising children. If child care is necessary, the expense can drain money away from other household necessities.

And, a divorced woman's support network may not be what it once was, as ties to in-laws or other family members and friends may have become strained due to the divorce. This can result in social isolation that keeps divorced mothers from being able to share burdens and responsibilities with others.

Not only are a child's basic material needs potentially compromised after divorce, but studies show that poverty can delay cognitive development and hamper a child's ability to learn. Worry over having one's basic needs met may impact the ability to focus and concentrate. Further, poverty can lead to emotional, behavioral and social problems among children of divorce.

Though the economic realities of divorce cannot be completely averted, there are ways to minimize the financial risks and strains of divorce. In addition to the terms of the divorce, marital settlement agreement and parenting plan which should be designed to insure the financial well-being of the children, there are also state resources available for high risk families and children.

If you are considering divorce, an experienced family law attorney can help to navigate the divorce process as well as the state programs available to avoid falling into a the downward spiral that poverty often brings with it, both for the parents and the children. In the event that you cannot afford an attorney which is very likely the case in these situations, there are a number of programs that provide free legal advice to low income, high risk families facing divorce.

Collins & Collins, P.C.
Albuquerque Attorneys

When a considering whether or not to get a divorce in New Mexico, most people are focused on the big issues, such as: child custody and time-sharing; determining who will keep the marital residence; and, dividing retirement accounts. In thinking about myriad of life changes they face upon completion of a divorce, a spouse's first thought may not be about changing their name.

A change of name is an important consideration because if parties forget to include language in their divorce documents allowing parties to change their names it can be difficult to go back and change their name later. In the past, the issue of name changes applied only to women wishing to return to their maiden names, but it could also apply to a man getting divorced if he took on his wife's surname or a hyphenated name when the parties got married.

A party's decision to change their name as part of a divorce is a personal choice that may depend on things like: the length of a marriage; wanting to keep the same surname as their children; and, a professional or political reputation that depends on recognition of the party based on their married name.

The court will not force a party to return their maiden, or previous name, even upon request of the opposing party. As such, one party as a point of pride, vindictiveness or any or other reason cannot force the change on the other. On the other hand, either party may elect to return to their former names and the other party cannot prevent it.

If a party to a divorce wants to return to their previous name, they will need to include language clearly identifying that change in the Final Decree of Dissolution of Marriage that completes their divorce. Once the Final Decree is signed by the Judge and entered by the Court it becomes a binding order and the party seeking to change their name can provide the Final Decree to all necessary parties.

For instance, government bodies like the Motor Vehicle Division, the Social Security Administration and the Internal Revenue Service will require the Final Decree in order to change their records and so will many banks and credit card companies. Given all of the formal documents and other paperwork that may need to be updated after a divorce, it becomes clear just how important it is to address a name change as part of that divorce action.

On a broader note, any New Mexico resident over the age of fourteen (14) can petition the district court in their area for a name change pursuant to the name change section of the domestic relations statutes. So if the name change does not take place upon dissolution of marriage, the parties may change names afterwards. However, that requires the opening a separate civil action, and payment of the associated filing fee, and publication of notice, which can be time consuming and costly.

Thus, it is much simpler to complete a divorce-related name change at the time of the divorce, but it is not impossible for a divorcing party to change their name later. The benefits and pitfalls of a name change are just one of the important topics that any party facing a divorce should discuss with an experienced family law attorney.

Collins & Collins, P.C.
Albuquerque Attorneys

A person cannot be made a proper party to a divorce or family law case in New Mexico unless the New Mexico courts have jurisdiction over that party.

The issue of jurisdiction can be complicated and can vary depending on whether this case involves a divorce, custody or paternity. However, once jurisdiction is properly established, an out of state party can be faced with participating in family law litigation in New Mexico, which can be a very daunting task. Situations like these commonly arise when a divorce or custody action is started in New Mexico and then one party relocates, but the other party remains in New Mexico.

No matter the circumstances, if jurisdiction is properly established in New Mexico over an out-of-state party, he or she will not be excused from a court case merely because they do not reside in New Mexico. Any out-of-state party faced with this situation should seriously consider hiring an experienced family law attorney.

If the out-of-state party believes that New Mexico does not have jurisdiction, then their attorney can properly object to jurisdiction and have the court decide that issue prior to moving on to the substance of the case. Failure to properly limit a response disputing jurisdiction could itself lead to jurisdiction. The response should solely address jurisdiction o there is a risk that the judge will rule that the out-of-state party has submitted themselves to jurisdiction even though this was not the intention.

Once it has been determined that New Mexico has jurisdiction over an out-of-state party, that party soon find that litigating from out-of-state can be a very expensive and burdensome process when they consider the cost of travel and missed work for court appearance. To avoid these hardships, the parties may be able arrange for the out of state party to appear at some court hearings via telephone. However, most judges require that the party wishing to appear via telephone files a motion asking permission to do so.

A Motion for Telephonic Appearance must be filed well in advance of the subject hearing and may not always be granted. For instance, at a trial or other evidentiary hearing where extensive testimony or exhibits will be presented, the court may require that the out-of-state party travel to New Mexico to appear in person.

Although parties representing themselves can certainly figure out how to arrange for telephonic appearance, it is often much more efficient to work an attorney to make sure those appearances are approved. The cost of hiring an attorney is often well worth the costs when weighed against travel costs and lost income in the case where the party fails to follow court procedures and is forced to travel to New Mexico.

In addition to the telephonic appearance, one way to avoid hearing costs is to avoid unnecessary hearings. The attorney can play a very important role by working out many issues without a hearing, and by minimizing the number of hearings. This can include negotiating directly with the other party or their attorney, or finding a mediator that will allow the out-of-state party to participate in a mediation or settlement facilitation by phone. Hiring a family law attorney experienced in representing clients who reside outside of New Mexico can substantially improve an out-of-state party's chances of successful and cost effective family law litigation.

Collins & Collins, P.C.
Albuquerque Attorneys

Divorce involves many adjustments and changes, including the separation of family members into separate homes, the division of property and the observance of child custody schedules. These disruptions can have profound and long-term effects on children. Many the negative consequences have long been established. One change that has only recently been noted involves the possibility of decreased math performance for kids involved in divorce.

A new study revealed that divorce may have negative effects on children's math scores. Hyun Sik Kim, a Ph.D. candidate in sociology at the University of Wisconsin-Madison used information collected from the Early Childhood Longitudinal Study, which consisted of 3,500 U.S. children entering kindergarten in 1998 through their 5th grade year. The study allowed Kim to monitor families throughout the divorce process.

The negative effect on math scores cannot be easily explained; however, it may be that the skills required for mathematics are more sensitive to external factors, such as divorce. Math involves more mental agility and concentration than other areas of study. If a child is dealing with anxiety or other negative emotions, there may be more difficulty in dealing with the complexity of mathematical equations.

Interestingly, math difficulties did not appear to surface during the time preceding the divorce, but only after parents were in the midst of the divorce process. Experts believe that this is an indication that pre-divorce conflict may not have as much do with poor performance as the sense of change and loss experienced by children in a divorce.

Unfortunately, there is no evidence that children suffering from a math setback associated with divorce ever catch back up to their peers, yet experts agree that more long-term studies are needed. And the news is not all bad, as there was no measurable drop in reading scores among children of divorce. Experts believe this area of study may not call on the same mental skill set as mathematics. Reading requires more memorization and less building upon previously taught concepts.

Parents can attempt to minimize the effect of divorce on their children by responding early, remaining available and providing support. They can also try to keep transitions as smooth as possible and provide some security through predictable and stable routines. Most importantly, parents can alert teachers to the changes in their children's lives. Teachers can then remain mindful to observe declines in math performance and provide added support when necessary.

If you are facing a divorce with children, the guidance of an experienced family law attorney can be invaluable in identifying the many options for minimizing the negative impact of the process on the children. Changes and stress may be inevitable in a divorce, but poor math performance need not be if parents are aware and sensitive to the issues. After all, the standard in New Mexico for child custody and time-sharing is the "best interests of the child" and failures in math hardly achieve this goal.

Collins & Collins, P.C.
Albuquerque Attorneys