Albuquerque Divorce Lawyer Blog

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

It is not uncommon that a spouse immediately regrets the filing of a Petition for Order of Protection from Domestic Abuse. For those not familiar with the term, it is basically a Temporary Restraining Order filed in a domestic relations setting.

These are often filed for very good reasons and are needed to protect one the spouses from abuse at the hands of the other spouse. On many occasions, however, they are filed for illegitimate or otherwise misguided reasons. For instance, they may be filed in the heat of the moment. They may be filed upon the errant advice of others, some well-meaning, some not as much. They are often filed with the misguided goal of obtaining the upper hand in a divorce or child custody setting.

It is beyond dispute that these Petitions for Order of Protection are filed without good cause on a regular basis. Frequently, the party that filed will later regret having filed it and want to know how to drop the petition. The answer in domestic relations court is much different than in the criminal courts.

Let's start with the criminal courts first. Once a criminal charge for domestic violence is filed, it is exceedingly difficult to get the charges dropped. This is the case even if the party who called the police or filed the report does not want to pursue charges and is even willing to put it writing. Once in the criminal courts, it is strictly up to the District Attorney whether the charges will be dropped or not.

In domestic relations court, it is far simpler to drop the petition. If the parties agree and an order of dismissal is filed, the petition will be dismissed. In the alternative, if the parties do not show up for the hearing, the petition is dismissed. There is no prosecutor to pursue the case. The case is filed by one of the spouses and it is up to that spouse either or their own or through an attorney to pursue it.

So if you filed the petition and want it dropped, how do you go about doing this? The answer is easy. The first option is to file a dismissal. The second option is to just not show up for the hearing. If the petitioner does not show up for the hearing, the petition is dismissed. There are a few caveats here.

First, the Respondent (the one accused of domestic abuse) would do well to show up no matter what the petitioner says regarding his or her appearance. It is not just cynicism that suggests this. It is not unheard of for the petitioner to say that he or she will not be there when in fact they do show up. If this is the case, the respondent will be found guilty by default.

Likewise, the petitioner should be careful as well. Respondents often file counter-petition for orders of protection from domestic violence. If you filed, then you would certainly not want to drop your petition if your spouse has already filed a counter-petition.

As in all legal matters, it is important to fully understand both your rights and the process. Due to the many serious consequences of domestic abuse, it is important to seek the counsel of an experienced attorney. If you cannot afford one, there are a number very good resources for parties to domestic abuse.

Related Reading:
Two Sides to Every Story: Mutual Orders of Protection in New Mexico
Domestic Abusers May Seek Control through Child Custody
Abuse of Domestic Violence Proceedings: Playing Dirty in Divorce

Collins & Collins, P.C.
Attorneys at Law

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

Domestic violence cases generally involve more than just the abuser and the victim. The children that live in these violent homes are directly impacted by the abuse going on around them. Children are frequently witnesses to the violence or are used by the abuser to control the victim. In some cases the children themselves suffer physical injuries as a result of the violence that was intended for another victim or directed at the children themselves.

Studies have shown that up to 90% of children from violent households are aware that the abuse is going on in the house. Some children actually witness the abuse while others may hear the victim crying, household items breaking, or the actual impact of physical blows to the victim. Children are very perceptive and, even at a young age, will often notice the blood, bruising, torn clothes and broken furniture that exist after the violent episode is over. Children are also very aware of the tension that exists between the adults in a violent home.

Sadly, it is not uncommon for the abuser in a violent home to attempt to use the children to control their victim. Control methods include actions like interrogating the children about the victim's activities and taking the children away from the victim, or threatening to take the children, in order to prevent the victim from fleeing. Even when the victim does try to leave the abusive situation, the abuser may continue to use the child as a means of control by engaging in battles over custody, holding the children hostage, demanding access to the children, and contacting the victim at work or home under the pretext of arranging visitation with the children.

Any time there is violence in the home; children are at risk of suffering physical injury at the hands of the abuser. In New Mexico 22% of children that are witnesses to domestic violence are reported to have experienced physical abuse, and additional 7% are reported to have been sexually abused by the offender. Physical abuse to the child can happen in ways other than direct abuse by the batterer. Sometimes the children are injured when they try to protect the parent/victim. Others are injured by objects thrown at the victim by the abuser. In addition to bodily injury, children often suffer other physical consequences as a result of domestic violence. Domestic violence frequently deprives children of housing, medical care, and proper schooling.

The consequences of growing up in a violent home extend well beyond physical damage. Growing up in an abusive household can have a profound impact on a child's self esteem, how they perceive and deal with authority figures, and their ability to establish intimate relationships. Many of these children have lifelong problems forming healthy emotional bonds and some will have difficulty with even basic social skills.

Domestic violence is a serious issue that cannot be ignored. There are many resources available to protect the victim and the children of domestic abuse. Criminal and civil charges can be brought against the abuser and protective orders can be issued to stop the abuser from having contact with the victim. An experienced family law attorney can help answer your questions and help identify the resources available to victims of abuse and their children.

Related Reading:
Domestic Abusers May Seek Control through Child Custody
Domestic Violence Orders of Protection Under New Mexico's Family Violence Protection Act
Abuse of Domestic Violence Proceedings: Playing Dirty in Divorce

Collins & Collins, P.C.
Albuquerque Attorneys

Orders of protection are only effective if they are consistently enforced by both the court and law enforcement. Failing to enforce an order of protection can put the victim in even more danger by creating a false sense of security and encouraging offenders to violate the order because they feel there is no real risk of arrest or prosecution. Fortunately, there are numerous procedures in place to assist with the enforcement of orders of protection.

The Family Violence Protection Act requires that all orders of protection be filed with the clerk of courts and a copy sent to local law enforcement. A copy of the order must be sent to law enforcement so that it can be served on the offender and to alert local law enforcement of the existence of the order.

When local law enforcement is aware that an order of protection has been issued they are better prepared to take action if a disturbance occurs. This includes warrantless arrest of the violator and the filing of criminal domestic violence charges. The Family Violence Protection Act requires police officers to "arrest without warrant" any person the officer has probable cause to believe has violated an order of protection and to charge the violator with "all possible criminal charges arising from an incident of domestic abuse." Violating an order of protection is a misdemeanor. A second conviction is punishable by a mandatory jail sentence of not less than 72 consecutive hours that cannot be suspended or deferred. Repeated violations can and are often charged as a felony.

Courts also have many options available to enforce compliance with orders of protection. Just a few of those options include:

1. Arranging for supervision of criminal contempt cases through the probation department's pretrial supervision program.
2. Treating failure to participate in court-ordered treatment as a serious violation of the order.
3. Promptly conducting hearings on all contempt motions.
4. Issuing increasingly severe penalties for repeat violations of an order.

Criminal or Civil Contempt?

Whether the violation of an order of protection results in criminal or civil charges aruably depends largely on whether the contempt order is meant to punish the violator for his wrongful acts or to make the violator comply with the order. In either case, the violator may be placed in jail so the perpetrator may not appreciate the subtlety of the distinction.

It is important to understand that conviction for violating an order of protection can result from any violation of the terms of the order. This can result from any violation of the order from phone calls, to email, to contact through Facebook, to actual physical contact with the alleged victim. Keep in mind also that there can be a violation and criminal charges for violation of an order of protection even when the original charges that form the basis for the order of protection are found to have no merit.

Finally, it is important to understand that even if an order of protection is issued outside of New Mexico, the Federal Violence Against Women Act (VAWA) gives New Mexico courts and law enforcement authority to enforce the Order. The Act requires that New Mexico courts give full faith and credit to orders of protection properly issued by other states.

Though it is often preferable to have the assistance of an experienced family attorney to guide a victim through this process, there are many resources available to victims of domestic violence who cannot afford a private attorney.

Related Reading:
Violence Against Women Act Reauthorized By The U.S. Senate
Domestic Violence Orders of Protection Under New Mexico's Family Violence Protection Act
Whether Civil or Criminal, Domestic Violence Finding Has Severe Consequences

Collins & Collins, P.C.
Albuquerque Attorneys

On April 26, 2012 the U.S. Senate voted 68-31 to reauthorize the Violence Against Women Act (VAWA) for an additional 5 years, despite efforts by opponents to pass a more narrow version of the Act. The Senate version contains more funding for education and other services, as well as recognizes the special needs of Native Americans, immigrants, and the Lesbian Gay Bisexual and Transgendered (LGBT) community.

VAWA was first signed into law in 1994 and has been reauthorized twice before; in 2000 and again in 2005. In what women's advocates call a landmark piece of legislation, VAWA is aimed at improving the response of the community, police, and justice system to several forms of violence against women including domestic violence/domestic abuse rape, dating violence, and stalking.

VAWA created the Department of Justice's Office on Violence Against Women and provides federal funding for investigation and prosecution of violent crimes against women. It also imposes mandatory and automatic restitution on defendants who are convicted of violence against women. Additionally, VAWA provides a civil remedy when a district attorney does not prosecute a crime of violence against a woman,

The latest version of VAWA contains a number of provisions that have met staunch opposition. These provisions expand protection to Native American women, immigrants, and members of the LGBT community. For example, a new provision in VAWA gives tribal courts jurisdiction over non-Indian domestic violence defendants if the alleged crime occurred on reservation land. This provision is especially significant in states like New Mexico with a high Native American population. According to a report by the U.S. Department of Justice, American Indians and Crime, violent crime against Native American women occurs at a rate 3 ½ times greater than the national average. Opponents of the VAWA provision argue that in many cases, prosecuting non-Indians in tribal courts would deny defendants due process and would therefore be unconstitutional.

Another point of contention is a provision that would increase the number of temporary U.S. visas for illegal immigrants who are victims of domestic violence. The new provision would expand the number of temporary visas available by allowing the unused visas from previous years to be added to the annual 10,000 U visas currently available to victims of domestic violence, rape, and sex trafficking. Opponents of the new provision argue that this would effectively grant a form of amnesty to illegal immigrants. Proponents argue that the visas are indispensable in helping victims whose abusers may be using the threat of deportation to control and exploit them.

Further, a provision that would expand VAWA's protection to gay, transgender, and bisexual victims of domestic violence has met with stiff opposition. Although VAWA currently prohibits discrimination on any basis, including sexual orientation, many proponents of the new provision want to make it clear that members of the LBGT community are covered under VAWA.

Other less controversial new provisions will keep federal funding at the current level but allocate more funds toward domestic violence education on college campuses. The Senate bill also lengthens the time that a victim can stay in temporary housing and improves the legal protection available to victims of stalking. The Senate bill also reserves 20% of funds for forensic response and police training.

Whether or not the new version of VAWA is enacted, the recent debate highlights the serious issues facing women in the United States and what the law can do to address them. In the meantime, there is help available for victims of domestic violence.

The ending of relationships, whether through divorce or other means of separation should present an opportunity to move on for both the couples and the children involved; however, when domestic violence is present in these relationships, moving on may not be the goal of the abuser.

For those that perpetrate domestic violence, control is often the main goal of their behavior, according to the National Coalition against Domestic Violence. When divorce or separation proceedings begin, an abuser may attempt to maintain control by manipulating the process.

Manipulation can come in the form of improperly painting a portrait of the victim as unstable and less competent as a parent. Because of the abuse suffered, the victim may be less able to overcome these allegations, whether through an inability to speak up due to fear or because of some mental impairment suffered through trauma.

The law and the courts of New Mexico seek by mandate to achieve the best interests of the child. Unfortunately, on occasion, New Mexico's "best interest of the child" standard used in child custody issues may actually help an abusive parent exert control over another parent.

This standard implies that it is "best" that the child to be raised by both parents, unless there is evidence that such a relationship would be detrimental to the child. Because of the often secretive nature of domestic violence, this evidence may not be easily obtained. Even the child involved may not fully observe or understand the relational dynamics between their parents, thus, they may not be able to alert authorities to the dangers facing the victim parent.

If an abusive parent can successfully convince the court that the child belongs with them, the victim parent loses control, while the abuser gains more control. The abuser now has the legal right to continue controlling the other parent through visitation schedules, monetary support and even decisions regarding the actual care of the child. More alarmingly, the victim parent may be subject to further violence because of the continued contact.

Domestic violence matters should be openly discussed with an attorney, once the decision to separate has been made. An experienced divorce attorney can become the voice of the victim throughout the court proceedings and may eliminate the potential for an abuser to continue their reign of control.

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

The New Mexico Family Violence Protection Act ("the Act") creates a specific cause of action that allows a victim of domestic abuse to obtain a civil restraining order against the household member who committed the abuse. This type of restraining order is called an order of protection and will prevent the restrained party from any contact with the victim. Any person accused of domestic violence has a right to a hearing before a long-term order of protection is entered against them. The Act provides that those hearings may be conducted by a domestic violence special commissioner.

The special commissioner is not a judge, although they must be an attorney licensed to practice law in New Mexico and be knowledgeable in the areas of domestic relations and domestic violence. The special commissioner also has the authority to review initial petitions for orders of protection, issue temporary orders and enforce or modify orders of protection. However, all decisions by the special commissioner must be approved by a district court judge. Essentially, the special commissioner recommends a certain action (in the case the entry of an order of protection) and then the district court judge decides whether or not to accept that recommendation and issue the order. As a practical matter, most recommendations by the special commissioner are initially approved and entered by the reviewing district court judge.

Even though a special commissioner's initial recommendations will almost always be entered, the restrained party still has the opportunity to object to the special commissioner's findings and have those objections heard by the district court judge. Generally those objections must be filed with the district court within ten (10) days of the entry of the order of protection, or other related order, and they must be submitted in writing. Further, when submitting objections, it is also important to remember that the district court judge is only reviewing the special commissioner's recommendations and will only reverse or modify the resulting order if they determine that the recommendations were: arbitrary and capricious or an abuse of discretion; not supported by substantial evidence in the record; or, otherwise not in accordance with the law. This legal standard can be hard to overcome, which means that objections clearly explain to the district court why the entry of the order of protection is improper. It is not enough for an objecting party to tell the court that he or she disagrees with the entry of the order of protection; they must provide a legal basis for the objection.

Given that the district court judge is only reviewing the special commissioner's recommendations, it is essential that a party facing an order of protection take the initial hearing with the special commissioner seriously and present as much evidence as possible refuting the charges. By the same token, a party seeking to have an order of protection should be ready to present evidence supporting their case and explaining why they need protection. Parties should not disregard the importance of the initial hearing by relying on their ability to object later. And, given the very serious consequences of the finding of domestic violence that underlies an order of protection, both parties should seriously consider having legal counsel represent them before the special commissioner as well as to file any required objections.

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

The New Mexico statute governing the dissolution of marriage (divorce) lists four reasons that can be given to the court as grounds for divorce: 1) incompatibility; 2) cruel and inhuman treatment; 3) adultery; and, 4) abandonment.

Practically speaking, the vast majority of divorces in New Mexico are granted on the basis of incompatibility, which is known as a "no-fault" divorce. The policy of no-fault divorce has been a part of New Mexico law for more than sixty years and is so strongly favored by the courts that the other three grounds are rarely used anymore.

Even if one of those grounds is used as a basis for a divorce petition, the court will often not investigate that claim. Instead the court will recognize that the parties are incompatible and move on to the parties' debts and assets and addressing issues of custody and support.

This means that parties to a divorce in New Mexico will generally not have to spend time (and the associated attorney's fees and costs) proving that the other party committed adultery, behaved cruelly or is otherwise a bad person because the courts will deem that information irrelevant.

Often the no-fault policy can be hard for parties to a divorce to accept. This is especially so in cases where there has been adultery or cruel treatment by a spouse during the marriage. There is no shortage of animosity associated with financial affairs as well. Far too often, parties go into the divorce with the intention and the need to prove the other party is at fault. Sometimes, they simply will not be content until they have shown the court that the other party is simply a bad person.

In fact, the spouse may be a bad person guilty of all kinds of bad and sometimes atrocious behavior. Unfortunately, this behavior is with rare exceptions irrelevant to the divorce and the division of property and debt. It may or may not be relevant to child custody and time-sharing. Even when it is not, there are many occasions when the battlefront is shifted to the children. Child custody and time-sharing disputes will often to the great detriment of the parties, and especially the children, serve purely to punish the other spouse for the misdeeds during the marriage.

Consulting with an experienced divorce attorney can help parties focus on the relevant facts and applicable law, so that they can get through the divorce process efficiently and get on with their lives. In the absence of domestic violence, domestic abuse, child abuse, or child neglect, battles for moral superiority have no place in a divorce action. No-fault divorce has grown over time with the knowledge that the fault based divorces were often devastating to the parties and the children. The courts of New Mexico have made clear that allegations of fault will no longer be entertained.

Collins & Collins, P.C.
Albuquerque Attorneys

It is the unfortunate truth that divorce and child custody disputes can often lead to charges of domestic violence by or against either party.

In New Mexico, a single incident of reported domestic violence can result in criminal domestic violence and/or a civil domestic abuse case, either of which have serious consequences for the accused abuser.

The criminal domestic violence case is usually the result of the typical domestic violence call to the police or 911. Whenever the police are called on a domestic violence incident, one of the parties will be arrested if both are still present. Criminal charges are then filed against the arrested party. If the alleged abuser has left the premises, criminal charges will be filed without an arrest.

No matter how the charges are filed, the Court will almost always issue a no contact order that prevents the accused abuser/defendant from any contact with the victim. Typically, the court will also order the defendant to stay away from the alleged victim's home which is often also the home of the defendant.

In addition to criminal charges, the New Mexico Family Violence Protection Act allows a victim of domestic violence to file a civil case against the accused abuser by filing what is called a petition for order of protection. Upon filing the petition, an immediate temporary order of protection will be issued. Like the no-contact order in the criminal proceeding, the order of protection prevents any contact between the alleged abuser and the alleged victim. This civil proceeding can run concurrently with a criminal case.

In case of criminal charges, the case can go on for months. A civil case proceeds much more quickly. A hearing is set within ten days of service of the temporary order of protection and notice of hearing. In other words, once the alleged abuser receives notice of the allegations, an evidentiary hearing will be held for the court to determine whether or not the alleged abuser is guilty of an act of domestic violence. If domestic violence is found, a 6 month order of protection will be issued. This order may be extended for good cause.

Either a criminal conviction for domestic violence or a finding of domestic violence in family court have very serious and negative consequences on things like future employment options, the ability to carry a firearm, immigration status and even the ability to rent an apartment.

Either a criminal proceeding or civil proceeding will have many of the same negative collateral consequences. The severity of these consequences is why it is so important that parties on either side of a domestic violence action speak to an attorney to understand their rights, responsibilities and the consequences of a finding of domestic violence. It is equally important in both a criminal and civil proceeding.

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico, the Family Violence Protection Act allows a victim of domestic violence to file a petition for order of protection, asking the Court to enter an order of protection preventing the person committing the domestic violence (called the restrained party) from having any contact with the abused party (called the protected party). Orders of protection are a specific type of civil restraining order and they can have a variety of consequences for all of the parties involved.

The primary consequence of an order of protection is that the restrained party cannot go within 100 yards of the protected party's home or workplace and must stay 25 yards away from the protected party in public. An order of protection may also prevent or regulate contact between any children that the parties may have together. The order of protection also prevents telephone, which includes texting, and e-mail contact between the parties.

All of these requirements will be explained in the actual order of protection; however, an order of protection has other consequences that are not as clear. If the order of protection is issued after a hearing at which the judge or special commissioner makes a formal finding of domestic violence, then the order may have long-term consequences on the restrained party's future employment opportunities, firearm rights, and immigration rights. The immigration consequences are perhaps the most serious of the collateral consequences since a finding of domestic violence may result in removal or deportation of the immigrant offender. Because of these very serious consequences, the parties may also agree to a Stipulated Order of Protection that does not include a finding of domestic violence.

Both types of orders of protection are filed with the National Crime Information Center (NCIC) so that they can be easily enforced by police across jurisdictions. In the case of a stipulated order, the restrained party is still prevented from any and all contact with the protected party and cannot possess a firearm while the stipulated order is in place, but there is no formal finding of domestic violence that would have to be reported later when applying for jobs, a firearms license or immigration procedures.

Finally, a violation of an order of protection can also result in criminal and civil penalties, including fines, jail time or both. Thus, if you are a party to a petition of order of protection, it is important that you discuss your case with an to make sure that the appropriate type of order of protection is entered and to ensure that it is properly enforced.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

In order to protect victims of domestic violence, the New Mexico legislature enacted the Family Violence Protection Act, which authorizes the courts to issue a type of civil restraining order called an Order of Protection. If an Order of Protection is entered, it prevents the person committing the domestic violence or abuse (called the Restrained Party) from having any contact with the victim of that abuse (called the Protected Party). A party that violates the provisions of an Order of Protection may face criminal and civil penalties. In some case, the Restrained Party may also be the victim of abuse by the alleged Protected Party.

The procedure under the Family Violence Protection Act requires that the a person be personally served with the Petition for Order of Protection before an Order of Protection may be entered against him or her. The alleged domestic violence offender must also be allowed to appear at a hearing to answer to the charges in the petition. If a Restrained Party believes that he or she is also a victim of abuse by the person filing the petition, then he or she may file a counter-petition informing the court of that abuse and asking that an Order of Protection be entered against the other party.

A counter-petition for an Order of Protection follows the same basic format as the petition and must be filed before the hearing on the original order of protection is held. If the court finds that both parties have committed domestic abuse against each other, it may enter what's called a Mutual Order of Protection, which means that both parties can face criminal and civil penalties for making contact with the other party. However, the court will not issue a Mutual Order of Protection if a counter-petition has not been filed. Thus, if a person is served with a petition for Order of Protection, it is important that they contact a New Mexico Divorce and Family Law Attorney immediately in order to ensure that they understand all of their legal rights, including the right to file a counter-petition.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com