Albuquerque Divorce Lawyer Blog

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

In New Mexico, one of the final documents (also called pleadings) filed with the court to complete a divorce is called a Marital Settlement Agreement, or MSA for short. An MSA should provide details as to the final division of the parties' property and debt, which may be the result of a settlement agreement between the parties or the order of the court.

The MSA does more than just assign debts and assets to the parties, it may also provide instructions as to how those debts and assets will be exchanged and protected. Health insurance is one asset to a marriage that may be addressed in an MSA. Generally, if one party to the divorce is providing health insurance for the family pursuant to his or her employment, he or she is not obligated to continue to provide health insurance for their former spouse, although they may be required to continue to provide coverage for their children. In fact,many insurance carriers will not allow continuation of coverage on the same policy for an former spouse.

However, some health insurance policies may allow the divorcing spouse to remain covered as long as they begin paying their own insurance premiums after the divorce. Also, parties can agree that one spouse will continue to pay the health insurance premiums for the divorcing spouse as a form of spousal support. The issue of health insurance coverage after a divorce is complicated because the coverage available will often depend on the terms of the policy in place at the time of the divorce and those terms can vary widely from policy to policy.

Parties to a divorce should consult an experienced divorce attorney who can counsel them as to the law regarding health insurance and can conduct proper discovery in order to explore the terms of the parties' policy. An attorney should also ensure that whatever agreement is reached regarding ongoing health insurance for the parties is properly included in the MSA.

Collins & Collins, P.C.
Albuquerque Attorneys

When couples are looking at separation and/or divorce, there is rarely enough money to go around. In order to reduce costs, parties may think about preparing their court filings themselves rather than hiring an attorney. While the New Mexico courts certainly allow parties to represent themselves, also called Pro Se representation, parties should be very careful in doing so.

One of the primary dangers posed by Pro Se representation is that once the parties have filed documents with the court memorializing their agreement to divide their debts and assets, that agreement is often final and is very difficult to change.

For example, a divorcing couple decides to forgo attorneys and they negotiate their divorce settlement themselves. Because they do not have counsel, they do not conduct formal discovery, which a more formal term for investigation, in order to identify, characterize for the proper division of property and debt.

Instead they may each rely on the other party to honestly report their debt and asset information. More commonly, in the haste to get through the process, neither party conducts an adequate investigation of their assets and debts.

The parties then draft a marital settlement agreement using a form approved by the New Mexico Supreme Court and used throughout the State provides. Once the martial settlement agreement is filed and the parties are divorced, each goes their separate ways taking some property and debts with them.

The availability and use of the form marital settlement agreement often provides false comfort to the pro se parties. Unfortunately, the form is only as good as the information it contains as provided by the parties.

It is not uncommon that the parties either by way of deceit or error have not adequately and accurately accounted for all asset, debts and income. In these cases, the parties can agree to amend the marital settlement agreement to correct the mistakes or errors.

However, more often than not, one of the parties will refuse to correct the flawed marital settlement agreement. In these cases, the other party must ask the court for the corrections. This is not a simple process.

A marital settlement agreement is a contract. As with any contract, it normally can't be changed after it has been executed absent a showing of ambiguity or fraud. Further, once the courts have entered final judgments, they do not like to go back and disturb those decisions.

When parties sign a document and file it with the Court, the Court expects the parties to understand their rights and responsibilities under the law. Ignorance of the law or facts that could have been revealed during the discovery process is not normally accepted by the Court as a basis for changing a final judgment. It does not matter that the parties did not have legal counsel. They are held largely to the same standard as if they did. Otherwise, there would be no end to pro se divorces.

The law of contracts and the rules of civil procedure do allow for modification of marital settlement agreements. However, the burden imposed on the party seeking modification is very high. As a rule, where possible, it is advisable to consult with a divorce attorney before executing a marital settlement agreement to avoid irreparable mistakes.

Collins & Collins, P.C.
Albuquerque Attorneys

Spousal support or alimony as it is more commonly known is neither mandatory nor automatic when parties get divorced in New Mexico. Instead, spousal support may be awarded by the Court or agreed upon by the parties to a divorce based on consideration of several statutory factors.

There are numerous factors that go into the award of alimony. They include factors such as the length of the parties' marriage, the education of both parties, the health and age of the parties, the employment and income history of the parties, and the ability of the parties to work following the divorce.

There are other factors as well depending on the circumstance of the parties. As such, the determination of whether or not spousal support is awarded will vary greatly from case to case.

The amount and duration of spousal support will also vary depending on the circumstances. The amount and duration of support will depend largely on the both the income and the income earning potential of the parties.

In some cases, support is paid only for a few months or years.. In others, it may be permanent in nature. Clearly, spousal support terminates when the paying party dies. On the other hand, many people often assume that spousal support automatically terminates when the receiving party gets remarried. This is not necessarily true. This is a negotiable term.

Parties negotiating a marital settlement that involves spousal support must be very careful to identify not only the amount of support, but when, if ever, that support will terminate. One thing the paying party will want to avoid is the use of any language suggesting that alimony is "non-modifiable." Of course, the party receiving it may take the opposite position.

Once the term "non-modifiable" is included in an award of spousal support, which is then entered by the Court, it is almost impossible to change. Therefore, it is essential that parties on either side of a dispute over spousal support consult an experienced divorce attorney or their rights to modify alimony may be forever waived.

The negotiation and drafting of the terms of alimony can have lasting and even permanent consequences. It is not something to take lightly.

Collins & Collins, P.C.
Albuquerque Attorneys

One of the questions most frequently asked by divorce and family law clients is "How long is this going to take?" There is no easy answer to that question. The first question is where in New Mexico are you filing your divorce, paternity or family law action? The case load for the courts that cover Albuquerque, Rio Rancho and Santa Fe are pretty heavy, so it generally takes several months to get a hearing date in those areas. This wait applies to each and every hearing.

Hearing dates are important because that is the time when parties go before the judge on specific issues related to their divorce when they cannot resolve the issues themselves. Thus the fastest way to conclude the process is through early settlement and/or mediation. If the parties can agree on a the division of property and debt, child support and child custody, and other issues related to the divorce, then they can incorporate those decisions into a marital settlement agreement which upon filing with the Final Decree of Dissolution of Marriage will conclude the process. This can be completed in a matter of weeks when the parties are so motivated.

Often this is not possible for any number of reasons, some legitimate, some not. In many cases, each every step of the divorce is a struggle requiring the intervention of the Court. Each time the court's assistance is enlisted by way of a Motion, the process if further delayed due to long wait necessary to get a hearing on a Motion. Finally, after what could be months extending into years, the parties must at some point go to trial. A trial setting takes even longer to get than a Motion hearing.

In sum, the most efficient way to complete a divorce or family law matter in New Mexico is to understand your rights and responsibilities. Then hope that the other party has done the same. If both parties can behave rationally and reasonably, the process can move pretty quickly. In the absence of reason and rationality, the process can take a very long time. In the case of a high conflict divorce or family law proceeding, the duration of the process is probably the least of your problems. Keep this mind before declaring war on your ex.

Sarah Armstrong
Albuquerque Attorney
www.CollinsAttorneys.com

One of the final steps in completing a divorce is the entry of the Marital Settlement Agreement. The Marital Settlement Agreement provides the formal division of the parties' property, assets and debt. It also addresses alimony, spousal support, taxes, and other financial issues affecting the parties.

In New Mexico, the Marital Settlement Agreement must be signed by both parties. The Marital Settlement Agreement is typically adopted as an Order of the Court through the Final Decree of Divorce. Problems often arise as a result of one or both parties' refusal to abide by the terms of the Marital Settlement Agreement.

In cases where the divorce was granted and the Final Decree of Divorce was filed in the New Mexico Courts, either party may file a Motion to Enforce the Marital Settlement Agreement in the court where the divorce was granted. The District Courts in Albuquerque, Rio Rancho, Santa Fe and several of the other courts throughout New Mexico have a self-help divisions that will provide forms for this process in case the parties cannot afford legal counsel. The forms are also available online.

Problems often arise out of property and debt divisions from other States. Many New Mexico residents are faced with the breach of an out-of-state Marital Settlement Agreement. Unfortunately, enforcement of another state's orders can be complicated. An out-of-state Order addressing the division of property, assets and debt must typically be addressed in the court with original jurisdiction over those issues. Unlike many cases where a civil judgment may be domesticated in New Mexico for enforcement purposes, domestication of a family law Order is often not an option in family law.

The general rule is that the state court that grants your divorce maintains jurisdiction over the enforcement of any orders and decrees associated with the divorce. There are as always some exceptions. There is an exception for child support where the state in which the child resides may enforce child support obligations. Likewise, child custody jurisdiction may vest in another jurisdiction after the child has resided in the new state for 6 months. With those exceptions, the original court maintains jurisdiction over most matters related to the divorce such as the division of property and debt, spousal support and alimony.

In case of problems with enforcement, it will typically be required that a proceeding in the state of original jurisdiction be initiated. In that instance, it would be important that the obligations under the Marital Settlement Agreement be found by the Court to be a judgment. Once this is done, and the amount is fixed, the judgment may then typically be domesticated in New Mexico for future enforcement.

These issues can become very complicated very quickly. It is important to determine the proper way to proceed prior to seeking court relief. False steps could become extremely costly if the Court refuses to hear the claims due to lack of jurisdiction. It would be wise to seek the advice of a New Mexico divorce attorney when faced with this situation.

www.CollinsAttorneys.com

Being served with divorce papers is extremely stressful and emotional. Often times, the person served has no idea what to do once served. Though the divorce process can be confusing, the initial steps are pretty straight-forward.

The first legal step in a divorce action in New Mexico is the filing of a Petition for Dissolution of Marriage, which must be personally served to the opposing party. Once you have been served with the Petition, you have 30 days to file your response, which is called an Answer. At the Second Judicial District Court in Albuquerque, all responsive pleadings, including the Answer, must be filed with the clerk on the first floor of the Bernalillo County Courthouse. Likewise in the Thirteenth Judicial District in Rio Rancho, the Answer must be filed on the first floor with Sandoval County District Court Clerk.

If you are served with a Petition, it is a good idea to meet with a lawyer as soon as possible in order to discuss your rights and responsibilities during the divorce process. Even if you are unable to meet with a lawyer, it is imperative that you file an Answer to the Petition. If you don't, you run the risk that a default judgment will be entered against you. A default judgment means that the Court grants the divorce, including dividing property and debt and deciding child custody and child support, without your input.

The Petition itself is a pretty basic document that simply notifies the Court that the parties are incompatible and that at least the filing party wants a divorce. It will include information about when the parties were married, whether or not they have any children, whether or not one party is entitled to spousal support or alimony and will ask the Court to divide all community and separate property and debt.

Thus, your Answer can be pretty simple too. The Answer should include a line responding to every line in the Petition that states whether or not you agree with each and every statement in the Petition. The Answer does not need to include the details of why you agree or disagree or details about what you want in terms of property or custody. The final details of the divorce will be spelled out in the Marital Settlement Agreement and the Parenting Plan, both of which are filed later on. Keep in mind that your Answer is binding and may be used against you later. As such, you need to be very careful about what you admit or deny.

On the other hand, it is far better to leave details out of the Answer. The details are addressed later through litigation, discovery, mediation, settlement and so. These details are then set forth either by the parties through the Marital Settlement Agreement or Parenting Plan if they are able to work together, or the court if they are not. Even if you have to file the Answer without an attorney, you should definitely discuss the details of the Marital Settlement Agreement and Parenting Plan with a New Mexico divorce lawyer because these documents will affect your rights long into the future.

www.CollinsAttorneys.com

Spousal support, which is also called alimony, is not mandatory in the State of New Mexico. In determining whether or not to award spousal support, the Courts in Albuquerque, and much of the rest of the state will typically refer to the Alimony Guidelines and Commentaries developed by the Second Judicial District Court.

The Alimony Guidelines provide a variety of considerations in the award of alimony including the length of the marriage, age of the parties, health of the parties, work histories of the parties and the earning capacity of each party. If the Court determines that spousal support it appropriate it will determine how long that support will be paid.

The New Mexico Court of Appeals recently reviewed the issue of spousal support in Pruyn v. Lam. The Pruyn case began in 2004 when the divorcing parties agreed to and filed a marital settlement agreement without the assistance of counsel. The Marital Settlement Agreement included a provision that the husband would pay the wife monthly spousal support beginning in the year 2005 and continuing until the year 2019.

The Marital Settlement Agreement stated that the spousal support/alimony was "Non-Modifiable" and set forth specific amounts to be paid to the wife each month over the term of the agreement. Nearly one year after the parties' divorce was complete, the husband filed a motion to modify the spousal support award based on a change in his financial circumstances alleging that he could no longer afford to pay the agreed upon spousal support.

After multiple hearings and motions, the trial court eventually granted husband's motion to modify support despite the language in the martial settlement agreement stating that the spousal support was non-modifiable. That decision relied on the language in New Mexico's Alimony Statute, NMSA §40-4-7(B), stating that an award of spousal support may be rehabilitative, transitional, indefinite and/or may be awarded as a single-sum to be paid in installments. The trial court appeared to find that the agreement of the parties was indefinite and therefore modifiable.

The New Mexico Court of Appeals overturned the trials court's decision and held that the Courts' power to modify spousal support is limited to cases of rehabilitative, transitional or indefinite support. The Court found that the spousal support award to the wife in Pruyn was a single-sum award due to its definite payment schedule over a defined period of time. Because it was a single-sum defined alimony award, the trial court did not have the authority to modify that provision of the marital settlement agreement.

Alimony and spousal support can be quite confusing. The alimony guidelines themselves can be somewhat confusing. Whichever end you are on, paying or receiving, you should consult with an attorney before entering into a Marital Settlement Agreement. Perhaps Mr. Pruyn's first mistake was failing to seek the guidance of an attorney. Marital Settlement Agreements are contractual in nature, and it is very hard to back out of one. Few judges will entertain the argument that you did not understand what you were doing because you did not have an attorney.

www.CollinsAttorneys.com

A Qualified Domestic Relations Order ("QDRO") is a specialized order issued by the Court to divide retirement benefits during a divorce proceeding. As a community property state, the law in New Mexico provides that each spouse is entitled to 50% of the retirement benefits earned by the other spouse during the marriage. Retirements benefits can include, among other things, pension plans, deferred compensation accounts and 401(k) plans.

Retirement plans can often be one of the most valuable community assets owned by a divorcing couple and there are different ways to approach division of retirement benefits. As a preliminary matter, the parties must determine the value of the retirement benefit at issues. This determination can be fairly simple as in the case of 401(k) account, which contains a readily identifiable amount of money on any given day. In contrast, the value of pension plans can vary greatly depending on how much the employee spouse is making at the time of retirement and at what age the employee spouse retires. In complicated retirement cases, the parties and their attorneys should think seriously about hiring an actuary or other trained expert to determine the value of the disputed retirement benefit.

After the value of a retirement plan is determined, then the parties (or the Court) must also decide how and when the benefits will be distributed. In the case of some 401(k) plans, the parties can split the account at the time of divorce. In the case of other pension plans, neither party receives their share of the retirement plan until the employee spouse actually retires.

The QDRO should address all of the issues regarding valuation and distribution of retirement benefits. Though it would seem that the valuation and division would be a straightforward mathematical calculation, the division of retirement accounts is often hotly contested. The drafting of the QDRO can be highly contentious. In turn, the QDRO must be submitted to the court for approval and then submitted to the QDRO administrator for its approval. Each plan requires specific language and Orders are often rejected for what appear to be very trivial drafting issues.

There are some QDRO administrators that will review the Order prior to filing with the court. Others require a court approved Order prior to review. In these cases, the Order may take several trips through the drafting process, approval by the Court and final approval by the plan administrator. This process can take a very long time.

In cases where retirement benefits are hotly disputed and the parties cannot agree on drafting, it is often beneficial to have a third party attorney draft the QDRO to reduce the conflict between the parties and their attorneys. Though this will often reduce the conflict and expedite the drafting process, even this step cannot alleviate the conflict in some cases. In those cases, it is often necessary to seek the intervention of the Court. Where this becomes necessary, the parties can be assured that they are embarking on a very expensive adventure.

www.CollinsAttorneys.com

With few exceptions, the New Mexico Courts treat all debts incurred during a marriage, by either or both spouses, as community debt, which means that each spouse is equally responsible for the debt.

An important part of a divorce proceeding is a determination of which spouse will pay what debt after the spouses are divorced. After the spouses agree on, or the Court decides, who will pay each community debt, the Court enters a final order adopting that agreement or determination, which becomes binding on the spouses. However, that order is not binding on creditors that may be trying to collect payment of a community debt.

This limitation to the power of a divorce order is especially true when it comes to the Internal Revenue Service because a state court order is not binding on the federal government. During a marriage, when one or both spouses fail to pay federal taxes, the IRS has the power to collect those taxes for either or both spouses. The IRS may file a federal tax lien against any community property owned by the spouses, and is entitled to file a lien against any separate property owned by the debtor spouse. The IRS may choose to levy the wages or tax returns of either spouse.

Further, in New Mexico, the IRS can levy a spouse's 50% interest in community property for debts that were incurred before the marriage. The issue of federal taxes can severely complicate the property and debt division in a divorce proceeding. Spouses that are considering divorce and have outstanding tax issues should contact an attorney in order to avoid serious penalties.

www.CollinsAtttorneys.com

The general rule in the state of the New Mexico is that all debt incurred during a marriage becomes community debt, which means that both spouses are equally responsible for the debt. This is true even when one spouse creates a debt without the other spouse's knowledge, although there are some narrow exceptions to that rule.

Thus, as part of a divorce proceeding, both parties are required to identify all debts incurred during the marriage. Since these debts are most often community debt, the parties then need to decide how the debt will be divided between them. Essentially, each spouse is responsible for 50% of the debt unless the debt is divided pro rata based upon income, or some other way as agreed upon by the parties. The spouses (or their attorneys) must enter into a marital settlement agreement that identifies which spouse is going to take responsibility for which debt after the divorce is completed.

The parties' agreement with respect to the division of debt is then adopted by the Court in an order dissolving the marriage and adopting the Marital Settlement Agreement as an order of the court. The Second Judicial District Court in Albuquerque typically calls this order a Final Decree, but the name given by Courts around the state may vary. Whatever the title, the Court's final order is binding on the spouses and imposes a duty on each spouse to pay the debts that each agreed to pay.

However, problems often arise after a divorce is completed when one spouse quits paying a community debt that he or she agreed to pay as part of the divorce settlement. Even though the Final Decree is binding on divorcing parties, it is NOT binding on creditors seeking to collect a debt. This means that even after a divorce, a creditor may file an action against both spouses in an attempt to collect what was once a community debt. The collection is based upon joint and several liability for the community debt.

As a result, it is not infrequent that creditors go after one spouse for the debt assigned to the other in the Marital Settlement Agreement. Creditors are often extremely aggressive and unforgiving in their collection efforts. The law is unfortunately on their side. Any debt incurred during the marriage is arguably a community debt with respect to the parties. There are some exceptions such as gambling debts.

If you are considering divorce and have community debt, you should consider consulting an attorney to ensure that your marital settlement agreement clearly assigns that debt. And if you are being contacted by creditors for a debt assigned to your former spouse, you should contact an attorney immediately to discuss the enforcement of the order against your former spouse. Though you have few defenses against the creditor, you do have rights against your former spouse including orders of contempt, attorney fees and costs.

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