Albuquerque Divorce Lawyer Blog

It is often assume or perhaps hoped that alimony automatically terminates upon the marriage of the recipient of the support. This is not necessarily the case.

Spousal support may be ordered for a variety of purposes. It can be transitional, and/or rehabilitative. This means that it is by definition temporary in nature. It might be indefinite. It might also be in the form of a lump sum.

In the case of lump sum payments, whether in one payment or a schedule of payments, the alimony is fixed and cannot be changed. This includes the remarriage or even the death of the receiving spouse. In essence, it is vested property interest.

In the case of transitional or rehabilitative, the parties and/or the court can make the spousal support non-modifiable. In the case that the alimony is made non-modifiable either by agreement of the parties or judgment of the court, the amounts cannot be later modified.

In all but very rare and exceptional cases, this means that neither spouse can go back later for a modification. Neither the recipient spouse can ask for more nor can the paying spouse ask for less. It is inconsequential whether the payments of spousal support later become a financial strain. Likewise, the recipient cannot go back and ask for more due to economic necessity or hardship.

The resolution of non-modifiable support is final whether it comes by marital settlement agreement or order of the court. This means also that it is immaterial whether the recipient spouse gets remarried.

In case of agreement by the parties in the marital settlement agreement, the spousal support was a bargained for exchange. It is assumed that it was negotiated in the context of the remainder of the division or debt and assets. It is valued at the time of the divorce and it cannot later be changed, modified or renegotiated in the absence of an agreement between the parties.

Likewise, if the parties proceed to trial, and the court makes an order of non-modifiable alimony, this order would issue in light of the remaining issues of property, debt, income, and income earning potential of the parties. The court's order, right or wrong, is binding. "Non-modifiable" means non-modifiable in the absence of a successful appeal. This is one good reason for working out the differences between the parties in a marital settlement agreement.

Because these matters are except in rare situations irreversible, it is extremely important to work through these in advance. The issue of non-modifiable alimony can be very important and potentially burdensome on one or both parties. It should not be entered lightly.

On the other hand, there may be situations where such a non-modifiable alimony agreement makes sense in the context of the overall division or property and debt. To know if it does, you must first understand the overall picture of property and debt and how the issues might be resolved if left to the court.

This is best accomplished with the guidance of an experienced divorce and family law attorney.

Related Reading:
New Mexico Alimony: Til Death Do Us Part!
There are Many Options for the Payment of Alimony in New Mexico
Alimony and Spousal Support in New Mexico

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

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

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

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

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

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

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

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

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

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

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

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

Collins & Collins, P.C.
Albuquerque Attorneys

According to New Mexico law, all debts incurred during a marriage are considered to be community property and will be divided equally between the spouses during a divorce. Separate property is individual property acquired before the marriage through purchase, gift, inheritance, and property that has otherwise been legally established as separate property.

What many people fail to understand is that while the New Mexico district court allocates portions of community debt to each spouse as part of a divorce decree, that district court order does not bind third-party creditors. Which means that, even though a divorce decree assigns a particular debt to one of the spouses, if that spouse does not pay on the debt the creditor continues to have a legal right to pursue the other spouse for payment of the debt. This can result in a spouse being pursued by a creditor for debts not contemplated under the terms of the divorce decree.

Since most creditors will not allow you to just switch the account holder designation from one individual to another, your recourse lies with the family court that handled the divorce proceeding. A claim can be brought against the ex-spouse for violating the divorce decree by not paying his or her share of the debt assigned to them and for restitution.

There may be some recourse for the innocent spouse in form of court ordered restitution. Restitution is repayment of any money paid by you to a creditor that should have been paid by your ex-spouse.

The divorce court can also assist you by ordering the ex-spouse to cooperate by completing necessary paperwork or signing documents that may allow you to have debt moved from one spouses name to the other. For example, the court may order one party to attempt to open a credit account in order to transfer the balance to that account. This would insure that the debt is only in the spouse's name that was assigned the debt in the divorce decree.

Also, the court can order a spouse to seek refinancing of a mortgage still held in both spouses name or to attempt to sell off property that was allocated by the decree to one spouse and for which the debt has become delinquent.

Unfortunately one spouse's failure to pay his or her debts as assigned by the divorce decree can have a negative impact on the other spouse's credit rating. While a negative credit reporting cannot be removed, you can annotate the negative reporting with a 100 word comment stating why the account was not paid pursuant to the terms of the contract with the lender. This may not likely improve your credit score, but if you do apply for credit in the future it will allow those future creditors to better understand your situation when they review your credit report.

While these type of post-divorce payment problems may not be completely avoidable, one way to mitigate the damage is to provide as much detail as possible in the marital settlement agreement and final decree of divorce. This would include very specific provisions regarding the legal and binding transfer of debt from one party to the other.

Most importantly, parties should be ordered to refinance debt whenever possible so that ongoing debts don't remain held in both parties' names. This provision should include detailed timelines for when and how debts will be repaid. It is very often worth the time and money required to discuss allocation and payment of community debt with an experienced family law attorney in order to ensure that things go as smoothly as possible once the divorce is completed.

Related Reading:
Protecting Your Credit Before, During, and After Your New Mexico Divorce
Financial Recovery After Divorce: There is a Light at the End of the Tunnel
New Mexico Marital Settlement Agreement is Final, Binding and Very Hard to Modify

Collins & Collins, P.C.
Albuquerque Attorneys

While it may sound a bit strange at first, divorce ceremonies are beginning to gain recognition as a way to help children cope with their parents' divorce and a way to reaffirm parents' commitment to raising their children as a parental unit. A recent MSNBC article discusses this new trend.

First off, divorce ceremonies are not the same as divorce parties. While a divorce party usually entails a festive atmosphere of food, music, and drinking; a divorce ceremony is a more solemn and serious occasion. Divorce ceremonies focus on the future behavior of the former spouses toward each other and their children.

Many people feel that, like any major transition in life, a ceremony is an appropriate way to signal the end of a marriage. In this case, the ceremony is more like a funeral or memorial than a wedding in that it marks the end of a relationship and is meant to provide closure to all of those involved. Divorce ceremonies are intended to help all parties involved deal with the hurt, anger, and blame that usually arises from a divorce. These ceremonies are meant to foster peace, forgiveness, and closure for all members of the family.

Often divorce ceremonies are aimed at the children and helping them get through the emotional trauma of a divorce. However, they may also seek to solidify parents' understanding and commitment to their roles as co-parents after the end of their marriage. The centerpiece of the ceremony entails the former couple reciting vows in front of their children, family, and friends in a way that is similar to a wedding. The vows are promises the parents make to each other and their children about how they will handle parenting issues in the future.

Divorce ceremonies vary considerably. In some ceremonies, both parents and former spouses take part. In other situations, perhaps due to acrimony between the former spouses, only one parent takes part in the ceremony. Divorce ceremonies are usually solemn occasions, with a minister, rabbi, official, friend, or family member conducting the ceremony. Former couples or individuals pronounce their vows publicly and in some cases, children are invited to share a few words as well.

Although divorce ceremonies may seem a like a novel idea, they have been part of the Jewish religion for centuries albeit in a different format. As more and more couples opt for divorce ceremonies, churches and other places of worship have begun to celebrate them. Some churches have divorce prayers and liturgies, including the United Church of Christ and the United Methodist Church.

It remains to be seen whether the recent increase in divorce ceremonies will continue. In turn, the question of whether or not a divorce ceremony has any beneficial effects for those involved depends heavily on the parties involved. While it may not be the right fit for certain people, divorce ceremonies can be a way to open lines of communication and establish interaction patterns that could be helpful in the future. This might be particularly helpful for future child custody issues.

Albuquerque Attorneys

It has become common knowledge that nearly 50% of marriages in the United States end in divorce. When it comes to divorce in New Mexico, there are a variety of ways to approach the divorce process, which can be broken down into three general categories: litigated divorce, collaborative divorce and a Pro Se divorce. These are only general categories. There will be variations within each general category.

A litigated divorce means that the parties are actively using the court process to complete their divorce and is what people usually associate with the idea of divorce. A litigated divorce may be necessary when the parties cannot come to an agreement on child custody, child support, property division, etc. However, a litigated divorce is not just one that ends with a trial and decision by the judge rather; a litigated divorce really just means that the court is more actively involved during the pendency of the divorce. In most so-called litigated divorces, there is no trial and the parties reach an out of court settlement. However, the court may have to order the parties to participate in settlement or may have to issue interim orders about custody or who will pay the bills while the divorce is pending. If the case does move to trial, a judge has the power to make all of the important decisions regarding property division, support and child issues.

A collaborative divorce is one in which both parties agree to work in partnership to reach a divorce settlement agreement without going to court. Typically, each party has their own attorney but there are also other agreed-upon professionals, such as a child custody specialist and an accountant involved to advise both parties on how to best address the issues involved in their divorce. The collaborative process depends on complete transparency between the parties and all of the professionals involved as they work together to craft a divorce settlement. A collaborative divorce may be less expensive than a litigated divorce, if the parties complete the process and reach an agreement. However, in a collaborative divorce, the parties and their attorneys enter an agreement whereby the attorneys are forced to withdraw if litigation is threatened or the parties cannot come to an agreement. This means that should this happen, the parties would need to get new attorneys and begin the process of divorce again. So collaborative divorce is only effective if the parties truly commit to that form of resolution.

Using mediation or settlement facilitation is a sort of happy medium between a fully litigated divorce and collaborative divorce, which involves the parties using a neutral third party to negotiate a divorce settlement. Parties work with their individual attorneys during mediation to understand their rights and obligations. The mediators are not allowed to dispense advice to either party, but should be trained professionals that can give each party a reasonable idea of how the court will address each issue in order to encourage settlement. In a litigated divorce, parties are almost always ordered to participate in at least one mediation or settlement facilitation before the court will grant them a trial and, in a collaborative divorce, the parties may choose to uses a mediator or facilitator to assist in negotiations.

Finally, in a Pro Se divorce, the parties do not have attorneys and prepare documents resolving their divorce themselves. Keep in mind that Pro Se does not mean uncontested or that the case is not litigated. In fact, Pro Se divorces can often be the most adversarial of all for numerous reasons. A Pro Se is often not recommended unless the marriage was short, there are few assets, and there are no children involved because the parties may be giving up rights or incurring responsibilities that they do not fully understand. Though avoiding attorneys sounds, and sometimes is a good thing, a Pro Se divorce can go south pretty quickly. In addition, and perhaps more importantly, the parties make decisions and agreements that are bad for one or both of them which without the good graces of the other party cannot be undone or require extensive legal assistance to fix.

If you are contemplating divorce, your options may be dictated by financial considerations. If you can afford one, it is generally advisable to seek the guidance of an experienced family attorney to discuss the best way to approach your individual situation.

Related Reading:
Uncontested Should Not Mean Sloppy in New Mexico Divorce Proceedings
Valuation of the Marital Estate in New Mexico: The Importance of Full Disclosure
New Mexico Marital Settlement Agreement is Final, Binding and Very Hard to Modify

Collins & Collins, P.C.
Albuquerque Attorneys

The idea of an uncontested divorce is commonly misunderstood. The idea of an uncontested divorce is obviously appealing but not always practical or achievable. A distinction must be drawn between contested and high conflict. There is a very significant difference between the two.

Divorce is generally difficult; even an amicable divorce can become complicated. Since divorce is often a costly transition, many couples seek to cut expenses by pursuing an uncontested divorce. However, an uncontested divorce implies total agreement on a wide range of issues that may not be obvious at the outset. While an uncontested divorce may be the right choice to dissolve a short marriage with no children and few assets, it is not generally a good choice for longer marriages, especially if there are children, property, assets and debt involved.

To obtain an uncontested divorce in New Mexico, at least one of the spouses must have lived in the state for the previous six months. The parties then must prepare, agree upon and sign a Marital Settlement Agreement (MSA), which a judge accepts. After acceptance, the duties and rights in the MSA become legally binding on both parties. For a flat fee, some divorce attorneys will prepare and file all of the necessary documents for an uncontested divorce.

However, it is seldom the case that parties have reached perfect agreement on every issue that may be pertinent to their divorce. There are several issues concerning property division, child support, child custody, tax, and debt that couples may overlook when agreeing to an uncontested divorce. In trying to obtain a fast resolution, many couples often avoid important conversations and decisions, only to be forced to revisit these sometimes difficult and then more pressing issues in the future, resulting in far greater cost.

One of the most important issues couples must agree on is the division of property and debt. New Mexico is a community property state, where both marital assets and debt are divided equally upon divorce. In some cases, parties do not have a clear financial picture of their community property and may be agreeing to an arrangement that is not to their advantage. Many spouses may try to hide their assets to avoid giving their soon-to-be ex a fair share of the marital estate. A major issue is that in an uncontested divorce is that there is seldom discovery or disclosure of assets. If one spouse is indeed hiding certain assets, then clearly there is no real agreement on the division. And though a party can return to court to address the concealment of assets, it is a difficult and expensive process.

Child support is also a very complex issue in a divorce. If filing for an uncontested divorce in New Mexico, the couple must also submit a Parenting Plan with a child support worksheet. The Parenting Plan includes each parent's obligation for each child, which must comply with the New Mexico child support guidelines. Couples considering an uncontested divorce should also come to an agreement on custody, the possibility of one parent moving to another state, medical costs and insurance premiums, and educational costs. These can quickly cause an escalation of conflict when they have not been properly addressed.

Debt is an issue all its own and unfortunately, the debt often far exceeds any assets the couple may have.. In community property states like New Mexico, both spouses are equally responsible for debt acquired during the marriage, regardless of which spouse actually incurred the debt. As noted above, since there is usually no discovery or mandatory disclosure of finances in an uncontested divorce, it is important for both spouses to know the size of their debts both collectively and individually.

While uncontested divorce may seem attractive and less costly, it is often not the right choice. Some may wish to just get it over with which is certainly understandable in light of the stress of divorce. However, rushing through the process often leads to far more stress and costs in the future. Contested does not mean conflict. It may simply mean thoughtful and careful. Once it is done, it is very difficult to undo. Consulting an experienced divorce attorney before the process begins, even for an uncontested divorce, may cause avoid complications and costs in the long run.

Collins & Collins, P.C.
Albuquerque Attorneys

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