Areas of Practice

Divorce

Divorce is the legal ending of a formal and lawful marriage status, whether the marriage was entered into in New Mexico, another State, or another country.

In New Mexico divorce is "no fault." This means that the property and debts are divided substantially equally, without regard to fault, and time with the child(ren) is set by the best interests of the child(ren), not the fault of the parents.

A divorce is either contested or uncontested. A contested divorce does not mean that one person does not want the divorce (since, as stated above, divorce in New Mexico is "no fault", meaning that one party can get the actual dissolution of marriage even if the other does not agree). The term "contested" means the parties have not agreed to the division of property and debts, periods of responsibility with the child(ren), and support. If the divorce is uncontested, it means that both parties have agreed on the division of property and debts, support, and on a parenting plan for the child(ren). (I actually prefer the term Astipulated divorce, rather than Auncontested divorce, but I find that most people better understand the term Auncontested. When in Rome...) If the Divorce is contested, the matter will be eventually decided by the court, unless the parties can come to an agreement on their own (in which case it becomes uncontested), or with the help of mediation or a settlement facilitator. See the links for Child Support as to how child support is determined. See the Spousal Support or Alimony link for the factors the court uses for this issue. See the Custody, Parenting Plan, Visitation link as to how that is determined.

Common law marriage (cohabitation without a legal or religious ceremony and the filing of a marriage certificate in a county courthouse) is not recognized in New Mexico, even if it was initially entered into in another state which does recognize common law marriage. However, if there are minor children from the cohabitation (or even if the parents did not live together but they conceived one or more child(ren)), there are still issues of Custody, Parenting Plan and Child Support. See the Paternity, Custody, Parenting Plan, Visitation, and Child Support links.

If there are minor children from the marriage, issues of Parenting Plan and Child Support need to be addressed. See the Custody, Parenting Plan, Visitation and Child Support links. By definition, there are minor children in a paternity case, and the issues of child support and parenting plan need to be addressed.

The major difference between Paternity cases and Divorce cases is that property needs to be divided in a Divorce case but not in a Paternity case. New Mexico law requires the Court to divide the marital property equally, but not with mathematical certainty. Debts are included in the property division. It helps to look at debts as negative property.

If you and your spouse believe you have all the issues in your divorce worked out and would like to take advantage of my on line reduced fee uncontested divorce services, please click on the Uncontested Divorce link. If you and your spouse do not have all the issues in your Divorce worked out and would like to proceed to retaining my services for a contested divorce, please click on the link for Contested Divorce in order to give me the initial information I need to start your case. Doing so will save some office time, and therefore result in savings on your final legal fees.

Paternity

Paternity refers to a situation where two parents have one or more minor child(ren) without having a valid legal or religious marriage. The parents may have lived together or not.

In most ways there is little difference between Paternity cases and Divorce cases as far as Parenting Plan, Custody, and Child Support rights and obligations are concerned. In both kinds of cases both parents are legally responsible to support the child(ren). The major difference between Paternity and Divorce cases is that property is not an issue in Paternity cases.

The chief thing to watch out for in Paternity cases is that, under New Mexico law, Child Support can be charged against the non custodial parent (the parent who does not have primary physical responsibility of the child(ren)) from the birth of the child. For several years New Mexico State Law limited back support to 12 years, but that limitation was eliminated with recent amendments to the paternity statute. There are exceptions, but they cannot be relied upon. This issue affects both mothers and fathers but, statistically, this impacts fathers at a much greater frequency. Therefore, it is imperative that, if you have a minor child out there with whom you are not living, and there is no specific support obligation established by a court, it is in your interest to have a court address it immediately. Otherwise, later a court could hit you for up to 19 years of back child support. (Sometimes, even the minor child himself or herself, after reaching majority age, can pursue the parent for the back child support.) Better to address it now.

See the Child Support and Custody, Parenting Plan, Visitation links for more information.

If you and the other parent believe you have all the issues in your paternity case worked out and would like to take advantage of my on line reduced fee uncontested divorce/paternity services, please click on the Uncontested Divorce link. If you and the other parent have not worked out the parenting plan and child support issues and would like to proceed to retaining my services for a contested paternity case, please click on the link for Contested Divorce in order to give me the initial information I need to start your case. (The information in a paternity case is similar to the information required in a divorce with children, except for the date of marriage, which, of course, is not applicable.) Doing so will save some office time, and therefore result in savings on your final legal fees.

Adoption

Adoption is the legal substitution of a non biological parent for a biological or other legal parent (e.g. a previous adoptive parent).

In order to achieve adoption in the State of New Mexico, the biological or legal parents must either relinquish their legal parental rights or a court must terminate their parental rights. Legally, in New Mexico a parent's legal parental rights may be terminated for abuse, neglect, abandonment, or if circumstances have caused a de facto parent child relationship in another person(s), the relationship with the biological parent has deteriorated, and the court finds it in the best interests of the child(ren) to be adopted by the substitute parent(s).

An adoption removes the former legal or biological parent as the legal parent and substitutes the new adoptive parent(s) as the legal parent(s). This requires the adoptive parent(s) to support the child(ren) pursuant to law.

In New Mexico, the easiest adoptions are by a step parent adopting his or her spouse's biological child(ren), or adoptions of children within the fifth degree of consanguinity. Step parent adoptions are easier still when the step parent and biological parent have been married for at least 1 year. Certain other advantages result if the couple doing the Adoption has been married 2 years or more. Other adoptions have more requirements but are still possible. Adoptions by relatives within the fifth degree of consanguinity are even easier than step parent adoptions because they do not contain the one year and two year requirement advantages such relatives can adopt much more quickly than stepparents, without as many requirements and restrictions.

Custody, Parenting Plan, Visitation

These terms are often used interchangeably in a colloquial manner, but they have strict definitions under New Mexico law.

While some people believe that custody refers to the parent who spends more time with the child(ren) (and people still use the term in that way colloquially), in New Mexico the legal term Custody refers to decision making, not time. Time with the child(ren) is referred to periods of responsibility or visitation, depending on whether the parties have joint custody (which is true in most cases) or one party has sole custody (which is rare but happens occasionally).

Most parents are awarded joint custody of their child(ren). New Mexico law allows a court to award sole custody to one parent, but there are a lot of statutory requirements that have to be met in order to be awarded sole custody. Again, joint custody does not mean equal time sharing, and sole custody does not mean that the other parent gets no visitation. Rather, joint custody means that both parents have equal decision making rights as to changes in a child's life.

In general, custody rights can be the same in a Divorce and in a Paternity case. They may be different if a parent who does not have primary physical responsibility has not developed a relationship with the child.

In the First Judicial District of New Mexico (Santa Fe, Rio Arriba, and Los Alamos Counties) parents are required to attend mediation before going to a court hearing, except in emergencies (which are limited). The parents are not required to attend mediation if they have agreed on a parenting plan between each other prior to filing the case. If the parents do not agree between each other, or mediation with a third party facilitator fails to bring about a parenting plan, then various court procedures will be used, including trial and assessment by a court appointed expert.

Regardless of the method used, the main determining factor is the best interests of the child(ren), not the wishes of the parents.

Child support

Child support is set in New Mexico by a mathematical formula, where the amount is determined by both parents= income, the cost of medical insurance which covers the child(ren) and work related child care. In most cases, if a parent is not earning an income, the court can impute or attribute potential income to the non working parent, based on ability to earn or past earnings. State statute makes an exception to the imputing if one or more child(ren) is/are under the age of 6.

Once child support is set, it must be paid. Failure to pay child support as ordered can result in a finding of contempt of court, and can even result in a jail sentence (one of the few debts that allows imprisonment in the United States). If you owe child support, it is very important to pay it, as the courts don't consider as valid excuses what payors would consider as excuses.

One trap that people fall into is that they are unaware that, under New Mexico law, child support does not automatically change if one loses his or her job, or a child switches primary residence or reaches the age of adulthood. New Mexico places the burden on persons who pay child support to actually file a motion in court to achieve child support changes. Therefore, if there is a change in circumstances (income, illness, etc.), a motion must be filed immediately. A delay in filing could cause a payor to pay an unjustifiably high child support for several unnecessary months.

Another trap is the fact that in Paternity cases child support can be ordered from the birth of the child, not just from the filing of the motion. See the Paternity link for more information.

Spousal Support or Alimony

The terms alimony and spousal support are identical and used interchangeably.

Statistically, an award of spousal support is infrequent, the exception rather than the rule. However, in any given case spousal support can be awarded. The factors the court generally considers include the age and health and the means of support for the spouses, the current and expected future earnings of the spouses, the good faith efforts of the spouses to stay or become self supporting, the reasonable needs of the spouses, the duration of the marriage, the amount of the property awarded to the respective spouses, the type and nature of the spouses' assets (e.g., whether or not the property can help support the spouse who receives the property in the divorce), the type and nature of the spouses' debts, and any prior support agreements between the spouses. In assessing the needs of the spouses the court may consider the standard of living of the spouses during the term of the marriage, the maintenance of medical insurance for the respective spouses, and the appropriateness of life insurance insuring the life of the person who is to pay support.

Domestic Violence

Domestic Violence cases fall under the New Mexico Family Violence Protection Act.

Domestic Violence certainly includes physical violence and physical harm, but it also includes severe emotional distress, assault, threats, trespass, damage to property, repeatedly driving by a residence or work place or stalking, telephone harassment, harassment, emotional abuse, and harm or threatened harm to children,

An order of protection against domestic violence under this Act is similar to a restraining order in civil court, but there are important differences:

An order of protection under the Family Violence Protection Act can only be obtained against a family or household member, as defined in the Act.

While violation of a civil restraining order can cause a finding of contempt of court and jail, such violation is not actually a crime. However, a finding of violation of an order of protection is a crime.

If you are found initially to have committed an act of domestic abuse under the Act, you will be listed in the Federal Registry of domestic violence offenders, and, among other things, you will not be allowed to possess a firearm during the period in which the order is in force. It may also affect eligibility for certain types of employment.