320 Gold SW Suite 1125 Albuquerque NM 87102 US
Law Office of Jay R. Mueller Albuquerque, NM (505) 907- 4724
Focusing on Custody, Child Support, Divorce, and DWI Defense
Five Steps to Protect Your Money During Your Divorce
|Posted on March 18, 2022 at 6:10 PM||comments (1170)|
Getting a divorce is one of the most challenging life-transitions you can experience. Add the uncertainty about your hard-earned money, the experience can get even more stressful. Here are five steps to help keep your finances intact during—and after—a divorce:
Step 1. Assess your financial health, make a budget and stick to it!
Start by reviewing your income, retirement accounts, investments, and insurance policies. In fact, gather those documents and save them to a flashdrive for your lawyer. Next, make a budget that reflects your income and projected monthly expenses. Include both your personal debts and debts you share with your soon-to-be Ex. Be sure to think about NEW expenses such as finding new housing or buying a car on a single income and legal costs. You must remember especially if you are the higher earner that now you are basically supporting TWO households.
Step 2. Target shared debts first
Debt on joint accounts can be an issue. Despite whatever your marital settlement agreement or final decree says, your creditors will continue to consider both of you liable for the shared debt. Keeping those accounts open may pose problems later if your Ex falls behind on payments or simply refuses to pay them. Paying off those debts pre-divorce can help you avoid those issues.
Step 3. Divide assets thoughtfully
You and your Ex might agree about dividing shared assets equally and that’s good. But consider the following:
If the two of you will be in different income brackets post-divorce, consider the tax implications of holding on to various shared assets. Consider, some retirement funds are after-tax accounts, meaning taxes were already paid on contributions, and eligible withdrawals will be tax-free. Others are pre-tax accounts, meaning you will owe taxes on withdrawals.
For assets that come with tax obligations, the higher-earning party will likely pay higher taxes from keeping them. On the other hand, the lower-earning party may have a harder time paying the taxes.
You may also find that you and your Ex have different needs. If you own a home together, for example, carefully consider liquidity when deciding whether either of you will keep it. If one of you needs access to the equity tied up in the house, it may make sense to sell it.
Step 4. Revise your will and other documents
As a general rule, divorce will not automatically remove your Ex as the primary beneficiary of your estate and other assets. Designate new beneficiaries for your estate, life insurance, annuities, and retirement accounts! Don’t do this until after the divorce is finalized as doing so may violate the temporary domestic order in place during the divorce.
Step 5. Make a Plan B
If your marital settlement agreement says your Ex must pay spousal support (alimony) or child support payments to you, prepare for the possibility that they will fail to pay or pay late, especially these days of Global Pandemic and Economic uncertainty. Keep money in an emergency fund to cover expenses, such as childcare, in the event your Ex fails to pay.
In the end, be sure to consult your tax professional and financial advisor before entering into any marital settlement agreement. Do not depend upon your family law attorney to offer you tax and financial advice. Review the proposed marital settlement agreement with these professionals prior to giving your family law attorney authority to close the deal with your Ex’s lawyer.
Why an Attorney can Make Your Divorce or Child Custody Case Easier
|Posted on March 18, 2022 at 4:20 PM||comments (73)|
Retaining an experienced Family Law Attorney can make your life a lot easier when you are facing a life-changing crisis like a divorce and/or child custody case. Here are just a few of things your lawyer can do for you:
1. Serves as Your Guide through the Maze of the Legal System
The American legal system is complicated, and Family Law is certainly no different. Most people are simply not familiar with the ins-and-outs of New Mexico Domestic Relations Law and the Court’s procedures; and that’s completely 100% natural and normal. Often when folks try to represent themselves even for simple routine matters, things don’t go as planned. That’s where an experienced Family Law Attorney can help! Knowing the law, understanding the Court’s rules, and having professional relationships with the legal community help improve the odds that you will experience the results you want and what’s best for you and your family. And that’s what you want.
2. Protects Your Legal Rights
The Court expects that parents understand and know the law. If you choose to represent yourself in Court you do so at your own peril. Under New Mexico law, the judge is supposed to treat you as they would a licensed attorney and that means that the judge is supposed to demand the same professional standards from a non-lawyer as they would from someone who’s graduated law school, passed the bar exam, and has appeared in their courtrooms for years. In all fairness, most people are simply not equipped to do that for themselves. That’s why it’s important to seek out the counsel of an experienced Family Law Attorney who can advise you about your legal rights.
3. Takes Care of the Paperwork
Your lawyer will take care of the paperwork. Courts require all kinds of paperwork. An experienced Family Law Attorney will know what papers to file, how to draft those papers so the judge will read them, and how to respond to the other side’s papers. This is extremely important and shouldn’t be left to non-attorneys.
4. Deals with Your Ex
Most people find it difficult to communicate effectively with their Ex. Emotions run high in divorces and custody matters. And people say and write things they later regret. Your attorney can help by acting on your behalf; talking and communicating with your Ex so that important matters are handled without emotion and so that nothing is “lost in the translation”.
5. Acts as an Advocate
An experienced Family Law Attorney is your warrior who will act as your advocate. Your attorney has an ethical obligation to represent you zealously and professionally.
6. Acts as a Peacemaker
Despite what you may have seen on television or the movies, most of the time, you don’t want to be overly contentious. Courts do not want to see parents fighting nor do they want to see lawyers duking it out in the courtroom. An experienced Family Law Attorney will seek to find a peaceful reasonable resolution to your case. A good lawyer will want to handle of your legal issues with thoughtful negotiation and find solutions through communication and mediation. Even though you are divorcing or disagreeing on child custody matters, most parents have more in common with one another than not. Most people want what’s best for their children and the other parent. And a good lawyer will help you achieve your goals without destroying your family.
If you have questions regarding New Mexico divorce and/or child custody law, please contact me.
Top 10 Things Not to Do During Your Divorce
|Posted on April 14, 2018 at 10:51 AM||comments (915)|
Top 10 Things NOT to Do When You Divorce
Here are the top 10 tips on what to avoid when filing for divorce.
1. If you’re a woman, don't get pregnant. If you’re a man don’t get anybody pregnant.
Having a new baby during the pendency of your divorce is problematic. Not only is not healthy for you or the baby, but it can be off-putting to the Court should the judge find out. Likewise, if you’re a man, don’t get anybody pregnant. Although New Mexico is a no-fault state, the Court won’t be happy to hear that Dad has a new family in the making before he’s even divorced. Also, if you and your soon-to-be Ex are occasionally still on for an occasional “booty-call” beware! A pregnancy can only complicate an already complicated situation.
2. Don't forget to change your will and insurance.
Change your will! If you don’t update your estate plan, your Ex will have a legal claim to your estate in some circumstances. Be sure that you also change life insurance beneficiaries.
3. Now’s not the time to become promiscuous.
New Mexico is a no-fault state, so adultery is not legal grounds for divorce. However, in terms of determining custody, a parent’s behavior can be questioned and parents oftentimes find themselves under the microscope. Courts may frown on a parent’s home being open to new houseguests especially if the children are present.
4. Now’s not the time to discover substance abuse
Substance abuse is a leading cause of divorce and if your substance abuse was a cause of your divorce then perhaps you might want to work on that. Regardless, during the pendency of your divorce, alcohol and drug abuse are not things that will help. If you want a healthy relationship with your kids and hope to have visitation, then keep drugs and alcohol in check. Divorce lawyers love to argue to the judge that the other parent is dangerous to the children because of a recent DWI or rumors of hard drug use.
5. Don’t be a Bad Dad or Bad Mom. Be the best parent you can be.
Your kids are going to need you now more than ever. If you want to be the custodial parent then this is your moment to shine. You need to get or stay in your child’s life. Examples are getting to know the school, including the teachers and staff, visit your child’s extracurricular activities or encourage your kids to get involved in activities such as taekwondo, dance, scouting or gymnastics.
6. Don’t go it alone. Think about seeing a therapist.
There’s a couple of reasons to consider seeing a therapist. First, the divorce process can be emotionally grueling on a person. A good therapist can help you navigate through the mental and emotional challenges that everybody faces during these times. Secondly, many divorces are caused at least in part by such things as substance abuse, domestic violence, mental illness, and financial complications. A therapist might be a good resource to help you with some of these concerns. And lastly, a therapist can document your progress and fitness as a parent.
7. Don't Wait Until After the Holidays
You already know the holidays are going to be difficult. So why wait? Divorce lawyers often see a bump in business before, during, and after Christmas. It's also easier to get used to an empty home before the holidays.
8. Don't Forget About Taxes
Be sure to visit with a tax professional to determine the best tax strategies for you. This includes tax deductions for children, whether you should file “married separately” etc. These are not questions for your lawyer exclusively as most lawyers are not tax specialists.
9. Don't "Settle" Early
Of course, you want out of your marriage immediately but that doesn't mean you should forfeit your family’s financial security. Make copies of all of your important financial documents: pension statements, tax forms, credit card statements, and other records. It will help you become aware of what you own and even what you owe. This is all very necessary when it comes to the legal work that must happen during a divorce. This will make your divorce easier in that your attorney can already begin working on the financial disclosures.
10. Don't Increase Your Debt
Divorce is expensive. On top of attorney's fees, you will need money to set up a new household. Although the law permits temporary division and allocation of assets to ensure that each party isn’t destitute, this process can take awhile and it can take even longer before you receive your first check from your soon-to-be- Ex if the Court even awards an equalization in your favor. Also, you will be responsible for half of the expenses during the divorce such as real estate professionals, tax professionals, custody evaluators, etc.
I'm sure you may have additional questions. Please contact me and I'd be more than happy to discuss your case.
Eight Important Things to Do Before Filing for Divorce/Separation or Moving Out
|Posted on March 27, 2018 at 1:19 PM||comments (684)|
Eight Important Things to Do Before Filing for Divorce or Separation
People often rush to moving out for filing for divorce without thinking it completely through. Here’s Eight Important Things to Do Before Filing for Divorce/Separation or Moving Out.
1. If possible, remain in the marital residence for as long as possible. In most cases, both spouses have equal rights to the home until the issue has been ruled on by a judge. It’s easier to keep that which you have always had rather than fighting for a home you haven’t lived in for months. If you have kids, this is a good strategy as well since you don't want to have to move the kids out of their home or be the "noncustodial parent".
2. Gather your important documents like birth certificate, social security card, passport, diplomas, transcripts, banking and financial documents, and remove these documents from the marital residence. Don’t store them in your vehicle or even your workplace.
3. Make copies of these documents to include making copies of your bank statements, tax returns, credit card statements, monthly bills, etc.
4. Protect your privacy. Change the passwords for your email accounts, Facebook and other social media, bank account, phone etc. Get a new postal address from the post office and fill out the change of address card.
5. Get a new cell phone and begin using it and not the phone your spouse knows about.
6. Review your life, health, and auto insurance policies. You will likely need to get new policies.
7. Stash some cash and set a realistic budget. You cannot depend upon getting any money from your spouse despite what you’ve heard about “interim division” or “spousal support”.
8. Consult an attorney who focuses on family law.
What Do Judges Look at When Making Child Custody Decisions?
|Posted on November 4, 2017 at 12:39 AM||comments (471)|
In my fifteen years of experience, I have found that courts (not always to be sure) try to make child custody decisions based on what is in the child’s best interest; simple as that.
Typically, the judge weighs a number of various interrelated factors. While the factors vary from state-to-state, they may generally include:
Depending on the circumstances of your case, the court may award sole legal custody or joint legal custody. The court will also award a primary custodial parent if 50-50 is not ordered. The non-custodial parent will also be ordered to pay child support unless a deviation can be shown.
While some states favor joint or shared custody, others prefer that one parent has primary custody of the child (while the other parent has visitation rights). New Mexico prefers JOINT LEGAL CUSTODY. New Mexico law prefers co-parenting. If you need help understanding how your state handles child custody issues, contact me.
The Judge Just Ordered Us to Hire an Advisory Consultant. What the Heck is That?
|Posted on November 4, 2017 at 12:21 AM||comments (370)|
If your custody case is OUTSIDE of Bernalillo County, chances are, at some point someone will mention an Advisory Consultant. In Bernalillo County, oftentimes families/parties are referred to the Court Clinic. The Court Clinic plays an integral part in custody decisions in many cases. However what happens when you don't live in Albuquerque?
If your case is in Valencia County, Sandoval County, or Cibola County you don't have access to a court clinic to help determine custody arrangements. Instead when parties reach an impasse they may be ordered to meet with an "Advisory Consultant". This is a third party who interviews the parties, the children, sometimes teachers, grandparents, and other "collateral" witnesses.
The Advisory Consultant will then issue a written report and recommendations. The court will usually adopt these recommendations without a hearing. If a parent wants to contest the recommendations, the parent must file objections within ten days.
In the 13th Judicial District which encompasses the above named counties, the court will pay a portion of the Advisory Consultant's fees. An Advisory Consultant or similar mechanism is used in many of the district courts outside of Albuquerque.
An Advisory Consultant is not the same as a Guardian Ad Litem. A GAL is an attorney with experience in child abuse/neglect and contentious custody cases. The GAL represents the child.
An Advisory Consultant is usually not a lawyer but a trained mediator. This person is tasked with crafting a parenting plan which both parents will hopefully accept and is ultimately in the child or children's best interests.
The point of an advisory consultant or other similar option to provide parents with something akin to a custody evaluation without the huge expense and hopefully contention.
If you further questions, please contact me.
Do You Need a Lawyer for Your Child Custody Case?
|Posted on November 3, 2017 at 7:08 PM||comments (334)|
One question people ask me is whether they need an attorney to represent them in their child custody and/or family law matter. Short answer...Nope! You do not need a lawyer to represent you.
In the United States and New Mexico specifically, you do not need a lawyer to represent you. You have a right to represent yourself in court. You can go to court, file pleadings, and argue your case. Many people do. I know this because they hire me to fix the mess.
Truth be told, many people have represented themselves in court and some folks have done pretty well for themselves. But the sad fact is most people don't fare so well. Despite the fact that various NM Supreme Court approved forms are available online, knowing how to fill out those forms can be very confusing. The district courts oftentimes host various family law clinics. However an hour seminar is not the same as years of experience in the court room.
Under New Mexico law judges are to treat people representing themselves called being a pro se litigant, the same as if these people were lawyers. That means the judges will hold a pro se litigant to the same standards as a professional attorney. In short, a pro se litigant will be expected to know the various court rules of evidence and procedure as well as proper decorum. The parent who represent themselves will be expected to understand the applicable law and must be able to draft legal paperwork.
But one of the biggest services you get when you hire a lawyer is a professional advocate who filters much of the emotional stress for you. Many people sabotage their case by being overly "emotional" in court. Typically the other parent or their lawyer strategically pushes your buttons helping to elevate an already explosive situation. Often judges view this against you! They think you are possibly unfit as a parent simply because you displayed feelings; feelings after being pushed to the edge in court. That's where a good family law or custody lawyer comes in. They shield you from much of this and tell your side of the story.
When you retain an attorney not only are you paying for someone to prepare and file paperwork, but an experienced professional who is not only familiar with the law, but just as importantly your lawyer must have rapport with the court and an ability to craft solutions creatively. Creative solutions without all the emotional baggage and hostility.
If you have questions please feel free to call.
Joint Custody vs. Sole Custody
|Posted on July 17, 2015 at 2:25 PM||comments (324)|
What is the difference between joint and sole custody?
Custody is a legal term and refers to whom, whether parent(s) guardian, state, or otherwise, has the legal ability to make decisions on behalf of the child(ren). Custody is not exactly the same as where the kids live. The details of where the kids will spend their time, which schools they will attend, which churches if any they will attend, extracurricular activities etc. are governed by the parenting plan. Generally speaking, custody can be divided into two broad categories: joint custody and sole custody.
Joint custody means that both parents share in the decision-making and parenting of the children. Both parents are to be included in school activities, both parents are to be afforded quality time with their children. This by no means 50-50 timesharing or even any percentage of custodianship. Joint custody simply means joint decision-making.
Sole legal custody means only one parent has legal authority and responsibility for the child. The other parent may have ample visitation but has no legal ability to make decisions on the child’s behalf. Sole legal custody is not, therefore, the same as sole physical custody. Nevertheless sole legal custody is oftentimes challenging to get and in most cases is not likely in the child’s best interest.
In most cases, sole legal custody is awarded to one parent over another when there’s sexual and/or physical or emotional abuse involved. Barring something like that, sole legal custody is difficult to get. That however is not the same as being awarded sole physical custody while both parents are awarded joint legal custody.
Judges tend to also tailor legal and physical custody distinctions to the particular case. Sometimes they craft “special joint custody” or “modified joint custody” which can cause some confusion.
That being said, each state has its own rules and laws defining custody. The reader is cautioned to research the state statutes applicable to the reader’s particular jurisdiction.
In New Mexico, our laws favor joint custody. This point is huge! Almost every other jurisdiction in the United States does not. (Readers living in other states must research this point within the context of their particular state.) As you read the law, I want you to pay particular attention to first the opening presumption regarding joint custody but then look at the detail in terms of what the Courts expect in terms of the parenting plan. In other words, this is a very wide encompassing statute. Here’s the law:
40-4-9.1 NMSA 1978. Joint custody; standards for determination; parenting plan.
A. There shall be a presumption that joint custody is in the best interests of a child in an initial custody determination. An award of joint custody does not imply an equal division of financial responsibility for the child. Joint custody shall not be awarded as a substitute for an existing custody arrangement unless there has been a substantial and material change in circumstances since the entry of the prior custody order or decree, which change affects the welfare of the child such that joint custody is presently in the best interests of the child. With respect to any proceeding in which it is proposed that joint custody be terminated, the court shall not terminate joint custody unless there has been a substantial and material change in circumstances affecting the welfare of the child, since entry of the joint custody order, such that joint custody is no longer in the best interests of the child.
B. In determining whether a joint custody order is in the best interests of the child, in addition to the factors provided in Section 40-4-9 NMSA 1978, the court shall consider the following factors:
(1) whether the child has established a close relationship with each parent;
(2) whether each parent is capable of providing adequate care for the child throughout each period of responsibility, including arranging for the child's care by others as needed;
(3) whether each parent is willing to accept all responsibilities of parenting, including a willingness to accept care of the child at specified times and to relinquish care to the other parent at specified times;
(4) whether the child can best maintain and strengthen a relationship with both parents through predictable, frequent contact and whether the child's development will profit from such involvement and influence from both parents;
(5) whether each parent is able to allow the other to provide care without intrusion, that is, to respect the other's parental rights and responsibilities and right to privacy;
(6) the suitability of a parenting plan for the implementation of joint custody, preferably, although not necessarily, one arrived at through parental agreement;
(7) geographic distance between the parents' residences;
(8) willingness or ability of the parents to communicate, cooperate or agree on issues regarding the child's needs; and
(9) whether a judicial adjudication has been made in a prior or the present proceeding that either parent or other person seeking custody has engaged in one or more acts of domestic abuse against the child, a parent of the child or other household member. If a determination is made that domestic abuse has occurred, the court shall set forth findings that the custody or visitation ordered by the court adequately protects the child, the abused parent or other household member.
C. In any proceeding in which the custody of a child is at issue, the court shall not prefer one parent as a custodian solely because of gender.
D. In any case in which the parents agree to a form of custody, the court should award custody consistent with the agreement unless the court determines that such agreement is not in the best interests of the child.
E. In making an order of joint custody, the court may specify the circumstances, if any, under which the consent of both legal custodians is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent.
F. When joint custody is awarded, the court shall approve a parenting plan for the implementation of the prospective custody arrangement prior to the award of joint custody. The parenting plan shall include a division of a child's time and care into periods of responsibility for each parent. It may also include:
(1) statements regarding the child's religion, education, child care, recreational activities and medical and dental care;
(2) designation of specific decision-making responsibilities;
(3) methods of communicating information about the child, transporting the child, exchanging care for the child and maintaining telephone and mail contact between parent and child;
(4) procedures for future decision making, including procedures for dispute resolution; and
(5) other statements regarding the welfare of the child or designed to clarify and facilitate parenting under joint custody arrangements.
In a case where joint custody is not agreed to or necessary aspects of the parenting plan are contested, the parties shall each submit parenting plans. The court may accept the plan proposed by either party or it may combine or revise these plans as it deems necessary in the child's best interests. The time of filing of parenting plans shall be set by local rule. A plan adopted by the court shall be entered as an order of the court.
G. Where custody is contested, the court shall refer that issue to mediation if feasible. The court may also use auxiliary services such as professional evaluation by application of Rule 706 [Rule 11-706 NMRA] of the New Mexico Rules of Evidence or Rule 53 [Rule 1-053 NMRA] of the Rules of Civil Procedure for the District Courts.
H. Notwithstanding any other provisions of law, access to records and information pertaining to a minor child, including medical, dental and school records, shall not be denied to a parent because that parent is not the child's physical custodial parent or because that parent is not a joint custodial parent.
I. Whenever a request for joint custody is granted or denied, the court shall state in its decision its basis for granting or denying the request for joint custody. A statement that joint custody is or is not in the best interests of the child is not sufficient to meet the requirements of this subsection.
J. An award of joint custody means that:
(1) each parent shall have significant, well-defined periods of responsibility for the child;
(2) each parent shall have, and be allowed and expected to carry out, responsibility for the child's financial, physical, emotional and developmental needs during that parent's periods of responsibility;
(3) the parents shall consult with each other on major decisions involving the child before implementing those decisions; that is, neither parent shall make a decision or take an action which results in a major change in a child's life until the matter has been discussed with the other parent and the parents agree. If the parents, after discussion, cannot agree and if one parent wishes to effect a major change while the other does not wish the major change to occur, then no change shall occur until the issue has been resolved as provided in this subsection;
(4) the following guidelines apply to major changes in a child's life:
(a) if either parent plans to change his home city or state of residence, he shall provide to the other parent thirty days' notice in writing stating the date and destination of move;
(b) the religious denomination and religious activities, or lack thereof, which were being practiced during the marriage should not be changed unless the parties agree or it has been otherwise resolved as provided in this subsection;
(c) both parents shall have access to school records, teachers and activities. The type of education, public or private, which was in place during the marriage should continue, whenever possible, and school districts should not be changed unless the parties agree or it has been otherwise resolved as provided in this subsection;
(d) both parents shall have access to medical and dental treatment providers and records. Each parent has authority to make emergency medical decisions. Neither parent may contract for major elective medical or dental treatment unless both parents agree or it has been otherwise resolved as provided in this subsection; and
(e) both parents may attend the child's public activities and both parents should know the necessary schedules. Whatever recreational activities the child participated in during the marriage should continue with the child's agreement, regardless of which of the parents has physical custody. Also, neither parent may enroll the child in a new recreational activity unless the parties agree or it has been otherwise resolved as provided in this subsection; and
(5) decisions regarding major changes in a child's life may be decided by:
(a) agreement between the joint custodial parents;
(b) requiring that the parents seek family counseling, conciliation or mediation service to assist in resolving their differences;
(c) agreement by the parents to submit the dispute to binding arbitration;
(d) allocating ultimate responsibility for a particular major decision area to one legal custodian;
(e) terminating joint custody and awarding sole custody to one person;
(f) reference to a master pursuant to Rule 53 [Rule 1-053 NMRA] of the Rules of Civil Procedure for the District Courts; or
(g) the district court.
K. When any person other than a natural or adoptive parent seeks custody of a child, no such person shall be awarded custody absent a showing of unfitness of the natural or adoptive parent.
L. As used in this section:
(1) "child" means a person under the age of eighteen;
(2) "custody" means the authority and responsibility to make major decisions in a child's best interests in the areas of residence, medical and dental treatment, education or child care, religion and recreation;
(3) "domestic abuse" means any incident by a household member against another household member resulting in:
(a) physical harm;
(b) severe emotional distress;
(c) a threat causing imminent fear of physical harm by any household member;
(d) criminal trespass;
(e) criminal damage to property;
(f) stalking or aggravated stalking, as provided in Sections 30-3A-3 and 30-3A-3.1 NMSA 1978; or
(g) harassment, as provided in Section 30-3A-2 NMSA 1978;
(4) "joint custody" means an order of the court awarding custody of a child to two parents. Joint custody does not imply an equal division of the child's time between the parents or an equal division of financial responsibility for the child;
(5) "parent" means a natural parent, adoptive parent or person who is acting as a parent who has or shares legal custody of a child or who claims a right to have or share legal custody;
(6) "parenting plan" means a document submitted for approval of the court setting forth the responsibilities of each parent individually and the parents jointly in a joint custody arrangement;
(7) "period of responsibility" means a specified period of time during which a parent is responsible for providing for a child's physical, developmental and emotional needs, including the decision making required in daily living. Specified periods of responsibility shall not be changed in an instance or more permanently except by the methods of decision making described under Subsection L [sic] of this section;
(8) "sole custody" means an order of the court awarding custody of a child to one parent; and
(9) "visitation" means a period of time available to a noncustodial parent, under a sole custody arrangement, during which a child resides with or is under the care and control of the noncustodial parent.
Disclaimer: These codes may not be the most recent version.
Many states have similar statutes but you must find out for yourself!
Where do Child Custody and Child Support Law Come From?
|Posted on June 16, 2015 at 8:37 AM||comments (392)|
Where do Child Custody and Child Support Laws Come From?
People ask all the time, where do child custody and child support laws come from? Are the laws in each state completely different? Are these laws even constitutional? Let’s find out.
Family law in the United States comes from several sources. Primarily, family law is a state affair and much of the laws governing child custody and child support are state statutory law. These laws are found in each states’ codified statutes and/or codes. In New Mexico, we have Chapter 40 of the New Mexico Statutes Annotated 1978. This is the “Domestic Affairs” section of the state statutes.
These various statutes are interpreted first by the district courts or trial courts of original jurisdiction and then these laws are further applied and interpreted by the appellate and supreme courts of the several states, commonwealth(s), possessions, and territories. Not only are these laws created by state lawmakers, applied and interpreted by state courts, but these laws are applied in conjunction with state court procedural rules such as the rules of evidence and the rules of civil procedure.
We also have children’s court rules, decisions, and of course the court orders issued in everybody’s individual cases such as the divorce decree, and the plethora of minute orders and temporary orders which typically are issued in an average case.
So the first thing we must understand is that in the United States, family law especially as it relates to child custody and child support is for the most part under the purview of state law. The United States Supreme Court in Rose v. Rose, 481 U.S. 619, 625 (1987) (quoting In re Burrus, 136 U.S. 586, 593-594) repeatedly insists that “the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.” This line of thinking comes from the Amendment 10 of the federal constitution which provides, “the powers not delegated to the United States by this constitution nor prohibited by it to the States, are reserved to the States or the people.” This of course is an overstatement and an oversimplification, yet is still generally true.
Yet over the last hundred years or so, the federal government viz. various social welfare and educational policies, federal courts, and believe it or not, international treaties have changed the landscape of modern family law by means of slowly unifying the hodge-podge state laws. In recent times the United States Supreme Court began to recognize “a private realm of family life which the state cannot enter.” SeeMeyer v. Nebraska, 262 U.S. 390 (1923), Pierce v. Society of Sisters, 268 U.S. 510 (1925) and Prince v. Massachusetts, 321 U.S. 158, 166 (1944).
The Supreme Court has attributed this constitutional protection to the Due Process Clause or the Equal Protection Clause of Amendment 14 of the federal constitution. They have also cited to implied rights of privacy emerging from the “penumbras” of other textual guarantees. SeeGriswold v. Connecticut, 381 U.S. 479 (1965).
One of the key cases where the United States Supreme Court has helped to change the dynamics of family law was Loving v. Virginia, 388 U.S. 1 (1967). This case outlawed the ban on interracial marriage and reversed the laws of 17 states which prohibited interracial marriage. This case is frequently cited in same-sex marriage litigation.
Very recent judicial lawmaking with respect to same-sex marriage has been based upon equal protection and in the case of New Mexico, our equal rights provisions within our state constitution. This is how the federal courts have intervened in a seemingly state issue.
There are federal laws which affect family law as well. Most of those which will directly play in your case are likely federal tax laws, federal child welfare laws, and in many cases Medicaid, Social Security, and TANF rules and regulations. However you should be aware of federal child support enforcement laws, federal deadbeat parent laws, and kidnapping laws. Lastly, depending upon your circumstances, federal and tribal laws may play a role in your child custody or child support case.
Despite these federal developments, much of family law including custody law is local. We discussed earlier that most family law is state statutory law. This law is derived from state constitutional provisions. However we often forget that even local city and county zoning ordinances have an impact upon family because they define “single-family” uses and other residential definitions.
The laws affecting family law especially child custody and child support are ever changing and complex. The best thing to do if you have further questions is to contact me.
What to Do If the Other Parent Isn't Paying Their Child Support Obligation
|Posted on June 9, 2015 at 7:01 PM||comments (791)|
What to Do If the Other Parent Isn’t Paying Their Child Support Obligation
First, Get It in Writing!
In all fifty states, child support obligations are created by court orders. You probably got your child support order as part of a divorce or previous child custody/child support case. Even if you didn’t go to court in person—which can happen in cases where the parties reached an out of court stipulated agreement, there should still be something in writing. That’s your starting point. Even if you’d rather resolve the issue out of court, a court order gives you something to legally enforce. That’s leverage.
If you never made a formal written agreement with the other parent, it’s time to go to court. Without anything in writing, there’s literally nothing to enforce. A government child support enforcement agency, in New Mexico we have the New Mexico Child Support Enforcement Division can often help you get an order, or you can hire an attorney.
Are you able to talk to the other parent? You don’t have to start by talking with the other parent—but based upon years of experience, I certainly recommend that you try. Negotiating is quicker than any collection effort, less likely to create bad feelings and far cheaper than a court case. For those reasons, it’s usually in the best interest of the children. But don’t do this if you can prove your ex is lying about his or her finances, when there’s a pattern of domestic violence or other abuse, or a history of deceit.
Even if you do agree on changes to your written agreement, you should spell them out and get your agreement approved by a judge. Remember, if there’s no court order, your rights under the new agreement aren’t enforceable. Attorney fees for an uncontested change in a support order should be relatively modest.
If the other parent can’t pay the full monthly amount, agree to accept at least partial payment. Not that you want to let them off the hook completely, but something is better than nothing. And if they are genuinely cash-strapped, it may be better for everyone if he or she gets the child support reduced. You can always modify the obligation in the future when circumstances warrant.
All states have anti-retroactive modification laws. That means that a modification of child support can't be made retroactive beyond the date of the filing of a motion in court. There are of course exceptions. In New Mexico retroactive child support can be ordered in cases where a Petition to Establish Parentage has been filed pursuant to the New Mexico Uniform Parentage Act.
So let’s say you have a court order establishing a child support obligation compelling the other parent to pay you and you know want the Court to enforce it. How do you do that? You must file a motion to enforce child support order. There may be other procedural motions that must be filed as well. Nevertheless, the main motion is the motion to enforce.
Once you are in front of the judge and if you are successful your motion will be granted and you will have an order enforcing payment of child support. At this point you can ask the judge to help you garnish the other parent’s wages. The judge signs off on a wage withholding or garnishment order which you will then need to present to the other parent’s employer(s). Your state child support enforcement office can also help you. Of course in serious cases, you might ask the judge to incarcerate the other parent for contempt of the court order.
In some states there are mechanisms for levying a lien against the other parent for outstanding child support. Other states provide for criminal sanctions. The federal Deadbeat Parent Punishment Act can also be used in all fifty states. You might also be successful in intercepting their tax refunds.
You can contact the Office of Child Support Enforcement which is part of the Administration for Children and Families within the United States Department of Health and Human Services. This program is a federal mechanism which can assist you. There is also the United States Inspector General’s office.
The U.S. Office of the Inspector General (OIG) can intervene in child-support cases where the non-custodial (paying) parent lives in a state other than where the child lives, and:
The punishment include fines and up to 6 months in prison (or both) for a first offense. For a second offense, or where child support hasn’t been paid for more than 2 years, or the amount owing is more than $10,000, the punishment is a fine of up to $250,000 or 2 years in prison, or both.
One caveat to all of this and that is consider the following…If you have the non-custodial parent’s driver’s license, or professional licenses suspended it will be extremely difficult for them to get to work or even keep their present jobs or professions. If you have them arrested they certainly cannot work. If they cannot work, they cannot pay you child support.
One last point to consider, if you help maintain the other parent in your kids’ lives, if you allow for co-parenting, the non-custodial parent is more likely to want to pay their child support obligation. Right or wrongly, they will feel they are getting something for their money. Co-parenting is a good thing and it’s most cases in your child’s best interests
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- About Attorney Jay R. Mueller
- Family Law
- Child Custody
- Child Support Guidelines
- The Divorce Process
- What is a Guardian Ad Litem?
- DWI and Criminal Defense
- Same-Sex Couples and Families
- Domestic Violence
- Why Choose Jay R Mueller?
- Family Law Blog
- Contact Us Today
- Attorney Fees
- The Initial Consultation
- About Attorney Jay R. Mueller
- Family Law
- Child Custody
- Child Support Guidelines
- The Divorce Process
- What is a Guardian Ad Litem?
- DWI and Criminal Defense
- Same-Sex Couples and Families
- Domestic Violence
- Why Choose Jay R Mueller?
- Family Law Blog
- Contact Us Today
- Attorney Fees
- The Initial Consultation