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Law Office of Jay R. Mueller Albuquerque, NM (505) 563-5614
Focusing on Custody, Child Support, Divorce, and DWI Defense
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Why an Attorney can Make Your Divorce or Child Custody Case Easier
| Posted on March 18, 2022 at 4:20 PM |
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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 |
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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 |
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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 |
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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 |
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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 |
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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. |
Where do Child Custody and Child Support Law Come From?
| Posted on June 16, 2015 at 8:37 AM |
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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. |
Child Custody and the Gay Parent
| Posted on March 30, 2015 at 11:35 AM |
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New Mexico recognizes marriage between same-sex people. Our New Mexico Supreme Court "legalized" same-sex marriage in December of 2013. SeeGriego v. Oliver. The Court said in an unanimous decision that it is unconstitutional to deny marriage licenses to gay and lesbian couples. "We hold that the State of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections, and responsibilities that derive from civil marriage under New Mexico law," Justice Edward L. Chavez wrote in the decision. Several counties in New Mexico had already been issuing marriage licenses to gay couples, setting up the state Supreme Court to decide whether it was legal or not. New Mexico becomes the 17th state to legalize gay marriage. The United States Supreme Court is expected to decide upon the legality of same-sex marriage in April 2015. All that being said, in New Mexico the same set of laws providing for divorce and child custody apply to same-sex marriages and the same laws which govern custody will govern custody for same-sex couples. The 2012 case, Chatterjee v. King, provides among many things that parties in same sex relationships have the same rights to petition the Court for parentage, custody, and child support, as any other parent. This case is huge because when coupled with the Griego case, LGBT people enjoy the exact same legal schema for marriage, divorce, and child rearing as anyone else. Additionally, nothing within the New Mexico adoption law prohibits same-sex couples from adopting. I have personally witnessed within the last sixty calendar days from today, a same-sex couple adopt two young children. These boys were part of the foster system for years and these two men took great care of them as fosters. Here's some statistics. I realize it's not the freshest numbers but it's what I could find on point. In April 2008, the Williams Institute of the UCLA School of Law, using data from the United States Census Bureau issued a "Census Snapshot" that concluded, "While in many respects New Mexico's same-sex couples look like married couples, same-sex couples with children have fewer economic resources to provide for their families than married parents and lower rates of home ownership." Analyzing census data on same-sex unmarried-partner households, the report determined that:
Based upon my experience, I can personally attest to the fact that without same-sex couples and gay people volunteering themselves as foster parents, New Mexico child welfare would be in a far worse place. If you have any questions, please contact me. |
Grandparents and Child Custody Part Two
| Posted on March 30, 2015 at 10:50 AM |
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There are three conditions where grandparents can petition the Children's Court for custody of their grandkids. The New Mexico Grandparents Visitation Privileges Act provides the following scenarios: We discussed one of those scenarios in our November 28, 2014 installment. That article focused on the Kinship-Guardianship process whereby grandparents can petition for custody and guardianship for their grandchildren in cases where the biological parents have left the children with grandma and grandpa for an extended period of time and with no real end in sight. The second scenario is pretty easy to understand and that's when the child's or children's parent dies leaving the grandparents as the children's only suitable family to parent them. Sometimes this situation is covered in the biological parent's will or estate plan. Oftentimes it's not and the parent's death is quite unexpected. The third situation is during any legal separation, divorce, or paternity case involving the children. For example, the parents are divorcing, grandparents can basically intervene in the case and petition the district court for custody of the children. These scenarios are just that and do not guarantee that the grandparents will prevail. The Court must consider what is in the best interests of the child, the very same standard that the Court applies in all cases dealing with child custody. Often grandparents will need to prove through expert testimony why the Court should grant them custody as opposed to one of the biological parents or perhaps another intervening grandparent(s). Another situation is a pending child abuse/neglect case. If the children are taken into CYFD custody because of allegations of suspected abuse/neglect by the biological parent(s) the grandparents can contact CYFD and fight for custody. In these types of cases there's a presumption that the child should be staying with blood relatives such as grandparents. The basic caveats are that the grandparents can provide a safe environment etc. If you have additional questions, please contact me. Thanks |
Custody and the Single Dad
| Posted on March 24, 2015 at 7:59 PM |
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What do you do when the "baby's momma" doesn't want to let you have visitation? I get this question a lot from guys who are dads but aren't married to the mother of their child(ren). In fact, I was just in Court dealing with this common situation just yesterday. Oftentimes couples believe they can work things out without formalizing anything. I will ask a client if they have an actual parenting plan drawn up with the other parent. Most times they do not. People simply assume they have inherit parenting rights. When they don't get their usual visits with their kids like they are used to, they call law enforcement who's hands are tied. Nothing can be done because there's no Court sanctioned parenting plan. The first legal course of action is to file what's called a Petition to Determine Paternity,Timesharing, and Child Support. A filing fee of $137 is usually required along with the necessary request and notice of hearing. The Court will schedule a hearing and begin the legal process. The first issue is paternity---legally deciding who the biological father is. This is done either by agreement, the birth certificate, or DNA. Once the Court determines that Dad is Dad, the next issue is deciding a parenting plan/timesharing. In New Mexico, the law favors joint legal custody which means that both parents have a say in the upbringing of their children even if the parent doesn't have physical custody. Both parents are to be involved in deciding medical care, education, religion, social and extracurricular activities, etc. The parenting plan outlines these details and contains timesharing. The timesharing schedule contains the nut and bolts of the actual custody arrangement. Timesharing can be manipulated without substantively changing custody. Although they sound alike, custody and timesharing aren't quite the same thing. Custody is a legal status while timesharing is the visitation schedule. Alongside the custody portion of the case is also child support. The law presumes that parents will support their children financially. Child support is determined using a worksheet. An online worksheet is available on the New Mexico Department of Human Services website. Worksheet A is utilized when one parent is the primary physical custodian. Worksheet B is used in cases of 50/50 custody. Child support is roughly 17% of the noncustodial parent's gross income for one child and up to 19% or so for more children. There's a lot more that goes into it but that's a rough rule of thumb. The Court can deviate from the statutory requirements in some unique circumstances. Folks on certain social security disability can exclude this income from child support calculations. And finally the Court can impute your income if you're underemployed. That means they can assume you are earning min. wage even if you're out of work. A child support worksheet must be attached to the custody order so custody, timesharing, and child support are addressed in these cases. Sometimes the custodial parent refuses to allow the other parent visits because of unpaid child support. This is unacceptable and it's unlawful. When this happens it's time to go back to Court. The law is ever changing and the stakes are high---they're your kids. It's important to begin this process if you haven't done so. Without a formalized parenting plan and custody arrangement you have no vested rights! If you have further questions, please contact me. |
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