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Top 10 Things Not to Do During Your Divorce

Posted on April 14, 2018 at 10:51 AM Comments comments (600)

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 comments (244)

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 comments (222)

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:
  • The strength of each parent-child relationship. This is called "bonding". Sometimes a judge will hear evidence about the parent-child bond through a therapist's testimony;
  • The emotional and developmental needs of the child. This too often comes from a therapist or other expert testimony;
  • The age and health of the child and parents;
  • The stability of each parent’s home environment. This is called "safe and stable appropriate housing";
  • The child’s connection to his or her community and current school. This includes extracurricular activities;
  • Each parent’s ability and willingness to care for the child’s physical and emotional needs as well as display protective capacity and appropriate decision making;
  • Whether the parents are willing to cooperate and co-parent, and
  • Any evidence of child abuse/neglect or domestic violence, especially in the presence of the children;
  • Substance Abuse;

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 comments (160)
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 comments (158)
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 Comments comments (127)

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 Comments comments (53)
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:

  • In 2000, there were 4,496 same-sex couples living in New Mexico. By 2005, the number of same-sex couples disclosing their partnerships to the census bureau had increased to 6,063.
  • In 2005, there were an estimated 68,411 gay, lesbian, and bisexual people (single and coupled) living in New Mexico.
  • There are more female same-sex couples (58%) than male same-sex couples (42%) in New Mexico.
  • Individuals in same-sex couples are, on average, 42 years old, and significantly younger than individuals in married couples (48 years old) in New Mexico.
  • Same-sex couples live in every county in New Mexico and constitute 1.2% of coupled households and 0.7% of all households in the state.
  • 71% of individuals in same-sex couples are employed, compared to 60% of married individuals.
  • The average household income of same-sex couples is $53,720, compared to $59,692 for married couples. The median income of both same-sex and married coupled households in New Mexico is $47,000.
  • 66% of same-sex couples in New Mexico own their home, compared to 83% of married couples.
  • 27% of same-sex couples in New Mexico are raising children under the age of 18.
  • As of 2005, an estimated 3,624 of New Mexico's children were living in households headed by same-sex couples.
  • 9% of New Mexico's adopted children (or 1,056 children) live with a lesbian or gay parent.

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 Comments comments (46)
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 Comments comments (88)
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.

Who Gets to Keep the House?

Posted on March 24, 2015 at 6:26 PM Comments comments (39)
People frequently ask me who gets to keep the house in a divorce case. Theoretically the marital home is community property and is legally shared by both parties. However in real life it really boils down to who can realistically afford to pay for the home. In my experience, most of the time neither party can afford to keep the house.

One of the major causes of divorce in the United States is financial stress. And New Mexico is not immune. No big revelations but stop and think if money is what is underlying much of your marital discord, how realistic is it for you to keep the home? How much equity is in the home? Are you able to refinance without your spouse? Can you maintain paying the current monthly mortgage? What if the monthly payment is increased?

If it turns out that neither you nor your soon-to-be ex can afford the home, then what? If you are both able to agree to the value of the home and work together to sell it, all the better! You will reduce your expenses and likely the overall costs of the divorce. If not, then things aren't going to go so well.

When couples cannot agree about the value of the home the Court must decide. Things get even more complicated when parties dispute whether the residence is community property or whether a percentage of its overall value is separate property. This happens when your down payment is perhaps a gift from Mom or from an inheritance. Other factors which come into play are improvements and how they were paid for and of course the market.

The best thing is to try and work much of these details out with your spouse prior to actual litigation. If you have additional questions, please contact me.