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|Posted on March 24, 2015 at 6:26 PM||comments (213)|
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.
|Posted on November 28, 2014 at 8:43 PM||comments (257)|
Grandparents and Child Custody Part 1
The Holidays seem to bring out the questions in people and a couple of folks have asked about their rights as grandparents when it comes to physical custody of their grandchildren. Sometimes children are left with grandparents, aunts and uncles, or other family members by the child’s parent for one reason or another. And usually this is done in the best interests of the child or children. What do you do when a weekend becomes six months and mom or dad are nowhere in sight? What can a grandparent do to protect their grandkids when they know the parents are engaged in dangerous or immoral behavior?
The New Mexico Kinship Guardianship Act Kinship Guardianship (NMSA §40-10B-1 et seq.)
The statute is meant to address the issue of when parents leave their children with their parents, siblings, or friends. The law helps the new guardians protect and care for the children while the parents are “taking a time-out” for lack of better terms. If the parents fight the petition, they must appear in Court. A guardian ad litem is appointed to represent the child’s best interest or the teenaged child. The Court then must decide what is in the child’s best interest while considering the petition for kinship-guardianship.
But what if the above scenario is not the case? What if your daughter is an unfit mother and who knows where dad, what then? Find out in our next installment.
|Posted on November 28, 2014 at 2:45 PM||comments (71)|
The Best Interests of the Child Standard
The underlying goal for any children’s court judge or family court judge is to determine what’s in the best interest of the child or children. They do this in every child custody decision, every child support determination, and in CYFD abuse and neglect cases. Parents believe their ideas, goals, and plans are in their child’s best interests. Lawyers draft motions and advocate for what they believe is in the best interests of child-client or in the best interests of their clients’ children. And of course, psychologists, teachers, therapists, guardians ad litem, and a host of other professionals submit reports, observations, recommendations and proffer testimony all trying to figure out what’s in the child’s best interests.
What does the “Best Interests of the Child” standard mean?
Although there is no standard definition of “best interests of the child,” the term generally refers to the deliberation that courts undertake when deciding what type of services, actions, and orders will best serve a child as well as who is best suited to take care of a child. “Best interests” determinations are generally made by considering a number of factors related to the child’s circumstances and the parent or caregiver’s circumstances and capacity to parent, with the child’s ultimate safety and well-being the paramount concern.
In New Mexico, our state statutes in the form of two passages from the Children’s Code provide this as guidance:
N.M. Stat. Ann. § 32A-4-28(A) In proceedings to terminate parental rights, the court shall give primary consideration to the physical, mental, and emotional welfare and needs of the child, including the likelihood of the child being adopted if parental rights are terminated.
N.M. Stat. Ann. § 32A-1-3 The Children’s Code shall be interpreted and construed to effectuate the following legislative purposes:
• First, to provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this code, and then to preserve the unity of the family, whenever possible
• To provide judicial and other procedures through which the provisions of the Children’s Code are executed and enforced and in which the parties are assured a fair hearing, and their constitutional and other legal rights are recognized and enforced
• To provide a continuum of services for children and their families from prevention to treatment, considering, whenever possible, prevention, diversion, and early intervention, particularly in the schools
• To provide children with services that are sensitive to their cultural needs
• To provide for the cooperation and coordination of the civil and criminal systems for investigation, intervention, and disposition of cases, to minimize interagency conflicts and to enhance the coordinated response of all agencies to achieve the best interests of the child victim
• To provide continuity for children and families appearing before the family court by assuring that, whenever possible, a single judge hears all successive cases or proceedings involving a child or family The child’s health and safety shall be the paramount concerns. Permanent separation of the child from the child’s family, however, would especially be considered when the child or another child of the parent has suffered permanent or severe injury or repeated abuse. It is the intent of the legislature that, to the maximum extent possible, children in New Mexico shall be reared as members of a family unit.
This is quite the laundry list of factors for the Courts to consider when deciding these types of complicated cases. We can see that Courts are to consider not only the basic needs of the child or children such as housing, food, medical care, and education, but also cultural and community concerns as well. Clearly this is a very broad list of factors for the Court to examine when it considers such things as parenting plans, physical custody, child support, and even more mundane questions such as which school will the child attend? Which church shall they attend? Which extracurricular activities are best for the child?
Decisions to these questions are seldom made very quickly. That means that Courts seldom make these types of decisions in one or two hearings. This is why this type of litigation is both costly and time consuming. Because these types of cases are very emotionally loaded and legally complex, oftentimes it’s best to seek legal representation. Please contact me and I can explain how to keep costs low and judicial involvement in your family’s lives to a minimum.
|Posted on October 29, 2013 at 12:20 PM||comments (127)|
Recently a new client approached me about the differences between a divorce and legal separation. Often times legal separation can be an effective mechanism for people who are experiencing some very unique circumstances.
Despite what one might glean from the internet or television, in New Mexico legal separation and divorce are very similar. The basic underlying difference is that in cases of legal separation, the parties are unable to remarry. In other words, legal separation divides property, assets, debts, etc. and it also carries with it custody and child support ramifications. However it does not end the romantic relationship legally as a divorce does.
Courts see legal separation as basically a quasi-divorce without the name change. Legal separation is a divorce without the termination of the actual marital relationship.
Sometimes people choose to separate legally for religious purposes, insurance, tax, and other purposes. If you are considering a legal separation in lieu of a divorce, please consult an attorney before filing anything.
|Posted on August 22, 2013 at 7:52 PM||comments (76)|
Tips for Non-Custodial Parents and Infant Visitation
Almost all parents want as much time with their children as possible. Many times, potential clients approach me wanting overnight visits with their very young children. I remind people that under the law, Courts seek to determine what's in the best interests of the child. Judge's look to psychologists and clinicians to help them determine the best custody arrangements. The age of the child is fundamentally important. Courts are very aware of children's attachment and nurturing needs.
A recent study from the University of Virginia confirms what many other studies and custody evaluators have concluded: small children for instance, infants require far more time with their primary caretaker than with the non-custodial parent. The University of Virginia study found that 43% of infants experienced attachment issues as a result of weekly overnight stays with the non-custodial parent compared with 16% of babies who had even less frequent overnight visits. Basically the bottom line is that babies need to spend the night with their primary caregivers.
Here are some tips for non-custodial parents of babies:
1. Understand that weekend visits and overnights may not be appropriate for your baby.
2. Consider negotiating for more consistent and frequent day-time visits instead of overnights.
3. Understand that your parenting plan should be updated as your child gets older and overnights can be incorporated when your child is more mature.
4. Consider that spending less time now with your child may result in much higher quality time with them later as they get older and circumstances change.
5. Just because your child spends more time with primary caregiver doesn't make you less of a parent.
Whether you are the custodial parent/primary caregiver or the non-custodial parent, an experienced Custody Attorney can help you craft a parenting plan that is both in your child's best interest and yours.
|Posted on August 22, 2013 at 6:29 PM||comments (323)|
This is a great article and I thought I would share it here.
Five Tips To Help Your Divorce Lawyer Effectively Represent You
Featured Image THE POST LOOP ============================================ THE POST CONTENT
This is a guest post by board certified family law attorney Scott Morgan. He is the founder of the Morgan Law Firm which has offices in Houston, Austin, and Sugar Land.
Anyone who is going through or has gone through a divorce can tell you how important it is that you have a very good attorney. But what not many people will tell you is that regardless of how good an attorney you have your results will suffer if you and your attorney cannot work together effectively. Having practiced family law for nearly 20 years I have a few ideas of what it takes to effectively work with your divorce lawyer. Here are my five favorite tips to help your divorce lawyer do a good job on your case.
Tip #1 – Don’t Hide Things from Your LawyerLying and hiding things from your attorney is absolutely not in your best interest. Not only will it damage the relationship with your lawyer, it is likely to cause great damage to your case. Whatever the facts are a good lawyer can help you to do damage control and deal with the situation in the best way possible. What no lawyer can effectively deal with is being blindsided at the courthouse by damaging evidence that you had hoped would stay hidden.
Tip #2 – Have Realistic GoalsWhile no attorney can promise you a specific result in your case, a good attorney can usually give a reasonable range of likely outcomes. If your goals are well outside this range then it will make it nearly impossible for your lawyer to settle your case. Pay careful attention if your lawyer tells you that your objectives are unrealistic and that you are very unlikely to achieve them via settlement or at the courthouse. Sometimes it is necessary to adapt one’s goals to a more reasonable level in order to get the best possible result.
Tip #3 – Keep Relevant Documents and Information OrganizedThis tip is important throughout the case but particularly important during the discovery phase of your case. A common frustration of divorce lawyers occurs when they ask clients to compile information and records for them and the client either delays or outright refuses to do the work necessary to get them. Again, while it may seem unreasonable that you are required to do so much work on your divorce case, if you want an outstanding result you need to give your lawyer what they need.
Tip #4 – Don’t Get Derailed by Your EmotionsIt very frequently happens in divorce cases that a client becomes their own worst enemy. I have had clients call their spouses and leave horribly profane voicemails, send similarly nasty emails, give away personal property that belonged to their spouse, and perform a variety of other childish gestures that were intended to anger their spouse. Of course, the result of these actions was to provide the other side with very helpful evidence to show the judge just how unreasonable my client was. Don’t fall into this trap. Keep your emotions in check and avoid taking any action that would make you look bad to an objective outside observer.
Tip #5 – Be Open to Your Lawyer’s AdviceThis tip buttresses Tip #2’s advice to “have realistic goals.” Clients often have a belief that if they just got the case in front of a judge then the injustice of the situation would be obvious and the judge would spare no effort in an extremely harsh punishment of the other spouse. The reality is often quite different. While the facts of every case are unique it is imperative that you have a good lawyer and listen to that lawyer’s input about your case.Hopefully these five tips can help you more successfully navigate the divorce landscape and avoid making some of the all too common errors made by parties in divorce cases.
|Posted on August 1, 2013 at 1:15 PM||comments (209)|
This Newsflash comes directly from the Albuquerque Journal. The link is below. This is an important news story as it changes a major understanding of the law.
Court: Father doesn’t have to pay child support
Scott Sandlin / Journal Staff Writer
His parental rights were terminated in 1990 Doña Ana caseA man whose parental rights were terminated after allegations of mental and physical abuse does not have to pay more than $117,000 in court-ordered child support for his two children, the state Court of Appeals has ruled.Judge Michael Bustamante, writing for a unanimous three-judge panel, concluded termination of parental rights severs the parent-child relationship completely – including the support obligation.The ruling came in the case of a Doña Ana County couple who married in 1984 and divorced in 1990. The father was ordered to pay $600 a month in child support payments for the couple’s two children.Three years later, the mother sought to terminate her ex-husband’s parental rights based on allegations of mental and physical abuse. The father didn’t show up for the hearing, and the district judge noted that the children had “witnessed horrific violence and mayhem to those they love.”The judge also noted the father had kidnapped the children and taken them to Texas for 10 months in 1990 without letting them have any contact with the mother during that period.The District Court said the children would not be damaged if they never had contact with the father again and granted the termination request. The November 1993 termination order made no mention of child support.The mother applied for aid from the state Human Services Department. HSD collected some $7,620 from the father and the mother continued to press for unpaid child support.In 2010, District Judge Michael Murphy of Las Cruces ordered the father to pay $117,502 in past due child support plus interest, for a 14-year period from 1994 through September 2010.The father appealed and the Appeals Court reversed Murphy’s order, noting that the state statute dealing with termination of parental rights was far from clear.The mother argued the law dealt with the rights of the parent, not a parent’s duties toward a child, so a child’s “inherent right to support from the parent persists” even after parental rights are ended.The father argued that if the Legislature had intended a continuing duty of child support, it would have explicitly said so.The Appeals Court said that revisions to adoption law, made part of the Children’s Code in significant 1985 revisions, removed reference to a parent’s “duties and obligations” post-termination.“The question is whether the changes in language … reveal a legislative intent to continue support obligations after termination of parental rights. We conclude that they do not,” the Appeals Court said.“Such a significant change,” it said, “would seemingly require definitive action by the Legislature.”Bustamante’s opinion says termination of rights is meant to end the connection forever.“The Legislature had no intent to change the fundamental nature and effect of an order terminating rights when it amended the Children’s Code in 1985,” the ruling said. “The fundamental and terrible act of severing the parent-child relationship cuts off all connection between them except as specifically excepted by the Legislature.”The court said its analysis looked at historical changes in laws “that reflect an evolution of attitudes toward the parent-child relationship and the problems posed by abused, neglected and delinquent children.”Judges Cynthia Fry and Michael E. Vigil joined in the opinion, which reverses the lower court.
|Posted on July 18, 2013 at 7:59 PM||comments (162)|
Ten Divorce, Custody, and Child Support Myths
1.It is OK to deny visitation if the other parent does not pay child support.
False. This situation comes up when the noncustodial parent falls behind in paying child support, and the custodial parent decides that the delinquency justifies shutting the other parent out of the children's lives. In the eyes oft he Court, child support and child visitation are separate issues. Child support is not payment for the privilege of visitation.
2.Adultery is a ground for divorce.
False. New Mexico is a no-fault state. Any married person can ask for a divorce “just because”.
3.A spouse can deny the other spouse a divorce.
False. In the days before no-fault divorce, one spouse could make it all but impossible for the other to end the marriage. This is not the case anymore. Anyone can get a divorce!
This does not mean that divorce is easy. In the vast majority of cases, one spouse wants to end the marriage and the other does not—at least in the beginning. And sometimes the reluctant spouse stalls the process of a divorce out of spite.
4.The mother automatically gets the kids.
False. Mother does not automatically get the kids. However, in many cases, the divorcing spouses agree the children's best interest is with the mother. In contested cases, where both parents seek custody, the court decides the question by also deciding what’s in the best interests of thechild.
5.A parent with a mental illness or a drug using parent will never get custody oftheir kids.
False. In NewMexico, parents even in state custody have rights. Just because one parent may suffer from a mental illness or drug or alcohol addiction, the Courts in many cases will not keep a parent from their children. There might be certain restrictions however. Also due to the changing nature of Medical Cannabis, the lawful use of marijuana may not face the Court at all!
6.You can take a smaller property settlement to avoid paying child support.
False. Property settlements and child support are separate issues. In New Mexico child support is decided based upon certain guidelines and judges are prohibited from deviating much from those guidelines except in the most exigent of circumstances.
7.Most contested divorces are settled at trial.
False. In many contested cases, lawyers prepare for trial even as they continue to search for a settlement. This is part of their strategy. Reputable divorce lawyers always try to work for a settlement rather than a trial because going to trial escalates the cost of a divorce astronomically. Few people havethe money or the stomach for it.
8.A divorcing woman can always count on alimony.
False. In most cases, most women do not get alimony at all. New Mexico provides for different types of spousal support however there are no hard and fast rules. Secondly and most importantly alimony is not even considered unless the couple have been married for several years.
9.If a parent terminates their parental rights they can avoid paying child support.
False. Even in cases where on parent terminates their legal rights to parent their children, they cannot avoid paying child support.
10. My kids can talk to the judge or testify in court.
False.The Court is not really interested in the wishes of the children. And the Court will not in most cases have the children address the Court. However, the Courts will often times appoint attorneys to represent the children. These attorneys are called guardian ad litems. They get to know the children and act as a voice for them.
|Posted on June 5, 2013 at 6:01 PM||comments (177)|
I just got off the phone with someone who asked the classic question "What can they do to me if I don't pay my child support obligation?". Well, here's the answer:
Courts get mad when you don't pay your child support. They can order payment of all back child support that you owe plus interest. That's called arrearages.
The New Mexico Child Support Enforcement Division is empowered to go after folks who don't pay their child support obligations. They can petition the Court for a hearing to get you. They aren't the only one's who can ask the Court for a hearing, so can the custodial parent or even your child (if over 18).
If you don't pay your child support obligation, the Court can garnish your wages, take your tax refunds, also licenses such as driving licenses, professional and occupational licenses can also be suspended.
You can even go to jail.
Plus a whole lot more. So please pay your child support, it's for your kids. If you believe you are paying too much, contact me.
|Posted on June 5, 2013 at 5:29 PM||comments (240)|
I get a lot of questions from people asking how they can go about getting an order of protection from domestic abuse. There's a lot of rumors and "common knowledge" out there about TRO's and Orders of Protection. Here's the law taken from Section 40-13-3 NMSA 1978 commonly called the Family Violence Protection Act:
A. A victim of domestic abuse may petition the court under the Family Violence Protection Act [40-13-1 NMSA 1978] for an order of protection.
B. The petition shall be made under oath or shall be accompanied by a sworn affidavit setting out specific facts showing the alleged domestic abuse.
C. The petition shall state whether any other domestic action is pending between the petitioner and the respondent.
D. If any other domestic action is pending between the petitioner and the respondent, the parties shall not be compelled to mediate any aspect of the case arising from the Family Violence Protection Act [40-13-1 NMSA 1978] unless the court finds that appropriate safeguards exist to protect each of the parties and that both parties can fairly mediate with such safeguards.
E. An action brought under the Family Violence Protection Act [40-13-1 NMSA 1978] is independent of any proceeding for annulment, separation or divorce between the parties.
F. Remedies granted pursuant to the Family Violence Protection Act [40-13-1 NMSA 1978] are in addition to and shall not limit other civil or criminal remedies available to the parties.
G. Standard simplified petition forms with instructions for completion shall be available to all parties. Law enforcement agencies shall keep such forms and make them available upon request to alleged victims of domestic abuse.
The Temporary Order of Protection is most likely issued once the petition is reviewed and grounds are found. The District Court will then schedule a hearing as soon as possible to determine whether the Order of Protection should be extended or other possible remedies. The Order can also be vacated (canceled).
The parties can either come to an agreement or series of agreements called stipulations or the hearing may commence or continue dependent upon the situation. If the Court or hearing officer determine that there's a finding of domestic abuse or similar, the Court will issue a report and Order. The Order will contain:
40-13-5 Order of protection; contents; remedies; title to property not affected; mutual order of protection A. Upon finding that domestic abuse has occurred or upon stipulation of the parties, the court shall enter an order of protection ordering the restrained party to refrain from abusing the protected party or any other household member. The court shall specifically describe the acts the court has ordered the restrained party to do or refrain from doing. As a part of any order of protection, the court may:
(1) grant sole possession of the residence or household to the protected party during the period the order of protection is effective or order the restrained party to provide temporary suitable alternative housing for the protected party and any children to whom the restrained party owes a legal obligation of support;
(2) award temporary custody of any children involved when appropriate and provide for visitation rights, child support and temporary support for the protected party on a basis that gives primary consideration to the safety of the protected party and the children;
(3) order that the restrained party shall not initiate contact with the protected party;
(4) restrain a party from transferring, concealing, encumbering or otherwise disposing of the other party's property or the joint property of the parties except in the usual course of business or for the necessities of life and require the parties to account to the court for all such transferences, encumbrances and expenditures made after the order is served or communicated to the restrained party;
(5) order the restrained party to reimburse the protected party or any other household member for expenses reasonably related to the occurrence of domestic abuse, including medical expenses, counseling expenses, the expense of seeking temporary shelter, expenses for the replacement or repair of damaged property or the expense of lost wages;
(6) order the restrained party to participate in, at the restrained party's expense, professional counseling programs deemed appropriate by the court, including counseling programs for perpetrators of domestic abuse, alcohol abuse or abuse of controlled substances; and
(7) order other injunctive relief as the court deems necessary for the protection of a party, including orders to law enforcement agencies as provided by this section.
B. The order of protection shall contain a notice that violation of any provision of the order constitutes contempt of court and may result in a fine or imprisonment or both.
C. If the order of protection supersedes or alters prior orders of the court pertaining to domestic matters between the parties, the order shall say so on its face. If an action relating to child custody or child support is pending or has concluded with entry of an order at the time the petition for an order of protection was filed, the court may enter an initial order of protection, but the portion of the order dealing with child custody or child support will then be transferred to the court that has or continues to have jurisdiction over the pending or prior custody or support action.
D. A mutual order of protection shall be issued only in cases where both parties have petitioned the court and the court makes detailed findings of fact indicating that both parties acted primarily as aggressors and that neither party acted primarily in self-defense.
E. No order issued under the Family Violence Protection Act [40-13-1 NMSA 1978] shall affect title to any property or allow a party to transfer, conceal, encumber or otherwise dispose of another party's property or the joint or community property of the parties.
F. Either party may request a review hearing to amend an order of protection. An order of protection involving child custody or support may be modified without proof of a substantial or material change of circumstances.
G. An order of protection shall not be issued unless a petition or a counter petition has been filed.
As we close, I want to add a piece on the legal definitions of terms as used in the statute:
As used in the Family Violence Protection Act:
A. “continuing personal relationship” means a dating or intimate relationship;
B. “co-parents” means persons who have a child in common, regardless of whether they have been married or have lived together at any time;
C. “court” means the district court of the judicial district where an alleged victim of domestic abuse resides or is found;
D. “domestic abuse”:
(1) means an incident of stalking or sexual assault whether committed by a household member or not;
(2) means an incident by a household member against another household member consisting of or resulting in:
(a) physical harm;
(b) severe emotional distress;
(c) bodily injury or assault;
(d) a threat causing imminent fear of bodily injury by any household member;
(e) criminal trespass;
(f) criminal damage to property;
(g) repeatedly driving by a residence or work place;
(h) telephone harassment;
(i) harassment; or
(j) harm or threatened harm to children as set forth in this paragraph; and
(3) does not mean the use of force in self-defense or the defense of another;
E. “household member” means a spouse, former spouse, parent, present or former stepparent, present or former parent in-law, grandparent, grandparent-in-law, child, stepchild, grandchild, co-parent of a child or a person with whom the petitioner has had a continuing personal relationship. Cohabitation is not necessary to be deemed a household member for purposes of this section;
F. “mutual order of protection” means an order of protection that includes provisions that protect both parties;
G. “order of protection” means an injunction or a restraining or other court order granted for the protection of a victim of domestic abuse;
H. “protected party” means a person protected by an order of protection; and
I. “restrained party” means a person who is restrained by an order of protection.
If you have questions, please contact us today!
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