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Top 10 Things Not to Do During Your Divorce

Posted on April 14, 2018 at 10:51 AM Comments comments (609)

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.

 

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.

What is a Abuse and Neglect Custody Hearing?

Posted on November 14, 2014 at 12:09 PM Comments comments (24)
I represent many people including children in child abuse and neglect cases. These cases have increased dramatically in recent years and the television news and newspapers publicize many of these cases. Because these cases are very unique in terms of the law and rules governing them, most people simply are not familiar with the nuances of the law including most lawyers.
The custody hearing which is the first legal proceeding held at the initiation of the abuse and neglect case. This hearing must be held within ten days of CYFD filing an ex parte order and taking a child or children into custody.  The hearing is designed to advise respondent parents and caregivers of their legal rights and further to determine whether  CYFD had probable cause to take custody of the children.
 
This last point is very important because many people including attorneys misunderstand this and believe the hearing is to determine whether probable cause exists to continue with the adjudication of the respondents. The law covering this is Section 32A-4-18(A) through 18(C) NMSA 1978.
 
These hearings are closed to the public and typically respondent parents, their attorneys, respondent caregivers if any, the Children's Court Attorney and witnesses are the only people allowed to appear before the Court.
 
The Court must advise the respondents of their rights which include: notice of the allegation(s) contained in the Petition; the right to an adjudicatory hearing on the allegations contained in the Petition; the right to an attorney; lastly the possible consequences of the process including potential termination of parental rights.
 
The law requires that CYFD make reasonable efforts to reunify the family if possible. This includes facilitating visits between parents and children if the Court determines that probable cause exists and CYFD should continue to have custody of the kids.
 
The Rules of Evidence do not apply in these hearings! This can be challenging in practical terms and esoterically. Realistically this means that "hearsay" evidence and non expert testimony comes in as well as other evidence which often times would be inadmissible in an actual civil trial.
 
The guiding principal in these hearings and in just about all legal custody matters is what is in the best interests of the child. This standard is more elusive than quantified.
 
For more information, contact me.

Minors and Emancipation

Posted on November 6, 2014 at 5:49 PM Comments comments (25)
This week I had a young client ask me the details of emancipation which means basically becoming an "adult" in the eyes of the law. As everyone knows, the law of majority in New Mexico is 18. Yet there are some circumstances in which a teen can become a legal adult before reaching their 18th birthday. Here's what New Mexico law says:
 
A child can become emancipated once the child reaches the age of 16 and meets one of the following requirements: validly married, or on active military duty, or been declared "emancipated" by the district court. What does this mean in practical terms?
 
A child may be legally married at the age of 16 with parental consent. Technically a child can be allowed to be married even younger with a Children's Court order allowing the marriage.
 
The second condition is active military duty. Children may enlist into the US Armed Forces when they are 17 if there's parental consent. However, it's my understanding that service members who have not obtained the age of 18 cannot be deployed overseas.
 
Lastly a child may petition the Children's Court which is part of the District Court. The child must prove that they are willingly living apart from their parent(s) and/or guardian(s) and the child is managing his/her own financial affairs e.g. working at a job. Lastly the Court must find that granting the petition is in the child's best interest.
 
As you can see, emancipation of minors isn't something the law favors. Please be sure to consult a qualified custody and family law attorney if you have further questions.

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