Helping Personal Injury, Wrongful Death and Medical Malpractice Victims in New Mexico Since 2001
FAQ’s – New Mexico Divorce & Family Law
If you are thinking about a divorce, you will probably have a lot of questions. There are quite a few questions that come up on a regular basis. Our FAQ section will try to address some of the most common questions.
Every Divorce Case is Different
Keep in mind that every legal case, and divorce cases are no exception, is dependent on the unique circumstances of the parties. Every case is different is requires individual analysis.
The FAQ’s here are meant strictly to get you headed in the right direction. They are not intended as a substitute for the experience of an attorney.
Seek Legal Guidance
It is not necessary to have an attorney in a divorce case, or any legal case for that matter. However, it is highly advisable if you can afford one.
An experienced divorce attorney can steer you through some fairly thorny issues and situations. In the end, it is often less expensive to have the attorney at your side than to go it alone. It is definitely less expensive to get the attorney involved early rather than getting them involved later when it may be quite difficult to reverse damage that may have resulted from a lack of experience.
One of the questions we get most frequently is how long will it take to get divorced? The answer has many variables. In short, it can possibly be a fairly quick and painless process.
We get many calls where the client states that they just want a quick and inexpensive divorce, stating that the divorce is “uncontested.” In reality, few divorces are completely uncontested.
A truly uncontested divorce means that the parties agree upon all the terms. Not only that, but the parties have put those terms in writing and the agreement is ready for entry with the court.
A divorce is not uncontested if any of the terms have not been agreed upon. And typically, the divorce is not uncontested even when the terms are tentatively agreed upon but have not been put in writing.
It is remarkable how often the parties have agreed upon the terms until it is put in writing. Once it is put in writing, one or both of the parties will not like what they see. At that point, the case is moving towards litigation.
Terms Agreed Upon and Put in Writing
Lets start with the rare situation where the parties agree to all the terms and have put it in writing. In this case, the process can be very quick.
When there is writing and that writing has covered everything including child support, which will be addressed below, the documents must simply be submitted to the court where it will await the judge’s signature. This can generally, but by no means always, be done within a month of submission to the court.
Contested divorce means that any term is contested. This may seem like an exaggeration but you might be surprised at how a divorce might spin out of control over seemingly trivial terms.
The terms that are most often contested are child custody, child support and the division of property and debt.
Child Custody Disputes: Child custody can be intensely contested. In fact, a divorce is really never final in a conflicted child custody case since the parties may fight over this literally until the child has reached maturity (which is an entirely different discussion).
Suffice it to say that child custody conflicts can be the most long lasting, expensive and stressful aspect of any divorce.
Child Support: Child support can be and often is disputed with regularity. Unlike child custody, there is an end game with child support.
Child support is entirely dictated by the New Mexico Child Support Worksheets. It is simply a matter of choosing the right worksheet (A or B) and then filling in the blanks. The blanks are pretty straightforward.
Despite the fact that the worksheet items are pretty clear, the parties may fight over the numbers. However, the dispute is quickly resolved in a child support hearing. In Albuquerque, this hearing is conducted by a child support hearing officer. This hearing is held pretty quickly once it is requested.
Division of Property and Debt: The division of property and debt can also be hotly disputed. There are many elements, some of which are more intensely contested than others. For instance, the family home can be very difficult to address, as can retirement accounts.
Other assets, property and debt can be equally challenging. The challenge is accurately valuating the property and debt and then figuring out the fair (and legal) way to divide it between the parties. The valuation can be extremely difficult in cases high in significant property and/or debt. The valuation may require the services of experts such as accountants, investment advisors, real estate appraisers and so on.
However, it does not require extensive assets and debt to have a high conflict divorce on your hands. There are cases where the parties will not budge on the most trivial property issues, literally arguing over pots and pans. These pots and pans can get extremely expensive in terms of attorney fees and costs. More pertinent to the topic here, these pots and pans can stretch a divorce out beyond any reasonable or sensible time frame.
As one might expect, this can be a difficult and time-consuming process. In fact, this can stretch a divorce into years, not months.
Child Support Worksheet Must be Submitted to Court
For those handling the divorce on their own without the assistance of an attorney, or anyone else for that matter, it is important to understand that you must submit a child support worksheet with the divorce documents.
Most, if not all New Mexico District Court judges, will not sign off on the divorce without the child support worksheet. Failure to submit one will significantly delay the finalization of the divorce since it can take a while for the judge to review the documents, and failure to have the papers in order will simply send you back to square one.
In a Nutshell – It is Up to the Parties How Long the Divorce Takes
Each and every element above can serve as an object of dispute in a divorce. There are battles worth fighting. There are others that are better left alone.
Unfortunately, both parties must cooperate to get through the divorce. If either behaves irrationally, the divorce can take a long time and become pretty expensive. It is very helpful to have experienced divorce attorneys that can control the situation.
How Much Will My Divorce Cost?
The question of how much a divorce will cost is often the first and only question that we get from callers. The costs that we are addressing here now and typically on early call with potential clients relates to attorney fees and litigation costs, not division of property and debt, child support, alimony or other such costs.
The answer, which many do not like to hear, is that it is entirely dependent upon the parties and depending upon the level of conflict, it can get very expensive.
Divorce Costs Depend Upon Conflict
Attorney’s fees and costs are dependent upon the time put in by the attorney and all the various costs associated with a divorce. These are determined by conflict. How so?
Every contested issue, unless it is resolved by agreement of the parties, can end up as the subject of a hearing or trial. Many times, the judge will force the parties to settlement facilitation on contested issues. Settlement facilitators are themselves lawyers, i.e. they charge hourly fees as well.
Keep in mind this one important point: lawyers bill hourly and the hours expended are determined by the level of conflict.
Expensive Divorce Can be Avoided
It is possible to get a quick, easy, relatively stress free and inexpensive divorce. This is possible when the parties can come to an agreement on all the important terms of the divorce.
However, there is more to it than simply a generalized agreement. It must be put in writing and filed with the court for the divorce to be final. This is where, if it has not already, conflict will erupt.
Seeing the terms in writing and potentially binding in a court of law makes many formerly agreeable couples uneasy. Often on reflection or some prodding by friends and/or family or an attorney, those terms become unacceptable.
Conflict Begets Conflict
It might be surprising to many, unless you have been a party to such a divorce or work in the field, how seemingly trivial disputes can erupt into full scale high divorce hell.
These issues erupt from all kinds of issues including the major issues like child custody, division of the marital home, division of retirement accounts, alimony and so on. They also arise from more trivial matters such as how to divide the music collection or who keeps the boat.
Conflict arises in many areas. Some conflict may be founded. Other times, it is grounded in what are non-negotiable statutorily based issues.
Finally, they frequently arise from matters that are not really negotiable at all. This would include the often-hot button topic of child support. It is amazing how often people want to fight over child support and the lengths to which they may go for very slight gains.
The fact is child support in New Mexico is dictated by the New Mexico Child Support Worksheets. It is statutory. It is not negotiable and there is very little ambiguity in the terms that are included in the computation. Yet, couples will go back and forth to court on child support running up thousands in attorneys fees for little gain, and more frequently, no gain at all.
If there were errors in the computation, that should be fixed. If there is a significant change in income between the parties, that should be addressed. However, if a party just doesn’t want to pay support or on the other side just wants gouge the other, you are in for a lot of attorney fees or you will be proceeding without one.
Emotions are Cancerous in a Divorce
Many times, divorces are fought on emotional grounds. There is no rhyme or reason to the disputes. One or both of the parties are trying to even emotional scores from the marriage. This approach can literally bankrupt both parties.
Some battles are worth fighting. Settling emotional scores is not among them. This approach can lead to financial ruin.
There are battles worth fighting. There are matters honestly subject to dispute. There are others than can be quite complicated and must be addressed. This is to be expected and can in itself drive up the costs of divorce.
An Experienced Divorce Attorney Can Help
Again, there are some matters that must be addressed and there are others that are best left alone. It is important to know the difference and try to proceed accordingly.
It is important to have an experienced divorce attorney at your side to help guide you through a potential minefield to avoid conflict to the degree possible.
Not every battle has to be fought. Not every concession is a defeat. Keep this in mind and you can keep the costs of your divorce in check.
What Can I Do If Paternity is Disputed?
To establish paternity, one or the other party must file a Petition to Establish Paternity with the court. Once a Petition to Establish Paternity has been filed, the alleged father has a right, during the course of the proceedings, to have a DNA test conducted on himself and the child to establish paternity.
DNA Test Required To Establish Paternity
Either party may file the petition to establish paternity. Most often, it is the mother that files the petition along with a petition to establish child support.
However, in many cases, the father may need to file the Petition to Establish Paternity in instances where he may have been denied access to the child or in cases where he may believe that he is indeed the biological father.
Filing of Petition to Establish Can Come Years After Relationship
It is not uncommon that an alleged father receives the petition years after the relationship with the mother. In fact, it is not uncommon that the alleged father has no knowledge of the birth of a child.
This situation happens more often than one might think and it can have severe financial consequences. In fact, if proven to be the father, the father may be ordered to pay child support all the way back to the birth along with other costs.
The financial and familial consequences can be very severe and therefore it is highly advisable to hire an experienced family law attorney experienced in paternity and child support issues.
An Alleged Father Can Dispute Paternity
New Mexico courts often order DNA testing in contested paternity cases with the costs allocated dependent upon the outcome.
Paternity tests have become very reliable and inexpensive to conduct. Typically, a court will order a DNA test if paternity is contested. The court will often require the parties to share the costs upfront. However, the courts will often reallocate the costs depending upon the outcome.
As the saying goes, it is better to be safe than sorry, so if you have a doubt that you may be the father, the relative ease and reliability of a DNA test is certainly the prescribed course of action. There is no reason not to seek DNA verification unless a relationship with the child is desired with or without biological paternity.
Presumption of Fatherhood
There are cases where paternity is presumed, and others where the court will not set this aside. These situations are dictated by the best interests of the child.
Under other circumstances, for example, if you are married and your wife has a child, that later turns out not to be your biological child, a court does have the option of making you the presumed father and order you to continue supporting the child even if the child is not yours biologically. This is done for the protection of the rather severe consequences to the child of such a situation.
If you suspect that a child is not yours, and you are married or in a relationship, consult with an attorney, because the consequences of assuming the role of the father can legally obligate you to continue in that role.
Child Support and Time-Sharing Ordered Upon Proof of Paternity
Upon a determination of paternity, the court will order back child support in most cases. This support may go back to the birth of the child.
Whether you are the biological father or the presumed father of a child, once the paternity issue is resolved, the court can order child support and timesharing with the child.
As mentioned, even in instances where the court finding is made years later, the court may order back child support for all those years. The financial consequences of being ordered to pay years of support can be very severe.
Again, this is the case even if the father had no knowledge or reason to know of the child. Despite what may seem unfair, a back order of support is fully enforceable.
Contact a Knowledgeable Family Law Attorney
Assuming the parental responsibility of a child you did not know you had or continued being responsible for, a child that is not yours can be both a stressful and financially-taxing experience for everyone involved.