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The Divorce Process

| August 28, 2011

New Mexico has what’s called “no fault” divorce, which means that with respect to dividing up the marital property and debts, this is done without regard to fault. In other words, the reasons behind the divorce (abuse, abandonment, adultery, cruelty, incompatibility, etc.) are essentially irrelevant. These “fault” issues might be important with respect to child custody and timesharing issues, but they don’t factor in to the division of property and debt.

New Mexico is a community property state, which means that all of the marital property and debts are divided up equally between husband and wife. Community property is defined as all property that you or your spouse have bought or accumulated during the marriage. Community debts are those that have been incurred by either spouse during the marriage. But there are certain legal exceptions to this that can be important.

For example, any property that you received during the marriage through gift or inheritance is usually classified as the separate property of the person who received it. Any debts that were incurred during the marriage that were primarily for the sole benefit of one of the parties, or if it involved wasteful or improper conduct of some kind, such as gambling, drugs, or abuse of alcohol, could be classified as separate and belonging to the person who ran up that debt. But there are a lot of exceptions to the rule, and exceptions to those exceptions.

Separate property and debts, on the other hand, are typically property or debts that one person already had before the marriage. In the event of divorce, that separate property or debt usually remains with that person. But again, there are many exceptions to this rule. Knowing those exceptions, and when and how they might apply in your particular case, is your lawyer’s job.

Sometimes determining the true value of certain assets, such as ongoing businesses or retirement contracts or pensions, can be complicated. In those situations, we work closely with business and asset valuation professionals such as accountants, appraisers, and other financial professionals to protect your rights, and to make sure it gets done right.

Prenuptial or post-marital agreements can sometimes affect whether or not certain property or debts are classified as either community or separate. If there is such a document, it needs to be reviewed and analyzed, in order to determine whether or not that document is legally effective and what impact it might have on the case. This is a complex analysis that must be done by a professional.

Other issues that can become important in a divorce include what is called “co-mingling of assets”, which is a situation where marital property and separate property were mixed together during the marriage. This can sometimes have the effect of converting what would otherwise be one person’s separate property into marital property belonging to both, which would then be subject to equitable division between the parties during a divorce case.  The laws that the court applies in determining whether or not co-mingling occurred are highly complex and subject to differing interpretations depending upon the circumstances. Having a smart, experienced lawyer can make a huge difference in the outcome of your case.

Other matters that often come up in divorce cases include the temporary or interim division of marital property, income, and debts while the case is pending. This is to make sure that all of the major monthly fixed expenses are being paid (such as mortgages, rent, car payments, insurance, utilities, etc.), and that both husband and wife have sufficient income to get through the process.

If you have children, all child custody, timesharing, visitation, and child support issues will also be handled in connection with your divorce case.

If the parties have children, the divorce court will also issue temporary or interim orders regarding child custody, timesharing, and support. The legal standard that the courts apply is the “best interests of the children” and those of the parties. Usually these temporary orders get done at the same court hearing as the one dealing with property income and debts, but not always. Different courts and different judges do this different ways.

Sometimes alimony or spousal support is an issue in divorce. Depending upon the length of your marriage, the health and educational levels of the parties, the financial condition of the parties, the needs of each, the couple’s standard of living during the marriage, the age of the parties, and the earnings capacities of both husband and wife, alimony might be proper. It can be temporary, permanent, or transitional in nature, depending on the circumstances. The New Mexico Supreme Court has established certain alimony guidelines which can be helpful to review, but are not currently binding on the court. Some judges tend to follow them more than others.

Other things that go on during the course of a divorce proceeding include Formal Discovery, which is the legal process of identifying and collecting all of the documents, records, and information regarding the parties’ separate and community property and debts, and their income. It can also include, if the parties have children, important relevant information regarding the children, such as daycare records, school records, medical and/or counseling records, and other records. Lawyers have several important tools available to them to do this, including written interrogatories, document requests, requests for admission, third party subpoenas, physical inspections, medical and/or mental evaluations, and depositions under oath.

Formal Motions are the process by which an attorney requests the court to take certain action or do some particular thing regarding the case. The courts require that these Motions be presented in a specific and particular format, and there are strict time deadlines that apply. They generally must be in writing and must be filed with the Court. The other side has a right to notice and a right to respond to the Motion.

There are many different kinds of Motions that can be presented to the court, almost an infinite variety, but they generally pertain to matters related to property, debts, income, stopping somebody from doing something, forcing somebody to do something, selling the house, disposing of assets, getting counseling for the kids, daycare needs of the children, medical issues, requesting formal custody evaluations, appointing a guardian ad litem for the children, etc.

Formal Motions, and associated pleadings and hearings, can be costly and time-consuming, and should be avoided whenever possible. That’s why experienced lawyers, in order to reduce conflict and minimize expense for their clients, will first attempt to resolve problems, disagreements, and issues with the other side by negotiation and stipulated order.

Matters are generally only submitted to the court by formal written Motion as a last resort and will result in a hearing before the judge for final resolution.

If you’re thinking about filing for divorce, have been served with court papers, or are in the middle of divorce proceedings in court right now, we recommend you consult with an attorney immediately to discuss your situation, explain the applicable law, and advise you of your rights. Don’t make the mistake of trying to do this alone because once it’s done, it’s done. Some mistakes can’t be fixed later.

You have a lot at stake. You need the right lawyer.

You need a Smart Aggressive Experienced New Mexico Divorce Lawyer that’s committed to you. An attorney who will fight to protect your rights, protect your property, and protect your children.

Remember: The lawyer you choose to represent you in court makes all the difference. The quality of your lawyer will affect the outcome of your case.

If you live in Albuquerque, Santa Fe, Rio Rancho, Los Lunas, or the surrounding area, offers free consultations, same-day appointments, reasonable fees, and payment plans.

Call them today at (505) 888-5200. With 25 years of courtroom trial experience, they can help you get the results you need. Guaranteed.

L A W Y E R   A D V E R T I S E M E N T

Category: Family / Divorce Law

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