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Call us at: (505) 881-2566
2727 San Pedro NE • Suite 114 • Albuquerque, NM 87110

Death & Divorce Part 3 – Lump-Sum Alimony and Attorney’s Fees

As if getting a divorce weren’t difficult enough, what happens when one spouse dies before the divorce becomes final?  Part 1 of this series of articles addresses what happens when the deceased spouse died without a Will or Trust.  Part 2 covers situations in which there was a Will and Trust.  Part 3 covers how to handle lump-sum spousal support (alimony) and attorney’s fees pertaining the divorce after one spouse dies.

Unlike most states that abate or stop the case if a spouse dies during divorce, New Mexico law says the divorce continues as though the spouse had not died, substituting the Personal Representative of the estate of the deceased spouse as the party in the divorce litigation.

In 2012, the New Mexico Court of Appeals issued its ruling in the Estate of Peter Nauert v. Morgan-Nauert.  In that case, Husband filed a divorce petition in March 2006.  He subsequently died and the Divorce Court continued the proceeding pursuant to the domestic relations anti-abatement statute, Section 40-4-20(B), with Husband’s estate substituted as the Petitioner in the divorce case.  In September 2007, the personal representative of Husband’s estate opened up an informal probate action in the Probate Court to administer the estate.

In November 2007, Wife filed a motion for interim spousal support and award of attorney fees and costs in the Divorce Court.  At a status conference on Wife’s motion, Husband’s estate argued that any spousal support, attorney fees, or costs would be Class Six claims under the Probate Code’s classification of creditors’ claims, and informed the Court that the estate may not have sufficient assets to pay the Class One through Five claims.  At the hearing on Wife’s motion, the Divorce Court orally awarded Wife monthly spousal support beginning September 2007 plus attorney fees, and determined that the attorney fees were a Class One claim under the Probate Code.

In March 2009, the Divorce Court entered another order awarding Wife monthly spousal support and attorney fees from September 2007 forward, ordered both awards to be treated as Class One claims under the Probate Code, and required the Estate to pay both awards immediately.  The Estate did not pay the awards and instead filed an extraordinary writ in the NM Supreme Court, arguing that the Divorce Court’s classification of spousal support and attorney fee awards usurped the authority of the Probate Court.  The Supreme Court denied the writ without comment on the merits of the argument.

After the writ failed, the Estate filed a petition in the Probate Court seeking guidance on the classification of spousal support and attorney fee awards under the Probate Code.  The Estate also released funds to Wife to avoid being held in contempt of court for refusing to pay spousal support and attorney fees per the May 2009 order in the Divorce Court.  In August 2009, the Probate Court ruled that spousal support and attorney fees awards were not Class One but Class Six claims under the Probate Code.

Meanwhile, the Divorce Court held the property division hearing in the divorce case in late November / early December 2009.  The Divorce Court entered its findings of fact and conclusions of law in February 2010 pursuant to which it required the Estate to pay immediately a lump-sum spousal support award based on a monthly amount from August 2007 through August 2010 and all of Wife’s attorney fees in the divorce case.  The Divorce Court reasoned that Section 40-4-20(B) of the domestic relations statutes required it to determine all financial issues relating to the divorce, including spousal support and attorney fees, before the remaining assets could be treated as the probate estate that would be passed on to the Probate Court for further action.  Of note, the Divorce Court decided that its award of spousal support and attorney fees were not part of the probate estate and therefore out of the jurisdiction of the Probate Court.  This reasoning was upheld by the Court of Appeals, which means it didn’t matter whether spousal support or attorney fees in the divorce case were Class One or Class Six claims under the Probate Code; they simply weren’t part of Husband’s probate estate and needed to be paid first.  The Court of Appeals also decided that the Divorce Court’s order awarding spousal support and attorney fees could properly be characterized as part of the Divorce Court’s power to enforce its own orders as part of the “proceedings” Section 40-4-20(B) mandates a court to “conclude” as though both spouses survived.

The Court of Appeals further ruled that the Divorce Court’s order requiring the Estate to immediately pay spousal support and attorney fees did not violate the Federal Insolvency Act because such awards are not claims against the Estate and, therefore, the Federal Insolvency Act does not apply. The remaining arguments by the Estate and Wife’s counter-arguments are not recounted here because of their esoteric nature to non-lawyers.

The take-away message in the Nauert case is consistent with the Karpien and Oldham cases discussed in Parts 1 and 2 of this series – the divorce proceeding must be concluded before the probate case moves forward because you need to know what is left after the divorce that flows through to the deceased spouse’s estate that is available for distribution to the heirs.

Death & Divorce Part 2 – Dying With a Will or Trust

As if getting a divorce weren’t difficult enough, what happens when one spouse dies before the divorce becomes final?  Part 1 of this series addresses what happens when the deceased spouse died without a Will or Trust.  Part 2 covers situations in which there was a Will and Trust.  Part 3 covers how to handle lump-sum spousal support (alimony) and attorney’s fees pertaining the divorce after one spouse dies.

Unlike most states that abate or stop the case if a spouse dies during divorce, New Mexico law says the divorce continues as though the spouse had not died, substituting the Personal Representative of the estate of the deceased spouse as the party in the divorce litigation.

In 2011, the New Mexico Supreme Court issued its decision in Oldham v. Oldham, a case in which the court was required to interpret and harmonize potentially conflicting provisions of the domestic relations, probate, and trust laws to determine the process through which a decedent’s estate is defined and distributed when one party to a pending divorce case dies before a final divorce decree is entered.  In Oldham, the Supreme Court started its analysis by recognizing the domestic relations court is required to continue the divorce as if both parties had survived, but then framed the issue by asking whether a marital property judgment entered into under the domestic relations law (Section 40-4-20(B)) can statutorily revoke a decedent’s Will or Trust.

The Supreme Court concluded: (1) the decedent’s Will and Trust are NOT statutorily revoked by the entry of a divorce property judgment; and (2) before the divorce proceedings can be continued, a personal representative who is not disqualified by a conflict of interest must be appointed to represent the decedent’s estates through the conclusion of the divorce, i.e., the surviving spouse cannot serve as the personal representative of the deceased spouse’s estate in the divorce case because of the inherent conflict of interest; and (3) after the divorce case concludes, the decedent’s estate can be distributed per the Will and Trust and the governing New Mexico probate statutes.

What happened in the Oldham case?  In March 2004, Husband and Wife jointly executed the Oldham Revocable Trust Agreement (Trust) naming themselves as the Co-Trustee and Settlors.  Per the Trust, each spouse reserved the right to revoke and terminate the Trust, without the consent of the other spouse, as it affects his or her separate and community property.  Such revocation would be done by written document signed by the revoking spouse and delivered to the Trustee.  However, upon the death of the first co-trustee / spouse, that spouse’s share of the Trust property became irrevocable (permanent).  On the same day the Trust was signed, Husband signed his Will, naming Wife as his Personal Representative and giving his entire estate, with a few personal property exceptions, to be administered as part of the Trust.  At the litigation stage, the parties agreed that both the Will and the Trust were validly executed and that neither document was amended or revoked prior to Husband’s death.

Fast forward three years.  In February 2007, a divorce petition was filed on Husband’s behalf.  Wife timely filed a motion to dismiss the petition, alleging that Husband was not competent to file for divorce and that he was coerced to do so by relatives.  Whether Husband was competent when he filed for divorce remained a contested issue and no final decree of divorce was entered at the time the appeal was filed.  The divorce case was put on hold during the appeal.

In May 2007, nearly four years after being diagnosed with brain cancer, Husband died before the divorce finished.  After Husband died, Son filed an application in probate court seeking to be appointed Personal Representative of Husband’s estate, and Wife filed a counter-application to serve as the Personal Representative, arguing she had priority to serve because Husband nominated her in his Will.  The district court concluded as a matter of law that only a final decree of divorce, and not the mere filing and serving of the divorce petition, is sufficient to revoke the Will and Trust.  The district court declared the Will and Trust to be unrevoked and fully enforceable, and appointed Wife as the Personal Representative of Husband’s estate.

Son filed an appeal.  The Court of Appeals reversed the district court on the issue of Wife’s appointment as personal representative due to the conflict of interest that exists if Wife represented Husband’s estate against herself in the divorce.  The Court of Appeals also reversed on the determination that the Will and Trust were unrevoked and remanded both issues back to the district court for further proceedings.

Wife appealed to the New Mexico Supreme Court to address two issues: (1) whether a final judgment distributing marital property pursuant to Section 40-4-20(B) of the domestic relations laws revokes the governing estate planning instruments (Will and Trust) of the deceased party when that spouse dies during the pendency of the divorce case; and (2) whether an inherent conflict of interest disqualifies Wife from serving as the personal representative of Husband’s estate.

On the first question, the Supreme Court ruled that Section 45-2-804 of the probate code did not apply to the case because it provides the statutory mechanism for the revocation of a revocable trust, and Husband’s Will and Trust became irrevocable when he died by the language in both documents; therefore, Husband’s Will became effective and irrevocable upon his death.  Furthermore, Husband’s share of the Trust property was also irrevocable when he died based on his intent as expressed in the language of the Trust document.  The court reached this conclusion by reviewing the statutes that control how a Will or Trust can be properly revoked under the Uniform Probate Code (UPC) and the Uniform Trust Code (UTC).  The primary purpose of both the UPC and UTC is to discover and make effective the intent of a decedent in distribution of his property.  The UPC provides the exclusive methods by which a Will can be revoked, such as executing a subsequent Will or by performing an act that revokes the existing Will by burning, tearing, canceling, obliterating or destroying such Will with the intent to revoke it.  In the Oldham case, there was no dispute that Husband neither executed a subsequent Will nor performed an act to revoke his existing 2004 Will.  Under the UTC, the Trust provided the means by which it could be ended – signing a duly executed instrument revoking the agreement and delivering it to the trustee, before dying.  Husband did not do this.

Son argued that Husband’s filing and serving the divorce petition on Wife demonstrated clear and convincing evidence of his intent to revoke the Trust.  The Supreme Court did not rule on Son’s argument because he did not properly preserve the argument or present legal authority supporting his claim.  As a matter of law, an appellate court will not review issues raised in appellate briefs that are unsupported by cited authority.

In the alternative, Son argued that a marital property judgment entered under the domestic relations laws will act to revoke Husband’s Will and Trust posthumously.  The Son relied on Section 45-2-804(B)(1) of the UPC, which provides for “revocation of probate and non-probate transfers by divorce”, specifically, that the “divorce revokes any revocable disposition of property to the decedent’s former spouse made in a governing instrument, such as a will or trust, and revokes as well the decedent’s nomination of the former spouse to serve as personal representative or trustee.  The Supreme Court rejected Son’s interpretation because it found both the Will and Trust became irrevocable and effective when Husband died; thus, neither the Will nor Trust can be revoked through the “by divorce” provisions of the UPC or UTC.

On the second question, the Supreme Court ruled that Wife was disqualified by a conflict of interest from serving as Husband’s personal representative during the remainder of the divorce case because Wife’s interests are directly adverse to the interests of Husband’s estate.

The Supreme Court laid out the procedural sequence that must be followed in cases where one party to a pending divorce dies before the entry of the final divorce decree.  First, the deceased’s estate must be defined through the entry of a marital property judgment under the domestic relations law. Second, once the deceased spouse’s property and debts are determined in the divorce, then the decedent’s estate can be distributed in accordance with the probate laws.

If the party to a pending divorce dies intestate (without a Will), then the divorce court must determine the extent of the decedent’s separate property and share of community property in order to figure out what property will pass by intestacy.  If the deceased party dies with a valid Will or Trust, then the divorce court must first determine what separate and community property will pass under the Will or as part of the Trust.

In conclusion, the death of one spouse during a divorce does not stop the case.  Lawyers and judges faced with such situations must analyze both the domestic relations and probate laws to determine who gets what in the divorce before ascertaining what property and debts constitute the estate of the deceased spouse available for passing on to the heirs.

Death & Divorce Part 1 – Dying Without a Will or Trust

As if getting a divorce weren’t difficult enough, what happens when one spouse dies before the divorce becomes final?  Part 1 of this series of articles addresses what happens when the deceased spouse dies without a Will or Trust.  Part 2 covers situations in which there was a Will and Trust.  Part 3 covers how to handle lump-sum spousal support (alimony) and attorney’s fees pertaining the divorce after one spouse dies.

Unlike most states that abate or stop the case if a spouse dies during divorce, New Mexico law says the divorce continues as though the spouse had not died, substituting the Personal Representative of the estate of the deceased spouse as the party in the divorce litigation.

In 2009, the New Mexico Court of Appeals weighed in on the issue in Karpien v. Karpien.  In that case, Husband filed for divorce in 2005.  Before the divorce was finalized, Wife, who was suffering from cancer, died overseas on a trip with her mother.  Wife’s parents paid her final medical, funeral, and repatriation expenses.  As personal representatives of Wife’s estate, her parents were substituted for Wife in the divorce suit.  In the Final Decree of Dissolution of Marriage entered in June 2007, the court allocated the couple’s community property, determined and divided the community debt, and ordered the marital residence be sold to satisfy the community debt.

Husband appealed the trial court’s decision, and presented a question of first impression, specifically, what is the effect of the death of one spouse on a pending divorce proceeding?  The Court of Appeals concluded that Section 40-4-20 NMSA 1978 is controlling –

  • that marital property and debt covered by Section 40-4-10 is divided and distributed according to New Mexico domestic relations law,
  • that debt incurred after the death of the decedent spouse is separate debt to be dealt with through probate, and
  • that Husband is not considered the surviving spouse for purposes of probate.

In the Karpien case, the Court of Appeals affirmed that, if a party to a divorce action dies during the pendency of the case but before the final divorce decree is entered, then the proceedings for the determination, division and distribution of marital property rights and debts, and determination of spousal and child support shall not abate (stop), and the court shall conclude the divorce as if both parties had survived.  The Court of Appeals acknowledged that the domestic relations statutory laws of New Mexico differ from the vast majority of other states that continue to follow the common law rule of abatement that finds the marriage ends upon the death of one spouse and the divorce case cannot go forward.

Turning back to the two specific issues raised by Husband in the Karpien appeal, the court looked at the Uniform Probate Code for the definition of “surviving spouse” for purposes of distributing Wife’s estate, and noted that the definition specifically excludes an individual who is a party to a valid proceeding concluded by an order to terminate all marital property rights, including a property division judgment entered pursuant to the divorce laws.  Thus, Husband was precluded from being considered the “surviving spouse” for inheritance purposes under probate law.  Husband lost the first argument on appeal, and he could not be awarded Wife’s half of the community assets.

Turning to Husband’s second argument on appeal about the sale of the marital residence, the Court had to determine, as a preliminary matter, whether Wife’s final medical expenses and the costs of her funeral and repatriation were her separate or community debts.  The Probate Code directs that the deceased spouse’s separate debts and funeral expenses are to be paid first from his or her separate property, and if there are insufficient separate assets to pay such debts, then look to the deceased spouse’s undivided one-half interest in community property.  The Court of Appeals found that Wife’s final medical expenses were community debt, but her funeral and repatriation expenses were her separate debt because they arose after she died.  By removing the funeral and repatriations costs from the list of community debts to be paid by selling the family home, the Court of Appeals remanded the case back to the trial court to calculate a revised amount of community versus separate debt to see if it was necessary to sell the house to pay all the community debt.

In conclusion, the death of one spouse during a divorce does not stop the case.  Lawyers and judges faced with such situations must analyze both domestic relations and probate laws to determine who gets what in the divorce before ascertaining what property and debts constitute the estate of the deceased spouse available for passing on to the heirs.

What to Expect – Court Clinic

Overview

The Second Judicial Court Clinic in Albuquerque is a group of professional family therapists, counselors, psychologists, and social workers who work for the court. They are called Court Clinicians. Court Clinicians sometimes get involved when there are issues relating to when and for how long the children will be in each parent’s care, both on a regular basis and for vacations and holidays (also known as “timesharing” or “physical custody”). They also are called in when there is a dispute as to whether both parents or only one parent should make important decisions for the children, such as which doctor the children should see, where they should go to church, which school the they should attend, and where they should live (also known as “legal custody”). The Court Clinic’s role is to assist the court in determining what timesharing and legal custody arrangement will be in the child’s best interests. The Court Clinic does not address child support, spousal support, or division of marital property. Court Clinicians do not represent either party and they cannot give you legal advice.

If you were referred to the Court Clinic, it was probably for mediation, an On-Call Consultation, a Priority Consultation, or an Advisory Consultation. Sometimes it can take several months to get an appointment with the Court Clinic, but resolving disputes there can be much less expensive in the end than resolving them through other means.

If a judge or a hearing officer sent you to the Court Clinic, he or she will probably wait to decide custody and timesharing issues until the Court Clinic process is complete. Judges usually adopt the Court Clinician’s recommendations, so it is important to take the process seriously.

Mediation

When there is a custody dispute, the parties are often referred to mediation. The mediator’s job is to help the parents reach an agreement. At mediation, both parents will have a chance to present what they think timesharing and legal custody should be, so you should write out your schedule and any proposals and bring those to the mediation. Try to think of a way to address holidays, summer vacations, transportation, and exchanges that will be in your children’s best interests. In general, you should not discuss the court clinic process with your children.

At first, the Court Clinician meets with the parties only: lawyers do not attend, and you should not bring your children, new partner, relatives, or anyone else. If you, the other parent, and the mediator agree that the mediator should interview your children, you will schedule a separate time for that meeting. If the mediator does meet with your children, rest assured that he or she is trained to work sensitively with children. Your children will not be asked to choose between parents.

The purpose of mediation is to try to agree on timesharing and legal custody, but you are not required to agree to anything. Everything said or written in the mediation is confidential and cannot be used in court, although the mediator is required by state and federal law to report suspected child abuse or a risk of harm. The mediator will tell the judge whether or not you reached an agreement, and any terms of the agreement. If you do not reach an agreement, then the court will schedule another hearing to determine what next steps are appropriate. If mediation is not successful, the court may order a Priority Consultation, an Advisory Consultation, or a Custody Evaluation. The court may also simply issue a ruling on the timesharing or custody issues.

On-Call Consultation

“On-Call Consultation” refers to when a judge or hearing officer asks the Court Clinic for assistance during a hearing. The judge or hearing officer can ask the Court Clinic to perform a mediation or prepare a report and recommendations, as in an Advisory Consultation or a Priority Consultation. To make matters more confusing, sometimes the court orders a “Scheduled On-Call Consultation,” which is an On-Call Consultation that is set for another day.

Priority Consultation (PC)

Priority Consultations are for when the judge or hearing officer requests a brief assessment of the parties and/or the children in order to learn specific information. Usually, Priority Consultations are conducted within three weeks of the order being entered, so they are generally slower than an On-Call Consultation but faster than an Advisory Consultation (see below).

  1. Meet with parties
  2. Observe parties w/ children
  3. Additional meetings as necessary, including others (collateral sources)
  4. Written report & recommendations issued by the Priority Consultant
  5. 11 days to object
  6. If no objections, adopted by court

Advisory Consultation (AC)

An Advisory Consultation is an evaluation of the current parenting situation and a recommendation of what it should be going forward. The parents pay a fee for the Advisory Consultation that is based on their income and the number of children.

An Advisory Consultation begins with an initial assessment, at which the Court Clinician will meet with the parents separately. The clinician may observe interactions between the parents and the children. After the initial consultation, the clinician may conduct psychological tests or interview other people who may have relevant information, such as relatives. This process can take several months. When the process is finished, the judge will set a hearing for the clinician to present a summary of her findings and her recommendation as to the custody and timesharing arrangement that would be in the children’s best interest.

In making a recommendation, the Court Clinician has several tools in his or her toolbox. The clinician can require that visits be supervised by an organization like APN Family Services or by a friend or relative of the parents. The clinician can recommend classes in parenting or anger management. In some cases, the clinician recommends that the parents submit to random drug testing. Sometimes the Court Clinician recommends long-term plans like ongoing counseling for the children or the parents.

11-706 Custody Evaluation

Sometimes the court appoints a private psychologist outside of the Court Clinic to investigate the custody situation and prepare a report and recommendations. These are sometimes called “Rule 706 Custody Evaluations” in reference to the court rule that gives the judge to order such an evaluation. This is like an Advisory Consultation, except that it is usually more in-depth and expensive.

Other counties

This article is focused on the Second Judicial Court Clinic, which only gets involved in cases filed in Bernalillo County. However, there are some similar programs in other counties.

What to Expect – The First Meeting with Your Family Law Attorney

Most people feel nervous when meeting with a lawyer, especially when they are also dealing with a major change in their family life. Take a deep breath. I promise I don’t bite. Here’s a little bit about what to expect in our first meeting.

Time

My initial consultations take about 1 ½ hours on average. Based on experience, I find that clients stop absorbing information after that amount of time and sometimes they are emotionally exhausted.

Conversation

We’re going to have a detailed conversation. I am primarily going to listen to you. I will ask questions to guide the discussion so I can get a better picture of what’s happening in your life and to learn what are your primary concerns and goals. You will also have ample time to ask me questions. I suggest you write down your questions before you come, and then go over the list before we conclude the meeting to be sure you haven’t forgotten anything.

What specific things are we going to talk about?

Divorce: In general, divorce includes four broad topics – property, debt, children (if applicable), and alimony (also called spousal support). If there are minor children involved, then we will discuss custody (legal custody, which is decision-making rights and responsibilities) and physical custody (which is when the children will spend time in each parent’s care). We will also talk about how the bills get paid and money to live on while the case is proceeding, which is called the Interim Allocation of Income and Expenses.

Unmarried parents: If you are not married to your children’s other parent, we will focus our conversation on custody and child support matters. New Mexico does not allow alimony (called “palimony” in other states) if the couple was unmarried; however, sometimes the parents have bought major items of property together – such as a house, business, vehicles, etc. – that need to be divided when they break up.

Grandparents raising grandchildren: We will talk about your role in taking care of the children in the past, what is happening now, and what are your concerns for the future. I will go over the difference between grandparent visitation versus kinship guardianship or actual adoption. I will want to hear about the whole family dynamic – your relationship with each parent of the grandchildren, what you have done to contribute to taking care of the children, why you believe one or both parents are unable or unwilling to take care of the children now, and what are your long-term goals in terms of caring for the grandchildren.

What papers should you bring to the meeting?

New court cases: Generally, if there is no pending court deadline or hearing, it’s not necessary to bring any papers with you for the initial consultation. Some people feel more confident if they have a checklist to help them prepare for meetings. My Potential Client Questionnaire outlines the factual information we will discuss about you and your family. You can ask to have it emailed to you in advance, fill it out, and bring it with you if you wish.

Pending court cases: If you were served with court papers, such as a Petition for Dissolution of Marriage or Temporary Order of Protection, please bring those pleadings with you or email them prior to your appointment. I will need to read them.

Enforcement or modification of an existing court order: If you or the other side is trying to enforce or modify a prior court order, then bring the Motion to Enforce / Modify as well as the prior order being enforced or modified. I will need to read them.

Legal Procedure Options

Nowadays, families have options for resolving their disputes. You can still go to court and let the judge make the decisions, but you also can take more control over the ultimate outcome by utilizing either the Collaborative procedure or mediation / settlement facilitation. We will discuss the various legal procedure options during the initial consultation.

Representation & Fee Agreement

At the end of the initial consultation, I will provide you with the Representation & Fee Agreement. This is a contract that spells out the responsibilities each of us as if you choose to hire me to represent you. It explains my fees and your payment obligations. The retainer is set. I do not become your lawyer until I receive both the Agreement (signed in the presence of a Notary Public) and the retainer.

What happens next?

There is usually a flurry of activity at the beginning of a case. You will work closely with the paralegal in gathering documents and financial records. The appropriate pleading will be drafted. If there is a court hearing coming up, I will prepare for it and prepare you for what you will likely do in the courtroom. We will go to court together, if the issue is not settled in advance.

There are no dumb questions

If you don’t understand something, speak up! This is your life and we want you to understand exactly what’s happening every step of the way.

What to Expect – Going to Court

If you’ve never been to court before, it can seem scary. I will try to de-mystify the experience and hopefully alleviate your fear.

What should I wear?

Men should wear a button down shirt, dress slacks and nice shoes. If you wish, you can wear a suit. Dressing properly – like you were going to a job interview or important event – shows the judge that you respect the process and acknowledge the importance of the occasion.

Women should wear a dress, nice skirt or slacks, and a conservative blouse or sweater. If you wish, you can wear a suit. Skip the super short skirt or dress, and sexy tops. Again, think about how you would want to present yourself if you were going on a job interview.

Arriving at the courthouse

Get there early. You never know if there will be traffic, bad weather or anything else that might cause a delay. Confirm in advance where you will meet your attorney. Ask the legal assistant about where to park.

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FAQs – Divorce & Legal Separation

What does “Dissolution of Marriage” mean?

“Dissolution of Marriage” is just another way of saying divorce. When two people get divorced, they are dissolving the marriage. Once the judge signs the Final Decree of Dissolution of Marriage, the spouses are no longer married to each other.

What is Legal Separation?

If the spouses no longer wish to live together and they want to make legally enforceable agreements on how to divide their property and debts, or how they will raise the children, they can do this by obtaining a legal separation without getting divorced.

Is a Legal Separation process different from a divorce?

In New Mexico, you go through the same exact court process and deal with the same exact issues (property, debt, children, and alimony) in a legal separation as for a divorce, except at the end of a Legal Separation, you are still technically married to each other and cannot marry someone else.

Leaving ring and key on table with packed bag

My spouse and I don’t live together any more – are we legally separated?

Just living in separate households or no longer having intimate relations does not mean you are “legally separated”. That status requires a court order.

What issues need to be settled to finish a divorce or legal separation?

There are four issues that need to be settled to finish a divorce or legal separation: Property, Debt, Minor Children (custody, visitation & child support) and Spousal Support / Alimony.

What is a Divorce Lawyer? Are they different than other lawyers?

A divorce lawyer is an attorney who represents people going through a divorce. Divorce lawyers are also referred to as a family law attorneys, domestic relations attorneys, matrimonial lawyers, and other names. Such lawyers also handle custody and visitation cases where the parents are not married to each other. They also usually represent clients in domestic violence cases, grandparent visitation or guardianship cases, legal separations, etc. Basically, if the situation involves a family breaking up or raising children, most divorce lawyers can handle it. Note that not all family law attorneys handle adoptions.

Do I have to go to Court if we have an Uncontested Divorce?

A true uncontested divorce is one where both spouses have reached agreement on all issues of dividing property and debt, alimony, and the children (custody, visitation and child support). In those situations, it’s a matter of preparing the appropriate court pleadings, submitting them to the judge to review and approve, and then getting the Final Decree of Dissolution of Marriage issued – all of which can be done without ever appearing in court or seeing the judge face to face.

FAQs – Just Got Served?

I was just served with court papers – what do I do now?

Take a DEEP breath. Do it again. Find a quiet place, sit down, and read through the papers once to look for the date and time of any court hearing or deadline to file an Answer or responsive pleading. Then read through all the paperwork slowly and try to understand the gist of the legal language. Write down questions you have. Don’t feel stupid if you’re unable to comprehend everything. Lawyers went to school for many years and use their own language.

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FAQs – Child Support

How is child support determined in New Mexico?

Child support in New Mexico is set by the statute known as the New Mexico Child Support Guidelines. It is a straight forward formula that looks at the gross income (before taxes and withholdings) of both parents, multiplied by the number of children.  The formula tells you what the “base” child support will be.  Added to the base child support is the cost of medical insurance just for the children and the cost of work-related daycare. Sometimes there are “additional expenses” put on the child support worksheet such as private school tuition, regular medical expenses (orthodontist work, prescription medication, co-pays for therapy, etc.) and the cost of car insurance for teenage drivers.
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FAQs – Custody & Visitation in New Mexico

What’s the difference between custody and visitation?

“Custody” addresses whether one or both parents has the power to make decisions about the child whereas “visitation” covers when the child will spends time in each parent’s care.

What does “joint custody” mean?

Child custody means decision-making power, not when the children spend time with each parent. Parents most often receive joint legal custody in New Mexico.  Joint custody means that each parent has the right and responsibility to participate in making decision about five key areas of the child’s life such as:

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FAQs – Divorce & The Family Business

When a couple owns a family business, the divorce has to deal with the breakup of both the family and the business.

How is the business taken into account in a divorce?

If a couple starts a business while married, then the business is community property, even if only one spouse actually worked in the business. It is valued like any other kind of community property (house, investments, retirement benefits, etc.), which means figuring out what the business is worth (assets minus debts the business owes).
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FAQs – Domestic Violence Restraining Orders

When there is recent abusive behavior between a couple – whether physical violence or severe emotional or sexual abuse – you can obtain a restraining order against your spouse or partner under the Family Violence Protection Act.  NMSA §40-13-1 et seq.  It is not necessary to call the police to obtain a restraining order, but please call the police if you or your children are in immediate physical danger.  For further information, see Detailed Answer below.
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FAQs – Paternity Cases

Establishing paternity is very important to a child or children. It provides many emotional benefits for the child or children and legally entitles the children to the same rights as those of a child whose parents are married.
Father with Son on Back

What is Paternity?

Paternity is the legal status of fatherhood. In New Mexico, this means that a court or government agency has determined which individual is biologically the child’s father, often through paternity (DNA) testing. It can also be established voluntarily by the parents when they sign an affidavit and file it with the Department of Health. A paternity case involves minor children when the parents are not in a legally recognized marriage.
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How to Take a Screenshot

Within one of the many email blogs I receive I came across a very interesting organization known as the National Network to End Domestic Violence (NNEDV). They have a very informative website with easily accessible and downloadable content. I would like to share the following link with my clients and other attorneys, regardless of whether domestic violence is an issue within their particular situation or not:

http://techsafety.org/resources-survivors
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Facebook Privacy Safety

Facebook Safety imageBe safe on Facebook. Facebook seems to be a daily part of most people’s lives nowadays. I don’t think that everyone grasps the potential dangers and just how compromised one’s privacy is while online. Nor do most people understand how controllable it all is, and that with the proper education and precaution, Facebook can be quite harm-free and enjoyable, as it should be.
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I appreciate everything Mary Ann and her team have done for my children, and myself, which entailed so much. Everyone’s support was wonderful, and so needed, during such a brutal, emotional, and heartbreaking time.   M.F.
2017-03-31T16:04:38+00:00
I appreciate everything Mary Ann and her team have done for my children, and myself, which entailed so much. Everyone’s support was wonderful, and so needed, during such a brutal, emotional, and heartbreaking time.   M.F.

I just wanted to take a moment to thank you for your representation. I can’t tell you how confident and comfortable I felt having you represent me and the peace of mind that brought was worth more than I could...
2017-03-31T16:22:11+00:00
I just wanted to take a moment to thank you for your representation. I can’t tell you how confident and comfortable I felt having you represent me and the peace of mind that brought was worth more than I could have imagined.  I never once felt that you were working without my best interests in mind and contrary to my ex-husband’s experience, the expenses incurred were reasonable and fair, and I believe you were diligent about not incurring additional costs unless they were absolutely necessary.   A.N.

The day I walked into your office I did not believe that my life would take such a toil on my life, the fact and promise you made that you would never leave my side at any point even when...
2017-04-03T10:55:47+00:00
The day I walked into your office I did not believe that my life would take such a toil on my life, the fact and promise you made that you would never leave my side at any point even when I just couldn’t find the strength to open emails because it was so painful to read has defined a new beginning for me.  I am back in NM and I will never look back thinking that he got the best of me, because you kept your promise to me and because I am doing it; I am living life again!D.A. D.A.

Going through a divorce is an agonizing process, the emotional distress was overwhelming at times and the financial implications only exacerbated my anxiety. On top of that I had to hire a lawyer and hope that they would be professional,...
2017-04-03T10:56:15+00:00
Going through a divorce is an agonizing process, the emotional distress was overwhelming at times and the financial implications only exacerbated my anxiety. On top of that I had to hire a lawyer and hope that they would be professional, reliable and honest. I found that at NM Divorce & Custody and can’t express how fortunate I felt to have had Mary Ann Burmester’s representation in what I thought was going to be a quick divorce. Mary Ann is sharp, knowledgeable and honest. She gave me recommendations that I felt comfortable in taking and I never felt her representation didn’t have my best interests in mind. Mary Ann was an excellent advocate when my husband’s lawyer was requesting things from me that were completely unnecessary and had no purpose other than escalating expenses. She and her team were on top of things from day one, leaving me no doubt I’d made the right choice. I’d recommend them to absolutely anyone. A.B.

I want to give NM Custody & Divorce LLC a HUGE THANK YOU, for your professionalism, but most of all your patience and kindness. My experience with your firm was amazing start to finish, in such a difficult time in...
2017-04-03T10:56:42+00:00
I want to give NM Custody & Divorce LLC a HUGE THANK YOU, for your professionalism, but most of all your patience and kindness. My experience with your firm was amazing start to finish, in such a difficult time in my life, your team made me feel supported not just legally but with your concern. Ms. Burmester is an amazing women and attorney her and your firm have my highest recommendation!!   C.S.