Contested Divorce Attorney in Albuquerque, New Mexico

Contested Divorce min

BEST CONTESTED DIVORCE ATTORNEY IN ALBUQUERQUE READY TO SERVE

In certain situations a divorce cannot be resolved amicably and transforms into a contested divorce. In some instances – for a wide variety of reasons – the parties refuse to agree on issues that are necessary to finalize the divorce.

Are you involved with a divorce where too much damage has been done? Do you feel that you have been wronged, or that the other party is making unreasonable requests? If so, it is essential that you have an experienced family law attorney in new Mexico that is willing to fight on your behalf.

WHAT IS A CONTESTED DIVORCE? 

A contested divorce means that both parties are unable to agree on the following issues:

  • Division of assets and debts;
  • Alimony/Spousal Support; or
  • Custody, timesharing, or child support.

HOW LONG WILL IT TAKE TO COMPLETE MY CONTESTED DIVORCE IN ALBUQUERQUE, NEW MEXICO? 

Here comes the classic lawyer answer, “it all depends.” This question has many layers and the answer usually depends on the number of issues that are involved and the cooperation of the opposing party.

 

WHAT ARE THE STEPS THAT I MUST TAKE TO COMPLETE A CONTESTED DIVORCE?

Just as there are many stages to a marriage, there are also several steps to a contested divorce. Generally speaking, the following steps may be necessary to complete a contested divorce:

STEP ONE

Starting the Divorce. The person requesting the divorce (i.e “Petitioner”) files a Petition for Dissolution of Marriage (“Petition”). At this point the court that has jurisdiction over the couple provided that the Petitioner has lived in the jurisdiction for six months prior to filing. The Petition is filed with several other legal documents, which are then served on the opposing party (“Respondent”). The Respondent then has thirty days to file a Response to the Petition. If no Response is filed, then the Petitioner can Motion the court for a Default Judgment.

STEP TWO

Disclosures and Discovery. In nearly every contested divorce case in Albuquerque, both parties will go through a discovery process, which is a request for all of the information necessary to complete the divorce. Discovery is used to gather information and often involves a demand for documents (“Request for Production of Documents), Interrogatories (Request for answers to a number of questions), subpoenas, depositions, and the like. In many divorces the second step is one of the more time-consuming, and ultimately expensive stages involved with a divorce.

STEP THREE

Temporary Motions. While the divorce is pending, either party may file a Request for Temporary Orders, requesting the court to address a number of interim issues, such as child custody and visitation, interim support, control of property, attorney fees, and other similar temporary requests.

STEP FOUR

Finishing a Divorce. A contested divorce in new mexico can be finalized in one of four ways. First, a case may be dismissed by the parties at any time before a Final Decree of Dissolution of Marriage is entered. It is quite common for parties to reconcile while the divorce is pending, opting instead to dismiss the case and move forward with their marriage. Second, the parties may reach an amicable agreement to resolve the case. Third, the parties may attend a settlement facilitation, where a skilled mediator – such as Gregg Velasquez – will assist the parties with reaching a resolution. Fourth, if no agreement is reached during the settlement facilitation, then the parties will move forward to a trial on the merits. During this trial the presiding family law judge will determine how the remaining issues are settled – for good or ill.

FAQs FOR CONTESTED DIVORCE IN ALBUQUERQUE, NEW MEXICO

WHAT IS A CONTESTED DIVORCE?

A contested divorce occurs when both sides are unable to reach a full agreement on the issues that are necessary to finalize the divorce. Contested divorces often involve disagreements regarding:

When parties are unable to agree on all of the divorce’s terms, the remaining issues need to be resolved to finalize the divorce. Not all contested divorces result in trial. Most contested divorces can and should be resolved through the mandatory Settlement Facilitation. At facilitation, an effective facilitator guides the parties towards an agreement that is based on New Mexico law and what the parties should reasonably expect to receive at trial, based on the marriage’s unique facts and circumstances.

At times, the parties are unable to reach an agreement at facilitation. This usually occurs when one side makes unreasonable demands, or makes demands that are not based on New Mexico law. This is why it is extremely important to have an experienced contested divorce attorney that knows what to expect, based on extensive trial practice.

CAN I GET DIVORCED IN NEW MEXICO IF I WAS MARRIED IN ANOTHER STATE?

Yes, provided that New Mexico has jurisdiction over you and your spouse. New Mexico law requires that you or your spouse live in New Mexico for at least six consecutive months to request a divorce in New Mexico.

New Mexico’s six month requirement prevents spouses from “forum shopping,” or choosing the most favorable state to determine divorce issues that include:

  • Property and debt distribution;
  • Spousal Support/Alimony;
  • Custody;
  • Visitation;
  • Child Support;
  • Any other contested issue.

When parties are unable to agree on all of the divorce’s terms, the remaining issues need to be resolved to finalize the divorce. Not all contested divorces result in trial. Most contested divorces can and should be resolved through the mandatory Settlement Facilitation. At facilitation, an effective facilitator guides the parties towards an agreement that is based on New Mexico law and what the parties should reasonably expect to receive at trial, based on the marriage’s unique facts and circumstances.

At times, the parties are unable to reach an agreement at facilitation. This usually occurs when one side makes unreasonable demands, or makes demands that are not based on New Mexico law. This is why it is extremely important to have an experienced attorney that knows what to expect, based on extensive trial practice.

MUST I PROVE THAT MY SPOUSE IS AT FAULT TO GET A DIVORCE?

New Mexico is a “no-fault” state. You are not required to prove fault, such as abuse, adultery, or abandonment to request and receive a divorce in New Mexico.

New Mexico does not require you to prove any wrongdoing. Most divorces are based on incompatibility, discord, or conflict of personalities. However, if certain acts of abuse have prompted your divorce — such as domestic violence or other criminal acts — addressing those issues can protect you and your family from a threat of immediate harm. When children are involved, addressing these acts of abuse can also impact your divorce’s custody or visitation.

If your divorce involves claims of domestic abuse and children are involved, it is essential to speak with an attorney that has extensive courtroom experience with divorce and domestic violence cases.

WHAT IF MY SPOUSE REFUSES TO GET DIVORCED?

As the Rolling Stones sing, “You can’t always get what you want.” Your spouse is powerless to stop the divorce. New Mexico is a no-fault state and either spouse can individually request a divorce. If New Mexico has jurisdiction, as described above, your spouse cannot stop the divorce from happening.

HOW DO I START THE DIVORCE PROCESS?

New Mexico divorce begins by filing a Petition for Dissolution of Marriage and Summons. The Petition opens the divorce case. The Summons informs your spouse about the divorce and the deadline for filing a Response (30 days from the date of service). Once the Petition is filed, New Mexico courts generally will issue a Temporary Domestic Order (TDO), which freezes the status quo. The Petition, Summons, and TDO must be served upon the opposing party under Rule 1-004. Usually the documents are personally served through a process server, or the sheriff in the other party’s jurisdiction.

A Marital Settlement Agreement that distributes community property/debt and addresses spousal support/alimony is necessary to finalize your divorce. When children are involved, a Parenting Plan is also necessary to determine custody, timesharing, and child support. The divorce is finalized when these documents are filed and the assigned Judge signs the Final Decree of Dissolution of Marriage. Usually it takes about five to ten days from the date that the documents are filed, for the judge to review and sign the Final Decree.

HOW IS MARITAL PROPERY AND DEBT SPLIT IN NEW MEXICO?

New Mexico is a community property state. This means that property and debt that is acquired during the marriage will generally be split 50-50 upon divorce.

Property that is acquired by either spouse during the marriage is generally considered “community property” and split 50-50. Community property/assets include:

    • Cars;
    • Homes;
    • Businesses;
    • Stocks/Bonds;
    • Retirement accounts;
    • Real property (i.e. land);
    • Collectibles and personal property; or
    • Other assets with value.

Cars that are purchased during the marriage, in one party’s name alone, are generally considered community assets and the equity or debt is split 50-50 upon divorce.

Debt that is accumulated during the marriage is generally considered “community debt” and split 50-50. Community debt includes:

      • Credit cards;
      • Loans associated with any property;
      • Medical;
      • Student loans; or
      • Any other debt generated during the marriage.

Debt that is acquired during the marriage, in one party’s name alone, is generally considered community debt and split 50-50.
Property is generally not considered community and will not be split 50-50 in the following situations:

        • Acquired before the marriage;
        • Inherited or a gift;
        • Personal injury settlement; or
        • Purchased with separate funds.

The division of property and debts is often one of the most contested matters during a divorce. This is especially true when one party is kept in the dark about the marital finances, when assets are transferred or disposed, or when debt is accumulated that did not benefit the community.

It is essential to hire an experienced attorney with an understanding of New Mexico law that is based on extensive trial experience with your specific judge.

HOW IS SPOUSAL SUPPORT/ALIMONY DETERMINED IN NEW MEXICO?

New Mexico courts have the power to award spousal support/alimony. Spousal support/alimony is a continuation/substitute for the right to support that each spouse enjoys during the marriage.

The two biggest factors that impact alimony in New Mexico are need and ability to pay. Alimony is not based on fault, and New Mexico courts cannot consider fault when determining the appropriate level of support. Alimony is not intended to be a penalty against one party.

Alimony’s duration is generally based on the length of marriage. Generally speaking, longer marriages equal longer alimony awards.

New Mexico has Alimony Guidelines that assist parties in reaching resolutions regarding the appropriate alimony. Unlike child support, New Mexico lacks clear and consistent alimony laws that establish the appropriate length and amount of alimony. Alimony is more of a “gray area” than child support, with a number of varying factors that determine the amount and duration. Because of this fact, New Mexico judges have wide discretion (“power”) to determine the proper amount and length of alimony.

Alimony is based on a number of different factors that are unique with each case. These factors include:

  • The age, health, and means of support for each spouse;
  • Each spouse’s current and future earning capacity;
  • Good-faith efforts to maintain employment or become self-supporting;
  • Each spouse’s reasonable needs;
  • The marriage’s length;
  • Each spouse’s property/assets;
  • Each spouse’s liabilities/debts;
  • Other sources of income;

As you can see, New Mexico courts consider a number of varying factors when determining the appropriate amount and length of alimony. It is essential to speak with an experienced attorney that has an understanding of New Mexico’s alimony laws that is based on courtroom experience.

HOW DO CHILDREN IMPACT DIVORCES IN NEW MEXICO?

Divorces involving children require an agreement or judge’s decision regarding issues such as custody, visitation, and child support. These issues are outlined through an enforceable court order known as a Parenting Plan. A Parenting Plan is basically an enforceable contract that controls issues affecting the child.

New Mexico courts are guided by the “best interests of the child standard” when determining the appropriate custody and timesharing when parents cannot agree on the issues. Similar to alimony, discussed above, New Mexico judges have immense power to determine the appropriate timesharing, and it is difficult to overturn the judge’s decision on appeal.

New Mexico law assumes that joint legal custody is in a child’s best interests. Physical custody (i.e. visitation/timesharing) is based on a number of varying factors, but ultimately is determined by a child’s “best interests.” When parents are unable to determine the child’s “best interests” the ultimate decision will be placed in your judge’s hands – for better or worse. Child support is based on clear and consistent New Mexico guidelines that consider:

  • Visitation schedule;
  • Each parent’s gross monthly income;
  • Work-related daycare expenses;
  • Insurance premiums paid for the child;
  • Extraordinary expenses.

New Mexico courts usually will not finalize a divorce until a Parenting Plan is entered that outlines custody, visitation, and child support. The Parenting Plan can either be agreed upon by the parties, or decided by one’s assigned judge.

WHAT’S A QDRO AND HOW DOES IT IMPACT MY DIVORCE?

QDRO is short for Qualified Domestic Relations Order. A Qualified Domestic Relations Order is a specific and detailed divorce order that divides a retirement account between the parties. As mentioned above, retirement accounts that are accumulated during the marriage are usually considered community property and are divided 50-50 upon divorce. Qualified Domestic Relations Orders are not required for the division of every retirement plan but are necessary for most retirement accounts. A QDRO is generally necessary to split a 401K or pension upon divorce, based upon a specific agreement or court order.

HOW LONG DOES IT TAKE TO COMPLETE A DIVORCE IN NEW MEXICO?

Here comes the classic lawyer answer – it all depends on your unique case! The time it takes to resolve any divorce depends on the individual facts and circumstances of your marriage. The length of the divorce depends on a number of factors that include:

  • Length of the marriage;
  • Number of contested issues;
  • Number of Motions/requests filed with the Court;
  • Extent of Discovery that is necessary to uncover the facts;
  • The other party’s reasonableness;
  • The other party’s understanding or acceptance of NM law;
  • The other party’s desire to stretch out the divorce;
  • Ability to reach an agreement at Settlement Facilitation;
  • Court’s availability/docket; or
  • Do the parties prefer to roll the dice with trial rather than settlement?

All divorces are not created equally. The length of time necessary to complete your divorce will depend on a number of factors that are unique to your situation and marriage.

Common Issues with a New Mexico Contested Divorce in Albuquerque, NM

 

New Mexico law requires you and your spouse to resolve certain legal issues before the court will dissolve your NM marriage.  The unique issues with your divorce case will depend on the length of the marriage, income differences, the property you own, debt, whether children are involved, and other factors.  Some of the common New Mexico divorce issues include:

 

Dividing Community Property and Debt during Contested Divorce

 

New Mexico is a community property state.  This means that NM courts view all property and assets accumulated during the marriage as community property.  New Mexico courts generally divide community property equally between the divorcing parties.  If one spouse wants to keep more property or assets, such as the marital home, then the other spouse is entitled to an equalization or offset.  In some cases, one spouse will provide the other spouse with an equalization payment to offset home equity, or retirement accounts that are community property to reach a 50/50 split.

 

Division of Debts 

 

Debt that is accumulated during a marriage is community debt that is split equally upon divorce.  New Mexico law requires all divorcing couples to divide any debts acquired during the marriage, with a few exceptions.  Dividing community debt may involve one spouse taking a great share of debt to offset the assets, an equalization payment, or other legal solutions.

 

Legal Custody and Time-sharing

 

Marriages that involve children will require a Parenting Plan to complete the divorce.  New Mexico couples will need to determine issues such as legal custody, time-sharing, and child support to complete the divorce in Bernalillo County and across New Mexico.  Legal custody involves the rights to make important decisions about the children’s education, relegation, medical care, and extracurricular activities.  Parents that are divorcing in New Mexico also need develop a time-sharing schedule that outlines the time that a child will spend with each parent.  It is always best practice to create a clearly defined Parenting Plan that outlines each parent’s rights and responsibilities.

 

Child Support

 

Child support in New Mexico is determined by the NM Child Support Guidelines.  A completed child support worksheet must be attached to every divorce.  Even when parents agree that child support will not be exchanged, based on a financial hardship or other reason, a child support worksheet must be attached to the final decree.  Child support amounts are impacted by the financial differences between the parents, or when a child spends significantly more time with one parent.  Child support is based on specific guidelines set out by the state of New Mexico that takes into account each parent’s income, time-sharing, and other factors.  Parents can modify child support by proving that a material change in circumstances has occurred since the child support order was entered.

 

Spousal Support/Alimony

 

New Mexico spousal support is commonly called alimony.  Alimony is not an issue with every divorce.  Alimony becomes an issue when the divorcing spouses have substantially different earning abilities, and the spouses were married for over five years.  The three biggest factors that impact alimony in New Mexico include length of marriage, financial need and ability to pay.  Alimony is often one of the more contentious issues with a New Mexico divorce case.  Alimony can generate intense emotions from both sides.  When addressing alimony you need an experienced and effective divorce advocate in New Mexico to examine the issues and find potential solutions.

Effective New Mexico Contested Divorce Attorney Near You

 

Have marital problems turned your thoughts towards the possibility of a divorce?  Has a breakdown in your marriage caused everyday activities to become complicated and painful?  Is your spouse’s absences and time away from the home increasing each day?  Do you have suspicions that your spouse is preparing for a divorce?  Are you looking for information to better prepare for divorce in New Mexico?

If you live in New Mexico and are thinking about a divorce, or you have already been served with divorce papers, then you need the advice and representation of an experienced, knowledgeable and dedicated Albuquerque divorce attorney.

When facing a divorce or legal separation, it is crucial to have effective representation from day one.  Your future and the impact of divorce upon your children might depend on the choices that you make right now. You deserve compassionate, trusted, and knowledgeable legal representation in New Mexico.  Sanchez proudly serves the state of New Mexico including Rio Rancho, Los Alamos, Santa Fe, Los Lunas, Belen, Grants, Socorro, and Estancia.

Matthew Legan Sanchez provides legal advice, legal solutions, and legal guidance during this difficult part of your life.  Sanchez is a dedicated NM divorce attorney that will listen to your unique story and provide a personalized approach to your divorce.  No two marriages are created equally.  All divorces are different and your goals will be different.  Sanchez invests the necessary time to understand you, your concerns, and your goals regarding your children’s needs, and your financial future. 

Speak with Sanchez when you are thinking about filing for divorce in New Mexico.  Every case that Sanchez accepts receives individual attention, careful strategy, detailed planning, skilled negotiations, creative solutions, and aggressive litigation when necessary.  Sanchez is dedicated to achieving the best possible results and solutions that protect you, your family, and your community property.

Contested Divorce in Albuquerque New Mexico