Essential Divorce and Custody Rules in New Mexico

 

Rules add structure and predictability to the games that we play and enjoy.  Board games and sporting events would be a chaotic mess without rules to keep the players inside the lines of acceptable play, guiding the game from start to finish.

Sporting events have referees to interpret and enforce the rules.  Likewise, family court judges interpret and enforce New Mexico’s rules of evidence and procedure.

Here are the essential divorce and custody rules in New Mexico.

 

WHAT FINANCIAL INFORMATION IS NEEDED FOR CALCULATING CHLID SUPPORT?

 

New Mexico’s Rule 1-123 requires parties to provide certain financial information within 45 days of being served with a divorce.  The required information under Rule 1-123 includes:

• Federal and state tax returns;
• W-2 statements;
• 1099 – if applicable;
• Daycare statements – if applicable;
• Dependent medical insurance premiums;
• Payroll statements – if applicable;
• An interim monthly income and expense statement;
• A community property and liabilities schedule;
• A separate property and liabilities schedule.

The Rule 1-123 information is used to calculate child support, interim support, and alimony.

 

WHAT IS A NOTICE OF COMPLETION OF BRIEFING IN NEW MEXICO?

 

New Mexico Rule 1-007 involves motions that are filed in family court.   New Mexico family courts are increasingly enforcing the requirement to file a “notice of completion of briefing.”  This notice alerts the assigned judge that the time for filing a response has passed and that the filed motion is ready to be heard.

 

HOW CAN I SERVE A DIVORCE PETITION OR MOTION?

 

Rule 1-004 involves serving the opposing party with a copy of the divorce or custody petition.   According to this rule, the petition and summons can be served on any person over 18 years old that is not a party to the case.  The documents are usually handed to the opposing party through a process server.  However, the rule allows service to be made through certified mail, or in a way that is “reasonably calculated under all of the circumstances” to alert the other party of the documents that were filed.

Rule 1-005 deals with serving a motion after the divorce or custody petition has been filed.  This rule effectively states that all motions must be delivered to the other party.   The motion, or other legal document, may be delivered:

• By handing it to the attorney or party;
• Sending a copy by fax or email, when permitted by the Rule;
• Leaving it at the attorney or party’s office;
• Mailing a copy.

 

HOW LONG DO I HAVE TO RESPOND TO A MOTION IN ALBUQUERQUE, NM?

 

Usually, you must file a response to a motion fifteen (15) days after being served with the motion. See Rule 1-007.1(D).  You get an additional 3 days to respond, when you received the motion by mail, fax, email, or deposit at a location.  See Rule 1-006(C).

 

WHEN CAN I INTERVENE IN A CUSTODY OR DIVORCE CASE IN NEW MEXICO?

 

Rule 1-024 enables an interested party to a family law case to intervene when:

• A statute confers an unconditional right to intervene; or
• When the proposed intervenor has an interest in the case that interest is “. . . so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by the existing parties.”

Common examples of a party intervening into a family law case include:

• Child Support Enforcement Division (CSED);
• Grandparent(s); and
• Aunt or uncle.

The party attempting to intervene into the case must also demonstrate that they have standing (legal ability) to enter the case.  For instance, a Grandparent could request to intervene into a child custody case by demonstrating that they can have Grandparent Visitation Privileges under 40-9-2.

An uncle, aunt, or other relative could potentially intervene into a custody matter under the Kinship Guardianship Act.

 

WHEN CAN I REQUEST ATTORNEY FEES FOR DIVORCE/CUSTODY CASES IN NEW MEXICO?

 

You can request attorney according to Rule 1-054 and Rule 1-127.  A request for attorney fees, under Rule 1-054, must outline the time used and state that the fees claimed are correctly stated and necessary.  In awarding fees, New Mexico family courts consider the following factors:

• Difference in the parties’ resources, including assets and incomes;
• Prior settlement offers;
• The total amount of fees and costs expended by each party;
• The amount paid from community funds;
• Any balances due and any interim advance of funds ordered by the court; and
• Success on the merits.

It’s important to note that NM family court’s rarely award attorney fees.  Attorney fees are usually only awarded in the following cases:

• When a pointless motion is filed; or
• When someone is directly violating a court order that forces a motion to be filed.

Even when attorney fees are awarded, they usually are only a portion of the overall expenses.

WHAT INFORMATION CAN I REQUEST IN A CUSTODY OR DIVORCE CASE IN NM?

 

Most financial issues in divorce or custody cases can be handled with the Rule 1-123 information discussed above.

Rule 1-026 involves the discovery process, when more information is needed.  The following methods can be used to gather additional information:

• Depositions (sworn statements);
• Interrogatories (questions that require a sworn response);
• Request for Production of Documents (requesting documents); or
• Request for Admissions (short yes or no questions).

A party may request any information, not privileged, which is relevant to the subject matter involved in the custody or divorce matter.  The right to uncover relevant financial information is broad and basically means that any information that relates to the custody or divorce case may be fair game if it is not privileged information.

 

WHEN CAN I APPEAL A FAMILY COURT DIVORCE/CUSTODY ORDER IN NEW MEXICO?

 

You have the right to appeal the final decision of a family court judge in New Mexico.  Your appeal is not another “bite at the apple” or another chance to have your case/legal issue heard.  The purpose of an appeal is to review your case exactly as it happened and was decided by your family court judge (trial judge).

In most family law cases the standard of review is an “abuse of discretion.”  The appellate court will carefully review all the evidence to determine if your family court judge abused his/her discretion (power) and correctly applied NM law when reaching a decision.

The appellate court does not decide if it would have made the same decision as your family court judge, based on the evidence.  The appellate court presumes that the family court judge decided the case correctly.  The person claiming error bears the burden of proving such an error. See 1990-NMSC-100.

It is important to note that you must file a notice of appeal within 30 days of the judge’s order.

 

HOW DO I AMEND/EDIT A MOTION THAT I FILED IN FAMILY COURT?

 

New Mexico Rule 1-015 allows a party to amend a pleading (motion or petition) after it has been filed.  This rule allows you to add information to your petition or motion after it is filed in your custody or divorce case in New Mexico.

 

CAN I REQUEST A JURY TRIAL FOR MY DIVORCE/CUSTODY CASE IN NEW MEXICO?

 

Technically you can request a jury trial in a divorce or custody matter, under Rule 1-038.  With that said, I have never seen or heard of anyone requesting a jury trial for a family law case in New Mexico.  Jury trials are not requested in family law cases because the costs outweigh the benefits, for the following reasons:

• Custody and divorce litigation can be very stressful.  The potential of testifying before six or twelve jury members would be especially daunting for most people going through a divorce or custody case.
• Jurors lack knowledge of NM law and court polices.
• The jury’s outcome could be wildly unpredictable.
• The time and expense would be higher with less predictability.

For these reasons, I have never seen or heard of someone requesting a jury trial for a divorce or custody trial.

 

(505) SANCHEZ HELPS YOU UNDERSTAND THE ESSENTIAL DIVORCE AND CUSTODY RULES IN NEW MEXICO

 

Matthew Sanchez has the hard fought trial experience to help you understand the essential divorce and custody rules in New Mexico.  Sanchez has handled divorce and custody cases all across New Mexico, including Bernalillo, Sandoval, and Valencia counties.  You need an attorney that understands the essential divorce and custody rules in New Mexico.  You need to call (505) SANCHEZ.