How Avoiding a Divorce Can Hurt You

 

DENYING THAT YOUR ALBUQUERQUE DIVORCE IS HAPPENING WILL HURT YOUR CASE

 

Oscar Wilde once wrote: “I never put off till tomorrow what I can possibly do the day after.”

Similar to Wilde, we all have an inborn tendency to procrastinate when faced with difficult decisions and action.  The tendency to delay necessary action is particularly evident in the marriage context when a couple is legally married – yet mentally single and living separate lives.

Months, years, or even decades can pass while a married couple lives apart without taking the necessary legal action to cut the ties of marriage.  In these situations the married couple might begin new relationships, jobs, incur assets/debts, or relocate to a different city, state, or country.

 

WAYS THAT DELAYING YOUR DIVORCE CAN HURT YOUR CASE

 

Couples that are married but living single lives face a number of potential problems.  The problems with remaining legally married while living apart include:

• Mounting community assets and debts;

• Problems tracing and identifying community assets and debts – particularly when assets/debts are accumulated in different states;

• Potential issues regarding alimony. In this respect, one’s potential claim for alimony increases as the length of the marriage grows;

• Tax liabilities; and

• Potential joint liability for a spouse’s negligence.

On the other hand, some of the potential benefits with remaining married while living separate lives include:

• Maintenance of health insurance; and

• Moral issues associated with divorce.

The costs of remaining married while living apart greatly outweigh the potential benefits.  There are too many potential liabilities to live separate lives while remaining married.  Like most unaddressed problems, the potential adverse repercussions grow with time, spawning a plethora of downstream liabilities.

For any number of reasons, after a significant period of time has passed, a party to the marriage often decides that it is time to take action into one’s hands and legally end the marriage. At this point in time, the couple may have drifted apart to a degree where they are living in separate states, countries, or where the other spouse’s location is unknown.

The divorce process begins when the party requesting the divorce (i.e. the Petitioner), files a Petition for Dissolution of Marriage.  The act of filing the Petition triggers a number of legal requirements.  One of these requirements provides the responding party (i.e. Respondent) with the constitutional right to receive notice of the Petition before the court can dissolve the marriage.

 

Due Process During a Divorce in New Mexico

 

The U.S. Constitution provides fundamental Due Process rights.  These legal rights dictate that the opposing party in a lawsuit (i.e. the Respondent) must be put on notice about the legal action (i.e. Petition of Dissolution of Marriage).  In a divorce proceeding, the Respondent must be provided with proper notice before the Court has jurisdiction (i.e. power) to dissolve the marriage.

There are two common avenues used to properly serve the Respondent with notice of the Petition for Dissolution of Marriage:

 

1. Physically Serve the Respondent with the Petition and Summons:

 

Physically serving the Respondent requires knowledge of the Respondent’s address or location.

This process is generally accomplished by a process server physically handing the Respondent a copy of the Petition and Summons. Under local rules, service can also be effectuated in a manner reasonably calculated — under all the circumstances — to put the Respondent on notice of the Petition for Dissolution of Marriage.

 

2. Serve by Publication:

 

In situations where a spouse’s address or location is unknown, the court can allow service to be effectuated through a publication such as a local newspaper or periodical.

Serving the other party through a publication requires one to file the appropriate Motion and Order allowing service by publication.  The Motion puts the court on notice that the other party’s address and location is unknown, and requests to serve notice through publication. The corresponding Order allows service by publication to take place based on the facts stated in the Motion.  When the Order is granted, the publication generally is achieved through a newspaper in the county that is most likely to provide the other party notice of the pending court case.

The publication must include:

1. The case caption;
2. Respondent’s name;
3. Name, address, and telephone number of the Petitioner’s attorney;
4. Statement that a default judgement may be entered if a response is not filed.

Generally, service by publication must be made once each week for three consecutive weeks.  After the publication process is complete, the Petitioner must file a Notice of Filing of Affidavit of Publication, which puts the court on notice that the Respondent has been properly served by publication.

In either scenario above, the Petitioner can move forward for a Default Judgement after service has been properly effectuated without Respondent filing the necessary Response.

WHAT IS A DEFAULT DIVORCE IN NEW MEXICO

 

Default Judgments are binding court orders that are entered, generally without a hearing, in favor of either party to the lawsuit.  With divorces, default judgement are commonly granted in the Petitioner’s favor when the Respondent has failed to file the necessary Response in relation to the Petition and Summons.

In situations where the Respondent has been physically served with the Petition and Summons, the Petitioner can file a Motion and Order for Default Judgement after 30 days have passed with the Respondent failing to file the requisite Response.

In situations where the Respondent has been served by publication, the Petitioner can Motion the Court for a Default Judgment after the publication process is complete, and the Notice of Filing of Affidavit of Publication has been filed.

(505) SANCHEZ IS HERE TO ANSWER YOUR QUESTIONS ABOUT HOW AVOIDING A DIVORCE CAN HURT YOU

 

Do you still have questions about putting off your divorce and how avoiding a divorce can hurt you?  Divorce in Albuquerque often requires the experienced hand and knowledge that comes with years of courtroom practice.  Matthew Legan Sanchez has the experience needed to handle your unique case.  Sanchez can be reached by calling (505) SANCHEZ.