Are you facing a divorce or child custody case in Albuquerque, New Mexico? If so, it’s important to understand the legal procedures involved.
At times, following proper legal procedure is the difference between success and failure.
From filing the initial paperwork, properly serving the other party, and meeting court-imposed deadlines, there are many steps in the process. Most importantly, failing to take the proper steps can cause your case to fall apart.
In other words, following proper procedure is essential to achieving your divorce and child custody goals.
Consequently, it’s important to work with an experienced family law attorney. An experienced divorce and child custody attorney can guide you through each stage and help you achieve the best outcome for you and your family.
Here are the important divorce and child custody procedures you need to know in Albuquerque, NM.
FILING PROCEDURE
Divorce and child custody cases begin with a petition. The petition is a request to open the case.
Procedurally, the petition must establish that New Mexico has jurisdiction/power to handle the case.
Have you lived in New Mexico for six months prior to filing? If yes, then New Mexico has jurisdiction to handle your divorce or child custody case.
Do you live in Albuquerque? If so, then your divorce, child custody, or restraining order case is filed through Second Judicial District Courthouse.
Alternatively, Rio Rancho residents can file their divorce, child custody, or restraining order case through Thirteenth Judicial District Courthouse.
REQUESTING NECESSARY ORDERS
The difference between success and failure may hinge on an order being requested and granted. For example, parents that want to prevent their ex from removing the child from New Mexico need to file for divorce or paternity.
In doing so, a temporary domestic order needs to be issued and served. This temporary domestic order (TDO) prevents either party from removing the child from New Mexico without written consent.
At times, the court only issues a TDO when requested.
Failing to request and serve a TDO can be the difference between a New Mexico court preventing a parent to remove a child from NM.
Consequently, it is essential to request necessary orders when opening a divorce or child custody case.
PROPERLY SERVING DIVORCE & CHILD CUSTODY PAPERS
The petition opens the divorce or child custody case. Moving forward, the petition must be served with the summons and other orders issued.
In New Mexico, Rule 4 deals with properly serving divorce or child custody papers.
Under the rules, the other party can be served in a manner that is reasonably calculated to inform them about the case. Depending on the circumstances, the petition may be served through certified mail, or posting at the person’s home.
With that said, best practice is usually to personally serve the other party with the divorce or child custody papers. In doing so, it is important to file the Return of Service that proves that proper service has been provided.
Next, a party to the case cannot serve the legal papers. This means that you or your attorney cannot serve your ex with divorce or child custody papers. Instead, these legal papers are usually served through a process server, or sheriff.
Failing to properly serve divorce or child custody papers can hurt your case in several ways.
First, it can delay your case from being finalized.
Moreover, it can also delay a hearing from being set and an essential order being entered.
Finally, failing to properly serve divorce or child custody papers could result in the case being filed in another state.
In other words, it is crucial to properly serve divorce and child custody papers.
MOTIONS
Has a motion been filed in your divorce or child custody case? For example, has your ex filed a motion to establish custody, visitation, or child support?
If so, it is essential to properly respond within fifteen days of being served with the motion. Alternatively, you must file within 30 days of being served with the petition.
Failing to properly respond to the petition or motion could result in a default order being entered. In other words, not properly filing a response to the petition or motion could result in your ex being awarded everything that he or she requested.
This could mean that your ex is awarded sole legal custody.
Moreover, it could mean that your ex is granted all the community property, or other requests in the divorce case.
Therefore, it is essential to properly respond to divorce and child custody pleadings. Failing to do so can cause long-term damage.
DISCOVERY
Discovery is a process in divorce or child custody cases that is routinely used to request financial information.
For example, with many divorce cases, one spouse has no idea about the other spouse’s retirement, credit card debt, or other property.
You see, sometimes one spouse exclusively handles the finances in a marriage. When this happens, the other spouse is usually unaware about the community property or debt that was built during the marriage.
Consequently, the discovery process may be necessary to understand the spouse’s complete financial picture.
Also, this financial information is essential if the case moves towards a divorce trial. Failing to retrieve and present financial information could result in the court rejecting an otherwise valid claim.
Were you married to someone that exclusively handled your finances during marriage? If so, are you now unsure what you are entitled to upon divorce?
In this situation, you need an experienced Albuquerque divorce attorney to uncover necessary financial documents. These documents can be the difference between success and failure with your divorce case.
Also, sometimes privileged information is requested during a divorce or child custody case. For example, your ex may request medical information, or other privileged information during your child custody case.
When this happens, you can object to the information being provided. However, failing to properly object can waive your right to object. In other words, failing to properly object to providing the privileged information can result in you being forced to provide the information.
For this reason, it is essential to speak with a top divorce attorney in Albuquerque, New Mexico.
PROPER NOTICE AND RETURN OF SERVICE
Several different motions/requests can be filed during a divorce or child custody case.
For example, the following motion can be filed during a divorce:
- Motion for exclusive use of the marital residence;
- Request for interim support; or
- Motion to establish temporary timesharing.
Failing to properly serve the other side with notice of the motion can result in the motion being denied. Moreover, failing to properly serve can cause avoidable delays to the scheduled hearing.
You see, it often takes several months for divorce courts to set a hearing on one party’s motion. At this hearing, failing to properly serve the motion can result in the hearing being continued. Moving forward, it could take another few months for the court to reschedule the hearing.
In other words, it is essential to serve your ex with proper notice of requests and motions. Failing to do so can haunt your case.
EXHIBITS AND WITNESSES
Exhibits and witness lists must be provided according to court orders. In this regard, different judges have different requirements for providing notice of exhibits and witnesses before court.
For example, one judge may require a ten-day notice. Conversely, another judge may only require the information to be provided 48 hours before the hearing.
Usually, failing to provide exhibits and a witness list on time prevents the exhibits or witnesses from being presented.
This could be the difference between winning or losing your case.
Therefore, it is crucial to provide exhibits and witness lists on time.
TRIAL
It’s game day. You’ve filed your petition, completed the discovery process, and filed your witness and exhibit lists on time.
Now it’s time to properly preserve issues for appeal. In other words, you need to properly object to statements, exhibits, or witnesses that violate rules of evidence.
For example, possibly a statement or exhibit is hearsay. Moreover, possibly it is not relevant to the issues. Nevertheless, by failing to properly object, you waive the right to raise the issue on appeal.
Failing to properly object can be the difference between winning or losing your appeal.
Moral of the story, from beginning to end, there are important divorce and child custody procedures you need to know in Albuquerque, New Mexico.
Check out this video for more information on what to expect in family court.
